TBW MORTGAGE TRUST [ ], as Issuer TBALT CORP., as Depositor as Securities Administrator and Master Servicer [TAYLOR, BEAN & WHITAKER MORTGAGE CORP.], as Seller and Servicer [ ], as Servicer and [ ], as Indenture Trustee
Exhibit
4.2
TBW
MORTGAGE TRUST [ ], as Issuer
TBALT
CORP.,
as
Depositor
[
],
as
Securities Administrator and Master Servicer
[XXXXXX,
XXXX & XXXXXXXX MORTGAGE CORP.],
as
Seller and Servicer
[
], as Servicer
and
[
], as Indenture Trustee
FORM
OF
Dated
as
of [ ]
TBW
MORTGAGE TRUST [ ]
MORTGAGE
BACKED NOTES
Page
|
||||
ARTICLE
I
DEFINITIONS
|
||||
Section
1.01.
|
Definitions
|
3
|
||
Section
1.02.
|
Calculations
With Respect to the Mortgage Loans
|
37
|
||
Section
1.03.
|
Calculations
With Respect to Accrued Interest
|
37
|
||
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS
|
||||
Section
2.01.
|
Creation
and Declaration of Trust Estate; Conveyance of Mortgage
Loans
|
37
|
||
Section
2.02.
|
Acceptance
of Trust Estate; Review of Documentation
|
42
|
||
Section
2.03.
|
Grant
Clause
|
44
|
||
Section
2.04.
|
Option
to Contribute Derivative Instrument
|
45
|
||
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
|
||||
Section
3.01.
|
Representations
and Warranties of the Depositor and the Seller
|
46
|
||
Section
3.02.
|
Discovery
of Breach
|
48
|
||
Section
3.03.
|
Repurchase,
Purchase or Substitution of Mortgage Loans
|
48
|
||
Section
3.04.
|
Representations
and Warranties of the Depositor with respect to Security
Interest
|
49
|
||
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS BY THE
SERVICER[S]
|
||||
Section
4.01.
|
Servicer[s]
to Perform Servicing Responsibilities
|
50
|
||
Section
4.02.
|
Servicing
of the Mortgage Loans
|
51
|
||
Section
4.03.
|
Payments
to the Master Servicer
|
66
|
||
Section
4.04.
|
General
Servicing Procedures
|
69
|
||
Section
4.05.
|
Representations,
Warranties and Agreements
|
73
|
||
Section
4.06.
|
The
Servicer[s]
|
76
|
||
Section
4.07.
|
Termination
for Cause
|
79
|
||
Section
4.08.
|
Successor
to Servicer
|
80
|
||
Section
4.09.
|
[Subservicers
and Subservicing Agreements; Subcontractors]
|
82
|
||
Section
4.10.
|
Superior
Liens
|
83
|
i
ARTICLE
V
ADMINISTRATION
AND MASTER SERVICING OF MORTGAGE LOANS BY THE
MASTER
SERVICER AND THE SECURITIES ADMINISTRATOR
|
||||
Section
5.01.
|
Duties
of the Master Servicer; Representations and Warranties
|
84
|
||
Section
5.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy
|
86
|
||
Section
5.03.
|
Master
Servicer’s Financial Statements and Related Information
|
87
|
||
Section
5.04.
|
Power
to Act; Procedures
|
87
|
||
Section
5.05.
|
Enforcement
of [Servicer’s/Servicers'] and Master Servicer’s
Obligations
|
88
|
||
Section
5.06.
|
Collection
Account
|
89
|
||
Section
5.07.
|
Application
of Funds in the Collection Account
|
90
|
||
Section
5.08.
|
Reports
to Indenture Trustee and Noteholders
|
92
|
||
Section
5.09.
|
Termination
of Servicer; Successor Servicers
|
97
|
||
Section
5.10.
|
Master
Servicer Liable for Enforcement
|
98
|
||
Section
5.11.
|
Assumption
of Master Servicing by Indenture Trustee
|
98
|
||
Section
5.12.
|
Release
of Mortgage Files
|
99
|
||
Section
5.13.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Indenture Trustee
|
100
|
||
Section
5.14.
|
Opinion
|
101
|
||
Section
5.15.
|
Indenture
Trustee To Retain Possession of Certain Insurance Policies and
Documents
|
101
|
||
Section
5.16.
|
Compensation
to the Master Servicer
|
102
|
||
Section
5.17.
|
Annual
Officer’s Certificate as to Compliance
|
102
|
||
Section
5.18.
|
Annual
Independent Accountants’ Servicing Report
|
103
|
||
Section
5.19.
|
Merger
or Consolidation
|
103
|
||
Section
5.20.
|
Resignation
of Master Servicer
|
104
|
||
Section
5.21.
|
Assignment
or Delegation of Duties by the Master Servicer
|
104
|
||
Section
5.22.
|
Limitation
on Liability of the Master Servicer and Others
|
104
|
||
Section
5.23.
|
Indemnification;
Third Party Claims
|
105
|
||
Section
5.24.
|
Alternative
Index
|
106
|
||
Section
5.25.
|
Transfer
of Servicing
|
106
|
||
Section
5.26.
|
Compliance
with Safeguarding Customer Information Requirements
|
107
|
||
ARTICLE
VI
DEPOSITS
AND PAYMENTS TO HOLDERS
|
||||
Section
6.01.
|
The
Note Payment Account
|
107
|
||
Section
6.02.
|
Payments
from the Note Payment Account
|
108
|
||
Section
6.03.
|
Control
of the Trust Account
|
112
|
||
Section
6.04.
|
Monthly
Advances by Master Servicer and Servicer[s]
|
115
|
||
Section
6.05.
|
[Cap]
[Swap] Agreements
|
116
|
ii
Section
6.06.
|
The
Capitalized Interest Account
|
119
|
||
Section
6.07.
|
[The
Pre-Funding Account] [The Revolving Account]
|
119
|
||
ARTICLE
VII
THE
SECURITIES ADMINISTRATOR
|
||||
Section
7.01.
|
Duties
of the Securities Administrator
|
120
|
||
Section
7.02.
|
Records
|
121
|
||
Section
7.03.
|
Compensation
and Indemnity
|
121
|
||
Section
7.04.
|
Additional
Information to be Furnished to the Issuer
|
121
|
||
Section
7.05.
|
Independence
of the Securities Administrator
|
121
|
||
Section
7.06.
|
No
Joint Venture
|
121
|
||
Section
7.07.
|
Other
Activities of Securities Administrator
|
121
|
||
Section
7.08.
|
Resignation
and Removal of Securities Administrator
|
122
|
||
Section
7.09.
|
Action
upon Termination, Resignation or Removal of the Securities
Administrator
|
123
|
||
ARTICLE
VIII
MASTER
SERVICER EVENTS OF DEFAULT
|
||||
Section
8.01.
|
Master
Servicer Events of Default; Indenture Trustee To Act; Appointment
of
Successor
|
124
|
||
Section
8.02.
|
Additional
Remedies of Indenture Trustee Upon Event of Default
|
128
|
||
Section
8.03.
|
Waiver
of Defaults
|
128
|
||
Section
8.04.
|
Notification
to Holders
|
129
|
||
Section
8.05.
|
Directions
by Noteholders and Duties of Indenture Trustee During Master Servicer
Event of Default
|
129
|
||
Section
8.06.
|
Action
Upon Certain Failures of the Master Servicer and Upon Master Servicer
Event of Default
|
129
|
||
Section
8.07.
|
Preparation
of Reports
|
130
|
||
ARTICLE
IX
TERMINATION
|
||||
Section
9.01.
|
Termination
|
131
|
||
Section
9.02.
|
Termination
Prior to Maturity Date; Optional Redemption
|
131
|
||
Section
9.03.
|
Certain
Notices upon Final Payment
|
132
|
||
ARTICLE
X
MISCELLANEOUS
PROVISIONS
|
||||
Section
10.01.
|
Binding
Nature of Agreement; Assignment
|
132
|
||
Section
10.02.
|
Entire
Agreement
|
132
|
||
Section
10.03.
|
Amendment
|
133
|
iii
Section
10.04.
|
Acts
of Noteholders
|
134
|
||
Section
10.05.
|
Recordation
of Agreement
|
134
|
||
Section
10.06.
|
Governing
Law
|
134
|
||
Section
10.07.
|
Notices
|
135
|
||
Section
10.08.
|
Severability
of Provisions
|
136
|
||
Section
10.09.
|
Indulgences;
No Waivers
|
136
|
||
Section
10.10.
|
Headings
Not To Affect Interpretation
|
137
|
||
Section
10.11.
|
Benefits
of Agreement
|
137
|
||
Section
10.12.
|
Special
Notices to [the Swap Counterparty and] the Rating Agencies
|
137
|
||
Section
10.13.
|
Counterparts
|
138
|
||
Section
10.14.
|
Agreement
of the Issuer
|
138
|
||
Section
10.15.
|
Execution
by the Issuer
|
138
|
iv
ATTACHMENTS
Exhibit
A-1
|
Form
of Initial Certification
|
|
Exhibit
A-2
|
Form
of Interim Certification
|
|
Exhibit
A-3
|
Form
of Final Certification
|
|
Exhibit
A-4
|
Form
of Endorsement
|
|
Exhibit
A-5
|
Form
of Request For Release
|
|
Exhibit
B
|
Form
of Lost Note Affidavit
|
|
Exhibit
C
|
Custodial
Agreement
|
|
Exhibit
D
|
Custodial
Account Letter Agreement
|
|
Exhibit
E
|
Escrow
Account Letter Agreement
|
|
Exhibit
F
|
Standard
Layout For Monthly Defaulted Loan Report
|
|
Exhibit
[ ]
|
[
] Swap Agreement
|
|
Schedule
A
|
Mortgage
Loan Schedule
|
|
[Schedule
B
|
Revolving
Credit Loans Schedule]
|
v
This
TRANSFER AND SERVICING AGREEMENT, dated as of [ ] (this
“Agreement” or this “Transfer and Servicing Agreement”), is by and among TBW
MORTGAGE TRUST [ ], a Delaware statutory trust, as issuer (the
“Issuer”), TBALT CORP., a Delaware corporation, as depositor (the “Depositor”),
[ ], as indenture trustee (the “Indenture Trustee”),
[ ], as securities administrator (in such capacity, the
“Securities Administrator”) and master servicer (in such capacity, the “Master
Servicer”)[, [ ], as Servicer (the “[ ]
Servicer”)] and [XXXXXX, XXXX & XXXXXXXX MORTGAGE CORP.], a [Florida]
corporation, as seller (in such capacity, the “Seller”) and servicer (in such
capacity, the “[TBW] Servicer” [and together with [ ], the
“Servicers”)].
PRELIMINARY
STATEMENT
WHEREAS,
the Depositor has acquired all of the rights, title and interest of the Seller
in certain conventional, first and second lien, adjustable rate, residential
mortgage loans identified in Schedule A hereto (the “Mortgage Loans”) from the
Seller pursuant to the Mortgage Loan Purchase Agreement, and at the Closing
Date
is the owner of the Mortgage Loans and the other property being conveyed by
it
to the Issuer hereunder for inclusion in the Trust Estate;
WHEREAS,
the Depositor has duly authorized the execution and delivery of this Agreement
to provide for the conveyance to the Issuer of the Mortgage Loans and the other
property constituting the Trust Estate;
WHEREAS,
on the Closing Date, the Depositor will acquire the Notes and the Ownership
Certificate from the Issuer as consideration for its transfer to the Issuer
of
the Mortgage Loans and the other property constituting the Trust Estate;
WHEREAS,
pursuant to the Indenture, the Issuer will pledge the Mortgage Loans and the
other property constituting the Trust Estate to the Indenture Trustee as
security for the Notes;
WHEREAS,
the Issuer desires that the Servicer[s] service the Mortgage Loans upon such
transfer to the Issuer pursuant to this Agreement, and the Servicer[s]
[has/have] agreed to do so;
WHEREAS,
the Master Servicer shall be obligated under this Agreement, among other things,
to supervise the servicing of the Mortgage Loans on behalf of the Issuer, and
shall have the right, under certain circumstances, to terminate the rights
and
obligations of the [related] Servicer under this Agreement upon the occurrence
and continuance of a Servicing Event of Default as provided herein;
WHEREAS,
the parties hereto acknowledge and agree that, at the direction of the
Depositor, the Seller will assign all of its rights with respect to the Mortgage
Loans to the Indenture Trustee;
WHEREAS,
the Issuer desires to have the Securities Administrator perform certain duties
consistent with the terms of this Agreement; and
WHEREAS,
the Securities Administrator has the capacity to provide the services required
hereby and is willing to perform such services on the terms set forth
herein.
2
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
The
following table sets forth (or describes) the class designation, Note Interest
Rate, initial Class Principal Amount and minimum denomination for each Class
of
Notes issued pursuant to the Indenture:
Class
Designation
|
Note
Interest Rate
|
Initial
Class
Principal Amount or Class Notional Amount
|
Minimum
Denominations
|
|||||||
Class
[ ]
|
(1
|
)
|
$
|
[
|
]
|
$
|
[
|
]
|
||
Class
[ ]
|
(2
|
)
|
$
|
[
|
]
|
$
|
[
|
]
|
||
Class
[ ]
|
(3
|
)
|
$
|
[
|
]
|
$
|
[
|
]
|
(1) |
[The
Note Interest Rate with respect to any Payment Date (and the related
Accrual Period) for the Class [
] Notes
is the per annum rate equal to the least of (i) LIBOR plus [
]% per
annum, (ii) the Maximum Note Interest Rate and (iii) the Available
Funds
Rate with respect to such Payment Date;
provided,
that the per annum rate calculated pursuant to clause (i) above with
respect to the Class [
]
Notes will be equal to LIBOR plus [
]%
per annum beginning on the Step-up Date (and the related Accrual
Period)
and on each Payment Date (and the related Accrual Period)
thereafter.]
|
(2) |
[The
Note Interest Rate with respect to any Payment Date (and the related
Accrual Period) for the Class [
]
Notes is the per annum rate equal to the least of (i) LIBOR plus
[
]%
per annum, (ii) the Maximum Note Interest Rate and (iii) the Available
Funds Rate with respect to such Payment Date;
provided,
that the per annum rate calculated pursuant to clause (i) above with
respect to the Class [
]
Notes will be equal to LIBOR plus [
]%
per annum beginning on the Step-up Date (and the related Accrual
Period)
and on each Payment Date (and the related Accrual Period)
thereafter.]
|
(3) |
[The
Note Interest Rate with respect to any Payment Date (and the related
Accrual Period) for the Class [
]Notes
is the per annum rate equal to the least of (i) LIBOR plus [
]%
per annum, (ii) the Maximum Note Interest Rate and (iii) the Available
Funds Rate with respect to such Payment Date;
provided,
that the per annum rate calculated pursuant to clause (i) above with
respect to the Class [
]
Notes will be equal to LIBOR plus [
]%
per annum beginning on the Step-up Date (and the related Accrual
Period)
and on each Payment Date (and the related Accrual Period)
thereafter.]
|
[May
vary
in accordance with transaction.]
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
The
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
[[
]-year Hybrid Loan Balance:
With
respect to any Payment Date, the aggregate Scheduled Principal Balances of
all
[ ]-year hybrid mortgage loans included in the Mortgage Pool.
As of the Cut-off Date, the [ ]-year Hybrid Loan Balance is
equal to approximately $[ ].]
3
[[
]-year Hybrid Scheduled Notional Balance:
With
respect to any Payment Date, the corresponding scheduled notional balance set
forth in the table entitled “[ ]-year Hybrid Swap Agreement”
attached as Exhibit [ ].]
[[
]-year Hybrid Swap Agreement:
The
interest rate swap agreement relating to [ ]-year hybrid loans
documented pursuant to an ISDA Master Agreement, together with a schedule and
confirmation, between the Securities Administrator, on behalf of the Trust,
and
the Swap Counterparty.]
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage loan servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction where
the related Mortgaged Property is located, and which are in accordance with
Xxxxxx Mae servicing practices and procedures, for MBS pool mortgages, as
defined in the Xxxxxx Xxx Guides including future updates.
Accountant:
A
Person engaged in the practice
of
accounting who (except when this Agreement provides that an Accountant must
be
Independent) may be employed by or affiliated with the Depositor or an Affiliate
of the Depositor.
Accounts:
Any or
all of the Custodial Accounts, the Escrow Accounts, the Collection Account,
the
Note Payment Account, the Certificate Distribution Account, [the Cap Account],
[the Swap Account] and any other accounts created or maintained by the Master
Servicer, the Securities Administrator or the Servicer[s] pursuant to this
Agreement.
Accrual
Period:
With
respect to any Payment Date and any Class of Notes, the period beginning on
immediately preceding Payment Date (or on the Closing Date, in the case of
the
first Accrual Period) and ending on the day immediately preceding the related
Payment Date.
