SUNTRUST MORTGAGE SECURITIZATION, LLC, as Depositor, SUNTRUST MORTGAGE, INC., as Sponsor, Originator and Servicer, as Master Servicer and Trust Administrator, as Trustee and SUNTRUST BANK, as Custodian POOLING AND SERVICING AGREEMENT Dated as of [ ]...
Exhibit
4.1
as
Depositor,
SUNTRUST
MORTGAGE, INC.,
as
Sponsor, Originator and Servicer,
[ ],
as
Master
Servicer and Trust Administrator,
[ ],
as
Trustee
and
SUNTRUST
BANK,
as
Custodian
__________________________________________
Dated
as
of
[ ]
1, 200[ ]
___________________________________________
SUNTRUST
[ ]
TRUST, SERIES 200[ ]-[ ]
MORTGAGE-BACKED
PASS-THROUGH CERTIFICATES,
SERIES
200[ ]-[ ]
TABLE
OF
CONTENTS
ARTICLE
I
DEFINITIONS
|
5
|
||
Section
1.01.
|
Definitions.
|
5
|
|
WARRANTIES
|
49
|
||
Section
2.01.
|
Mortgage
Loans.
|
49
|
|
Section
2.02.
|
Acceptance
by the Trustee of the Mortgage Loans.
|
53
|
|
Section
2.03.
|
Representations,
Warranties and Covenants of the Originator and the
Servicer.
|
54
|
|
Section
2.04.
|
Delivery
of Opinion of Counsel in Connection with Substitution; Non-Qualified
Mortgages.
|
57
|
|
Section
2.05.
|
Execution
and Delivery of Certificates.
|
58
|
|
Section
2.06.
|
Representations
and Warranties of the Depositor.
|
58
|
|
Section
2.07.
|
Representations,
Warranties and Covenants of the Servicer, the Originator and the
Master
Servicer.
|
60
|
|
Section
2.08.
|
Representations
and Warranties of the Custodian.
|
64
|
|
Section
2.09.
|
Purpose
of Trust.
|
66
|
|
Section
2.10.
|
Subsequent
Transfers.
|
67
|
|
|
69
|
||
Section
3.01.
|
Servicer
to Service Mortgage Loans.
|
69
|
|
Section
3.02.
|
Subservicing
Agreements between the Servicer and Subservicers.
|
71
|
|
Section
3.03.
|
Successor
Subservicers.
|
72
|
|
Section
3.04.
|
Liability
of the Servicer.
|
73
|
|
Section
3.05.
|
No
Contractual Relationship between Subservicers and the Trustee,
Master
Servicer, Trust Administrator or Certificateholder.
|
73
|
|
Section
3.06.
|
Assumption
or Termination of Subservicing Agreements by Master Servicer, Trustee
or
Trust Administrator.
|
73
|
|
Section
3.07.
|
Collection
of Certain Mortgage Loan Payments.
|
74
|
|
Section
3.08.
|
Subservicing
Accounts.
|
75
|
|
Section
3.09.
|
Collection
of Taxes, Assessments and Similar Items; Escrow Accounts.
|
75
|
|
Section
3.10.
|
Collection
Account.
|
76
|
|
Section
3.11.
|
Withdrawals
from the Collection Account and the Certificate Account.
|
77
|
|
Section
3.12.
|
Investment
of Funds in the Collection Account, the Pre-Funding Account and
the
Certificate Account.
|
79
|
|
Section
3.13.
|
Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity
Coverage.
|
80
|
|
Section
3.14.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
|
82
|
|
Section
3.15.
|
Realization
upon Defaulted Mortgage Loans.
|
83
|
|
Section
3.16.
|
Release
of Mortgage Files.
|
85
|
i
Section
3.17.
|
Title,
Conservation and Disposition of REO Property.
|
86
|
Section
3.18.
|
Notification
of Adjustments.
|
88
|
Section
3.19.
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
88
|
Section
3.20.
|
Documents,
Records and Funds in Possession of the Servicer to Be Held for
the
Trustee.
|
88
|
Section
3.21.
|
Servicing
Compensation.
|
89
|
Section
3.22.
|
Annual
Statement as to Compliance.
|
89
|
Section
3.23.
|
Report
on Assessment of Compliance and Attestation.
|
90
|
Section
3.24.
|
Master
Servicer to Act as Servicer.
|
92
|
Section
3.25.
|
Compensating
Interest.
|
92
|
Section
3.26.
|
Credit
Reporting; Xxxxx-Xxxxx-Xxxxxx Act.
|
92
|
Section
3.27.
|
Certificate
Account.
|
93
|
Section
3.28.
|
Pre-Funding
Account.
|
93
|
Section
3.29.
|
[Reserved.]
|
94
|
Section
3.30.
|
REMIC-Related
Covenants.
|
94
|
Section
3A.01
|
Master
Servicer.
|
94
|
Section
3A.02
|
REMIC-Related
Covenants.
|
95
|
Section
3A.03
|
Monitoring
of Servicer.
|
95
|
Section
3A.04
|
Fidelity
Bond.
|
96
|
Section
3A.05
|
Power
to Act; Procedures.
|
96
|
Section
3A.06
|
Due-on-Sale
Clauses; Assumption Agreements.
|
97
|
Section
3A.07
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
97
|
Section
3A.08
|
[RESERVED].
|
98
|
Section
3A.09
|
Compensation
for the Master Servicer.
|
98
|
Section
3A.10
|
[RESERVED].
|
98
|
Section
3A.11
|
[RESERVED].
|
98
|
Section
3A.12
|
Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
98
|
98
|
||
Section
4.01.
|
Advances.
|
98
|
Section
4.02.
|
Priorities
of Distribution.
|
100
|
Section
4.03.
|
Monthly
Statements to Certificateholders.
|
104
|
Section
4.04.
|
[Reserved].
|
108
|
Section
4.05.
|
Allocation
of Realized Loss Amounts.
|
108
|
Section
4.06.
|
Compliance
with Withholding Requirements.
|
109
|
Section
4.07.
|
Commission
Reporting.
|
110
|
Section
4.08.
|
REMIC
Distributions and Allocation of Losses.
|
119
|
ARTICLE
V THE
CERTIFICATES
|
123
|
|
Section
5.01.
|
The
Certificates.
|
123
|
ii
Section
5.02.
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
124
|
Section
5.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
130
|
Section
5.04.
|
Persons
Deemed Owners.
|
130
|
Section
5.05.
|
Access
to List of Certificateholders’ Names and Addresses.
|
130
|
Section
5.06.
|
Maintenance
of Office or Agency.
|
130
|
ARTICLE
VI THE DEPOSITOR, THE
ORIGINATOR, THE MASTER SERVICER,
|
||
THE
SERVICER AND THE CUSTODIAN
|
131
|
|
Section
6.01.
|
Respective
Liabilities of the Depositor, the Originator, the Master Servicer
and the
Servicer.
|
131
|
Section
6.02.
|
Merger
or Consolidation of the Depositor, the Originator, the Master Servicer,
the Servicer or the Custodian.
|
131
|
Section
6.03.
|
Limitation
on Liability of the Depositor, the Originator, the Master Servicer,
the
Trust Administrator, the Servicer, the Custodian and
Others.
|
131
|
Section
6.04.
|
Limitation
on Resignation of the Servicer or Custodian.
|
132
|
Section
6.05.
|
Additional
Indemnification by the Servicer; Third Party Claims.
|
133
|
Section
6.06.
|
Rights
of the Depositor, the Master Servicer, the Trust Administrator
and the
Trustee in Respect of the Servicer.
|
133
|
Section
6.07.
|
Limitation
on Resignation of the Master Servicer.
|
134
|
Section
6.08.
|
Assignment
of Master Servicing.
|
134
|
Section
6.09.
|
Fees
of the Custodian.
|
135
|
ARTICLE
VII
DEFAULT
|
135
|
|
Section
7.01.
|
Events
of Default.
|
135
|
Section
7.02.
|
Master
Servicer to Act; Appointment of Successor.
|
141
|
Section
7.03.
|
Notification
to Certificateholders.
|
143
|
143
|
||
Section
8.01.
|
Duties
of the Trustee and Trust Administrator.
|
143
|
Section
8.02.
|
Certain
Matters Affecting the Trustee and the Trust Administrator.
|
144
|
Section
8.03.
|
Neither
the Trustee Nor the Trust Administrator Liable for Certificates
or
Mortgage Loans.
|
146
|
Section
8.04.
|
Trustee
and Trust Administrator May Own Certificates.
|
147
|
Section
8.05.
|
Fees
and Expenses of the Trustee and Trust Administrator.
|
147
|
Section
8.06.
|
Eligibility
Requirements for the Trustee and Trust Administrator.
|
148
|
Section
8.07.
|
Resignation
and Removal of the Trustee or Trust Administrator.
|
148
|
Section
8.08.
|
Successor
Trustee or Trust Administrator.
|
149
|
Section
8.09.
|
Merger
or Consolidation of the Trustee or the Trust
Administrator.
|
150
|
Section
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
150
|
Section
8.11.
|
Representations
and Warranties of the Trustee and Trust Administrator.
|
151
|
iii
Section
9.01.
|
Termination
upon Liquidation or Purchase of the Mortgage Loans.
|
152
|
Section
9.02.
|
Final
Distribution on the Certificates.
|
152
|
Section
9.03.
|
Additional
Termination Requirements.
|
154
|
ARTICLE
X MISCELLANEOUS
PROVISIONS
|
154
|
|
Section
10.01.
|
Amendment.
|
154
|
Section
10.02.
|
Recordation
of Agreement; Counterparts.
|
156
|
Section
10.03.
|
Governing
Law.
|
157
|
Section
10.04.
|
Intention
of Parties.
|
157
|
Section
10.05.
|
Notices.
|
157
|
Section
10.06.
|
Severability
of Provisions.
|
158
|
Section
10.07.
|
Assignment;
Sales; Advance Facilities.
|
158
|
Section
10.08.
|
Limitation
on Rights of Certificateholders.
|
160
|
Section
10.09.
|
Inspection
and Audit Rights.
|
161
|
Section
10.10.
|
Certificates
Nonassessable and Fully Paid.
|
161
|
Section
10.11.
|
Waiver
of Jury Trial.
|
162
|
ARTICLE
XI REMIC
PROVISIONS
|
162
|
|
Section
11.01.
|
REMIC
Administration.
|
162
|
Section
11.02.
|
Prohibited
Transactions and Activities.
|
165
|
Section
11.03.
|
Indemnification.
|
166
|
SCHEDULES
|
||
Schedule I
|
Mortgage
Loan Schedule
|
|
Schedule II
|
Reserved
|
|
Schedule III
|
Reserved
|
|
Schedule IV
|
Representations
and Warranties of SunTrust Mortgage, Inc. as to the Mortgage
Loans
|
|
Schedule I
|
Mortgage
Loan Schedule
|
|
EXHIBITS
|
||
Exhibit A
|
Form of
Class A and Class M Certificates
|
|
Exhibit B
|
[Reserved]
|
|
Exhibit C
|
Form of
Class R Certificate
|
|
Exhibit D
|
Form
of Subsequent Transfer Agreement
|
|
Exhibit E
|
Form of
Initial Certification of Custodian
|
|
Exhibit F
|
Form of
Document Certification and Exception Report of Custodian
|
iv
Exhibit G
|
Form of
Residual Transfer Affidavit and Agreement
|
|
Exhibit H
|
Form of
Transferor Certificate
|
|
Exhibit I
|
Form of
Rule 144A Letter
|
|
Exhibit J
|
Form of
Request for Release
|
|
Exhibit K
|
Form of
Contents for Each Mortgage File
|
|
Exhibit L
|
Power
of Attorney
|
|
Exhibit M
|
Form
of Trust Administrator Certification
|
|
Exhibit N
|
[Reserved]
|
|
Exhibit O
|
Purchase
Agreement
|
|
Exhibit
P
|
Standard
& Poor’s LEVELS® Glossary
|
|
Exhibit
Q
|
Form
of Calculation of Realized Loss
|
|
Exhibit
R
|
[Reserved]
|
|
Exhibit
S
|
Relevant
Servicing Criteria
|
|
Exhibit
T
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
v
THIS
POOLING
AND SERVICING AGREEMENT, dated as of
[ ]
1, 200[ ], among SUNTRUST MORTGAGE SECURITIZATION, LLC, as depositor (the
“Depositor”), SUNTRUST
MORTGAGE, INC., as originator, sponsor and servicer (the “Originator,”
“Sponsor”
and
the
“Servicer,”
as
applicable; and together “SunTrust”), and
[ ], as master
servicer and trust administrator (the “Master Servicer”
and
the “Trust
Administrator” in such capacities, respectively),
[ ],
as trustee (the “Trustee”) and
SUNTRUST BANK, as custodian (the “Custodian”),
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
The
Issuing
Entity intends to sell pass-through certificates (collectively, the “Certificates”), to be
issued hereunder in multiple Classes, which in the aggregate will evidence
the
entire beneficial ownership interest in the Trust Fund created
hereunder. The Certificates will consist of [eleven] Classes of
Certificates, designated as (i) the Class 1-A Certificates, (ii) the Class
2-A
Certificates, (iii) the Class 3-A Certificates, (iv) the Class M1, Class
M2,
Class M3, Class M4, Class M5, Class M6 and Class M7 and (v) the Class R
Certificates. The descriptions of REMIC I, REMIC II and
REMIC III that follow are part of the Preliminary Statement. Any
inconsistencies or ambiguities in this Agreement or in the administration
of
this Agreement shall be resolved in a manner that preserves the validity
of such
REMIC elections described below.
As
provided
herein, the Trust Administrator will make an election to treat the assets
of the
Trust Fund (exclusive of the Pre-Funding Account) as a real estate mortgage
investment conduit (a “REMIC”) for federal
income tax purposes, and such segregated pool of assets will be designated
as
“REMIC I.” The Class R-1 Interest will represent the sole Class
of “residual interests” in REMIC I for purposes of the REMIC
Provisions. Interest on all Classes of REMIC I Regular Interests
will be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
The
following
table irrevocably sets forth the designation, the Uncertificated REMIC I
Pass-Through Rate, the initial Uncertificated Balance, and solely for purposes
of satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii), the “latest
possible maturity date” for each of the REMIC I Interests. None
of the REMIC I Regular Interests shall be certificated.
Designation(1)
|
Uncertificated
Balance
|
Uncertificated
REMIC
I
|
1-Initial
|
(2)
|
|
1-PF
|
(2)
|
|
2-Initial
|
(3)
|
|
2-PF
|
(3)
|
|
3-Initial
|
(4)
|
|
3-PF
|
(4)
|
___________________
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the month immediately following the maturity
date for
the Mortgage Loan with the latest maturity date has been
designated as the “latest possible maturity date” for each REMIC I Regular
Interest.
|
(2)
|
Weighted
Average Net Mortgage Rate for Loan Group
1.
|
(3)
|
Weighted
Average Net Mortgage Rate for Loan Group
2.
|
(4)
|
Weighted
Average Net Mortgage Rate for Loan Group 3.
|
As
provided
herein, the Trust Administrator shall elect to treat the segregated pool
of
assets consisting of the REMIC I Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets shall be designated
as
“REMIC II.” The Class R-II Interest shall evidence the sole
Class of “residual interests” in REMIC II for purposes of the REMIC
Provisions. Interest on each Class listed below will be calculated on
the basis of the actual number of days in the related Interest Accrual Period
and a 360-day year.
The
following
table irrevocably sets forth the designation, the Uncertificated REMIC II
Pass-Through Rate, the initial Uncertificated Balance, and solely for purposes
of satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii), the “latest
possible maturity date” for each of the REMIC I Interests. None
of the REMIC II Regular Interests shall be certificated.
Designation
|
Initial
Uncertificated
Balance
|
Uncertificated
REMIC
II
Pass-Through
Rate
|
1-L
|
(2)
|
|
1-LS
|
(2)
|
|
2-L
|
(3)
|
|
2-LS
|
(3)
|
|
3-L
|
(4)
|
|
3-LS
|
(4)
|
________________
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the month immediately following the maturity
date for
the Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for each REMIC I Regular
Interest.
|
(2)
|
Weighted
average of the pass-through rates of the Class 1-Initial and Class
1-PF
Interest.
|
(3)
|
Weighted
average of the pass-through rates of the Class 2-Initial and Class
2-PF
Interest.
|
(4)
|
Weighted
average of the pass-through rates of the Class 3-Initial and Class
3-PF
Interest.
|
2
As
provided
herein, the Trust Administrator shall elect to treat the segregated pool
of
assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets shall be designated
as
“REMIC III.” The Class R-III Interest shall evidence the sole
Class of “residual interests” in REMIC III for purposes of the REMIC
Provisions. Interest on each Class listed below will be calculated on
the basis of the actual number of days in the related Interest Accrual Period
and a 360-day year.
The
following
table sets forth (or describes) the Class designation, Pass-Through Rate
and
initial Class Certificate Balance for each Class of REMIC III Regular Interests
comprising the “Regular Interests” in REMIC III for purposes of the REMIC
provisions:
Class
|
Initial
Class
Certificate
Balance
or
Initial
REMIC
III
Uncertificated
Balance
|
Pass-Through
Interest
Rate
|
Assumed
Final
Maturity
Dates(1)
|
1-A
|
$[ ]
|
(2)
|
|
2-A
|
$[ ]
|
(3)
|
|
3-A
|
$[ ]
|
(4)
|
|
M1
|
$[ ]
|
(5)
|
|
M2
|
$[ ]
|
(
)
|
|
M3
|
$[ ]
|
(
)
|
|
M4
|
$[ ]
|
(
)
|
|
M5
|
$[ ]
|
(
)
|
|
M6
|
$[ ]
|
(
)
|
|
M7
|
$[ ]
|
(
)
|
|
____________________
|
(1)
|
Solely
for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for each REMIC III Regular Interest, each of which
represents one or more of the “regular interests” in
REMIC III.
|
(2)
|
The
Pass-Through Rate for the Class 1-A Certificates for the interest
accrual
period related to each Distribution Date will equal the Weighted
Average
Net Mortgage Rate of Loan Group 1. The Pass-Through Rate for
those Certificates for the Interest Accrual Period related to the
first
Distribution Date is ___________% per
annum.
|
(3)
|
The
pass-through rate for the Class 2-A Certificates for the interest
accrual
period related to each Distribution Date will equal the Weighted
Average
Net Mortgage Rate of Loan Group 2. The Pass-Through Rate for
those Certificates for the Interest Accrual Period related to the
first
Distribution Date is _________% per
annum.
|
(4)
|
The
Pass-Through Rate for the Class 3-A Certificates for the interest
accrual
period related to each Distribution Date will equal the Weighted
Average
Net Mortgage Rate of Loan Group 3. The Pass-Through Rate for
those Certificates for the Interest Accrual Period related to the
first
Distribution Date is _________% per
annum.
|
(5)
|
For
the Interest Accrual Period for any Distribution Date, the Pass-Through
Rate for each Class of Subordinated Certificates will be the Subordinate
Pass-Through Rate, which will be equal to (i) the sum of the following
for
each Loan Group: the product of (x) the Weighted Average Adjusted
Net
Mortgage Rate of the
|
3
|
Mortgage
Loans in that Loan Group as of the first day of the prior calendar
month
and (y) the aggregate Stated Principal Balance of the Mortgage
Loans in
that Loan Group as of the first day of the related Due Period,
minus the
aggregate Certificate Principal Balance of the Senior Certificates
related
to that Loan Group immediately prior to that Distribution Date,
divided by
(ii) the aggregate Certificate Principal Balance of the Subordinated
Certificates immediately prior to that Distribution Date. For
federal income tax purposes, the Subordinate Pass-Through Rate
will equal
the weighted average of the pass-through rates on the Class 1-LS,
Class
2-LS and Class 3-LS Interests.
|
The
foregoing
REMIC structure is intended to cause all of the cash from the Mortgage Loans
to
flow through to REMIC II as cash flow on a REMIC regular interest, without
creating any shortfall—actual or potential (other than for credit losses)—to any
REMIC regular interest. To the extent that such structure is believed
to diverge from such intention, the party identifying such ambiguity or drafting
error shall notify the other parties hereto, and the parties hereto shall
attempt to resolve such ambiguity or drafting error in accordance with Section
10.01 hereto.
The
Stated
Principal Balance as of the Initial Cut-off Date of Loan Group 1, Loan Group
2
and Loan Group 3 is $[__________], $[_________] and $[_________],
respectively.
The
minimum
denomination for each Class of the Senior Certificates and Subordinate
Certificates will be $100,000, with integral multiples of $1 in excess thereof
except that one Certificate in each Class may be issued in a different amount;
and provided that such Certificates must be purchased in minimum total
investments of $100,000 per Class. The minimum denomination for the
Class R Certificates will be a 100% Percentage Interest in such
Class.
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical Certificates.
|
ERISA-Restricted
Certificates
|
The
Class R Certificates and any Certificate that no longer meets the
rating requirements of the Underwriter’s Exemption.
|
Offered
Certificates
|
The
Senior Certificates and the Subordinate Certificates.
|
Physical
Certificates
|
Class R
Certificates.
|
Private
Certificates
|
Class R
Certificates.
|
Rating
Agencies
|
Xxxxx’x,
Standard & Poor’s and Fitch.
|
Residual
Certificates
|
Class R
Certificates.
|
Senior
Certificates
|
Class
1-A, Class 2-A and Class 3-A Certificates.
|
Subordinate
Certificates
|
Class M1,
Class M2, Class M3, Class M4, Class M5, Class M6 and
Class M7 Certificates.
|
4
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
10-K
Filing
Deadline: As defined in Section 4.07(a)(iv)(A).
1933
Act: The Securities Act of 1933, as amended.
30-Day
Delinquency: Each Mortgage Loan with respect to which any
portion of a Scheduled Payment is, as of the last day of the prior Due
Period,
one month past due (without giving effect to any grace period).
60+
Day Delinquent Mortgage
Loan: Each Mortgage Loan with respect to which any portion of
a Scheduled Payment is, as of the last day of the prior Due Period, two
months
or more past due (without giving effect to any grace period), each Mortgage
Loan
in foreclosure, all REO Property and each Mortgage Loan for which the Mortgagor
has filed for bankruptcy (but not including any Liquidated Mortgage Loan
(or
related REO Property) as of the end of the related Prepayment
Period).
Accepted
Master Servicing
Practices: With respect to any Mortgage Loan, as applicable,
(1) either (x) those mortgage master servicing practices of prudent mortgage
lending institutions which master service Mortgage Loans of the same type
and
quality as such Mortgage Loan in the jurisdiction where the related Mortgaged
Property is located to the extent applicable to the Master Servicer (except
in
its capacity as successor to the Servicer), or (y) as provided in Section 3A.01 hereof,
but in no event below the standard set forth in clause (x) and (2) in accordance
with applicable local, state and federal laws, rules and
regulations.
Accepted
Servicing
Practices: With respect to any Mortgage Loan, as applicable,
(1) either (x) those mortgage servicing practices of prudent mortgage lending
institutions which service Mortgage Loans of the same type and quality
as such
Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located to the extent applicable to the Servicer, or (y) as provided in
Section 3.01 hereof,
but in no event below the standard set forth in clause (x) and (2) in accordance
with applicable local, state and federal laws, rules and
regulations.
Account: Any
of the Collection Account, the Certificate Account, the Pre-Funding Account
or
any Escrow Account. Each Account shall at all times be an Eligible
Account.
Addition
Notice: The notice given pursuant to Section 2.03 with respect
to the transfer of Subsequent Mortgage Loans to the Trust pursuant to such
Section.
Additional
Disclosure
Notification: The meaning set forth in Section
4.07(a)(ii).
Additional
Form 10-D
Disclosure: The meaning set forth in Section
4.07(a)(i).
5
Additional
Form 10-K
Disclosure: The meaning set forth in Section
4.07(a)(iv).
Adjustable
Rate Mortgage
Loan: An adjustable rate Mortgage Loan purchased pursuant to
the Purchase Agreement.
[Adjusted
Net Maximum
Mortgage Rate: As to each Mortgage Loan for any Distribution
Date, a per annum rate equal to the applicable Maximum Mortgage Interest
Rate
for such Mortgage Loan as of the first day of the month preceding the month
in
which such Distribution Date occurs minus the Expense Fee Rate.]
Adjusted
Net Mortgage
Interest Rate: As to each Mortgage Loan for any Distribution
Date, the per annum rate equal to the Mortgage Interest Rate for such Mortgage
Loan as of the first day of the month preceding the month in which such
Distribution Date occurs less the Expense Fee Rate.
Adjustment
Date: As to any Adjustable Rate Mortgage Loan, the first Due
Date on which the related Mortgage Interest Rate adjusts as set forth in
the
related Mortgage Note and each Due Date thereafter on which the Mortgage
Interest Rate adjusts as set forth in the related Mortgage Note.
Advance: Any
P&I Advance or Servicing Advance made by the Master Servicer or the Servicer
in respect of any Distribution Date pursuant to Section
4.01.
Advance
Facility: A financing or other facility as described in Section 10.07.
Advancing
Person: The Person to whom the Servicer’s rights under this
Agreement to be reimbursed for any P&I Advances or Servicing Advances have
been assigned pursuant to Section 10.07.
Adverse
REMIC
Event: As defined in Section 11.01(f)
hereof.
Affiliate: With
respect to any Person, any other Person controlling, controlled by or under
common control with such first Person. For the purposes of this
definition, “control” means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
Agreement: This
Pooling and Servicing Agreement and all amendments or supplements
hereto.
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.
6
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 the
Cut-off Date.
Aggregate
Subordinate
Optimal Principal Amount: For any Distribution Date, the sum
of the Subordinate Optimal Principal Amounts for each Loan Group.
Aggregate
Subordinate
Percentage: With respect to the Subordinate Certificates and
as of any Distribution Date, the aggregate Certificate Principal Balance
for the
Subordinate Certificates divided by the
Aggregate Pool Principal Balance.
Allocable
Share: For any Distribution Date and with respect to each
Class of Subordinate Certificates, the portion of the Aggregate Subordinate
Optimal Principal Amount allocable to such Class, equal to the product
of the
Aggregate Subordinate Optimal Principal Amount on such Distribution Date
and a
fraction, the numerator of which is the related Certificate Principal Balance
thereof and the denominator of which is the aggregate of the Certificate
Principal Balances of the Subordinate Certificates.
Alternative
Title
Product: [to come]
Amount
Available for Group 1
Principal: As to any Distribution Date, Group 1 Available
Funds for such Distribution Date reduced by the aggregate amount distributable
on such Distribution Date in respect of interest on the Group 1 Certificates
pursuant to Section 4.02(a)(i) priority first sub-clause (A).
Amount
Available for Group 2
Principal: As to any Distribution Date, Group 2 Available
Funds for such Distribution Date reduced by the aggregate amount distributable
on such Distribution Date in respect of interest on the Group 2 Certificates
pursuant to Section 4.02(a)(i) priority first sub-clause (B).
Amount
Available for Group 3
Principal: As to any Distribution Date, Group 3 Available
Funds for such Distribution Date reduced by the aggregate amount distributable
on such Distribution Date in respect of interest on the Group 3 Certificates
pursuant to Section 4.02(a)(i) priority first sub-clause (C).
Apportioned
Subordinate
Principal Distribution Amount: For any Distribution Date and
the Subordinate Certificates, the product of (i) the Subordinate Principal
Distribution Amount for the Subordinate Certificates and (ii) the Apportionment
Fraction.
Apportionment
Fraction: With respect to the Subordinate Certificates and for
any Distribution Date, in the event that the Certificate Principal Balances
of
the Senior Certificates of any Certificate Group have been reduced to zero,
a
fraction, the numerator of which is equal to the Subordinate Optimal Principal
Amount of the Loan Group related to such Certificate Group, and the denominator
of which is equal to the Aggregate Subordinate Optimal Principal
Amount.
Appraised
Value: With respect to any Mortgage Loan, the value of the
related Mortgaged Property based upon the appraisal made for the originator
at
the time of origination of such Mortgage Loan or the sales price of such
Mortgaged Property at such time of origination,
7
whichever
is less; provided, however, that in the case of a refinanced Mortgage Loan,
such
value is based solely upon the appraisal made at the time of origination
of such
refinanced Mortgage Loan.
Assessment
of
Compliance: As defined in Section
3.23.
Assignment
of
Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form (other than the assignee’s name and
recording information not yet returned from the recording office), reflecting
the sale of the Mortgage to the Trustee.
Attestation
Report: As defined in Section
3.23.
Back-Up
Certification: As defined in Section
4.07(a)(iv).
Bankruptcy
Coverage
Termination Date: With respect to any Loan Group, the point in
time at which the Bankruptcy Loss Coverage Amount is reduced to
zero.
Bankruptcy
Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction as reported by the Servicer to the Master Servicer;
provided, however,
that a
Bankruptcy Loss shall not be deemed a Bankruptcy Loss hereunder so long
as the
Master Servicer has notified the Trustee in writing that either the Master
Servicer or the Servicer is diligently pursuing any remedies that may exist
in
connection with the related Mortgage Loan and either (A) the related Mortgage
Loan is not in default with regard to payments due thereunder or (B) delinquent
payments of principal and interest under the related Mortgage Loan and
any
related escrow payments in respect of such Mortgage Loan are being advanced
on a
current basis by either the Master Servicer or the Servicer, in either
case
without giving effect to any Debt Service Reduction or Deficient
Valuation.
Bankruptcy
Loss Coverage
Amount: With respect to any Distribution Date, the Bankruptcy
Loss Coverage Amount shall equal the related Initial Bankruptcy Coverage
Amount
as reduced by (i) the aggregate amount of Bankruptcy Losses relating to
the
Mortgage Loans since [ ] 1, 200[ ] and
(ii) any permissible reductions in the Bankruptcy Loss Coverage Amount
as
evidenced by a letter of each Rating Agency to the Trust Administrator
to the
effect that any such reduction or modification will not adversely affect
the
then current ratings assigned to the Senior Certificates rated by
it.
Best’s: Best’s
Key Rating Guide, as the same shall be amended from time to time.
Book-Entry
Certificates: As specified in the Preliminary
Statement.
Business
Day: Any day other than (i) Saturday or 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 Trustee’s and Trust Administrator’s operations are located, are
authorized or obligated by law or executive order to be closed.
8
Certificate: Any
one of the Certificates executed by the Trust Administrator in substantially
the
forms attached hereto as exhibits.
Certificate
Account: The separate Eligible Account created and maintained
by the Trust Administrator pursuant to Section 3.27(b)
in the name of the Trust Administrator for the benefit of the Certificateholders
and designated
“[ ]
in trust for registered holders of SunTrust
[ ]
Mortgage-Backed Pass-Through Certificates, Series 200[ ]-[
].” Funds in the Certificate Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement
and may
be invested in Permitted Investments.
Certificate
Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Book-Entry Certificate.
Certificate
Principal
Balance: With respect to any Class of Certificates, other than
the Class R Certificates, immediately prior to any Distribution Date will
be
equal to the Original Certificate Principal Balance thereof reduced by
the sum
of all amounts actually distributed in respect of principal of such Class
and,
in the case of a Subordinate Certificate, Realized Losses allocated thereto
on
all prior Distribution Dates (taking into account any increases in the
Certificate Principal Balance thereof by any Subsequent Recoveries allocated
to
that Class). The Class R Certificates will not have a Certificate
Principal Balance.
Certificate
Register: The register maintained pursuant to Section 5.02.
Certificate
Registrar: The registrar appointed pursuant to Section 5.02.
Certificateholder
or
Holder: The person in whose name a Certificate is registered
in the Certificate Register, except that, solely for the purpose of giving
any
consent pursuant to this Agreement, any Certificate registered in the name
of
the Depositor, the Master Servicer, the Servicer, or the Custodian or any
affiliate thereof shall be deemed not to be Outstanding and the Percentage
Interest evidenced thereby shall not be taken into account in determining
whether the requisite amount of Percentage Interests necessary to effect
such
consent has been obtained.
Certification
Parties: As defined in Section
4.07(a)(iv)
hereof.
Certifying
Person: As defined in Section
4.07(a)(iv)
hereof.
Class: All
Certificates or REMIC I Regular Interests or REMIC II Regular Interests
bearing
the same Class designation as set forth in the Preliminary
Statement.
Class
1-A
Certificates: All Certificates bearing the Class designation
of “Class 1-A Certificates” representing the right to distributions as set forth
herein and therein and representing a regular interest in REMIC III for
purposes of the REMIC Provisions.
Class 2-A
Certificates: All Certificates bearing the Class designation
of “Class 2-A Certificates” representing the right to distributions as set forth
herein and therein and representing a regular interest in REMIC III for
purposes of the REMIC Provisions.
9
Class
3-A
Certificates: All Certificates bearing the Class designation
of “Class 3-A Certificates” representing the right to distributions as set forth
herein and therein and representing a regular interest in REMIC III for
purposes of the REMIC Provisions.
Class
Certificate
Balance: With respect to any Class and as to any date of
determination, the aggregate of the Certificate Principal Balances of all
Certificates of such Class as of such date.
Class
Interest
Shortfall: As to any Distribution Date and any
interest-bearing Class of Certificates, the amount by which the amount
described
in clause (i) of the definition of “Accrued Certificate Interest” for such Class
exceeds the amount of interest actually distributed on such Class on such
Distribution Date pursuant to such clause (i).
Class M1
Certificates: All Certificates bearing the
Class designation of “Class M1 Certificates” representing the right to
distributions as set forth herein and therein and representing a regular
interest in REMIC III for purposes of the REMIC Provisions.
Class
M1 Principal
Distribution Amount: With respect to any Distribution Date and
the Class M-1 Certificates, an amount equal to the lesser of (I) the aggregate
Certificate Principal Balance of such Class of Subordinate Certificates
immediately prior to such Distribution Date and (II) the excess of (x)
the sum
of (i) the aggregate Certificate Principal Balance of the Senior Certificates
(after taking into account the payment of the Senior Principal Distribution
Amount on such Distribution Date) and (ii) the aggregate Certificate Principal
Balance of the Class M-1 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of
(i) [ ]% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Due
Period (after giving effect to Scheduled Payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to Scheduled Payments of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor.
Class M2
Certificates: All Certificates bearing the
Class designation of “Class M2 Certificates” representing the right to
distributions as set forth herein and therein and representing a regular
interest in REMIC III for purposes of the REMIC Provisions.
Class
M2 Principal
Distribution Amount: Class M4 Principal Distribution Amount
means, for any Distribution Date, an amount equal to the lesser of (I)
the
Certificate Principal Balance of the Class M2 Certificates immediately
prior to
such Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Senior Certificates (after taking
into
account the payment of the Senior Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M1 Certificates (after taking into account the payment of the Class
M1
Principal Distribution Amounts on such Distribution Date) and (iii) the
Certificate Principal Balance of the Class M2 Certificates immediately
prior to
such Distribution Date over (y) the lesser of (A) the product of (i)
[ ]%
10
and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to Scheduled Payments of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage
Loans as
of the last day of the related Due Period (after giving effect to Scheduled
Payments of principal due during the related Due Period, to the extent
received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the Overcollateralization Floor.
Class
M3
Certificates: All Certificates bearing the Class designation
of “Class M3 Certificates” representing the right to distributions as set forth
herein and therein and representing a regular interest in REMIC III for
purposes of the REMIC Provisions.
Class
M3 Principal
Distribution Amount: Class M4 Principal Distribution Amount
means, for any Distribution Date, an amount equal to the lesser of (I)
the
Certificate Principal Balance of the Class M3 Certificates immediately
prior to
such Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Senior Certificates (after taking
into
account the payment of the Senior Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M1 and Class M2 Certificates (after taking into account the payment
of the
Class M1 and Class M2 Principal Distribution Amounts on such Distribution
Date)
and (iii) the Certificate Principal Balance of the Class M3 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A)
the
product of (i) [ ]% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period (after giving effect to Scheduled Payments of principal due
during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to Scheduled Payments of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor.
Class M4
Certificates: All Certificates bearing the
Class designation of “Class M4 Certificates” representing the right to
distributions as set forth herein and therein and representing a regular
interest in REMIC III for purposes of the REMIC Provisions.
Class
M4 Principal
Distribution Amount: Class M4 Principal Distribution Amount
means, for any Distribution Date, an amount equal to the lesser of (I)
the
Certificate Principal Balance of the Class M4 Certificates immediately
prior to
such Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Senior Certificates (after taking
into
account the payment of the Senior Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M1, Class M2 and Class M3 Certificates (after taking into account
the
payment of the Class M1, Class M2 and Class M3 Principal Distribution Amounts
on
such Distribution Date) and (iii) the Certificate Principal Balance of
the Class
M4 Certificates immediately prior to such Distribution Date over (y) the
lesser
of (A) the product of (i) [ ]% and (ii) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of
the related Due Period (after giving effect to Scheduled
11
Payments
of principal due during the related Due Period, to the extent received
or
advanced, and unscheduled collections of principal received during the
related
Prepayment Period) and (B) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving
effect
to Scheduled Payments of principal due during the related Due Period, to
the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) minus the Overcollateralization
Floor.
Class M5
Certificates: All Certificates bearing the Class designation
of “Class M5 Certificates” representing the right to distributions as set
forth herein and therein and representing a regular interest in REMIC III
for
purposes of the REMIC Provisions.
Class M5
Principal
Distribution Amount: Class M5 Principal Distribution Amount
means, for any Distribution Date, an amount equal to the lesser of (I)
the
Certificate Principal Balance of the Class M5 Certificates immediately
prior to
such Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Senior Certificates (after taking
into
account the payment of the Senior Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M1, Class M2, Class M3 and Class M4 Certificates (after taking into
account the payment of the Class M1, Class M2, Class M3 and Class M4 Principal
Distribution Amounts on such Distribution Date), and (iii) the Certificate
Principal Balance of the Class M5 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of
(i) [ ]% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Due
Period (after giving effect to Scheduled Payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to Scheduled Payments of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor.
Class
M6
Certificates: All Certificates bearing the Class designation
of “Class M6 Certificates” representing the right to distributions as set forth
herein and therein and representing a regular interest in REMIC III for
purposes of the REMIC Provisions.
Class
M6 Principal
Distribution Amount: Class M6 Principal Distribution Amount
means, for any Distribution Date, an amount equal to the lesser of (I)
the
Certificate Principal Balance of the Class M6 Certificates immediately
prior to
such Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Senior Certificates (after taking
into
account the payment of the Senior Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M1, Class M2, Class M3, Class M4 and Class M5 Certificates (after
taking
into account the payment of the Class M1, Class M2, Class M3, Class M4
and Class
M5 Principal Distribution Amounts on such Distribution Date), and (iii)
the
Certificate Principal Balance of the Class M6 Certificates immediately
prior to
such Distribution Date over (y) the lesser of (A) the product of (i)
[ ]% and (ii) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Due Period (after
giving
effect to Scheduled Payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of
principal
12
received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to Scheduled Payments of principal due during the
related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the
Overcollateralization Floor.
Class M7
Certificates: All Certificates bearing the
Class designation of “Class M7 Certificates” representing the right to
distributions as set forth herein and therein and representing a regular
interest in REMIC III for purposes of the REMIC Provisions.
Class M7
Principal
Distribution Amount: Class M7 Principal Distribution Amount
means, for any Distribution Date, an amount equal to the lesser of (I)
the
Certificate Principal Balance of the Class M7 Certificates immediately
prior to
such Distribution Date and (II) the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Senior Certificates (after taking
into
account the payment of the Senior Principal Distribution Amount on such
Distribution Date), (ii) the aggregate Certificate Principal Balance of
the
Class M1, Class M2, Class M3, Class M4, Class M5 and Class M6 Certificates
(after taking into account the payment of the Class M1, Class M2, Class
M3,
Class M4, Class M5 and Class M6 Principal Distribution Amounts on such
Distribution Date), and (iii) the Certificate Principal Balance of the
Class M7
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) [ ]% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period (after giving effect to Scheduled Payments of principal due
during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day
of the related Due Period (after giving effect to Scheduled Payments of
principal due during the related Due Period, to the extent received or
advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the Overcollateralization Floor.
Class
Prepayment
Distribution Trigger: This trigger is satisfied with respect
to any Class of Subordinate Certificates and any Distribution Date, if
either
(i) the fraction, the numerator of which is the aggregate Certificate Principal
Balance of such Class and each Class of Subordinate Certificates subordinate
thereto, immediately prior to such Distribution Date, and the denominator
of
which is the Aggregate Pool Principal Balance with respect to that Distribution
Date, equals or exceeds such percentage calculated as of the Closing Date
or
(ii) such Class of Subordinate Certificates is the only Class of Subordinate
Certificates then outstanding.
Class R
Certificates: All Certificates bearing the Class designation
of “Class R Certificates” and evidencing the ownership of the “residual
interest” in each of REMIC I, REMIC II and REMIC III for purposes of
the REMIC Provisions. The Class R Certificate represents the
ownership of the Class R-I Interest, the Class R-II Interest and the Class
R-III
Interest..
Class R-I
Interest: The residual interest in REMIC I for purposes
of the REMIC Provisions.
13
Class R-II
Interest: The residual interest in REMIC II for purposes
of the REMIC Provisions.
Class R-III
Interest: The residual interest in REMIC III for purposes
of the REMIC Provisions.
Class
Unpaid Interest
Amounts: As to any Distribution Date and any interest-bearing
Class of Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount
distributed on such Class on prior Distribution Dates pursuant to clause
(ii) of
the definition of “Accrued Certificate Interest” for such Class.
Closing
Date: [ ],
200[ ].
Code: The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collection
Account: As defined in Section 3.10.
Commission: The
U.S. Securities and Exchange Commission.
Compensating
Interest: For any Distribution Date, the lesser of
(a) the Prepayment Interest Shortfall, if any, for such Distribution Date,
with respect to voluntary Principal Prepayments in full by the Mortgagor
(excluding any payments made upon liquidation of the Mortgage Loan), and
(b) the amount of the Servicing Fee payable to the Servicer for such
Distribution Date.
Condemnation
Proceeds: All awards, compensation and/or settlements in
respect of a Mortgaged Property, whether permanent or temporary, partial
or
entire, by exercise of the power of eminent domain or condemnation.
Cooperative
Corporation: With respect to any Cooperative Loan, the cooperative
apartment corporation that holds legal title to the related Cooperative
Property
and grants occupancy rights to units therein to stockholders through Proprietary
Leases or similar arrangements.
Cooperative
Lien
Search: A search for (a) federal tax liens, mechanics’ liens,
lis pendens, judgments of record or otherwise against (i) the Cooperative
Corporation and (ii) the seller of the Cooperative Unit, (b) filings of
Financing Statements and (c) the deed of the Cooperative Property into
the
Cooperative Corporation.
Cooperative
Loan: A Mortgage Loan that is secured by a first lien on and a
perfected security interest in Cooperative Shares and the related Proprietary
Lease granting exclusive rights to occupy the related Cooperative Unit
in the
building owned by the related Cooperative Corporation.
14
Cooperative
Property: With respect to any Cooperative Loan, all real
property and improvements thereto and rights therein and thereto owned
by a
Cooperative Corporation including without limitation the land, separate
dwelling
units and all common elements.
Cooperative
Shares: With respect to any Cooperative Loan, the shares of
stock issued by a Cooperative Corporation and allocated to a Cooperative
Unit
and represented by stock certificates.
Cooperative
Unit: With respect to any Cooperative Loan, a specific unit in
a Cooperative Property.
Corporate
Trust
Office. The designated office of the Trustee or the Trust
Administrator, as the case may be, at which at any particular time its
corporate
trust business with respect to this Agreement is administered, which office
at
the date of the execution of this Agreement is located at (i) with respect
to
the Trustee,
[ ],
Attention:
[ ] or at
such other address as the Trustee may designate from time to time by notice
to
the Certificateholders, the Depositor, the Servicer, the Master Servicer,
the
Originator and the Trust Administrator, or (ii) with respect to the Trust
Administrator, (A) for certificate transfer purposes,
[ ],
Attention:
[ ],
and (B) for all other purposes,
[ ],
Attention: [ ]
and which is the address to which notices to and correspondence with the
Trust
Administrator should be directed.
Credit
Enhancement
Percentage: With respect to any Distribution Date, the
percentage obtained by dividing (x) the aggregate Certificate Principal
Balance
of each Class of Certificates junior in priority to such Class and the
Overcollateralized Amount by (y) the aggregate Stated Principal Balance
of the
Mortgage Loans calculated prior to taking into account distributions of
principal on the Mortgage Loans and distribution of the Group 1 Principal
Distribution Amount, Group 2 Principal Distribution Amount and the Group
3
Principal Distribution Amount to the Holders of the Certificates then entitled
to distributions of principal on such Distribution Date.
Cross-Over
Date: The Distribution Date on which the aggregate Certificate
Principal Balance of the Subordinate Certificates has been reduced to
zero.
Cumulative
Realized
Losses: With respect to any Distribution Date, a fraction,
expressed as a percentage, obtained by dividing (x) the aggregate amount
of
Realized Losses incurred on the Mortgage Loans from the Cut-off Date through
the
last day of the related Due Period by (y) the aggregate Stated Principal
Balance
of the Mortgage Loans as of the Cut-off Date.
Current
Interest: With respect to any Distribution Date for each Class
of the Offered Certificates, the aggregate amount of interest accrued during
the
related Interest Accrual Period at the applicable Pass-Through Rate on
the
related Class Certificate Balance immediately prior to such Distribution
Date,
as reduced by such Class’s share of Net Prepayment Interest Shortfalls and
Relief Act Interest Shortfalls for the related Due Period allocated to
such
Class pursuant to Section 4.02.
15
[Custodial
Fee: With respect to each Mortgage Loan and any Distribution
Date, an amount equal to the product of (i) one twelfth of the Custodial
Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loans as of
the
first day of the calendar month preceding the month in which such Distribution
Date occurs.
Custodial
Fee
Rate: 0.[ ]%
per annum; provided, however, that if SunTrust Bank, National Association
ceases
to be the Custodian, the Custodial Fee Rate shall be 0.[ ]% per
annum.]
Custodial
File: With respect to each Mortgage Loan, the file retained by
the Custodian consisting of items (a) - (h) as listed on Exhibit K
hereto.
Custodian: SunTrust
Bank, and any successor thereto appointed hereunder.
Cut-off
Date: With respect to the Initial Mortgage Loans, the Initial
Cut-off Date; with respect to the Subsequent Mortgage Loans, the Subsequent
Cut-off Date; and with respect to all Qualified Substitute Mortgage Loans,
their
respective dates of substitution. References herein to the “Cut-off
Date,” when used with respect to more than one Mortgage Loan, shall be to the
respective Cut-off Dates for such Mortgage Loans.
Cut-off
Date Pool Principal
Balance: With respect to the Initial Mortgage Loans, the
Aggregate Loan Balance as of the Initial Cut-off Date.
Data
Tape
Information: The information provided by the Originator as of
the Cut-off Date to the Depositor setting forth the following information
with
respect to each Mortgage Loan: (1) the Originator’s Mortgage Loan
identifying number; (2) the Mortgagor’s name; (3) the street address
of the Mortgaged Property including the city, state and zip code; (4) a
code indicating whether the Mortgaged Property is owner-occupied, a second
home
or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a
2-4
family residence, a unit in a condominium project or a unit in a planned
unit
development, manufactured housing); (6) the original months to maturity or
the remaining months to maturity from the Cut-off Date, in any case based
on the
original amortization schedule and, if different, the maturity expressed
in the
same manner but based on the actual amortization schedule; (7) the
Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of
the Cut-off Date; (9) the date on which the Scheduled Payment was due on
the Mortgage Loan and, if such date is not consistent with the Due Date
currently in effect, such Due Date; (10) the stated maturity date;
(11) the amount of the Scheduled Payment as of the Cut-off Date;
(12) the last payment date on which a Scheduled Payment was actually
applied to pay interest and, if applicable, the outstanding principal balance;
(13) the original principal amount of the Mortgage Loan; (14) the
principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected
on or
before the Cut-off Date; (15) with respect to Adjustable Rate Mortgage
Loans, the Adjustment Date; (16) with respect to Adjustable Rate Mortgage
Loans, the Gross Margin; (17) with respect to Adjustable Rate Mortgage
Loans, the Lifetime Rate Cap under the terms of the Mortgage Note;
(18) with respect to Adjustable Rate Mortgage Loans, a code indicating the
type of Index; (19) with respect to Adjustable Rate Mortgage Loans, the
Periodic Mortgage Interest Rate Cap
16
under
the
terms of the Mortgage Note; (20) the type of Mortgage Loan (i.e., fixed
rate, adjustable rate, first lien); (21) a code indicating the purpose of
the loan (i.e., purchase, rate and term refinance, equity take-out refinance);
(22) a code indicating the documentation style (i.e., full documentation,
easy documentation or stated income); (23) the loan credit classification
(as described in the Underwriting Guidelines); (24) whether such Mortgage
Loan provides for a Prepayment Premium; (25) the Prepayment Premium period
of such Mortgage Loan, if applicable; (26) a description of the Prepayment
Premium, if applicable; (27) the Mortgage Interest Rate as of origination;
(28) the credit risk score at origination; (29) the date of
origination; (30) the Mortgage Interest Rate adjustment period; (31)the
Minimum Mortgage Interest Rate; (32) the Mortgage Interest Rate calculation
method (i.e., 30/360, simple interest, other); (33) a code indicating
whether the Mortgage Loan is a High Cost Mortgage Loan; (34) a code
indicating whether the Mortgage Loan has been modified; (35) the current
Loan-to-Value Ratio; (36) the Due Date for the first Scheduled Payment;
(37) the original Scheduled Payment due; (38) with respect to the
related Mortgagor, the debt-to-income ratio; (39) the Appraised Value of
the Mortgaged Property; (40) the sales price of the Mortgaged Property if
the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (41) the MERS identification number; and (42) a
code indicating if a Mortgage Loan is a 30-Day Delinquency. With
respect to the Mortgage Loans in the aggregate: (1) the
number of
Mortgage Loans; (2) the current aggregate outstanding principal balance of
the Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the
Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Debt
Service
Reduction: With respect to any Mortgage Loan, a reduction by a
court of competent jurisdiction in a proceeding under the United States
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which became
final and non-appealable, except for such a reduction resulting from a
Deficient
Valuation or any reduction that results in a permanent forgiveness of
principal.