Accrued
Note Interest:
With
respect to any Payment Date and any Class of Notes, the aggregate amount of
interest accrued at the applicable Note Interest Rate during the related Accrual
Period on the Class Principal Amount of such Class immediately prior to such
Payment Date, provided,
however,
that for
any class of Notes and any Payment Date, Accrued Note Interest will be reduced
by the amount specified in clause (a) of the definition of Deferred Interest,
if
any for such Class and Payment Date.
[Additional
Mortgage Loan:
A
Mortgage Loan that is conveyed as of the Transfer Date to the Trust by the
Depositor pursuant to a Transfer Supplement to the Mortgage Loan Purchase
Agreement, which Mortgage Loan shall be identified in such Transfer Supplement
as a Additional Mortgage Loan and added by the Depositor to the Mortgage Loan
Schedule.]
4
Adjustment
Date:
With
respect to any Mortgage Loan, the date on which an adjustment is made to the
Monthly Payment to correspond to an adjustment in the related Mortgage
Note.
Administration
Agreement:
The
administration agreement dated as of [ ], among the Issuer,
the Indenture Trustee, the Securities Administrator, the Owner Trustee and
the
Depositor.
[Addition
Notice:
With
respect to each sale of [Subsequent Mortgage Loans] [Additional Mortgage Loans]
to the Trust pursuant to Section [ ] of this Agreement, a
notice from the Depositor substantially in the form of Exhibit
[ ] hereto delivered to the Indenture Trustee, the Master
Servicer, the Securities Administrator, the Custodian and each Rating
Agency.
[Additional
Termination Event:
As
defined in the related Swap Agreement.]
[Advance
Reimbursement Shortfall Amount:
As
defined in Section 4.02(a).]
[Affected
Party:
As
defined in the related Swap Agreement.]
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Agreement:
This
Transfer and Servicing Agreement and all amendments and supplements
hereto.
Ancillary
Income:
All
income derived from the Mortgage Loans, excluding Servicing
Fees
attributable to the Mortgage Loans and other amounts treated as payment proceeds
of the Mortgage Loans, including but not limited to, late charges, fees received
with respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, optional insurance administrative fees
and all other incidental fees and charges.
Appraised
Value:
With
respect to any Mortgaged Property, the value thereof as determined by an
appraisal made for the originator of the Mortgage Loan at the time of
origination of the Mortgage Loan by an appraiser who met the requirements of
the
[related] Servicer and Xxxxxx Mae, or as determined by use of an automated
valuation model, provided, however, that the use of an automated valuation
model
shall be permitted only upon the presentation by the [related] Servicer to
the
Indenture Trustee of an approval letter acceptable to the Indenture Trustee
from
each of the Rating Agencies, which letters shall state that use of an automated
valuation model shall have no adverse effect in any material respect on the
interests of any Noteholder.
Assignment
of Mortgage:
An
assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect of record the sale of
the
Mortgage, which assignment, notice of transfer or equivalent instrument may
be
in the form of one or more blanket assignments covering Mortgages secured by
Mortgaged Properties located in the same county, if permitted by
law.
5
Available
Funds Rate:
[With
respect to any Payment Date and the Notes, the per annum rate equal to the
product of (1) (a) 360 divided
by
(b) the
actual number of days in the Accrual Period, and (2) (a) Interest Funds for
such
Payment Date [less any
Net
Swap Payment or Swap Termination Payment owed to the Swap Counterparty for
such
Payment Date, including amounts remaining unpaid from previous Payment Dates,
pursuant to any Swap Agreement, to the extent that any such Swap Termination
Payment is not due to a Swap Counterparty Trigger Event],
divided
by
(b) the
aggregate Class Principal Amount of the Notes as of the first day of the related
Accrual Period.][May vary in accordance with transaction.]
Authorized
Officer:
Any
Person who may execute
an
Officer’s Certificate on behalf of the Issuer.
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing in
the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either the
Bankruptcy Code, or any other similar state laws.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Bankruptcy
Loss:
Any loss
resulting from a bankruptcy court, in connection with a personal bankruptcy
of a
borrower, (1) establishing the value of a Mortgaged Property at an amount less
than the Outstanding Principal Balance of the Mortgage Loan secured by such
Mortgaged Property or (2) reducing the amount of the Monthly Payment on the
related Mortgage Loan, in each case, as reported by the [related] Servicer
to
the Master Servicer.
Basis
Risk Shortfall:
[With
respect to each Payment Date and any Class of Notes, an
amount
equal to the sum of (1) the excess, if any, of (a) Accrued Note Interest
calculated without regard to the Available Funds Rate over (b) the aggregate
of
interest accrued on such Class at an interest rate equal to the Available Funds
Rate, (2) any amount described in clause (1) above for such Class remaining
unpaid from prior Payment Dates and (3) interest on the amount in clause (2)
above at such Class's applicable Note Interest Rate (without regard to the
Available Funds Rate).]
Basis
Risk Shortfall Carryforward Amount:
With
respect to each Class of Notes and any Payment Date, an amount equal to the
aggregate amount of Basis Risk Shortfall for such Class of Notes on such Payment
Date, plus any unpaid Basis Risk Shortfall for such Class of Notes from prior
Payment Dates, plus interest thereon at the Note Interest Rate for such Payment
Date for such Class for the related Accrual Period, to the extent previously
unpaid from Monthly Excess Cashflow [or from proceeds of the [Cap] [Swap]
Agreements].
6
Book-Entry
Notes:
As
defined in the Indenture.
Business
Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in New York, New York or, if other than New York, the city in
which
the Corporate Trust Office of the Indenture Trustee is located, or the States
of
Delaware, Georgia, Maryland, Massachusetts, Minnesota or Texas are authorized
or
obligated by law or executive order to be closed.
[Cap
Account:
A
separate account established and maintained by the Securities Administrator
for
the benefit of the Noteholders pursuant to Section 6.05.]
[Cap
Agreement Payment Date:
With
respect to any Cap Agreement, one Business Day immediately prior to the related
Payment Date, beginning with the Payment Date in [
]
and
ending with the Payment Date in [
].]
[Cap
Agreements:
The
interest rate cap agreements dated on or before the Closing Date between the
Issuer and the Cap Counterparty.]
[Capitalized
Interest Account:
The
capitalized interest account established by the [Securities Administrator]
for
the benefit of the [Noteholders and the Depositor].]
[Capitalized
Interest Requirement:
As to
any Payment Date to and including the Payment Date following the end of the
Pre-Funding Period and each Mortgage Pool, an amount equal to the product of
(i)
the weighted average Net Mortgage Rate of the Mortgage Loans in such Mortgage
Pool divided by 12, multiplied by (ii) the excess of (a) the balance in the
related Pre-Funding Account as of the Closing Date over (b) the aggregate
Scheduled Principal Balance of the Subsequent Mortgage Loans included in the
related Mortgage Pool that will have a scheduled interest payment included
in
the Interest Funds for such Payment Date.]
[Cap
Counterparty:
[ ].]
[Cap
Receipt:
With
respect to any Cap Agreement Payment Date, any amount received from the Cap
Counterparty under any Cap Agreement.]
Certificate:
The
Ownership Certificate.
Certificate
Distribution Account:
As
defined in the Trust Agreement.
Certificate
of Trust:
As
defined in the Trust Agreement.
7
Certificate
Registrar:
As
defined in the Trust Agreement, the initial Certificate Registrar shall be
the
Securities Administrator.
Certificateholder:
Any
registered holder of the Ownership Certificate.
Civil
Relief Act:
The
Servicemembers Civil Relief Act, as such may be amended from time to time,
and
any similar state or local laws.
Class:
All
Notes bearing the same class designation.
Class
[ ] Principal Payment Amount:
[With
respect to any Payment Date on or after the Stepdown Date, as long as a Trigger
Event has not occurred with respect to such Payment Date, an amount equal to
the
excess of (x) the aggregate Class Principal Amount of the Class [
]
Notes
immediately prior to such Payment Date over (y) the lesser of (A) the product
of
(i) [
]%
and
(ii) the aggregate Scheduled Principal Balance of the Mortgage Loans as of
the
last day of the related Collection Period and (B) the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period minus
the
Overcollateralization Floor.]
Class
[ ]
Principal Payment Amount:
[With
respect to any Payment Date on or after the Stepdown Date, as long as a Trigger
Event has not occurred with respect to such Payment Date, an
amount
equal to the lesser of (x) the remaining Principal Payment Amount for that
Payment Date after payment of the Class [ ] Principal Payment
Amount and (y) the excess, if any, of (A) the sum of (1) the aggregate Class
Principal Amount of the Class [ ] Notes (after taking into
account the payment of the Class [ ] Principal Payment Amount
for such Payment Date) and (2) the Class Principal Amount of the Class
[ ] Notes immediately prior to such Payment Date, over (B) the
lesser of (a) the product of (i) approximately [ ]% and (ii)
the aggregate Scheduled Principal Balance of the Mortgage Loans as of the last
day of the related Collection Period, and (b) the aggregate Scheduled Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period minus
the
Overcollateralization Floor.]
Class
[ ]
Principal Payment Amount:
[With
respect to any Payment Date on or after the Stepdown Date, as long as a Trigger
Event has not occurred with respect to such Payment Date, an
amount
equal to the lesser of (x) the remaining Principal Payment Amount for that
Payment Date after payment of the Class [ ]Principal Payment
Amount and the Class [ ] Principal Payment Amount and (y) the
excess, if any, of (A) the sum of (1) the aggregate Class Principal Amount
of
the Class [ ] Notes (after taking into account the payment of
the Class [ ] Principal Payment Amount for such Payment Date),
(2) the Class Principal Amount of the Class [ ] Notes (after
taking into account the payment of the Class [ ] Principal
Payment Amount for such Payment Date) and (3) the Class Principal Amount of
the
Class [ ] Notes immediately prior to such Payment Date, over
(B) the lesser of (a) the product of (i) approximately [ ]%
and (ii) the aggregate Scheduled Principal Balance of the Mortgage Loans as
of
the last day of the related Collection Period, and (b) the aggregate Scheduled
Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period minus
the
Xxxxxxxxxxxxxxxxxxxxx Xxxxx.
0
Xxxxx
Xxxxxxxxx Xxxxxx:
With
respect to any Class of
Notes as
of any Payment Date, its initial Class Principal Amount as of the Closing Date,
as reduced by all amounts previously paid on that Class in respect of principal
prior to such Payment Date.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act, as amended. As of the Closing Date, the Clearing Agency shall
be
The Depository Trust Company.
Closing
Date:
[
].
Code:
The
Internal Revenue Code of 1986, as amended.
Collateral:
As
defined in the Indenture.
Collection
Account:
A
separate account maintained by the Master Servicer established in the name
of
the Indenture Trustee and for the benefit of the Noteholders pursuant to Section
5.06.
Collection
Period:
[With
respect to any Payment Date, the one-month period commencing on the second
day
of the calendar month immediately preceding the month in which such Payment
Date
occurs and ending on the first day
of the
month in which such Payment Date occurs].
Combined
Loan-to-Value Ratio:
With
respect to a Second Lien Mortgage Loan, at any time, the ratio, expressed as
a
percentage, of the sum of (1) the principal balance of such Mortgage Loan and
(2) the principal balance of the related first lien mortgage loan, each as
of
the applicable date of determination, to (a) in the case of a purchase, the
lesser of the sale price of the Mortgaged Property and its appraised value
at
the time of sale or (b) in the case of a refinancing or modification, the
appraised value of the Mortgaged Property at the time of the refinancing or
modification.
Commission:
The
United States Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Payment Date, an amount equal to the lesser of (x) the aggregate
Prepayment Interest Shortfall Amount with respect to such Payment Date and
(y)
the aggregate Servicing
Fee
payable
to the Servicer[s] in respect of such Payment Date.
Condemnation
Proceeds:
All
awards of settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related mortgage loan documents.
9
[Conforming
Balance Mortgage Loan:
A First
Lien Mortgage Loan that has a Scheduled Principal Balance as of the Cut-off
Date
that is less than or equal to the Xxxxxx Xxx maximum original loan amount
limitation for one-to four-family Mortgaged Properties for the applicable
jurisdiction in which the Mortgaged Property is located.]
Control:
The
meaning specified in Section 8-106 of the New York UCC.
Corporate
Trust Office:
With
respect to (i) the Securities Administrator, the Certificate Registrar and
the
Note Registrar, the principal corporate trust office of the Securities
Administrator which, for purposes of presentment of Securities for transfer
and
exchange and final payment, is located at [
];
and
(iii) the Indenture Trustee, the principal office of the Indenture Trustee
at
which at any particular time its corporate trust business shall be administered,
which office at the date of execution of this Agreement is located
at
[ ],
or at
such other address as the Indenture Trustee may designate from time to time
by
notice to the Noteholders and the Trust, or the principal corporate trust office
of any successor Indenture Trustee at the address designated by such successor
Indenture Trustee by notice to the Noteholders and the Trust.
[Credit
Advance Rate:
The
related per annum interest rate set forth in the related Mortgage Note with
respect to any Revolving Credit Loan.]
[Credit
Line:
With
respect to a Revolving Credit Loan, the maximum principal amount which may
be
advanced to a Mortgagor under the terms of the related Mortgage
Note.]
[Credit
Line Advance:
With
respect to a Revolving Credit Loan, a principal disbursement to a Mortgagor
under the terms of the related Mortgage Note (collectively, “Credit Line
Advances”).]
Cumulative
Loss Trigger Event:
A
Cumulative Loss Trigger Event shall have occurred with respect to any Payment
Date beginning in [ ] if the 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 Collection Period by (y) the Cut-off Date Balance, exceeds the
applicable percentage described below with respect to such Payment
Date:
Payment
Date
|
Loss
Percentage
|
|||
[
]
through [
]
|
[
]%
|
|
||
[
]
through [
]
|
[
]%
|
|
||
[
]
through [
]
|
[
]%
|
|
Custodial
Account:
The
separate custodial account (other than an Escrow Account) established and
maintained by the [related] Servicer pursuant to Section 4.02(d) of
this Agreement.
10
Custodial
Agreement:
The
custodial agreement dated as of [ ], relating to the custody
of certain of the Mortgage Loans, substantially in the form attached as Exhibit
C hereto, among the Custodian, the Issuer, the Master Servicer, the Depositor
and the Indenture Trustee.
Custodian:
The
custodian appointed pursuant to the Custodial Agreement, and any successor
thereto. The initial Custodian is [ ].
Custodian
Fee:
The
annual on-going fee payable by the Master Servicer on behalf of the Trust to
the
Custodian from income on funds held in the Collection Account as provided in
Section 5.07 and pursuant to the terms of the separate fee letter agreement
for
TBW Mortgage Trust [ ] Mortgage Backed Notes.
Cut-off
Date:
[ ].
Cut-off
Date Balance:
$[ ].
Deferred
Interest:
With
respect to any Class of Notes for any Payment Date, an amount equal to the
sum
of (a) the aggregate amount of interest accrued at the applicable Note Interest
Rate during the related Accrual Period on the Principal Deficiency Amount for
that Class, (b) any amounts due pursuant to clause (a) for such Class for prior
Payment Dates that remain unpaid and (c) interest accrued during the Accrual
Period related to such Payment Date on the amount described in clause (b) at
the
Note Interest Rate applicable to such Class.
[Defaulting
Party:
As
defined in the related Swap Agreement.]
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation of the Mortgaged Property by a court
of competent jurisdiction in an amount less than the unpaid principal balance
of
the Mortgage Loan secured by such Mortgaged Property.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Estate pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Delinquency
Event:
A
Delinquency Event shall have occurred with respect to any Payment Date if the
Rolling Three Month Delinquency Rate as of the last day of the immediately
preceding calendar month equals or exceeds [ ]% of the Senior
Enhancement Percentage for such Payment Date.
Delinquency
Rate:
With
respect to any calendar month, the fraction, expressed as a percentage, the
numerator of which is the aggregate Scheduled Principal Balance of all Mortgage
Loans 60 days Delinquent or more (including all foreclosures, bankruptcies
and
REO Properties) as of the close of business on the last day of such month and
as
reported by the [related] Servicer to the Master Servicer, and the denominator
of which is the Pool
Balance
as of
the close of business on the last day of such month.
11
Delinquent:
For
reporting purposes, a Mortgage Loan is “delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefor. Such Mortgage Loan is “30 days Delinquent” if such payment has
not been received by the close of business on the corresponding day of the
month
immediately succeeding the month in which such payment was first due, or, if
there is no such corresponding day (e.g.,
as when
a 30-day month follows a 31-day month in which a payment was due on the 31st
day
of such month), then on the last day of such immediately succeeding month.
Similarly for “60 days Delinquent” and the second immediately succeeding month
and “90 days Delinquent” and the third immediately succeeding
month.
Depositor:
TBALT
Corp., a Delaware corporation.
Depository
Agreement:
The
agreement dated [ ], between the Issuer and The Depository
Trust Company, as the initial Clearing Agency, relating to the Book-Entry
Notes.
Determination
Date:
With
respect to each Payment Date, the [15]th day of the related calendar month,
or,
if such day is not a Business Day, the immediately preceding Business
Day.