Deficient
Valuation: With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction in
an amount
less than the then outstanding principal balance of the Mortgage Loan,
which
valuation results from a proceeding initiated under the United States Bankruptcy
Code.
Definitive
Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay
Delivery Mortgage
Loans: The Mortgage Loans for which all or a portion of a
related Mortgage File is not delivered to the Trustee on the Closing
Date. The number of Delay Delivery Mortgage Loans shall not exceed
25% of the aggregate number of Mortgage Loans as of the Closing
Date.
Deleted
Mortgage
Loan: As defined in Section 2.03(c).
Delinquency
Percentage: With respect to any month, the quotient (expressed
as a percentage) of (1) the Stated Principal Balance of the 60+ Day Delinquent
Mortgage Loans, divided by (2) the aggregate Stated Principal Balance of
the
Mortgage Loans as of the last day of
17
the
related month, not including in both (1) and (2) a Liquidated Mortgage
Loan as
of the end of the Prepayment Period or any Mortgage Loan purchased by the
[Servicer] pursuant to Section
3.28.
Denomination: With
respect to each Certificate, the amount set forth on the face thereof as
the
“Initial Certificate Balance of this Certificate” or the Percentage Interest
appearing on the face thereof.
Depositor: SunTrust
Mortgage Securitization, LLC, a Delaware limited liability company, and
its
successors in interest.
Depository: The
initial Depository shall be The Depository Trust Company, the nominee of
which
is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(a)(5) of the Uniform Commercial
Code of the State of New York.
Depository
Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to
supervision and examination by federal or state banking authorities and
(c) has outstanding unsecured commercial paper or other short-term
unsecured debt obligations that are rated P-1 by Moody’s and A-1 by Standard
& Poor’s.
Depository
Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination
Date: With respect to each Distribution Date, the 15th day of
the calendar month in which such Distribution Date occurs or, if such 15th
day
is not a Business Day, the Business Day immediately preceding such 15th
day.
Distribution
Date: The 25th
day of each
calendar month after the initial issuance of the Certificates, or if such
day is
not a Business Day, the next succeeding Business Day, commencing in
[ ]
200[ ].
Document
Certification and
Exception Report: The report attached to Exhibit F
hereto.
Due
Date: The day of the month on which the Scheduled Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Due
Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month
in which
such Distribution Date occurs and ending on the first day of the calendar
month
in which such Distribution Date occurs.
Eligible
Account: Either (i) an account maintained with a federal
or state chartered depository institution or trust company the short-term
unsecured debt obligations of which (or, in the case of a depository institution
or trust company that is a subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated A-1 by Standard
&
18
Poor’s
and P-1 by Moody’s (and a comparable rating if another Rating Agency is
specified by the Depositor by written notice to the Servicer) at the time
any
amounts are held on deposit therein, (ii) a trust account or accounts
maintained with a federal or state chartered depository institution or
trust
company acting in its fiduciary capacity or (iii) any other account
acceptable to each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trust Administrator or the Trustee.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Restricted
Certificate: As specified in the Preliminary
Statement.
Escrow
Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow
Payments: As defined in Section 3.09(b)
of this Agreement.
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.
Excess
Loss: With respect to any Mortgage Loan, the amount of any (i)
Fraud Loss realized after the Fraud Loss Coverage Termination Date, (ii)
Special
Hazard Loss realized after the Special Hazard Coverage Termination Date
or (iii)
Deficient Valuation realized after the Bankruptcy Coverage Termination
Date.
Exchange
Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
Expense
Fee
Rate: As to each Mortgage Loan, a per annum rate equal to the
sum of (i) the Master Servicing Fee Rate, (ii) the Servicing Fee Rate and
(iii) the Custodial Fee Rate (if applicable).
Expense
Fees: As to each Mortgage Loan, the sum of the Servicing Fee,
the Master Servicing Fee and the Custodial Fee (if applicable).
FDIC: The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Recovery
Determination: With respect to any defaulted Mortgage Loan or
any REO Property (other than a Mortgage Loan or REO Property purchased
by the
Originator as contemplated by this Agreement), a determination made by
the
Servicer that all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and other payments or recoveries which the Servicer, in its reasonable
good faith judgment, expects to be finally recoverable in respect thereof
have
been so recovered. The Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination made thereby and
deliver
a certificate of a Servicing Officer evidencing such determination to the
Master
Servicer.
19
Final
Scheduled Distribution
Date: The Final Scheduled Distribution Date for each Class of
Certificates is the Distribution Date occurring in
[ ]
20[ ].
Fitch: Fitch,
Inc. If Fitch is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b)
the address for notices to Fitch shall be Fitch, Inc., One Xxxxx Xxxxxx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Xxtention: Residential Mortgage
Pass-Through Group, or such other address as Fitch may hereafter furnish
to the
Depositor, the Servicer, the Master Servicer, the Trust Administrator and
the
Trustee.
Form
8-K Disclosure
Information: As defined in Section
4.07(a)(iii).
Formula
Rate: With
respect to each Class of LIBOR Certificates, the lesser of (a) the Base
Rate for
such Class and (b) the related [Base Rate].
Fraud
Loan: A Liquidated Loan as to which a Fraud Loss has
occurred.
Fraud
Loss Coverage
Amount: As of the Closing Date, $[__________] subject to
reduction from time to time by the aggregate amount of Fraud Losses that
would
have been previously allocated to the Subordinate Certificates in the absence
of
the Loss Allocation Limitation since the Cut-off Date. In addition,
such Fraud Loss Coverage Amount will be reduced on August 1, 2010, to an
amount
equal to $[__________] less the aggregate amount of Fraud Losses that would
have
been previously allocated to the Subordinate Certificates in the absence
of the
Loss Allocation Limitation since the Cut-off Date and (c) after the earlier
to
occur of the Cross-Over Date and August 1, 2012, to zero.
Fraud
Loss Coverage
Termination Date: The point in time at which the Fraud Loss
Coverage Amount is reduced to zero.
Fraud
Losses: Realized Losses on Mortgage Loans as to which a loss
is sustained by reason of a default arising from fraud, dishonesty or
misrepresentation in connection with the related Mortgage Loan, including
a loss
by reason of the denial of coverage under any related Primary Insurance
Policy
because of such fraud, dishonesty or misrepresentation as reported by the
Servicer to the Master Servicer.
Gross
Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note to be
added
to the applicable Index to determine the Mortgage Interest Rate.
Group
1 Available
Funds: As to any Distribution Date, the sum of (a) the
aggregate amount held in the Collection Account at the close of business
on the
Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business of the related Distribution
Account Deposit Date, attributable to the Group 1 Mortgage Loans net of
(i) the
Amount Held for Future Distribution related to the Group 1 Mortgage Loans,
(ii)
amounts related to the Group 1 Mortgage Loans permitted to be withdrawn
from the
Collection Account pursuant to clauses (i)-(viii) inclusive and clauses
(ix)(a)(ii), (x) and (xi) of Section 3.10(a), (iii) after giving effect
to all
amounts deposited to the Distribution Account from the Collection Account,
amounts related to each of the Group 1 Mortgage Loans permitted to be
withdrawn
20
from
the
Distribution Account pursuant to clauses (i)-(iv) inclusive of Section
3.10(b)
each as it relates to the Group 1 Mortgage Loans, and (iv) any amounts
representing Fair Market Value Excess with respect to a Group 1 Mortgage
Loan
received in connection with the termination of the Trust Fund pursuant
to
Section 10.01 hereof, (b) the amount of the related Advances related to
the
Applicable Fraction of each of the Group 1 Mortgage Loans and (c) in connection
with each Deleted Mortgage Loan in Loan Group 1, the Purchase Price and
Substitution Adjustment Amount of each such Mortgage Loan to be deposited
on the
related Distribution Account Deposit Date.
Group
1
Certificates: The Class 1-A Certificates.
Group
1 Mortgage
Loans: The Mortgage Loans identified on the Mortgage Loan
Schedule as Group 1 Mortgage Loans.
Group
1 Principal
Balance: As to any Distribution Date, the aggregate of the
Scheduled Principal Balance of each Group 1 Mortgage Loan which was an
Outstanding Mortgage Loan on the Due Date in the month preceding the month
of
such Distribution Date.
Group
2 Available
Funds: As to any Distribution Date, the sum of (a) the
aggregate amount held in the Collection Account at the close of business
on the
Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business of the related Distribution
Account Deposit Date, attributable to each of the Group 2 Mortgage Loans
net of
(i) the Amount Held for Future Distribution related to the Group 2 Mortgage
Loans, (ii) amounts related to the Group 2 Mortgage Loans permitted to
be
withdrawn from the Collection Account pursuant to clauses (i)-(viii) inclusive
and clauses (ix)(a)(ii), (x) and (xi) of Section 3.10(a), (iii) after giving
effect to all amounts deposited to the Distribution Account from the Collection
Account, amounts related to each of the Group 2 Mortgage Loans permitted
to be
withdrawn from the Distribution Account pursuant to clauses (i)-(iv) inclusive
of Section 3.10(b) each as it relates to the Group 2 Mortgage Loans, and
(iv)
any amounts representing Fair Market Value Excess with respect to a Group
2
Mortgage Loan received in connection with the termination of the Trust
Fund
pursuant to Section 10.01 hereof, (b) the amount of the related Advances
related
to each of the Group 2 Mortgage Loans and (c) in connection with each Deleted
Mortgage Loan in Loan Group 2, the Purchase Price and Substitution Adjustment
Amount of each such Mortgage required to be deposited on the related
Distribution Account Deposit Date.
Group
2
Certificates: The Class 2-A Certificates.
Group
2 Mortgage
Loans: The Mortgage Loans identified on the Mortgage Loan
Schedule as Group 2 Mortgage Loans.
Group
2 Principal
Balance: As to any Distribution Date, the aggregate of the
Scheduled Principal Balance of each Group 2 Mortgage Loan which was an
Outstanding Mortgage Loan on the Due Date in the month preceding the month
of
such Distribution Date.
Group
3 Available
Funds: As to any Distribution Date, the sum of (a) the
aggregate amount held in the Collection Account at the close of business
on the
Servicer Remittance Date and, without duplication, on deposit in the
Distribution Account at the close of business of the related Distribution
Account Deposit Date, attributable to the Group 3 Mortgage Loans net of
(i) the
Amount Held for Future Distribution related to the Group 3 Mortgage Loans,
(ii)
amounts
21
related
to the Group 3 Mortgage Loans permitted to be withdrawn from the Collection
Account pursuant to clauses (i)-(viii) inclusive and clauses (ix)(a)(ii),
(x)
and (xi) of Section 3.10(a), (iii) after giving effect to all amounts deposited
to the Distribution Account from the Collection Account, amounts related
to the
Group 3 Mortgage Loans permitted to be withdrawn from the Distribution
Account
pursuant to clauses (i)-(iv) inclusive of Section 3.10(b) each as it relates
to
the Group 3 Mortgage Loans, and (iv) any amounts representing Fair Market
Value
Excess with respect to a Group 3 Mortgage Loan received in connection with
the
termination of the Trust Fund pursuant to Section 10.01 hereof, (b) the
amount
of the related Advances related to the Group 3 Mortgage Loans and (c) in
connection with any Deleted Mortgage Loan in Loan Group 3, the aggregate
of the
Purchase Price and Substitution Adjustment Amount of each such Mortgage
Loan
required to be deposited on the related Distribution Account Deposit
Date.
Group
3
Certificates: The Class 3-A Certificates.
Group
3 Mortgage
Loans: The Mortgage Loans identified on the Mortgage Loan
Schedule as Group 3 Mortgage Loans.
Group
3 Principal
Balance: As to any Distribution Date, the aggregate of the
Scheduled Principal Balance of each Group 3 Mortgage Loan which was an
Outstanding Mortgage Loan on the Due Date in the month preceding the month
of
such Distribution Date.
Group
Available
Funds: Any of the Group 1 Available Funds, Group 2 Available
Funds or Group 3 Available Funds, as applicable.
Group
Balance: Any of the Group 1 Principal Balance, Group 2
Principal Balance or Group 3 Principal Balance, as applicable.
Group
Subordinate
Amount: For any Distribution Date and Loan Group, an amount
equal to the aggregate Stated Principal Balance of the Mortgage Loans in
that
Loan Group as of the Due Date in the month prior to the month of such
Distribution Date and the amount in the related Pre-Funding Account as
of the
first day of the Due Period, minus the aggregate Class Certificate Balance
of
the related Senior Certificates immediately prior to such Distribution
Date.
High
Cost Mortgage
Loan: A Mortgage Loan classified as (a) a “high cost”
loan under the Home Ownership and Equity Protection Act of 1994,
(b) a
“high cost,” “threshold,” “covered” or “predatory” loan under any other
applicable state, federal or local law (or a similarly classified loan
using
different terminology under a law imposing heightened regulatory scrutiny
or
additional legal liability for residential Mortgage Loans having high interest
rates, points and/or fees) or (c) a High Cost Loan or Covered Loan as defined
in
the Standard & Poor’s LEVELS® Glossary attached as Exhibit P (the
“Glossary”)
where (x)
a “High Cost Loan” is each loan identified in the column “Category under
applicable anti-predatory lending law” of the table entitled “Standard &
Poor’s High Cost Loan Categorization” in the Glossary as each such loan is
defined in the applicable anti-predatory lending law of the State or
jurisdiction specified in such table and (y) “Covered Loan” is each loan
identified in the column “Category under applicable anti-predatory lending law”
of the table entitled “Standard & Poor’s High Covered
22
Loan
Categorization” in the Glossary as each such loan is defined in the applicable
anti-predatory lending law of the State of jurisdiction specified in such
table.
Index: As
to each Adjustable Rate Mortgage Loan, the index from time to time in effect
for
the adjustment of the Mortgage Interest Rate set forth as such on the related
Mortgage Note.
Initial
Cut-off
Date: [ ] 1, 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.
Initial
Mortgage Interest
Rate Cap: With respect to each Adjustable Rate Mortgage Loan,
the absolute maximum amount set forth in a provision of each Mortgage Note
by
which the Mortgage Interest Rate therein may increase or decrease on the
first
Adjustment Date above or below the Mortgage Interest Rate previously in
effect.
Insurance
Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements
thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance
Proceeds: The proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are
not to be applied to the restoration of the related Mortgaged Property
or
released to the mortgagor in accordance with the procedures that the Servicer
would follow in servicing Mortgage Loans held for its own account, subject
to
the terms and conditions of the related mortgage note and Mortgage.
Interest
Accrual
Period: With respect to each Class of Certificates and REMIC I
Regular Interests and REMIC II Regular Interests and any Distribution Date,
the
period from and including the first day of the month immediately preceding
the
month in which such Distribution Date occurs, commencing
[ ] 1, 200[ ], to and
including the last day of such immediately preceding month, on the basis
of a
360-day year consisting of twelve 30-day months.
Investment
Account: As defined in Section 3.12(a).
Issuing
Entity: SunTrust
[ ]
Trust, Series 200[ ]-[ ].
Late
Collections: With respect to any Mortgage Loan and any Due
Period, all amounts received after the Remittance Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due
(without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously
recovered.
23
Lifetime
Rate
Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms
of each Adjustable Rate Mortgage Loan shall not at any time exceed the
Mortgage
Interest Rate at the time of origination of such Adjustable Rate Mortgage
Loan
by more than the amount per annum set forth on the Mortgage Loan
Schedule.
Liquidated
Mortgage
Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan (including any REO Property) which was liquidated in the
calendar
month preceding the month of such Distribution Date and as to which the
Servicer
has certified (in accordance with this Agreement) that it has received
all
amounts it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of any
REO Property.
Liquidation
Event: With respect to any Mortgage Loan, any of the following
events: (i) such Mortgage Loan is paid in full; (ii) a
Final Recovery Determination is made as to such Mortgage Loan; or
(iii) such Mortgage Loan is removed from coverage under this Agreement by
reason of its being purchased, sold or replaced pursuant to or as contemplated
by this Agreement. With respect to any REO Property, either of the
following events: (i) a Final Recovery Determination is made as
to such REO Property; or (ii) such REO Property is removed from coverage
under this Agreement by reason of its being purchased pursuant to this
Agreement.
Liquidation
Proceeds: The amounts, other than Insurance Proceeds,
Condemnation Proceeds or those received following the acquisition of REO
Property, 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 or otherwise.
Loan
Group: Any of Loan Group 1, Loan Group 2 or Loan Group 3, as
applicable.
Loan
Group
1: Those Mortgage Loans identified on the Mortgage Loan
Schedule as Loan Group 1 Mortgage Loans.
Loan
Group
2: Those Mortgage Loans identified on the Mortgage Loan
Schedule as Loan Group 2 Mortgage Loans.
Loan
Group 3: Those
Mortgage Loans identified on the Mortgage Loan Schedule as Loan Group 3
Mortgage
Loans.
Loan-to-Value
Ratio or
LTV: With respect to any Mortgage Loan, the ratio (expressed
as a percentage) of the original outstanding principal amount of the Mortgage
Loan (or, in the case of a second-lien Mortgage Loan, the combined original
outstanding principal amount of such Mortgage Loan and any first-lien mortgage
loan on the same Mortgaged Property) as of the Cut-off Date (unless otherwise
indicated), to either (a) if the Mortgage Loan was made to finance the
acquisition of the related Mortgaged Property, the least of (i) the
purchase price of the Mortgaged Property, or (ii) the Appraisal Value of
the Mortgaged Property at origination, or (b) if the Mortgage Loan was a
refinancing or modification, the Appraisal Value of the Mortgaged Property
at
the time of the refinancing or modification.
24
London
Business
Day: Any day on which dealings in deposits of United States
dollars are transacted in the London interbank market.
Loss
Allocation
Limitation: As defined in Section 4.03(c) hereof.
Master
Servicer: As of the Closing Date,
[ ]
and thereafter, its respective successors in interest who meet the
qualifications of this Agreement. As long as a Master Servicer is
required under this Agreement, the Master Servicer and the Trust Administrator
shall at all times be the same Person.
Master
Servicer Event of
Termination: One or more of the events described in Section
7.01(c).
Master
Servicing
Fee: With respect to each Mortgage Loan and any Distribution
Date, an amount equal to the product of (i) one twelfth of the Master Servicing
Fee Rate, and (ii) the Stated Principal Balance of such Mortgage Loan as
of the
first day of the calendar month preceding the month in which such Distribution
Date occurs.
Master
Servicing Fee
Rate: 0.[ ]% per annum; provided,
however, if SunTrust Mortgage, Inc. has been removed as Servicer or has
resigned
as Servicer, and in either such case if a master servicer is no longer
required
hereunder, then the Master Servicing Fee Rate shall be 0.0000% per
annum.
Master
Servicing
Officer: Any employee of the Master Servicer involved in, or responsible
for, the administration and servicing of the Mortgage Loans, whose name
and
specimen signature appear on a list of Master Servicing Officers furnished
by
the Master Servicer to the Trustee, the Trust Administrator, the Servicer
and
the Depositor on the Closing Date, as such list may from time to time be
amended.
Maximum
Mortgage Interest
Rate: With respect to an Adjustable Rate Mortgage Loan, the specified
maximum mortgage rate over the life of such mortgage loan; with respect
to a
Mortgage Loan with a fixed rate, the Mortgage Interest Rate.
MERS: As
defined in Section 2.01.
MERS
Mortgage
Loan: Mortgage Loans for which (a) the Originator has
designated or will designate MERS as, and has taken or will take such action
as
is necessary to cause MERS to be, the mortgagee of record, as nominee for
the
Originator, in accordance with MERS Procedure Manual and (b) the Originator
has designated or will designate the Trustee as the Investor on the MERS®
System.
MERS
Procedure
Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS®
System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
25
MIN: [to
come]
Minimum
Mortgage Interest
Rate: With respect to an Adjustable Rate Mortgage Loan, the
specified minimum mortgage rate over the life of such mortgage loan; with
respect to a Mortgage Loan with a fixed rate, the Mortgage Interest
Rate.
MOM
Loan: [to come]
Monthly
Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody’s: Xxxxx’x
Investors Service, Inc. If Xxxxx’x is designated as a Rating Agency
in the Preliminary Statement, for purposes of Section 10.05(b)
the address for notices to Moody’s shall be Xxxxx’x Investors Service, Inc., 99
Cxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxtention: Residential
Mortgage Pass-Through Group, or such other address as Moody’s may hereafter
furnish to the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee.
Mortgage: The
mortgage, deed of trust or other instrument identified on the Mortgage
Loan
Schedule as securing a Mortgage Note.
Mortgage
File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage
Interest
Rate: The annual rate of interest borne on a Mortgage Note
with respect to each Mortgage Loan.
Mortgage
Loan: An individual Mortgage Loan which is the subject of this
Agreement, which Mortgage Loan includes, without limitation, the Mortgage
File,
the Custodial File, the Servicing File, the Scheduled Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition proceeds, Prepayment Premiums and all other rights,
benefits, proceeds and obligations arising from or in connection with such
Mortgage Loan, excluding replaced or repurchased Mortgage Loans. The
Initial Mortgage Loans subject to this Agreement are identified on the
Initial
Mortgage Loan Schedule annexed hereto as Schedule I 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 I on each Subsequent Transfer Date.
Mortgage
Loan
Documents: The mortgage loan documents pertaining to each
Mortgage Loan.
Mortgage
Loan
Schedule: The Initial Mortgage Loan Schedule and any
Subsequent Mortgage Loan Schedule attached hereto as Schedule I, which
schedules
shall set forth by Loan Group the following information with respect to
each
Mortgage Loan in such Loan Group :
26
(i) the
Mortgagor’s name and the Originator’s Mortgage Loan identifying
number;
(ii) the
street address of the Mortgaged Property including the state and zip
code;
(iii) a
code indicating whether the Mortgaged Property is owner-occupied;
(iv) the
number and type of residential dwelling constituting the Mortgaged Property
(i.e., a single family residence, a 2-4 family residence, a unit in a
condominium project or a unit in a planned unit development, manufactured
housing);
(v) the
original months to maturity;
(vi) the
Loan-to-Value Ratio, at origination;
(vii) the
Mortgage Interest Rate in effect immediately following the Cut-off
Date;
(viii) the
date on which the first monthly payment was due on the Mortgage
Loan;
(ix) the
stated maturity date of such Mortgage Loan;
(x) the
amount of the monthly payment (a) at origination and (b) due on the first
Due
Date after the Cut-off Date;
(xi) the
last Due Date on which a monthly payment was actually applied to the unpaid
Stated Principal Balance;
(xii) the
original principal amount of the Mortgage Loan as of the date of
origination;
(xiii) the
Stated Principal Balance of the Mortgage Loan as of the close of business
on the
Cut-off Date;
(xiv) with
respect to each Adjustable Rate Mortgage Loan, the Applicable Index and
Gross
Margin;
(xv) a
code indicating the purpose of the Mortgage Loan (i.e., purchase financing,
rate/term refinancing, cash-out refinancing);
(xvi) with
respect to each Adjustable Rate Mortgage Loan, the Maximum Mortgage Interest
Rate;
(xvii) with
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Interest
Rate;
27
(xviii) the
Mortgage Interest Rate at origination;
(xix) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Mortgage Interest
Rate Cap and the Initial Mortgage Interest Rate Cap;
(xx) a
code indicating the documentation program;
(xxi) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the Cut-off Date and the Adjustment Date
frequency;
(xxii) the
value of the Mortgaged Property used to calculate the LTV for the related
Mortgage Loan;
(xxiii) the
sale price of the Mortgaged Property, if applicable;
(xxiv) the
Originator’s risk grade;
(xxv) the
actual interest “paid to date” of the Mortgage Loan as of the Cut-off
Date;
(xxvi) the
number of years any Prepayment Premium is in effect;
(xxvii) the
loan type (i.e. fixed, adjustable; 2/28, 3/27, etc.);
(xxviii) the
actual unpaid principal balance of the Mortgage Loan as of the Cut-off
Date;
(xxix) a
code indicating the applicable Loan Group;
(xxx) a
code indicating whether the Mortgage Loan is a MERS Designated Mortgage
Loan
and, if so, its corresponding mortgage identification number; and
(xxxi) a
code indicating whether the Mortgage Loan is subject to a Prepayment Premium,
if
any.
The
Mortgage Loan Schedule shall set forth the following information with respect
to
the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the
number of Mortgage Loans; (2) the current principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans;
and (4) the weighted average maturity of the Mortgage Loans. The
Mortgage Loan Schedule shall set forth the aggregate Stated Principal Balance
of
the Mortgage Loans. The Mortgage Loan Schedule shall be amended from
time to time by the Depositor in accordance with the provisions of this
Agreement. With respect to any Qualified Substitute Mortgage Loan,
the Cut-off Date shall refer to the related Cut-off Date for such Mortgage
Loan,
determined in accordance with the definition of Cut-off Date
herein.
Mortgage
Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
28
Mortgaged
Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment
of
the debt evidenced by a Mortgage Note.
Mortgagor: The
obligor(s) on a Mortgage Note.
Net
Liquidation
Proceeds: With respect to a defaulted Mortgage Loan, all
Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds net of
amounts
reimbursable to the Servicer for related Advances, Servicing Advances and
Servicing Fees.
Net
Prepayment Interest
Shortfall: For any Distribution Date, the amount by which the
sum of the Prepayment Interest Shortfalls exceeds the sum of the Compensating
Interest payments made on such Distribution Date.
Nonrecoverable
Advance: Any P&I Advance or Servicing Advance previously made or
proposed to be made by the Servicer in respect of a Mortgage Loan which,
in the
good faith judgment of the Servicer, will not, or, in the case of a proposed
Advance, would not, be ultimately recoverable by the Servicer from related
late
collections, Insurance Proceeds, Liquidation Proceeds or proceeds from
the
disposition of any REO Property. To the extent that any Mortgagor is not
obligated under the related Mortgage documents to pay or reimburse any
portion
of any Servicing Advances that are outstanding with respect to the related
Mortgage Loan as a result of a modification of such Mortgage Loan by the
Servicer, which forgives amounts which the Servicer had previously advanced,
and
the Servicer determines that no other source of payment or reimbursement
for
such advances is available to it, such Servicing Advances shall be deemed
to be
Nonrecoverable Advances. The determination by the Servicer that it has
made a
Nonrecoverable Advance or that any proposed Advance would constitute a
Nonrecoverable Advance, shall be evidenced by an Officer’s Certificate delivered
to the Depositor and the Master Servicer.
Notice
of Final
Distribution: The notice to be provided pursuant to Section 9.02
to
the effect that final distribution on any of the Certificates shall be
made only
upon presentation and surrender thereof.
Offered
Certificates: As defined in the Preliminary
Statement.
Officer’s
Certificate: A certificate signed by an officer of the
Servicer with responsibility for the servicing of the Mortgage Loans required
to
be serviced by the Servicer and listed on a list delivered to the Trustee
or
Trust Administrator, as applicable, pursuant to this Agreement.
Opinion
of
Counsel: A written opinion of counsel, who may be in-house
counsel for the Servicer or a Subservicer, the Master Servicer, the Originator
or the Depositor, reasonably acceptable to the Trustee and the Trust
Administrator; provided, that any Opinion of Counsel relating to
(a) qualification of any Trust REMIC as a REMIC or (b) compliance with
the REMIC Provisions, must be (unless otherwise stated in such Opinion
of
Counsel) an opinion of counsel who (i) is in fact independent of the
Servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the Servicer of the Mortgage Loans or in
an
affiliate of either and (iii) is not connected with the Servicer of the
Mortgage Loans as an officer, employee, director or person performing similar
functions.
29
Optional
Termination
Date: Any Distribution Date when the aggregate Stated
Principal Balance of the Mortgage Loans, as of the last day of the related
Due
Period, is equal to [ ]% or less of the Aggregate Collateral Balance
that has been designated as an Optional Termination Date by the
Servicer.
[Optional
Termination
Price: An amount equal to the greater of: (a) the sum of (i)
the aggregate outstanding Principal Balance of each Mortgage Loan, plus
accrued
interest at the applicable Loan Rate, (ii) any costs and damages incurred
by the
Trust in connection with a violation of any applicable federal, state or
local
predatory or abusive lending law, (iii) the lesser of (A) the fair market
value
of all other property being purchased and (B) the unpaid Principal Balance
of
the related Mortgage Loan that was secured by such property and (iv) any
unreimbursed Servicing Advances, unreimbursed expenses and any unpaid fees
due
to the Servicer, the Master Servicer, the Trust Administrator and the Trustee
for the related Distribution Date and (b) the sum of (i) the Certificate
Principal Balance of the Certificates with interest due thereon (including
Accrued Certificate Interest), (ii) any costs and damages incurred by the
Trust
in connection with a violation of any federal, state or local predatory
or
abusive lending laws, (iii) any unreimbursed Servicing Advances, unreimbursed
expenses and any unpaid fees due to the Servicer, the Master Servicer,
the Trust
Administrator and the Trustee.][Under review by E&Y]
Original
Certificate
Principal Balance: With respect to any Class of Certificates,
the Certificate Principal Balance thereof on the Closing Date.
Originator: SunTrust
Mortgage, Inc.
OTS: Office
of Thrift Supervision, and any successor thereto.
Outstanding: With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Trustee or the Trust Administrator or delivered
to
the Trustee or the Trust Administrator for cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been
executed
and delivered by the Trustee or the Trust Administrator pursuant to this
Agreement.
Outstanding
Mortgage
Loan: As of any Due Date, a Mortgage Loan with a Stated
Principal Balance greater than zero which was not the subject of a Principal
Prepayment in Full prior to such Due Date and which did not become a Liquidated
Mortgage Loan prior to such Due Date.
Ownership
Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate
as the
Holder thereof and any other interest therein, whether direct or indirect,
legal
or beneficial.
30
P&I
Advance: As to any Mortgage Loan or REO Property, any advance
made by the Servicer in respect of any Remittance Date representing the
aggregate of all payments of principal and interest, net of the Servicing
Fee,
that were due during the related Due Period on the first lien Mortgage
Loans and
that were delinquent on the related Determination Date, plus certain amounts
representing assumed payments not covered by any current net income on
the
Mortgaged Properties acquired by foreclosure or deed in lieu of foreclosure
as
determined pursuant to Section 4.01.
Pass-Through
Rate: For any Distribution Date: (1) with respect to each
Class of Offered Certificates as provided in the Preliminary Statement;
(2) in
the case of any REMIC I Regular Interest, the Uncertificated REMIC I
Pass-Through Rate as provided in the Preliminary Statement; and (3) in
the case
of any REMIC II Regular Interest, the Uncertificated REMIC II Pass-Through
Rate
as provided in the Preliminary Statement.
PCAOB: The
Public Company Accounting Oversight Board.
Percentage
Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to
the
percentage obtained by dividing the Denomination of such Certificate by
the
aggregate of the Denominations of all Certificates of the same
Class.
Periodic
Mortgage Interest
Rate Cap: With respect to each Adjustable Rate Mortgage Loan,
the absolute maximum amount set forth in a provision of each Mortgage Note
by
which the Mortgage Interest Rate therein may increase or decrease on an
Adjustment Date (other than the first Adjustment Date) above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage
Interest Rate Cap for each Adjustable Rate Mortgage Loan is the rate set
forth
on the Mortgage Loan Schedule.
Permitted
Investments: At any time, any one or more of the following
obligations and securities:
(a) obligations
of the United States or any agency thereof, provided such obligations are
backed
by the full faith and credit of the United States;
(b) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of
each
Rating Agency, or such lower rating as will not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by either Rating
Agency;
(c) 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
Certificates by either Rating Agency;
(d) 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
31
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
Certificates by either Rating Agency;
(e) 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
Certificates by either Rating Agency;
(f) 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 Certificates by either Rating Agency;
(g) 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;
(h) 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 Certificates
by
either Rating Agency, as evidenced by a signed writing delivered by each
Rating
Agency;
(i) 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;
(j) 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
32
(k) 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 Certificates by either Rating Agency, as evidenced
by a
signed writing delivered by each Rating Agency;
provided
that no
instrument described hereunder shall (a) evidence the right to receive
only
interest with respect to the obligations underlying such instrument, (b)
be sold
or disposed of before its maturity or (c) 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.
Permitted
Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of
any of the foregoing, (ii) a foreign government, international organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers’ cooperatives described in Section 521
of the Code) which is exempt from tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in Section 860E(c)(1)
of the Code) with respect to any Residual Certificate, (iv) rural electric
and telephone cooperatives described in Section 1381(a)(2)(C) of the Code,
(v) a Person that is not a U.S. Person or a U.S. Person with respect to
whom income from a Residual Certificate is attributable to a foreign permanent
establishment or fixed base (within the meaning of an applicable income
tax
treaty) of such Person or any other U.S. Person, (vi) an “electing large
partnership” within the meaning of Section 775 of the Code and
(vii) any other Person so designated by the Depositor based upon an Opinion
of Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause any Trust REMIC to fail to qualify as a REMIC
or cause
any Trust REMIC or any person having an ownership interest in the Residual
Certificates to incur a liability for any federal tax imposed under the
Code
that would not be imposed other than as a result of such transfer at any
time
that the Certificates are outstanding. The terms “United States,”
“State” and “international organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions. A corporation
will not be treated as an instrumentality of the United States or of any
State
or political subdivision thereof for these purposes if all of its activities
are
subject to tax and, with the exception of Xxxxxxx Mac, a majority of its
board
of directors is not selected by such government unit.
Person: Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Physical
Certificates: As specified in the Preliminary
Statement.
Pool
1
Subaccount: A subaccount of the Pre-Funding Account that
contains funds to be used to purchase Subsequent Mortgage Loans for Group
1.
33
Pool
2
Subaccount: A subaccount of the Pre-Funding Account that
contains funds to be used to purchase Subsequent Mortgage Loans for Group
2.
Pool
3
Subaccount: A subaccount of the Pre-Funding Account that
contains funds to be used to purchase Subsequent Mortgage Loans for Group
3.
Pre-Funding
Account: The account established by the Trust Administrator
for the benefit of Certificateholders, which consists of the Pool 1 Subaccount,
the Pool 2 Subaccount and the Pool 3 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
Shortfall: With respect to any Remittance Date, the sum of,
for each Mortgage Loan that was the subject of a Principal Prepayment in
Full
during the related Prepayment Period, an amount equal to the product of
(a) the Mortgage Interest Rate net of the Servicing Fee Rate for such
Mortgage Loan, with respect to the Servicer’s obligation in respect of any
Prepayment Interest Shortfall, or the sum of the Servicing Fee Rate and
the
Master Servicing Fee Rate, with respect to the Master Servicer’s obligation in
respect of any Prepayment Interest Shortfall, (b) the amount of the
Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the
number of days commencing on the date on which such Principal Prepayment
was
applied and ending on the last day of the related Prepayment
Period.
Prepayment
Period: With respect to any Distribution Date, the calendar
month prior to such Distribution Date.
Prepayment
Premium: Any prepayment premium, penalty or charge collected
by the Servicer with respect to a Mortgage Loan from a Mortgagor in connection
with any voluntary Principal Prepayment in Full pursuant to the terms of
the
related Mortgage Note.
Principal
Prepayment: Any partial payment or other recovery of principal
on a Mortgage Loan (including upon liquidation of a Mortgage Loan) which
is
received in advance of its scheduled Due Date, excluding any Prepayment
Premium
and which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to
the month
of prepayment.
Principal
Prepayment in
Full: Any Principal Prepayment made by a Mortgagor of the
entire principal balance of a Mortgage Loan.
Private
Certificates: As defined in the Preliminary
Statement.
Proprietary
Lease: The lease on a Cooperative Unit evidencing the
possessory interest of the owner of the Cooperative Shares in such Cooperative
Unit.
34
Prospectus
Supplement: The Prospectus Supplement, dated
[ ],
200[ ], relating to the Offered Certificates.
PUD: A
planned unit development.
Purchase
Agreement: The Mortgage Loan Purchase Agreement, dated as of
[ ] 1, 200[ ]
by and between the Seller and the Depositor.
Qualified
Substitute
Mortgage Loan: A Mortgage Loan substituted by the Originator
for a Deleted Mortgage Loan which must, on the date of such substitution,
as
confirmed in a Request for Release, substantially in the form of Exhibit J, (i)
have 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), not in excess of, and not more than 5% less than, the
Principal Balance of the Deleted Mortgage Loan; (ii) have a Mortgage Interest
Rate not less than the Mortgage Interest Rate of the Deleted Mortgage Loan
and
not more than 1% in excess of the Mortgage Rate of such Deleted Mortgage
Loan;
(iii) in the case of any Adjustable Rate Mortgage Loan, have a Maximum
Mortgage
Interest Rate and Minimum Mortgage Interest Rate not less than the respective
rate for the Deleted Mortgage Loan, have a Gross Margin equal to or greater
than
the Deleted Mortgage Loan and have the same Adjustment Date frequency as
the
Deleted Mortgage Loan; (iv) have the same Due Date as the Deleted Mortgage
Loan;
(v) have a remaining term to maturity not more than one year earlier and
not
later than the remaining term to maturity of the Deleted Mortgage Loan;
(vi)
comply with each representation and warranty as to the Mortgage Loans set
forth
in the Mortgage Loan Purchase Agreement (deemed to be made as of the date
of
substitution); (vii) have been underwritten or re-underwritten by the Originator
in accordance with the same underwriting criteria and guidelines as the
Mortgage
Loans being replaced; (viii) be of the same or better credit quality as
the
Mortgage Loan being replaced, (ix) be a first lien mortgage loan if the
Deleted
Mortgage Loan is a first lien mortgage loan and (x) comply with each
representation and warranty set forth in Section 2.03.
Rating
Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no
longer in existence, “Rating Agency” shall be such nationally recognized
statistical rating organization, or other comparable Person, as is designated
by
the Depositor, notice of which designation shall be given to the
Trustee. References herein to a given rating or rating category of a
Rating Agency shall mean such rating category without giving effect to
any
modifiers. For purposes of Section 10.05(c),
the addresses for notices to each Rating Agency shall be the address specified
therefor in the definition corresponding to the name of such Rating Agency,
or
such other address as either such Rating Agency may hereafter furnish to
the
Depositor and the Servicer.
Realized
Loss: With respect to each Mortgage Loan that is a Liquidated
Loan, an amount (not less than zero or more than the Scheduled Principal
Balance
of the Mortgage Loan) as of the date of such liquidation equal to (i) the
unpaid
principal balance of the Liquidated Loan as of the date of such liquidation,
plus (ii) interest at the Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders
up
to the Due Date in the month in which Liquidation Proceeds are required
to be
distributed on the Scheduled Principal Balance of such Liquidated Loan,
minus
(iii) the Liquidation Proceeds, if any, received
35
during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Rate and to principal of the
Liquidated Loan. With respect to each Mortgage Loan which has become
the subject of a Deficient Valuation, if the principal amount due under
the
related Mortgage Note has been reduced, the difference between the principal
balance of the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and the principal balance of the Mortgage Loan as reduced by
the
Deficient Valuation.
Realized
Loss
Percentage: For purposes of the Servicer Termination Test and
the Servicer Enhanced Review Test, the percentage produced by the following
calculation: (i) (a) the aggregate amount of cumulative Realized Losses
incurred
on the Mortgage Loans since the Cut-off Date through the last day of the
related
Due Period, minus (b) any amount received with respect to Realized Losses
on the
Mortgage Loans subsequent to a Final Recovery Determination being made
with
respect to the Mortgage Loans, divided by (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date; provided however,
that for
purposes of this definition, the term “Realized Losses” shall not include Debt
Service Reductions or Deficient Valuations.
Recognition
Agreement: An Agreement among a Cooperative Corporation, a
lender and a Mortgagor with respect to a Cooperative Loan whereby such
parties
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan and (ii) make certain agreements with respect to such Cooperative
Loan.
Record
Date: With respect to the Offered Certificates, the close of
business on the Business Day immediately preceding the related Distribution
Date, for so long as such Certificates are Book-Entry Certificates; and
with
respect to all Definitive or Physical Certificates, the Record Date shall
be the
close of business on the last Business Day of the calendar month immediately
preceding the related Distribution Date.
Reference
Bank: As defined in Section 4.04.
Regulation
AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. §§229.1100 - 229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided
by
the Commission in the adopting release (Asset Backed Securities, Securities
Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff
of the Commission, or as may be provided by the Commission or its staff
from
time to time.
Relevant
Servicing
Criteria: The Servicing Criteria applicable to the various
parties, as set forth on Exhibit S attached
hereto. For clarification purposes, multiple parties can have
responsibility for the same Servicing Criteria.
Relief
Act Interest
Shortfall: With respect to any Distribution Date and any
Mortgage Loan, any reduction in the amount of interest collectible on such
Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act, as amended, or any
similar
state statutes.
36
REMIC: A
“real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
REMIC I
Regular
Interest: Any of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a regular
interest in REMIC I for purposes of the REMIC Provisions. Each REMIC
I Regular Interest shall accrue interest at the related Uncertificated
REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof,
in an
aggregate amount equal to its initial Uncertificated Balance as set forth
in the
Preliminary Statement hereto. The designations for the respective
REMIC I Regular Interests are set forth in the Preliminary Statement
hereto.
REMIC II
Regular
Interests: Any of the separate non-certificated beneficial
ownership interests in REMIC II issued hereunder and designated as a regular
interest in REMIC II for purposes of the REMIC Provisions. Each REMIC
II Regular Interest shall accrue interest at the related Uncertificated
REMIC II
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof,
in an
aggregate amount equal to its initial Uncertificated Balance as set forth
in the
Preliminary Statement hereto. The designations for the respective
REMIC II Regular Interests are set forth in the Preliminary Statement
hereto.
REMIC
Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect
from
time to time as well as provisions of applicable state laws.
REMIC
Uncertificated
Pass-Through Rate: The Uncertificated REMIC I Pass-Through Rate or
the Uncertificated REMIC II Pass-Through Rate.
Remittance
Date: With respect to any Distribution Date, no later than
12:00 PM, Central Time on the 20th
day of the month
in which such Distribution Date occurs or, if the 20th
day of the month
is not a Business Day, then the Business Day immediately preceding the
20th
day of the month
in which such Distribution Date occurs.
REO
Disposition: The final sale by the Servicer of any REO
Property.
REO
Imputed
Interest: As to any REO Property, for any period, an amount
equivalent to interest (at the Mortgage Interest Rate net of the Servicing
Fee
Rate that would have been applicable to the related Mortgage Loan had it
been
outstanding) on the unpaid principal balance of the Mortgage Loan as of
the date
of acquisition thereof (as such balance is reduced pursuant to Section 3.15 by
any income from the REO Property treated as a recovery of
principal).
REO
Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reporting
Date: The 18th day of each calendar month or the immediately
preceding Business Day if the 18th
is not a Business
Day.
37
Reporting
Servicer: As defined in Section
4.07(a)(iv)(A).
Reportable
Event: As defined in Section
4.07(a)(iii).
Repurchase
Price: With respect to any Mortgage Loan, an amount equal to
the sum of (i) the unpaid principal balance of such Mortgage Loan as of the
date of repurchase, (ii) unpaid and unadvanced interest on such unpaid
principal balance of such Mortgage Loan at the Mortgage Interest Rate from
the
last date through which interest has been paid and distributed to the Trust
Administrator to the date of repurchase, (iii) all xxxxxxxxxxxx X&X
Advances and Servicing Advances and (iv) all expenses incurred by the
Servicer, the Trust, the Trust Administrator or the Trustee, as the case
may be,
in respect of a breach or defect, including, without limitation,
(a) expenses arising out of the Servicer’s, the Trust Administrator’s, the
Trustee’s, as the case may be, enforcement of the Originator’s repurchase
obligation, to the extent not included in clause (iii), and (b) any costs
and damages incurred by the Trust in connection with any violation by such
Mortgage Loan of any predatory lending law or abusive lending law.
Request
for
Release: The Request for Release submitted by the Servicer to
the Custodian, substantially in the form of Exhibit J.
Required
Recordation
States: [to come]
Residual
Certificates: As specified in the Preliminary
Statement.
Responsible
Officer: When used with respect to the Trustee means any
officer in the Corporate Trust Office with direct responsibility for the
administration of this Agreement and any other officer to whom a particular
matter is referred because of such officer’s knowledge of and familiarity with
the particular subject; and when used with respect to the Trust Administrator
means any vice president, any assistant vice president, any assistant secretary,
any assistant treasurer, any associate or any other officer of the Trustee
or
the Trust Administrator customarily performing functions similar to those
performed by any of the above designated officers who at such time shall
be
officers to whom, with respect to a particular matter, such matter is referred
because of such officer’s knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration
of this
Agreement.
Rolling
Three-Month
Delinquency Rate: With respect to the Mortgage Loans and any Distribution
Date, the weighted average of the Delinquency Rates for each of the three
(or
one and two, in the case of the first and second Distribution Dates) immediately
preceding calendar months.
Rule 144A
Letter: As defined in Section 5.02(b).
Xxxxxxxx-Xxxxx
Certification: A written certification signed by an officer of
the Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act of 2002, as
amended
from time to time, and (ii) the February 21, 2003 Statement by the Staff
of the
Division of Corporation Finance of the Securities and Exchange Commission
Regarding Compliance by Asset-Backed Issuers with Exchange Act Rules 13a-14
and
15d-14, as in effect from time to time; provided that if, after the
38
Closing
Date (a) the Xxxxxxxx-Xxxxx Act of 2002 is amended, (b) the Statement referred
to in clause (ii) is modified or superseded by any subsequent statement,
rule or
regulation of the Securities and Exchange Commission or any statement of
a
division thereof, or (c) any future releases, rules and regulations are
published by the Securities and Exchange Commission from time to time pursuant
to the Xxxxxxxx-Xxxxx Act of 2002, which in any such case affects the form
or
substance of the required certification and results in the required
certification being, in the reasonable judgment of the Servicer, materially
more
onerous than the form of the required certification as of the Closing Date,
the
Xxxxxxxx-Xxxxx Certification shall be as agreed to by the Servicer and
the
Depositor following a negotiation in good faith to determine how to comply
with
any such new requirements.
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage
Loan
which, unless otherwise specified herein, shall give effect to any related
Debt
Service Reduction and any Deficient Valuation that affects the amount of
the
monthly payment due on such Mortgage Loan.
Securities
Act: The Securities Act of 1933, as amended.
Security
Agreement:
With respect to a Cooperative Loan, the agreement or mortgage creating
a
security interest in favor of the originator of the Cooperative Loan in
the
related Cooperative Shares.
Seller: SunTrust
Mortgage, Inc., and its successors and assigns.
Senior
Certificates: As specified in the Preliminary
Statement.
Senior
Final Distribution
Date: With respect to any Group, the Distribution Date on
which the respective Certificate Principal Balances of the Senior Certificates
in each such Group have each been reduced to zero.
Senior
Optimal Principal
Amount: For any Distribution Date and any Loan Group, the sum
for all Mortgage Loans contributing to such Loan Group of (i) the Senior
Percentage of: (a) the principal portion of each Scheduled Payment (without
giving effect, prior to the Bankruptcy Coverage Termination Date, to any
reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on each such Mortgage Loan on the related Due Date, (b)
the
principal portion of the Purchase Price of each such Mortgage Loan that
was
repurchased by the Transferor pursuant to this Agreement as of such Distribution
Date, (c) the Substitution Adjustment Amount in connection with any Deleted
Mortgage Loan contributing to such Loan Group received with respect to
such
Distribution Date and (d) any Liquidation Proceeds (including Insurance
Proceeds) allocable to recoveries of principal of Mortgage Loans related
to such
Loan Group that are not yet Liquidated Loans received during the calendar
month
preceding the month of such Distribution Date, (ii) with respect to each
such
Mortgage Loan that became a Liquidated Loan during the calendar month preceding
the month of such Distribution Date, the lesser of (a) the Senior Percentage
of
the Scheduled Principal Balance of such Mortgage Loan, or (b) either (A)
the
Senior Prepayment Percentage, or (B) if an Excess Loss was sustained with
respect to such Liquidated Loan during such prior calendar month, the
Senior
39
Percentage
of the amount of the Liquidation Proceeds allocable to principal received
with
respect to such Mortgage Loan, (iii) the Senior Prepayment Percentage of
the sum
of (a) all Principal Prepayments in Full received on the Mortgage Loans
contributing to such Loan Group during the related Prepayment Period and
(b) all
partial Principal Prepayments on the Mortgage Loans contributing to such
Loan
Group applied during the related Prepayment Period, and (iv) with respect
to any
Distribution Date prior to the Cross-Over Date only, the Senior Prepayment
Percentage of the Recoveries for such Loan Group received during the related
Prepayment Period; provided, however,
that if a
Bankruptcy Loss that is an Excess Loss is sustained with respect to such
Mortgage Loan that is not a Liquidated Loan, the Senior Optimal Principal
Amount
will be reduced on the related Distribution Date by the Senior Percentage
of the
principal portion of such Bankruptcy Loss.