Due
Date:
With
respect to each Mortgage Loan, the day of the month each Monthly Payment is
due.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company that complies with the definition of
Eligible Institution or (ii) an account or accounts the deposits in which are
insured by the FDIC to the limits established by such corporation, provided
that any
such deposits not so insured shall be maintained in an account at a depository
institution or trust company whose commercial paper or other short term debt
obligations (or, in the case of a depository institution or trust company which
is the principal subsidiary of a holding company, the commercial paper or other
short term debt or deposit obligations of such holding company or depository
institution, as the case may be) have been rated by each Rating Agency in its
highest short-term rating category, or (iii) a segregated trust account or
accounts (which shall be a “special deposit account”) maintained with the
Securities Administrator or any other federal or state chartered depository
institution or trust company, acting in its fiduciary capacity, in a manner
acceptable to the Rating Agencies. Eligible Accounts may bear
interest.
Eligible
Institution:
Any of
the following:
(i) |
An
institution whose:
|
(A) commercial
paper, short-term debt obligations, or other short-term deposits are rated
at
least “A-1+” and “P-1” or long-term unsecured debt obligations are rated at
least “AA-” or “Aa3” by S&P and Moody’s, respectively (or assigned
comparable ratings by the other Rating Agencies), if the amounts on deposit
are
to be held in the account for no more than 365 days; or
12
(B) commercial
paper, short-term debt obligations, demand deposits, or other short-term
deposits are rated at least “A-2” and “P-1” by S&P and Moody’s, respectively
(or assigned comparable ratings by the other Rating Agencies), if the amounts
on
deposit are to be held in the account for no more than 30 days and are not
intended to be used as credit enhancement. Upon the loss of the required rating
set forth in this clause (ii), the accounts shall be transferred immediately
to
accounts which have the required rating. Furthermore, commingling by the
Servicer[s] is acceptable at the A-2 and P-1 rating level if the [related]
Servicer is a bank, thrift or depository and provided the [related] Servicer
has
the capability to immediately segregate funds and commence remittance to an
Eligible Deposit Account upon a downgrade; or
(ii) the
corporate trust department of a federal depositor institution or state-chartered
depositor institution subject to regulations regarding fiduciary funds on
deposit similar to Title 12 of the U.S. Code of Federal Regulation Section
9.10(b), which, in either case, has corporate trust powers and is acting in
its
fiduciary capacity.
Eligible
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Indenture Trustee or the
Securities Administrator or any agent of the Indenture Trustee or the Securities
Administrator, acting in its respective commercial capacity) incorporated or
organized under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal or state banking
authorities, so long as at the time of investment or the contractual commitment
providing for such investment the commercial paper or other short-term debt
obligations of such depository institution or trust company (or, in the case
of
a depository institution or trust company which is the principal subsidiary
of a
holding company, the commercial paper or other short-term debt or deposit
obligations of such holding company or deposit institution, as the case may
be)
have been rated by each Rating Agency in its highest short-term rating category
or one of its two highest long-term rating categories;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
Xxxxxx Xxx, Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject
to Securities Investors’ Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an uninsured,
unsecured and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
13
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided,
however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the Trust
Estate to exceed [20]% of the sum of the Pool Balance and the aggregate
principal amount of all Eligible Investments in the Collection Account;
provided,
further,
that
such securities will not be Eligible Investments if they are published as being
under review with negative implications from any Rating Agency;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment (including those managed or
advised by the Indenture Trustee, the Master Servicer, the Securities
Administrator, or any Affiliate thereof), (A) rated in the highest rating
category by each Rating Agency or (B) that would not adversely affect the then
current rating assigned by each Rating Agency of any of the Notes. Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any fund for which [ ] (the
“Bank”) in its capacity other than as the Master Servicer, the Securities
Administrator or an affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent, and/or custodian or subcustodian,
notwithstanding that (x) the Bank, the Indenture Trustee, the Master Servicer
or
any affiliate thereof charges and collects fees and expenses from such funds
for
services rendered, (y) the Bank, the Indenture Trustee, the Securities
Administrator, the Master Servicer or any affiliate thereof charges and collects
fees and expenses for services rendered pursuant to this Agreement, and (z)
services performed for such funds and pursuant to this Agreement may converge
at
any time. The Bank or an affiliate thereof is specifically authorized to charge
and collect from the Issuer such fees as are collected from all investors in
such funds for services rendered to such funds (but not to exceed investment
earnings thereon);
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations, provided
that any
such investment will be a “permitted investment” within the meaning of Section
860G(a)(5) of the Code.
14
Entitlement
Holder:
The
meaning specified in Section 8-102(a)(7) of the New York UCC.
Entitlement
Order:
The
meaning specified in Section 8-102(a)(8) of the New York UCC (i.e.,
generally, orders directing the transfer or redemption of any Financial
Asset).
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
Errors
and Omissions Insurance:
Errors
and Omissions Insurance to be maintained by [the/each] Servicer in accordance
with Section 4.02.
Escrow
Account:
The
separate escrow account (other than a Custodial Account) established and
maintained by [the/each] Servicer pursuant to Section 4.02(f) of
this Agreement.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Extra
Principal Payment Amount:
[With
respect to any Payment Date, the lesser of (1) the Monthly Excess Interest
for
such Payment Date and (2) the excess, if any, of (a) the Overcollateralization
Target Amount over (b) the Overcollateralized Amount on such Payment Date (after
giving effect to payment to the Notes of Principal Funds on such Payment
Date).]
Xxxxxx
Mae:
Xxxxxx
Xxx, a federally chartered and privately owned corporation organized and
existing under the Federal National Mortgage Association Charter Act, or any
successor thereto.
Xxxxxx
Mae Guide(s):
The
Xxxxxx Xxx Selling Guide and the Xxxxxx Mae Servicing Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
FHA
Regulations:
Regulations promulgated by HUD under the National Housing Act, codified in
24
Code of Federal Regulations, and other HUD issuances relating to FHA loans,
including the related handbooks, circulars, notices and mortgagee
letters.
15
Financial
Asset:
The
meaning specified in Section 8-102(a) of the New York UCC.
[First
Lien Mortgage Loans:
Mortgage Loans secured by mortgages or deeds of trust or similar security
instruments creating a first lien on the related Mortgaged
Property.]
Fitch:
Fitch,
Inc., or any successor in interest.
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor thereto.
Xxxxxx
Mae:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
Gross
Margin:
With
respect to a Mortgage Loan, a fixed percentage amount specified in the related
mortgage note that is added to an index to determine the related Mortgage
Rate.
Guidelines:
As
defined in Section 4.02(p).
Holder
or
Noteholder:
The
registered holder of any Note or Ownership Certificate as recorded on the books
of the Note Registrar or the Certificate Registrar except that, solely for
the
purposes of taking any action or giving any consent pursuant to this Agreement,
any Note registered in the name of the Depositor, the Master Servicer, the
Servicer[s], the Seller, the Securities Administrator or the Indenture Trustee
or any Affiliate thereof (unless any such Person owns 100% of a Class) shall
be
deemed not to be outstanding in determining whether the requisite percentage
necessary to effect any such consent has been obtained, except that, in
determining whether the Indenture Trustee and Securities Administrator shall
be
protected in relying upon any such consent, only Notes and an Ownership
Certificate which a Responsible Officer thereof has actual knowledge to be
so
held shall be disregarded. The Indenture Trustee and Securities Administrator
may request and conclusively rely on certifications by the Depositor
in
determining whether any Note, or Ownership Certificate are registered to an
Affiliate of the Depositor.
[Home
Equity Accepted Servicing Practices:
With
respect to any Revolving Credit Loan, those mortgage loan servicing practices
(including collection procedures) of prudent mortgage banking institutions
which
service home equity mortgage loans of the same type as such Revolving Credit
Loan in the jurisdiction where the related Mortgaged Property is
located.]
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA
Regulations.
Indenture:
The
Indenture dated as of [ ], among the Issuer, the Indenture
Trustee and the Securities Administrator, as such may be amended or supplemented
from time to time.
16
Indenture
Events of Default:
As
defined in Section 5.01 of the Indenture.
Indenture
Trustee:
[ ], not in its individual capacity but solely as Indenture
Trustee, or any successor in interest.
Indenture
Trustee Fee:
The
annual on-going fee payable by the Master Servicer on behalf of the Trust to
the
Indenture Trustee from income on funds held in the Collection Account as
provided in Section 5.07 and pursuant to the terms of the separate fee letter
agreement for TBW Mortgage
Trust [ ] Mortgage Backed Notes.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Commission’s Regulation S-X. When used with
respect to any other Person, a Person who (a) is in fact independent of another
specified Person and any Affiliate of such other Person, (b) does not have
any
material direct financial interest in such other Person or any Affiliate of
such
other Person, and (c) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
Index:
[Either
the One-Month LIBOR Index or the Six-Month LIBOR Index].
[Initial
Mortgage Loan:
A
Mortgage Loan that is conveyed to the Trust pursuant to this Agreement on the
Closing Date. The Initial Mortgage Loans subject to this Agreement are
identified on the Mortgage Loan Schedule.]
Initial
Purchase Date:
The
first Payment Date following the month in which the Pool Balance is initially
reduced to less than [ ]% of the Cut-off Date
Balance.
Insurance
Policy:
Any
primary mortgage insurance policy, standard hazard insurance policy, flood
insurance policy, earthquake insurance policy or title insurance policy relating
to the Mortgage Loans or the Mortgaged Properties, to be in effect as of the
Closing Date or thereafter during the term of this Agreement.
Insurance
Proceeds:
Any
amounts paid by an insurer under a primary mortgage insurance policy, any
standard hazard insurance policy, flood insurance policy, title insurance policy
or any other insurance policy relating to the Mortgage Loans or related
mortgaged properties other than amounts to cover expenses incurred by the
[related] Servicer in connection with procuring such proceeds, applied to the
restoration and repair of the related Mortgaged Property or to be paid to the
borrower pursuant to the related Mortgage Note or state law.
Interest
Funds:
[With
respect to any Payment Date, the sum of (1) all interest received or advanced
by
the [related] Servicer or the Master Servicer for the related Collection Period
and available in the Note Payment Account on that Payment Date, (2) all
Compensating Interest Payments paid with respect to Mortgage Loans that were
prepaid during the related Prepayment Period and (3) the portion of any purchase
price or other amount paid with respect to the Mortgage Loans allocable to
interest; net of any fees or other amounts reimbursable to the Master Servicer,
the Servicer[s], the Securities Administrator, the Indenture Trustee, the
Custodian and the Owner Trustee as provided in the Operative Agreements.] [For
each Payment Date up to and including the Payment Date in [ ],
20[
],
Interest Funds shall include amounts distributable from the Capitalized Interest
Account in an amount equal to the product of (i) the weighted average Net
Mortgage Rate of the Mortgage Loans divided by 12, multiplied by (ii) the excess
of (a) the balance in the Pre-Funding Account as of the Closing Date, over
(b)
the aggregate principal balance of the Subsequent Mortgage Loans that will
have
an interest payment included in the Interest Funds for such Payment
Date.]
17
Issuer:
TBW Mortgage
Trust [ ].
Lender
Paid Mortgage Insurance Rate:
The
Lender Paid Mortgage Insurance Rate shall be a rate per annum equal to the
percentage shown on the Mortgage Loan Schedule.
[Lender
Primary Mortgage Insurance Policy or LPMI Policy:
Any
Primary Mortgage Insurance Policy for which premiums are paid by the [related]
Servicer.]
[Level
I LPMI:
an LPMI
Policy for First Lien Mortgage Loans with Loan-to-Value Ratios at origination
ranging from [ ]% to [ ]%.]
[Level
II LPMI:
an LPMI
Policy for First Lien Mortgage Loans with Loan-to-Value Ratios at origination
ranging from [ ]% to [ ]%.]
[Level
III LPMI:
an LPMI
Policy for First Lien Mortgage Loans with Loan-to-Value Ratios at origination
ranging from [ ]% to [ ]%.]
[Level
IV LPMI:
an LPMI
Policy for First Lien Mortgage Loans with Loan-to-Value Ratios at origination
ranging from [ ]% to [ ]%.]
LIBOR:
[(a)
With respect to the first Accrual Period, the per annum rate of
[ ]%. With respect to each subsequent Accrual Period, a per
annum rate determined on the LIBOR Determination Date in the following manner
by
the Securities Administrator on the basis of the “Interest Settlement Rate” set
by the British Bankers’ Association (the “BBA”) for one-month United States
dollar deposits, as such rates appear on the Telerate Page 3750, as of 11:00
a.m. (London time) on such LIBOR Determination Date.
(b) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Securities Administrator
will determine such rate on the basis of the offered rates of the Reference
Banks for one-month United States dollar deposits, as such rates appear on
the
Reuters Screen LIBO Page, as of 11:00 a.m. (London time) on such LIBOR
Determination Date.
18
(c) If
LIBOR
is determined under clause (b) above, on each LIBOR Determination Date, LIBOR
for the related Accrual Period for the Notes will be established by the
Securities Administrator as follows:
(1) If
on
such LIBOR Determination Date two or more Reference Banks provide such offered
quotations, LIBOR for the related Accrual Period for the Notes shall be the
arithmetic mean of such offered quotations (rounded upwards if necessary to
the
nearest whole multiple of [ ]%).
(2) If
on
such LIBOR Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(x) LIBOR as determined on the previous LIBOR Determination Date and (y) the
Reserve Interest Rate.
(d) The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the Note Interest Rate applicable to
the Notes for the relevant Accrual Period, in the absence of manifest error,
will be final and binding.]
LIBOR
Business Day:
Any day
on which banks in London and New York are open and conducting transactions
in
foreign currency and exchange.
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the [related] Servicer has determined that
all amounts that it expects to recover from or on account of such Mortgage
Loan
have been recovered, [and any Second Lien Mortgage Loan that is more than 180
days Delinquent], in each case, as reported by the [related] Servicer to the
Master Servicer.
Liquidation
Expenses:
Expenses that are incurred by the Master Servicer or the [related] Servicer,
as
applicable, in connection with the liquidation of any defaulted Mortgage Loan
and are not recoverable under the applicable primary mortgage insurance policy,
if any, including, without limitation, foreclosure and rehabilitation expenses,
legal expenses and unreimbursed amounts, if any, expended pursuant to Sections
4.02(c), 4.02(j) or 4.02(o).
Liquidation
Proceeds: Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff or otherwise, or the sale
of the related REO Property, if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value
Ratio:
With
respect to a First Lien Mortgage Loan, at any time, the ratio, expressed as
a
percentage, of the principal balance of such Mortgage Loan as of the applicable
date of determination, to (a) in the case of a purchase, the lesser of the
sale
price of the Mortgaged Property and its appraised value at the time of sale
or
(b) in the case of a refinancing or modification, the appraised value of the
Mortgaged Property at the time of the refinancing or modification.
19
Majority
Noteholders:
Until
such time as the sum of the Class Principal Amounts of all Classes of Notes
has
been reduced to zero, the holder or holders of in excess of 50% of the aggregate
Class Principal Amount of all Classes of Notes; and thereafter, the holder
of
the Ownership Certificate.
Margin:
With
respect to each adjustable rate Mortgage Loan, the fixed percentage amount
set
forth in each related Mortgage Note which is added to the Index in order to
determine the related Mortgage Rate, as set forth in the Mortgage Loan
Schedule.
Master
Servicer:
[ ], or any successor in interest, or if any successor master
servicer shall be appointed as herein provided, then such successor master
servicer.
Master
Servicer Errors and Omission Insurance Policy:
Any
errors and omission insurance policy required to be obtained by the Master
Servicer satisfying the requirements of Section 5.02.
Master
Servicer Event of Default:
Any one
of the conditions or circumstances enumerated in Section 8.01(a).
Master
Servicer Fidelity Bond:
Any
fidelity bond to be maintained by the [related] Servicer in accordance with
Section 5.02.
Master
Servicer Remittance Date:
[With
respect to each Payment Date, the Business Day immediately preceding such
Payment Date.]
Material
Defect:
With
respect to any Mortgage Loan, as defined in Section 2.02(c) hereof.
Maturity
Date:
The
Payment Date in [ ].
Maximum
Mortgage Rate:
The
maximum level to which a Mortgage Rate can adjust in accordance with its terms,
regardless of changes in the applicable Index.
Maximum
Note Interest Rate:
[ ]% per annum.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
20
MIN:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
Minimum
Mortgage Rate:
The
minimum level to which a Mortgage Rate can adjust in accordance with its terms,
regardless of changes in the applicable Index.
Monthly
Advance:
An
advance made by the Servicer[s] pursuant to Section 4.03(c) or the Master
Servicer pursuant to Section 6.04, as applicable, with respect to delinquent
payments of principal and interest on the Mortgage Loans, adjusted to the
related Net Mortgage Rate.
Monthly
Excess Cashflow:
[With
respect to any Payment Date, (a) the sum of (1) the Overcollateralization
Release Amount for such date, (2) Monthly Excess Interest for such date and
(3)
any Principal
Payment Amount for such date remaining after application pursuant to either
clauses (i)(1) through (7) or clauses (ii)(1) through (7), as applicable, of
Section 6.02(b) on such date minus
(b) the
Extra Principal Payment Amount for such date.]