Senior
Percentage: As to any Distribution Date and Certificate Group,
the lesser of (a) 100% and (b) the percentage equivalent of a fraction
the
numerator of which is the aggregate of the Certificate Principal Balances
of
each Class of Senior Certificates in such Certificate Group immediately
preceding such Distribution Date and the denominator of which is the aggregate
of the Scheduled Principal Balance of each Mortgage Loan contributing to
the
related Loan Group for such Distribution Date.
Senior
Prepayment
Percentage: With respect to any Certificate Group and any
Distribution Date during the seven years beginning on the first Distribution
Date, 100%. The Senior Prepayment Percentage for any Certificate
Group and any Distribution Date occurring on or after the seventh anniversary
of
the first Distribution Date will, except as provided herein, be as
follows: for any Distribution Date in the first year thereafter, the
Senior Percentage for such Certificate Group plus 70% of the related Subordinate
Percentage for such Certificate Group for such Distribution Date; for any
Distribution Date in the second year thereafter, the Senior Percentage
for such
Certificate Group plus 60% of the related Subordinate Percentage for such
Certificate Group for such Distribution Date; for any Distribution Date
in the
third year thereafter, the Senior Percentage for such Certificate Group
plus 40%
of the related Subordinate Percentage for such Certificate Group for such
Distribution Date; for any Distribution Date in the fourth year thereafter,
the
Senior Percentage for such Certificate Group plus 20% of the related Subordinate
Percentage for such Certificate Group for such Distribution Date; and for
any
Distribution Date thereafter, the Senior Percentage for such Certificate
Group
for such Distribution Date (unless on any Distribution Date the Senior
Percentage for any Certificate Group exceeds the initial Senior Percentage
for
such Certificate Group, in which case the Senior Prepayment Percentage
for each
Certificate Group for such Distribution Date will once again equal
100%). Notwithstanding the foregoing, no decrease in the Senior
Prepayment Percentage for any Certificate Group will occur unless both
of the
related Senior Stepdown Conditions are satisfied; provided, however,
that if on
any Distribution Date the Senior Prepayment Percentage is not permitted
to
decrease because one or both of the related Senior Stepdown Conditions
are not
satisfied, such Senior Stepdown Conditions shall be tested on each succeeding
Distribution Date and if both Senior Stepdown Conditions are satisfied
the
Senior Prepayment Percentage for that Certificate Group shall decrease;
and
provided, further,
that upon
the occurrence of a decrease in the Senior Prepayment Percentage for any
Certificate Group during one of the periods described in the definition
of
“Senior Stepdown Conditions,” such decrease shall remain in effect for the
remainder of such period.
40
Notwithstanding
the preceding paragraph, if (x) prior to the Distribution Date in
[_______________], the Subordinate Percentage for a Certificate Group is
at
least 200% of that Subordinate Percentage as of the Closing Date, the Senior
Stepdown Conditions are satisfied with respect to the related Loan Group
and
cumulative Realized Losses with respect to the related Loan Group do not
exceed
20% of the aggregate Certificate Principal Balance of the Subordinated
Certificates as of the Closing Date, the related Senior Prepayment Percentage
for the related Certificates will equal the related Senior Percentage for
that
Distribution Date plus 50% of the related Subordinate Percentage and (y)
on or
after the Distribution Date in [_______________], the Subordinate Percentage
for
a Certificate Group is at least 200% of that Subordinate Percentage as
of the
Closing Date, the Senior Stepdown Conditions are satisfied with respect
to the
related Loan Group and cumulative Realized Losses with respect to the related
Loan Group do not exceed 30% of the aggregate Certificate Principal Balance
of
the Subordinated Certificates as of the Closing Date, the Senior Prepayment
Percentage for that Loan Group will equal the Senior Percentage.
Senior
Stepdown
Conditions: With respect to any Certificate Group, as of the
last day of the month preceding the applicable Distribution Date as to
which any
decrease in the Senior Prepayment Percentage for such Certificate Group
applies,
(i) the aggregate Scheduled Principal Balance of all of the Mortgage Loans
delinquent 60 days or more (including delinquent Mortgage Loans in bankruptcy,
and all Mortgage Loans in foreclosure and REO Properties), as a percentage
of
the aggregate Certificate Principal Balance of the Subordinate Certificates
on
such Distribution Date, does not equal or exceed 50% and (ii) cumulative
Realized Losses with respect to all of the Mortgage Loans do not exceed
(a) with
respect to the Distribution Date on the seventh anniversary of the first
Distribution Date, 30% of the Original Subordinate Principal Balance, (b)
with
respect to the Distribution Date on the eighth anniversary of the first
Distribution Date, 35% of the related Original Subordinate Principal Balance,
(c) with respect to the Distribution Date on the ninth anniversary of the
first
Distribution Date, 40% of the related Original Subordinate Principal Balance,
(d) with respect to the Distribution Date on the tenth anniversary of the
first
Distribution Date, 45% of the related Original Subordinate Principal Balance
and
(e) with respect to the Distribution Date on the eleventh anniversary of
the
first Distribution Date, 50% of the related Original Subordinate Principal
Balance.
Servicer: SunTrust
Mortgage, Inc., and if a successor servicer is appointed hereunder, such
successor servicer.
Servicer
Enhanced Review
Test: With respect to any Distribution Date, the Servicer will
fail the Servicer Enhanced Review Test if both (i) the outstanding rating
by
[Xxxxx’x] of SunTrust Mortgage, Inc. as a servicer of residential Mortgage Loans
is not “SQ2” or better (including any +/- designation), and (ii) the
Realized Loss Percentage for the Mortgage Loans exceeds the applicable
percentages set forth below:
41
|
|
December
2007 through November 2008
|
[ ]%
|
December
2008 through November 2009
|
[ ]%
|
December
2009 through November 2010
|
[ ]%
|
December
2010 through November 2011
|
[ ]%
|
December
2011 through November 2012
December
2012 and thereafter
|
[ ]%
[ ]%
|
Servicer
Event of
Default: One or more of the events described in Section
7.01(a).
Servicer
Prepayment Payment
Amounts: As defined in Section
3.07(a).
Servicer
Remittance
Report: As defined in Section 4.03(d).
Servicing
Advances:
All reasonable and customary unanticipated “out of pocket” costs and expenses
incurred in the performance by the Servicer of its servicing obligations,
including, but not limited to, the cost of (i) the preservation, restoration
and
protection of the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation
of the
REO Property, including reasonable fees paid to any independent contractor
in
connection therewith, and (iv) compliance with the obligations under Sections
3.01, 3.09, 3.13 and 3.15 hereunder; provided however, that such obligation
with
respect to any related Mortgage Loan shall cease if the Servicer determines,
in
its sole discretion, that Servicing Advances with respect to such Mortgage
Loan
are or would be Nonrecoverable Advances.
Servicing
Criteria: The criteria set forth in paragraph (d) of Item 1122
of Regulation AB, as such may be amended from time to time.
Servicing
Fee: With respect to each Mortgage Loan and any Distribution
Date, an amount equal to the product of (i) one-twelfth of the Servicing
Fee Rate, and (ii) the Stated Principal Balance of such Mortgage Loan as of
the first day of the calendar month preceding the month in which such
Distribution Date occurs. Such fee shall be payable monthly, and
shall be pro rated for any portion of a month during which the Mortgage
Loan is
serviced by the Servicer under this Agreement. The Servicing Fee is
payable solely from the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds
and proceeds received with respect to REO Properties, to the extent permitted
by
Section 3.11) of
such Scheduled Payment collected by the Servicer or as otherwise provided
under
Section 3.11.
Servicing
Fee
Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing
File: With respect to each Mortgage Loan, the file retained by
the Servicer consisting of originals or copies of all documents in the
Mortgage
File which are not delivered to the Custodian in the Custodial File and
copies
of the Mortgage Loan Documents set forth in Exhibit K
hereto.
42
Servicing
Function
Participant: Any Subservicer or Subcontractor of a Servicer,
the Master Servicer, the Trustee, the Custodian or the Trust Administrator,
respectively.
Servicing
Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans
whose
name and facsimile signature appear on a list of servicing officers furnished
to
the Trustee, the Master Servicer, the Trust Administrator and the Depositor
by
the Servicer on the Closing Date pursuant to this Agreement, as such list
may
from time to time be amended.
Servicing
Transfer
Costs: All reasonable out-of-pocket costs and expenses (including all
extraordinary expenses) incurred by the Master Servicer in connection with
the
transfer of servicing from a terminated Servicer, 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 Master Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Master
Servicer
(or any successor Servicer appointed pursuant to Section 7.02) to
service the Mortgage Loans properly and effectively.
Similar
Law: As defined in Section
5.02.
Six-Month
LIBOR
Index: With respect to each applicable Adjustable Rate
Mortgage Loan, the rate as determined on the basis of rates at which six-month
U.S. dollar deposits are offered to prime banks in the London interbank
market
on such date as provided in the related Mortgage Note.
Special
Hazard Coverage
Termination Date: The point in time at which the Special
Hazard Loss Coverage Amount is reduced to zero.
Special
Hazard
Loss: Any Realized Loss as reported by the Servicer to the
Master Servicer suffered by a Mortgaged Property on account of direct physical
loss but not including (i) any loss of a type covered by a hazard insurance
policy or a flood insurance policy required to be maintained with respect
to
such Mortgaged Property pursuant to Section 3.11 to the extent of the amount
of
such loss covered thereby, or (ii) any loss caused by or resulting
from:
(a) normal
wear and tear;
(b) fraud,
conversion or other dishonest act on the part of the Trustee, the Trust
Administrator, the Servicer, the Master Servicer or any of their agents
or
employees (without regard to any portion of the loss not covered by any
errors
and omissions policy);
(c) errors
in design, faulty workmanship or faulty materials, unless the collapse
of the
property or a part thereof ensues and then only for the ensuing
loss;
(d) nuclear
or chemical reaction or nuclear radiation or radioactive or chemical
contamination, all whether controlled or uncontrolled, and whether such
loss
be
43
direct
or
indirect, proximate or remote or be in whole or in part caused by, contributed
to or aggravated by a peril covered by the definition of the term “Special
Hazard Loss”;
(e) hostile
or warlike action in time of peace and war, including action in hindering,
combating or defending against an actual, impending or expected
attack:
(i) by
any government or sovereign power, de jure or de facto, or by any authority
maintaining or using military, naval or air forces; or
(ii) by
military, naval or air forces; or
(iii) by
an agent of any such government, power, authority or forces;
(f) any
weapon of war employing nuclear fission, fusion or other radioactive force,
whether in time of peace or war; or
(g) insurrection,
rebellion, revolution, civil war, usurped power or action taken by governmental
authority in hindering, combating or defending against such an occurrence,
seizure or destruction under quarantine or customs regulations, confiscation
by
order of any government or public authority or risks of contraband or illegal
transportation or trade.
Special
Hazard Loss Coverage
Amount: With respect to each Group and any Distribution Date,
$[__________] less (i) the aggregate amount of Special Hazard Losses that
would
have been previously allocated to the Subordinate Certificates in the absence
of
the Loss Allocation Limitation and (ii) the related Adjustment Amount as
of the
most recent anniversary of [ ] 1, 200[
]. As of any Distribution Date on or after the Cross-Over Date, the
Special Hazard Loss Coverage Amount shall be zero.
All
principal balances for the purpose of this definition will be calculated
as of
the first day of the calendar month preceding the month of such Distribution
Date after giving effect to Scheduled Payments on the Mortgage Loans then
due,
whether or not paid.
Special
Hazard Mortgage
Loan: A Liquidated Loan as to which a Special Hazard Loss has
occurred.
Standard
&
Poor’s: Standard & Poor’s, a division of
The XxXxxx-Xxxx Companies, Inc. If Standard & Poor’s is
designated as a Rating Agency in the Preliminary Statement, for purposes
of
Section 10.05(b)
the address for notices to Standard & Poor’s shall be Standard & Poor’s,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group -
[ ], or such other address
as Standard & Poor’s may hereafter furnish to the Depositor, the Servicer,
the Master Servicer, the Trust Administrator and the Trustee.
Start-up
Day: As defined in Section
11.01(b).
Stated
Principal
Balance: As to each Mortgage Loan and as of any date of
determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments
44
of
principal due on or before such date, minus (ii) all amounts previously
remitted to the Trustee with respect to the related Mortgage Loan representing
payments or recoveries of principal including advances in respect of Scheduled
Payments of principal; provided, however,
that the Stated Principal Balance of any second lien Mortgage Loan with
respect
to which any portion of a Scheduled Payment is, as of the last day of the
prior
Due Period, more than 180 days past due (without giving effect to any grace
period) is zero. For purposes of any Distribution Date, the Stated
Principal Balance of any Mortgage Loan will give effect to any Scheduled
Payments of principal received by the Servicer on or prior to the related
Determination Date or advanced by the Servicer for the related Remittance
Date
and any unscheduled principal payments and other unscheduled principal
collections received during the related Prepayment Period.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing 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 any Servicer (or a Subservicer of any Servicer),
the Master Servicer, the Trustee, the Custodian or the Trust
Administrator.
Subordinate
Balance
Ratio: As of any date of determination, the ratio among the
Uncertificated Balances of the Class 1-LS Interest, Class 2-LS Interest
and
Class 3-LS Interest equal to the ratio among the Group Subordinate Amounts
of
Loan Group 1, Loan Group 2 and Loan Group 3.
Subordinate
Certificates: As specified in the Preliminary
Statement.
Subordinate
Pass-Through
Rate: As defined in the Preliminary Statement.
Subordinate
Optimal
Principal Amount: For any Distribution Date and Loan Group,
the sum for each Mortgage Loan contributing to such Loan Group of (i) the
Subordinate Percentage of: (a) the principal portion of each Scheduled
Payment
(without giving effect, prior to the Bankruptcy Coverage Termination Date,
to
any reductions thereof caused by any Debt Service Reductions or Deficient
Valuations) due on each such Mortgage Loan on the related Due Date, (b)
the
principal portion of the Purchase Price of each such Mortgage Loan that
was
repurchased by the Transferor pursuant to this Agreement as of such Distribution
Date, (c) the Substitution Adjustment Amount in connection with any Deleted
Mortgage Loan contributing to such Loan Group received with respect to
such
Distribution Date and (d) any Liquidation Proceeds (including Insurance
Proceeds) allocable to recoveries of principal of Mortgage Loans contributing
to
such Loan Group that are not yet Liquidated Loans received during the calendar
month preceding the month of such Distribution Date, (ii) with respect
to each
such Mortgage Loan that became a Liquidated Loan during the calendar month
preceding the month of such Distribution Date, the portion of the amount
of the
Liquidation Proceeds allocable to principal received with respect to such
Mortgage Loan that was not included in clause (ii) of the definition of
“Senior
Optimal Principal Amount” with respect to such Distribution Date, (iii) the
Subordinate Prepayment Percentage of the sum of (A) all Principal Prepayments
in
full received on the Mortgage Loans contributing to such Loan Group during
the
related Prepayment Period and (B) all partial Principal Prepayments on
the
Mortgage Loans contributing to such Loan Group applied during the related
Prepayment Period, and (iv) with respect to any Distribution
45
Date
prior to the Cross-Over Date only, the Subordinate Prepayment Percentage
of the
Recoveries for such Loan Group received during the related Prepayment Period;
provided, however,
that if a
Bankruptcy Loss that is an Excess Loss is sustained with respect to a Mortgage
Loan contributing to such Loan Group that is not a Liquidated Loan, the
Subordinate Optimal Principal Amount will be reduced on the related Distribution
Date by the Subordinate Percentage of the principal portion of such Bankruptcy
Loss.
Subordinate
Percentage: As to any Distribution Date and any Certificate
Group, 100% minus the Senior Percentage for such Certificate Group for
such
Distribution Date.
Subordinate
Prepayment
Percentage: As to any Distribution Date and any Certificate
Group, 100% minus the Senior Prepayment Percentage for such Certificate
Group
for such Distribution Date, except that, on any Distribution Date after
the
Senior Final Distribution Date for any Certificate Group, the Subordinate
Prepayment Percentage for each such Certificate Group will equal
100%.
Subordinate
Principal
Distribution Amount: With respect to the Subordinate
Certificates, the aggregate amount which would be payable as principal
on the
Subordinate Certificates from Group 1 Available Funds, Group 2 Available
Funds
and Group 3 Available Funds, in the aggregate, after application of Group
1
Available Funds, Group 2 Available Funds and Group 3 Available Funds, in
the
aggregate, (i) to make payments on the Senior Certificates, in accordance
with
Section 4.02(a)(i) items first and second and Section 4.02(d) and (ii)
to make
payments of Accrued Certificate Interest to the Subordinate Certificates
in
accordance with Section 4.02(a)(i) priority fourth.
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 Issuer, the Depositor, the Indenture Trustee and
the
Trust Administrator, substantially in the form attached as Exhibit
[ ].
Subsequent
Recoveries: Amounts recovered by the Servicer in respect of a
Liquidated Mortgage Loan in regard to which a Realized Loss has
occurred.
Subservicer: Any
Person that services Mortgage Loans on behalf of a Servicer, and is responsible
for the performance (whether directly or through subservicers or Subcontractors)
of servicing functions required to be performed under this Agreement, any
related Servicing Agreement or any sub-servicing agreement that are identified
in Item 1122(d) of Regulation AB.
Subservicing
Account: As defined in Section 3.08.
Subservicing
Agreements: As defined in Section 3.02(a).
46
Substitution
Adjustment
Amount: The meaning ascribed to such term pursuant to Section 2.03(f).
Tax
Service
Contract: As defined in Section 3.09(a).
Termination
Price: As defined in Section 9.01.
Transfer: Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Transfer
Affidavit: As defined in Section 5.02(c).
Transferor
Certificate: As defined in Section 5.02(b).
Trust: The
express trust created hereunder in Section 2.01(c).
Trust
Administrator: [ ],
and its successors in interest and, if a successor trust administrator
is
appointed hereunder, such successor.
Trust
Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts
which
were due on the Mortgage Loans on or before the related Cut-off Date;
(ii) the Collection Account, the Pre-Funding Accounts and the Certificate
Account and all amounts deposited therein pursuant to the applicable provisions
of this Agreement; (iii) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed-in-lieu of foreclosure or otherwise; and
(iv) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Trust
REMIC: Any of REMIC I, REMIC II or REMIC
III.
Trustee: [ ], and
its successors in interest and, if a successor trustee is appointed hereunder,
such successor.
Uncertificated
Accrued
Interest: With respect to each interest-bearing Regular
Interest on each Distribution Date, an amount equal to one month’s interest at
the related Pass-Through Rate on the Uncertificated Balance of such Regular
Interest. In the case of each Regular Interest, Uncertificated
Accrued Interest will be reduced by any Net Prepayment Interest Shortfalls,
Relief Act Reductions, and the aggregate of the amounts provided in Section
4.02(b) with respect to Special Hazard Mortgage Loans, Mortgage Loans subject
to
a Bankruptcy Loss and Fraud Loans allocated to such Regular Interest as
provided
in Section
4.08.
Uncertificated
Balance: With respect to each Regular Interest, the amount of
such Regular Interest outstanding as of any date of determination. As
of the Closing Date, the Uncertificated Balance of each Regular Interest
shall
equal the amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Balance. On each Distribution Date, the Uncertificated
Balance of each Regular Interest shall be reduced by all distributions
of
principal made on such Regular Interest on such Distribution Date pursuant
to
Section 4.08
and,
47
if
and to
the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section
4.08. The Uncertificated Balance of each Regular Interest
shall never be less than zero.
Undercollateralized
Group: With respect to any Certificate Group with respect to
which, on any Distribution Date, the aggregate Certificate Principal Balance
of
the related Senior Certificates related to such Certificate Group (after
giving
effect to distributions to be made on such Distribution Date) is greater
than
the Group Balance of the related Loan Group for the following Distribution
Date.
Underwriters’
Exemption: Any exemption listed in, and amended by, Prohibited
Transaction Exemption 2007-05, 72 Fed. Reg. 13130 (2007), or any successor
exemption.
Underwriting
Guidelines: The underwriting guidelines attached to the
Purchase Agreement.
U.S.
Person: (i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax purposes)
created or organized in the United States or under the laws of the United
States
or of any State thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or
of any
state thereof, including, for this purpose, the District of Columbia (unless
provided otherwise by future Treasury regulations); (iv) an estate whose
income is includible in gross income for United States income tax purposes
regardless of its source; or (v) a trust, if a court within the United
States is able to exercise primary supervision over the administration
of the
trust and one or more U.S. Persons have authority to control all substantial
decisions of the trust. Notwithstanding the last clause of the
preceding sentence, to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996, and treated as U.S. Persons prior
to such date, may elect to continue to be U.S. Persons.
Voting
Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class
R (in accordance with their respective Percentage Interests), and (b) the
remaining Voting Rights shall be allocated among Holders of the remaining
Classes of Certificates in proportion to the Certificate Principal Balances
of
their respective Certificates on such date.
Weighted
Average Net
Mortgage Rate: For any Distribution Date and Loan Group, the average of
the Adjusted Net Mortgage Rates of the Mortgage Loans in that Loan Group,
weighted on the basis of their respective Scheduled Principal Balances
as of the
Due Date in the prior month.
48
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section
2.01. Mortgage
Loans.
(a) As
of the Closing Date 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 Trustee, for the benefit of the Certificateholders,
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, and any and all proceeds
of
the foregoing, to have and to hold, in trust.
(b) In
connection with the transfer and assignment set forth in clause (a) above,
the
Depositor has delivered or caused to be delivered to the Trustee or the
Custodian on its behalf (or, in the case of the Delay Delivery Mortgage
Loans,
will deliver or cause to be delivered to the Trustee or the Custodian on
its
behalf within thirty (30) days following the Closing Date) for the benefit
of
the Certificateholders the following documents or instruments with respect
to
each Mortgage Loan so assigned:
(i) (A) the
original Mortgage Note endorsed by manual or facsimile signature in blank
in the
following form: “Pay to the order of ________________, without recourse,” with
all intervening endorsements showing a complete chain of endorsement from
the
originator to the Person endorsing the Mortgage Note (each such endorsement
being sufficient to transfer all right, title and interest of the party
so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note);
or
(B) with
respect to any lost Mortgage Note, a lost note affidavit from the Seller
stating
that the original Mortgage Note was lost or destroyed, together with a
copy of
such Mortgage Note;
(ii) except
as provided below and for each Mortgage Loan that is not a MERS Mortgage
Loan,
the original recorded Mortgage or a copy of such Mortgage certified by
the
Seller as being a true and complete copy of the Mortgage, and in the case
of
each MERS Mortgage Loan, the original recorded Mortgage, noting the presence
of
the MIN of the Mortgage Loans and either language indicating that the Mortgage
Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the Mortgage
Loan
was not a MOM Loan at origination, the original Mortgage and the assignment
thereof to MERS, with evidence of recording indicated thereon, or a copy
of the
Mortgage certified by the Seller as being a true and complete copy of the
Mortgage;
49
(iii) in
the case of a Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage, or a copy of such assignment certified by the
Seller
as being a true and complete copy of the assignment, in blank (which may
be
included in a blanket assignment or assignments), together with, except
as
provided below, all interim recorded assignments, or copies of such interim
assignments certified by the Seller as being true and complete copies of
the
interim assignments, of such Mortgage (each such assignment, when duly
and
validly completed, to be in recordable form and sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage
to which
the assignment relates); provided that, if the related Mortgage has not
been
returned from the applicable public recording office, such assignment of
the
Mortgage may exclude the information to be provided by the recording
office;
(iv) the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any;
(v) either
the original or duplicate original title policy, or a copy of such title
policy
certified by the Seller as being a true and complete copy of the title
policy
(including all riders thereto), with respect to the related Mortgaged Property,
if available, provided that the title policy (including all riders thereto)
will
be delivered as soon as it becomes available, and if the title policy is
not
available, and to the extent required pursuant to the second paragraph
below or
otherwise in connection with the rating of the Certificates, a written
commitment or interim binder or preliminary report of the title issued
by the
title insurance or escrow company with respect to the Mortgaged Property,
or in
lieu thereof, an Alternative Title Product or a copy of such Alternative
Title
Product certified by the Seller as being a true and complete copy of the
Alternative Title Product; and
(vi) in
the case of a Cooperative Loan, the originals of the following documents
or
instruments:
1. The
Cooperative Shares, together with a stock power in blank;
2. The
executed Security Agreement;
3. The
executed Proprietary Lease;
4. The
executed Recognition Agreement;
5. The
executed UCC-1 financing statement with evidence of recording thereon which
have
been filed in all places required to perfect the Seller’s interest in the Coop
Shares and the Proprietary Lease; and
6. Executed
UCC-3 financing statements or other appropriate UCC financing statements
required by state law, evidencing a complete and unbroken line from the
mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation)
50
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Depositor cannot deliver (a) the original recorded Mortgage or (b)
all
interim recorded assignments satisfying the requirements of clause (ii)
or (iii)
above, respectively, concurrently with the execution and delivery hereof
because
such document or documents have not been returned from the applicable public
recording office, the Depositor shall promptly deliver or cause to be delivered
to the Trustee or the Custodian on its behalf such original Mortgage or
such
interim assignment, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but
in no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date;
provided, however, in the event the Depositor is unable to deliver or cause
to
be delivered by such date each Mortgage and each such interim assignment
by
reason of the fact that any such documents have not been returned by the
appropriate recording office, or, in the case of each such interim assignment,
because the related Mortgage has not been returned by the appropriate recording
office, the Depositor shall deliver or cause to be delivered such documents
to
the Trustee or the Custodian on its behalf as promptly as possible upon
receipt
thereof and, in any event, within 270 days following the Closing Date.
The
Depositor shall forward or cause to be forwarded to the Trustee or the
Custodian
on its behalf (a) from time to time additional original documents evidencing
an
assumption or modification of a Mortgage Loan and (b) any other documents
required to be delivered by the Depositor or the Servicer to the Trustee.
In the
event that the original Mortgage is not delivered and in connection with
the
payment in full of the related Mortgage Loan and the public recording office
requires the presentation of a “lost instruments affidavit and indemnity” or any
equivalent document, because only a copy of the Mortgage can be delivered
with
the instrument of satisfaction or reconveyance, the Servicer shall execute
and
deliver or cause to be executed and delivered such a document to the public
recording office. In the case where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, the Depositor shall deliver or
cause
to be delivered to the Trustee or the Custodian on its behalf a copy of
such
Mortgage certified by such public recording office to be a true and complete
copy of the original recorded Mortgage.
In
addition, in the event that in connection with any Mortgage Loan the Depositor
cannot deliver or cause to be delivered the original or duplicate original
lender’s title policy (together with all riders thereto), satisfying the
requirements of clause (v) above, concurrently with the execution and delivery
hereof because the related Mortgage has not been returned from the applicable
public recording office, the Depositor shall promptly deliver or cause
to be
delivered to the Trustee or the Custodian on its behalf such original or
duplicate original lender’s title policy (together with all riders thereto) upon
receipt thereof from the applicable title insurer, but in no event shall
any
such delivery of the original or duplicate original lender’s title policy be
made later than one year following the Closing Date; provided, however,
in the
event the Depositor is unable to deliver or cause to be delivered by such
date
the original or duplicate original lender’s title policy (together with all
riders thereto) because the related Mortgage has not been returned by the
appropriate recording office, the Depositor shall deliver or cause to be
delivered such documents to the Trustee or the Custodian on its behalf
as
promptly as possible upon receipt thereof and, in any event, within 270
days
following the Closing Date; provided further, however, that the Depositor
shall
not be required to deliver an original or duplicate
51
lender’s
title policy (together with all riders thereto) if the Depositor delivers
an
Alternative Title Product in lieu thereof. [Notwithstanding the preceding,
in
connection with any Mortgage Loan for which either the original or duplicate
original title policy has not been delivered to the Trust, if at any time
during
the term of this Agreement the parent company of the Seller does not have
a long
term senior debt rating of A- or higher from S&P and A- or higher from Fitch
(if rated by Fitch), then the Depositor shall within 30 days deliver or
cause to
be delivered to the Trustee or the Custodian on its behalf (if it has not
previously done so) a written commitment or interim binder or preliminary
report
of the title issued by the title insurance or escrow company with respect
to the
Mortgaged Property.]
Subject
to the immediately following sentence, as promptly as practicable subsequent
to
such transfer and assignment, and in any event, within thirty (30) days
thereafter, the Servicer shall (i) complete each assignment of Mortgage, as
follows: “[__________________________], as trustee for the holders of the
SunTrust [____________] Trust, Series 200[__]-[__] Mortgage Backed Pass-Through
Certificates, Series 200[__]-[__]”, (ii) cause such assignment to be in proper
form for recording in the appropriate public office for real property records
and (iii) cause to be delivered for recording in the appropriate public
office
for real property records the assignments of the Mortgages to the Trustee,
except that, with respect to any assignments of Mortgage as to which the
Servicer has not received the information required to prepare such assignment
in
recordable form, the Servicer’s obligation to do so and to deliver the same for
such recording shall be as soon as practicable after receipt of such information
and in any event within thirty (30) days after receipt thereof. Notwithstanding
the foregoing, the Servicer need not cause to be recorded any assignment
which
relates to a Mortgage Loan in any state other than the Required Recordation
States.
In
the
case of Mortgage Loans that have been prepaid in full as of the Closing
Date,
the Depositor, in lieu of delivering the above documents to the Trustee or the
Custodian on its behalf, will deposit in the Certificate Account the portion
of
such payment that is required to be deposited in the Certificate Account
pursuant to Section [3.8] hereof.
Notwithstanding
anything to the contrary in this Agreement, within thirty days after the
Closing
Date, the Depositor shall either (i) deliver or cause to be delivered to
the
Trustee or the Custodian on its behalf the Mortgage File as required pursuant
to
this Section 2.1 for each Delay Delivery Mortgage Loan or (ii) (A) substitute
or
cause to be substituted a Substitute Mortgage Loan for the Delay Delivery
Mortgage Loan or (B) repurchase or cause to be repurchased the Delay Delivery
Mortgage Loan, which substitution or repurchase shall be accomplished in
the
manner and subject to the conditions set forth in Section [2.3] (treating
each
Delay Delivery Mortgage Loan as a Deleted Mortgage Loan for purposes of
such
Section [2.3]), provided, however, that if the Depositor fails to deliver
a
Mortgage File for any Delay Delivery Mortgage Loan within the thirty-day
period
provided in the prior sentence, the Depositor shall use its best reasonable
efforts to effect or cause to be effected a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the
cure
period provided for in Section [2.2] or in Section [2.3] shall not apply
to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage
Loan, but
rather the Depositor shall have five (5) Business Days to cure or cause
to be
cured such failure to deliver. At the end of such thirty-day period, the
Trustee
or the Custodian, on its behalf shall send a Delay Delivery Certification
for
the Delay Delivery
52
Mortgage
Loans delivered during such thirty-day period in accordance with the provisions
of Section [2.2]. Notwithstanding anything to the contrary contained in
this
Agreement, none of the Mortgage Loans in the Trust Fund is or will be Delay
Delivery Mortgage Loans.
(c) On
or prior to the Closing Date, the Depositor shall deliver to the Trustee,
the
Master Servicer, the Servicer and the Trust Administrator a copy of the Data
Tape Information in an electronic, machine readable medium in a form mutually
acceptable to the Depositor, the Servicer, the Master Servicer, the Trust
Administrator and the Trustee. Within ten (10) Business Days of the
Closing Date, the Depositor shall deliver a copy of the complete Mortgage
Loan
Schedule to the Trustee, the Master Servicer, the Trust Administrator and
the
Servicer.
(d) The
Depositor does hereby establish, pursuant to the further provisions of
this
Agreement and the laws of the State of New York, an express trust (the
“Trust”)
to be known, for convenience, as “SunTrust
[ ]
Trust, Series 200[ ]-[ ]” and
[ ]
is hereby appointed as Trustee in accordance with the provisions of this
Agreement.
(e) The
Trust shall have the capacity, power and authority, and the Trustee on
behalf of
the Trust is hereby authorized and directed, to accept the sale, transfer,
assignment, set over and conveyance by the Depositor to the Trust of all
the
right, title and interest of the Depositor in and to the Trust Fund (including,
without limitation, the Mortgage Loans) pursuant to Section
2.01(a).
(f) The
parties hereto acknowledge and agree that it is the policy and intention
of the
Trust to acquire only Mortgage Loans meeting the requirements set forth
in this
Agreement, including without limitation, the representation and warranty
set
forth in paragraph II(l) of Schedule IV hereto.
(g) Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge
that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of Custodial Files, including but not limited to certain insurance
policies and documents contemplated by this Agreement, and preparation
and
delivery of the Initial Certification and the Document Certification and
Exception Report shall be performed by the Custodian pursuant to the terms
and
conditions of this Agreement.
Section
2.02. Acceptance by
the Trustee of
the Mortgage Loans.
The
Trustee on its behalf acknowledges receipt of the documents identified
in its
initial certification in the form annexed hereto as Exhibit E (the
“Initial
Certification”), and declares that it, or the Custodian on its behalf,
holds and will hold such documents and the other documents delivered to
it
pursuant to Section 2.01, and that it holds or will hold such other assets
as are included in the Trust Fund, in trust for the exclusive use and benefit
of
all present and future Certificateholders. Each of the Trustee and
the Custodian, as applicable, on its behalf acknowledges that it will maintain
possession of the related Mortgage Notes in any of the states of
[ ]
or [ ],
unless otherwise permitted by the Rating Agencies.
Prior
to
and as a condition to the Closing, the Trustee shall deliver, or cause
the
Custodian to deliver, via facsimile (with original to follow the next Business
Day) to the
53
Depositor,
the Master Servicer and the Servicer the Initial Certification prior to
the
Closing Date, or as the Depositor agrees, on the Closing Date, certifying
receipt of a Mortgage Note and Assignment of Mortgage for each Mortgage
Loan
with any exceptions thereon. The Trustee or the Custodian, as
applicable, shall not be responsible to verify the validity, sufficiency
or
genuineness of any document in any Custodial File.
The
Trustee or the Custodian, as applicable, shall ascertain that all documents
in
the Custodial File required to be reviewed by it are in its possession,
and
shall deliver to the Depositor, the Master Servicer and the Servicer the
Initial
Certification on the Closing Date, and shall deliver to the Depositor and
the
Servicer a Document Certification and Exception Report, in the form annexed
hereto as Exhibit F,
within 90 days after the Closing Date to the effect that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in
full or any Mortgage Loan specifically identified in such certification
as an
exception and not covered by such certification): (i) all
documents required to be received by it are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face and
relate
to such Mortgage Loan; (iii) based on its examination and only as to the
foregoing documents, the information set forth in items (i), (ii) and (xii)
of
the Mortgage Loan Schedule and items (1), (2), (3) and (13) of the Data
Tape
Information respecting such Mortgage Loan is correct; and (iv) each
Mortgage Note has been endorsed as provided in Section 2.01 of this
Agreement. The Trustee or Custodian, as applicable, shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
The
Trustee or the Custodian, as applicable, shall retain possession and custody
of
each Custodial File in accordance with and subject to the terms and conditions
set forth herein. The Servicer shall promptly deliver to the Trustee
or the Custodian, as applicable, upon the execution or receipt thereof,
the
originals of such other documents or instruments constituting the Custodial
File
as come into the possession of the Servicer from time to time.
The
Originator shall deliver to the Servicer copies of all trailing documents
required to be included in the Custodial File at the same time the original
or
certified copies thereof are delivered to the Trustee or the Custodian,
as
applicable, including but not limited to such documents as the title insurance
policy and any other Mortgage Loan documents upon return from the public
recording office. The documents shall be delivered by the Originator
at the Originator’s expense to the Servicer and in no event shall the Servicer
be responsible for such expense.
Section
2.03. Representations,
Warranties
and Covenants of the Originator and the Servicer.
(a) The
Originator hereby makes the representations and warranties set forth in
Schedule IV hereto to the Depositor and the Trustee as of the Closing
Date.
(b) It
is understood and agreed that the representations and warranties set forth
in
this Section 2.03 shall survive the transfer of the Mortgage Loans by the
Depositor to the Trustee, and shall inure to the benefit of the Depositor
and
the Trustee notwithstanding any restrictive or qualified endorsement on
any
Mortgage Note or Assignment of Mortgage or the examination or
54
failure
to examine any Mortgage File. Upon discovery by any of the
Originator, the Depositor, the Trustee, the Trust Administrator, the Master
Servicer or the Servicer of a breach of any of the foregoing representations
and
warranties, the party discovering such breach shall give prompt written
notice
to the others.
(c) Within
30 days of the earlier of either discovery by or notice to the Originator
that
any Mortgage Loan does not conform to the requirements as determined in
the
Trustee’s or the [Custodian’s] review of the related Custodial File or within
60 days of the earlier of either discovery by or notice to the Originator
of any breach of a representation or warranty set forth in Schedule IV
hereto,
that materially and adversely affects the value of any Mortgage Loan or
the
interest of the Trustee or the Certificateholders therein, the Originator
shall
use its best efforts to cause to be remedied a material defect in a document
constituting part of a Mortgage File or promptly to cure such breach in
all
material respects and, if such defect or breach cannot be remedied, the
Originator shall, (i) if such 30- or 60-day period, as applicable, expires
prior to the second anniversary of the Closing Date, remove such related
Mortgage Loan (a “Deleted Mortgage
Loan”) from the Trust Fund and substitute in its place a Qualified
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth
in this Section 2.03, or (ii) repurchase such Mortgage Loan at the
Repurchase Price; provided, however,
that any
such substitution pursuant to clause (i) above shall not be effected prior
to
the delivery to the Trustee of the Opinion of Counsel required by
Section 2.04, if any, and a Request for Release substantially in the form
of Exhibit J, and
the Mortgage File for any such Qualified Substitute Mortgage Loan; provided, further,
that with
respect to any representations and warranties which are made to the best
of the
Originator’s knowledge, if it is discovered by the Originator, the Servicer, the
Master Servicer, the Trust Administrator, the Depositor or the Trustee
that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loans
or
materially and adversely affects the interests of the Trustee or the
Certificateholders therein or such inaccuracy materially and adversely
affects
the value of the related Mortgage Loan or materially and adversely affects
the
interests of the Trustee or the Certificateholders therein in the case
of a
representation and warranty relating to a particular Mortgage Loan,
notwithstanding the Originator’s lack of knowledge with respect to the substance
of such representation and warranty, such inaccuracy shall be deemed a
breach of
the applicable representation and warranty. In the event that a
breach which materially and adversely affects the value of the related
Mortgage
Loan or Mortgage Loans, as the case may be, or the interests of the Trustee
or
the Certificateholders therein, shall involve any representation or warranty
set
forth in Schedule IV, and such breach cannot be cured within 60 days of the
earlier of either discovery by or notice to the Originator of such breach,
all
of the Mortgage Loans shall, at the Depositor’s option, be repurchased by the
Originator at the Repurchase Price. Notwithstanding the foregoing, a
breach which causes a Mortgage Loan not to constitute a “qualified mortgage”
within the meaning of Section 860G(a)(3) of the Code, or by the Originator
of any of the representations and warranties set forth in clauses I(tt),
I(uu) or I(lll) of Schedule IV, in each case, will be deemed automatically
to materially and adversely affect the value of such Mortgage Loan and
the
interests of the Trustee and Certificateholders in such Mortgage
Loan. In the event that the Trustee receives notice of a breach by
the Originator of any of the representations and warranties set forth in
clauses I(tt), I(uu) or I(lll) of Schedule IV, the Trustee shall give
notice of such breach to the Originator and request the Originator to repurchase
the Mortgage Loan at the Repurchase Price within sixty (60) days of the
Originator’s
55
receipt
of such notice. The Originator shall repurchase each such Deleted
Mortgage Loan within 60 days of the earlier of discovery or receipt of
notice with respect to each such Deleted Mortgage Loan.
(d) With
respect to any Qualified Substitute Mortgage Loan or Loans, the Originator
shall
deliver to the Trustee or the Custodian for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment
of
the Mortgage, and such other documents and agreements as are required by
Section 2.01, with the Mortgage Note endorsed and the Mortgage assigned as
required by Section 2.01. No substitution is permitted to be
made in any calendar month after the Determination Date for such
month. Scheduled Payments due with respect to Qualified Substitute
Mortgage Loans in the Due Period of substitution shall not be part of the
Trust
Fund and will be retained by the Originator on the next succeeding Distribution
Date. For the Due Period of substitution, distributions to
Certificateholders will include the Scheduled Payment due on any Deleted
Mortgage Loan for such Due Period and thereafter the Originator shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan.
(e) In
connection with any repurchase or substitution of a Mortgage Loan pursuant
to
this Section 2.03, the Servicer shall, based on information provided by
the
Originator, amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan
and the
substitution of the Qualified Substitute Mortgage Loan or Loans and the
Servicer
shall deliver the amended Mortgage Loan Schedule to the Trustee, the Trust
Administrator and the Master Servicer. Upon such substitution, the
Qualified Substitute Mortgage Loan or Loans shall be subject to the terms
of
this Agreement in all respects, and the Originator shall be deemed to have
made
with respect to such Qualified Substitute Mortgage Loan or Loans, as of
the date
of substitution, the representations and warranties made pursuant to
Section 2.03(b) with respect to such Mortgage Loan. Upon any
such substitution and the deposit to the Collection Account of the amount
required to be deposited therein in connection with such substitution as
described in the following paragraph, the Trustee or the Custodian shall
release
the Mortgage File held for the benefit of the Certificateholders relating
to
such Deleted Mortgage Loan to the Originator and the Trustee shall execute
and
deliver at the direction of the Originator such instruments of transfer
or
assignment prepared by the Originator in each case without recourse, as
shall be
necessary to vest title in the Originator or its designee, the Trustee’s
interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
(f) For
any month in which the Originator substitutes one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will
determine the amount (if any) by which the aggregate unpaid principal balance
of
all such Qualified Substitute Mortgage Loans as of the date of substitution
is
less than the aggregate Stated Principal Balance of all such Deleted Mortgage
Loans (after application of the scheduled principal portion of the Scheduled
Payments due in the Due Period of substitution). The amount of such
shortage (the “Substitution
Adjustment
Amount”) plus an amount equal to the aggregate of any unreimbursed
Advances with respect to such Deleted Mortgage Loans shall be remitted
by the
Originator to the Servicer for deposit into the Collection Account on or
before
the next Remittance Date.
56
(g) In
addition to such repurchase or substitution obligations, the Originator
shall
indemnify the Depositor, any of its Affiliates, the Servicer, the Master
Servicer, the Trust Administrator and the Trustee and hold such parties
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 by the Originator of any of its
representations and warranties contained in this Agreement.
(h) In
the event that a Mortgage Loan shall have been repurchased pursuant to
this
Agreement, the proceeds from such repurchase shall be deposited in the
Collection Account by the Servicer pursuant to Section 3.10 on or before
the next Remittance Date and upon such deposit of the Repurchase Price,
the
delivery of the Opinion of Counsel required by Section 2.04, if applicable,
and receipt of a Request for Release in the form of Exhibit J
hereto, the Trustee or the Custodian shall release the related Custodial
File
held for the benefit of the Certificateholders to such Person as directed
by the
Servicer, and the Trustee shall execute and deliver at such Person’s direction
such instruments of transfer or assignment prepared by such Person, in
each case
without recourse, as shall be necessary to transfer title from the
Trustee. It is understood and agreed that the obligation under this
Agreement of any Person to cure, repurchase or replace any Mortgage Loan
as to
which a breach has occurred and is continuing, together with any related
indemnification obligations, shall constitute the sole remedy against such
Persons respecting such breach available to Certificateholders, the Depositor,
the Servicer, the Master Servicer, the Trust Administrator or the Trustee
on
their behalf.
The
representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Custodial Files to the Trustee or Custodian
for the benefit of the Certificateholders.
Section
2.04. Delivery of
Opinion of
Counsel in Connection with Substitution; Non-Qualified
Mortgages.
(a) Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to
Section 2.03 shall be made more than 90 days after the Closing Date unless
the Originator delivers to the Trustee and the Trust Administrator, an
Opinion
of Counsel, which Opinion of Counsel shall not be at the expense of either
the
Trustee, the Trust Administrator or the Trust Fund, addressed to the Trustee
and
the Trust Administrator, to the effect that such substitution will not
(i) result in the imposition of the tax on “prohibited transactions” on any
Trust REMIC or contributions after the Start-up Day, as defined in
Sections 860F(a)(2) and 860G(d) of the Code, respectively or
(ii) cause any Trust REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding.
(b) Upon
discovery by the Depositor, the Originator, the Master Servicer, the Trust
Administrator, the Servicer or the Trustee that any Mortgage Loan does
not
constitute a “qualified mortgage” within the meaning of Section 860G(a)(3)
of the Code, the party discovering such fact shall promptly (and in any
event
within five (5) Business Days of discovery) give written notice thereof
to the
other parties. In connection therewith, the Trustee shall require the
Originator to repurchase the affected Mortgage Loan within 30 days of
the
57
earlier
of discovery or receipt of notice in the same manner as it would a Mortgage
Loan
for a breach of representation or warranty made pursuant to
Section 2.03. The Trustee shall reconvey to the Originator the
Mortgage Loan to be released pursuant hereto in the same manner, and on
the same
terms and conditions, as it would a Mortgage Loan repurchased for breach
of a
representation or warranty contained in Section 2.03.
Section
2.05. Execution and
Delivery of
Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund
and,
concurrently with such transfer and assignment, the Trust Administrator
has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust
Fund and exercise the rights referred to above for the benefit of all present
and future Holders of the Certificates.
Section
2.06. Representations
and
Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the Trustee, the
Trust
Administrator, the Master Servicer, the Servicer and the Originator that
as of
the date of this Agreement or as of such date specifically provided
herein:
(a) The
Depositor is a corporation duly organized, validly existing and in good
standing
under the laws of the state of Delaware;
(b) The
Depositor has the corporate power and authority to convey the Mortgage
Loans and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement;
(c) This
Agreement has been duly and validly authorized, executed and delivered
by the
Depositor, all requisite corporate action having been taken, and, assuming
the
due authorization, execution and delivery hereof by the Master Servicer,
the
Trust Administrator, the Servicer, the Originator and the Trustee, constitutes
or will constitute the legal, valid and binding agreement of the Depositor,
enforceable against the Depositor in accordance with its terms, except
as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the rights of creditors
generally, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(d) No
consent, approval, authorization or order of or registration or filing
with, or
notice to, any governmental authority or court is required for the execution,
delivery and performance of or compliance by the Depositor with this Agreement
or the consummation by the Depositor of any of the transactions contemplated
hereby, except as have been made on or prior to the Closing Date;
(e) None
of the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby or thereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, (i) conflicts or will
conflict with or results or will result in a
58
breach
of, or constitutes or will constitute a default or results or will result
in an
acceleration under (A) the charter or bylaws of the Depositor, or
(B) of any term, condition or provision of any material indenture, deed of
trust, contract or other agreement or instrument to which the Depositor
or any
of its subsidiaries is a party or by which it or any of its subsidiaries
is
bound; (ii) results or will result in a violation of any law, rule,
regulation, order, judgment or decree applicable to the Depositor of any
court
or governmental authority having jurisdiction over the Depositor or its
subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There
are no actions, suits or proceedings before or against or investigations
of, the
Depositor pending, or to the knowledge of the Depositor, threatened, before
any
court, administrative agency or other tribunal, and no notice of any such
action, which, in the Depositor’s reasonable judgment, might materially and
adversely affect the performance by the Depositor of its obligations under
this
Agreement, or the validity or enforceability of this Agreement;
(g) The
Depositor is not in default with respect to any order or decree of any
court or
any order, regulation or demand of any federal, state, municipal or governmental
agency that may materially and adversely affect its performance hereunder;
and
(h) Immediately
prior to the transfer and assignment by the Depositor to the Trustee on
the
Closing Date, the Depositor had good title to, and was the sole owner of
each
Mortgage Loan, free of any interest of any other Person, and the Depositor
has
transferred all right, title and interest in each Mortgage Loan to the
Trustee. The transfer of each Mortgage Note and each Mortgage as and
in the manner contemplated by this Agreement is sufficient either (i) fully
to transfer to the Trustee, for the benefit of the Certificateholders,
all
right, title, and interest of the Depositor thereto as note holder and
mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders,
the security interest referred to in Section 10.04.
It
is
understood and agreed that the representations, warranties and covenants
set
forth in this Section 2.06 shall survive delivery of the respective
Custodial Files to the Trustee or to a custodian, as the case may be, and
shall
inure to the benefit of the Trustee.
Within
60
days of the earlier of either discovery by or notice to the Depositor of
a
breach of the representations and warranties set forth in clause (h) above
that
materially and adversely affects the value of any Mortgage Loan or the
interest
of the Trustee or the Certificateholders therein, the Depositor shall use
its
best efforts to promptly cure such breach in all material respects and
if such
defect or breach cannot be remedied, the Depositor shall either (i) if
such
60-day period expires prior to the second anniversary of the Closing Date,
remove such Deleted Mortgage Loan from the Trust Fund and substitute in
its
place a Substitute Mortgage Loan, in the manner and subject to the conditions
set forth in Section 2.03, or (ii) repurchase such Mortgage Loan at the
Repurchase Price. The obligations of the Depositor to cure such
breach or to substitute or purchase any Mortgage Loan constitute the sole
remedies respecting a material breach of any such representation or warranty
to
the Holders of the Certificates and the Trustee.