Monthly
Excess Interest:
[With
respect to any Payment Date, the amount of Interest Funds remaining after
application pursuant to clauses (i) through (vii) of Section 6.02(a) on such
Date.]
Monthly
Payment:
With
respect to any Mortgage Loan and any month, the scheduled payment or payments
of
principal and interest due during such month on such mortgage loan, which either
is payable by a mortgagor in such month under the related mortgage note, or
in
the case of any Mortgaged Property acquired through foreclosure or deed-in-lieu
of foreclosure, would otherwise have been payable under the related Mortgage
Note.
[Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.]
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note.
Mortgage
File:
The
mortgage documents listed in Section 2.01(c) pertaining to a particular Mortgage
Loan required to be delivered to the Indenture Trustee (or the Custodian)
pursuant to this Agreement.
Mortgage
Loan:
The
conventional, adjustable rate, first and second lien residential mortgage loans
sold by the Seller to the Depositor pursuant to the Mortgage Loan Purchase
Agreement and subsequently transferred by the Depositor to the Issuer pursuant
to this Agreement, [including any [Subsequent Mortgage Loan] [Additional
Mortgage Loan]].
Mortgage
Loan Purchase Agreement:
The
mortgage loan purchase agreement dated as of [ ], between the
Seller and the Depositor.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust, [including
any [Subsequent Mortgage Loan] [Additional Mortgage Loan]]. The
Depositor shall be responsible for providing the Master Servicer and the
Custodian on behalf of the Indenture Trustee with all amendments to the Mortgage
Loan Schedule.
21
Mortgage
Note:
The
original executed note or other evidence of the indebtedness of a Mortgagor
secured under the Mortgage Loan.
Mortgage
Pool:
The
pool of Mortgage Loans in the Trust Estate.
Mortgaged
Property:
With
respect to any Mortgage Loan, the underlying real property securing such
Mortgage Loan.
Mortgage
Rate:
With
respect to any Mortgage Loan, its applicable interest rate determined as
provided in the related mortgage note, as reduced by any Relief Act
Reduction.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Liquidation Proceeds:
All
amounts, net of (1) unreimbursed expenses and (2) unreimbursed Monthly Advances
and Servicing Advances, received and retained in connection with the liquidation
of defaulted Mortgage Loans, through Insurance Proceeds or Condemnation
Proceeds, by foreclosure or otherwise, together with any net proceeds received
on a monthly basis with respect to any Mortgaged Properties acquired by
foreclosure or deed in lieu of foreclosure.
Net
Mortgage Rate:
With
respect to any Mortgage Loan at any time, the Mortgage Rate thereof reduced
by
the Servicing Fee Rate for such Mortgage Loan and any Lender Paid Mortgage
Insurance Rate.
[Net
Swap Payment:
With
respect to each Payment Date, the net payment required to be made pursuant
to
the terms of the related Swap Agreement, as calculated by the Swap Counterparty,
which net payment shall not take into account any Swap Termination
Payment.]
[Non-Conforming
Balance Mortgage Loan:
Any
First Lien Mortgage Loan other than a Conforming Balance Mortgage
Loan.]
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Nonrecoverable
Advance:
Any
advance previously made by the [related] Servicer pursuant to Section 4.03(c)
or
by the Master Servicer pursuant to Section 6.04 or any Servicing Advance which,
in the good faith judgment of the [related] Servicer or the Master Servicer,
as
applicable, may not be ultimately recoverable by the [related] Servicer or
the
Master Servicer from Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds or otherwise. The determination by the [related] Servicer or the Master
Servicer, as applicable, that it has made a Nonrecoverable Advance, shall be
evidenced by an Officer's Certificate of the Servicer or the Master Servicer,
as
applicable, delivered to the Indenture Trustee and the Master Servicer (in
the
case of the [related] Servicer) and detailing the reasons for such
determination
22
Note:
Any of
the Class [ ], Class [ ] and Class
[ ] Notes.
Note
Interest Rate:
[With
respect to each Payment Date and each Class of Notes, an adjustable rate equal
to the least of (1) One-Month LIBOR plus the related Note Margin, (2) the
Maximum Note Interest Rate and (3) the Available Funds Rate with respect to
such
Payment Date.]
Note
Margin:
With
respect to the Class [ ] Notes, on any Payment Date prior to
the Step-up Date, [ ]% per annum, and on any Payment Date on
and after the Step-up Date, [ ]% per annum. With respect to
the Class [ ] Notes, on any Payment Date prior to the Step-up
Date, [ ]% per annum, and on any Payment Date on and after the
Step-up Date, [ ]% per annum. With respect to the Class
[ ] Notes, on any Payment Date prior to the Step-up Date,
[ ]% per annum, and on any Payment Date on and after the
Step-up Date, [ ]% per annum.
Note
Payment Account:
The
note payment account maintained by or on behalf of the Securities Administrator
for the benefit of the Noteholders pursuant to Section 6.01.
Note
Register
and
Note
Registrar:
As
defined in the Indenture.
Offering
Document:
The
Prospectus.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Executive Vice President, any Senior Vice President, any Vice
President or any Assistant Vice President of a Person.
One-Month
LIBOR or One-Month LIBOR Index:
The
Interest Settlement Rate for U.S. dollar deposits of one-month maturity set
by
the BBA as of 11:00 a.m. (London time) on the LIBOR Determination
Date.
Operative
Agreements:
The
Trust Agreement, the Certificate of Trust of the Issuer, this Agreement, the
Mortgage Loan Purchase Agreement, the Indenture, the Custodial Agreement, the
Depository Agreement, [any Cap Agreement], [any Swap Agreement], the
Administration Agreement and each other document contemplated by any of the
foregoing to which the Depositor, the Seller, the Master Servicer, the
Servicer[s], the Owner Trustee, the Securities Administrator, the Indenture
Trustee, the Custodian or the Issuer is a party.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Seller, the Securities Administrator, the Indenture
Trustee and/or
the
Master Servicer, as applicable, and who may be in-house or outside counsel
to
the Seller, the Servicer[s], the Depositor, the Master Servicer, the Securities
Administrator or the Indenture
Trustee but
which
must be Independent outside counsel with respect to any such opinion of counsel
concerning federal income tax or ERISA matters.
23
[Original
Capitalized Interest Amount:
$[ ].]
Overcollateralized
Amount:
With
respect to any Payment Date, the amount, if any, by which (1) the aggregate
Scheduled Principal Balance of the Mortgage Loans exceeds (2) the aggregate
Class Principal Amount of the Notes as of such Payment Date (assuming that
100%
of Principal Funds is applied as a principal payment on the Notes on such
Payment Date).
Overcollateralization
Deficiency:
[With
respect to any Payment Date, the amount, if any, by which (1) the
Overcollateralization Target Amount for such Payment Date exceeds (2) the
Overcollateralized Amount for such Payment Date, calculated for this purpose
after giving effect to the reduction on such Payment Date of the Class Principal
Amounts of the Notes resulting from the payment of Principal Funds on such
Payment Date].
Overcollateralization
Floor:
$[ ].
Overcollateralization
Release Amount:
[With
respect to any Payment Date, the lesser of (x) the Principal Funds for such
Payment Date and (y) the excess, if any, of (1) the Overcollateralization Amount
for such Payment Date (assuming that 100% of such Principal Funds is applied
as
a principal payment on such Payment Date) over (2) the Overcollateralization
Target Amount for such Payment Date (with the amount determined pursuant to
clause (y) deemed to be $0 if the Overcollateralization Amount is less than
or
equal to the Overcollateralization Target Amount on that Payment
Date)].
Overcollateralization
Target Amount:
[With
respect to any Payment Date (a) prior to the Stepdown Date, [
]% of the aggregate Scheduled Principal Balance of the Mortgage Loans as of
the
Cut-off Date, (b) on or after the Stepdown Date and if a Trigger Event is not
in
effect, the greater of (i) the lesser of (1) [ ]% of the
aggregate Scheduled Principal Balance of the Mortgage Loans as of the Cut-off
Date and (2) [ ]% of the then current aggregate Scheduled
Principal Balance of the Mortgage Loans as of that Payment Date and (ii)
$[ ] and (c) on or after the Stepdown Date and if a Trigger
Event is in effect, the Overcollateralization Target Amount for the immediately
preceding Payment Date.]
Ownership
Certificate:
An
equity certificate representing a 100% undivided beneficial ownership interest
in the Trust, substantially in the form attached as part of Exhibit A to the
Trust Agreement.
Owner
Trustee:
[ ], a [ ] banking corporation, and any
successor in interest, not in its individual capacity, but solely as owner
trustee under the Trust Agreement.
24
Owner
Trustee Fee:
The
annual on-going fee payable by the Master Servicer on behalf of the Trust to
the
Owner Trustee from income on funds held in the Collection Account as provided
in
Section 5.07 and pursuant to the terms of a separate fee letter
agreement.
Payahead:
Any
Monthly Payment intended by the related borrower to be applied in a Collection
Period subsequent to the Collection Period in which such payment was
received.
Paying
Agent:
Initially,
the Securities Administrator, in its capacity as paying agent under the
Indenture and the Trust Agreement, or any successor to the Securities
Administrator in such capacity.
Payment
Date:
The
[25]th day of each month or, if such [25]th day is not a Business Day, the
next
succeeding Business Day, commencing in [ ].
Percentage
Interest:
The
Percentage Interest evidenced thereby shall equal (i) with respect to the
Ownership Certificate, the Percentage Interest specified on the face of such
certificate; or (ii) with respect to any Note, the initial Note Principal Amount
thereof divided
by
the
initial Class Principal Amount of all Notes of the same Class.
Periodic
Cap:
With
respect to each Mortgage Loan, the maximum adjustment that can be made to the
Mortgage Rate on each Adjustment Date in accordance with its terms, regardless
of changes in the applicable Index.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Pool
Balance:
As of
any date of determination, the aggregate of the Scheduled Principal Balances
of
the Mortgage Loans in the Mortgage Pool as of such date [plus, during the
[Pre-Funding Period] [Revolving Period], the amount of the [Pre-Funding Amount]
[Revolving Amount] applicable to such Mortgage Pool which has not been
previously applied towards the purchase of [Subsequent Mortgage Loans]
[Additional Mortgage Loans].
[Pre-Funding
Account: The pre-funding account established by the Securities Administrator
pursuant to Section [ ].]
[Pre-Funding
Amount: The amount deposited by the Securities Administrator into the
Pre-Funding Account on the Closing Date.]
[Pre-Funding
Period: The period beginning on the Closing Date and ending on
[ ].]
Prepayment
Interest Shortfall:
The
amount by which one month's interest at the Mortgage Rate (as reduced by the
Servicing Fee Rate) on a Mortgage Loan as to which a voluntary prepayment has
been made exceeds the amount of interest actually received in connection with
such prepayment.
25
Prepayment
Period:
[With
respect to any Payment Date, the immediately preceding calendar
month].
Primary
Mortgage Insurance Policy:
Any
primary mortgage guaranty insurance policy issued in connection with a Mortgage
Loan which provides compensation to a Mortgage Note holder in the event of
default by the obligor under such Mortgage Note or the related Mortgage, or
any
replacement policy therefor through the related Accrual Period for such Class
relating to a Payment Date.
Prime
Rate:
The
prime rate of the United States money center commercial banks as published
in
The
Wall Street Journal,
Northeast Edition.
[
] Principal Deficiency Amount:
With
respect to any Payment Date, the lesser of (a) the excess, if any, of (1) the
Total Principal Deficiency Amount over (2) the sum of the [ ]
Principal Deficiency Amount and the [ ] Principal Deficiency
Amount, in each case for that Payment Date and (b) the Class Principal Amount
of
the Class [ ] Notes immediately prior to such Payment
Date.
[
] Principal Deficiency Amount:
With
respect to any Payment Date, the lesser of (a) the excess, if any, of (1) the
Total Principal Deficiency Amount over (2) the [ ]Principal
Deficiency Amount for that Payment Date and (b) the Class Principal Amount
of
the Class [ ] Notes immediately prior to such Payment
Date.
[
] Principal Deficiency Amount:
With
respect to any Payment Date, the lesser of (a) the Total Principal Deficiency
Amount for that Payment Date, and (b) the Class Principal Amount of the
Class [ ] Notes immediately prior to such Payment
Date.
Principal
Deficiency Amount:
With
respect to the Class [ ] Notes, the [ ]
Principal Deficiency Amount; with respect to the Class [ ]
Notes, the [ ] Principal Deficiency Amount; and with respect
to the Class [ ] Notes, the [ ] Principal
Deficiency Amount.
Principal
Funds:
[With
respect to any Payment Date, the sum of (1) the principal portion of all
scheduled monthly payments on the related Mortgage Loans due on the related
Due
Date, to the extent received or advanced; (2) the principal portion of all
proceeds of the repurchase of a Mortgage Loan (or, in the case of a
substitution, certain amounts representing a principal adjustment) as required
by the Mortgage Loan Purchase Agreement during the preceding calendar month;
(3)
the principal portion of all other unscheduled collections received during
the
preceding calendar month in respect of the related mortgage loans, including
full and partial prepayments, the proceeds of any purchase of Mortgage Loans
by
the Seller, the Servicer[s] or the Residual Holder, Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds; net of any fees payable to, and
other amounts reimbursable to, the Master Servicer, the Servicer[s], the
Securities Administrator, the Indenture Trustee, the Custodian and the Owner
Trustee as provided in the Operative Agreements (to the extent not reimbursed
from Interest Funds)]. [On the first Payment Date after the end of the Revolving
Period, Principal Funds shall include amounts allocable to principal that were
deposited in the Revolving Account during the Revolving Period and not withdrawn
to purchase Additional Mortgage Loans.] [On the first Payment Date after the
end
of the Pre-Funding Period, Principal Funds shall include amounts allocable
to
principal that were deposited in the Pre-Funding Account during the Pre-Funding
Period and not withdrawn to purchase Subsequent Mortgage Loans.]
26
Principal
Payment Amount:
[With
respect to any Payment Date, (a) the sum of (1) the Principal Funds for such
Payment Date and (2) the Extra Principal Payment Amount for such Payment Date
minus
(b)
the
Overcollateralization Release Amount for such date].
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date to the extent that it is not accompanied
by an
amount as to interest representing scheduled interest due on any date or dates
in any month or months subsequent to the month of prepayment, including
Insurance Proceeds and Repurchase Proceeds, but excluding the principal portion
of Net Liquidation Proceeds received at the time a mortgage loan becomes a
Liquidated Mortgage Loan.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Prospectus:
The
prospectus supplement dated [ ], together with the
accompanying prospectus dated [ ], relating to the
Class
[
],
Class
[
] and
Class
[
]
Notes.
Purchase
Price:
[With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
this Agreement, an amount equal to the sum of (a) 100% of the unpaid principal
balance of such Mortgage Loan, (b) accrued interest thereon at the applicable
Mortgage Rate, from the date as to which interest was last paid to (but not
including) the Due Date in the Collection Period immediately preceding the
related Payment Date, (c) the amount of any costs and damages incurred by the
Trust in connection with any violation of any applicable federal, state or
local
predatory or abusive lending law in connection with the origination of such
Mortgage Loan, (d) the fair market value of all other property being purchased
[and (e) any Swap Termination Payment payable to the Swap Counterparty due
to
the exercise of the option to purchase the Mortgage Loans. The [related]
Servicer and the Master Servicer shall be reimbursed from the Purchase Price
for
any Mortgage Loan or related REO Property for any Monthly Advances and Servicing
Advances made or other amounts advanced with respect to such Mortgage Loan
that
are reimbursable to the [related] Servicer or the Master Servicer under this
Agreement, together with any accrued and unpaid compensation due to the
[related] Servicer or the Master Servicer hereunder].
27
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account and insuring a minimum, fixed or floating rate
of return on investments of such funds, which contract or surety bond
shall:
be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(i) provide
that the Master Servicer on behalf of the Indenture Trustee may exercise all
of
the rights under such contract or surety bond without the necessity of taking
any action by any other Person;
(ii) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the Notes,
the Securities Administrator shall terminate such contract without penalty
and
be entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Securities
Administrator;
(iii) provide
that the Indenture Trustee’s interest therein shall be transferable to any
successor trustee hereunder; and
(iv) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account not later than the Business Day prior to any Payment
Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business and to write the
insurance provided and whose claims paying ability is rated by each Rating
Agency in its highest rating category or whose selection as an insurer will
not
adversely affect the rating of the Notes.
Qualifying
Substitute Mortgage Loan:
[A
mortgage loan tendered to the Indenture Trustee or the Custodian pursuant to
the
Mortgage Loan Purchase Agreement or this Agreement, as applicable, in each
case,
(i) which has an outstanding principal balance not greater nor materially less
than the Mortgage Loan for which it is to be substituted; (ii) which has a
Mortgage Rate and Net Mortgage Rate not less than, and not materially greater
than, such Mortgage Loan; (iii) which has a maturity date not materially earlier
or later than such Mortgage Loan and not later than the latest maturity date
of
any Mortgage Loan; (iv) which is of the same property type and occupancy type
as
such Mortgage Loan; (v) with respect to a First Lien Mortgage Loan, which has
a
Loan-to-Value Ratio not greater than the Loan-to-Value Ratio of such Mortgage
Loan; (vi) with respect to a Second Lien Mortgage Loan, which has a Combined
Loan-to-Value Ratio not greater than the Combined Loan-to-Value Ratio of such
Mortgage Loan (vii) which is current in payment of principal and interest as
of
the date of substitution; (viii) as to which the payment terms do not vary
in
any material respect from the payment terms of the Mortgage Loan for which
it is
to be substituted and (ix) which has a Gross Margin and Maximum Mortgage Rate
no
less than those of such Mortgage Loan, has the same Index and interval between
Adjustment Dates as such Mortgage Loan, and a Minimum Lifetime Mortgage Rate
no
lower than that of such Mortgage Loan].
28
Rating
Agency:
Each of
[ ] and [ ].
Realized
Loss:
With
respect to a Mortgage Loan is (1) a Bankruptcy Loss or (2) as to any Liquidated
Mortgage Loan, the unpaid principal balance thereof plus accrued and unpaid
interest thereon at the related Mortgage Rate through the last day of the month
of liquidation less the Net Liquidation Proceeds with respect to such Mortgage
Loan and the related Mortgaged Property.
Reference
Banks:
Leading
banks selected by the Securities Administrator and engaged in transactions
in
Eurodollar deposits in the international Eurocurrency market (1) with an
established place of business in London, (2) whose quotations appear on the
Reuters Screen LIBO Page on the Determination Date in question, (3) which have
been designated as such by the Securities Administrator and (4) not controlling,
controlled by, or under common control with, the Depositor, the Indenture
Trustee, the Securities Administrator, the Master Servicer, the Servicer[s],
the
Seller or any successor servicer.
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
UCC:
The
Uniform Commercial Code as in effect in the applicable
jurisdiction.
Relief
Act Reduction:
With
respect to a Mortgage Loan, a reduction of the applicable Mortgage Rate by
application of the Servicemembers Civil Relief Act or similar state or local
laws.
REO
Property:
A
Mortgaged Property acquired by [the/a] Servicer through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Repurchase
Proceeds:
The
purchase price proceeds in connection with any repurchase of a Mortgage Loan
by
the Seller and any cash deposit in connection with the substitution of a
Mortgage Loan.
Request
for Release:
A
request for release in the form attached hereto as Exhibit A-5.
Residual
Holder:
The
holder of the Ownership Certificate.
29
Responsible
Officer:
Any
vice president, any assistant vice president, any assistant secretary, any
associate, any assistant treasurer, or any other officer of the Indenture
Trustee or the Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above-designated officers
and, in each case, having direct responsibility for the administration of the
Operative Agreements and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.
[Revolving
Account:
The
revolving account maintained by the Securities Administrator in which Revolving
Deposits are deposited by the Securities Administrator to be used to acquire
Additional Mortgage Loans during the Revolving Period.]
[Revolving
Amount:
With
respect to each Payment Date during the Revolving Period, the total amount
of
Revolving Deposits deposited in the Revolving Account on such Payment
Date.]
[Revolving
Credit Loan Schedule:
A
schedule of the Revolving Credit Loans setting forth information with respect
to
such Revolving Credit Loans (including any MERS identification number (if
available) with respect to each MERS Mortgage Loan, attached hereto as [Schedule
B].]
[Revolving
Credit Loan:
A
Mortgage Loan that is identified as a Revolving Credit Loan on the Revolving
Credit Loan Schedule, which Revolving Credit Loan includes without limitation
the Revolving Credit Loan documents, the monthly payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Revolving Credit
Loan.]
[Revolving
Deposits:
With
respect to any Payment Date during the Revolving Period, all payments that
would
otherwise be made to Noteholders in respect of principal [and excess interest]
that is deposited in the Revolving Account on such Payment Date.]
Reuters
Screen LIBO Page:
The
display designated as page “LIBO” on the Reuters Monitor Money Rates Service (or
such other page as may replace the LIBO page on that service for the purpose
of
displaying London interbank offered rates of major banks).
Rolling
Three Month Delinquency Rate:
With
respect to any Payment Date, the average of the Delinquency Rates for each
of
the three (or one and two, in the case of the first and second Payment Dates,
respectively) immediately preceding calendar months.
[S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.]
Scheduled
Principal Balance:
[With
respect to any Mortgage Loan and any Payment Date (1) the unpaid principal
balance of such mortgage loan as of the close of business on the related Due
Date (giving effect to the principal payment to be made on such Due Date and
irrespective of any delinquency in its payment), as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any bankruptcy or similar proceeding
occurring after the Cut-off Date (other than a Deficient Valuation) or any
moratorium or similar waiver or grace period) less (2) any Principal Prepayments
and the principal portion of any Net Liquidation Proceeds received during or
prior to the immediately preceding Prepayment Period; provided
that the
Scheduled Principal Balance of any Liquidated Mortgage Loan is
zero].
30
[Second
Lien Mortgage Loans:
Mortgage Loans secured by mortgages or deeds of trust or similar security
instruments creating a second lien on the related Mortgaged
Property.]
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Administrator:
[ ], not in its individual capacity but solely as Securities
Administrator, or any successor in interest.
Securities
Intermediary:
The
Person acting as Securities Intermediary under this Agreement (which is the
Securities Administrator), its successor in interest, and any successor
Securities Intermediary appointed pursuant to Section 6.03.
Security
Entitlement:
The
meaning specified in Section 8-102(a)(17) of the New York UCC..
Seller:
[Xxxxxx, Xxxx & Xxxxxxxx Mortgage Corp.]
Senior
Enhancement Percentage:
With
respect to any Payment Date, the fraction, expressed as a percentage, the
numerator of which is the sum of the aggregate Class Principal Amount of the
Subordinate Notes and the Overcollateralization Amount (which, for purposes
of
this definition only, will not be less than zero) after giving effect to
payments on such Payment Date, and the denominator of which is the Pool Balance
for such Payment Date.
Senior
Notes:
The
Class
[
] Notes.
Servicer:
[Xxxxxx, Bean & Xxxxxxxx Mortgage Corp. (“TBW Mortgage Corp.”)], or its
successor in interest or assigns or any successor to the Servicer under this
Agreement as herein provided.
Servicer
Errors and Omission Insurance Policy:
Any
errors and omission insurance policy required to be obtained by [the/a] Servicer
satisfying the requirements of Section 4.02(l).
Servicer
Event of Default:
Any one
of the conditions or circumstances enumerated in Section 4.07 with respect
to
[the/a] Servicer.
31
Servicer
Fidelity Bond:
Any
fidelity bond to be maintained by [the/a] Servicer in accordance with Section
4.02(l).
Servicer
Remittance Date:
The
[18]th day of any month, or if such [18]th day is not a Business Day, the first
Business Day immediately preceding such [18]th day.
Servicing
Advances:
All
reasonable and customary “out-of-pocket” costs and expenses, including costs and
expenses of foreclosures (including reasonable attorneys' fees and
disbursements) incurred in the performance by [the/a] Servicer of its servicing
obligations, including, but not limited to, the cost of (1) the preservation,
restoration, inspection and protection of the Mortgaged Properties, (2) any
enforcement or judicial proceedings and (3) the management and liquidation
of
Mortgaged Properties acquired in satisfaction of the related
mortgage.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
The
monthly fee calculated at the Servicing Fee Rate on the outstanding principal
balance of each Mortgage Loan, including any Liquidated Mortgage
Loan.
Servicing
Fee Rate:
[For
each Second Lien Mortgage Loan, [ ]% per annum; for each
Non-Conforming Balance Mortgage Loan without an LPMI Policy, [
]% per annum; for each Non-Conforming Balance Mortgage Loan with Level I LPMI,
[ ]%; for each Non-Conforming Balance Mortgage Loan with Level
II LPMI, [ ]%; for each Non-Conforming Balance Mortgage Loan
with Level III LPMI, [ ]%; for each Non-Conforming Balance
Mortgage Loan with Level IV LPMI, [ ]%; for each Conforming
Balance Mortgage Loan without an LPMI Policy but with a Mortgage Rate that
adjusts every one month or six months from origination, [ ]%
per annum; for each Conforming Balance Mortgage Loan with Level I LPMI and
with
a Mortgage Rate that adjusts every one month or six months from origination,
[ ]% per annum; for each Conforming Balance Mortgage Loan with
Level II LPMI and with a Mortgage Rate that adjusts every one month or six
months from origination, [ ]% per annum; for each Conforming
Balance Mortgage Loan with Level III LPMI and with a Mortgage Rate that adjusts
every one month or six months from origination, [ ]% per
annum; for each Conforming Balance Mortgage Loan with Level IV LPMI and with
a
Mortgage Rate that adjusts every one month or six months from origination,
[ ]% per annum; for each Conforming Balance Mortgage Loan
without an LPMI Policy but with an initial fixed rate period of three, five
or
seven years, [ ]% per annum until the first Adjustment Date
and thereafter [ ]% per annum; for each Conforming Balance
Mortgage Loan with Level I LPMI and with an initial fixed rate period of three,
five or seven years, [ ]% per annum until the first Adjustment
Date and thereafter [ ]% per annum; for each Conforming
Balance Mortgage Loan with Level II LPMI and with an initial fixed rate period
of three, five or seven years, [ ]% per annum until the first
Adjustment Date and thereafter [ ]% per annum; for each
Conforming Balance Mortgage Loan with Level III LPMI and with an initial fixed
rate period of three, five or seven years, [ ]% per annum
until the first Adjustment Date and thereafter [ ]% per annum;
and for each Conforming Balance Mortgage Loan with Level IV LPMI and with an
initial fixed rate period of three, five or seven years, [0.65]% per annum
until
the first Adjustment Date and thereafter [0.775]% per annum.]
32
Servicing
File:
With
respect to each Mortgage Loan, the file retained by [the/a] Servicer, which
may
be in electronic media so long as original documents are not required for
purposes of realization of Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds, consisting of all documents in the Mortgage File which
are
not delivered to the Custodian, the originals of such mortgage loan documents
which are held in trust for the Indenture Trustee by the [related]
Servicer.
Servicing
Officer:
Any
officer of [the/a] Servicer involved in or responsible for, the administration
and servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by [the/such] Servicer to the Master Servicer upon request,
as such list may from time to time be amended.
Six-Month
LIBOR Index:
The
interbank offered rates for six-month United States dollar deposits in the
London market, calculated as provided in the related mortgage note.
Stepdown
Date:
[The
earlier to occur of (1) the first Payment Date on which the Class Principal
Amount of the Class [ ] Notes has been reduced to zero and (2)
the later to occur of (a) the Payment Date occurring in [ ]
and (b) the first Payment Date on which the Senior Enhancement Percentage
(calculated for this purpose after giving effect to payments or other recoveries
in respect of the Mortgage Loans during the related Collection Period but before
giving effect to payments on the Notes on such Payment Date) is greater than
or
equal to approximately [ ]%].
Step-up
Date:
[The
first Payment Date after the Initial Purchase Date].
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of [the/a] Servicer [or a
Subservicer].
Subordinate
Notes:
The
Class [ ] Notes.
[Subsequent
Cut-off Date:
The
date specified as the Cut-off Date with respect to a [Subsequent Mortgage Loan]
[Additional Mortgage Loan] in the related Transfer Supplement, which shall
be no
later than [ ].]
[Subsequent
Mortgage Loan:
A
Mortgage Loan that is conveyed as of the Transfer Date to the Trust by the
Depositor pursuant to a Transfer Supplement to the Mortgage Loan Purchase
Agreement, which Mortgage Loan shall be identified in such Transfer Supplement
as a Subsequent Mortgage Loan and added by the Depositor to the Mortgage Loan
Schedule.]
33
[Subsequent
Mortgage Loans:
Those
Mortgage Loans which are intended to be acquired by the Trust from time to
time
subsequent to the Closing Date but prior to [ ].]
[Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any
Subservicer, performing the substantial majority of the material functions
required to be performed by the Servicer under this Agreement that are
identified in Item 1122(d) of Regulation AB.]
[Subservicing
Agreement:
The
subservicing agreement dated as of [ ], between the Servicer
and the Subservicer.]
Substitution
Amount:
[The
amount, if any, by which the Scheduled Principal Balance of a Deleted Mortgage
Loan exceeds the Scheduled Principal Balance of the related Qualifying
Substitute Mortgage Loan, or aggregate Scheduled Principal Balance, if
applicable, plus
unpaid
interest thereon, any related unpaid Monthly Advances or Servicing Advances
or
unpaid Servicing Fees and the amount of any costs and damages incurred by the
Trust Estate associated with a violation of any applicable federal, state or
local predatory or abusive lending law in connection with the origination of
such Deleted Mortgage Loan].
Superior
Lien:
With
respect to any Mortgage Loan, any other mortgage relating to the corresponding
Mortgaged Property which creates a lien on the Mortgaged Property which is
senior to the lien of the Mortgage Loan.
[Swap
Account:
A
separate account established and maintained by the Securities Administrator
for
the benefit of the Noteholders pursuant to Section 6.05.]
[Swap
Agreements:
The
[ ]-year Hybrid Swap Agreement, the [ ]-year
Hybrid Swap Agreement and the [ ]-year Hybrid Swap
Agreement.]
[Swap
Counterparty:
The
counterparty to the Trust either (a) entitled to receive payments from the
Trust
or (b) required to make payments to the Trust, in either case pursuant to the
terms of the Swap Agreements, and any successor in interest or assign.
Initially, the Swap Counterparty shall be [
].]
[Swap
Counterparty Trigger Event:
A Swap
Counterparty Trigger Event shall have occurred if any of a Swap Default with
respect to which the Swap Counterparty is a Defaulting Party, a Termination
Event with respect to which the Swap Counterparty is the sole Affected Party
or
an Additional Termination Event with respect to which the Swap Counterparty
is
the sole Affected Party has occurred.]
[Swap
Default:
Any of
the circumstances constituting an “Event of Default” under the related Swap
Agreement.]
[Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment to be made by the Trust to the Swap Counterparty, or by the Swap
Counterparty to the Trust, as applicable, pursuant to the terms of the Swap
Agreement.]
34
Telerate
Page 3750:
The
display currently so designated as “Page 3750” on the Moneyline Telerate Service
(or such other page selected by the Master Servicer as may replace Page 3750
on
that service for the purpose of displaying daily comparable rates on
prices).
[Termination
Event:
As
defined in the related Swap Agreement.]
Termination
Price:
[The
sum, as calculated by the [related] Servicer, of (a) 100% of the aggregate
outstanding principal balance of the Mortgage Loans, plus accrued interest
thereon at the applicable Mortgage Rate, (b) the fair market value of the REO
Property and all other property being purchased, (c) any unreimbursed Servicing
Advances, (d) any costs and damages incurred by the Trust as a result of
violation of any applicable federal, state or local predatory or abusive lending
law in connection with the origination of any Mortgage Loan and (e) all other
amounts to be paid or reimbursed to the Master Servicer, the Securities
Administrator, the Indenture Trustee, the Owner Trustee, the Custodian [and
the
Swap Counterparty] under the Operative Agreements].
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Principal Deficiency Amount:
[With
respect to any Payment Date, the excess, if any, of the aggregate Class
Principal Amount of the Notes after giving effect to payments on such Payment
Date over the Pool Balance as of the last day of the related Collection
Period].
[Transfer
Date:
Any
date during the [Pre-Funding Period] [Revolving Period] on which [Subsequent
Mortgage Loans] [Additional Mortgage Loans] are conveyed by the Depositor to
the
Trust pursuant to Section [ ], as specified in the applicable
Transfer Supplement.
[Transfer
Price:
With
respect to any [Subsequent Mortgage Loan] [Additional Mortgage Loan], the price
specified in the Transfer Supplement which shall be no less than the outstanding
principal balance of such [Subsequent Mortgage Loan] [Additional Mortgage Loan]
as of the Subsequent Cut-off Date specified in the Transfer
Supplement.]
[Transfer
Supplement:
With
respect to each sale of [Subsequent Mortgage Loans] [Additional Mortgage Loans]
from the Seller to the Depositor pursuant to the Mortgage Loan Purchase
Agreement, the transfer supplement entered into between the Seller and the
Depositor, substantially in the form of Exhibit [ ] to the
Mortgage Loan Purchase Agreement.
Trigger
Event:
[A
Trigger Event shall have occurred with respect to any Payment Date if (a) a
Delinquency Event has occurred for such Payment Date, (b) a Cumulative Loss
Trigger Event has occurred for such Payment Date or (c) a Principal Deficiency
Amount exists for such Payment Date].
35
Trust:
The
Issuer.
Trust
Accounts:
The
Collection Account, the Note Payment Account, [the Capitalized Interest
Account], [the Revolving Account] and [the Pre-Funding Account].