59
Section
2.07. Representations,
Warranties
and Covenants of the Servicer, the Originator and the Master
Servicer.
(a) The
Servicer hereby represents, warrants and covenants to the Trustee, the
Trust
Administrator, the Master Servicer, the Originator and the Depositor that
as of
the Closing Date or as of such date specifically provided herein:
(i) 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
qualified to transact any and all business contemplated by this Agreement
to be
conducted by the Servicer in any state in which a Mortgaged Property related
to
a Mortgage Loan is located or is otherwise not required under applicable
law to
effect such qualification and, in any event, is in compliance with the
doing
business laws of any such State, to the extent necessary to ensure its
ability
to enforce each Mortgage Loan serviced and to service the Mortgage Loans
in
accordance with the terms of this Agreement;
(ii) The
Servicer has the full power and authority to service each Mortgage Loan
which
the Servicer is required to service hereunder, and to execute, deliver
and
perform, and to enter into and consummate the transactions contemplated
by this
Agreement and has duly authorized by all necessary action on the part of
the
Servicer the execution, delivery and performance of this Agreement; and
this
Agreement, assuming the due authorization, execution and delivery thereof by the
Depositor, the Originator, the Master Servicer, the Trust Administrator
and the
Trustee, constitutes a legal, valid and binding obligation of the Servicer,
enforceable against the Servicer in accordance with its terms, except to
the
extent that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding
therefor
may be brought;
(iii) The
execution and delivery of this Agreement by the Servicer, the servicing
of the
Mortgage Loans by the Servicer hereunder, the consummation by the Servicer
of
any other of the transactions herein contemplated, and the fulfillment
of or
compliance with the terms hereof are in the ordinary course of business
of the
Servicer and will not (A) result in a breach of any term or provision of
the
organizational documents of the Servicer or (B) conflict with, result in
a
breach, violation or acceleration of, or result in a default under, the
terms of
any other material agreement or instrument to which the Servicer is a party
or
by which it may be bound, or any statute, order or regulation applicable
to the
Servicer of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Servicer; and the Servicer is not a party
to,
bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body
having
jurisdiction over it, which materially and adversely affects or, to the
Servicer’s knowledge, would in the future materially and adversely affect, (x)
the ability of the
60
Servicer
to perform its obligations under this Agreement or (y) the business, operations,
financial condition, properties or assets of the Servicer taken as a
whole;
(iv) The
Servicer is a HUD-approved non-supervised mortgagee pursuant to Section
203 and
Section 211 of the National Housing Act, and no event has occurred, including
but not limited to a change in insurance coverage, that would make the
Servicer
unable to comply with HUD eligibility requirements or which would require
notification to HUD;
(v) No
litigation is pending or, to the best knowledge of the Servicer, threatened
against the Servicer that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Servicer
to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(vi) 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 the consummation
by the
Servicer of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations or orders, if any, that have been obtained
prior to the Closing Date;
(vii) The
Servicer shall waive a Prepayment Premium or part of a Prepayment Premium
only
if (a) the prepayment is not the result of a refinancing by the Servicer
or its
affiliates and such waiver relates to a default or a reasonably foreseeable
default and, in the reasonable judgment of the Servicer, such waiver would
maximize recovery of total proceeds from the Mortgage Loan, taking into
account
the value of the Prepayment Premium and the related Mortgage Loan, or (ii)
the
collection of a Prepayment Premium would, in the reasonable judgment
of the Servicer, be in violation of law. The Servicer will be
obligated to deposit with the Master Servicer from its own funds the amount
of
any Prepayment Premium to the extent not collected from a Borrower (except
with
respect to a waiver of any such Prepayment Premium as described in the
previous
sentence).
(viii) For
each Mortgage Loan, the Servicer will accurately, fully and in a timely
manner
report its borrower credit files to each of the three credit repositories;
and
(ix) the
Servicer is a member of MERS in good standing and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Designated Mortgage Loans for as long as such Mortgage Loans
are
registered with MERS.
(b) The
Originator hereby represents, warrants and covenants to the Trustee, the
Trust
Administrator, the Master Servicer, the Servicer and the Depositor that
as of
the Closing Date or as of such date specifically provided herein:
61
(i) The
Originator is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia;
(ii) The
Originator has full power and authority to own its property, to carry on
its
business as presently conducted and to enter into and perform its obligations
under this Agreement;
(iii) The
execution and delivery by the Originator of this Agreement have been duly
authorized by all necessary corporate action on the part of the Originator;
and
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions contemplated herein, nor compliance with the provisions
hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment,
decree or
order binding on the Originator or its properties or the certificate of
incorporation or by-laws of the Originator, except those conflicts, breaches
or
defaults which would not reasonably be expected to have a material adverse
effect on the Originator’s ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) The
execution, delivery and performance by the Originator of this Agreement
and the
consummation of the transactions contemplated hereby do not require the
consent
or approval of, the giving of notice to, the registration with, or the
taking of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made and, in connection
with the recordation of the Mortgages, powers of attorney or assignments
of
Mortgages not yet completed;
(v) This
Agreement has been duly executed and delivered by the Originator and, assuming
due authorization, execution and delivery by the Trustee, the Servicer,
the
Master Servicer, the Trust Administrator and the Depositor, constitutes
a valid
and binding obligation of the Originator, enforceable against it in accordance
with its terms (subject to applicable bankruptcy and insolvency laws and
other
similar laws affecting the enforcement of the rights of creditors
generally);
(vi) There
are no actions, litigation, suits or proceedings pending or, to the knowledge
of
the Originator, threatened against the Originator before or by any court,
administrative agency, arbitrator or governmental body (i) with respect
to any
of the transactions contemplated by this Agreement or (ii) with respect
to any
other matter which in the judgment of the Originator if determined adversely
to
the Originator would reasonably be expected to materially and adversely
affect
the Originator’s ability to perform its obligations under this Agreement; and
the Originator is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to materially
and
adversely affect the transactions contemplated by this Agreement;
(vii) The
Originator hereby makes the representations and warranties set forth in
Exhibit
A to the Mortgage Loan Purchase Agreement, as of the Closing Date, or
the
62
date
specified therein, with respect to the Mortgage Loans identified on Schedule
I
hereto; and
(viii) The
Originator is a member of MERS in good standing and will comply in all
material
respects with the rules and procedures of MERS in connection with the servicing
of the MERS Mortgage Loans for as long as such Mortgage Loans are registered
with MERS.
(c) The
Master Servicer hereby represents, warrants and covenants to the Servicer,
the
Originator, the Depositor and the Trustee, for the benefit of each of the
Trustee and the Certificateholders, that as of the Closing Date or as of
such
date specifically provided herein:
(i) The
Master Servicer is a national banking association duly formed, validly
existing
and in good standing under the laws of the United States of America and
is duly
authorized and qualified to transact any and all business contemplated
by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business
as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The
Master Servicer has duly authorized the execution, delivery and performance
of
this Agreement, has duly executed and delivered this Agreement, and this
Agreement, assuming due authorization, execution and delivery by the Depositor,
the Originator, the Servicer and the Trustee, constitutes a legal, valid
and
binding obligation of the Master Servicer, enforceable against it in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the enforcement
of creditors’ rights generally and by general principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof
are in
the ordinary course of business of the Master Servicer and will not (A)
result
in a breach of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement
or
instrument to which the Master Servicer is a party or by which it may be
bound,
or any statute, order or regulation applicable to the Master Servicer of
any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is not a
party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body
having
jurisdiction over it, which materially and adversely affects or, to the
Master
Servicer’s knowledge, would in the future materially and adversely affect, the
ability of the Master Servicer to perform its obligations under this
Agreement;
63
(iv) The
Master Servicer does not believe, nor does it have any reason or cause
to
believe, that it cannot perform each and every covenant made by it and
contained
in this Agreement;
(v) No
litigation is pending against the Master Servicer that would materially
and
adversely affect the execution, delivery or enforceability of this Agreement
or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof;
(vi) There
are no actions or proceedings against, or investigations known to it of,
the
Master Servicer before any court, administrative or other tribunal (A)
that
might prohibit its entering into this Agreement, (B) seeking to prevent
the
consummation of the transactions contemplated by this Agreement or (C)
that
might prohibit or materially and adversely affect the performance by the
Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement; and
(vii) 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 by it of the transactions contemplated by this Agreement,
except
for such consents, approvals, authorizations or orders, if any, that have
been
obtained prior to the Closing Date.
(d) It
is understood and agreed that the representations, warranties and covenants
set
forth in this Section 2.07 shall survive delivery of the Mortgage Files
to the
Trustee. Upon discovery by any of the Depositor, the Originator, the
Master Servicer, the Trust Administrator, the Servicer or the Trustee of
a
breach of any of the foregoing representations, warranties and covenants
which
materially and adversely affects the value of any Mortgage Loan, Prepayment
Premium or the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice (but in no event
later
than two Business Days following such discovery) to the other such
parties. The obligation of the Originator set forth in Section
2.03(d) to cure breaches shall constitute the sole remedy against the Originator
available to the Certificateholders, the Depositor, the Trust Administrator
or
the Trustee on behalf of the Certificateholders respecting a breach of
the
Originator’s representations, warranties and covenants contained in paragraph
(b)(vii) of this Section 2.07. The obligation of the Servicer set
forth in Section 3.07(a) to pay the amount of any waived Prepayment Premium
shall constitute the sole remedy against the Servicer available to the
Certificateholders, the Depositor, the Trust Administrator or the Trustee
on
behalf of the Certificateholders respecting a breach of the Servicer’s
representations, warranties and covenants contained in paragraph (a)(vii)
of
this Section 2.07.
Section
2.08. Representations
and
Warranties of the Custodian.
The
Custodian hereby represents and warrants to the Depositor, the Master Servicer,
the Trust Administrator and the Trustee, as of the Closing Date, or if
so
specified herein, as of the Cut-off Date:
64
(a) The
Custodian is duly organized as a chartered bank and is validly existing
and in
good standing under the laws of the state of Georgia and is duly authorized
and
qualified to transact any and all business contemplated by this Agreement
to be
conducted by the Custodian in any state in which a Mortgaged Property is
located
or is otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such
state, to the extent necessary to perform any of its obligations under
this
Agreement in accordance with the terms thereof.
(b) The
Custodian has the full power and authority to execute, deliver and perform,
and
to enter into and consummate the transactions contemplated by this Agreement
and
has duly authorized by all necessary action on the part of the Custodian
the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of the
Custodian, enforceable against the Custodian in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor
may be brought.
(c) The
execution and delivery of this Agreement by the Custodian, the consummation
of
any other of the transactions contemplated by this Agreement, and the
fulfillment of or compliance with the terms thereof are in the ordinary
course
of business of the Custodian and will not (i) result in a material breach
of any
term or provision of the articles of incorporation or by-laws of the Custodian,
(ii) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any
other
material agreement or instrument to which the Custodian is a party or by
which
it may be bound, or (iii) constitute a material violation of any statute,
order
or regulation applicable to the Custodian of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Custodian; and the Custodian is not in breach or violation of any material
indenture or other material agreement or instrument, or in violation of
any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair the Custodian’s ability to perform or meet any
of its obligations under this Agreement.
(d) No
litigation is pending or, to the knowledge of the Custodian, threatened
against
the Custodian that would materially and adversely affect the execution,
delivery
or enforceability of this Agreement or the ability of the Custodian to
perform
any of its obligations under this Agreement in accordance with the terms
thereof.
(e) No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Custodian
of, or compliance by the Custodian with, this Agreement or the consummation
of
the transactions contemplated thereby, or if any such consent, approval,
authorization or order is required, the Custodian has obtained the
same.
65
Section
2.09. Purpose of
Trust.
The
purpose of the trust, as created hereunder, is to engage in the following
activities:
|
(i)
|
to
maintain books and records separate from any other person or
entity;
|
|
(ii)
|
to
maintain its bank accounts separate from any other person or
entity;
|
(iii)
|
not
to commingle its assets with those of any other person or entity
and to
hold all of its assets in its own
name;
|
(iv)
|
to
conduct its own business in its own
name;
|
|
(v)
|
to
maintain separate financial statements, showing its assets and
liabilities
separate and apart from those of any other person or entity and
to cause
such financial statements to be prepared in accordance with generally
accepted accounting principles;
|
(vi)
|
to
pay its own liabilities and expenses only out of its own
funds;
|
(vii)
|
to
observe all corporate and other organizational
formalities;
|
(viii)
|
to
maintain an arm’s length relationship with its affiliates and to enter
into transactions with affiliates only on a commercially reasonable
basis;
|
(ix)
|
not
to assume, guarantee or become obligated for the debts of any
other entity
or person;
|
|
(x)
|
not
to acquire the obligations or securities of any affiliate or
owner;
|
(xi)
|
to
allocate fairly and reasonably any overhead expenses that are
shared with
any affiliate, including paying for office space and services
performed by
any employee of an affiliate;
|
(xii)
|
to
use separate stationery, invoices, and checks bearing its own
name;
|
(xiii)
|
to
hold itself out as a separate
entity;
|
(xiv)
|
to
correct any known misunderstanding regarding its separate
identity;
|
(xv)
|
not
to identify itself or hold itself out as a division of any other
person or
entity;
|
(xvi)
|
not
to hold out its credit as being available to satisfy the obligations
of
others;
|
(xvii)
|
to
file separate tax returns from those of each person and entity
except as
may be required by law; and
|
66
(xviii)
|
to
maintain its assets in a manner that it will not be costly or
difficult to
segregate ascertain, or identify from those of any other
person.
|
The
trust
is hereby authorized to engage in the foregoing activities. The
Trustee shall not cause the trust to engage in any activity other than
in
connection with the foregoing or other than as required or authorized by
the
terms of this Agreement while any Certificate is outstanding, and this
Section
2.09 may not be amended, without the consent of the Certificateholders
evidencing 51% or more of the aggregate Voting Rights of the outstanding
Certificates; provided that, for purposes of this provision, any Certificate
held by the Servicer or any affiliate of the Servicer shall not be considered
outstanding and, therefore, the Servicer and its affiliates shall not be
entitled to vote on matters hereunder and the Voting Rights related to
any such
Certificates held by the Servicer or its affiliates shall not be included
in the
determination of the aggregate Voting Rights of outstanding
Certificates.
Section
2.10. 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 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. This provision constitutes a fixed price contract within the
meaning of Section 860G(a)(3) of the Code. On or before each
Subsequent Transfer Date, the Seller shall deliver to, and deposit with
the
Trustee or the Custodian on behalf of the 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 Trustee or the Custodian on behalf
of
the Trustee the Subsequent Mortgage Loans and the other property and rights
related thereto
67
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 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 Trustee, the Trust Administrator, the Master Servicer and
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 Trustee, the Depositor, the Trust
Administrator, the Master Servicer and the Servicer a duly executed Subsequent
Transfer Agreement in substantially the form of Exhibit D;
(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
Depositor shall have provided the 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;
(viii) 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;
(ix) The
conditions specified in Exhibit J hereto shall be met;
(x) On
the last Subsequent Transfer Date, the 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
68
(xi) The
Issuer shall have provided the 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.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
3.01. Servicer to
Service Mortgage
Loans.
(a) For
and on behalf of the Certificateholders, the Servicer shall service and
administer the Mortgage Loans in accordance with the terms of this Agreement
and
the respective Mortgage Loans, to the extent consistent with such terms
and in
accordance with Accepted Servicing Practices but without regard to:
(i) any
relationship that the Servicer, any Subservicer or any Affiliate of the
Servicer
or any Subservicer may have with the related Mortgagor;
(i) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(ii) the
Servicer’s obligation to make P&I Advances or Servicing Advances;
or
(iii) the
Servicer’s or any Subservicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer shall [service the Mortgage
Loans in a manner that provides for] the timely and complete recovery of
principal and interest on the related Mortgage Notes. Subject only to
the above-described servicing standards and the terms of this Agreement
and of
the respective Mortgage Loans, the Servicer shall have full power and authority,
acting alone or through Subservicers as provided in Section 3.02, to do or
cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without
limiting the generality of the foregoing, the Servicer in its own name
or in the
name of a Subservicer is hereby authorized and empowered by the Trustee
when the
Servicer believes it appropriate in its best judgment in accordance with
the
Accepted Servicing Practices, to execute and deliver any and all instruments
of
satisfaction or cancellation, or of partial or full release or discharge,
and
all other comparable instruments, with
69
respect
to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to
such
properties, on behalf of the Trustee. The Servicer shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide to the Mortgagors any reports required to be provided
to
them thereby. The Servicer shall also comply in the performance of
this Agreement with all reasonable rules and requirements of each insurer
under
any standard hazard insurance policy. Subject to Section 3.16,
the Trustee shall execute, at the written request of the Servicer, and
furnish
to the Servicer and any Subservicer such documents as are necessary or
appropriate to enable the Servicer or any Subservicer to carry out their
servicing and administrative duties hereunder, and the Trustee hereby grants
to
the Servicer, and this Agreement shall constitute, a power of attorney
to carry
out such duties including a power of attorney to take title to Mortgaged
Properties after foreclosure on behalf of the Trustee. The Trustee
shall execute any power of attorney, in the form annexed hereto as Exhibit L,
furnished to it by the Servicer in favor of the Servicer for the purposes
described herein to the extent necessary or desirable to enable the Servicer
to
perform its duties hereunder. The Trustee shall not be liable for the
actions of the Servicer or any Subservicers under such powers of attorney,
or
any actions taken by the Servicer or any Subservicer pursuant to the powers
granted to them under this paragraph.
(b) Subject
to Section 3.09(b), in accordance with Accepted Servicing Practices, the
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the timely payment of taxes and assessments on the
Mortgaged Properties, which advances shall be Servicing Advances reimbursable
in
the first instance from related collections from the Mortgagors pursuant
to
Section 3.09(b), and further as provided in
Section 3.11. Any cost incurred by the Servicer or by
Subservicers in effecting the timely payment of taxes and assessments on
a
Mortgaged Property shall not be added to the unpaid principal balance of
the
related Mortgage Loan, notwithstanding that the terms of such Mortgage
Loan so
permit.
(c) [Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any
future
advances with respect to a Mortgage Loan (except as provided in
Section 4.01) and the Servicer shall not (i) permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest
Rate,
reduce or increase the principal balance (except for reductions resulting
from
actual payments of principal) or change the final maturity date on such
Mortgage
Loan (except for (A) a reduction of interest payments resulting from the
application of the Servicemembers Civil Relief Act, as amended, or any
similar
state statutes or (B) as provided in Section 3.07, if the Mortgagor is
in default with respect to the Mortgage Loan or such default is, in the
judgment
of the Servicer, reasonably foreseeable) or (ii) permit any modification,
waiver or amendment of any term of any Mortgage Loan that would both
(A) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or final, temporary or proposed Treasury
regulations promulgated thereunder) and (B) cause any Trust REMIC to fail
to qualify as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contributions after the start-up day” under the REMIC
Provisions, or (iii) except as provided in Section 3.07(a),
waive any Prepayment Premiums.]
70
(d) The
Servicer may delegate its responsibilities under this Agreement; provided, however,
that no such
delegation shall release the Servicer from the responsibilities or liabilities
arising under this Agreement.
(e) In
the event of any change in the outstanding rating by Xxxxx’x of the Servicer as
a servicer of residential Mortgage Loans, the Servicer shall provide written
notice of such change to the Master Servicer within five (5) Business Days
of
such change.
(f) If,
on any date of determination, the Servicer fails the Servicer Enhanced
Review
Test, the Servicer shall promptly submit a completed form in the form of
Exhibit
Q to the Master Servicer with respect to any Realized Losses, together
with any
supporting documentation reasonably requested by the Master Servicer, and
shall
continue to submit completed forms in the form of Exhibit Q, and
related supporting documentation as requested by the Master Servicer, in
connection with any subsequent Realized Losses.
(a) The
Servicer may enter into one or more subservicing agreements with one or
more
Subservicers for the servicing and administration of the Mortgage Loans
(“Subservicing
Agreements”).
(b) Each
Subservicer shall be (i) authorized to transact business in the state or
states in which the related Mortgaged Properties it is to service are situated,
if and to the extent required by applicable law to enable the Subservicer
to
perform its obligations hereunder and under the Subservicing Agreement
and
(ii) an institution approved as a mortgage loan originator by the Federal
Housing Administration or an institution that has deposit accounts insured
by
the FDIC. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and
provide for servicing of the Mortgage Loans consistent with the terms of
this
Agreement. The Servicer will examine each Subservicing Agreement and
will be familiar with the terms thereof. The terms of any
Subservicing Agreement will not be inconsistent with any of the provisions
of
this Agreement. The Servicer and the Subservicers may enter into and
make amendments to the Subservicing Agreements or enter into different
forms of
Subservicing Agreements; provided, however,
that any
such amendments or different forms shall be consistent with and not violate
the
provisions of this Agreement, and that no such amendment or different form
shall
be made or entered into which could be reasonably expected to be materially
adverse to the interests of the Trustee, without the consent of the
Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08
relating to insurance or priority requirements of Subservicing Accounts,
or
credits and charges to the Subservicing Accounts or the timing and amount
of
remittances by the Subservicers to the Servicer, are conclusively deemed
to be
inconsistent with this Agreement and therefore prohibited. The
Servicer shall deliver to the Trustee, the Master Servicer, the Trust
Administrator and the Depositor copies of all Subservicing Agreements,
and any
amendments or modifications thereof, promptly upon the Servicer’s execution and
delivery of such instruments.
Any
Subservicing Agreement and any other transactions or services relating
to the
Mortgage Loans involving a Subservicer shall be deemed to be between the
Subservicer and the
71
Servicer
alone, and the Depositor, the Master Servicer, the Trust Administrator
and the
Trustee shall have no obligations, duties or liabilities with respect to
a
Subservicer including no obligation, duty or liability of the Depositor,
the
Master Servicer, the Trust Administrator or Trustee, to pay a Subservicer’s fees
and expenses.
For
purposes of this Agreement, the Servicer shall be deemed to have received
any
collections, recoveries or payments with respect to the related Mortgage
Loans
that are received by a related Subservicer regardless of whether such payments
are remitted by the Subservicer to the Servicer.
(c) As
part of its servicing activities hereunder, the Servicer (except as otherwise
provided in the last sentence of this paragraph), for the benefit of the
Trustee, shall enforce the obligations of each Subservicer under the related
Subservicing Agreement to which the Servicer is a party, including, without
limitation, any obligation to make advances in respect of delinquent payments
as
required by a Subservicing Agreement. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Subservicing
Agreements, and the pursuit of other appropriate remedies, shall be in
such form
and carried out to such an extent and at such time as the Servicer, in
its good
faith business judgment, would require were it the owner of the related
Mortgage
Loans. The Servicer shall pay the costs of such enforcement at its
own expense, and shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement, to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Mortgage Loans
or
(ii) from a specific recovery of costs, expenses or attorneys’ fees against
the party against whom such enforcement is directed.
The
Servicer shall pay all fees, expenses or penalties necessary in order to
terminate the rights and responsibilities of its Subservicer from the Servicer’s
own funds without any right of reimbursement from the Depositor, the Trustee,
the Master Servicer, the Trust Administrator, the Collection
Account.
Section
3.03. Successor
Subservicers.
The
Servicer shall be entitled to terminate any Subservicing Agreement to which
the
Servicer is a party and the rights and obligations of any Subservicer pursuant
to any Subservicing Agreement in accordance with the terms and conditions
of
such Subservicing Agreement. In the event of termination of any
Subservicer, all servicing obligations of such Subservicer shall be assumed
simultaneously by the Servicer party to the related Subservicing Agreement
without any act or deed on the part of such Subservicer or the Servicer,
and the
Servicer either shall service directly the related Mortgage Loans or shall
enter
into a Subservicing Agreement with a successor Subservicer which qualifies
under
Section 3.02.
Any
Subservicing Agreement shall include the provision that such agreement
may be
immediately terminated by the Master Servicer, the Trustee or the Trust
Administrator without fee, in accordance with the terms of this Agreement,
in
the event that the Servicer (or the Master Servicer, the Trust Administrator
or
the Trustee, if then acting as Servicer) shall, for any reason, no longer
be the
Servicer (including termination due to a Servicer Event of
Default).
72
Section
3.04. Liability of
the
Servicer.
Notwithstanding
any Subservicing Agreement, any of the provisions of this Agreement relating
to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall
remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of
Section 3.01 without diminution of such obligation or liability by virtue
of such Subservicing Agreements or arrangements or by virtue of indemnification
from the Subservicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering such
Mortgage Loans. The Servicer shall be entitled to enter into any
agreement with a Subservicer for indemnification of the Servicer by such
Subservicer and nothing contained in this Agreement shall be deemed to
limit or
modify such indemnification.
Section
3.05. No Contractual
Relationship
between Subservicers and the Trustee, Master Servicer, Trust Administrator
or
Certificateholder.
Any
Subservicing Agreement that may be entered into and any transactions or
services
relating to the Mortgage Loans involving a Subservicer in its capacity
as such
shall be deemed to be between the Subservicer and the Servicer alone, and
the
Trustee, the Master Servicer, the Trust Administrator and the
Certificateholder (or any successor to the Servicer) shall not be deemed
a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Subservicer except as set forth in Section 3.06. The
Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer’s compensation pursuant to this Agreement
is sufficient to pay such fees.
Section
3.06. Assumption or
Termination of
Subservicing Agreements by Master Servicer, Trustee or Trust
Administrator.
In
the
event the Servicer at any time shall for any reason no longer be the Servicer
(including by reason of the occurrence of a Servicer Event of Default),
the
Master Servicer or any other successor to Servicer pursuant to this Agreement,
shall thereupon assume all of the rights and obligations of the Servicer
under
each Subservicing Agreement that the Servicer may have entered into, with
copies
thereof provided to the Master Servicer prior to the Master Servicer assuming
such rights and obligations, unless the Master Servicer elects to terminate
any
Subservicing Agreement in accordance with its terms as provided in Section 3.03.
Upon
such
assumption, the Master Servicer, its designee or the successor servicer
shall be
deemed, subject to Section 3.03, to
have assumed all of the Servicer’s interest therein and to have replaced the
Servicer as a party to each Subservicing Agreement to the same extent as
if each
Subservicing Agreement had been assigned to the assuming party, except
that
(i) the Servicer shall not thereby be relieved of any liability or
obligations under any Subservicing Agreement that arose before it ceased
to be
the Servicer and (ii) none of the Trustee, the Trust Administrator, the
Master Servicer, their designees or any successor to the Servicer shall
be
deemed to have assumed any liability or obligation of the Servicer that
arose
before it ceased to be the Servicer.
73
The
Servicer at its expense shall, upon request of the Master Servicer, the
Trust
Administrator or the Trustee, deliver to the assuming party all documents
and
records relating to each Subservicing Agreement and the Mortgage Loans
then
being serviced by it and an accounting of amounts collected and held by
or on
behalf of it, and otherwise use its best efforts to effect the orderly
and
efficient transfer of the Subservicing Agreements to the assuming
party.
Section
3.07. Collection of
Certain
Mortgage Loan Payments.
(a) The
Servicer shall make reasonable efforts to collect all payments called for
under
the terms and provisions of the Mortgage Loans and shall, to the extent
such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable Insurance Policies, follow such collection procedures
as it
would follow with respect to mortgage loans comparable to the Mortgage
Loans and
held for its own account. Consistent with the foregoing and Accepted
Servicing Practices, the Servicer may (i) waive any late payment charge or,
if applicable, any penalty interest, or (ii) extend the due dates for the
Scheduled Payments due on a Mortgage Note for a period of not greater than
180 days; provided, that
any
extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder,
except
as provided below. In the event of any such arrangement pursuant to
clause (ii) above, the Servicer shall make timely advances on such Mortgage
Loan during such extension pursuant to Section 4.01 and
in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to Section 4.01(d)
pursuant to which the Servicer shall not be required to make any such advances
that are Nonrecoverable P&I Advances; provided, however, that the no
modification, waiver or amendment with respect to a Mortgage Loan shall
be
permitted if the aggregate number of outstanding Mortgage Loans which have
been
modified, waived or amended exceeds 5% of the number of Mortgage Loans
as of the
Cut-off Date. Notwithstanding the foregoing, in the event that any Mortgage
Loan
is in default or is a 60+ Day Delinquent Mortgage Loan and in the Servicer’s
opinion it is reasonably foreseeable that such Mortgage Loan will default,
the
Servicer, consistent with the standards set forth in Section 3.01, may
also waive, modify or vary any term of such Mortgage Loan (including
modifications that would change the Mortgage Interest Rate, forgive the
payment
of principal or interest, extend the final maturity date of such Mortgage
Loan
or waive, in whole or in part, a Prepayment Premium), accept payment from
the
related Mortgagor of an amount less than the Stated Principal Balance in
final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal
or
interest, postponements, or indulgences collectively referred to herein
as
“forbearance”);
provided, however, that the Servicer’s approval of a modification of a Due Date
shall not be considered a modification for purposes of this sentence; provided, further,
that the
final maturity date of any Mortgage Loan may not be extended beyond the
Final
Scheduled Distribution Date for the Certificates. The Servicer’s
analysis supporting any forbearance and the conclusion that any forbearance
meets the standards of Section 3.01 shall
be
reflected in writing in the applicable Servicing File. In addition,
notwithstanding the foregoing, the Servicer may also waive, in whole or
in part,
a Prepayment Premium if such Prepayment Premium is (i) not permitted to be
collected by applicable law or the collection thereof would be considered
“predatory” pursuant to written guidance published by any applicable federal,
state or local regulatory authority having jurisdiction over such matters,
or
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(ii) the
enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership or other similar laws relating to creditor’s rights or
(2) due to acceleration in connection with a foreclosure or other
involuntary payment.
(b) The
Servicer shall give notice to the Trustee, the Trust Administrator, the
Master
Servicer, each Rating Agency and the Depositor of any proposed change of
the
location of the Collection Account within a reasonable period of time prior
to
any change thereof.
Section
3.08. Subservicing
Accounts.
In
those
cases where a Subservicer is servicing a Mortgage Loan pursuant to a
Subservicing Agreement, the Subservicer will be required to establish and
maintain one or more accounts (collectively, the “Subservicing
Account”). The Subservicing Account shall be an Eligible
Account and shall otherwise be acceptable to the Servicer. The
Subservicer shall deposit in the clearing account (which account must be
an
Eligible Account) in which it customarily deposits payments and collections
on
mortgage loans in connection with its mortgage loan servicing activities
on a
daily basis, and in no event more than one Business Day after the Subservicer’s
receipt thereof, all proceeds of Mortgage Loans received by the Subservicer
less
its servicing compensation to the extent permitted by the Subservicing
Agreement, and shall thereafter deposit such amounts in the Subservicing
Account, in no event more than two Business Days after the deposit of such
funds
into the clearing account. The Subservicer shall thereafter deposit
such proceeds in the Collection Account of the Servicer or remit such proceeds
to the Servicer for deposit in the Collection Account of the Servicer not
later
than two Business Days after the deposit of such amounts in the Subservicing
Account. For purposes of this Agreement, the Servicer shall be deemed
to have received payments on the Mortgage Loans when the Subservicer receives
such payments.
(a) The
Servicer shall ensure that each of the related Mortgage Loans shall be
covered
by a paid-in-full, life-of-the-loan tax service contract in effect with
respect
to each related Mortgage Loan (each, a “Tax Service
Contract”). Each Tax Service Contract shall be assigned to the
Trustee, or its designee, at the Servicer’s expense in the event that the
Servicer is terminated as Servicer of the related Mortgage Loan.
(b) To
the extent that the services described in this paragraph (b) are not
otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) hereof, the Servicer undertakes to perform such
functions. To the extent the related Mortgage Loan provides for
Escrow Payments, the Servicer shall establish and maintain, or cause to
be
established and maintained, one or more accounts (the “Escrow Accounts”),
which shall be Eligible Accounts. The Servicer shall deposit in the
clearing account (which account must be an Eligible Account) in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no
event
more than one Business Day after the Servicer’s receipt thereof, all collections
from the Mortgagors (or related advances from Subservicers) for the payment
of
taxes, assessments, hazard insurance premiums and comparable items for
the
account of the Mortgagors (“Escrow Payments”)
collected on account
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of
the
Mortgage Loans and shall thereafter deposit such Escrow Payments in the
Escrow
Accounts, in no event more than two Business Days after the deposit of
such
funds in the clearing account, for the purpose of effecting the payment
of any
such items as required under the terms of this Agreement. Withdrawals
of amounts from an Escrow Account may be made only to (i) effect payment of
taxes, assessments, hazard insurance premiums, and comparable items;
(ii) reimburse the Servicer (or a Subservicer to the extent provided in the
related Subservicing Agreement) out of related collections for any advances
made
pursuant to Section 3.01 (with respect to taxes and assessments) and
Section 3.13 (with respect to hazard insurance); (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) apply to the
restoration or repair of the Mortgaged Property in accordance with the
Section
3.13; (v) transfer to the Collection Account and application to reduce the
principal balance of the Mortgage Loan in accordance with the terms of
the
related Mortgage and Mortgage Note; (vi) pay interest to the Servicer and,
if required and as described below, to Mortgagors on balances in the Escrow
Account; (vii) clear and terminate the Escrow Account at the termination of
the Servicer’s obligations and responsibilities in respect of the related
Mortgage Loans under this Agreement; or (viii) recover amounts deposited in
error. As part of its servicing duties, the Servicer or Subservicers
shall pay to the Mortgagors interest on funds in Escrow Accounts, to the
extent
required by law and, to the extent that interest earned on funds in the
Escrow
Accounts is insufficient, to pay such interest from its or their own funds,
without any reimbursement therefor. To the extent that a Mortgage
does not provide for Escrow Payments, the Servicer shall use commercially
reasonable efforts consistent with Accepted Servicing Practices to determine
whether any such payments are made by the Mortgagor in a manner and at
a time
that avoids the loss of the Mortgaged Property due to a tax sale or the
foreclosure as a result of a tax lien. The Servicer assumes full
responsibility for the payment of all such bills within such time and shall
effect payments of all such bills irrespective of the Mortgagor’s faithful
performance in the payment of same or the making of the Escrow Payments
and
shall make advances from its own funds to effect such payments; provided, however,
that such
advances are deemed to be Servicing Advances.
Section
3.10. Collection
Account.
(a) On
behalf of the Trustee, the Servicer shall establish and maintain, or cause
to be
established and maintained, one or more segregated Eligible Accounts (such
account or accounts, the “Collection Account”),
held in trust for the benefit of the Trustee. On behalf of the
Trustee, the Servicer shall deposit or cause to be deposited in the clearing
account (which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with
its
mortgage loan servicing activities on a daily basis, and in no event more
than
one Business Day after the Servicer’s receipt thereof, and shall thereafter
deposit in the Collection Account, in no event more than two Business Days
after
the deposit of such funds into the clearing account, as and when received
or as
otherwise required hereunder, the following payments and collections received
or
made by it subsequent to the Cut-off Date (other than in respect of principal
or
interest on the related Mortgage Loans due on or before the Cut-off Date),
or
payments (other than Principal Prepayments) received by it on or prior
to the
related Cut-off Date but allocable to a Due Period subsequent
thereto:
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(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest (net of the Servicing Fee) on each Mortgage
Loan;
(iii) all
Insurance Proceeds and Condemnation Proceeds (to the extent such Insurance
Proceeds and Condemnation Proceeds are not to be applied to the restoration
of
the related Mortgaged Property or released to the related Mortgagor in
accordance with the express requirements of law or in accordance with prudent
and customary servicing practices) and all Liquidation Proceeds;
(iv) any
amounts required to be deposited pursuant to Section 3.12 in
connection with any losses realized on Permitted Investments with respect
to
funds held in the Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.13(a)
in respect of any blanket policy deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
this
Agreement;
(vii) all
Substitution Shortfall Amounts; and
(viii) all
Prepayment Premiums collected by the Servicer.
The
foregoing requirements for deposit in the Collection Account shall be exclusive,
it being understood and agreed that, without limiting the generality of
the
foregoing, payments in the nature of late payment charges, NSF fees,
reconveyance fees, assumption fees and other similar fees and charges need
not
be deposited by the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. In the event the Servicer shall deposit in the Collection
Account any amount not required to be deposited therein, it may at any
time
withdraw such amount from the Collection Account, any provision herein
to the
contrary notwithstanding.
(b) Funds
in the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. The
Servicer shall give notice to the Trust Administrator, the Master Servicer
and
the Depositor of the location of the Collection Account maintained by it
when
established and prior to any change thereof.
(a) The
Servicer and the Trust Administrator, respectively, shall, from time to
time,
make withdrawals from the Collection Account or the Certificate Account,
as
applicable, for any of the following purposes or as described in Section 4.01:
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(i) on
or prior to the Remittance Date, to remit to the Trust Administrator for
deposit
into the Certificate Account all Available Funds in respect of the related
Distribution Date together with all amounts representing Prepayment Premiums
from the Mortgage Loans received during the related Prepayment
Period;
(ii) to
reimburse the Servicer for P&I Advances, but only to the extent of amounts
received which represent Late Collections (net of the related Servicing
Fees) of
Scheduled Payments on Mortgage Loans with respect to which such P&I Advances
were made in accordance with the provisions of Section 4.01;
(iii) to
pay the Servicer or any Subservicer (A) any unpaid Servicing Fees or
(B) any unreimbursed Servicing Advances with respect to each Mortgage Loan,
but only to the extent of any Late Collections, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds or other amounts as may be collected
by the Servicer from a Mortgagor, or otherwise received with respect to
such
Mortgage Loan (or the related REO Property);
(iv) to
pay to the Servicer as servicing compensation (in addition to the Servicing
Fee)
on the Remittance Date any interest or investment income earned on funds
deposited in the Collection Account;
(v) to
pay to the Originator, with respect to each Mortgage Loan that has previously
been repurchased or replaced pursuant to this Agreement all amounts received
thereon subsequent to the date of purchase or substitution, as the case
may
be;
(vi) to
reimburse the Servicer for (A) any P&I Advance or Servicing Advance
previously made which the Servicer has determined to be a Nonrecoverable
P&I
Advance or Nonrecoverable Servicing Advance in accordance with the provisions
of
Section 4.01 and (B) any unpaid Servicing Fees to the extent not
recoverable from Liquidation Proceeds, Insurance Proceeds or other amounts
received with respect to the related Mortgage Loan under Section
3.11(a)(iii);
(vii) to
pay, or to reimburse the Servicer for advances in respect of, expenses
incurred
in connection with any Mortgage Loan pursuant to Section 3.15;
(viii) to
pay to the Master Servicer the Master Servicing Fee;
(ix) [reserved];
(x) to
reimburse the Servicer, the Depositor, the Master Servicer, the Trust
Administrator, the Trustee or the Custodian for expenses incurred by or
reimbursable to the Servicer, the Depositor, the Trustee, the Master Servicer,
the Trust Administrator or the Custodian, as the case may be, pursuant
to this
Agreement;
(xi) to
reimburse the Servicer, the Master Servicer, the Trust Administrator or
the
Trustee, as the case may be, for expenses reasonably incurred in respect
of the
breach or defect giving rise to the repurchase obligation under Section 2.03 of
this Agreement
78
that
were
included in the Repurchase Price of the Mortgage Loan, including any expenses
arising out of the enforcement of the repurchase obligation, to the extent
not
otherwise paid pursuant to the terms hereof;
(xii) [reserved];
(xiii) to
withdraw any amounts deposited in the Collection Account in error;
and
(xiv) to
clear and terminate the Collection Account upon termination of this
Agreement.
To
the
extent that the Servicer does not timely make the remittance referred to
in
clause (i) above, the Servicer shall pay the Trust Administrator for the
account
of the Trust Administrator interest on any amount not timely remitted at
the
prime rate, from and including the applicable Remittance Date to but excluding
the date such remittance is actually made.
(b) The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan
by
Mortgage Loan basis, for the purpose of justifying any withdrawal from
the
Collection Account, to the extent held by or on behalf of it, pursuant
to
subclauses (a)(ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix)
above. The Servicer shall provide written notification to the
Depositor on or prior to the next succeeding Remittance Date, upon making
any
withdrawals from the Collection Account pursuant to subclause (a)(vi)
above.
Section
3.12. Investment of
Funds in the
Collection Account, the Pre-Funding Account and the Certificate
Account.
(a) The
Servicer may invest the funds in the Collection Account and the Trust
Administrator may invest funds in the Pre-Funding Account and the Certificate
Account (for purposes of this Section 3.12, each such Account is referred
to as an “Investment
Account”), in one or more Permitted Investments bearing interest or sold
at a discount, and maturing, unless payable on demand, no later than the
Business Day on which such funds are required to be withdrawn from such
account
pursuant to this Agreement (or, in the case of investments not managed
or
advised by the Trust Administrator or an affiliate thereof, the Business
Day
prior to such date). All such Permitted Investments shall be held to
maturity, unless payable on demand. Any investment of funds in an
Investment Account shall be made in the name of the Trust
Administrator. The Trust Administrator shall be entitled to sole
possession (except with respect to investment direction of funds held in
the
Collection Account and any income and gain realized thereon) over each
such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Trust Administrator or its
agent,
together with any document of transfer necessary to transfer title to such
investment to the Trust Administrator. In the event amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Trust Administrator may:
|
(x)
|
consistent
with any notice required to be given thereunder, demand that
payment
thereon be made on the last day such Permitted Investment may
otherwise
mature hereunder in an amount equal to the lesser of
(1) all
|
79
amounts
then payable thereunder and (2) the amount required to be withdrawn on such
date; and
|
(y)
|
demand
payment of all amounts due thereunder to the extent that such
Permitted
Investment would not constitute a Permitted Investment in respect
of funds
thereafter on deposit in the Investment
Account.
|
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account and Escrow Account held by or on behalf of the Servicer,
shall be for the benefit of the Servicer and shall be subject to its withdrawal
in the manner set forth in Section 3.11. Any other benefit
derived from the Collection Account and Escrow Account associated with
the
receipt, disbursement and accumulation of principal, interest, taxes, hazard
insurance, mortgage blanket insurance, and like sources, shall accrue to
the
benefit of the Servicer, except that the Servicer shall not realize any
economic
benefit from any forced charging of services. All income and gain
realized from the investment of funds deposited in the Pre-Funding Account
shall
be for the benefit of the Seller and shall be paid to the Seller in accordance
with the provisions of Section ___ hereof. The Servicer and the
Seller shall deposit in the Collection Account, the Escrow Account and
the
Pre-Funding Account, respectively, the amount of any loss of principal
incurred
in respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All
income and gain realized from the investment of funds deposited in the
Certificate Account held by the Trust Administrator, shall be for the benefit
of
the Trust Administrator. The Trust Administrator shall
deposit in the Certificate Account the amount of any loss of principal
incurred
in respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(d) Except
as otherwise expressly provided in this Agreement, if any default occurs
in the
making of a payment due under any Permitted Investment, or if a default
occurs
in any other performance required under any Permitted Investment, the Trustee
shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(e) The
Trustee and the Trust Administrator or their respective Affiliates are
permitted
to receive additional compensation that could be deemed to be in their
respective economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian
with
respect to certain of the Permitted Investments, (ii) using Affiliates to
effect transactions in certain Permitted Investments and (iii) effecting
transactions in certain Permitted Investments.
(a) The
Servicer shall cause to be maintained for each Mortgage Loan fire insurance
with
extended coverage on the related Mortgaged Property in an amount which
is at
least equal to the least of (i) the current principal balance of such
Mortgage Loan, (ii) the amount necessary
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to
fully
compensate for any damage or loss to the improvements that are a part of
such
property on a replacement cost basis, (iii) the maximum insurable value of
the improvements which are a part of such Mortgaged Property, and (iv) the
amount determined by applicable federal or state law, in each case in an
amount
not less than such amount as is necessary to avoid the application of any
coinsurance clause contained in the related hazard insurance
policy. The Servicer shall also cause to be maintained fire insurance
with extended coverage on each REO Property in an amount which is at least
equal
to the lesser of (i) the maximum insurable value of the improvements which
are a part of such property and (ii) the outstanding principal balance of
the related Mortgage Loan at the time it became an REO Property, plus
accrued interest at the Mortgage Interest Rate and related Servicing
Advances. The Servicer will comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under
any
such hazard policies. Any amounts to be collected by any Servicer
under any such policies (other than amounts to be applied to the restoration
or
repair of the property subject to the related Mortgage or amounts to be
released
to the Mortgagor in accordance with the procedures that the Servicer would
follow in servicing loans held for its own account, subject to the terms
and
conditions of the related Mortgage and Mortgage Note) shall be deposited
in the
Collection Account, subject to withdrawal pursuant to
Section 3.11. If the Mortgagor fails to provide
Mortgage Loan hazard insurance coverage after thirty (30) days of Servicer’s
written notification, the Servicer shall put in place such hazard insurance
coverage on the Mortgagor’s behalf. Any out-of-pocket expense or
advance made by the Servicer on such force placed hazard insurance coverage
shall be deemed a Servicing Advance. Any cost incurred by any
Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Trust Administrator, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the
terms
of such Mortgage Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at
any time
be in force and as shall require such additional insurance. If the
Mortgaged Property or REO Property is at any time in an area identified in
the Federal Register by the Federal Emergency Management Agency as having
special flood hazards and flood insurance has been made available, the
Servicer
will cause to be maintained a flood insurance policy in respect
thereof. Such flood insurance shall be in an amount 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
principal balance of the related Mortgage Loan 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 the
Federal Emergency Management Agency Guides 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 to obtain such flood insurance coverage, and if said Mortgagor
fails
to obtain the required flood insurance coverage within forty-five (45)
days
after such notification, the Servicer shall immediately force place the
required
flood insurance on the Mortgagor’s behalf. Any out-of-pocket expense or advance
made by the Servicer on such force placed flood insurance coverage shall
be
deemed a Servicing Advance.
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In
the
event that any Servicer shall obtain and maintain a blanket policy with
an
insurer having a General Policy Rating of “B” or better in Best’s (or such other
rating that is comparable to such rating) insuring against hazard losses
on all
of the Mortgage Loans, it shall conclusively be deemed to have satisfied
its
obligations as set forth in the first two sentences of this Section 3.13,
it being understood and agreed that such policy may contain a deductible
clause,
in which case the Servicer shall, in the event that there shall not have
been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section 3.13, and there shall have
been one or more losses which would have been covered by such policy, deposit
to
the Collection Account from its own funds the amount not otherwise payable
under
the blanket policy because of such deductible clause. In connection
with its activities as administrator and servicer of the Mortgage Loans,
the
Servicer agrees to prepare and present, on behalf of itself, the Trustee
claims
under any such blanket policy in a timely fashion in accordance with the
terms
of such policy.
(b) The
Servicer shall keep in force during the term of this Agreement a policy
or
policies of insurance covering errors and omissions for failure in the
performance of the Servicer’s obligations under this Agreement. The
Servicer shall provide the Trustee, the Master Servicer or the Trust
Administrator upon request with copies of any such insurance policies and
fidelity bond. The Servicer shall be deemed to have complied with
this provision if an Affiliate of the Servicer has such errors and omissions
and
fidelity bond coverage and, by the terms of such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Servicer. Any
such errors and omissions policy and fidelity bond shall by its terms not
be
cancelable without thirty days’ prior written notice to the
Trustee. The Servicer shall also cause each Subservicer to maintain a
policy of insurance covering errors and omissions and a fidelity bond which
would meet such requirements.
Section
3.14. Enforcement
of Due-on-Sale
Clauses; Assumption Agreements.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that the Servicer
shall
not be required to take such action if, in its sole business judgment,
the
Servicer believes it is not in the best interests of the Trust Fund and
shall
not exercise any 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 or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which
such
person becomes liable under the Mortgage Note, and, to the extent permitted
by
applicable state law, the Mortgagor remains liable thereon. The
Servicer is also authorized to enter into a substitution of liability agreement
with such person, pursuant to which the original Mortgagor is released
from
liability and such person is substituted as the Mortgagor and becomes liable
under the Mortgage Note; provided, that no such substitution shall be effective
unless such person satisfies the underwriting criteria of the Servicer
and such
substitution is in the best interest of the Certificateholders as determined
by
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Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of
its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption
which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.14, the term
“assumption” is deemed to also include a sale (of the Mortgaged Property)
subject to the Mortgage that is not accompanied by an assumption or substitution
of liability agreement.
Section
3.15. Realization
upon Defaulted
Mortgage Loans.
The
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may
include
an acquisition of REO Property) the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. [The Servicer shall use
reasonable efforts to realize upon such defaulted Mortgage Loans as
expeditiously as possible and in such manner as will maximize the receipt
of
principal and interest by the Trust Fund, taking into account, among other
things, the timing of foreclosure proceedings.] The foregoing is
subject to the provisions that, in any case in which a Mortgaged Property
shall
have suffered damage from an uninsured cause, the Servicer shall not be
required
to expend its own funds toward the restoration of such property unless
it shall
determine in its sole discretion (i) that such restoration will increase
the net proceeds of liquidation of the related Mortgage Loan to the Trust
Fund,
after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by the Servicer through Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 3.11. The Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related property, as contemplated in
Section 3.11.