Trust
Account Property:
The
Trust Accounts, all amounts and investments held from time to time in the Trust
Accounts (whether in the form of deposit accounts, physical property, book-entry
securities, uncertificated securities, securities entitlements, investment
property or otherwise) and all proceeds of the foregoing.
Trust
Agreement:
The
trust agreement dated as of [ ], among the Owner Trustee, the
Depositor and the Securities Administrator.
Trust
Estate:
The
assets of the Issuer and pledged by the Issuer to the Indenture Trustee under
the Indenture, which assets consist of all accounts, accounts receivable,
contract rights, general intangibles, chattel paper, instruments, documents,
money, deposit accounts, certificates of deposit, goods, notes, drafts, letters
of credit, advices of credit, investment property, uncertificated securities
claims and rights to payment of any and every kind consisting of, arising from
or relating to any of the following: (a) the Mortgage Loans listed in the
Mortgage Loan Schedule, and principal due and payable after the Cut-off Date,
but not including interest and principal due and payable on any Mortgage Loans
on or before the Cut-off Date, together with the Mortgage Files relating to
such
Mortgage Loans; (b) any Insurance Proceeds, REO Property, Liquidation Proceeds
and other recoveries (in each case, subject to clause (a) above), (c) the Trust
Accounts, any Custodial Account, any Escrow Account, [the Cap Account] [the
Swap
Account] and all amounts deposited therein pursuant to the applicable provisions
of this Agreement, (d) any Insurance Policies, (e) the rights of the Depositor
under the Mortgage Loan Purchase Agreement, [(f) the rights of the Trust under
each [Cap] [Swap] Agreement] and (g) all income, revenues, issues, products,
revisions, substitutions, replacements, profits, rents and all cash and non-cash
proceeds of the foregoing.
UCC:
The
Uniform Commercial Code as enacted in the relevant jurisdiction.
Underwriters:
[ ].
Voting
Interests:
[The
portion of the voting rights of all the Notes that is allocated to any Note
for
purposes of the voting provisions of this Agreement. At all times during the
term of this Agreement, 98% of all voting rights will be allocated among the
holders of the Notes as provided below. The portion of such voting rights
allocated to such Notes will be based on the fraction, expressed as a
percentage, the numerator of which is the aggregate Class Principal Amount
then
outstanding and the denominator of which is the aggregate outstanding principal
balance of the Notes. At all times during the term of the Indenture and this
Agreement, the holders of Ownership Certificate be allocated 2% of the voting
rights. The voting rights allocation to any Class of Notes or the Ownership
Certificate will be allocated among all holders of each such Class or Ownership
Certificate in proportion to the outstanding Class Principal Amount of such
Notes or Percentage Interest of the Ownership Certificate].
36
Section
1.02. Calculations
With Respect to the Mortgage Loans.
Calculations required to be made pursuant to this Agreement with respect to
any
Mortgage Loan in the Trust Estate shall be made based upon current information
as to the terms of the Mortgage Loans and reports of payments received from
the
Mortgagor on such Mortgage Loans provided by the Servicer[s] to the Master
Servicer.
Section
1.03. Calculations
With Respect to Accrued Interest.
[Accrued interest, if any, on any Note shall be calculated based upon a 360-day
year and the actual number of days in each Accrual Period].
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS
Section
2.01. Creation
and Declaration of Trust Estate; Conveyance of Mortgage Loans.
(a) [Initial]
Mortgage Loans.
As of
the Closing Date, in consideration of the Issuer’s delivery of the Notes and the
Ownership Certificate to the Depositor or its designee, and
concurrently with
the
execution and delivery of this Agreement, the Depositor does hereby transfer,
assign, set over, deposit with and otherwise convey to the Issuer, without
recourse, subject to Section 3.01, in trust, all the right, title and interest
of the Depositor in and to all accounts, accounts receivable, contract rights,
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, notes, drafts, letters of credit,
advices of credit, investment property, uncertificated securities claims and
rights to payment of any and every kind consisting of, arising from or relating
to any of the following: (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, and principal due and payable after the Cut-off Date, but not
including interest and principal due and payable on any Mortgage Loans on or
before the Cut-off Date, together with the Mortgage Files relating to such
Mortgage Loans, (b) any Insurance Proceeds, REO Property, Liquidation Proceeds
and other recoveries (in each case, subject to clause (a) above), (c) all Escrow
Payments, (d) any Insurance Policies, (e) the rights of the Depositor under
the
Mortgage Loan Purchase Agreement, (f) the Depositor’s security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties, [(g) all Credit Line Advances created with respect to Revolving
Credit Loans] and [(h)] all income, revenues, issues, products, revisions,
substitutions, replacements, profits, rents and all cash and non-cash proceeds
of the foregoing to have and to hold, in trust; and the Indenture Trustee
declares that, subject to the review provided for in Section 2.02, it has
received and shall hold the Trust Estate, as Indenture Trustee, in trust, for
the benefit and use of the Noteholders and for the purposes and subject to
the
terms and conditions set forth in this Agreement, and, concurrently with such
receipt, the Issuer has issued and delivered the Notes and the Ownership
Certificate to or upon the order of the Depositor, in exchange for the Mortgage
Loans and the other property of the Trust Estate.
37
(b) [[Subsequent
Mortgage Loans] [Additional Mortgage Loans].
On each
Transfer Date occurring during the [Pre-Funding Period] [Revolving Period],
provided that each condition set forth in this Section 2.01(b) is satisfied,
the
Depositor shall convey to the Issuer, and the Issuer shall purchase pursuant
to
this Section 2.01(b), all [Subsequent Mortgage Loans] [Additional Mortgage
Loans] which satisfy the criteria set forth in this Section 2.01(b) then offered
for sale by the Depositor; provided,
however,
that
the related aggregate Transfer Price shall not exceed the [Pre-Funding Amount]
[Revolving Amount].
Subject
to the conditions set forth in this Section 2.01(b), in consideration of the
Securities Administrator’s delivery on the related Transfer Date to the
Depositor or its designee, or upon the order of the Depositor, of the Transfer
Price for the related [Subsequent Mortgage Loans] [Additional Mortgage Loans]
from amounts on deposit in the related [Pre-Funding Account] [Revolving Amount],
the Depositor shall, on each Transfer Date, sell, transfer, assign, set over
and
otherwise convey to the Issuer, without recourse, but subject to the other
terms
and provisions of this Agreement, all of the right, title and interest of the
Depositor in and to each [Subsequent Mortgage Loan] [Additional Mortgage Loan]
(including all interest and principal thereon received after the related
Subsequent Cut-off Date specified in the Transfer Supplement) identified in
the
Addition Notice delivered by the Depositor on such Transfer Date and all items
in the related Mortgage File. In connection therewith, the Depositor shall
amend
the Mortgage Loan Schedule to reflect the inclusion of such [Subsequent Mortgage
Loan] [Additional Mortgage Loan] in the Mortgage Pool as part of the assets
of
the Trust Estate. The Depositor shall promptly deliver to the Indenture Trustee,
the Securities Administrator and the Master Servicer a copy of the Mortgage
Loan
Schedule as so amended.
Concurrently
with the execution and delivery of each Transfer Supplement, the Depositor
does
hereby assign to the Issuer all of its rights and interest under the Mortgage
Loan Purchase Agreement with respect to the [Subsequent Mortgage Loans]
[Additional Mortgage Loans] added to the Mortgage Loan Purchase Agreement
pursuant to such Transfer Supplement, but only to the extent assigned under
the
Mortgage Loan Purchase Agreement. The Issuer hereby accepts such assignment,
and
shall be entitled to exercise all the rights of the Depositor under the Mortgage
Loan Purchase Agreement as amended by the related Transfer Supplement as if,
for
such purpose, it were the Depositor.
The
Depositor shall on any Transfer Date transfer to the Issuer the applicable
[Subsequent Mortgage Loans] [Additional Mortgage Loans] and the other property
and rights related thereto described in the immediately preceding paragraph,
as
applicable, and the Issuer shall purchase such [Subsequent Mortgage Loans]
[Additional Mortgage Loans], property and rights only upon the satisfaction
of
each of the following conditions on or prior to the related Transfer
Date:
(i) [ ];
38
(ii) [
];
and
(iii) [
].
[To
be
added for each transaction with Subsequent Mortgage Loans or Additional Mortgage
Loans]
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Issuer all of its rights and interest under the Mortgage Loan
Purchase Agreement but without delegation of any of its obligations thereunder.
The Issuer hereby accepts such assignment, and shall be entitled to exercise
all
the rights of the Depositor under the Mortgage Loan Purchase Agreement as if,
for such purpose, it were the Depositor. Upon the issuance of the Notes,
ownership in the Trust Estate shall be vested in the Issuer, subject to the
lien
created by the Indenture in favor of the Indenture Trustee, for the benefit
of
the Noteholders. The foregoing sale, transfer, assignment, set-over, deposit
and
conveyance does not and is not intended to result in creation or assumption
by
the Indenture Trustee of any obligation of the Depositor, the Seller, or any
other Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto except as specifically set forth
herein.
It
is
agreed and understood by the Seller, the Depositor and the Issuer (and the
Depositor so represents and recognizes) that it is not intended that any
Mortgage Loan to be included in the Trust Estate be (i) a "High-Cost Home Loan"
as defined in the New Jersey Home Ownership Act effective November 27, 2003,
(ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection
Act effective January 1, 2004, (iii) a "High-Cost Home Mortgage Loan" as defined
in the Massachusetts Predatory Home Loan Practices Act effective November 7,
2004 or (iv) a "High Cost Home Loan" as defined in the Indiana Home Loan
Practices Act effective January 1, 2005.
(c) In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Indenture Trustee, and/or the Custodian acting on the Indenture Trustee’s
behalf, the following documents or instruments with respect to each Mortgage
Loan (each a “Mortgage File”) so transferred and assigned:
(i) the
original Mortgage Note, endorsed either (A) in blank or (B) to the order of
the
Indenture Trustee in the form of the Form of Endorsement set forth in Exhibit
A-4 hereto, or with respect to any lost Mortgage Note, an original Lost Note
Affidavit, in the form set forth in Exhibit B hereto, stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy of the
related Mortgage Note;
(ii) except
as
provided below, the original Mortgage with evidence of recording thereon (if
the
related Mortgage Loan is a MERS Mortgage Loan, the Mortgage shall note the
MIN
and contain language that such Mortgage Loan is a MERS Mortgage Loan). If in
connection with any Mortgage Loan, [the/a] Servicer cannot deliver or cause
to
be delivered the original Mortgage with evidence of recording thereon on or
prior to the Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, [the/such] Servicer shall deliver or cause to be
delivered to the Custodian a photocopy of such Mortgage together with (i) in
the
case of a delay caused by the public recording office, an Officer’s Certificate
of the [related] Servicer stating that such Mortgage has been delivered to
the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage will
be
promptly delivered to the Custodian upon receipt thereof by the [related]
Servicer; or (ii) in the case of a Mortgage 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, a copy of such Mortgage with
the
recording information thereon certified by such public recording office to
be a
true and complete copy of the original recorded Mortgage;
39
(iii) with
respect to each Non-MERS Mortgage Loan, an original Assignment of Mortgage
(which may be in the form of a blanket assignment if permitted in the
jurisdiction where the Mortgaged Property is located) with evidence of recording
thereon unless an Opinion of Counsel described in clause (c) below is delivered
to the Indenture Trustee and the Rating Agencies, in which case, the Assignment
of Mortgage shall be in form and substance acceptable for recording. The
Mortgage shall be assigned either (A) in blank, without recourse, or (B) to
“U.S. Bank National Association, as Indenture Trustee of the TBW Mortgage
Trust 20[ ]-[ ]”, without recourse or (C) to
the order of the Indenture Trustee;
(iv) an
original copy of any intervening assignment of Mortgage showing a complete
chain
of assignments or, in the case of an intervening assignment that has not been
received by the [related] Servicer from the public recording office, an
Officer’s Certificate of the [related] Servicer stating that such intervening
assignment has been delivered to the appropriate public recording office for
recordation and that the original recorded intervening assignment or a copy
of
such intervening assignment certified by such public recording office to be
a
true and complete copy of the original recorded intervening assignment will
be
promptly delivered to the Custodian upon receipt thereof by the [related]
Servicer, or in the case of an intervening assignment where a public recording
office retains the original recorded intervening assignment, a copy of such
intervening assignment with the recording information thereon certified by
such
public recording office to be a true and complete copy of the original recorded
intervening assignment; or in the case of an intervening assignment that has
been lost, a written Opinion of Counsel for the Seller that such original
intervening assignment is not required to enforce the Indenture Trustee’s
interest in the Mortgage Loans;
(v) the
original or a certified copy of lender’s Title Insurance Policy (or, in lieu
thereof, a commitment to issue such Title Insurance Policy, with an original
or
a certified copy of such Title Insurance Policy to follow as soon after the
Closing Date as reasonably practicable) or attorney’s opinion of title and
abstract of title;
40
(vi) the
original or copy of the policy or certificate of primary mortgage guaranty
insurance, to the extent available, if any;
(vii) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any, or as to any such agreement which cannot be
delivered prior to the Closing Date because of a delay caused by the public
recording office where such assumption, modification or substitution agreement
has been delivered for recordation, a photocopy of such assumption, modification
or substitution agreement, pending delivery of the original thereof, together
with an Officer’s Certificate of the Depositor certifying that the copy of such
assumption, modification or substitution agreement delivered to the Custodian
is
a true copy and that the original of such agreement has been forwarded to the
public recording office; [and]
(viii) the
original of any security agreement or equivalent instrument executed in
connection with the Mortgage or as to any security agreement or equivalent
instrument that cannot be delivered on or prior to the Closing Date because
of a
delay caused by the public recording office where such document has been
delivered for recordation, a photocopy of such document, pending delivery of
the
original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such security agreement, chattel mortgage or their
equivalent delivered to the Custodian is a true copy and that the original
of
such document has been forwarded to the public recording
office[;and]
(ix) [all
Revolving Credit Loan documents.]
The
Depositor and the Seller acknowledge and agree that the form of endorsement
attached hereto as Exhibit A-4 is intended to effect the transfer to the
Indenture Trustee, for the benefit of the Noteholders, of the Mortgage Notes
and
the Mortgages.
(d) Assignments
of Mortgage with respect to each Non-MERS Mortgage Loan shall be recorded;
provided,
however,
that
such Assignments of Mortgage need not be recorded if, on or prior to the Closing
Date, the Seller delivers an Opinion of Counsel (which must be Independent
counsel) acceptable to the Rating Agencies, to the effect that recording in
such
states is not required to protect the Indenture Trustee’s interest in the
related Non-MERS Mortgage Loans.
(e) In
instances where a Title Insurance Policy is required to be delivered to the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee under
clause (b)(vi) above and is not so delivered, the Seller will provide a copy
of
such Title Insurance Policy to the Indenture Trustee, or to the Custodian on
behalf of the Indenture Trustee no later than ninety (90) days of the receipt
by
the Seller of the recorded documents from the applicable public recording
office.
41
(f) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to the Indenture Trustee, or to the Custodian
on
behalf of the Indenture Trustee, an Officer’s Certificate which shall include a
statement to the effect that all amounts received in connection with such
prepayment that are required to be deposited in the Collection Account pursuant
to Section 5.06 have been so deposited. All original documents that are not
delivered to the Indenture Trustee or the Custodian on behalf of the Indenture
Trustee shall be held by the [related] Servicer in trust for the benefit of
the
Indenture Trustee and the Noteholders.
Section
2.02. Acceptance
of Trust Estate; Review of Documentation.
(a) Subject
to the provisions of Section 2.01, the Issuer acknowledges receipt of the assets
transferred by the Depositor of the assets included in the Trust Estate and
has
directed that the documents referred to in Section 2.01 and all other assets
included in the definition of “Trust Estate” be delivered to the Indenture
Trustee (or the Custodian) on its behalf.
The
Indenture Trustee, by execution and delivery hereof, acknowledges receipt by
it
or by the Custodian on its behalf of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by the Indenture Trustee, or by the Custodian on behalf of the Indenture
Trustee, under this Section 2.02. The Indenture Trustee, or the Custodian on
behalf of the Indenture Trustee, will execute and deliver to the Depositor,
the
Master Servicer, the Servicer[s] (and the Indenture Trustee if delivered by
the
Custodian) on the Closing Date an Initial Certification in the form annexed
hereto as Exhibit A-1.
(b) Within
90
days after the Closing Date, the Indenture Trustee or the Custodian on behalf
of
the Indenture Trustee, will, for the benefit of Noteholders, review each
Mortgage File to ascertain that all required documents set forth in Section
2.01
have been received and appear on their face to contain the requisite signatures
by or on behalf of the respective parties thereto, and shall deliver to the
Depositor, the Seller and the Issuer (and the Indenture Trustee if delivered
by
the Custodian) an Interim Certification in the form annexed hereto as Exhibit
A-2 to the effect that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan prepaid in full or any specifically
identified in such certification as not covered by such certification), (i)
all
of the applicable documents specified in Section 2.01(c) are in its possession
and (ii) such documents have been reviewed by it and appear to relate to such
Mortgage Loan. The Indenture Trustee, or the Custodian on behalf of the
Indenture Trustee, shall determine whether such documents are executed and
endorsed, but shall be under no duty or obligation to inspect, review or examine
any such documents, instruments, certificates or other papers to determine
that
the same are valid, binding, legally effective, properly endorsed, genuine,
enforceable or appropriate for the represented purpose or that they have
actually been recorded or are in recordable form or that they are other than
what they purport to be on their face. Neither the Indenture Trustee nor the
Custodian shall have any responsibility for verifying the genuineness or the
legal effectiveness of or authority for any signatures of or on behalf of any
party or endorser or for the perfection or priority of any
document.
42
(c) If
in the
course of the review described in paragraph (b) above the Indenture Trustee
discovers any document or documents constituting a part of a Mortgage File
that
is missing, does not appear regular on its face (i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule,
as
applicable (each, a “Material Defect”), the Indenture Trustee or the Custodian,
discovering such Material Defect shall identify the Mortgage Loan to which
such
Material Defect relates in the Interim Certification delivered to the Depositor
and the Master Servicer. Within 90 days of its receipt of such notice, the
Seller shall be required to cure such Material Defect (and, in such event,
the
Seller shall provide the Indenture Trustee and the Custodian with an Officer’s
Certificate confirming that such cure has been effected). If the Seller does
not
so cure such Material Defect, if a loss has been incurred with respect to such
Mortgage Loan that would, if such Mortgage Loan were not purchased from the
Trust Estate, constitute a Realized Loss, and such loss is attributable to
the
failure of the Seller to cure such Material Defect, the Seller shall repurchase
the related Mortgage Loan from the Trust Estate at the Purchase Price. A loss
shall be deemed to be attributable to the failure of the Seller to cure a
Material Defect if, as determined by the Seller acting in good faith, absent
such Material Defect, such loss would not have been incurred. The Seller may,
in
lieu of repurchasing a Mortgage Loan pursuant to this Section 2.02, substitute
for such Mortgage Loan a Qualifying Substitute Mortgage Loan subject to the
provisions of Section 3.03. The failure of the Indenture Trustee or the
Custodian to deliver the Interim Certification within 90 days after the Closing
Date shall not affect or relieve the Seller of its obligation to repurchase
any
Mortgage Loan pursuant to this Section 2.02 or any other Section of this
Agreement requiring the repurchase of Mortgage Loans from the Trust
Estate.
(d) Within
180 days following the Closing Date, the Indenture Trustee, or the Custodian,
shall deliver to the Depositor, the Master Servicer and the Servicer[s] (and
the
Indenture Trustee if delivered by the Custodian) a Final Certification
substantially in the form attached as Exhibit A-3 evidencing the completeness
of
the Mortgage Files in its possession or control, with any exceptions noted
thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Estate, the Indenture Trustee, the Custodian or the Noteholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Notwithstanding
anything to the contrary contained herein, each of the parties hereto
acknowledges that the Custodian shall perform the applicable review of the
Mortgage Loans and respective certifications thereof as provided in the
Custodial Agreement.
(g) Upon
execution of this Agreement, the Depositor hereby delivers to the Indenture
Trustee and the Indenture Trustee acknowledges a receipt of the Mortgage Loan
Purchase Agreement.
(h) For
purposes of the determinations required to be made by the Indenture Trustee
or
the Custodian pursuant to paragraphs (a) through (d) of this Section 2.02,
the
Indenture Trustee or the Custodian, as applicable, shall be entitled to
conclusively rely upon the diskette, tape or other electronic media provided
by
or on behalf of the Seller with respect to the Mortgage Loans as to whether
(i)
any guarantee was executed in connection with any Mortgage Loan, (ii) any
assumption, modification or substitution agreement was executed in connection
with any Mortgage Loan, (iii) primary mortgage guaranty insurance is required
with respect to any Mortgage Loan or (iv) any security agreement or equivalent
instrument was executed in connection with any Mortgage Loan.
43
Section
2.03. Grant
Clause.
(a) It
is
intended that the conveyance by the Depositor to the Issuer of the Mortgage
Loans, as provided for in Section 2.01 be construed as a sale by the Depositor
to the Issuer of the Mortgage Loans and other assets in the Trust Estate for
the
benefit of the Noteholders. Further, it is not intended that any such conveyance
be deemed to be a pledge of the Mortgage Loans by the Depositor to the Issuer
to
secure a debt or other obligation of the Depositor. However, in the event that
the Mortgage Loans are held to be property of the Depositor or if for any reason
this Agreement is held or deemed to create a security interest in the Mortgage
Loans and other assets in the Trust Estate, then it is intended that (a) this
Agreement shall also be deemed to be a security agreement within the meaning
of
Articles 8 and 9 of the New York UCC (or the Relevant UCC if not the New York
UCC); (b) the conveyances provided for in Section 2.01 shall be deemed to be
(1)
a grant by the Depositor to the Issuer of a security interest in all of the
Depositor’s right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, (B) all amounts
payable pursuant to the Mortgage Loans in accordance with the terms thereof
and
(C) any and all general intangibles consisting of, arising from or relating
to
any of the foregoing, and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all Liquidation Proceeds, all Insurance
Proceeds, all amounts from time to time held or invested in the Collection
Account, whether in the form of cash, instruments, securities or other property
and (2) an assignment by the Depositor to the Issuer of any security interest
in
any and all of the Depositor’s right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and
to
the property described in the foregoing clauses (1)(A) through (C); (c) the
possession by the Indenture Trustee or any other agent of the Issuer of Mortgage
Notes, and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be “possession by the
secured party,” or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to
the
New York UCC and any other Relevant UCC (including, without limitation, Section
9-313, 8-313 or 8-321 thereof); and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts
or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Issuer for the purpose of perfecting such security interest under
applicable law.
(b) The
Depositor and, at the Depositor’s direction, the Issuer shall, to the extent
consistent with this Agreement, take such reasonable actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest
in
the Mortgage Loans and the other property of the Trust Estate, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of
this
Agreement. Without limiting the generality of the foregoing, the Depositor
shall
prepare and file any UCC financing statements that are necessary to perfect
the
Indenture Trustee’s security interest in or lien on the Mortgage Loans, as
evidenced by an Officer’s Certificate of the Depositor, and furnish a copy of
each such filed financing statement to the Securities Administrator. The
Indenture Trustee shall prepare and file, at the expense of the Issuer, all
filings necessary to maintain the effectiveness of any original filings
necessary under the Relevant UCC to perfect the Indenture Trustee’s security
interest in or lien on the Mortgage Loans, including without limitation (x)
continuation statements, and (y) to the extent that a Responsible Officer of
the
Indenture Trustee has received written notice of such change or transfer, such
other statements as may be occasioned by (1) any change of name of the Seller,
the Depositor or the Issuer, (2) any change of location of the place of business
or the chief executive office of the Seller or the Depositor or (3) any transfer
of any interest of the Seller or the Depositor in any Mortgage
Loan.
44
Neither
the Depositor nor the Issuer shall organize under the law of any jurisdiction
other than the State under which each is organized as of the Closing Date
(whether changing its jurisdiction of organization or organizing under an
additional jurisdiction) without giving thirty (30) days prior written notice
of
such action to its immediate and mediate transferee, including the Indenture
Trustee. Before effecting such change, each of the Depositor or the Issuer
proposing to change its jurisdiction of organization shall prepare and file
in
the appropriate filing office any financing statements or other statements
necessary to continue the perfection of the interests of its immediate and
mediate transferees, including the Indenture Trustee, in the Mortgage Loans.
In
connection with the transactions contemplated by this Agreement and the
Indenture, each of the Depositor and the Issuer authorizes its immediate or
mediate transferee to file in any filing office any initial financing
statements, any amendments to financing statements, any continuation statements,
or any other statements or filings described in this Section
2.03(b).
(c) The
Depositor shall not take any action inconsistent with the sale by the Depositor
of all of its right, title and interest in and to the Trust Estate and shall
indicate or shall cause to be indicated in its records and records held on
its
behalf that ownership of each Mortgage Loan and the other property of the Issuer
is held by the Issuer. In addition, the Depositor shall respond to any inquiries
from third parties with respect to ownership of a Mortgage Loan or any other
property of the Trust Estate by stating that it is not the owner of such
Mortgage Loan and that ownership of such Mortgage Loan or other property of
the
Trust Estate is held by the Issuer on behalf of the Noteholders.
Section
2.04. Option
to Contribute Derivative Instrument
At
any
time on or after the Closing Date, the Seller shall have the right to contribute
to, and deposit into, the Trust a derivative contract or comparable instrument
(a “Derivative Instrument”). The Derivative Instrument may have a notional
amount in excess of the sum of the beneficial interests in the Trust. Any such
instrument shall constitute a fully prepaid agreement. The Securities
Administrator shall have no tax reporting duties with respect to any such
Derivative Instrument.
45
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.01. Representations
and Warranties of the Depositor and the Seller.
(a) The
Depositor hereby represents and warrants to the Issuer, the Indenture Trustee
for the benefit of Noteholders, the Securities Administrator, the Master
Servicer, the Seller and the Servicer[s] as of the Closing Date or such other
date as is specified, that:
(i) This
Agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) Immediately
prior to the transfer by the Depositor to the Trust Estate of each Mortgage
Loan, the Depositor had good and equitable title to each Mortgage Loan (insofar
as such title was conveyed to it by the Seller) subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge or other
encumbrance or other interest of any nature;
(iii) As
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trust Estate;
(iv) The
Depositor has not transferred the Mortgage Loans to the Trust Estate with any
intent to hinder, delay or defraud any of its creditors; and
(v) The
Depositor has been duly organized and is validly existing as a corporation
in
good standing under the laws of Delaware, with full power and authority to
own
its assets and conduct its business as presently being conducted.
(b) The
Seller hereby represents and warrants to the Issuer, the Indenture Trustee
for
the benefit of Noteholders, the Securities Administrator, the Master Servicer
and the Depositor as of the Closing Date or such other date as is specified,
that:
(i) the
Seller is a [Florida] corporation, duly organized validly existing and in good
standing under the laws of the [State of Florida], and has the corporate power
to own its assets and to transact the business in which it is currently engaged.
The Seller is duly qualified to do business as a foreign corporation and is
in
good standing in each jurisdiction in which the character of the business
transacted by it or any properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial
or
other) of the Seller;
46
(ii) the
Seller has the corporate power and authority to make, execute, deliver and
perform this Agreement and all of the transactions contemplated under the
Agreement, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of the Seller enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights generally and by the
availability of equitable remedies;
(iii) the
Seller is not required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement, except
for
such consent, license, approval or authorization, or registration or
declaration, as shall have been obtained or filed, as the case may be, prior
to
the Closing Date;
(iv) the
execution, delivery and performance of this Agreement by the Seller will not
violate any provision of any existing law or regulation or any order or decree
of any court applicable to the Seller or any provision of the articles of
incorporation or bylaws of the Seller, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Seller is a party
or by which the Seller may be bound; and
(v) no
litigation or administrative proceeding of or before any court, tribunal or
governmental body is currently pending, or to the knowledge of the Seller
threatened, against the Seller or any of its properties or with respect to
this
Agreement which in the opinion of the Seller has a reasonable likelihood of
resulting in a material adverse effect on the transactions contemplated by
this
Agreement.
(c) The
Seller hereby makes for the benefit of the Issuer, the Indenture Trustee for
the
benefit of Noteholders, the Securities Administrator, the Master Servicer and
the Depositor as of the Closing Date or such other date as is specified, with
respect to the Mortgage Loans, the representations and warranties set forth
in
Exhibit A of the Mortgage Loan Purchase Agreement.
(d) To
the
extent that any fact, condition or event with respect to a Mortgage Loan
constitutes a breach of a representation or warranty of the Seller under
subsection (c) above or the Mortgage Loan Purchase Agreement, the only right
or
remedy of the Indenture Trustee or any Noteholder hereunder shall be their
rights to enforce the obligations of the Seller under any applicable
representation or warranty made by it. The Indenture Trustee on behalf of the
Issuer acknowledges that the Depositor shall have no obligation or liability
with respect to any breach of any representation or warranty with respect to
the
Mortgage Loans (except as set forth in Section 3.01(a)(ii)) under any
circumstances.
47
Section
3.02. Discovery
of Breach.
It is
understood and agreed that the representations and warranties (i) of the
Depositor set forth in Section 3.01(a), (ii) of the Seller set forth in Section
3.01(b) and (c) and (iii) of [the/each] Servicer pursuant to Section 4.05 of
this Agreement, shall each survive delivery of the Mortgage Files and the
Assignment of Mortgage of each Mortgage Loan to the Indenture Trustee and shall
continue throughout the term of this Agreement. With
respect to the representations and warranties which are made to the best of
the
Seller’s knowledge, if it is discovered by the Depositor, the Seller, the
Securities Administrator, the Indenture
Trustee,
the Master Servicer, the Underwriters or the Servicer[s] that the substance
of
such representation and warranty is inaccurate and such inaccuracy materially
and adversely affects the value of the Mortgage Loans or the interests of the
Noteholders or the Indenture
Trustee
therein, notwithstanding such Seller’s lack of knowledge with respect to the
substance of such representation or warranty, remedies for breach will apply
to
such inaccuracy. Any
breach of the representation and warranty set forth in clauses (cc), (ee) and
(ff) of Exhibit A of the Mortgage Loan Purchase Agreement shall be deemed to
materially and adversely affect the interest of the Trust in that Mortgage
Loan,
notwithstanding the Seller’s lack of knowledge with respect to the substance of
such representation and warranty. Upon discovery by any of the Depositor, the
Master Servicer, the Securities Administrator or the Indenture Trustee of a
breach of any of such representations and warranties made by the Seller that
adversely and materially affects the value of the related Mortgage Loan, the
party discovering such breach shall give prompt written notice to the other
parties. Within 90 days of the discovery by the Seller of a breach of any
representation or warranty given to the Indenture Trustee by the Seller or
the
Seller’s receipt of written notice of such a breach, the Seller shall either (a)
cure such breach in all material respects, (b) repurchase such Mortgage Loan
or
any property acquired in respect thereof from the Indenture Trustee at the
Purchase Price or (c) substitute a Qualifying Substitute Mortgage Loan for
the
affected Mortgage Loan.
Section
3.03. Repurchase,
Purchase or Substitution of Mortgage Loans.
(a) [With
respect to any Mortgage Loan repurchased by the Seller pursuant to Section
3.02(b) of this Agreement, the principal portion of the funds in respect of
such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
the
Purchase Price shall be deposited in the Collection Account. Upon receipt by
the
Securities Administrator of the full amount of the Purchase Price for a Deleted
Mortgage Loan and notification thereof has been made to the Indenture Trustee,
or upon receipt of notification from the Custodian that it had received the
Mortgage File for a Qualifying Substitute Mortgage Loan substituted for a
Deleted Mortgage Loan (and any applicable Substitution Amount), the Indenture
Trustee shall release or cause to be released and reassign to the Depositor
or
the Seller, as applicable, the related Mortgage File for the Deleted Mortgage
Loan and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, representation or warranty, as shall be necessary
to vest in such party or its designee or assignee title to any Deleted Mortgage
Loan released pursuant hereto, free and clear of all security interests, liens
and other encumbrances created by this Agreement and the Indenture, which
instruments shall be prepared by the [related] Servicer and the Indenture
Trustee shall have no further responsibility with respect to the Mortgage File
relating to such Deleted Mortgage Loan.
48
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Indenture Trustee (or the Custodian) in exchange for a Deleted Mortgage Loan:
(i) the Depositor or the Seller, as applicable, must deliver to the Indenture
Trustee (or a Custodian) the Mortgage File for the Qualifying Substitute
Mortgage Loan containing the documents set forth in Section 2.01(c) along with
a
written certification certifying as to the delivery of such Mortgage File and
containing the granting language set forth in Section 2.01(a); and (ii) the
Seller and the Depositor will be deemed to have made, with respect to such
Qualifying Substitute Mortgage Loan, each of the representations and warranties
made by it with respect to the related Deleted Mortgage Loan. As soon as
practicable after the delivery of any Qualifying Substitute Mortgage Loan
hereunder, the Indenture Trustee, at the expense of the Depositor and at the
direction and with the cooperation of the [related] Servicer shall (i) with
respect to a Qualifying Substitute Mortgage Loan that is a Non-MERS Mortgage
Loan, cause the Assignment of Mortgage to be recorded by the [related] Servicer
if required pursuant to Section 2.01(d), or (ii) with respect to a Qualifying
Substitute Mortgage Loan that is a MERS Mortgage Loan, cause to be taken such
actions as are necessary to cause the Indenture Trustee (on behalf of the
Issuer) to be clearly identified as the owner of each such Mortgage Loan on
the
records of MERS if required pursuant to Section 2.01(d).]
Section
3.04. Representations
and Warranties of the Depositor with respect to Security
Interest.