83
The
proceeds of any Liquidation Event or REO Disposition, as well as any recovery
resulting from a partial collection of Insurance Proceeds, Condemnation
Proceeds
or Liquidation Proceeds or any income from an REO Property, will be applied
in
the following order of priority: first, to reimburse the Servicer or
any Subservicer for any related unreimbursed Servicing Advances, pursuant
to
Section 3.11 or 3.17; second, to accrued and unpaid interest on the
Mortgage Loan or REO Imputed Interest, at the Mortgage Interest Rate, to
the date of the liquidation or REO Disposition, or to the Due Date prior to
the Remittance Date on which such amounts are to be distributed if not
in
connection with a Liquidation Event or REO Disposition; third, to reimburse
any
Servicer for any related xxxxxxxxxxxx X&X Advances, pursuant to
Section 3.11; and fourth, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less
than a full recovery thereof, that amount will be allocated as
follows: first, to unpaid Servicing Fees; and second, as interest at
the Mortgage Interest Rate (net of the Servicing Fee Rate). The
portion of the recovery so allocated to unpaid Servicing Fees shall be
reimbursed to the Servicer or any Subservicer pursuant to Section 3.11 or
3.17. The
portions of the recovery so allocated to interest at the Mortgage Interest
Rate
(net of the Servicing Fee Rate) and to principal of the Mortgage Loan shall
be
applied as follows: first, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances in accordance
with
Section 3.11 or
3.17,
and
second, to the Trust Administrator for distribution in accordance with
the
provisions of Section 4.02,
subject to the last paragraph of Section 3.17
with respect to certain excess recoveries from an REO Disposition.
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Servicer
has
received actual notice of, or has actual knowledge of the presence of,
hazardous
or toxic substances or wastes on the related Mortgaged Property, or if
the
Trustee otherwise requests, the Servicer shall cause an environmental inspection
or review of such Mortgaged Property to be conducted by a qualified
inspector. Upon completion of the inspection, the Servicer shall
promptly provide the Trustee, the Master Servicer and the Depositor with
a
written report of the environmental inspection.
After
reviewing the environmental inspection report, the Depositor shall
determine how the Servicer shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report
indicates that the Mortgaged Property is contaminated by hazardous or toxic
substances or wastes and (b) the Depositor directs the Servicer to proceed
with foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer
shall be reimbursed for all reasonable costs associated with such foreclosure
or
acceptance of a deed in lieu of foreclosure and any related environmental
clean-up costs, as applicable, from the related Liquidation Proceeds, or
if the
Liquidation Proceeds are insufficient to fully reimburse the Servicer,
the
Servicer shall be entitled to be reimbursed from amounts in the Collection
Account pursuant to Section 3.11. In the event the Depositor,
with the prior consent of the Trustee, directs the Servicer not to proceed
with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer
shall
be reimbursed from general collections for all Servicing Advances made
with
respect to the related Mortgaged Property from the Collection Account pursuant
to Section 3.11. Neither the Trustee nor the Master Servicer
shall be responsible for any direction given by the Depositor to the Servicer
pursuant to this paragraph.
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Section
3.16. Release of Mortgage
Files.
(a) Upon
the payment in full of any Mortgage Loan, or the receipt by the Servicer
of a
notification that payment in full shall be escrowed in a manner customary
for
such purposes, the Servicer will, within five (5) Business Days of the
payment
in full, notify the Custodian by a certification (which certification shall
include a statement to the effect that all amounts received or to be received
in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.10
have been or will be so deposited) of a Servicing Officer and shall request
delivery to it of the Custodial File by completing a Request for Release
(in the
form of Exhibit J or in
an electronic format acceptable to the Custodian). Upon receipt of
such
certification and Request for Release, the Custodian shall promptly release
the
related Custodial File to the Servicer within three (3) Business
Days. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From
time to time and as appropriate for the servicing or foreclosure of any
Mortgage
Loan, including, for this purpose, collection under any Insurance Policy
relating to the Mortgage Loans, the Custodian shall, upon request of the
Servicer and delivery to the Custodian of a Request for Release (in the
form of
Exhibit J
or in an electronic format acceptable to the Custodian), release the related
Custodial File to the Servicer, and the Trustee shall, at the direction
of the
Servicer, execute such documents provided to it as shall be necessary to
the
prosecution of any such proceedings and the Servicer shall retain the Mortgage
File in trust for the benefit of the Trustee. Such Request for
Release shall obligate the Servicer to return each and every document previously
requested from the Custodial File to the Custodian when the need therefor
by the
Servicer no longer exists, unless the Mortgage Loan has been liquidated
and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited
in the
Collection Account or the Mortgage File or such document has been delivered
to
an attorney, or to a public trustee or other public official as required
by law,
for purposes of initiating or pursuing legal action or other proceedings
for the
foreclosure of the Mortgaged Property either judicially or non-judicially,
and
the Servicer has delivered to the Custodian a certificate of a Servicing
Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose or purposes of such
delivery. Upon receipt of a certificate of a Servicing Officer
stating that such Mortgage Loan was liquidated and that all amounts received
or
to be received in connection with such liquidation that are required to
be
deposited into the Collection Account have been so deposited, or that such
Mortgage Loan has become an REO Property, a copy of the Request for Release
shall be released by the Custodian to the Servicer or its
designee. Upon receipt of a Request for Release under this
Section 3.16, the Custodian shall deliver the related Custodial File to the
Servicer by overnight courier (such delivery to be at the Servicer’s expense);
provided, however,
that in the
event the Servicer has not previously received copies of the relevant Mortgage
Loan Documents necessary to service the related Mortgage Loan in accordance
with
Accepted Servicing Practices, the Originator shall reimburse the Servicer
for
any overnight courier charges incurred for the requested Custodial
Files.
Upon
written certification of a Servicing Officer, the Trustee shall execute
and
deliver to any Servicer copies of any court pleadings, requests for trustee’s
sale or other documents
85
reasonably
necessary to the foreclosure or trustee’s sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against any
Mortgagor
on the Mortgage Note or Mortgage or to obtain a deficiency judgment, or
to
enforce any other remedies or rights provided by the Mortgage Note or Mortgage
or otherwise available at law or in equity, or shall exercise and deliver
to the
Servicer a power of attorney sufficient to authorize the Servicer to execute
such documents on its behalf. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and
a
statement as to the reason such documents or pleadings are required and
that the
execution and delivery thereof by the Trustee will not invalidate or otherwise
affect the lien of the Mortgage, except for the termination of such a lien
upon
completion of the foreclosure or trustee’s sale. Notwithstanding
anything to the contrary herein, the Trustee shall in no way be liable
or
responsible for the willful malfeasance of the Servicer, or for any wrongful
or
negligent actions taken by the Servicer, while the Servicer is acting pursuant
to the powers granted to it in this paragraph.
Section
3.17. Title, Conservation
and
Disposition of REO Property.
(a) This
Section shall apply only to REO Properties acquired for the account of
the
Trustee and shall not apply to any REO Property relating to a Mortgage
Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is
acquired, the Servicer shall cause the deed or certificate of sale to be
issued
in the name of the Trustee, on behalf of the Certificateholders, or the
Trustee’s nominee.
(b) The
Servicer shall manage, conserve, protect and operate each REO Property for
the 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
Trustee.
(c) [Reserved.]
(d) The
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own
funds and
general assets and shall deposit such funds in the Collection
Account.
(e) The
Servicer shall deposit net of reimbursement to the Servicer for any related
outstanding Servicing Advances and unpaid Servicing Fees provided in
Section 3.11, or cause to be deposited, on a daily basis in the Collection
Account all revenues received with respect to the related REO Property
and shall
withdraw therefrom funds necessary for the proper operation, management
and
maintenance of the REO Property.
86
(f) The
Servicer, upon an REO Disposition, shall be entitled to reimbursement for
any
related unreimbursed Servicing Advances as well as any unpaid Servicing
Fees
from proceeds received in connection with the REO Disposition, as further
provided in Section 3.11.
(g) Any
net proceeds from an REO Disposition which are in excess of the unpaid
principal
balance of the related Mortgage Loan plus all unpaid REO Imputed Interest
thereon through the date of the REO Disposition shall be retained by the
Servicer as additional servicing compensation.
(h) The
Servicer shall use Accepted Servicing Practices, to sell, or cause the
Subservicer to sell, any REO Property as soon as possible, but in no event
later
than the conclusion of the third calendar year beginning after the year
of its
acquisition by the REMIC unless (i) the Servicer applies for, and is
granted, an extension of such period from the Internal Revenue Service
pursuant
to the REMIC Provisions and Code Section 856(e)(3), in which event such
REO Property shall be sold within the applicable extension period, or
(ii) the Servicer obtains for the Depositor, the Trustee, the Trust
Administrator and the Servicer an Opinion of Counsel, addressed to the
Depositor, the Trustee, the Trust Administrator and the Servicer, to the
effect
that the holding by REMIC I of such REO Property subsequent to such period
will not result in the imposition of taxes on “prohibited transactions” as
defined in Section 860F of the Code or cause any Trust REMIC to fail to
qualify as a REMIC under the REMIC Provisions or comparable provisions
of
relevant state laws at any time. The Servicer shall manage, conserve,
protect and operate each REO Property for the Trustee solely for the purpose
of
its prompt disposition and sale in a manner which does not cause such REO
Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) or result in the receipt by any REMIC of any “income
from non-permitted assets” within the meaning of Section 860F(a)(2)(B) of
the Code or any “net income from foreclosure property” which is subject to
taxation under Section 860G(a)(1) of the Code. Pursuant to its
efforts to sell such REO Property, the Servicer shall either itself or
through
an agent selected by the Servicer protect and conserve such REO Property in
the same manner and to such extent as is customary in the locality where
such
REO Property is located and may, incident to its conservation and
protection of the interests of the Trustee on behalf of the Certificateholders,
rent the same, or any part thereof, as the Servicer deems to be in the
best
interest of the Trustee on behalf of the Certificateholders for the period
prior
to the sale of such REO Property; provided, however,
that any
rent received or accrued with respect to such REO Property qualifies as
“rents
from real property” as defined in Section 856(d) of the
Code. Neither the Trustee nor the Master Servicer has any obligation
with respect to REO Dispositions.
(i) The
Servicer shall perform the tax reporting required by section 6050J of the
Code
with respect to foreclosures and abandonments, the tax reporting required
by
section 6050H of the Code with respect to the receipt of mortgage interest
from
individuals and, if required by section 6050P of the Code with respect
to the
cancellation of indebtedness by certain financial entities, by preparing
any
required tax and information returns, in the form required.
87
Section
3.18. Notification
of
Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the Servicer shall adjust
the
Mortgage Interest Rate on the related 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
Interest
Rate and Scheduled Payment adjustments. The Servicer shall promptly,
upon written request therefor, deliver to the Trustee, the Trust Administrator
and 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 Trustee, the Trust Administrator or the Master Servicer
that the
Servicer has failed to adjust a Mortgage Interest Rate or Scheduled Payment
in
accordance with the terms of the related Mortgage Note, the Servicer shall
deposit in the Collection Account from its own funds the amount of any
interest
loss caused as such interest loss occurs.
The
Servicer shall provide, or cause the Subservicer to provide, to the Depositor,
the Trustee, the Trust Administrator, the Master Servicer, the OTS or the
FDIC
and the examiners and supervisory agents thereof, access to the documentation
regarding the Mortgage Loans in its possession required by applicable
regulations of the OTS. Such access shall be afforded without charge,
but only upon 15 days’ (or, if a Servicer Event of Default has occurred and is
continuing, 2 days’) prior written request and during normal business hours at
the offices of the Servicer or any Subservicer. Nothing in this
Section shall derogate from the obligation of any such party to observe
any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of any such party to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of
this Section.
Section
3.20. Documents, Records
and Funds
in Possession of the Servicer to Be Held for the Trustee.
The
Servicer shall account fully to the Trustee for any funds received by the
Servicer or which otherwise are collected by the Servicer as Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds in respect of any
Mortgage
Loan. All Mortgage Files and funds collected or held by, or under the
control of, the Servicer in respect of any Mortgage Loans, whether from
the
collection of principal and interest payments or from Liquidation Proceeds,
including, but not limited to, any funds on deposit in the Collection Account,
shall be held by the Servicer for and on behalf of the Trustee and shall
be and
remain the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement. The Servicer also agrees that it shall
not create, incur or subject any Mortgage File or any funds that are deposited
in the Collection Account, the Certificate Account or any Escrow Account,
or any
funds that otherwise are or may become due or payable to the Trustee for
the
benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by
legal
88
action
or
otherwise any claim or right of setoff against any Mortgage File or any
funds
collected on, or in connection with, a Mortgage Loan, except, however,
that the
Servicer shall be entitled to set off against and deduct from any such
funds any
amounts that are properly due and payable to the Servicer under this
Agreement.
Section
3.21. Servicing
Compensation.
(a) As
compensation for its activities hereunder, the Servicer shall, with respect
to
each Mortgage Loan, be entitled to retain from deposits to the Collection
Account and from Liquidation Proceeds, Insurance Proceeds, and Condemnation
Proceeds related to such Mortgage Loan, the Servicing Fee with respect
to each
Mortgage Loan (less any portion of such amounts retained by any
Subservicer). In addition, the Servicer shall be entitled to recover
unpaid Servicing Fees out of related late collections and as otherwise
permitted
in Section 3.11. Except as provided in Section 6.06, the right
to receive the Servicing Fee may not be transferred in whole or in part
except
in connection with the transfer of all of the Servicer’s responsibilities and
obligations under this Agreement; provided, however,
that the
Servicer may pay from the Servicing Fee any amounts due to a Subservicer
pursuant to a Subservicing Agreement entered into under
Section 3.02.
(b) Additional
servicing compensation in the form of assumption or modification fees,
late
payment charges, NSF fees, reconveyance fees and other similar fees and
charges
(other than Prepayment Premiums) shall be retained by the Servicer only
to the
extent such fees or charges are received by the Servicer. The
Servicer shall also be entitled pursuant to Sections 3.09(b)(vi) and
3.11(a)(iv) to withdraw from the Collection Account, as additional servicing
compensation, interest or other income earned on deposits therein.
(c) The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder (including payment of premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.13,
servicing compensation of any Subservicer to the extent not retained by
such
Subservicer and the fees and expenses of independent accountants and any
agents
appointed by the Servicer), and shall not be entitled to reimbursement
therefor
except as specifically provided in Section 3.11.
Section
3.22. Annual Statement
as to
Compliance.
The
Servicer, Master Servicer and the Trust Administrator shall deliver (or
otherwise make available) (and the Servicer, the Master Servicer and Trust
Administrator shall cause any Servicing Function Participant engaged by
it to
deliver) to the Depositor and the Trust Administrator on or before March
1 (with
a ten-calendar day cure period) of each year, commencing in March
20[ ], an Officer’s Certificate stating, as to the signer thereof,
that (a) a review of such party’s activities during the preceding calendar year
or portion thereof and of such party’s performance under this Agreement, or such
other applicable agreement in the case of a Servicing Function Participant,
has
been made under such officer’s supervision and (b) to the best of such officer’s
knowledge, based on such review, such party has fulfilled all its obligations
under this Agreement, or such other applicable agreement in the case of
a
Servicing Function Participant, in all material respects throughout such
year or
portion thereof, or, if there
89
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.
In
the
event the Servicer, Master Servicer, the Trust Administrator or any Servicing
Function Participant engaged by any such party is terminated or resigns
pursuant
to the terms of this Agreement, or any applicable agreement in the case
of a
Servicing Function Participant, as the case may be, such party shall provide
an
Officer’s Certificate pursuant to this Section 3.22 or to such applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation.
Section
3.23. Report on Assessment
of
Compliance and Attestation.
(a) By
March 1 (with a ten-calendar day cure period) of each year, commencing
in March
20[ ], the Servicer, Master Servicer, the Trust Administrator and the
Custodian, each at its own expense, shall furnish or otherwise make available,
and each such party shall cause any Servicing Function Participant engaged
by it
to furnish, each at its own expense, to the Trust Administrator and the
Depositor, a report on an assessment of compliance (an “Assessment of
Compliance”) with the Relevant Servicing Criteria that contains (i) a
statement by such party of its responsibility for assessing compliance
with the
Relevant Servicing Criteria, (ii) a statement that such party used the
Relevant
Servicing Criteria to assess compliance with the Relevant Servicing Criteria,
(iii) 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 4.07, 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 (iv) a statement that a
registered public accounting firm has issued an Attestation Report on such
party’s Assessment of Compliance with the Relevant Servicing Criteria as of and
for such period.
No
later
than the end of each fiscal year for the Trust for which a 10-K is required
to
be filed, the Master Servicer and the Custodian shall forward to the Trust
Administrator and the Depositor the name of each Servicing Function Participant
engaged by it and what Relevant Servicing Criteria will be addressed in
the
report on Assessment of Compliance prepared by such Servicing Function
Participant (provided, however, that the Master Servicer need not provide
such
information to the Trust Administrator so long as the Master Servicer and
the
Trust Administrator are the same Person). When the Master Servicer,
the Custodian and the Trust Administrator (or any Servicing Function Participant
engaged by them) submit their assessments to the Trust Administrator, such
parties will also at such time include the assessment and attestation pursuant
to Section 3.23(b) of each Servicing Function Participant engaged by
it.
Promptly
after receipt of each such report on Assessment of Compliance, (i) the
Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Trust Administrator and any Servicing Function Participant
engaged
by such parties as to the nature of any material instance of noncompliance
with
the Relevant Servicing Criteria by each such party, and (ii) 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
90
Criteria
for each party as set forth on Exhibit S and
on any
similar exhibit set forth in each Servicing Agreement in respect of each
Servicer and notify the Depositor of any exceptions.
The
Master Servicer shall include all annual reports on Assessment of Compliance
received by it from the Servicer with its own Assessment of Compliance
to be
submitted to the Trust Administrator pursuant to this Section.
In
the
event the Master Servicer, the Trust Administrator or any Servicing Function
Participant engaged by any such party is terminated, assigns its rights
and
obligations under, or resigns pursuant to, the terms of this Agreement,
or any
other applicable agreement, as the case may be, such party shall provide
a
report on Assessment of Compliance pursuant to this Section 3.23(a), or
to such
other applicable agreement, notwithstanding any such termination, assignment
or
resignation.
(b) By
March 1 (with a ten-calendar day cure period) of each year, commencing
in March
20[ ], the Servicer, the Master Servicer, the Trust Administrator and
the Custodian, each at its own expense, shall cause, and each such party
shall
cause any Servicing Function Participant engaged by it to cause, each at
its own
expense, a registered public accounting firm and that is a member of the
American Institute of Certified Public Accountants to furnish an attestation
report (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.
Promptly
after receipt of each such Assessment of Compliance and Attestation Report,
the
Trust Administrator shall confirm that each assessment submitted pursuant
to
Section 3.23(a) is coupled with an attestation meeting the requirements
of this
Section and notify the Depositor of any exceptions.
The
Master Servicer shall include each such attestation furnished to it by
the
Servicer with its own attestation to be submitted to the Trust Administrator
pursuant to this Section.
In
the
event the Master Servicer, the Trust Administrator, the Servicer, the Custodian
or any Servicing Function Participant engaged by any such party, is terminated,
assigns its rights and duties under, or resigns pursuant to the terms of,
this
Agreement, or any applicable Custodial Agreement, Servicing Agreement or
sub-servicing agreement, as the case may be, such party shall cause a registered
public accounting firm to provide an attestation pursuant to this Section
3.23(b), or such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
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Section
3.24. Master Servicer
to Act as
Servicer.
(a) In
the event that the Servicer shall for any reason no longer be the Servicer
hereunder (including by reason of a Servicer Event of Default), the Master
Servicer or its successor shall thereupon assume all of the rights and
obligations of the Servicer hereunder arising thereafter (except that the
Master
Servicer shall not be (i) liable for losses of such predecessor Servicer
pursuant to Section 3.10 or any acts or omissions of such predecessor
Servicer hereunder, (ii) obligated to make Advances if it is prohibited
from doing so by applicable law, (iii) obligated to effectuate repurchases
or substitutions of Mortgage Loans hereunder, including but not limited
to
repurchases or substitutions pursuant to Section 2.03,
(iv) responsible for expenses of the Servicer pursuant to Section 2.03
or (v) deemed to have made any representations and warranties of the
Servicer hereunder). Any such assumption shall be subject to
Section 7.02.
(b) If
the Servicer shall for any reason no longer be the Servicer (including
by reason
of any Servicer Event of Default), the Master Servicer (or any other successor
Servicer) may, at its option, succeed to any rights and obligations of
the
Servicer under any Subservicing Agreement in accordance with the terms
thereof;
provided, that
the Master Servicer (or any other successor Servicer) shall not incur any
liability or have any obligations in its capacity as successor Servicer
under a
Subservicing Agreement arising prior to the date of such succession unless
it
expressly elects to succeed to the rights and obligations of the Servicer
thereunder; and the Servicer shall not thereby be relieved of any liability
or
obligations under the Subservicing Agreement arising prior to the date
of such
succession.
(c) The
Servicer shall, upon request of the Master Servicer, but at the expense
of the
Servicer, deliver to the assuming party all documents and records relating
to
each Subservicing Agreement (if any) and the Mortgage Loans then being
serviced
thereunder and an accounting of amounts collected and held by it and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreement to the assuming party.
Section
3.25. Compensating
Interest.
The
Servicer shall remit to the Trust Administrator for deposit into the Certificate
Account on each Remittance Date an amount from its own funds equal to
Compensating Interest payable by the Servicer for such Remittance
Date.
Section
3.26. Credit Reporting;
Xxxxx-Xxxxx-Xxxxxx Act.
(a) With
respect to each Mortgage Loan, the Servicer shall fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on the related
Mortgagor credit files to three of the national credit repositories, on
a
monthly basis.
(b) The
Servicer shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999
and all
applicable regulations promulgated thereunder relating to the Mortgage
Loans and
the related borrowers, and shall provide all required notices
thereunder.
92
Section
3.27. Certificate
Account.
(a) The
Trust Administrator shall establish and maintain the Certificate Account
on
behalf of the Certificateholders. The Trust Administrator shall,
promptly on the Business Day received, deposit in the Certificate Account
and
retain therein the following:
(i) the
aggregate amount remitted by the Servicer to the Trust Administrator pursuant
to
Section 3.11;
(ii) any
amount deposited by the Servicer pursuant to Section 3.12(b) in connection
with any losses on Permitted Investments; and
(iii) any
other amounts deposited hereunder which are required to be deposited in
the
Certificate Account.
(b) In
the event that the Servicer shall remit any amount not required to be remitted,
the Servicer may at any time direct the Trust Administrator in writing
to
withdraw such amount from the Certificate Account, any provision herein
to the
contrary notwithstanding. Such direction may be accomplished by
delivering notice to the Trust Administrator which describes the amounts
deposited in error in the Certificate Account. All funds deposited in
the Certificate Account shall be held by the Trust Administrator in trust
for
the Certificateholders until disbursed in accordance with this Agreement
or
withdrawn in accordance with Section 4.02.
Section
3.28. 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 3.12(a). 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. For federal income tax purposes, the Seller
shall be the owner of the Pre-Funded Accounts and shall report all items
of
income, deduction, gain or loss arising therefrom.
(b) On
the Closing Date, the Seller will cause to be deposited $__________ in
the Pool
1 Subaccount, $___________ in the Pool 2 Subaccount and $_______________
in the
Pool 3 Subaccount, in each case from the sale of the Certificates.
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(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. This Agreement shall constitute a fixed price purchase
contract in accordance with Section 860G(a)(3)(A)(ii) of the Code.
(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 such date and deposit
such
amounts in the Collection Account.
(e) Withdrawals
pursuant to paragraph (a)(i), (c) and (d) of this Section 3.28 shall be
treated
as contributions of cash to REMIC 1 on the date of withdrawal. Each
of the Pre-Funding Accounts shall be an “outside reserve fund” within the
meaning of Treasury regulation § 1.860G-2(h).
(f) Unless
closed as provided in Section 3.28(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.
Section
3.29. [Reserved.]
Section
3.30. REMIC-Related
Covenants.
For
as
long as each Trust REMIC shall exist, the Servicer shall act in accordance
herewith to treat such Trust REMIC as a REMIC, and the Servicer shall comply
with any directions of the Trustee or the Trust Administrator and, for
the
avoidance of doubt, Section 11.02 hereof to assure such continuing
treatment.
ARTICLE
IIIA
ADMINISTRATION
AND MASTER SERVICING OF
THE
MORTGAGE LOANS BY THE MASTER SERVICER
Section
3A.01 Master
Servicer.
The
Master Servicer shall supervise, monitor and oversee the obligation of
the
Servicer to service and administer the Mortgage Loans in accordance with
the
terms of the Agreement and shall have full power and authority to do any
and all
things which it may deem necessary or desirable in connection with such
master
servicing and administration. In performing its obligations
hereunder, the Master Servicer shall act in a manner consistent with Accepted
Master Servicing Practices. Furthermore, the Master Servicer shall
oversee and consult with the Servicer as necessary from time-to-time to
carry
out the Master Servicer’s obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master
Servicer
by the Servicer and shall cause the Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by the
Servicer under this Agreement. The Master Servicer shall
independently and separately monitor the Servicer’s servicing activities with
respect to each related Mortgage Loan, reconcile the results of such
monitoring
94
with
such
information provided in the previous sentence on a monthly basis and coordinate
corrective adjustments to the Servicer’s and Master Servicer’s
records. The Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the Servicer to
the
Certificate Account pursuant to the terms hereof based on information provided
to the Master Servicer by the Trust Administrator pursuant to the third
paragraph of Section 8.01. Notwithstanding any provision of this
Agreement to the contrary, the Master Servicer shall have no duty or obligation
to confirm or verify the amounts reported by the Servicer as Realized Losses
with respect to any Determination Date unless the Servicer shall have failed
the
Servicer Enhanced Review Test for such Determination Date.
The
Trustee shall furnish the Master Servicer with any limited powers of attorney
and other documents in form acceptable to it that are necessary or appropriate
to enable the Master Servicer to perform its master servicing
obligations. The Trustee shall have no responsibility for any action
of the Master Servicer pursuant to any such limited power of attorney and
shall
be indemnified by the Master Servicer, as applicable, for any cost, liability
or
expense incurred by the Trustee in connection with the Master Servicer’s misuse
of any such power of attorney.
The
Master Servicer shall provide access to the records and documentation in
possession of the Master Servicer regarding the related Mortgage Loans
and REO
Property and the servicing thereof to the Certificateholders, the FDIC,
and the
supervisory agents and examiners of the FDIC, such access being afforded
only
upon reasonable prior written request and during normal business hours
at the
office of the Master Servicer; provided, however, that, unless otherwise
required by law, the Master Servicer shall not be required to provide access
to
such records and documentation if the provision thereof would violate the
legal
right to privacy of any Mortgagor. The Master Servicer shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge
that
covers the Master Servicer’s actual costs.
Section
3A.02 REMIC-Related
Covenants.
For
as
long as each Trust REMIC shall exist, the Master Servicer shall act in
accordance herewith to treat such Trust REMIC as a REMIC, and the Master
Servicer shall comply with any directions of the Trustee or the Trust
Administrator and for the avoidance of doubt, Section 11.02 hereof to assure
such continuing treatment.
Section
3A.03 Monitoring of
Servicer.
(a) Subject
to Section 3A.01, the Master Servicer shall be responsible for monitoring
compliance by the Servicer with its duties under this Agreement. In
the review of the Servicer’s activities, the Master Servicer may rely upon an
Officer’s Certificate of the Servicer with regard to the Servicer’s compliance
with the terms of this Agreement. In the event that the Master
Servicer, in its judgment, determines that the Servicer should be terminated
in
accordance with the terms hereof, or that a notice should be sent pursuant
to
the terms hereof with respect to the occurrence of an event that, unless
cured,
would constitute a Servicer Event of Default, the Master Servicer shall
notify
the Servicer and the Trustee thereof and the Master Servicer shall issue
such
notice or take such other action as it deems appropriate.
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(b) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of the Servicer under this Agreement, and
shall,
in the event that the Servicer fails to perform its obligations in accordance
with this Agreement, subject to the preceding paragraph and Article VII, cause
the Trustee to terminate the rights and obligations of the Servicer hereunder
in
accordance with the provisions of Article
VII. Such enforcement, including, without limitation, the
legal prosecution of claims 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, provided that the Master
Servicer
shall not be required to prosecute or defend any legal action except to
the
extent that the Master Servicer shall have received reasonable indemnity
for its
costs and expenses in pursuing such action.
(c) The
Master Servicer shall be entitled to be reimbursed by the Servicer (or
from
amounts on deposit in the Certificate Account if the Servicer does not
timely
fulfill its obligations hereunder) for all reasonable out-of-pocket or
third
party costs associated with the transfer of servicing from the predecessor
Servicer (or if the predecessor Servicer is the Master Servicer, from the
Servicer immediately preceding the Master Servicer), including without
limitation, any reasonable out-of-pocket or third party 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, upon presentation of reasonable documentation
of such
costs and expenses.
(d) Subject
to Section 3A.01, the Master Servicer shall require the Servicer to comply
with
the remittance requirements and other obligations set forth in this
Agreement.
(e) If
the Master Servicer acts as successor Servicer, it will not assume liability
for
the representations and warranties of the terminated Servicer.
(f) The
Master Servicer shall not be liable for any acts or omissions of the
Servicer.
Section
3A.04 Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting
on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form
and
amount generally acceptable for entities serving as master servicers or
trustees.
Section
3A.05 Power to Act;
Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have
full
power and authority, subject to the REMIC Provisions and the provisions
of
Article XI, to do any and all things that it may deem necessary or desirable
in
connection with the master servicing and
96
administration
of the Mortgage Loans; provided, however, that the Master Servicer shall
not
knowingly or intentionally take any action, allow the Servicer to take any
action, or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth
herein,
that, under the REMIC Provisions, if taken or not taken, as the case may
be,
would cause any REMIC created hereunder to fail to qualify as a REMIC or
result
in the imposition of a tax upon the Trust Fund (including but not limited
to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code and
the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code)
unless the Master Servicer has received an Opinion of Counsel (but not
at the
expense of the Master Servicer) to the effect that the contemplated action
will
not cause any REMIC created hereunder to fail to qualify as a REMIC or
result in
the imposition of a tax upon any REMIC created hereunder. The Trustee
shall execute and deliver such other documents, as the Master Servicer
or the
Servicer may request, to enable the Master Servicer to master service and
administer the Mortgage Loans and carry out its duties hereunder, in each
case
in accordance with Accepted Master Servicing Practices. If the Master
Servicer or the 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 Trustee or that the Trustee would be adversely affected under the
“doing
business” or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section
8.10. 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 Trustee, be deemed
to be
the agent of the Trustee. The Trustee shall have no responsibility
for any action of the Master Servicer or the Servicer taken pursuant to
any
document delivered by the Trustee under this Section
3A.05.
Section
3A.06 Due-on-Sale
Clauses;
Assumption Agreements.
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicer to enforce such clauses in accordance
with
this Agreement.
(a) The
Master Servicer shall transmit to the Trustee or the Custodian such documents
and instruments coming into the possession of the Master Servicer from
time to
time as are required by the terms hereof to be delivered to the Trustee
or the
Custodian. Any funds received by the Master Servicer in respect of
any Mortgage Loan or which otherwise are collected by the Master Servicer
as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan
shall
be remitted to the Trust Administrator for deposit in the Certificate
Account. The Master Servicer shall, and, subject to Section 3.19, shall
cause the Servicer to, provide access to information and documentation
regarding
the Mortgage Loans to the Trustee, its agents and accountants at any time
upon
reasonable request and during normal business hours, and to Certificateholders
that are savings and loan associations, banks or insurance companies, the
Office
of Thrift Supervision, the FDIC and the supervisory agents and examiners
of such
Office and Corporation or examiners of any other federal or state banking
or
insurance regulatory authority if so required by applicable regulations
of the
Office of Thrift Supervision or other regulatory authority, such access
to be
afforded without charge but only upon reasonable
97
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
funds collected or held by, or under the control of, the Master Servicer,
in
respect of any Mortgage Loans, whether from the collection of principal
and
interest payments or from Liquidation Proceeds or Insurance Proceeds, shall
be
remitted to the Trust Administrator for deposit in the Certificate
Account.
Section
3A.08 [RESERVED].
Section
3A.09 Compensation
for the Master
Servicer.
As
compensation for the activities of the Master Servicer hereunder, the Master
Servicer shall be entitled to the Master Servicing Fee and all investment
income
on funds on deposit in the Certificate Account. The compensation
owing to the Master Servicer in respect of any Distribution Date shall
be
reduced as applicable in accordance with Section
3A.12. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its ordinary activities hereunder
and
shall not be entitled to reimbursement therefor except as provided in this
Agreement.
Section
3A.10 [RESERVED].
Section
3A.11 [RESERVED].
In
the
event that the Servicer fails to perform on any Remittance Date its obligations
pursuant to Section
3.25, the Master Servicer shall remit to the Trust Administrator not
later than the Distribution Date an amount equal to the lesser of (i) the
aggregate amounts required to be paid by the Servicer with respect to Prepayment
Interest Shortfalls attributable to Principal Prepayments on the related
Mortgage Loans for the related Distribution Date, and not so paid by the
Servicer and (ii) the Master Servicing Fee for such Distribution Date,
without
reimbursement therefor.
ARTICLE
IV
Section
4.01. Advances.
(a) The
amount of P&I Advances to be made by the Servicer for any Remittance Date
shall equal, subject to Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with each
interest portion thereof net of the Servicing Fee), due during the Due
Period
immediately preceding such Remittance Date in respect of the first lien
Mortgage
Loans, which Scheduled Payments were not received as of the close of business
on
the related Determination Date, plus (ii) the aggregate amount of Scheduled
Payments (with each interest portion thereof
98
net
of
the Servicing Fee), due during the Due Period immediately preceding such
Remittance Date in respect of the second lien Mortgage Loans that are not
thirty
(30) or more days delinquent, which Scheduled Payments were not received
as of
the close of business on the related Determination Date, plus (iii) with
respect
to each REO Property, which REO Property was acquired during or prior to
the
related Prepayment Period and as to which such REO Property an REO Disposition
did not occur during the related Prepayment Period, an amount equal to
the
excess, if any, of the Scheduled Payments (with REO Imputed Interest) that
would
have been due on the related Due Date in respect of the related Mortgage
Loan,
over the net income from such REO Property transferred to the Collection
Account
for distribution on such Remittance Date.
(b) On
each Remittance Date, the Servicer shall remit in immediately available
funds to
the Trust Administrator for deposit into the Certificate Account an amount
equal
to the aggregate amount of P&I Advances, if any, to be made in respect of
the Mortgage Loans and REO Properties for the related Remittance Date either
(i) from its own funds or (ii) from the Collection Account, to the
extent of funds held therein for future distribution (in which case, it
will
cause to be made an appropriate entry in the records of the Collection
Account
that Amounts Held for Future Distribution have been, as permitted by this
Section 4.01, used by the Servicer in discharge of any such P&I
Advance) or (iii) in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made by the Servicer with
respect to the Mortgage Loans and REO Properties. Any Amounts Held
for Future Distribution and so used shall be appropriately reflected in
the
Servicer’s records and replaced by the Servicer by deposit in the Collection
Account on or before any future Remittance Date to the extent
required.
(c) The
obligation of the Servicer to make such P&I Advances on first lien Mortgage
Loans is mandatory, notwithstanding any other provision of this Agreement
but
subject to (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith
or
the removal thereof from coverage under this Agreement, except as otherwise
provided in this Section. The Servicer may, but will not be obligated
(i) to make any P&I Advances of principal on any REO property or any second
lien Mortgage Loan that is thirty (30) or more days delinquent or (ii)
to make
any P&I Advances with respect to reductions in the amount of the monthly
payments on the Mortgage Loans due to bankruptcy proceedings or any Relief
Act
Interest Shortfalls.
(d) Notwithstanding
anything herein to the contrary, no P&I Advance or Servicing Advance shall
be required to be made hereunder by the Servicer if such P&I Advance or
Servicing Advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. The determination by the Servicer
that it has made a Nonrecoverable P&I Advance or a Nonrecoverable Servicing
Advance or that any proposed P&I Advance or Servicing Advance, if made,
would constitute a Nonrecoverable P&I Advance or a Nonrecoverable Servicing
Advance, respectively, shall be evidenced by an Officer’s Certificate of the
Servicer delivered to the Trustee, the Master Servicer and the Trust
Administrator. The Master Servicer shall be entitled to rely on any
non-recoverability analysis made by the Servicer.
99
(e) Except
as otherwise provided herein, the Servicer shall be entitled to reimbursement
pursuant to Section 3.11 for
Advances from recoveries from the related Mortgagor or from all Liquidation
Proceeds and other payments or recoveries (including Insurance Proceeds
and
Condemnation Proceeds) with respect to the related Mortgage Loan.
Section
4.02. Priorities of
Distribution.
(a) On
each Distribution Date, the Trust Administrator shall withdraw the related
Group
Available Funds (to the extent on deposit in the Distribution Account)
from the
Distribution Account and, pursuant to written instruction received from
the
Master Servicer as set forth in Section 4.04(a), upon which it may conclusively
rely, apply such funds, first to distributions in respect of the REMIC
I Regular
Interests and REMIC II Regular Interests, as provided in Section 4.08,
and then
to distributions on the Certificates in the following order and priority
and, in
each case, to the extent of such Group Available Funds, subject to adjustment
in
accordance with Sections 4.02(b), 4.02(d) and 4.02(d):
(i) With
respect to the Group 1 Certificates, from the Group 1 Available Funds;
with
respect to the Group 2 Certificates, from the Group 2 Available Funds;
with
respect to the Group 3 Certificates, from the Group 3 Available Funds;
and with
respect to the Subordinate Certificates, from the Group 1 Available Funds,
Group
2 Available Funds and Group 3 Available Funds as follows:
first,
concurrently,
(A) to
the Group 1 Certificates, pro
rata based on the Accrued Certificate Interest of such Class, an amount
allocable to interest equal to the related Accrued Certificate Interest;
and
(B) to
the Group 2 Certificates, pro
rata based on the Accrued Certificate Interest of such Class, an amount
allocable to interest equal to the related Accrued Certificate Interest;
and
(C) to
the Group 3 Certificates, pro
rata based on the Accrued Certificate Interest of such Class, an amount
allocable to interest equal to the related Accrued Certificate
Interest.
in
each
case (clause (A), (B) and (C) of this paragraph), any shortfall shall be
allocated among such Classes described in the related paragraph in proportion
to
the amount of the Accrued Certificate Interest that would have been distributed
in the absence of such shortfall; and
second,
from the Available
Funds for Loan Group 1, the Senior Optimal Principal Amount for Loan Group
1 for
that Distribution Date:
1. to
the Class 1-A certificates, based on its Certificate Principal Balance,
until
its Certificate Principal Balance has been reduced to zero;
100
(D) from
the Available Funds for Loan Group 2, to the Group 2 Certificates, the
Senior Optimal Principal Amount for Loan Group 2 for that Distribution
Date, concurrently, to the Class 2-A Certificates, until its Certificate
Principal Balance is reduced to zero;
(E) from
the Available Funds for Loan Group 3, to the Group 3 Certificates, the
Senior Optimal Principal Amount for Loan Group 3 for that Distribution
Date, to the Class 3-A Certificates, until its Certificate Principal Balance
is
reduced to zero;
fourth,
to the Subordinate
Certificates from the remaining Available Funds for each Loan Group in
the
aggregate, subject to Section 4.02(b) and 4.02(d), in the following order
of
priority:
(F) to
the Class M-1 Certificates, an amount allocable to interest equal to the
Accrued
Certificate Interest for such Class for such Distribution Date;
(G) to
the Class M-1 Certificates, an amount allocable to principal equal to its
Allocable Share for such Distribution Date until the Class Principal Balance
of
such Class is reduced to zero;
(H) to
the Class M-2 Certificates, an amount allocable to interest equal to the
Accrued
Certificate Interest for such Class for such Distribution Date;
(I) to
the Class M-2 Certificates, an amount allocable to principal equal to its
Allocable Share for such Distribution Date until the Class Principal Balance
of
such Class is reduced to zero;
(J) to
the Class M-3 Certificates, an amount allocable to interest equal to the
Accrued
Certificate Interest for such Class for such Distribution Date;
(K) to
the Class M-3 Certificates, an amount allocable to principal equal to its
Allocable Share for such Distribution Date until the Class Principal Balance
of
such Class is reduced to zero;
(L) to
the Class M-4 Certificates, an amount allocable to interest equal to the
Accrued
Certificate Interest for such Class for such Distribution Date;
(M) to
the Class M-4 Certificates, an amount allocable to principal equal to its
Allocable Share for such Distribution Date until the Class Principal Balance
of
such Class is reduced to zero;
(N) to
the Class M-5 Certificates, an amount allocable to interest equal to the
Accrued
Certificate Interest for such Class for such Distribution Date;
101
(O) to
the Class M-5 Certificates, an amount allocable to principal equal to its
Allocable Share for such Distribution Date until the Class Principal Balance
of
such Class is reduced to zero;
(P) to
the Class M-6 Certificates, an amount allocable to interest equal to the
Accrued
Certificate Interest for such Class for such Distribution Date;
(Q) to
the Class M-6 Certificates, an amount allocable to principal equal to its
Allocable Share for such Distribution Date until the Class Principal Balance
of
such Class is reduced to zero;
(R) to
the Class M-7 Certificates, an amount allocable to interest equal to the
Accrued
Certificate Interest for such Class for such Distribution Date;
(S) to
the Class M-7 Certificates, an amount allocable to principal equal to its
Allocable Share for such Distribution Date until the Class Principal Balance
of
such Class is reduced to zero; and
fifth,
to the Class R
Certificate, in respect of the Class R-I Interest, any remaining funds
in REMIC
I, and to the Class R Certificate, in respect of the Class R-II Interest,
any
remaining funds in each remaining REMIC II.
(b) On
each Distribution Date, the amount referred to in clause (i) of the definition
of Accrued Certificate Interest for each Class of Certificates shall be
reduced
by (i) the related Class’s pro
rata share of Net Prepayment Interest Shortfalls with respect to the
Mortgage Loans in the related Loan Group, based on such Class’s Accrued
Certificate Interest for such Distribution Date without taking into account
such
Net Prepayment Interest Shortfalls and (ii) the related Class’s pro rata share (based
on such
Class’ pro rata share without taking into account any such reduction) of (A)
after the Special Hazard Coverage Termination Date with respect to each
Mortgage
Loan in the related Loan Group that became a Special Hazard Mortgage Loan
during
the calendar month preceding the month of such Distribution Date, the excess
of
one month’s interest at the related Net Mortgage Rate on the Scheduled Principal
Balance of such Mortgage Loan as of the Due Date in such month over the
amount
of Liquidation Proceeds applied as interest on such Mortgage Loan with
respect
to such month, (B) after the Bankruptcy Coverage Termination Date with
respect
to each Mortgage Loan in the related Loan Group or Loan Groups that became
subject to a Bankruptcy Loss during the calendar month preceding the month
of
such Distribution Date, the interest portion of the related Deficient Valuation,
(C) each Relief Act Interest Shortfall incurred on a Mortgage Loan in the
related Loan Group or Loan Groups, during the calendar month preceding
the month
of such Distribution Date and (D) after the Fraud Loss Coverage Termination
Date
with respect to each Mortgage Loan in the related Loan Group or Loan Groups
that
became a Fraud Loan during the calendar month preceding the month of such
Distribution Date, the excess of one month’s interest at the related Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan
as of the
Due Date in such month over the amount of Liquidation Proceeds applied
as
interest on such Mortgage Loan with respect to such month.
102
(c) Notwithstanding
the priority and allocation contained in Section 4.02(a)(i) priority fourth,
if
with respect to any Class of Subordinate Certificates on any Distribution
Date,
such Class has not satisfied the related Class Prepayment Distribution
Trigger,
no distribution of amounts pursuant to clauses (ii) and (iii) of the definition
of the Subordinate Optimal Principal Amount will be made to any such Classes
(the “Restricted Classes”) and such amounts otherwise distributable to the
Restricted Classes shall be distributed to any Classes of Subordinate
Certificates that are not Restricted Classes, having lower numerical Class
designations than such Restricted Classes, pro rata based on their respective
Class Principal Balances immediately prior to such Distribution
Date. The calculation of any amount to be distributed under this
Section 4.02(c) shall be made by the Master Servicer.
(d) On
each Distribution Date, after application of Group 1 Available Funds, Group
2
Available Funds and Group 3 Available Funds in accordance with Section
4.02(a)(i) items first and second, the Trust Administrator shall effect
cross-collateralization among each Certificate Group in the following
priority:
(i) Subject
to Section 4.02(b), to the extent any Accrued Certificate Interest with
respect
to any Class of Senior Certificates remains unpaid after application of
Available Funds for the related Loan Group in accordance with Section 4.02(a)(i)
items first and second,
Available Funds for
the other Loan Groups remaining after payments on the Senior Certificates
related to such other Loan Groups shall be applied to cover such unpaid
Accrued
Certificate Interest and, to the extent there are insufficient funds to
pay such
amounts in full, shall be applied pro rata based on the amounts of such
unpaid
Accrued Certificate Interest.
(ii) If
on any Distribution Date, one or more Certificate Groups is an
Undercollateralized Group, the available Subordinate Principal Distribution
Amount for the Subordinate Certificates shall be paid to such
Undercollateralized Group or Groups as principal to the Senior Certificates
of
such Undercollateralized Group or Groups in accordance with the priorities
set
forth in Section 4.02(a)(i) until the aggregate Class Principal Balance
of the
Senior Certificates of each such Undercollateralized Group equals the related
Group Balance of the related Loan Group. If more than one such Certificate
Group
is an Undercollateralized Group, the available Subordinate Principal
Distribution Amount for the Subordinate Certificates shall be distributed
between such Undercollateralized Groups pro rata based on the outstanding
balances of the respective Certificate Groups.
(iii) On
or after the date on which the Class Principal Balances of all of the Senior
Certificates in any Certificate Group have been reduced to zero, amounts
otherwise distributable as principal on the Subordinate Certificates, up
to the
applicable Apportioned Subordinate Principal Distribution Amount, shall
be paid
pro rata as principal
to the remaining Senior Certificates of the other Certificate Group or
Groups in
accordance with the priorities set forth in Section 4.02(a)(i), provided that
on such
Distribution Date (a) the Aggregate Subordinate Percentage for the Subordinate
Certificates for such Distribution Date is less than twice the initial
Aggregate
Subordinate Percentage for the Subordinate Certificates or (b) the average
outstanding principal
103
balance
of the Mortgage Loans delinquent 60 days or more over the last six months
(including delinquent Mortgage Loans in bankruptcy, and all Mortgage Loans
in
foreclosure and REO Properties) as a percentage of the Group Subordinate
Amount
is greater than or equal to 50%.
(iv) Any
application of the Subordinate Principal Distribution Amount pursuant to
the
preceding paragraphs (ii) and (iii) will reduce distributions to the Subordinate
Certificates of such amount in reverse order of priority pursuant to the
priorities set forth in Section 4.02(a)(i) priority fourth.
(e) [Reserved].
(f) [Reserved].
(g) [Reserved].
(h) In
the event that the Mortgage Loans are purchased at the Servicer's election
pursuant to Section 10.01(a), the Trust Administrator shall remit the amount
of
any Fair Market Value Excess by wire transfer of immediately available
funds to
the holders of the Class R Certificates in accordance with the instructions
of
the holders of the Class R Certificates.
Section
4.03. Monthly Statements
to
Certificateholders.
(a) Not
later than each Distribution Date, the Trust Administrator shall make available
to each Certificateholder, the Servicer, the Master Servicer, the Trustee,
the
Depositor and each Rating Agency a statement setting forth with respect
to the
related distribution:
(i) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Certificates allocable to principal, separately identified, and
the
amount of the distribution made on such Distribution Date to the Holders
of the
Class [__] Certificates allocable to Prepayment Charges;
(ii) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Certificates allocable to interest, separately identified;
(iii) the
Net Monthly Excess Cashflow and the Credit Enhancement Percentage for such
Distribution Date;
(iv) the
fees and expenses of the trust accrued and paid on such Distribution Date
and to
whom such fees and expenses were paid;
(v) the
aggregate amount of P&I Advances for such Distribution Date (including the
general purpose of such P&I Advances);
(vi) the
aggregate Principal Balance of the Mortgage Loans and any REO Properties
as of
the end of the related Due Period;
104
(vii) the
number, aggregate Principal Balance, weighted average remaining term to
maturity
and weighted average Mortgage Rate of the Mortgage Loans as of the related
Due
Date;
(viii) the
number and aggregate unpaid Principal Balance of Mortgage Loans in respect
of
which (a) one monthly payment is delinquent, (b) two monthly payments are
delinquent, (c) three monthly payments are delinquent and (d) foreclosure
proceedings have begun, in each case, as of the last day of the calendar
month
preceding the related Distribution Date and in accordance with the OTS
method of
calculating delinquencies;
(ix) the
total number and cumulative principal balance of all REO Properties as
of the
close of business on the last day of the calendar month preceding the related
Distribution Date;
(x) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period;
(xi) the
Delinquency Percentage;
(xii) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period, the aggregate amount of Realized Losses incurred since the Closing
Date
and the aggregate amount of Subsequent Recoveries received during the related
Prepayment Period;
(xiii) the
aggregate amount of extraordinary trust fund expenses withdrawn from the
Certificate Account for such Distribution Date;
(xiv) the
Certificate Principal Balance of each Class of Certificates, before and
after
giving effect to the distributions, and allocations of Realized Losses,
made on
such Distribution Date;
(xv) the
Current Interest in respect of the Certificates for such Distribution Date
and
the Unpaid Interest Shortfall Amount, if any, with respect to the Certificates
on such Distribution Date;
(xvi) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments of Compensating Interest by
the
Servicer or the Master Servicer;
(xvii) the
amount of the Servicing Fees paid to or retained by the Servicer or any
subservicer (with respect to the Subservicers, in the aggregate) with respect
to
such Distribution Date;
(xviii) the
amount of the Master Servicing Fees to be paid to or retained by the Master
Servicer with respect to such Distribution Date;
105
(xix) the
amount of the Custodial Fee, if any, to be paid or retained by the Trust
Administrator with respect to such Distribution Date;
(xx) whether
the Stepdown Date or a Trigger Event has occurred;
(xxi) the
total cashflows received and the general sources thereof;
(xxii) the
respective Pass-Through Rates applicable to the Certificates for such
Distribution Date and the Pass-Through Rate applicable to the Certificates
for
the immediately succeeding Distribution Date; and
(xxiii) the
applicable Record Dates, Interest Accrual Periods and Determination Dates
for
calculating distributions for such Distribution Date.
(b) The
Trust Administrator’s responsibility for providing the above statement to the
Certificateholders, each Rating Agency, the Servicer, the Master Servicer,
the
Originator and the Depositor is limited to the availability, timeliness
and
accuracy of the information derived from the Servicer. The Trust
Administrator will make the above statement available via the Trust
Administrator’s internet website. The Trust Administrator’s website
will initially be located at
xxxx://xxx.[ ].com and assistance
in using the website can be obtained by calling the Trust Administrator’s
customer service desk at
[ ]. Parties
that are unable to use the above distribution method are entitled to have
a
paper copy mailed to them via first class mail by calling the customer
service
desk and indicating such. The Trust Administrator shall have the
right to change the manner in which the above statement is distributed
in order
to make such distribution more convenient and/or more accessible, and the
Trust
Administrator shall provide timely and adequate notification to the
Certificateholders and the parties hereto regarding any such
changes.
The
Trust
Administrator shall also be entitled to rely on, but shall not be responsible
for the content or accuracy of, any information provided by the Servicer
for
purposes of preparing the above statement and may affix thereto any disclaimer
it deems appropriate in its reasonable discretion (without suggesting liability
on the part of any other party hereto).
Upon
written request from any Certificateholder, the Trust Administrator shall
provide the information provided for in Sections 4.03(d) to such
Certificateholder, at the expense of the requesting
Certificateholder. The Trust Administrator’s responsibility for
providing the information provided for in Sections 4.03(d) to the
Certificateholders is limited to the availability and timeliness of the
information provided by the Servicer. The Trust Administrator shall
provide the information provided for in Sections 4.03(d) in the same format
as
received from the Servicer upon request by the
Certificateholders. The Trust Administrator shall have no duty or
obligation to monitor, review or take any action regarding such information
received pursuant to Section 4.03(d) other than forwarding copies to
Certificateholders. The Trust Administrator shall have no liability
for the accuracy, completeness or otherwise for such information.
(c) Upon
request, within a reasonable period of time after the end of each calendar
year,
the Trust Administrator shall cause to be furnished to each Person who
at any
time during the calendar year was a Certificateholder, a statement containing
the information set forth in
106
clauses (a)(i)
and (a)(ii) of this Section 4.03 aggregated for such calendar year or
applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trust Administrator shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trust Administrator pursuant to any
requirements of the Code as are from time to time in effect.
(d) Not
later than the Reporting Date, the Servicer shall furnish to the Trust
Administrator and the Master Servicer a monthly remittance advice statement
(in
a format mutually agreed upon by the Servicer and the Trust Administrator)
containing such information as shall be reasonably requested by the Trust
Administrator to provide the reports required by Section 4.03(a)
as to the accompanying remittance and the period ending on the close of
business
on the last Business Day of the immediately preceding month (the “Servicer Remittance
Report”).
The
Servicer shall furnish to the Trust Administrator an individual loan accounting
report, as of the last Business Day of each month, to document Mortgage
Loan
payment activity on an individual Mortgage Loan basis. With respect
to each month, the corresponding individual loan accounting report (in
electronic format) shall be received by the Trust Administrator no later
than
the Reporting Date, which report shall contain the following:
(i) with
respect to each Scheduled Payment, the amount of such remittance allocable
to
principal (including a separate breakdown of any Principal Prepayment,
including
the date of such prepayment, and any Prepayment Premiums, along with a
detailed
report of interest on principal prepayment amounts remitted in accordance
with
Section 3.25);
(ii) with
respect to each Scheduled Payment, the amount of such remittance allocable
to
interest;
(iii) the
amount of servicing compensation received by the Servicer during the prior
distribution period;
(iv) the
individual and aggregate Stated Principal Balance of the Mortgage
Loans;
(v) the
aggregate of any expenses reimbursed to the Servicer during the prior
distribution period pursuant to Section 3.11;
(vi) the
number and aggregate outstanding principal balances of Mortgage Loans (not
including Liquidated Mortgage Loans as of the end of the Prepayment Period)
(a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or
(3) 91 days or more; (b) as to which foreclosure has commenced; and
(c) as to which REO Property has been acquired;
(vii) each
Mortgage Loan which has been altered, modified or varied during such month,
and
the reason for such modification (i.e., extension of maturity date, Mortgage
Interest Rate);
107
(viii) with
respect to each Mortgage Loan, the amount of any Realized Losses for such
Mortgage Loan; and
(ix) any
other information reasonably required by the Trust Administrator to enable
it to
prepare the monthly statement referred to in Section 4.03(a).
Section
4.04. [Reserved].
Section
4.05. Allocation of
Realized Loss
Amounts.
(a) On
or prior to each Distribution Date, the Master Servicer shall determine
the
total amount of Realized Losses, including Excess Losses and the allocation
of
such total amount as set forth below. Realized Losses occurring on
the Mortgage Loans shall be allocated as follows:
(i) [reserved];
(ii) any
Realized Loss with respect to any Mortgage Loan (other than an Excess Loss)
shall be allocated first to the Subordinate Certificates in reverse order
of
their respective numerical Class designations (beginning with the Class
of
Subordinate Certificates then outstanding with the highest numerical Class
designation) until the respective Class Principal Balance of each such
Class is
reduced to zero, and second to the Senior Certificates of the related
Certificate Group pro rata based upon their respective Class Principal
Balances
after giving effect to distributions of principal on such Distribution
Date
until the Class Principal Balance of each such Class has been reduced to
zero;
(iii) any
Excess Losses occurring on any Mortgage Loan contributing to any Loan Group
shall be allocated among (A) (1) the Group 1 Certificates, in the case
of an
Excess Loss on a Mortgage Loan contributing to Loan Group 1, (2) the Group
2
Certificates, in the case of an Excess Loss on a Mortgage Loan contributing
to
Loan Group 2, and (3) the Group 3 Certificates, in the case of an Excess
Loss on
a Mortgage Loan contributing to Loan Group 3; and (B) each Class of Subordinate
Certificates, pro rata based upon their respective Class Principal Balances
after giving effect to distributions of principal on such Distribution
Date of
the Group Subordinate Amount for the Loan Group which incurred the Excess
Loss);
and
(b) The
Class Principal Balance of the Class of Subordinate Certificates then
outstanding with the highest numerical Class designation shall be reduced
on
each Distribution Date by the sum the amount, if any, by which the aggregate
of
the Class Principal Balances of all outstanding Classes of Group 1, Group
2 and
Group 3 Certificates and Subordinate Certificates (after giving effect
to the
distribution of principal and the allocation of Realized Losses with respect
to
the Mortgage Loans) exceeds the Aggregate Pool Principal Balance for the
following Distribution Date, less any Deficient Valuations occurring before
the
Bankruptcy Loss Coverage Amount has been reduced to zero; and
108
(c) Any
allocation of Realized Losses to a Certificate or any reduction in the
Certificate Principal Balance of a Certificate pursuant to Section 4.03(a)
or
(b) above shall be accomplished by reducing the Certificate Principal Balance
of
such Certificate immediately following the distributions made on the related
Distribution Date in accordance with the definition of “Certificate Principal
Balance” herein; provided that
no
Realized Loss with respect to any Loan Group shall be allocated to reduce
the
Certificate Principal Balance of a Senior Certificate in any Certificate
Group
to the extent that such allocation would reduce the aggregate Certificate
Principal Balance of all of the Senior Certificates and Subordinate Certificates
to an amount less than the Aggregate Pool Principal Balance for the following
Distribution Date minus any related Deficient Valuations occurring before
the
Bankruptcy Loss Coverage Termination Date (such limitation, the “Loss Allocation
Limitation”).
(d) Prior
to the Cross-Over Date, with respect to any Recoveries received during
the
related Prepayment Period with respect to any Mortgage Loans, the Class
Principal Balance of one or more Classes of Certificates that have previously
had Realized Losses allocated, will be increased, as follows:
(i) first,
up to the amount of
the Recoveries with respect to any Loan Group, the Class Principal Balance
of
each Class of Senior Certificates will be increased, pro rata, up to the
amount
of the excess, if any, of (x) unrecovered Realized Losses previously allocated
to each such Class, if any over (y) amounts previously applied to the increase
of the Class Principal Balance of such Class pursuant to this Section
4.03(d)(i); and
(ii) second,
up to the amount of
the Recoveries related to each Loan Group remaining after allocation pursuant
to
the preceding clause (i), the Class Principal Balance of each Class of
Subordinate Certificates, in order of seniority, will be increased, by
the
amount of the excess, if any, of (x) unrecovered Realized Losses previously
allocated to each such Class, if any, over (y) amounts previously applied
to the
increase of the Class Principal Balance of such Class pursuant to this
Section
4.03(d)(ii)(4).
(e) With
respect to any Distribution Date on or after the Cross-Over Date, the Trust
Administrator shall distribute the amount of any Recovery on a Mortgage
Loan
received during the calendar month prior to that Distribution Date to the
Classes of Senior Certificates of the Certificate Group or Certificate
Groups
corresponding to the Loan Group to which the Mortgage Loan for which the
Recovery was received, pro
rata, the amount of such Recovery;
provided,
however,
that any
distribution to a Class of Certificates pursuant to this Section 4.03(e)
shall
not reduce the Class Principal Balance of such Class.
Section
4.06. Compliance with
Withholding
Requirements.
Notwithstanding
any other provision of this Agreement, the Trustee and the Trust Administrator
shall comply with all federal withholding requirements respecting payments
to
Certificateholders of interest or original issue discount that the Trust
Administrator reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required
109
for
such
withholding. In the event the Trust Administrator does withhold any
amount from interest or original issue discount payments or advances thereof
to
any Certificateholder pursuant to federal withholding requirements, the
Trust
Administrator shall indicate the amount withheld to such
Certificateholders.
(a) (i) Using
best efforts, within 10 days after each Distribution Date, and no later
than 15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Trust Administrator shall, in accordance with industry
standards, prepare and file, on behalf of the Trust, with the Commission
via the
Electronic Data Gathering and Retrieval System (“XXXXX”), any
Form
10-D required by the Exchange Act, in form and substance as required by
the
Exchange Act, signed by the Master Servicer, with a copy of the monthly
statement to be furnished by the Trust Administrator to the Certificateholders
for such Distribution Date attached thereto. Any disclosure in
addition to the monthly statement that is required to be included on Form
10-D
(“Additional Form
10-D
Disclosure”) shall be reported by the parties set forth on Exhibit
T to the
Depositor and the Trust Administrator and directed and approved by the
Depositor
pursuant to the following paragraph, and the Trust Administrator will have
no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
(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
set forth in Exhibit
T shall be required to provide, pursuant to Section 4.07(a)(v) below,
to
the Trust Administrator (by email at
[ ] and by facsimile at
[ ]) and the
Depositor, to the extent known, in XXXXX-compatible format, or in such
other
format as otherwise agreed upon by the Trust Administrator and such party,
the
form and substance of any Additional Form 10-D Disclosure, if applicable,
together with an Additional Disclosure Notification in the form attached
hereto
as Exhibit R
(an “Additional
Disclosure Notification”) and (ii) the Depositor will approve, as to form
and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Trust Administrator
has no duty under this Agreement to monitor or enforce the performance
by the
parties listed on Exhibit T 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 Section.
After
preparing the Form 10-D, the Trust Administrator shall, upon request, forward
electronically a copy of the Form 10-D to the Depositor for review, only
to the
extent that the Form 10-D contains Additional Form 10-D
Disclosure. Within two Business Days after receipt of such copy, but
no later than the 13th
calendar day
after the Distribution Date, the Depositor shall notify the Trust Administrator
in writing (which may be furnished electronically) of any changes to or
approval
of such Form 10-D. In the absence of receipt of any written changes
or approval, or if the Depositor does not request a copy of a Form 10-D,
the
Trust Administrator shall be entitled to assume that such Form 10-D is
in final
form and the Trust Administrator may
110
proceed
with the execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign each Form 10-D. If a
Form 10-D cannot be filed on time or if a previously filed Form 10-D needs
to be
amended, the Trust Administrator will follow the procedures set forth in
Section
4.07(a)(vi). Promptly (but no later than one 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 filed by the Trust
Administrator. Form 10-D requires the registrant to indicate (by
checking “yes” or “no”) that it “(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months
(or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days.” The Depositor hereby represents to the Trust Administrator
that the Depositor has filed all such required reports during the preceding
12
months (other than any such reports required to be filed by the Trust
Administrator) and that it has been subject to such filing requirement
for the
past 90 days. The
Depositor shall notify the Trust Administrator in writing, no later than
the
fifth calendar day after the related Distribution Date with respect to
the
filing of a report on Form 10-D, if the answer to the questions should
be
“no.” In the absence of such notification by the Depositor to the
Trust Administrator, the Trust Administrator shall be entitled to assume
that
the answer to the questions on Form 10-D should be “yes”; provided, however,
that with respect to any such reports that the Trust Administrator was
obligated
to file but failed to timely file, the Trust Administrator will check “no” on
the Form 10-D and promptly notify the Depositor thereof. The Trust
Administrator shall be entitled to rely on such representations in preparing,
executing and/or filing any such report. The parties to this
Agreement acknowledge that the performance by the Master Servicer and the
Trust
Administrator of its duties under Sections 4.07(a)(i), (ii) and (v) 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 such Sections. The Depositor acknowledges that the performance
by the Master Servicer and the Trust Administrator of its duties under
this
Section 4.07(a)(ii) related to the timely preparation, execution and filing
of
Form 10-D is also contingent upon the Servicer, the custodian and any
Subservicer or Subcontractor strictly observing deadlines no later than
those
set forth in this paragraph that are applicable to the parties to this
Agreement
in the delivery to the Trust Administrator of any necessary Additional
Form 10-D
Disclosure pursuant to any applicable agreement. Neither the Master
Servicer nor the Trust Administrator shall have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure
to
properly prepare, execute and/or timely file such Form 10-D and 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
or any
custodian (other than the Trust Administrator in such capacity), Subservicer
or
Subcontractor needed to prepare, arrange for execution or file such Form
10-D,
not resulting from its own negligence, bad faith or willful
misconduct.
(iii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”),
and if requested by the Depositor, the Trust Administrator shall prepare
and
file on behalf of the Trust a Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection
with
the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included
on
Form 8-K other than the initial Form 8-K (“Form 8-K Disclosure
Information”) shall, be reported
111
by
the
parties set forth on Exhibit T to the
Depositor and the Trust Administrator and directed and approved by the
Depositor, pursuant to the following paragraph, and the Trust Administrator
will
have no duty or liability for any failure hereunder to determine or prepare
any
Form 8-K Disclosure Information or any Form 8-K, except as set forth in
the next
paragraph.
For
so
long as the Trust is subject to the Exchange Act reporting requirements,
no
later than the close of business (New York City Time) on the 2nd
Business Day
after the occurrence of a Reportable Event (i) the parties set forth in
Exhibit T shall
be
required pursuant to Section 4.07(a)(v) below to provide to the Trust
Administrator and the Depositor, to the extent known, in XXXXX-compatible
format, or in such other format as otherwise agreed upon by the Trust
Administrator and such party, the form and substance of any Form 8-K Disclosure
Information, if applicable, together with an Additional Disclosure Notification
and (ii) the Depositor will approve, as to form and substance, or disapprove,
as
the case may be, the inclusion of the Form 8-K Disclosure Information on
Form
8-K. 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
Section.
After
preparing the Form 8-K, the Trust Administrator shall, upon request, forward
electronically a copy of the Form 8-K to the Depositor for
review. Promptly, but no later than the close of business on the
third Business Day after the Reportable Event, the Depositor shall notify
the
Trust Administrator in writing (which may be furnished electronically)
of any
changes to or approval of such Form 8-K. In the absence of receipt of
any written changes or approval, or if the Depositor does not request a
copy of
a Form 8-K, the Trust Administrator shall be entitled to assume that such
Form
8-K is in final form and the Trust Administrator may proceed with the execution
and filing of the Form 8-K. A duly authorized representative of the
Master Servicer shall sign each Form 8-K. If a Form 8-K cannot be
filed on time or if a previously filed Form 8-K needs to be amended, the
Trust
Administrator will follow the procedures set forth in Section
4.07(a)(vi). Promptly (but no later than one 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 prepared and filed
by
the Trust Administrator. The parties to this Agreement acknowledge
that the performance by the Master Servicer and the Trust Administrator
of its
duties under this Section 4.07(a)(iii) 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
4.07(a)(iii). The Depositor acknowledges that the performance by the
Master Servicer and the Trust Administrator of its duties under this Section
4.07(a)(iii) related to the timely preparation, execution and filing of
Form
10-D is also contingent upon the Servicer, the custodian (other than the
Trust
Administrator in such capacity) and any Subservicer or Subcontractor strictly
observing deadlines no later than those set forth in this paragraph that
are
applicable to the parties to this Agreement in the delivery to the Trust
Administrator of any necessary Form 8-K Disclosure Information pursuant
to the
Custodial Agreement or any other applicable agreement. Neither the
Master Servicer nor the Trust Administrator shall have any liability for
any
loss, expense, damage or claim arising out of or with respect to any failure
to
properly prepare, execute and/or timely file such Form 8-K, where such
failure
results from the Trust Administrator’s inability or failure to receive, on a
timely basis, any information from any other party hereto or any custodian
(other than the Trust
112
Administrator
in such capacity), Subservicer or Subcontractor needed to prepare, arrange
for
execution or file such Form 8-K, not resulting from its own negligence,
bad
faith or willful misconduct.
(iv) (A) 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 an annual report on 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, (i) an annual compliance statement for the Servicer, the Master
Servicer, the Trust Administrator and any Subservicer, Subcontractor or
other
Person engaged by such parties or the Trustee (together with any custodian
other
than the Trust Administrator in such capacity, each a “Reporting Servicer”),
as described under Section 3.22 of this Agreement, provided, however, that
the
Trust Administrator, at its discretion, may omit from the Form 10-K any
annual
compliance statement that is not required to be filed with such Form 10-K
for
each Reporting Servicer pursuant to Regulation AB, (ii)(A) the annual reports
on
Assessment of Compliance with Servicing Criteria for each Reporting Servicer,
as
described under Section 3.23 of this Agreement, and (B) if the report on
Assessment of Compliance with the Servicing Criteria identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such Assessment of Compliance with Servicing Criteria
is not included as an exhibit to such Form 10-K, disclosure that such report
is
not included and an explanation why such report is not included provided,
however, that the Trust Administrator, at its discretion, may omit from
the Form
10-K any Assessment of Compliance or Attestation Report that is not required
to
be filed with such Form 10-K pursuant to Regulation AB, (iii)(A) the registered
public accounting firm Attestation Report for each Reporting Servicer as
described under Section 3.23 of this Agreement, and (B) if any registered
public
accounting firm Attestation Report described under Section 3.23 identifies
any
material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any such registered public accounting firm Attestation
Report is not included as an exhibit to such Form 10-K, disclosure that
such
report is not included and an explanation why such report is not included,
and
(iv) a Xxxxxxxx-Xxxxx Certification as described below. Any
disclosure or information in addition to the disclosure or information
specified
in items (i) through (iv) above that is required to be included on Form
10-K
(“Additional Form
10-K
Disclosure”) shall, be reported by the parties set forth on Exhibit
T to the
Depositor and the Trust Administrator and directed and approved by the
Depositor
pursuant to the following paragraph, and the Trust Administrator will have
no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-K Disclosure, except as set forth in the next
paragraph.
No
later
than March 1st
(with a 10
calendar day cure period) of each year that the Trust is subject to the
Exchange
Act reporting requirements, commencing in 200[ ], (i) the parties set forth
in
Exhibit T shall
be required to provide pursuant to Section 4.07(a)(v)
below to the
113
Depositor
and to the Trust Administrator (by email at
[ ] and by facsimile at
[ ]) and the Depositor, to
the extent known, in XXXXX-compatible form, or in such other form as otherwise
agreed upon by the Trust Administrator and such party, the form and substance
of
any Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form
and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure 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
T 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
Section.
After
preparing the Form 10-K, the Trust Administrator shall forward, upon request,
electronically a copy of the Form 10-K to the Depositor for
review. Within three Business Days after receipt of such copy, but no
later than March 25th, the Depositor shall notify the Trust Administrator
in
writing (which may be furnished electronically) of any changes to or approval
of
such Form 10-K. In the absence of receipt of any written changes or
approval, or if the Depositor does not request a copy of a Form 10-K, the
Trust
Administrator shall be entitled to assume that such Form 10-K is in final
form
and the Trust Administrator may proceed with the execution and filing of
the
Form 10-K. No later than 12:00 noon New York City time on the fourth
Business Day prior to the 10-K Filing Deadline, a senior officer of [SunTrust]
shall sign the Form 10-K and return such signed Form 10-K to the Trust
Administrator. 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 4.07(a)(vi). Promptly (but
no later than one Business Day) after filing with the Commission, the Trust
Administrator will make available on its internet website (located at www.[ ].com)
a final executed copy of each Form 10-K filed by the Trust
Administrator. Form 10-K requires the registrant to indicate (by
checking “yes” or “no”) that it “(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months
(or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days.” The Depositor hereby represents to the Trust Administrator
that the Depositor has filed all such required reports during the preceding
12
months (other than any such reports required to be filed by the Trust
Administrator) and that it has been subject to such filing requirement
for the
past 90 days. The Depositor shall notify the Trust Administrator in
writing, no later than March 15th with respect to the filing of a report
on Form
10-K, if the answer to the questions should be “no.” In the absence
of such notification by the Depositor to the Trust Administrator, the Trust
Administrator shall be entitled to assume that the answer to the questions
on
Form 10-K should be “yes”; provided, however,
that with respect to any such reports that the Trust Administrator was
obligated
to file but failed to timely file, the Trust Administrator will check “no” on
the Form 10-K and promptly notify the Depositor thereof. The Trust
Administrator shall be entitled to rely on such representations in preparing,
executing and/or filing any such report. The parties to this
Agreement acknowledge that the performance by the Master Servicer, the
Servicer
and the Trust Administrator of its duties under Section 4.07(a)(iv)
and Section
4.07(a)(v) related to the timely preparation, execution and filing of
Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under such Sections, Section 3.22 and
Section
3.23. The Depositor
114
acknowledges
that the performance by the Master Servicer and the Trust Administrator
of its
duties under this Section 4.07(a)(iv)
related to the timely preparation, execution and filing of Form 10-K is
also
contingent upon the Servicer, the custodian (other than the Trust Administrator
in such capacity) and any Subservicer or Subcontractor strictly observing
deadlines no later than those set forth in this paragraph that are applicable
to
the parties to this Agreement in the delivery to the Trust Administrator
of any
necessary Additional Form 10-K Disclosure, any annual statement of compliance
and any Assessment of Compliance and attestation pursuant to any custodial
agreement or any other applicable agreement. Neither the Master
Servicer nor the Trust Administrator shall have any liability for any loss,
expense, damage, claim arising out of or with respect to any failure to
properly
prepare, execute 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 or any custodian (other
than
the Trust Administrator in such capacity), Subservicer or Subcontractor
needed
to prepare, arrange for execution or file such Form 10-K, not resulting
from its
own negligence, bad faith or willful misconduct.
Each
Form
10-K shall include a Xxxxxxxx-Xxxxx Certification, required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each of the Master
Servicer and the Trust Administrator shall provide, and each such party
and the
Trustee shall cause any Subservicer or Subcontractor engaged by it to provide,
to the Person who signs the Xxxxxxxx-Xxxxx Certification (the “Certifying Person”),
by March 15th
of each year in
which the Trust is subject to the reporting requirements of the Exchange
Act, a
certification (each, a “Back-Up
Certification”), in the form attached hereto as Exhibit
M, 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. A senior officer of [SunTrust]
shall serve as the Certifying Person on behalf of the Trust. Such
officer of the Certifying Person can be contacted by e-mail at [ ] or
by
facsimile at [(___) ___-____]. In the event that the Master Servicer,
the Trust Administrator, the Trustee or any Subservicer or Subcontractor
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
4.07(a)(iv) with respect to the period of time it was subject to this
Agreement or any other applicable agreement, as the case may be.
(v) With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trust Administrator’s
obligation to include such Additional Information in the applicable Exchange
Act
report is subject to receipt from the entity that is indicated in Exhibit T as the
responsible party for providing that information, if other than the Trust
Administrator, as and when required as described in Section 4.07(a)(ii)
through (iv)
above. Each of the Master Servicer, the Servicer, the Trust
Administrator and Depositor hereby agree to notify and to provide, to the
extent
known, to the Trust Administrator and the Depositor, all Additional Disclosure
relating to the Trust Fund, with respect to which such party is the responsible
party for providing that information, as indicated in Exhibit T
hereof. The Servicer shall be responsible for
115
determining
the pool concentration applicable to any Subservicer or originator at any
time,
for purposes of disclosure as required by Items 1108 and 1110 of Regulation
AB.
(vi) 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 prepare
and
file a Form 15 Suspension Notification relating to the automatic suspension
of
reporting in respect of the Trust under the Exchange Act.
In
the
event that the Trust Administrator becomes aware that it will be unable
to
timely file with the Commission all or any required portion of any Form
8-K,
Form 10-D or Form 10-K required to be filed by this Agreement because required
disclosure information was either not delivered to it or was delivered
to it
after the delivery deadlines set forth in this Agreement or for any other
reason, the Trust Administrator will promptly notify electronically the
Depositor. In the case of Form 10-D and Form 10-K, the parties to
this Agreement will cooperate to prepare and file a Form 12b-25 and a Form
10-DA
and Form 10-KA 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. In the event that any previously filed Form
8-K, Form 10-D or Form 10-K needs to be amended, in connection with any
Additional Form 10-D Disclosure (other than, in the case of Form 10-D,
for the
purpose of restating any Monthly Statement), Additional Form 10-K Disclosure
or
Form 8-K Disclosure Information, the Trust Administrator will electronically
notify the Depositor and such other parties to the transaction as are affected
by such amendment, and such parties will cooperate to prepare any necessary
Form
8-KA, Form 10-DA or Form 10-KA. Any Form 15, Form 12b-25 or any
amendment to Form 8-K or Form 10-D shall be signed by a duly authorized
representative or senior officer in charge of master servicing, as applicable,
of the Master Servicer. Any amendment to Form 10-K shall be signed by
the Servicer. The parties to this Agreement acknowledge that the
performance by the Master Servicer, the Servicer and the Trust Administrator
of
its duties under this Section 4.07(a)(vi) related to the timely preparation,
execution and filing of Form 15, a Form 12b-25 or any amendment to Form
8-K,
Form 10-D or Form 10-K is contingent upon each such party performing its
duties
under this Section. Neither the Master Servicer nor the Trust
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file any such Form 15, Form 12b-25 or any amendments to Form
8-K,
Form 10-D or Form 10-K, where such failure results from the Trust
Administrator’s inability or failure to receive, on a timely basis, any
information from or on behalf of any other party hereto or any custodian
(other
than the Trust Administrator in such capacity), Subservicer or Subcontractor
needed to prepare, arrange for execution or file such Form 15, Form 12b-25
or
any amendments to Form 8-K, Form 10-D or Form 10-K, not resulting from
its own
negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trust Administrator, from time
to
time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Mortgage Loans as
the Trust
Administrator reasonably deems appropriate to prepare and file all necessary
reports with the Commission. The Trust Administrator shall have no
responsibility to file any items other than those specified in this
116
Section
4.07; provided, however, the Trust Administrator will cooperate with the
Depositor in connection with any additional filings with respect to the
Trust
Fund as the Depositor deems necessary under the Exchange Act. Fees
and expenses incurred by the Trust Administrator in connection with this
Section
4.07 shall not be reimbursable from the Trust Fund.
(b) (A) The
Trust Administrator shall indemnify and hold harmless the Depositor and
its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and
related
costs, judgments and other costs and expenses arising out of or based upon
(i) a
breach of the Trust Administrator’s obligations under this Section 4.07 or the
Trust Administrator’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Annual Statement
of Compliance and the Assessment of Compliance delivered by the Trust
Administrator pursuant to Section 3.22 and
Section
3.23.
(B) The
Depositor shall indemnify and hold harmless the Trust Administrator and
the
Master Servicer and their respective officers, directors and affiliates
from and
against any losses, damages, penalties, fines, forfeitures, reasonable
and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the obligations of the Depositor
under
this Section
4.07 or the Depositor’s negligence, bad faith or willful misconduct in
connection therewith.
(C) The
Master Servicer shall indemnify and hold harmless the Trust Administrator
and
the Depositor and their respective officers, directors and affiliates from
and
against any losses, damages, penalties, fines, forfeitures, reasonable
and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (i) a breach of the obligations of the Master
Servicer under this Section 4.05 or the
Master Servicer’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Statement
as to
Compliance delivered by the Master Servicer pursuant to Section 3.22 or the
Assessment of Compliance delivered by the Master Servicer pursuant to Section
3.23.
(D) The
Servicer shall indemnify and hold harmless the Master Servicer, Trust
Administrator and the Depositor and their respective officers, directors
and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses arising out of or based upon (i) a breach of the obligations
of the
Servicer under Section
3.22, Section
3.23 or Section
4.07, including any failure by the Servicer (or any
Subservicer or any Subcontractor engaged by the Servicer), to provide any
Back-Up Certification (if applicable), annual statement of compliance,
annual
Assessment of Compliance with Servicing Criteria or Attestation Report,
any
information, data or materials required to be included in any Exchange
Act
report or any other information or material when and as required under
Sections 3.22, 3.23
or 4.07, or
the
Servicer’s negligence, bad faith or willful misconduct in connection therewith
and (ii) any material misstatement or omission contained in any information,
disclosure, report, certification, data, accountants’ letter or other material
provided under Sections 3.22, 3.23
and 4.07 to the
Master
Servicer or the Trust Administrator by or on behalf of the Servicer or
on behalf
of any Subservicer
117
or
Subcontractor), including any material misstatement or material omission
in (i)
any Back-Up Certification, annual statement of compliance, annual Assessment
of
Compliance with Servicing Criteria or Attestation Report delivered by the
Servicer, or by any Subservicer or Subcontractor engaged by it, pursuant
to this
Agreement, or (ii) any Additional Form 10-D Disclosure, Additional Form
10-K
Disclosure or Form 8-K Disclosure Information provided by the
Servicer.
(E) The
Custodian agrees to indemnify and hold harmless the Depositor, the Master
Servicer and the Trust Administrator, and each Person, if any, who “controls”
the Depositor, the Master Servicer and the Trust Administrator within the
meaning of the Securities Act and their respective officers, directors
and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs
and expenses that such Person may sustain arising out of third party claims
based on (i) the failure of the Custodian (or any Servicing Function Participant
engaged by it) to deliver or cause to be delivered when required any Assessment
of Compliance or Accountant’s Attestation required pursuant to Section
[3.22(a)(i) or 3.22(b)(i)] or (ii) any material misstatement or omission
contained in any Assessment of Compliance provided pursuant to Section
[3.22(a)(i)].
(F) If
the indemnification provided for herein is unavailable or insufficient
to hold
harmless the Depositor, the Master Servicer, the Trustee or the Trust
Administrator, as applicable, then the defaulting party, in connection
with a
breach of its respective obligations under this Section 4.07 or its respective
negligence, bad faith or willful misconduct in connection therewith, agrees
that
it shall contribute to the amount paid or payable by the other parties
as a
result of the losses, claims, damages or liabilities of the other party
in such
proportion as is appropriate to reflect the relative fault and the relative
benefit of the respective parties. This indemnification shall survive
the termination of this Agreement or the termination of any party to this
Agreement.
(c) Nothing
shall be construed from the foregoing subsections (a) and (b) to require
the
Trust Administrator or any officer, director or Affiliate thereof to sign
any
Form 10-K or any certification contained therein. Furthermore, the
inability of the Trust Administrator to file a Form 10-K as a result of
the lack
of required information as set forth in Section 4.07(a) or
required signatures on such Form 10-K or any certification contained therein
shall not be regarded as a breach by the Trust Administrator of any obligation
under this Agreement.
(d) Notwithstanding
the provisions of Section 11.01, this
Section 4.07
may be amended without the consent of the Certificateholders.
(e) Each
of the parties agrees to provide to the Master Servicer and the Trust
Administrator such additional information related to such party as the
Master
Servicer and the Trust Administrator may reasonably request,
including evidence of the authorization of the person signing any certificate
or
statement, financial information and reports, and such other information
related
to such party or its performance hereunder.
118
(f) Any
notice or notification required to be delivered by the Trust Administrator
or
Master Servicer to the Depositor pursuant to this Section 4.07, may
be
delivered via facsimile to the legal department at [(___) ___-____], with
a copy
delivered to the operations group at facsimile [(___) ___-____].
Section
4.08. REMIC Distributions
and
Allocation of Losses.
(a) On
each Distribution Date, the Trust Administrator shall be deemed to cause
in the
following order of priority, the following amounts to be distributed by
REMIC I to REMIC II on account of the REMIC I Regular Interests
or withdrawn from the Certificate Account and distributed to the Holders
of the
Class R Certificates (in respect of the Class R-I Interest), as the case
may
be:
(i) With
respect to the Group 1 Mortgage Loans,
(A) to
Class 1-Initial Interest and Class 1-PF Interest in an amount equal to
(I) the
Uncertificated Accrued Interest for such REMIC 1 Regular Interest for such
Distribution Date, plus (II) any amounts payable in respect thereof remaining
unpaid from previous Distribution Dates;
(B) to
the extent of amounts remaining after the distributions made pursuant to
clause
(A) above, payments of principal shall be allocated to the Class 1-Initial
Interest, until the Uncertificated Balance thereof is reduced to zero;
then, to
Class 1-PF Interest until the Uncertificated Balance thereof is reduced
to zero;
provided however, with respect to the first three Distribution Dates, principal
payments on the Initial Group 1 Mortgage Loans shall be allocated to the
Class
1-Initial Interest until the Uncertificated Balance thereof has been reduced
to
zero, and all principal payments on the Subsequent Group 1 Mortgage Loans
shall
be allocated to the Class 1-PF Interest until the Uncertificated Balance
thereof
has been reduced to zero;
(C) any
remaining amount to the Class R Certificates (in respect of the Class R-I
Interest).
(ii) With
respect to the Group 2 Mortgage Loans,
(A) to
Class 2-Initial Interest and Class 2-PF Interest in an amount equal to
(I) the
Uncertificated Accrued Interest for such REMIC 2 Regular Interest for such
Distribution Date, plus (II) any amounts payable in respect thereof remaining
unpaid from previous Distribution Dates;
(B) to
the extent of amounts remaining after the distributions made pursuant to
clause
(A) above, payments of principal shall be allocated to the Class 2-Initial
Interest, until the Uncertificated Balance thereof is reduced to zero;
then, to
Class 2-PF Interest until the Uncertificated Balance thereof is reduced
to zero;
provided however, with respect to the first three Distribution Dates, principal
payments on the Initial Group 2 Mortgage Loans shall be allocated to the
Class
2-Initial
119
Interest
until the Uncertificated Balance thereof has been reduced to zero, and
all
principal payments on the Subsequent Group 2 Mortgage Loans shall be allocated
to the Class 2-PF Interest until the Uncertificated Balance thereof has
been
reduced to zero;
(C) any
remaining amount to the Class R Certificates (in respect of the Class R-I
Interest).
(iii) With
respect to the Group 3 Mortgage Loans,
(A) to
Class 3-Initial Interest and Class 3-PF Interest in an amount equal to
(I) the
Uncertificated Accrued Interest for such REMIC 3 Regular Interest for such
Distribution Date, plus (II) any amounts payable in respect thereof remaining
unpaid from previous Distribution Dates;
(B) to
the extent of amounts remaining after the distributions made pursuant to
clause
(A) above, payments of principal shall be allocated to the Class 3-Initial
Interest, until the Uncertificated Balance thereof is reduced to zero;
then, to
Class 3-PF Interest until the Uncertificated Balance thereof is reduced
to zero;
provided however, with respect to the first three Distribution Dates, principal
payments on the Initial Group 3 Mortgage Loans shall be allocated to the
Class
3-Initial Interest until the Uncertificated Balance thereof has been reduced
to
zero, and all principal payments on the Subsequent Group 3 Mortgage Loans
shall
be allocated to the Class 3-PF Interest until the Uncertificated Balance
thereof
has been reduced to zero;
(C) any
remaining amount to the Class R Certificates (in respect of the Class R-I
Interest).
120
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(iv)
|
For
purposes of calculating Uncertificated Accrued Interest in respect
of each
REMIC I Regular Interest and any Distribution Date, Net Prepayment
Interest Shortfalls, Relief Act Reductions, and the aggregate
of the
amounts provided in Section 4.02(b) with respect to Special Hazard
Mortgage Loans, Mortgage Loans subject to a Bankruptcy Loss and
Fraud
Loans shall be allocated to the related REMIC I Regular Interest
in the
same relative proportions as interest is allocated to such REMIC
I Regular
Interest. With respect to Relief Act Reductions and the
aggregate of the amounts provided in Section 4.02(b) with respect
to
Special Hazard Mortgage Loans, Mortgage Loans subject to a Bankruptcy
Loss
and Fraud Loans allocated to the REMIC I Regular Interests pursuant
to
this paragraph, such amounts shall be from (a) amounts allocated
to the
Loan Group 1 in the case of REMIC I Regular Interests beginning
with the
numeral “1,” (b) amounts allocated to Loan Group 2 in the case of REMIC I
Regular Interests beginning with the numeral “2” and (c) amounts allocated
to Loan Group 3 in the case of REMIC I Regular Interests beginning
with
the numeral “3.”
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|
(v)
|
Realized
Losses and Excess Losses with respect to the Group 1 Mortgage
Loans shall
be allocated first to the Class 1-Initial Interest and then the
Class 1-PF
Interest until the Uncertificated Balance of each such REMIC
I Regular
Interest has been reduced to zero; provided however, with respect
to the
first three Distribution Dates, all Realized Losses on the Initial
Group 1
Mortgage Loans shall be allocated to Class 1-Initial Interest
until the
Uncertificated Balance of such REMIC I Regular Interest has been
reduced
to zero, and all Realized Losses on the Subsequent Group 1 Mortgage
Loans
shall be allocated to Class 1-PF Interest until the Uncertificated
Balance
thereof has been reduced to zero. Realized Losses with respect
to the Group 2 Mortgage Loans shall be allocated first to the
Class
2-Initial Interest and then the Class 2-PF Interest until the
Uncertificated Balance of each such REMIC I Regular Interest
has been
reduced to zero; provided however, with respect to the first
three
Distribution Dates, all Realized Losses on the Initial Group
2 Mortgage
Loans shall be allocated to Class 2-Initial Interest until the
Uncertificated Balance of such REMIC I Regular Interest has been
reduced
to zero, and all Realized Losses on the Subsequent Group 2 Mortgage
Loans
shall be allocated to Class 2-PF Interest until the Uncertificated
Balance
thereof has been reduced to zero. Realized Losses with respect
to the Group 3 Mortgage Loans shall be allocated first to the
Class
3-Initial Interest and then the Class 3-PF Interest until the
Uncertificated Balance of each such REMIC I Regular Interest
has been
reduced to zero; provided however, with respect to the first
three
Distribution Dates, all Realized Losses on the Initial Group
3 Mortgage
Loans shall be allocated to Class 3-Initial Interest until the
Uncertificated Balance of such REMIC I Regular Interest has been
reduced
to zero, and all Realized Losses on the Subsequent Group 3 Mortgage
Loans
shall be allocated to Class 3-PF Interest until the Uncertificated
Balance
thereof has been reduced to
zero.
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121
|
(vi)
|
Recoveries
received with respect to the Loan Groups shall be applied to
the REMIC I
Regular Interests in a manner analogous to the application of
Realized
Losses to the REMIC I Regular
Interests.
|
(b) Distributions
on the REMIC II Regular Interests. On each Distribution Date, the
Trust Administrator shall be deemed to cause in the following order of
priority,
the following amounts to be distributed by REMIC II to REMIC III on account
of
the REMIC II Regular Interests or withdrawn from the Certificate Account
and
distributed to the Holder of the Class R Certificate (in respect of the
R-II
Interest), as the case may be:
|
(i)
|
(A)
|
to
the REMIC II Regular Interests, in an amount equal to (I) the
Uncertificated Accrued Interest for such REMIC II Regular Interest
for
such Distribution Date, plus (II) any amounts payable in respect
thereof
remaining unpaid from previous Distribution
Dates;
|
(B) to
the Class 1-LS Interest, the Class 2-LS Interest and the Class 3-LS Interest
so
as to keep the Uncertificated Balances thereof (computed to eight decimal
places) equal to 0.100% of the Group Subordinate Amount for Loan Group
1, Loan
Group 2 and Loan Group 3, respectively (except that if any such amount
is
greater than on the preceding Distribution Date, the least amount of principal
shall be distributed to the Class 1-LS Interest, the Class 2-LS Interest
and the
Class 3-LS Interest, such that the Subordinate Balance Ratio is maintained);
and
then any remaining principal to the Class 1-L Interest, Class 2-L Interest
and
Class 3-L Interest; and
(C) any
remaining amount to the Class R Certificates (in respect of the Class R-II
Interest).
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(ii)
|
Any
distributions of principal made to the REMIC II Regular Interests
pursuant
to this Section 4.08(b) shall be made from the Group 1 Mortgage
Loans to
the REMIC II Regular Interests beginning with the numeral “1,” from the
Group 2 Mortgage Loans to the REMIC II Regular Interests beginning
with
the numeral “2,” and from Group 3 Mortgage Loans to the REMIC II Regular
Interests beginning with the numeral
“3.”
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|
(iii)
|
For
purposes of calculating Uncertificated Accrued Interest in respect
of each
REMIC II Regular Interest and any Distribution Date, Net Prepayment
Interest Shortfalls, Relief Act Reductions, and the aggregate
of the
amounts provided in Section 4.02(b) with respect to Special Hazard
Mortgage Loans, Mortgage Loans subject to a Bankruptcy Loss and
Fraud
Loans shall be allocated to the related REMIC II Regular Interest
in the
same relative proportions as interest is allocated to such REMIC
II
Regular Interest. With respect to Relief Act Reductions and the
aggregate of the amounts provided in Section 4.02(b) with respect
to
Special Hazard Mortgage Loans, Mortgage Loans subject to a Bankruptcy
Loss
and Fraud Loans allocated to the REMIC II Regular Interests pursuant
to
this paragraph,
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122
such
amounts shall be from (a) amounts allocated to the Loan Group 1 in the
case of
REMIC II Regular Interests beginning with the numeral “1,” (b) amounts allocated
to Loan Group 2 in the case of REMIC II Regular Interests beginning with
the
numeral “2” and (c) amounts allocated to Loan Group 3 in the case of REMIC II
Regular Interests beginning with the numeral “3.”
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(iv)
|
Realized
Losses and Excess Losses with respect to the Loan Groups shall
be applied
after all distributions have been made on each Distribution Date
first, to
the Class 1-LS Interest, the Class 2-LS Interest and the Class
3-LS
Interest so as to keep the Uncertificated Balances thereof (computed
to
eight decimal places) equal to 0.100% of the Group Subordinate
Amount for
Loan Group 1, Loan Group 2 and Loan Group 3, respectively (except
that if
any such amount is greater than on the preceding Distribution
Date, the
least amount of Realized Losses shall be allocated to the Class
1-LS
Interest, the Class 2-LS Interest and the Class 3-LS Interest,
such that
the Subordinate Balance Ratio is maintained) and third, the remaining
Realized Losses shall be allocated to the Class 1-L Interest,
Class 2-L
Interest and Class 3-L Interest. Any Realized Losses allocated
to the REMIC II Regular Interests pursuant to this paragraph
shall be from
the Group 1 Mortgage Loans to the REMIC II Regular Interests
beginning
with the numeral “1,” from the Group 2 Mortgage Loans to the REMIC II
Regular Interests beginning with the numeral “2,” and from Group 3
Mortgage Loans to the REMIC II Regular Interests beginning with
the
numeral “3.”
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|
(v)
|
Recoveries
received with respect to the Loan Groups shall be applied to
the REMIC II
Regular Interests in a manner analogous to the application of
Realized
Losses to the REMIC II Regular
Interests.
|
(c) Distributions
on the REMIC III Regular Interests. Each REMIC III Regular Interest
will be entitled to receive interest and principal payments at the times
and in
the amounts equal to those made on the Certificate with the same
designation. Each REMIC III Regular Interest will have at all times
an Uncertificated Balance equal to the Certificate Principal Balance of
the
Certificates with the same designation.
(d) Notwithstanding
anything to the contrary contained herein, the above distributions in this
Section 4.08 (other than on the Certificates) are deemed distributions,
and
distributions of funds from the Certificate Account shall be made only
in
accordance with Sections 4.01 and 4.02 hereof.
ARTICLE
V
Section
5.01. The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in
the minimum denominations, integral multiples in excess thereof (except
that one
Certificate in each Class may be issued in a different
123
amount
which must be in excess of the applicable minimum denomination) and aggregate
denominations per Class set forth in the Preliminary
Statement.
Subject
to Section 9.02
respecting the final distribution on the Certificates, on each Distribution
Date
the Trust Administrator shall make distributions to each Certificateholder
of
record on the preceding Record Date either (x) by wire transfer in
immediately available funds to the account of such holder at a bank or
other
entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Trust
Administrator or (y), in the event that no wire instructions are provided
to the
Trust Administrator, by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The
Certificates shall be executed by manual or facsimile signature on behalf
of the
Trust Administrator by an authorized officer. Certificates bearing
the manual or facsimile signatures of individuals who were, at the time
such
signatures were affixed, authorized to sign on behalf of the Trust Administrator
shall bind the Trust Administrator, notwithstanding that such individuals
or any
of them have ceased to be so authorized prior to the countersignature and
delivery of any such Certificates or did not hold such offices at the date
of
such Certificate. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless countersigned
by the
Trust Administrator by manual signature, and such countersignature upon
any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their countersignature. On
the Closing Date, the Trust Administrator shall countersign the Certificates
to
be issued at the direction of the Depositor, or any affiliate
thereof.
The
Depositor shall provide, or cause to be provided, to the Trust Administrator
on
a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section
5.02. Certificate
Register;
Registration of Transfer and Exchange of Certificates.
(a) The
Trust Administrator shall maintain, or cause to be maintained in accordance
with
the provisions of Section 5.06, a
Certificate Register for the Trust Fund in which, subject to the provisions
of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Trust Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. Upon surrender for registration of transfer of any
Certificate, the Trust Administrator shall execute and deliver, in the
name of
the designated transferee or transferees, one or more new Certificates
of the
same Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing
the
same aggregate Percentage Interest upon surrender of the Certificates to
be
exchanged at the office or agency of the Trust
Administrator. Whenever any Certificates are so surrendered for
exchange, the Trust Administrator shall execute, authenticate, and deliver
the
Certificates which the Certificateholder making the exchange is entitled
to
receive. Every Certificate presented or surrendered for
124
registration
of transfer or exchange shall be accompanied by a written instrument of
transfer
in form satisfactory to the Trust Administrator duly executed by the holder
thereof or his attorney duly authorized in writing. In the event the
Depositor or an Affiliate transfers the Class C Certificates, or a portion
thereof, to another Affiliate, it shall notify the Trust Administrator
in
writing of the affiliated status of the transferee. The Trust
Administrator shall have no liability regarding the lack of notice with
respect
thereto.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to
cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall
be
cancelled and subsequently destroyed by the Trust Administrator in accordance
with the Trust Administrator’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is
made
pursuant to an effective registration statement under the Securities Act
and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such state securities laws. Except with respect to
the initial transfer of the Class [__] Certificates to the NIM Trust or, in
connection with the ultimate dissolution of the NIM Trust, the transfer
of such
Certificates from the NIM Trust to the Depositor, in the event that a transfer
of a Private Certificate which is a Physical Certificate is to be made
in
reliance upon an exemption from the Securities Act and such laws, in order
to
assure compliance with the Securities Act and such laws, the Certificateholder
desiring to effect such transfer shall certify to the Trust Administrator
in
writing the facts surrounding the transfer in substantially the form set
forth
in Exhibit H (the
“Transferor
Certificate”) and either (i) there shall be delivered to the Trust
Administrator a letter in substantially the form of Exhibit I (the
“Rule 144A
Letter”) or (ii) in the case of the Class C Certificates, there
shall be delivered to the Trust Administrator at the expense of the transferor
an Opinion of Counsel that such transfer may be made without registration
under
the Securities Act. In the event that a transfer of a Private
Certificate which is a Book-Entry Certificate is to be made in reliance
upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to
effect
such transfer will be deemed to have made as of the transfer date each
of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in
respect of such Certificate, in each case as if such Certificate were evidenced
by a Physical Certificate. The Depositor shall provide to any Holder
of a Private Certificate and any prospective transferee designated by any
such
Holder, information regarding the related Certificates and the Mortgage
Loans
and such other information as shall be necessary to satisfy the condition
to
eligibility set forth in Rule 144A(d)(4) for transfer of any such
Certificate without registration thereof under the Securities Act pursuant
to
the registration exemption provided by Rule 144A. The Trustee,
the Trust Administrator, the Master Servicer and the Servicer shall cooperate
with the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding
the
Trust Fund as the Depositor shall reasonably request to meet its
125
obligation
under the preceding sentence. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee, the Trust Administrator, the Master Servicer, the Depositor and
the
Servicer against any liability that may result if the transfer is not so
exempt
or is not made in accordance with such federal and state laws.
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trust
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trust Administrator (in the event such Certificate
is a
Private Certificate or a Residual Certificate, such requirement is satisfied
only by the Trust Administrator’s receipt of a representation letter from the
transferee substantially in the form of Exhibit I), to
the effect that such transferee is not an employee benefit plan or arrangement
subject to Title I of ERISA or to Section 4975 of the Code or any
governmental plan or church plan subject to federal, state or local laws
that
are substantially similar to the provisions of ERISA and the Code (“Similar Law”)
(collectively, a “Plan”) or
a person
acting for, on behalf of or with the assets of, any such Plan, or (ii) in
the case of an ERISA-Restricted Certificate (other than a Residual Certificate)
presented for registration in the name of a Plan or a person acting for,
on
behalf of or with the assets of, any such Plan, an Opinion of Counsel
satisfactory to the Trustee, the Trust Administrator and the Servicer,
which
Opinion of Counsel shall not be an expense of the Depositor, the Trustee,
the
Trust Administrator, the Master Servicer, the Servicer or the Trust Fund,
upon
which the Depositor, the Trustee, the Master Servicer, the Trust Administrator
and the Servicer shall be entitled to rely, to the effect that the purchase
or
holding of such ERISA-Restricted Certificate (i) is permissible under applicable
law, (ii) will not result in a non-exempt prohibited transaction under
Title I
of ERISA, Section 4975 of the Code or a violation of Similar Law and (iii)
will
not subject the Depositor, the Trustee, the Trust Administrator, the Master
Servicer or the Servicer to any obligation or liability (including obligations
or liabilities under ERISA or Section 4975 of the Code) in addition to
those
undertaken by such entities in this Agreement. For purposes of clause
(i) above, with respect to an ERISA-Restricted Certificate that is a Book-Entry
Certificate, in the event the representation letter referred to above is
not
furnished, such representation shall be deemed to have been made to the
Trustee
and the Trust Administrator by the transferee’s (including an initial
acquirer’s) acceptance of the ERISA-Restricted Certificates. In the
event that such representation is violated, or any attempt to transfer
to a Plan
or a person acting for, on behalf of or with the assets of, any such Plan,
without such Opinion of Counsel, such attempted transfer or acquisition
shall be
void and of no effect. Any purported beneficial owner whose acquisition
or
holding of any such Certificate or interest therein was effected in violation
of
the provisions of the preceding paragraph shall indemnify and hold harmless
the
Depositor, the Master Servicer, the Trustee, the Trust Administrator and
the
Trust Fund from and against any and all liabilities, claims, costs or expenses
incurred by those parties as a result of that acquisition or
holding.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Trust Administrator shall be under no liability to any Person for any
registration or transfer of any ERISA-Restricted Certificate that is in
fact not
permitted by this Section 5.02(b)
or for making any payments due on such Certificate to the Holder thereof
or
taking any other action with respect to such Holder under the provisions
of this
Agreement so long as the transfer was registered by the Trust Administrator
in
accordance with the foregoing requirements.
126
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of
each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trust
Administrator of any change or impending change in its status as a Permitted
Transferee;
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trust Administrator shall not register
the Transfer of any Residual Certificate unless, in addition to the certificates
required to be delivered to the Trust Administrator under subparagraph (b)
above, the Trust Administrator shall have been furnished with an affidavit
(a
“Transfer
Affidavit”) of the initial owner or the proposed transferee substantially
in the form attached hereto as Exhibit G;
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to
whom such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee;
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section 5.02(c),
then the last preceding Permitted Transferee shall be restored to all rights
as
Holder thereof retroactive to the date of registration of Transfer of such
Residual Certificate. The Trust Administrator shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b)
and this Section 5.02(c)
or for making any payments due on such Certificate to the Holder thereof
or
taking any other action with respect to such Holder under the provisions
of this
Agreement so long as the Transfer was registered after receipt of the related
Transfer Affidavit, Transferor Certificate and the Rule 144A
Letter. The Trust Administrator shall be entitled but not obligated
to recover from any Holder of a Residual Certificate that was in fact not
a
Permitted Transferee at the time it became a Holder or, at such subsequent
time
as it became other than a Permitted Transferee, all payments made on such
Residual Certificate at and after either such time. Any such payments
so recovered by the Trust Administrator shall be paid and delivered by
the Trust
Administrator, to the last preceding Permitted Transferee of such Certificate;
and
127
(v) The
Depositor shall use its best efforts to make available, upon receipt of
written
request from the Trust Administrator, all information necessary to compute
any
tax imposed under Section 860E(e) of the Code as a result of a Transfer of
an Ownership Interest in a Residual Certificate to any Holder who is not
a
Permitted Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this Section 5.02(c)
shall cease to apply (and the applicable portions of the legend on a Residual
Certificate may be deleted) with respect to Transfers occurring after delivery
to the Trust Administrator of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Trust Fund, the Trustee, the Trust Administrator,
the Master Servicer, the Originator or the Servicer, to the effect that
the
elimination of such restrictions will not cause any Trust REMIC to fail
to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or
another
Person. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement
which,
based on an Opinion of Counsel furnished to the Trust Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly
or
indirectly, to a Person that is not a Permitted Transferee and (b) to
provide for a means to compel the Transfer of a Residual Certificate which
is
held by a Person that is not a Permitted Transferee to a Holder that is
a
Permitted Transferee.
(d) The
registered Holder of a Class R Certificate will be entitled to separate
such
Certificate into its component parts. The Trust Administrator shall,
upon delivery to it of the Class R Certificate and a written request of
the
registered Holder thereof to separate such Certificate into its component
parts,
issue to such registered Holder in exchange for such Class R Certificate
(i) a
separately transferable, certified and fully registered security that will,
from
the date of its issuance, represent the Holder’s Percentage Interest in the
Class R-I Interest, (ii) a separately transferable, certified and fully
registered security that will, from the date of its issuance, represent
the
Holder’s Percentage Interest in the Class R-II Interest and (iii) a separately
transferable, certified and fully registered security that will, from the
date
of its issuance, represent the Holder’s Percentage Interest in the Class R-III
Interest. The Trust Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
with such exchange of the Class R Certificate.
(e) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(f) Except
as provided below, the Book-Entry Certificates shall at all times remain
registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be
transferred by the Trust Administrator except to another Depository;
(ii) the Depository shall maintain book-entry records with respect to the
Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (iii) ownership and transfers of registration of
the Book-Entry Certificates on the books of the Depository shall be governed
by
applicable rules established by the Depository; (iv) the Depository may
collect its usual and customary fees, charges and expenses from its Depository
Participants; (v) the Trust Administrator shall deal with the Depository,
Depository Participants and indirect participating
128
firms
as
representatives of the Certificate Owners of the Book-Entry Certificates
for
purposes of exercising the rights of Holders under this Agreement, and
requests
and directions for and votes of such representatives shall not be deemed
to be
inconsistent if they are made with respect to different Certificate Owners;
and
(vi) the Trust Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books
of such
indirect participating firms as direct or indirect Certificate
Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made
in
accordance with the procedures established by the Depository Participant
or
brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate
Owners it
represents or of brokerage firms for which it acts as agent in accordance
with
the Depository’s normal procedures.
If
(i) the Depository or the Depositor advises the Trust Administrator in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trust Administrator or the
Depositor is unable to locate a qualified successor, the Trust Administrator
shall notify all Certificate Owners, through the Depository, of the occurrence
of any such event and of the availability of definitive, fully-registered
Certificates (the “Definitive
Certificates”) to Certificate Owners requesting the same. Upon
surrender to the Trust Administrator of the related Class of Certificates
by the
Depository, accompanied by the instructions from the Depository for
registration, the Trust Administrator shall issue the Definitive
Certificates. None of the Servicer, the Master Servicer, the Trust
Administrator, the Depositor or the Trustee shall be liable for any delay
in
delivery of such instruction and each may conclusively rely on, and shall
be
protected in relying on, such instructions. The Depositor shall
provide the Trust Administrator with an adequate inventory of Certificates
to
facilitate the issuance and transfer of Definitive Certificates. Upon
the issuance of Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed to be
imposed
upon and performed by the Trust Administrator, to the extent applicable
with
respect to such Definitive Certificates and the Trust Administrator shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder; provided, that
the
Trust Administrator shall not by virtue of its assumption of such obligations
become liable to any party for any act or failure to act of the
Depository.
(g) Each
Private Certificate presented or surrendered for registration of transfer
or
exchange shall be accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments)
or W-9 in form satisfactory to the Trust Administrator and the Certificate
Registrar, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed
of by the Certificate Registrar in accordance with its customary
practice. No service charge shall be made for any registration of
transfer or exchange of Private Certificates, but the Trust Administrator
or the
Certificate Registrar may require payment of a sum sufficient to cover
any tax
or governmental charge that may be imposed in connection with any transfer
or
exchange of Private Certificates.
129
Section
5.03. Mutilated, Destroyed,
Lost
or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Trust Administrator, or
the Trust Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
the Depositor, the Servicer and the Trust Administrator such security or
indemnity as may be required by them to hold each of them harmless, then,
in the
absence of notice to the Trust Administrator that such Certificate has
been
acquired by a protected purchaser, the Trust Administrator shall execute,
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class,
tenor
and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03,
the Trust Administrator may require the payment of a sum sufficient to
cover any
tax or other governmental charge that may be imposed in relation thereto
and any
other expenses (including the fees and expenses of the Trust Administrator)
connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section
5.04. Persons Deemed
Owners.
The
Servicer, the Master Servicer, the Trust Administrator, the Trustee, the
Depositor, and any agent of the Servicer, the Master Servicer, the Trust
Administrator, the Trustee or the Depositor may treat the Person in whose
name
any Certificate is registered as the owner of such Certificate for the
purpose
of receiving distributions as provided in this Agreement and for all other
purposes whatsoever, and none of the Servicer, the Trustee, the Depositor
or any
agent of the Servicer, the Master Servicer, the Trust Administrator, the
Trustee
or the Depositor shall be affected by any notice to the contrary.
Section
5.05. Access to List
of
Certificateholders’ Names and Addresses.
If
three
or more Certificateholders (a) request such information in writing from the
Trust Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights
under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if
the
Depositor or the Servicer shall request such information in writing from
the
Trust Administrator, then the Trust Administrator shall, within ten Business
Days after the receipt of such request, provide the Depositor, the Servicer
or
such Certificateholders at such recipients’ expense the most recent list of the
Certificateholders of such Trust Fund held by the Trust Administrator,
if
any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trust Administrator shall not be
held
accountable by reason of the disclosure of any such information as to the
list
of the Certificateholders hereunder, regardless of the source from which
such
information was derived.
Section
5.06. Maintenance
of Office or
Agency.
The
Trust
Administrator will maintain or cause to be maintained at its expense an
office
or offices or agency or agencies in Minneapolis, Minnesota where Certificates
may be
130
surrendered
for registration of transfer or exchange. The Trust Administrator
initially designates its offices located at Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 for such purposes. The Trust
Administrator will give prompt written notice to the Certificateholders
of any
change in such location of any such office or agency.
ARTICLE
VI
THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SERVICER AND THE
CUSTODIAN
Section
6.01. Respective Liabilities
of
the Depositor, the Originator, the Master Servicer and the
Servicer.
The
Depositor, the Originator, the Master Servicer, the Servicer and the Custodian
shall each be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by
them
herein.
Section
6.02. Merger or Consolidation
of
the Depositor, the Originator, the Master Servicer, the Servicer or the
Custodian.
The
Depositor, the Originator, the Master Servicer, the Servicer and the Custodian
will each keep in full effect its existence, rights and franchises as a
corporation, national bank or state industrial bank, as the case may be,
under
the laws of the United States or under the laws of one of the states thereof
and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall
be
necessary to protect the validity and enforceability of this Agreement,
or any
of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any
Person into which the Depositor, the Originator, the Master Servicer, the
Servicer or the Custodian may be merged or consolidated, or any Person
resulting
from any merger or consolidation to which the Depositor, the Originator,
the
Master Servicer, the Servicer or the Custodian shall be a party, or any
person
succeeding to the business of the Depositor, the Originator, the Master
Servicer, the Servicer or the Custodian, shall be the successor of the
Depositor, the Originator, the Master Servicer, the Servicer or the Custodian,
as the case may be, hereunder, without the execution or filing of any paper
or
any further act on the part of any of the parties hereto, anything herein
to the
contrary notwithstanding; provided, however,
that such
merger, consolidation or succession does not adversely affect the then
current
rating or ratings on the Senior Certificates and Subordinate
Certificates.
Section
6.03. Limitation on
Liability of
the Depositor, the Originator, the Master Servicer, the Trust Administrator,
the
Servicer, the Custodian and Others.
None
of
the Depositor, the Originator, the Master Servicer, the Trust Administrator,
the
Servicer, the Custodian nor any of their respective directors, officers,
employees or agents shall be under any liability to the Certificateholders
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 Depositor, the Servicer or any such
Person
against any breach of representations or warranties made by it herein or
protect
the
131
Depositor,
the Originator, the Master Servicer, the Servicer, the Trust Administrator,
the
Custodian or any such Person from any liability which would otherwise be
imposed
by reasons of willful misfeasance, bad faith or negligence (or gross negligence
in the case of the Depositor) in the performance of duties or by reason
of
reckless disregard of obligations and duties hereunder. The
Depositor, the Originator, the Master Servicer, the Servicer, the Trust
Administrator, the Custodian and any director, officer, employee or agent
of the
Depositor, the Originator, the Master Servicer, the Servicer, the Trust
Administrator and the Custodian each may rely in good faith on any document
of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Depositor, the Originator, the
Master Servicer, the Servicer, the Trust Administrator, the Custodian and
any
director, officer, employee or agent of the Depositor, the Originator,
the
Master Servicer, the Servicer, the Trust Administrator and the Custodian
each
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any audit, controversy,
judicial proceeding or legal action relating to a governmental taxing authority
or to this Agreement, the Certificates or the Mortgage Loans or any other
unanticipated or extraordinary expense within the meaning of Treasury Regulation
§ 1.860G-1(b)(3)(ii) or (iii) , other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence (or
gross
negligence in the case of the Depositor) in the performance of their respective
duties hereunder or by reason of reckless disregard of their respective
obligations and duties hereunder. None of the Originator, the Master
Servicer, the Depositor, the Custodian nor the Servicer shall be
under any obligation to appear in, prosecute or defend any legal action
that is
not incidental to its respective duties hereunder and which in its opinion
may
involve it in any expense or liability; provided, however, that each of
the
Depositor, the Originator, the Master Servicer, the Custodian and the Servicer
may in its discretion undertake any such action (or direct the Trustee
or the
Trust Administrator to undertake such actions pursuant to Section 2.03 for
the benefit of the Certificateholders) that it may deem necessary or desirable
in respect of this Agreement and the rights and duties of the parties hereto
and
interests of the Trustee and the Certificateholders 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 Trust
Fund,
and the Depositor, the Originator, the Trust Administrator, the Trustee,
the
Master Servicer, the Custodian and the Servicer, as applicable, shall be
entitled to be reimbursed therefor out of the Collection Account.
The
Master Servicer agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense resulting from a breach of the
Master
Servicer’s obligations and duties under this Agreement. Such
indemnity shall survive the termination or discharge of this Agreement
and the
resignation or removal of the Trustee. Any payment hereunder made by
the Master Servicer to the Trustee shall be from the Master Servicer’s own
funds, without reimbursement from the Trust Fund.
Section
6.04. Limitation on
Resignation of
the Servicer or Custodian.
Neither
the Servicer nor the Custodian shall assign this Agreement or resign from
the
obligations and duties hereby imposed on it except (i) by mutual consent of
the Depositor, the Master Servicer, the Trust Administrator and the Trustee,
in
the case of an assignment or resignation by the Servicer, or by the mutual
consent of the Depositor and the Trustee, in the case of an assignment
or
resignation by the Custodian, or (ii) upon the determination that
its
132
respective
duties hereunder are no longer permissible under applicable law and such
incapacity cannot be cured by the Servicer or Custodian without the incurrence
of unreasonable expense. Any such determination permitting the
resignation of the Servicer or Custodian under clause (ii) above shall
be
evidenced by an Opinion of Counsel to such effect delivered to the Depositor,
the Master Servicer, the Trust Administrator and the Trustee, as applicable,
which Opinion of Counsel shall be in form and substance acceptable to the
Depositor, the Trust Administrator, the Master Servicer and the Trustee,
as
applicable. No such resignation shall become effective until a
successor shall have assumed the Servicer’s or Custodian’s, as applicable,
responsibilities and obligations hereunder.
Section
6.05. Additional Indemnification
by the Servicer; Third Party Claims.
The
Servicer shall indemnify the Originator, the Depositor, the Master Servicer,
the
Trust Administrator and the Trustee and hold 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
that any of them may sustain in any way related to any breach by the Servicer
of
(i) any of its representations and warranties referred to in
Section 2.03(a), (ii) any error in any tax or information return
prepared by the Servicer, or (iii) the failure of the Servicer to perform
its duties and service the Mortgage Loans in compliance with the terms
of this
Agreement. The Servicer immediately shall notify the Depositor, the
Master Servicer, the Trust Administrator and the Trustee if such claim
is made
by a third party with respect to this Agreement or the Mortgage Loans,
assume
(with the prior written consent of the Depositor, the Trust Administrator,
the
Master Servicer and the Trustee) the defense of any such claim and pay
all
expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered
against it or the Originator, the Depositor, the Master Servicer, the Trust
Administrator or the Trustee in respect of such claim.
Section
6.06. Rights of the
Depositor, the
Master Servicer, the Trust Administrator and the Trustee in Respect of
the
Servicer.
The
Servicer shall afford (and any Subservicing Agreement shall provide that
each
Subservicer shall afford) the Depositor, the Master Servicer, the Trust
Administrator and the Trustee, upon reasonable notice, during normal business
hours, access to all records maintained by the Servicer (and any such
Subservicer) in respect of the Servicer’s rights and obligations hereunder and
access to officers of the Servicer (and those of any such Subservicer)
responsible for such obligations. Upon request, the Servicer shall
furnish to the Depositor, the Master Servicer, the Trust Administrator
and the
Trustee its (and any such Subservicer’s) most recent financial statements and
such other information relating to the Servicer’s capacity to perform its
obligations under this Agreement that it possesses. To the extent the
parties are informed that such information is not otherwise available to
the
public or is deemed confidential by the Servicer, the Depositor, the Master
Servicer, the Trust Administrator and the Trustee shall not disseminate
any
information obtained pursuant to the preceding two sentences without the
Servicer’s (or any such Subservicer’s) written consent, except as required
pursuant to this Agreement or to the extent that it is necessary to do
so (i) in
working with legal counsel, auditors, taxing authorities or other governmental
agencies, rating agencies or reinsurers or (ii)
133
pursuant
to any law, rule, regulation, order, judgment, writ, injunction or decree
of any
court or governmental authority having jurisdiction over the Depositor,
the
Trustee, the Master Servicer, the Trust Administrator or the Trust Fund,
and in
either case, the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee, as the case may be, shall each use its best efforts to assure
the
confidentiality of any such disseminated non-public
information. Nothing in this Section shall limit the obligation of
the Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access
as
provided in this Section as a result of such obligation shall not constitute
a
breach of this Section. Nothing in this Section 6.06 shall require
the Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business. The
Servicer shall not be required to make copies of or ship documents to any
party
unless provisions have been made for the reimbursement of the costs
thereof.
The
Depositor may, but is not obligated to, enforce the obligations of the
Servicer
under this Agreement and may, but is not obligated to, perform, or cause
a
designee to perform, any defaulted obligation of the Servicer under this
Agreement or exercise the rights of the Servicer under this Agreement;
provided
that the Servicer shall not be relieved of any of its obligations under
this
Agreement by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or
liability for any action or failure to act by the Servicer and is not obligated
to supervise the performance of the Servicer under this Agreement or
otherwise.
Section
6.07. Limitation on
Resignation of
the Master Servicer.
The
Master Servicer shall not resign from the obligations and duties hereby
imposed
on it except (i) upon determination that its duties hereunder are no longer
permissible under applicable law or (ii) with written confirmation from
each
Rating Agency (which confirmation shall be furnished to the Depositor,
the Trust
Administrator, the Master Servicer and the Trustee) that such resignation
will
not cause such Rating Agency to reduce the then current rating of any Class
of
Senior Certificates and Subordinate Certificates. Any such
determination pursuant to clause (i) of the preceding sentence permitting
the
resignation of the Master Servicer shall be evidenced by an Opinion of
Counsel
to such effect obtained at the expense of the Master Servicer and delivered
to
the Trustee and the Trust Administrator. No resignation of the Master
Servicer shall become effective until a successor master servicer reasonably
acceptable to the Trustee shall have assumed the Master Servicer’s
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement. Any resignation or removal of the initial Master Servicer
will result in the removal of the initial Trust Administrator.
Section
6.08. Assignment of
Master
Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties
and
obligations in their entirety as Master Servicer under this Agreement;
provided,
however, that: (i) the purchaser or transferee accept in writing such assignment
and delegation and assume the obligations of the Master Servicer hereunder
and
that the purchaser or transferee (a) have a net worth of not less than
$5,000,000 (unless otherwise approved by each Rating Agency pursuant
to
134
clause
(ii) below); (b) be reasonably satisfactory to the Trustee, the Servicer
and the
Depositor (as evidenced in a writing signed by the Trustee and the Depositor);
and (c) execute and deliver to the Trustee and the Depositor an agreement,
in
form and substance reasonably satisfactory to the Trustee and the Depositor,
which contains an assumption by such Person of the due and punctual performance
and observance of each covenant and condition to be performed or observed
by it
after the date of such assumption as master servicer under this Agreement;
(ii)
each Rating Agency shall be given prior written notice of the identity
of the
proposed successor to the Master Servicer and each Rating Agency’s rating of the
Certificates in effect immediately prior to such assignment, sale and delegation
will not be downgraded, qualified or withdrawn as a result of such assignment,
sale and delegation, as evidenced by a letter to such effect delivered
to the
Master Servicer, the Depositor and the Trustee; and (iii) the Master Servicer
assigning and selling the master servicing shall deliver to the Trustee
and the
Depositor an officer’s certificate and an Opinion of Independent counsel, each
stating that all conditions precedent to such action under this Agreement
have
been completed and such action is permitted by and complies with the terms
of
this Agreement. No such assignment or delegation shall affect any
liability of the Master Servicer arising out of acts or omissions prior
to the
effective date thereof.
Section
6.09. Fees of the
Custodian.
The
Custodian shall be entitled to [receive the Custodial Fee as compensation
for
its duties hereunder][specify other method of compensation].
ARTICLE
VII
Section
7.01. Events of
Default.
(a) “Servicer
Event of Default,” wherever used herein, means any one of the following
events:
(i) 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 by the Depositor, the Trustee, the Master Servicer or the Trust
Administrator, or to the Servicer, the Depositor, the Master Servicer,
the Trust
Administrator and the Trustee by the Certificateholders entitled to at
least 25%
of the Voting Rights; or
(ii) the
failure on the part of 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 thirty
days after the earlier of (i) the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Depositor, the Trustee, the Master Servicer or the Trust
Administrator, or to the Servicer, the Depositor, the Master Servicer,
the Trust
Administrator and the Trustee by Certificateholders entitled to at least
25% of
the Voting Rights and (ii) actual knowledge of such failure by a Servicing
Officer
135
of
the
Servicer; provided, however,
that in the
case of a failure or breach that cannot be cured within 30 days after
notice or actual knowledge by the Servicer, the cure period may be extended
for
an additional 30 days upon delivery by the Servicer to the Master Servicer,
the
Trust Administrator and the Trustee of a certificate to the effect that
the
Servicer believes in good faith that the failure or breach can be cured
within
such additional time period and the Servicer is diligently pursuing remedial
action; or
(iii) the
failure by the Servicer in any month to deliver the Servicer Remittance
Report to the Trust Administrator, and such failure continues uncured for
more
than 30 days after the date upon which written notice of such failure,
requiring
the same to be remedied, shall have been given to the Servicer by the Depositor,
the Trustee, the Master Servicer or the Trust Administrator, or to the
Servicer,
the Depositor, the Master Servicer, the Trust Administrator and the Trustee
by
Certificateholders entitled to at least 25% of the Voting Rights;
or
(iv) 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, bankruptcy, 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 Servicer and such decree or
order
shall have remained in force undischarged or unstayed for a period of sixty
days; or
(v) the
Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, bankruptcy, 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
(vi) 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
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vii) any
failure of the Servicer to make any Advance on any Remittance Date required
to
be made from its own funds pursuant to Section 4.01 which continues
unremedied for one Business Day immediately following the Remittance Date;
or
(viii) a
breach of any representation and warranty of the Servicer referred to in
Section 2.03(a), which materially and adversely affects the interests of
the Certificateholders and which continues unremedied for a period of thirty
days after the date upon which written notice of such breach is given to
the
Servicer by the Trustee, the Master Servicer, the Trust Administrator or
the
Depositor, or to the Servicer, the Trustee, the Master Servicer, the Trust
Administrator and the Depositor by Certificateholders entitled to at least
25%
of the Voting Rights in the Certificates; or
(ix)
any failure by the Servicer to duly perform within the required time period,
its
obligations under Section 3.22, Section 3.23 or Section 4.07, which
failure
136
continues
unremedied for a period of 10 days after the date on which written notice
of
such failure, requiring the same to be remedied, shall have been given
to the
Servicer by the Trustee, the Master Servicer, the Trust Administrator or
the
Depositor, or to the Servicer, the Trustee, the Master Servicer, the Trust
Administrator and the Depositor by Certificateholders entitled to at least
25%
of the Voting Rights in the Certificates.
If
a
Servicer Event of Default shall occur, then, and in each and every such
case, so
long as such Servicer Event of Default shall not have been remedied, the
Master
Servicer, the Trust Administrator or the Trustee may, or at the direction
of
Certificateholders entitled to a majority of the Voting Rights, the Trust
Administrator shall direct the Trustee, and the Trustee shall, by notice
in
writing to the Servicer (with a copy to each Rating Agency), terminate
all of
the rights and obligations of the Servicer under this Agreement and in
and to
the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder; provided, however,
that the
Master Servicer or the Trustee shall not be required to give written notice
to
the Servicer of the occurrence of a Servicer Event of Default described
in
clauses (ii) through (x) of this Section 7.01(a) unless and until a
Responsible Officer of the Trustee or a Master Servicing Officer has actual
knowledge of the occurrence of such a Servicer Event of Default. In
the event that a Responsible Officer of the Trustee or a Master Servicing
Officer has actual knowledge of the occurrence of an event of default described
in clause (i) of this Section 7.01(a), the Master Servicer, the Trust
Administrator or the Trustee shall give written notice to the Servicer
of the
occurrence of such an event within one Business Day of the first day on
which
the Responsible Officer obtains actual knowledge of such occurrence; provided
that failure to give such notice shall not constitute a waiver of such
Servicer
Event of Default. On and after the receipt by the Servicer of such
written notice, all authority and power of the Servicer hereunder, whether
with
respect to the Mortgage Loans or otherwise, shall pass to and be vested
in the
Master Servicer. The Master Servicer is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect
the
purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents,
or
otherwise. Unless expressly provided in such written notice, no such
termination shall affect any obligation of the Servicer to pay amounts
owed
pursuant to Article VIII. The Servicer agrees to cooperate with
the Master Servicer in effecting the termination of the Servicer’s
responsibilities and rights hereunder, including, without limitation, the
transfer to the Master Servicer of all cash amounts which shall at the
time be
credited to the Collection Account of such predecessor Servicer, or thereafter
be received with respect to the Mortgage Loans.
Notwithstanding
any termination of the activities of the Servicer hereunder, the Servicer
shall
be entitled to receive from the Trust Fund, prior to transfer of its servicing
obligations hereunder, payment of all accrued and unpaid portion of the
Servicing Fees to which the Servicer would have been entitled and reimbursement
for all outstanding P&I Advances and Servicing Advances, including Servicing
Advances incurred prior to but not invoiced until after the date of termination,
in accordance with the terms of this Agreement. In addition, the
Servicer shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any termination hereunder, with respect to events occurring
prior to such termination.
137
(b) On
or after the receipt by the Servicer of such written notice, all authority
and
power of the Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans
or otherwise, shall pass to and be vested in the Master Servicer pursuant
to and
under this Section and, without limitation, the Master Servicer is hereby
authorized and empowered, as attorney-in-fact or otherwise, to execute
and
deliver on behalf of and at the expense of the Servicer, 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 Servicer agrees, at its sole
cost and expense, promptly (and in any event no later than ten Business
Days
subsequent to such notice) to provide the Master Servicer with all documents
and
records requested by it to enable it to assume the Servicer’s functions under
this Agreement, and to cooperate with the Master Servicer in effecting
the
termination of the Servicer’s responsibilities and rights under this Agreement,
including, without limitation, the transfer within one Business Day to
the
Master Servicer for administration by it of all cash amounts which at the
time
shall be or should have been credited by the Servicer to the Collection
Account
held by or on behalf of the Servicer, or any REO Account or Servicing Account
held by or on behalf of the Servicer or thereafter be received with respect
to
the Mortgage Loans or any REO Property. For purposes of this Section
7.01, the Master Servicer shall not be deemed to have knowledge of a Servicer
Event of Default unless a Master Servicing Officer of the Master Servicer
has
actual knowledge thereof or unless written notice of any event which is
in fact
such a Servicer Event of Default is received by the Master Servicer and
such
notice references any of the Certificates, the Trust, the REMICs or this
Agreement.
The
Master Servicer shall be entitled to be reimbursed by the defaulting Servicer
(or by the Trust Fund if such Servicer is unable to fulfill its obligations
hereunder) for all reasonable out-of-pocket or third party costs associated
with
the transfer of servicing from the predecessor Servicer (or if the predecessor
Servicer is the Master Servicer, from the Servicer immediately preceding
the
Master Servicer), including without limitation, any reasonable out-of-pocket
or
third party 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, upon presentation
of
reasonable documentation of such costs and expenses.
Notwithstanding
any termination of the activities of the Servicer hereunder, the Servicer
shall
be entitled to receive, out of any Late Collection of a Monthly Payment
on a
Mortgage Loan which was due prior to the notice terminating such Servicer’s
rights and obligations as Servicer hereunder and received after such notice,
that portion thereof to which such Servicer would have been entitled pursuant
to
Section 3.11,
and any other amounts payable to such Servicer hereunder the entitlement
to
which arose in accordance with Section 3.11 and
in
the time period specified in Section 3.11 prior
to
the termination of its activities hereunder. The Servicer shall
continue to be entitled to the benefits of Section 6.03,
notwithstanding any termination hereunder with respect to events occurring
prior
to such termination.
138
(c) If
any one of the following events (“Master Servicer
Events of
Termination”) shall occur and be continuing:
(i) any
failure by the Master Servicer to deposit in the Certificate Account any
amount
required to be deposited by it under the terms of this Agreement (including
an
Advance required to be made pursuant to Section 4.01 hereof),
which failure shall continue unremedied for one Business Day after the
date upon
which written notice of such failure shall have been given to the Master
Servicer by the Trustee or the Depositor or to the Master Servicer and
the
Trustee by Holders of Certificates having not less than 51% of the Voting
Rights
evidenced by the Certificates; or
(ii) any
failure on the part of the Master Servicer duly to observe or perform in
any
material respect any of the covenants or agreements on the part of the
Master
Servicer contained in this Agreement, or the breach by the Master Servicer
of
any representation and warranty contained in Section 2.07, 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 Depositor or the Trustee or to the Master
Servicer, the Depositor and the Trustee by Holders of Certificates entitled
to
at least 25% of the Voting Rights; or
(iii) a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or
future
federal or state bankruptcy, insolvency or similar law or the appointment
of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt,
marshalling of assets and liabilities or similar proceeding, or for the
winding-up or liquidation of its affairs, shall have been entered against
the
Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 90 days; 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 or similar proceedings of or relating to it 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.
If
a
Master Servicer Event of Termination described in clause (i) of this Section
7.03(c) shall occur, the Trustee shall, by notice to the Master Servicer
and the
Depositor, immediately terminate all of the rights and obligations of the
Master
Servicer under this Agreement (other than as a Holder of any Certificate)
and in
and to the Mortgage Loans and the proceeds thereof. If a Master
Servicer Event of Termination described in clauses (ii) through (v) of
this
Section 7.03(c) shall occur, then, and in each and every such case, so
long as
such Master Servicer Event of Termination shall not have been remedied,
the
Trustee may, and at the written direction of Holders of Certificates
entitled to at least 51% of the Voting Rights, the Trustee shall, by
notice
139
in
writing to the Master Servicer (and to the Depositor if given by the Trustee
or
to the Trustee if given by the Depositor) with a copy to each Rating Agency,
terminate all of the rights and obligations of the Master Servicer in its
capacity as Master Servicer under this Agreement, to the extent permitted
by
law, in and to the Mortgage Loans and the proceeds thereof. Any such
termination of the initial Master Servicer will also result in the termination
of the initial Trust Administrator. Upon such termination, or on or
after receipt by the Master Servicer of such written notice, as the case
may be,
all authority, power and obligations of the Master Servicer under this
Agreement, whether with respect to the Certificates (other than as a Holder
of
any Certificate) or the Mortgage Loans or otherwise including, without
limitation, the compensation payable to the Master Servicer under this
Agreement
after the date of such termination, shall pass to and be vested in the
Trustee
pursuant to and under this Section, and, without limitation, the Trustee
is
hereby authorized and empowered, as attorney-in-fact or otherwise, to execute
and deliver, on behalf of and at the expense of the Master Servicer, 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 Master Servicer agrees
promptly (and in any event no later than ten Business Days subsequent to
such
notice) to provide the Trustee with all documents and records requested
by it to
enable it to assume the Master Servicer’s functions under this Agreement, and to
cooperate with the Trustee in effecting the termination of the Master Servicer’s
responsibilities and rights under this Agreement (provided, however, that
the
Master Servicer shall continue to be entitled to receive all amounts accrued
or
owing to it under this Agreement on or prior to the date of such termination
and
shall continue to be entitled to the benefits of Section 6.03, notwithstanding
any such termination, with respect to events occurring prior to such
termination). For purposes of this Section 7.01(c), the
Trustee shall not be deemed to have knowledge of a Master Servicer Event
of
Termination unless a Responsible Officer of the Trustee assigned to and
working
in the Trustee’s Corporate Trust Office has actual knowledge thereof or unless
written notice of any event which is in fact such a Master Servicer Event
of
Termination is received by the Trustee and such notice references the
Certificates, the Trust or this Agreement. The Trustee shall promptly
notify the Rating Agencies of the occurrence of a Master Servicer Event
of
Termination of which it has knowledge as provided above.
To
the
extent that the costs and expenses of the Trustee related to the termination
of
the Master Servicer, appointment of a successor Master Servicer or the
transfer
and assumption of the master servicing by the Trustee (including, without
limitation, (i) all legal costs and expenses and all due diligence costs
and
expenses associated with an evaluation of the potential termination of
the
Master Servicer as a result of a Master Servicer Event of Termination and
(ii)
all costs and expenses associated with the complete transfer of the master
servicing, including all master servicing files and all master servicing
data
and the completion, correction or manipulation of such master servicing
data as
may be required by the successor Master Servicer to correct any errors
or
insufficiencies in the master servicing data or otherwise to enable the
successor Master Servicer to master service the Mortgage Loans in accordance
with this Agreement) and any other master servicing transfer costs applicable
with respect to a transfer of master servicing are not fully and timely
reimbursed by the terminated Master Servicer, the Trustee shall be entitled
to
reimbursement of such costs and expenses from the Certificate
Account.
140
Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so
act, or
shall, if it is unable to so act, petition a court of competent 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.
Neither
the Trustee nor any other successor Master Servicer shall be deemed to
be in
default hereunder by reason of any failure to make, or any delay in making,
any
distribution hereunder or any portion thereof or any failure to perform,
or any
delay in performing, any duties or responsibilities hereunder, in either
case
caused by the failure of the Master Servicer to deliver or provide, or
any delay
in delivering or providing, any cash, information, documents or records
to
it. Furthermore, neither the Trustee nor any other successor Master
Servicer shall be liable for any acts or omissions of the terminated Master
Servicer.
Section
7.02. Master Servicer
to Act;
Appointment of Successor.
(a) On
and after the time the Servicer receives a notice of termination pursuant
to
Section 7.01, the Master Servicer shall, subject to and to the extent
provided in Section 3.06, be the successor in all respects to the Servicer
in
its capacity as Servicer under this Agreement and the transactions set
forth or
provided for herein, and shall immediately assume all the responsibilities,
duties and liabilities relating thereto and arising thereafter (except
for any
representations or warranties of the Servicer under this Agreement, the
responsibilities, duties and liabilities contained in Section 2.03(d)-(h))
by
the terms and provisions hereof including, without limitation, the Servicer’s
obligations to make P&I Advances pursuant to Section 4.01; provided,
however, that if the Master Servicer is prohibited by law or regulation
from
obligating itself to make advances regarding delinquent Mortgage Loans,
then the
Master Servicer shall not be obligated to make P&I Advances pursuant to
Section 4.01; and provided further, that any failure to perform such duties
or
responsibilities caused by the Servicer’s failure to deliver or provide, or
delay in delivering or providing, information, documents, records or cash
as
required under this Agreement shall not be considered a default by the
Master
Servicer as successor to the Servicer hereunder; and provided further,
that it
is understood and acknowledged by the parties hereto that there will be
a period
of transition (not to exceed 90 days) before the actual servicing functions
(other than the obligation to advance P&I Advances, which obligation shall
arise upon the receipt by the Servicer of notice of termination pursuant
to
Section 7.01) can be fully transferred to the Master Servicer or any successor
Servicer appointed in accordance with this Agreement. As compensation
therefor, the Master Servicer shall be entitled to the Servicing Fee and
all
funds relating to the Mortgage Loans to which the Servicer would have been
entitled if it had continued to act as Servicer
hereunder. Notwithstanding the above and subject to the immediately
following paragraph, the Master Servicer may, if it shall be unwilling
to so
act, or shall, if it is unable to so act, promptly appoint or petition
a court
of competent jurisdiction to appoint, a Person that satisfies the eligibility
criteria set forth below as the successor Servicer under this Agreement
in the
assumption of the responsibilities, duties or liabilities of the Servicer
under
this Agreement.
141
Notwithstanding
anything herein to the contrary, in no event shall the Trustee, the Trust
Administrator or the Master Servicer be liable for any Servicing Fee or
for any
differential in the amount of the Servicing Fee paid hereunder and the
amount
necessary to induce any successor Servicer to act as successor Servicer
under
this Agreement and the transactions set forth or provided for
herein.
Any
successor Servicer appointed under this Agreement must (i) be an established
mortgage loan servicing institution, (ii) be approved by each Rating Agency
by a
written confirmation from each Rating Agency that the appointment of such
successor Servicer would not result in the reduction or withdrawal of the
then
current ratings of any outstanding Class of Certificates, (iii) have a
net worth
of not less than $30,000,000 and (iv) assume all the responsibilities,
duties or
liabilities of the Servicer (other than liabilities of the Servicer hereunder
incurred prior to termination of the Servicer under Section 7.01 herein)
under
this Agreement as if originally named as a party to this Agreement.
(b) (i) All
Servicing Transfer Costs incurred by the Trustee, the Trust Administrator,
the
Master Servicer and any successor Servicer under paragraph (b)(2) below
shall be
paid immediately by the terminated Servicer upon presentation of reasonable
documentation of such costs, and if such predecessor or initial Servicer,
as
applicable, defaults in its obligation to pay such costs, the successor
Servicer, the Master Servicer, the Trust Administrator and the Trustee
shall be
entitled to reimbursement therefor from the assets of the Trust
Fund.
(ii) No
appointment of a successor to the Servicer under this Agreement shall be
effective until the assumption by the successor of all of the Servicer’s
responsibilities, duties and liabilities hereunder. In connection
with such appointment and assumption described herein, the Trustee, the
Trust
Administrator or 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 as such hereunder. The
Depositor, the Trustee, the Trust Administrator, the Master Servicer and
such
successor shall take such action, consistent with this Agreement, as shall
be
necessary to effectuate any such succession. Pending appointment of a
successor to the Servicer under this Agreement, the Master Servicer shall
act in
such capacity as hereinabove provided.
Any
successor to the Servicer as servicer shall give notice to the Mortgagors
of
such change of Servicer, in accordance with applicable federal and state
law,
and shall, during the term of its service as Servicer, maintain in force
the
policy or policies that the Servicer is required to maintain pursuant to
Section 3.13.
Any
such
successor Servicer shall be required to satisfy the requirements of a successor
Servicer under this Section 7.02.
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Section
7.03. Notification
to
Certificateholders.
(a) Upon
any termination of a Servicer or appointment of a successor Servicer, the
Trust
Administrator shall give prompt written notice thereof to Certificateholders
and
to each Rating Agency.
(b) Within
60 days after the occurrence of any Servicer Event of Default or Master
Servicer
Event of Termination, the Trust Administrator or Trustee respectively shall
transmit by mail to all Certificateholders and each Rating Agency notice
of each
such Servicer Event of Default or Master Servicer Event of Termination
hereunder
known to the Trustee or the Trust Administrator, as applicable, unless
such
Servicer Event of Default or Master Servicer Event of Termination shall
have
been cured or waived.
ARTICLE
VIII
Section
8.01. Duties of the
Trustee and
Trust Administrator.
The
Trustee, before the occurrence of a Servicer Event of Default or Master
Servicer
Event of Termination and after the curing of all Servicer Events of Default
or
Master Servicer Events of Termination that may have occurred, shall undertake
to
perform such duties and only such duties as are specifically set forth
in this
Agreement. In case a Master Servicer Event of Termination has
occurred and remains uncured, the Trustee shall exercise such of the rights
and
powers vested in it by this Agreement, and use the same degree of care
and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
Each
of
the Trustee and the Trust Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it that are specifically required to be furnished
pursuant to any provision of this Agreement shall examine them to determine
whether they are in the form required by this Agreement. Neither the
Trustee nor the Trust Administrator shall be responsible for the accuracy
or
content of any resolution, certificate, statement, opinion, report, document,
order, or other instrument. If any such instrument is found not to
conform on its face to the requirements of the Agreement in a material
manner,
the Trustee and the Trust Administrator shall take such action as it deems
appropriate to have the instrument corrected, and if the instrument is
not
corrected to its respective satisfaction, such dissatisfied party shall
provide
notice thereof to the Certificateholders.
The
Trust
Administrator agrees to notify the Master Servicer in writing no later
than
5:00 p.m. New York time on each Remittance Date of the aggregate
dollar amount of the funds received by the Trust Administrator from the
Servicer
on such Remittance Date and any other information reasonably requested
by the
Master Servicer, so as to enable the Master Servicer to make the reconciliations
and verifications required to be made by it pursuant to Section
3A.01. Neither the Trustee nor the Trust Administrator shall be
deemed to have knowledge of a Servicer Event of Default or Master Servicer
Event
of Termination unless a Responsible Officer of the
143
Trustee
or the Trust Administrator, respectively, has actual knowledge thereof
or unless
written notice of any event which is in fact such a Servicer Event of Default
or
Master Servicer Event of Termination is received by the Trustee or the
Trust
Administrator, respectively, and such notice references any of the Certificates,
the Trust, the REMICs or this Agreement.
No
provision of this Agreement shall be construed to relieve the Trustee or
the
Trust Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however,
that:
(i) The
duties and obligations of the Trust Administrator, and with respect to
the
duties and obligations of the Trustee, prior to the occurrence of a Servicer
Event of Default or Master Servicer Event of Termination, and after the
curing
of all such Servicer Events of Default or Master Servicer Events of Termination
which may have occurred, shall be determined solely by the express provisions
of
this Agreement, the Trustee and the Trust Administrator 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 Trustee or the Trust Administrator and,
in the
absence of bad faith on the part of the Trustee or the Trust Administrator,
as
applicable, the Trustee or the Trust Administrator, as applicable, 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 it
that conform to the requirements of this Agreement;
(ii) Neither
the Trustee nor the Trust Administrator shall be personally liable for
an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers
of the Trustee or the Trust Administrator, as applicable, unless it shall
be
proved that the Trustee or the Trust Administrator, as the case may be,
was
negligent in ascertaining the pertinent facts; and
Neither
the Trustee nor the Trust Administrator shall be personally liable with
respect
to any action taken, suffered or omitted to be taken by it in good faith
in
accordance with the direction of Holders of Certificates entitled to at
least
25% of the Voting Rights relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee or the Trust
Administrator, or exercising any trust or power conferred upon the Trustee
or
the Trust Administrator, under this Agreement.
Section
8.02. Certain Matters
Affecting
the Trustee and the Trust Administrator.
(a) Except
as otherwise provided in Section 8.01:
(i) Before
taking any action under this Agreement, each of the Trustee or the Trust
Administrator may request and rely conclusively upon and shall be fully
protected in acting or refraining from acting upon any resolution, Officer’s
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or
other paper or document reasonably believed by it to be genuine and to
have been
signed or presented by the proper party or parties;
144
(ii) Each
of the Trustee and the Trust Administrator may consult with counsel and
any
written advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by
it
hereunder in good faith and in accordance with such written advice or Opinion
of
Counsel;
(iii) Neither
the Trustee nor the Trust Administrator shall be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement or
to
institute, conduct or defend any litigation hereunder or in relation hereto
at
the request, order or direction of any of the Certificateholders pursuant
to the
provisions of this Agreement, unless such Certificateholders shall have
offered
to it security or indemnity satisfactory to it against the costs, expenses
and
liabilities which may be incurred therein or thereby; nothing contained
herein
shall, however, relieve the Trustee of the obligations, upon the occurrence
of a
Servicer Event of Default or Master Servicer Event of Termination (which
has not
been cured or waived), to exercise such of the rights and powers vested
in it by
this Agreement, and to use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the
conduct
of such Person’s own affairs;
(iv) Neither
the Trustee nor the Trust Administrator shall be personally liable for
any
action taken, suffered or omitted by it in good faith and believed by it
to be
authorized or within the discretion or rights or powers conferred upon
it by
this Agreement;
(v) The
Trust Administrator shall not, and prior to the occurrence of a Servicer
Event
of Default or a Master Servicer Event of Termination hereunder and after
the
curing of all Master Servicer Events of Termination which may have occurred,
the
Trustee shall not be bound to make any investigation into the facts or
matters
stated in any resolution, certificate, statement, instrument, opinion,
report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled
to at
least 25% of the Voting Rights; provided, however, that if the payment
within a
reasonable time to the Trustee or the Trust Administrator, as applicable,
of the
costs, expenses or liabilities likely to be incurred by it in the making
of such
investigation is, in the opinion of the Trustee or the Trust Administrator,
as
applicable, not reasonably assured to the Trustee or the Trust Administrator,
as
applicable, by such Certificateholders, the Trustee or the Trust Administrator,
as applicable, may require reasonable indemnity against such expense, or
liability from such Certificateholders as a condition to taking any such
action;
(vi) Each
of the Trustee and the Trust Administrator may execute any of the trusts
or
powers hereunder or perform any duties hereunder either directly or by
or
through agents, custodians, nominees or attorneys and shall not be responsible
for any willful misconduct or negligence of such agents, custodians, nominees
or
attorneys (as long as such agents, custodians, nominees or attorneys were
appointed with due and proper care);
145
(vii) Neither
the Trustee nor the Trust Administrator shall be personally liable for
any loss
resulting from the investment of funds held in the Collection Account by
the
Servicer or in the Pre-Funding Account by the Seller pursuant to Section
3.12;
(viii) Except
as otherwise expressly provided herein, none of the provisions of this
Agreement
shall require the Trustee or the Trust Administrator to expend or risk
its own
funds or otherwise to incur any liability, financial or otherwise, in the
performance of any of its duties hereunder, or in the exercise of any of
its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk
or
liability is not assured to it (not including expenses, disbursements and
advances incurred or made by the Trustee or the Trust Administrator, as
applicable, including the compensation and the expenses and disbursements
of its
agents and counsel, in the ordinary course of its performance in accordance
with
the provisions of this Agreement);
(ix) Neither
the Trustee nor the Trust Administrator shall be personally liable for
any loss
resulting from any failure or omission of any other party to this Agreement
to
comply with its obligations hereunder;
(x) Any
permissive right of the Trustee enumerated herein shall not be construed
as a
duty; and
(xi) Should
the Trustee deem the nature of any action required on its part to be unclear,
the Trustee may require prior to such action that it be provided by the
Depositor with reasonable further instructions.
(b) All
rights of action under this Agreement or under any of the Certificates
enforceable by the Trustee or the Trust Administrator, as applicable, may
be
enforced by it without the possession of any of the Certificates, or the
production thereof at the trial or any other proceeding relating thereto,
and
any such suit, action or proceeding instituted by the Trustee or the Trust
Administrator, as applicable, shall be brought in its name for the benefit
of
all the Holders of such Certificates, subject to the provisions of this
Agreement.
Section
8.03. Neither the
Trustee Nor the
Trust Administrator Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Trust Administrator, the authentication of the Trust Administrator
on the
Certificates, the acknowledgments of the Trustee and the Trust Administrator
contained in Article II and the representations and warranties of the Trustee
and the Trust Administrator in Section 8.11) shall be taken as the statements
of
the Depositor, and the Trustee does not assume any responsibility for their
correctness. Neither the Trustee nor the Trust Administrator makes
any representation or warranty as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 8.11) or of
the
Certificates (other than the signature of the Trustee and the Trust
Administrator and authentication of the Certificate Registrar on the
Certificates) or of any Mortgage Loan or related document or of the MERS®
System. Neither the Trustee nor the Trust
146
Administrator
shall be accountable for the use or application by the Depositor of any
of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor or the Servicer in respect
of the
Mortgage Loans or deposited in or withdrawn from the Collection Account
by the
Servicer.
Section
8.04. Trustee and
Trust
Administrator May Own Certificates.
Each
of
the Trustee and the Trust Administrator in its individual or any other
capacity
may become the owner or pledgee of Certificates with the same rights as
it would
have if it were not the Trustee or the Trust Administrator, as
applicable.
Section
8.05. Fees and Expenses
of the
Trustee and Trust Administrator.
(a) The
annual fees of the Trustee hereunder shall be paid in accordance with a
side
letter agreement with the Trust Administrator and at the sole expense of
the
Trust Administrator. Subject to Section 8.05(b), the Trustee and the
Trust Administrator, and any director, officer, employee or agent of either,
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense (including any unreimbursed fees or expenses for work
relating to an appointment of a successor Servicer or a successor Master
Servicer under Article VII herein, but not including expenses, disbursements
and
advances incurred or made by the Trustee (or its custodian) or the Trust
Administrator, as applicable, including the reasonable compensation and
the
expenses and disbursements of its agents and counsel, in the ordinary course
of
its performance in accordance with the provisions of this Agreement) incurred
by
the Trustee or the Trust Administrator arising out of or in connection
with the
acceptance or administration of its obligations and duties under this Agreement,
the Certificates or the Mortgage Loans, other than any loss, liability
or
expense (i) resulting from the Trustee’s or the Trust Administrator’s negligent
actions or omissions in connection with this Agreement and the Mortgage
Loans,
(ii) that constitutes a specific liability of the Trustee or the Trust
Administrator pursuant to Section 11.01(c), or (iii) any loss, liability
or
expense incurred by reason of willful misfeasance, bad faith or negligence
in
the performance of duties hereunder or by reason of reckless disregard
of
obligations and duties hereunder or as a result of a breach of the its
respective obligations under Article XI hereof. Any amounts payable
to the Trustee (or its custodian) or the Trust Administrator, and any director,
officer, employee or agent of the Trustee (or its custodian) or the Trust
Administrator, in respect of the indemnification provided by this paragraph
(a),
or pursuant to any other right of reimbursement from the Trust Fund that
the
Trustee (or its Custodian), the Trust Administrator and any director, officer,
employee or agent of the Trustee (or its custodian) or the Trust Administrator,
may have hereunder in its capacity as such, may be withdrawn by the Trust
Administrator from the Certificate Account at any time. Such
indemnity shall survive the termination of this Agreement and the resignation
of
the Trustee or the Trust Administrator, as applicable.
(b) The
foregoing indemnity shall survive the resignation or removal of the Trustee
or
the Trust Administrator.
(c) Without
limiting the Servicer’s indemnification obligations under Section 6.03, the
Servicer agrees to indemnify the Trustee, the Master Servicer and the Trust
Administrator
147
from,
and
hold it harmless against, any loss, liability or expense resulting from
a breach
of the Servicer’s obligations and duties under this Agreement. Such
indemnity shall survive the termination or discharge of this Agreement
and the
resignation or removal of the Trustee or the Trust Administrator. Any
payment hereunder made by the Servicer to the Trustee or the Trust Administrator
shall be from the Servicer’s own funds, without reimbursement from the Trust
Fund.
(d) The
Servicer shall pay any annual rating agency fees of S&P, Fitch and Xxxxx’x
for ongoing surveillance from its own funds without right of
reimbursement.
Each
of
the Trustee and the Trust Administrator hereunder shall at all times be
a
corporation or an association (other than the Depositor, the Originator,
the
Servicer or any Affiliate of the foregoing) organized and doing business
under
the laws of the United States of America or any state thereof, authorized
under
such laws to exercise corporate trust powers, having a combined capital
and
surplus of at least $50,000,000 and subject to supervision or examination
by
federal or state authority. If such corporation or association
publishes reports of conditions at least annually, pursuant to law or to
the
requirements of the aforesaid supervising or examining authority, then
for the
purposes of this Section the combined capital and surplus of such corporation
or
association shall be deemed to be its combined capital and surplus as set
forth
in its most recent report of conditions so published. In case at any
time either the Trustee or the Trust Administrator shall cease to be eligible
in
accordance with the provisions of this Section, the Trustee or the Trust
Administrator, as applicable, shall resign immediately in the manner and
with
the effect specified in Section 8.07.
The
Trustee or the Trust Administrator may at any time resign and be discharged
from
the trust hereby created by giving written notice thereof to the Depositor,
the
Servicer, the Master Servicer and if the Trustee is resigning, to the Trust
Administrator and, if the Trust Administrator is resigning, to the Trustee
and
the Certificateholders. Upon receiving such notice of resignation,
the Depositor shall promptly appoint a successor trustee or successor trust
administrator, as applicable, by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee or Trust Administrator,
as applicable, and to the successor trustee or successor trust administrator,
as
applicable. The Depositor shall deliver a copy of such instrument to
the Certificateholders, the Master Servicer and the Servicer. If no
successor trustee or successor trust administrator, as applicable, shall
have
been so appointed and have accepted appointment within 30 days after the
giving
of such notice of resignation, the resigning Trustee or Trust Administrator,
as
applicable, may petition any court of competent jurisdiction for the appointment
of a successor.
If
at any
time the Trustee or the Trust Administrator shall cease to be eligible
in
accordance with the provisions of Section 8.06 and shall fail to resign
after
written request by the Depositor, or if at any time the Trustee or the
Trust
Administrator shall become incapable of acting, or shall be adjudged bankrupt
or
insolvent, or a receiver of the Trustee or the Trust
148
Administrator
or of its respective property shall be appointed, or any public officer
shall
take charge or control of the Trustee or the Trust Administrator or of
its
respective property or affairs for the purpose of rehabilitation, conservation
or liquidation, then the Depositor may remove the Trustee or the Trust
Administrator, as applicable, and appoint a successor trustee or trust
administrator, as applicable, by written instrument, in duplicate, which
instrument shall be delivered to the Trustee or the Trust Administrator,
as
applicable, so removed and to the successor. The Depositor shall
deliver a copy of such instrument to the Certificateholders, the Master
Servicer
and the Servicer.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may
at any
time remove the Trustee or the Trust Administrator and appoint a successor
trustee or trust administrator, as applicable, by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered
to the
Depositor, one complete set to the Trustee or Trust Administrator so removed
and
one complete set to the successor so appointed. The Depositor shall
deliver a copy of such instrument to the Certificateholders, the Master
Servicer
and the Servicer.
Any
resignation or removal of the Trustee or the Trust Administrator and appointment
of a successor pursuant to any of the provisions of this Section shall
not
become effective until acceptance of appointment by the successor as provided
in
Section 8.08.
Any
resignation or removal of the initial Trust Administrator will result in
the
removal of the initial Master Servicer.
Section
8.08. Successor Trustee
or Trust
Administrator.
Any
successor appointed as provided in Section 8.07 shall execute, acknowledge
and
deliver to the Depositor and to its predecessor an instrument accepting
such
appointment hereunder, and thereupon the resignation or removal of the
predecessor shall become effective and such successor, without any further
act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect
as if
originally named as trustee herein. The predecessor trustee or trust
administrator shall deliver to its successor all Mortgage Files and related
documents and statements, as well as all moneys, held by it hereunder (other
than any Mortgage Files at the time held by a custodian, if any, which
custodian
shall become the agent of any successor trustee hereunder), and the Depositor
and the predecessor trustee or trust administrator shall execute and deliver
such instruments and do such other things as may reasonably be required
for more
fully and certainly vesting and confirming in the successor trustee all
such
rights, powers, duties and obligations.
No
successor trustee or trust administrator shall accept appointment as provided
in
this Section unless at the time of such acceptance such successor shall
be
eligible under the provisions of Section 8.06 and the appointment of such
successor shall not result in a downgrading of any Class of Certificates
by
either Rating Agency, as evidenced by a letter from each Rating
Agency.
149
Upon
acceptance of appointment by a successor trustee or trust administrator
as
provided in this Section, the Depositor shall mail notice of the succession
to
all Holders of Certificates at their addresses as shown in the Certificate
Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor, the successor shall cause
such
notice to be mailed at the expense of the Depositor.
Any
corporation into which the Trustee or the Trust Administrator may be merged
or
converted or with which it may be consolidated or any corporation resulting
from
any merger, conversion or consolidation to which the Trustee or the Trust
Administrator shall be a party, or any corporation succeeding to the business
of
the Trustee or the Trust Administrator, shall be the successor of the Trustee
or
the Trust Administrator, as applicable, hereunder; provided, that such
corporation shall be eligible under Section 8.06 without the execution or
filing of any paper or further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section
8.10. Appointment
of Co-Trustee or
Separate Trustee.
Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any
legal
requirements of any jurisdiction in which any part of the Trust Fund or
property
securing the same may at the time be located, the Servicer and the Trustee,
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act
as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee
or
separate trustees, of all or any part of the Trust Fund, and to vest in
such
Person or Persons, in such capacity, such title to the Trust Fund, or any
part
thereof, and, subject to the other provisions of this Section 8.10, such
powers,
duties, obligations, rights and trusts as the Servicer and the Trustee
may
consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a
request
so to do, or in case a Servicer Event of Default shall have occurred and
be
continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under
Section
8.06 hereunder and no notice to Holders of Certificates of the appointment
of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof. Any reasonable and necessary expense of the Trustee related
to the appointment of a co-trustee or a separate trustee for the limited
purpose
of performing the Trustee’s duties pursuant to this Section 8.10 shall be
reimbursable from the Trust Fund.
In
the
case of any appointment of a co-trustee or separate trustee pursuant to
this
Section 8.10 all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or performed
by the Trustee and such separate trustee or co-trustee jointly, except
to the
extent that under any law of any jurisdiction in which any particular act
or
acts are to be performed by the Trustee (whether as Trustee hereunder or
as
successor to the defaulting Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such
rights, powers, duties and obligations (including the holding of title
to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee or co-trustee at the direction of
the
Trustee.
150
Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Agreement and the conditions
of this
Article VIII. Each separate trustee and co-trustee, upon its
acceptance of the trust conferred, shall be vested with the estates or
property
specified in its instrument of appointment, either jointly with the Trustee
or
separately, as may be provided therein, subject to all the provisions of
this
Agreement, specifically including every provision of this Agreement relating
to
the conduct of, affecting the liability of, or affording protection to,
the
Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Depositor and the Trust Administrator.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee,
its
agent or attorney-in-fact, with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates,
properties, rights, remedies and trusts shall vest in and be exercised
by the
Trustee, to the extent permitted by law, without the appointment of a new
or
successor trustee.
(a) The
Trustee hereby represents and warrants to the Servicer, the Master Servicer,
the
Trust Administrator and the Depositor, as of the Closing Date,
that:
(i) It
is a national banking association duly organized, validly existing and
in good
standing under the laws of the United States of America.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its
charter
or articles of association or bylaws or constitute a default (or an event
which,
with notice or lapse of time, or both, would constitute a default) under,
or, to
the best of its knowledge, result in the breach of, any material agreement
or
other instrument to which it is a party or which is applicable to it or
any of
its assets.
(iii) It
has the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties, constitutes a valid, legal and binding obligation of it, enforceable
against it in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, receivership, reorganization, moratorium and other
laws
affecting the enforcement of creditors’ rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law.
(b) The
Trust Administrator hereby represents and warrants to the Servicer, the
Trustee
and the Depositor, as of the Closing Date, that:
151
(i) It
is a national banking association duly organized, validly existing and
in good
standing under the laws of the United States.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its
charter
or articles of association or bylaws or 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 agreement or other instrument to
which it
is a party or which is applicable to it or any of its assets.
(iii) It
has the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties, constitutes a valid, legal and binding obligation of it, enforceable
against it in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, receivership, reorganization, moratorium and other
laws
affecting the enforcement of creditors’ rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law.
ARTICLE
IX
Section
9.01. Termination
upon Liquidation
or Purchase of the Mortgage Loans.
Subject
to Section 9.03, the obligations and responsibilities of the Depositor, the
Servicer, the Master Servicer, the Trust Administrator and the Trustee
created
hereby with respect to the Trust Fund shall terminate upon the earlier
of
(a) the purchase, on or after the Optional Termination Date, by the
Servicer at the price equal to the Optional Termination Price; and (b) the
later of (i) the maturity or other Liquidation Event (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and
the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to
this Agreement. In no event shall the trusts created hereby continue
beyond the expiration of 21 years from the death of the survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to
the Court of St. James’s, living on the date hereof.
Section
9.02. Final Distribution
on the
Certificates.
If
on any
Remittance Date, the Servicer determines that there are no Outstanding
Mortgage
Loans and no other funds or assets in the Trust Fund other than the funds
in the
Collection Account, the Servicer shall direct the Trust Administrator promptly
to send a Notice of Final Distribution to each Certificateholder. If
the Servicer elects to terminate the Trust Fund pursuant to clause (a)
of
Section 9.01, at least 20 days prior to the date the Notice of Final
Distribution is to be mailed to the affected Certificateholders, the Depositor
shall notify the Servicer, the Master Servicer, the Trustee and the Trust
Administrator of the date the Depositor
152
intends
to terminate the Trust Fund and of the applicable repurchase price of the
Mortgage Loans and REO Properties.
A
Notice
of Final Distribution, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the
final
distribution and cancellation, shall be given promptly by the Trust
Administrator by letter to Certificateholders mailed not later than the
15th day
of the month of such final distribution. Any such Notice of Final
Distribution shall specify(a) the Distribution Date upon which final
distribution on the Certificates will be made upon presentation and surrender
of
Certificates at the office therein designated,(b) the amount of such final
distribution,(c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distributions
being made only upon presentation and surrender of the Certificates at
the
office therein specified. The Trust Administrator will give such
Notice of Final Distribution to each Rating Agency at the time such Notice
of
Final Distribution is given to Certificateholders.
In
the
event such Notice of Final Distribution is given, the Servicer shall cause
all
funds in the Collection Account to be remitted to the Trust Administrator
for
deposit in the Certificate Account on the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect
of the
Certificates. Upon such final deposit with respect to the Trust Fund
and the receipt by the Trustee or the Custodian of a Request for Release
therefor, the Trustee or the Custodian shall promptly release to the Depositor
or its designee the Custodial Files for the Mortgage Loans.
Upon
presentation and surrender of the Certificates, the Trust Administrator
shall
cause to be distributed to the Certificateholders of each Class (after
reimbursement of all amounts due to the Servicer, the Depositor, the Master
Servicer, the Trust Administrator and the Trustee hereunder), in each case
on
the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to
(i) as to each Class of Offered Certificates, the Certificate Principal
Balance thereof plus for each such Class, accrued interest thereon in the
case
of an interest-bearing Certificate and all other amounts to which such
Classes
are entitled pursuant to Section 4.02, (ii) as to the Residual
Certificates, the amount, if any, which remains on deposit in the Certificate
Account with respect to the related REMIC (other than the amounts retained
to
meet claims) after application pursuant to clause (i) above.
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six months after the date specified in the above-mentioned
written notice, the Trust Administrator shall give a second written notice
to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation,
the
Trust Administrator may take appropriate steps, or may appoint an agent
to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out
of the
funds and other assets which remain a part of the Trust Fund. If
within one year after the second notice all Certificates shall not have
been
surrendered for cancellation, the Holders of the Residual Certificates
with
153
respect
to their related REMIC shall be entitled to all unclaimed funds and other
assets
of the Trust Fund which remain subject hereto.
Section
9.03. Additional Termination
Requirements.
In
the
event the Servicer exercises its purchase option with respect to the Mortgage
Loans as provided in Section 9.01, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee
and
the Trust Administrator have been supplied with an Opinion of Counsel,
at the
expense of the Depositor, to the effect that the failure to comply with
the
requirements of this Section 9.03 will not (i) result in the
imposition of taxes on “prohibited transactions” or “prohibited contributions”
on any Trust REMIC as defined in the REMIC Provisions, or (ii) cause any
Trust REMIC to fail to qualify as a REMIC at any time that any Certificates
are
outstanding:
(a) The
Trust Fund shall be terminated only pursuant to a “qualified liquidation” as
that term is defined in Section 860F of the Code; and
(b) Within
90 days prior to the final Distribution Date, the Trust Administrator shall
adopt plans of liquidation for each Trust REMIC. The Trust
Administrator shall specify such date in the final federal income tax return
of
each Trust REMIC; and
(c) After
the date of adoption of such plans of liquidation the Trustee shall sell
all of
the assets of the Trust to the Servicer for cash and, at or prior to the
final
Distribution Date, shall distribute to the Certificateholders the proceeds
of
such sale in complete liquidation of each of the Trust REMICs, with final
payment made to the related Class of Residual Certificates.
By
their
acceptance of the Certificates, the Holders thereof hereby authorize the
Trust
Administrator to adopt such plans of liquidation and to specify the 90-day
liquidation period for each REMIC created hereunder, which authorization
shall
be binding upon all successor Certificateholders.
ARTICLE
X
Section
10.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, the Originator,
the
Servicer, the Master Servicer, the Trust Administrator, the Custodian and
the
Trustee and without the consent of any of the Certificateholders
(i) to cure any ambiguity or mistake, (ii) to correct any defective
provision herein or to supplement any provision herein which may be inconsistent
with any other provision herein, (iii) to add to the duties of the
Depositor, the Master Servicer, the Servicer, the Trust Administrator,
the
Custodian or the Trustee, (iv) to comply with any requirements in the Code,
(v)
to conform the provisions of this Agreement to the descriptions thereof
in the
Prospectus Supplement, (vi) to add any other provisions with respect to
matters or questions arising hereunder or (vii) to modify, alter, amend,
add to or rescind any of the terms or provisions contained in this Agreement;
provided, that
any action pursuant to clause (iii), (vi) or (vii) above (a) that would
expand the permissible activities of the Trust set
154
forth
in
Section 2.09 shall not be permitted and (b) shall not, as evidenced by
an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of
the
Trustee, the Trust Administrator or the Trust Fund), adversely affect in
any
material respect the interests of any Certificateholder; provided, further,
that the
amendment shall not be deemed to adversely affect in any material respect
the
interests of the Certificateholders if the Person requesting the amendment
obtains a letter from each Rating Agency stating that the amendment would
not
result in the downgrading or withdrawal of the respective ratings then
assigned
to the Certificates; it being understood and agreed that any such letter
in and
of itself will not represent a determination as to the materiality of any
such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the
Originator, the Master Service, the Trust Administrator, the Custodian
and the
Servicer also may at any time and from time to time amend this Agreement,
without the consent of the Certificateholders, to modify, eliminate or
add to
any of its provisions to such extent as shall be necessary or helpful to
(i) maintain the qualification of each Trust REMIC under the REMIC
Provisions, (ii) avoid or minimize the risk of the imposition of any tax on
any Trust REMIC pursuant to the Code that would be a claim at any time
prior to
the final redemption of the Certificates or (iii) comply with any other
requirements of the Code; provided, that the Trustee and the Trust Administrator
have been provided an Opinion of Counsel, which opinion shall be an expense
of
the party requesting such opinion but in any case shall not be an expense
of the
Trustee, the Trust Administrator or the Trust Fund, to the effect that
such
action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a
tax or (iii) comply with any such requirements of the Code. In
addition, this Agreement may be amended from time to time by the Depositor,
the
Master Servicer, the Trust Administrator, the Originator, the Servicer,
the
Custodian and the Trustee to comply with the provisions of Regulation
AB.
This
Agreement may also be amended from time to time by the Depositor, the Servicer,
the Originator, the Master Servicer, the Trust Administrator, the Custodian
and
the Trustee with the consent of the Holders of Certificates evidencing
Percentage Interests aggregating not less than 66 2/3% of each Class of
Certificates affected thereby for the purpose of adding any provisions
to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders of Certificates; provided, however,
that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments required to be distributed on any Certificate without the
consent
of the Holder of such Certificate, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates in a
manner
other than as described in clause (i), without the consent of the Holders
of
Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 66 2/3%, or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent
to any
such amendment, without the consent of the Holders of all such Certificates
then
outstanding.
Notwithstanding
any contrary provision of this Agreement, neither of the Trustee nor the
Trust
Administrator shall consent to any amendment to this Agreement unless
(i) it shall have first received an Opinion of Counsel satisfactory to the
Trust Administrator, which opinion shall not be an expense of the Trustee,
the
Trust Administrator or the Trust Fund, to the effect that such amendment
will
not adversely affect in any material respect the interest of any
Certificateholder and will not cause the imposition of any tax on any Trust
REMIC or the
155
Certificateholders
or cause any Trust REMIC to fail to qualify as a REMIC at any time that
any
Certificates are outstanding and (ii) the party seeking such amendment
shall have provided written notice to the Rating Agencies (with a copy
of such
notice to the Trustee and the Trust Administrator) of such amendment, stating
the provisions of the Agreement to be amended.
Notwithstanding
the foregoing provisions of this Section 10.01, with respect to any
amendment that significantly modifies the permitted activities of the Trustee,
the Trust Administrator, the Master Servicer or the Servicer, any Certificate
beneficially owned by the Depositor or any of its Affiliates or by the
Originator shall be deemed not to be outstanding (and shall not be considered
when determining the percentage of Certificateholders consenting or when
calculating the total number of Certificates entitled to consent) for purposes
of determining if the requisite consents of Certificateholders under this
Section 10.01 have been obtained.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trust Administrator shall furnish written notification
of the substance or a copy of such amendment to each Certificateholder
and each
Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section 10.01 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 Certificateholders shall be subject
to
such reasonable regulations as the Trustee may prescribe.
Nothing
in this Agreement shall require either of the Trustee or the Trust Administrator
to enter into an amendment which modifies its obligations or liabilities
without
its consent and in all cases without receiving an Opinion of Counsel (which
Opinion shall not be an expense of the Trustee, the Trust Administrator
or the
Trust Fund), satisfactory to the Trustee or the Trust Administrator, as
applicable, that (i) such amendment is permitted and is not prohibited by
this Agreement and that all requirements for amending this Agreement have
been
complied with; and (ii) either (A) the amendment does not adversely
affect in any material respect the interests of any Certificateholder or
(B) the conclusion set forth in the immediately preceding clause (A)
is not required to be reached pursuant to this Section 10.01.
Section
10.02. Recordation
of Agreement;
Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for
real
property records in all the counties or other comparable jurisdictions
in which
any or all of the properties subject to the Mortgages are situated, and
in any
other appropriate public recording office or elsewhere, such recordation
to be
effected by the Servicer at the expense of the Trust, but only upon receipt
of
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any
number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
156
Section
10.03. Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS RULES (EXCEPT
FOR
GENERAL OBLIGATIONS LAW 5-1401 WHICH SHALL APPLY HERETO) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
10.04. Intention of
Parties.
It
is the
express intent of the parties hereto that the conveyance (i) of the
Mortgage Loans by the Depositor and (ii) of the Trust Fund by the Depositor
to the Trustee each be, and be construed as, an absolute sale
thereof. It is, further, not the intention of the parties that such
conveyances be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, as the case may be, or if for any other reason
this
Agreement is held or deemed to create a security interest in either such
assets,
then (i) this Agreement shall be deemed to be a security agreement within
the meaning of the Uniform Commercial Code of the State of New York and
(ii) the conveyances provided for in this Agreement shall be deemed to be
an assignment and a grant by the Depositor to the Trustee, for the benefit
of
the Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The
Depositor, for the benefit of the Certificateholders, shall, to the extent
consistent with this Agreement, take such actions as may be necessary to
ensure
that, if this Agreement were deemed to create a security interest in the
Trust
Fund, 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 the Agreement. The Depositor shall arrange for filing any
Uniform Commercial Code continuation statements in connection with any
security
interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section
10.05. Notices.
(a) The
Trust Administrator shall use its best efforts to promptly provide notice
to
each Rating Agency with respect to each of the following of which it has
actual
knowledge:
(i)
Any material change or amendment to this Agreement;
(ii) The
occurrence of any Servicer Event of Default or Master Servicer Event of
Termination that has not been cured;
(iii) The
resignation or termination of the Servicer, the Master Servicer, the Trust
Administrator or the Trustee and the appointment of any successor;
157
(iv) The
repurchase or substitution of Mortgage Loans pursuant to Sections 2.03,
2.07 or 3.28; and
(v)
The final payment to Certificateholders.
(b) The
Trustee shall use its best efforts to promptly provide notice to each Rating
Agency of a Master Servicer Event of Termination to the extent it has actual
knowledge thereof.
(c) In
addition, the Trust Administrator shall promptly make available on its
internet
website to each Rating Agency copies of each report to Certificateholders
described in Section 4.03.
All
directions, demands and notices hereunder shall be in writing (which shall
include transmission by electronic mail or facsimile) and shall be deemed
to
have been duly given when delivered to (a) in the case of the Depositor,
SunTrust Mortgage Securitization, LLC, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention:
[ ],
telecopy number
[ ]
or other address as may be hereafter furnished to the other parties hereto
in
writing; (b) in the case of the Originator and the Servicer, SunTrust
Mortgage, Inc., 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx
X. Xxxxxxx, with a copy to
[ ]
[___________], telecopy number
[ ],
or such other address as may be hereafter furnished to the other parties
hereto
in writing; (c) in the case of the Trustee,
[ ],
Attention: [ ],
telecopy number
[ ],
or such other address or telecopy number as may hereafter be furnished
to the
other parties hereto in writing; (d) in the case of the Trust
Administrator, its Corporate Trust Office; in the case of the Master Servicer,
to
[ ],
Attention:
[ ],
telecopy number
[ ],
or such other address or telecopy number as may hereafter be furnished
to the
other parties hereto in writing; and in the case of the Custodian, to SunTrust
Bank, 0000 Xxxxxx Xxxxxx, 0xx
Xxxxx, XXX-0000,
Xxxxxxxx, Xxxxxxxx 00000, Attention: [Xxxxx Xxxxxx, Mortgage Custody
Services], telecopy number
[ ];
or such other address as the Custodian may hereafter furnish to the other
parties hereto in writing; and (f) in the case of each of the Rating
Agencies, the address specified therefor in the definition corresponding
to the
name of such Rating Agency;
Notices
to Certificateholders shall be deemed given when mailed, first
class postage prepaid, to their respective addresses appearing in the
Certificate Register.
Section
10.06. 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 Certificates or the rights of the Holders thereof.
Section
10.07. Assignment;
Sales; Advance
Facilities.
(a) Notwithstanding
anything to the contrary contained herein, except as provided in
Section 6.02, this Agreement may be assigned by the Servicer with the prior
written consent of
158
the
Depositor, the Master Servicer, the Trust Administrator and the
Trustee. In addition, for so long as the Servicer is acting as the
Servicer hereunder (i) the Servicer is hereby authorized to enter into an
advance facility (“Advance Facility”)
under which (A) the Servicer sells, assigns or pledges to an Advancing
Person the Servicer’s rights under this Agreement to be reimbursed for any
P&I Advances or Servicing Advances and/or (B) an Advancing Person
agrees to fund some or all P&I Advances or Servicing Advances required to be
made by the Servicer pursuant to this Agreement and (ii) the Servicer is
hereby authorized to assign its rights to the Servicing Fee; it being understood
neither the Trust Fund nor any party hereto shall have a right or claim
(including without limitation any right of offset) to the portion of the
Servicing Fee so assigned; it being further understood that upon the resignation
or termination of the Servicer, such Advance Facility (in the case of clause
(i)) and such assignment (in the case of clause (ii)) shall be
terminated. No consent of the Trustee, the Trust Administrator,
Certificateholders or any other party is required before the Servicer may
enter
into an Advance Facility. Notwithstanding the existence of any
Advance Facility under which an Advancing Person agrees to fund P&I Advances
and/or Servicing Advances on the Servicer’s behalf, the Servicer shall remain
obligated pursuant to this Agreement to make P&I Advances and Servicing
Advances pursuant to and as required by this Agreement, and shall not be
relieved of such obligations by virtue of such Advance Facility.
(b) Reimbursement
amounts shall consist solely of amounts in respect of P&I Advances and/or
Servicing Advances made with respect to the Mortgage Loans for which the
Servicer would be permitted to reimburse itself in accordance with this
Agreement, assuming the Servicer had made the related P&I Advance(s) and/or
Servicing Advance(s).
(c) The
Servicer shall maintain and provide to any successor Servicer a detailed
accounting on a loan-by-loan basis as to amounts advanced by, pledged or
assigned to, and reimbursed to any Advancing Person. The successor
Servicer shall be entitled to rely on any such information provided by
the
predecessor Servicer, and the successor Servicer shall not be liable for
any
errors in such information.
(d) An
Advancing Person who purchases or receives an assignment or pledge of the
rights
to be reimbursed for P&I Advances and/or Servicing Advances, and/or whose
obligations hereunder are limited to the funding of P&I Advances and/or
Servicing Advances shall not be required to meet the criteria for qualification
of a Subservicer set forth in this Agreement.
(e) The
documentation establishing any Advance Facility shall require that such
reimbursement amounts distributed with respect to each Mortgage Loan be
allocated to outstanding xxxxxxxxxxxx X&X Advances or Servicing Advances (as
the case may be) made with respect to that Mortgage Loan on a “first-in, first
out” (FIFO) basis. Such documentation shall also require the Servicer
to provide to the related Advancing Person or its designee loan-by-loan
information with respect to each such reimbursement amount distributed
to such
Advancing Person or Advance Facility trustee on each Distribution Date,
to
enable the Advancing Person or Advance Facility trustee to make the FIFO
allocation of each such reimbursement amount with respect to each Mortgage
Loan. The Servicer shall remain entitled to be reimbursed by the
Advancing Person or Advance Facility trustee for all P&I Advances and
Servicing Advances
159
funded
by
the Servicer to the extent the related rights to be reimbursed therefor
have not
been sold, assigned or pledged to an Advancing Person.
(f) Any
amendment to this Section 10.07 or to any other provision of this Agreement
that may be necessary or appropriate to effect the terms of an Advance
Facility
as described generally in this Section 10.07, including amendments to add
provisions relating to a successor Servicer, may be entered into by the
Trustee,
the Depositor, the Master Servicer, the Trust Administrator and the Servicer
without the consent of any Certificateholder, notwithstanding anything
to the
contrary in this Agreement, provided, that the Trustee and the Trust
Administrator have been provided an Opinion of Counsel that such amendment
has
no material adverse effect on the Certificateholders which opinion shall
be an
expense of the party requesting such opinion but in any case shall not
be an
expense of the Trustee, the Trust Administrator or the Trust Fund; provided,
further, that the amendment shall not be deemed to adversely affect in
any
material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency (instead
of
obtaining an Opinion of Counsel) stating that the amendment would not result
in
the downgrading or withdrawal of the respective ratings then assigned to
the
Certificates; it being understood and agreed that any such rating letter
in and
of itself will not represent a determination as to the materiality of any
such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Prior to entering into an Advance
Facility, the Servicer shall notify the lender under such facility in writing
that: (a) the Advances financed by and/or pledged to the lender
are obligations owed to the Servicer on a non-recourse basis payable only
from
the cash flows and proceeds received under this Agreement for reimbursement
of
Advances only to the extent provided herein, and the Trustee, the Trust
Administrator and the Trust are not otherwise obligated or liable to repay
any
Advances financed by the lender; (b) the Servicer will be responsible for
remitting to the lender the applicable amounts collected by it as reimbursement
for Advances funded by the lender, subject to the restrictions and priorities
created in this Agreement; and (c) neither the Trustee nor the Trust
Administrator shall have any responsibility to track or monitor the
administration of the financing arrangement between the Servicer and the
lender.
Section
10.08. Limitation on
Rights of
Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder’s
legal representative or heirs to claim an accounting or to take any action
or
commence any proceeding in any court for a petition or winding up of the
trust
created hereby, or otherwise affect the rights, obligations and liabilities
of
the parties hereto or any of them.
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust
Fund, or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party
by
reason of any action taken by the parties to this Agreement pursuant to
any
provision hereof.
160
No
Certificateholder shall have any right by virtue or by availing itself
of any
provisions of this Agreement to institute any suit, action or proceeding
in
equity or at law upon or under or with respect to this Agreement, unless
such
Holder previously shall have given to the Trustee a written notice of a
Servicer
Event of Default or a Master Servicer Event of Termination and of the
continuance thereof, as herein provided, and unless the Holders of Certificates
evidencing not less than 25% of the Voting Rights evidenced by the Certificates
shall also have made written request to the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have
offered
to the Trustee such reasonable indemnity as it may require against the
costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by
each Certificateholder with every other Certificateholder and the Trustee,
that
no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions
of this
Agreement to affect, disturb or prejudice the rights of the Holders of
any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Agreement,
except in
the manner herein provided and for the common benefit of all
Certificateholders. For the protection and enforcement of the
provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law
or in
equity.
Section
10.09. Inspection and
Audit
Rights.
The
Servicer agrees that on 15 days’ prior notice, it will permit any representative
of the Depositor or the Trustee during such Person’s normal business hours, to
examine all the books of account, records, reports and other papers of
such
Person relating to the Mortgage Loans, to make copies and extracts therefrom,
to
cause such books to be audited by independent certified public accountants
selected by the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee and to discuss its affairs, finances and accounts relating to such
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Servicer hereby authorizes said accountants
to
discuss with such representative such affairs, finances and accounts),
all at
such reasonable times and as often as may be reasonably
requested. Any reasonable out-of-pocket expense of the Servicer
incident to the exercise by the Depositor, the Master Servicer, the Trust
Administrator or the Trustee of any right under this Section 10.09 shall be
borne by the Servicer.
Section
10.10. Certificates
Nonassessable
and Fully Paid.
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust
Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof
by the
Certificate Registrar pursuant to this Agreement, are and shall be deemed
fully
paid.
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Section
10.11. Waiver of Jury
Trial.
EACH
PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF
ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY
SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
ARTICLE
XI
Section
11.01. REMIC
Administration.
(a) The
Trust Administrator shall elect to treat each REMIC created hereunder as
a REMIC
under the Code and, if necessary, under applicable state law. Each
such election will be made on Form 1066 or other appropriate federal tax
or
information return or any appropriate state return for the taxable year
ending
on the last day of the calendar year in which the Certificates are
issued. For the purposes of the REMIC election in respect of
REMIC I, the REMIC I Regular Interests shall be designated as the
regular interests in REMIC I and the Class R-I Interest shall be designated
as the residual interest in REMIC I. The REMIC II Regular
Interests shall be designated as the regular interests in REMIC II, and the
Class R-II Interest shall be designated as the residual interest in
REMIC II. The REMIC III Regular Interests shall be designated as
the regular interests or REMIC III, and the Class R-III Interest shall
be
designated as the residual interest in REMIC III. None of the
Trustee, the Trust Administrator, the Depositor, the Servicer nor the Master
Servicer shall permit the creation of any “interests” in any REMIC created
hereunder (within the meaning of Section 860D of the Code) other than those
designated above.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC created
hereunder within the meaning of Section 860G(a)(9) of the Code.
(c) The
Trust Administrator shall pay out of funds on deposit in the Certificate
Account, any and all expenses relating to any tax audit of the Trust Fund
(including, but not limited to, any professional fees or any administrative
or
judicial proceedings with respect to any REMIC created hereunder that involve
the Internal Revenue Service or state tax authorities) unless such expenses,
professional fees or any administrative or judicial proceedings are incurred
by
reason of the Trustee’s or the Trust Administrator’s willful misfeasance, bad
faith or negligence. The Trust Administrator, as agent for each Trust
REMIC’s tax matters persons, unless another agent is appointed in such role for
the Class R Certificates, shall (i) act on behalf of the Trust Fund in
relation
to any tax matter or controversy involving any related REMIC created hereunder
and (ii) represent the Trust Fund in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority
with
respect thereto and will be entitled to reimbursement from the Trust Fund
for
any expenses incurred by the Trust Administrator in connection therewith
unless
such administrative or judicial proceeding relating to an examination or
audit
by any governmental taxing authority is incurred by reason of the Trust
Administrator’s willful misfeasance, bad faith or negligence. The
holder of the largest
162
Percentage
Interest of each Class of Residual Certificates shall be designated, in
the
manner provided under Treasury regulations section 1.860F-4(d) and Treasury
regulations section 301.6231(a)(7)-1, as the tax matters person of the
related
REMIC created hereunder. By its acceptance thereof, the holder of the
largest Percentage Interest of the Residual Certificates hereby agrees
to
irrevocably appoint the Trust Administrator or an Affiliate as its agent
to
perform all of the duties of the tax matters person for the Trust Fund
unless
another agent is appointed in such role for the Class R
Certificates.
(d) The
Trust Administrator shall prepare and file, and the Trustee shall sign,
in a
timely manner all of the federal, state and local tax and information returns
in
respect of each REMIC created hereunder. The expenses of preparing
and filing such returns shall be borne by the Trust Administrator without
any
right of reimbursement for such expenses. The Servicer shall provide
on a timely basis to the Trust Administrator or its designee such information
with respect to the assets of the Trust Fund as is in its possession and
reasonably required by the Trust Administrator to enable it to perform
its
obligations under this Article.
(e) The
Trust Administrator shall perform on behalf of each REMIC created hereunder
all
reporting and other tax compliance duties that are the responsibility of
such
REMIC under the Code, the REMIC Provisions or other compliance guidance
issued
by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, as required by the Code, the REMIC
Provisions or other such compliance guidance, the Trust Administrator shall
provide (i) to any Transferor of a Residual Certificate such information
as is
necessary for the application of any tax relating to the transfer of a
Residual
Certificate to any Person who is not a Permitted Transferee, (ii) to the
Certificateholders such information or reports as are required by the Code
or
the REMIC Provisions including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption
as
required) and (iii) to the Internal Revenue Service the name, title, address
and
telephone number of the person who will serve as the representative of
each
REMIC created hereunder. The Servicer shall provide on a timely basis
to the Trust Administrator such information with respect to the assets
of the
Trust Fund, including, without limitation, the Mortgage Loans, as is in
its
possession and reasonably required by the Trust Administrator to enable
it to
perform its obligations under this subsection. In addition, the
Depositor shall provide or cause to be provided to the Trust Administrator,
within ten (10) days after the Closing Date, all information or data that
the
Trust Administrator reasonably determines to be relevant for tax purposes
as to
the valuations and issue prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash
flow of
the Certificates.
(f) The
Trust Administrator shall take such action and shall cause each REMIC created
hereunder to take such action as shall be necessary to create or maintain
the
status thereof as a REMIC under the REMIC Provisions (and the Servicer
and the
Trustee shall assist the Trust Administrator, to the extent reasonably
requested
by the Trust Administrator to do specific actions in order to assist in
the
maintenance of such status). The Trust Administrator shall not take
any action, cause the Trust Fund to take any action or fail to take (or
fail to
cause to be taken) any action that, under the REMIC Provisions, if taken
or not
taken, as the case may be, could (i) endanger the status of any REMIC created
hereunder as a REMIC or (ii) result in the imposition of any tax upon the
Trust
Fund (including but not limited to the tax on prohibited
163
transactions
as defined in Section 860F(a)(2) of the Code, the tax on contributions
to a
REMIC set forth in Section 860G(d) of the Code) (either (i) or (ii), an
“Adverse REMIC
Event”)
unless each of the Trustee and the Trust Administrator has received an
Opinion
of Counsel, addressed to the Trustee and the Trust Administrator (at the
expense
of the party seeking to take such action but in no event at the expense
of the
Trustee or the Trust Administrator) to the effect that the contemplated
action
will not, with respect to any REMIC created hereunder, endanger such status
or
result in the imposition of such a tax, nor shall the Servicer or the Master
Servicer take or fail to take any action (whether or not authorized hereunder)
as to which the Trustee and the Trust Administrator has advised it in writing
that it has received an Opinion of Counsel to the effect that an Adverse
REMIC
Event could occur with respect to such action; provided that the Servicer
or the
Master Servicer may conclusively rely on such Opinion of Counsel and shall
incur
no liability for its action or failure to act in accordance with such Opinion
of
Counsel. In addition, prior to taking any action with respect to any
REMIC created hereunder or the respective assets of each, or causing any
REMIC
created hereunder to take any action, which is not contemplated under the
terms
of this Agreement, the Servicer and the Master Servicer will consult with
the
Trust Administrator, with respect to whether such action could cause an
Adverse
REMIC Event to occur with respect to any REMIC created hereunder, and neither
the Servicer nor the Master Servicer shall take any such action or cause
any
REMIC created hereunder to take such action as to which the Trust Administrator
has advised it in writing that an Adverse REMIC Event could occur; provided
that
the Servicer and the Master Servicer may conclusively rely on such writing
and
shall incur no liability for its action or failure to act in accordance
with
such writing. The Trust Administrator may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not permitted by this Agreement, but in no event
shall such cost be an expense of the Trust Administrator. At all
times as may be required by the Code, the Trust Administrator will ensure
that
substantially all of the assets of each REMIC created hereunder will consist
of
“qualified mortgages” as defined in Section 860G(a)(3) of the Code and
“permitted investments” as defined in Section 860G(a)(5) of the
Code.
(g) In
the event that any tax is imposed on “prohibited transactions” of any REMIC
created hereunder as defined in Section 860F(a)(2) of the Code, on the
“net
income from foreclosure property” of any such REMIC as defined in Section
860G(c) of the Code, on any contributions to any such REMIC after the Startup
Day pursuant to Section 860G(d) of the Code, or any other tax is imposed
by the
Code or any applicable provisions of state or local tax laws, such tax
shall be
charged (i) to the Trustee pursuant to Section 11.03 hereof, if such tax
arises
out of or results from a breach by the Trustee of any of its obligations
herein,
(ii) to the Trust Administrator pursuant to Section 11.03 hereof, if such
tax
arises out of or results from a breach by the Trust Administrator of any
of its
obligations herein, (iii) to the Servicer pursuant to Section 11.03 hereof,
if
such tax arises out of or results from a breach by the Servicer of any
of its
obligations herein, (iv) to the Master Servicer pursuant to Section 11.03
hereof, if such tax arises out of or results from a breach by the Master
Servicer of any of its obligations herein, or otherwise (v) against amounts
on
deposit in the Certificate Account and shall be paid by withdrawal
therefrom.
(h) On
or before April 15th of each calendar year (other than the calendar year
during
which the Closing Date occurs), the Trust Administrator shall deliver to
the
Servicer, the
164
Depositor
and each Rating Agency an Officer’s Certificate from a Responsible Officer of
the Trust Administrator stating, without regard to any actions taken by
any
party other than the Trust Administrator, the Trust Administrator’s compliance
with this Article XI.
(i) The
Trust Administrator shall, for federal income tax purposes, maintain books
and
records with respect to each REMIC created hereunder on both a calendar
year
basis and an accrual basis.
(j) Following
the Startup Day, neither the Trustee nor the Trust Administrator shall
accept
any contributions of assets to any REMIC created hereunder other than in
connection with any Qualified Substitute Mortgage Loan delivered in accordance
with Section 2.03 unless the Trustee and the Trust Administrator shall
have
received an Opinion of Counsel to the effect that the inclusion of such
assets
in the Trust Fund will not cause the related Trust REMIC to fail to qualify
as a
REMIC at any time that any Certificates are outstanding or subject such
REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(k) Neither
the Trustee, the Trust Administrator, the Master Servicer nor the Servicer
shall
enter into any arrangement by which any REMIC created hereunder will receive
a
fee or other compensation for services nor permit any such REMIC to receive
any
income from assets other than “qualified mortgages” as defined in Section
860G(a)(3) of the Code or “permitted investments” as defined in Section
860G(a)(5) of the Code.
(l) The
Trust Administrator shall apply for an Employer Identification Number from
the
IRS via a Form SS-4 or any other applicable method for all tax entities
formed
pursuant to this Agreement and will also file a Form 8811 for each REMIC
formed
pursuant to this Agreement.
Section
11.02. Prohibited Transactions
and
Activities.
None
of
the Depositor, the Servicer, the Master Servicer, the Trust Administrator
or the
Trustee shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the foreclosure of a Mortgage Loan, including
but
not limited to, the acquisition or sale of a Mortgaged Property acquired
by deed
in lieu of foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of the Trust Fund pursuant to Article IX of this Agreement,
(iv) a
substitution pursuant to Article II of this Agreement or (v) a purchase
of
Mortgage Loans pursuant to Article II or III of this Agreement), nor acquire
any
assets for any REMIC created hereunder (other than REO Property acquired
in
respect of a defaulted Mortgage Loan), nor sell or dispose of any investments
in
the Collection Account or the Certificate Account for gain, nor accept
any
contributions to any REMIC created hereunder after the Closing Date (other
than
a Qualified Substitute Mortgage Loan delivered in accordance with Section
2.03),
unless it has received an Opinion of Counsel, addressed to the Trustee
and the
Trust Administrator (at the expense of the party seeking to cause such
sale,
disposition, substitution, acquisition or contribution but in no event
at the
expense of the Trustee or the Trust Administrator) that such sale, disposition,
substitution, acquisition or contribution will not result in an Adverse
REMIC
Event.
165
Section
11.03. Indemnification.
(a) The
Trustee agrees to indemnify, severally and not jointly, the Trust Fund,
the
Depositor, the Trust Administrator, the Master Servicer and the Servicer
for any
taxes and costs including, without limitation, any reasonable attorneys
fees
imposed on or incurred by the Trust Fund, the Depositor, the Trust
Administrator, the Master Servicer or the Servicer, as a result of a breach
of
its respective covenants set forth in this Article XI or negligent performance
of its duties and obligations set forth herein.
(b) The
Servicer agrees to indemnify the Trust Fund, the Depositor, the Master
Servicer,
the Trust Administrator and the Trustee for any taxes and costs including,
without limitation, any reasonable attorneys’ fees imposed on or incurred by the
Trust Fund, the Depositor, the Master Servicer, the Trust Administrator
or the
Trustee, as a result of a breach of the Servicer’s covenants set forth in
Article III or this Article XI or negligent performance of its duties and
obligations set forth herein.
(c) The
Trust Administrator agrees to indemnify, severally and not jointly, the
Trust
Fund, the Depositor, the Trustee and the Servicer for any taxes and costs
including, without limitation, any reasonable attorneys’ fees imposed on or
incurred by the Trust Fund, the Depositor, the Trustee or the Servicer,
as a
result of a breach of its covenants set forth in this Article XI or negligent
performance of its duties and obligations set forth herein.
(d) The
Master Servicer agrees to indemnify, severally and not jointly, the Trust
Fund,
the Depositor, the Trustee, the Trust Administrator and the Servicer for
any
taxes and costs including, without limitation, any reasonable attorneys’ fees
imposed on or incurred by the Trust Fund, the Depositor, the Trustee, the
Trust
Administrator or the Servicer, as a result of a breach of its covenants
set
forth in this Article IIIA or Article XI or negligent performance of its
duties
and obligations set forth herein.
166
SUNTRUST
MORTGAGE
|
||
SECURITIZATION,
LLC,
|
||
as
Depositor
|
||
By:
|
||
Name:
|
||
Title:
|
||
[ ],
as
Master Servicer and Trust Administrator
|
||
By:
|
||
Name:
|
||
Title:
|
||
[ ],
as
Trustee
|
||
By:
|
||
Name:
|
||
Title:
|
||
SUNTRUST
MORTGAGE, INC.,
|
||
as
Sponsor, Originator and Servicer
|
||
By:
|
||
Name:
|
||
Title:
|
167
SUNTRUST
BANK,
|
||
as
Custodian
|
||
By:
|
||
Name:
|
||
Title:
|
(Signature
Page)
168