(a)
With respect to the Mortgage Notes, the Depositor represents and warrants
that:
(i) This
Agreement creates a valid and continuing security interest (as defined in the
applicable UCC in the Mortgage Notes in favor of the Issuer, which security
interest is prior to all other liens, and is enforceable as such against
creditors of and purchasers from the Issuer;
(ii) The
Mortgage Notes constitute “instruments” within the meaning of the applicable
UCC;
(iii) The
Depositor owns and has good title to the Mortgage Notes free and clear of any
lien, claim or encumbrance of any Person;
(iv) The
Depositor has received all consents and approvals required by the terms of
the
Mortgage Notes to the pledge of the Mortgage Notes hereunder to the
Issuer;
(v) All
original executed copies of each Mortgage Note have been or will be delivered
to
the Custodian, as set forth in this Transfer and Servicing
Agreement;
49
(vi) The
Depositor has received a written acknowledgement from the Custodian that it
is
holding the Mortgage Notes solely on behalf and for the benefit of the
Issuer;
(vii) Other
than the security interest granted to the Issuer pursuant to this Agreement,
the
Depositor has not pledged, assigned, sold, granted a security interest in,
or
otherwise conveyed any of the Mortgage Notes. The Depositor has not authorized
the filing of and is not aware of any financing statements against the Depositor
that include a description of the collateral covering the Mortgage Notes other
than a financing statement relating to the security interest granted to the
Issuer hereunder or that has been terminated. The Depositor is not aware of
any
judgment or tax lien filings against the Depositor; and
(viii) None
of
the Mortgage Notes has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the
Issuer.
(b) The
representations and warranties set forth in this Section 3.04 shall survive
the
Closing Date and shall not be waived.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF THE
MORTGAGE
LOANS BY THE SERVICER[S]
Section
4.01. Servicer[s]
to Perform Servicing Responsibilities.
(a) Contract
for Servicing; Possession of Servicing Files.
The
Issuer does hereby contract with the Servicer[s] for the servicing of the
Mortgage Loans for the benefit of the Issuer and the Indenture Trustee. The
Servicer[s] shall maintain a Servicing File with respect to each Mortgage Loan
in order to service such Mortgage Loans pursuant to this Agreement and each
Servicing File delivered to the Servicer[s] shall be held in trust by the
Servicer[s] for the benefit of the Issuer and the Indenture Trustee. The
[Servicer’s/Servicers’] possession of any portion of the Mortgage Loan documents
shall be at the will of the Indenture Trustee for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to this Agreement,
and such retention and possession by the Servicer shall be in a custodial
capacity only. The ownership of each Mortgage Note, Mortgage, and the contents
of the Servicing File shall be vested in the Indenture Trustee and the ownership
of all records and documents with respect to the related Mortgage Loan prepared
by or which come into the possession of the Servicer[s] shall immediately vest
in the Indenture Trustee and shall be retained and maintained, in trust, by
the
Servicer[s] at the will of the Indenture Trustee in such custodial capacity
only. The Servicing File retained by the Servicer[s] pursuant to this Agreement
shall be identified in accordance with the [Servicer’s/Servicers’] file tracking
system to reflect the ownership of the related Mortgage Loan by the Indenture
Trustee. The Servicer[s] shall release from [its/their] custody the contents
of
any Servicing File retained by [it/them] only in accordance with this
Agreement.
50
(b) Books
and Records.
All
rights arising out of the Mortgage Loans shall be vested in the Indenture
Trustee, subject to the [Servicer’s/Servicers’] rights to service and administer
the Mortgage Loans hereunder in accordance with the terms of this Agreement.
All
funds received on or in connection with a Mortgage Loan, other than the
Servicing Fee and other compensation and reimbursement to which the Servicer[s]
and the Master Servicer are entitled as set forth herein, including but not
limited to Section 4.04(c), shall be received and held by them in trust for
the
benefit of the Indenture Trustee pursuant to the terms of this
Agreement.
The
Servicer[s] shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.02(a) within one week of their
execution; provided,
however,
that
the Servicer[s] shall provide the Custodian with a Servicer certified true
copy
of any such document submitted for recordation within one week of its execution,
and shall provide the original of any document submitted for recordation or
a
copy of such document certified by the appropriate public recording office
to be
a true and complete copy of the original within 180 days of its submission
for
recordation.
Section
4.02. Servicing
of the Mortgage Loans.
(a) Servicer[s]
to Service.
The
Servicer[s][, acting directly or through one or more Subservicers as provided
in
Section 4.09,] shall service and administer the Mortgage Loans from and after
the Closing Date and, except where prior consent of the Master Servicer is
required under this Agreement, in accordance with this Agreement and with
Accepted Servicing Practices, and shall have full power and authority, acting
alone, to do or cause to be done any and all things in connection with such
servicing and administration which the Servicer[s] may deem necessary or
desirable and consistent with the terms of this Agreement and with Accepted
Servicing Practices and exercise the same care that it customarily employs
for
its own account. Except as set forth in this Agreement, the Servicer[s] shall
service the Mortgage Loans in strict compliance with the servicing provisions
of
the Xxxxxx Xxx Guides (special servicing option), which include, but are not
limited to, provisions regarding the liquidation of Mortgage Loans, the
collection of Mortgage Loan payments, the payment of taxes, insurance and other
charges, the maintenance of hazard insurance with a Qualified Insurer, the
maintenance of mortgage impairment insurance, the maintenance of fidelity bond
and errors and omissions insurance, inspections, the restoration of Mortgaged
Property, the maintenance of Primary Mortgage Insurance Policies and Lender
Primary Mortgage Insurance Policies, insurance claims, the title, management
and
disposition of REO Property, permitted withdrawals with respect to REO Property,
liquidation reports, and reports of foreclosures and abandonments of Mortgaged
Property, the transfer of Mortgaged Property, the release of Mortgage Files,
annual statements, and examination of records and facilities. In the event
of
any conflict, inconsistency or discrepancy between any of the servicing
provisions of this Agreement and any of the servicing provisions of the Xxxxxx
Mae Guides, the provisions of this Agreement shall control and be binding upon
the Servicer[s] and the other parties hereto.
51
Consistent
with the terms of this Agreement, the Servicer[s] may waive, modify or vary
any
term of any Mortgage Loan or consent to the postponement of any such term or
in
any manner grant indulgence to any Mortgagor if in the [Servicer's/Servicers’]
reasonable and prudent determination such waiver, modification, postponement
or
indulgence is not materially adverse to the Issuer, Indenture Trustee and the
Noteholders, provided, however, that unless the [related] Servicer has obtained
the prior written consent of the Master Servicer, the Servicer[s] shall not
permit any modification with respect to any Mortgage Loan that would change
the
Mortgage Rate, defer for more than [ninety (90)] days or forgive any payment
of
principal or interest, reduce or increase the outstanding principal balance
(except for actual payments of principal) or change the final maturity date
on
such Mortgage Loan. In the event of any such modification which has been agreed
to in writing by the Master Servicer and which permits the deferral of interest
or principal payments on any Mortgage Loan, the Servicer[s] shall, on the
Business Day immediately preceding the Servicer Remittance Date in any month
in
which any such principal or interest payment has been deferred, deposit in
the
Custodial Account from its own funds, in accordance with Section 4.03(c), the
difference between (a) such month's principal and one month's interest at the
Net Mortgage Rate on the unpaid principal balance of such Mortgage Loan and
(b)
the amount paid by the Mortgagor. The Servicer[s] shall be entitled to
reimbursement for such advances to the same extent as for all other advances
pursuant to Section 4.03. Without limiting the generality of the foregoing,
the
Servicer[s] shall continue, and [is/are] hereby authorized and empowered, to
prepare, execute and deliver on behalf of itself, the Issuer and the Indenture
Trustee, all instruments of satisfaction or cancellation, or of partial or
full
release, discharge and all other comparable instruments, with respect to the
Mortgage Loans and with respect to the Mortgaged Properties. Notwithstanding
anything herein to the contrary, the Servicer[s] may not enter into a
forbearance agreement or similar arrangement with respect to any Mortgage Loan
which runs more than one hundred eighty (180) days after the first delinquent
Due Date. Any such agreement shall be approved by the Master Servicer and,
if
required, by the Primary Mortgage Insurance Policy insurer and Lender Primary
Mortgage Insurance Policy insurer.
In
servicing and administering the Mortgage Loans, the Servicer[s] shall employ
Accepted Servicing Practices, giving due consideration to the reliance by the
Issuer, Indenture Trustee and Noteholders on the Servicer[s]. [Notwithstanding
the appointment of any Subservicer pursuant to Section 4.09, the Servicer shall
remain liable for the performance of all of the servicing obligations and
responsibilities under this Agreement.]
[The
Servicer[s] shall, in accordance with Home Equity Accepted Servicing Practices,
approve and make disbursements of principal in connection with Mortgagor drafts
upon the credit line approved in connection with each Revolving Credit Loan.
The
Servicer[s] shall provide to the Mortgagors all checks, drafts or other
documentation necessary for such Mortgagors to obtain a Credit Line Advance.
On
each Servicer Remittance Date, with respect to each Credit Line Advance
disbursed by the [related] Servicer and reported to the [Master Servicer and
the
Securities Administrator], the [related] Servicer shall be entitled to reimburse
itself, from amounts on deposit in the Custodial Account, in an amount equal
to
(i) the principal amount of each unreimbursed Credit Line Advance disbursed
by
[related] Servicer with respect to a Revolving Credit Loan and (ii) interest,
at
the Credit Advance Rate, on the principal amount of each such Credit Line
Advance from the date such Credit Line Advance was disbursed by [related]
Servicer to but not including such date reimbursement is received by the
[related] Servicer. In the event that there are insufficient funds on deposit
in
the Custodial Account on any Servicer Remittance Date to reimburse the [related]
Servicer as provided in the preceding sentence (such shortfall, an “Advance
Reimbursement Shortfall Amount”), the [related] Servicer shall deliver to the
[Master Servicer and the Securities Administrator] a request for reimbursement
of the amount of such Advance Reimbursement Shortfall Amount at least three
Business Days prior to such Servicer Remittance Date. The [Securities
Administrator] shall promptly reimburse the [related] Servicer on such Servicer
Remittance Date for such Advance Reimbursement Shortfall Amount.]
52
[The
Servicer[s], at [its/their] discretion and in accordance with Home Equity
Accepted Servicing Practices, may perform any of the following actions in
connection with a Revolving Credit Loan:
(i)
with
the approval of the [Master Servicer and the Securities Administrator], increase
the amount of the related Credit Line;
(ii)
with
the
approval of the [Master Servicer and the Securities Administrator], terminate
a
dormant Revolving Credit Loan, to the extent permitted under the related
Mortgage Note;
(iii)
permit
payments from the Mortgagor of interest only during the period when Credit
Line
Advances may be made; or
(iv)
with
the
approval of the [Master Servicer and the Securities Administrator], eliminate
the ability of the Mortgagor to make future drafts upon the Credit Line, or
reduce the Credit Line, to the extent permitted under the related Mortgage
Note.]
[Notwithstanding
anything to the contrary contained herein, the Servicer[s] shall, in servicing
the Revolving Credit Loans, follow and comply with the servicing guidelines
established by Xxxxxx Xxx, and the Servicer[s] may waive, modify or vary any
term of any Revolving Credit Loan or consent to the postponement of strict
compliance with any such term or in any manner grant indulgence to any Mortgagor
if in the [related] Servicer’s reasonable and prudent determination such waiver,
modification, postponement or indulgence is in the best interests of the
Noteholders and is consistent with the terms of this Agreement; provided,
however,
that if
the Mortgagor is in default with respect to the Revolving Credit Loan or such
default is, in the judgment of the Servicer, reasonably foreseeable, the
[related] Servicer shall not permit any modification of any material term of
any
Revolving Credit Loan, including any modification that would change the mortgage
interest rate, defer or forgive the payment of principal or interest, reduce
or
increase the outstanding principal balance (except for actual payments of
principal) or change the final maturity date on such Revolving Credit Loan.
In
the event of any such modification which permits the deferral of interest or
principal payments on any Revolving Credit Loan, the [related] Servicer shall,
on the Business Day immediately preceding the Servicer Remittance Date in any
month in which any such principal or interest payment has been deferred, make
a
Monthly Advance pursuant to the provisions of Section 4.03(c), in an amount
equal to the difference between (i) such month’s principal and one month’s
interest at the Mortgage Rate on the unpaid principal balance of such Revolving
Credit Loan and (ii) the amount paid by the Mortgagor. The Servicer[s] shall
be
entitled to reimbursement for such Monthly Advances to the same extent as for
all other Monthly Advances made pursuant to Section 4.03(c). Without limiting
the generality of the foregoing, the Servicer[s] shall continue, and [is/are]
hereby authorized and empowered, to execute and deliver on behalf of itself
and
the [Master Servicer and the Securities Administrator], all instruments of
satisfaction or cancellation, or of partial or full release, discharge and
all
other comparable instruments, with respect to the Revolving Credit Loans and
with respect to the Mortgaged Properties. Upon the request of [the/a] Servicer,
the [Master Servicer and the Securities Administrator] shall execute and deliver
to the [related] Servicer any powers of attorney and other documents, furnished
to it by the [related] Servicer and reasonably satisfactory to the [Master
Servicer and the Securities Administrator], necessary or appropriate to enable
the [related] Servicer to carry out its servicing and administrative duties
under this Agreement. Notwithstanding anything contained herein to the contrary,
the Servicer[s] shall not, without the [Master Servicer’s and the Securities
Administrator’s] written consent: (i) initiate any action suit or proceeding
solely under the [Master Servicer’s or the Securities Administrator’s] name
without indicating the [related] Servicer’s representative capacity; or (ii)
take any action with the intent to cause, and that actually causes, the [Master
Servicer and the Securities Administrator] to be registered to do business
in
any state. Promptly after the execution of any assumption, modification,
consolidation or extension of any Revolving Credit Loan, the [related] Servicer
shall forward to the [Master Servicer] copies of any documents evidencing such
assumption, modification, consolidation or extension.
53
In
servicing and administering the Revolving Credit Loans, the Servicer[s] shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Home Equity
Accepted Servicing Practices where such practices do not conflict with the
requirements of this Agreement and the Xxxxxx Xxx Guides.]
(b) Servicer
Discretion.
In
managing the liquidation of defaulted Mortgage Loans, the [related] Servicer
will have sole discretion, subject to the terms of this Agreement, to sell
defaulted Mortgage Loans; provided,
however,
that
the [related] Servicer shall not take any action that is inconsistent with
or
prejudices the interests of the Noteholders in any Mortgage Loan or the rights
and interests of the Depositor, the Indenture Trustee and the Noteholders under
this Agreement.
54
(c) Collection
and Liquidation of Mortgage Loans.
Continuously from the date hereof until the date each Mortgage Loan ceases
to be
subject to this Agreement, the Servicer[s] will proceed diligently to collect
all payments due under each Mortgage Loan when the same shall become due and
payable and shall, to the extent such procedures shall be consistent with this
Agreement, Accepted Servicing Practices, and the terms and provisions of any
related Primary Mortgage Insurance Policy and Lender Primary Mortgage Insurance
Policy, follow such collection procedures as it follows with respect to mortgage
loans comparable to the Mortgage Loans and held for its own account. Further,
the Servicer[s] will take special care in ascertaining and estimating annual
escrow payments, and all other charges that, as provided in the Mortgage, will
become due and payable, so that the installments payable by the Mortgagors
will
be sufficient to pay such charges as and when they become due and
payable.
The
Servicer[s] shall use [its/their] best efforts, consistent with the procedures
that [the/each] Servicer would use in servicing loans for its own account,
consistent with Accepted Servicing Practices, any Primary Mortgage Insurance
Policies and Lender Primary Mortgage Insurance Policies and the best interest
of
the Issuer, the Indenture Trustee and the Noteholders, to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 4.02(a). Foreclosure or comparable proceedings shall be
initiated within [ninety (90)] days of default for Mortgaged Properties for
which no satisfactory arrangements can be made for collection of delinquent
payments, subject to state and federal law and regulation. The Servicer[s]
shall
use [its/their] best efforts to realize upon defaulted Mortgage Loans in such
manner as will maximize the receipt of principal and interest by the Trust,
taking into account, among other things, the timing of foreclosure proceedings.
The Servicer, on behalf of the Issuer, the Indenture Trustee and the
Noteholders, may also, in its discretion, as an alternative to foreclosure,
sell
defaulted Mortgage Loans at fair market value to third parties, if the [related]
Servicer reasonably believes that such sale would maximize proceeds to the
Trust
(on a present value basis) with respect to each such Mortgage Loan. The
foregoing is subject to the provisions that, in any case in which a Mortgaged
Property shall have suffered damage, the Servicer shall not be required to
expend its own funds toward the restoration of such property unless it shall
determine in its discretion (i) that such restoration will increase the proceeds
of liquidation of the related Mortgage Loan to the Trust after reimbursement
to
itself for such expenses, and (ii) that such expenses will be recoverable by
the
[related] Servicer through Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 4.02(e). Servicer shall obtain prior approval of Purchaser or the Master
Servicer as to repair or restoration expenses in excess of ten thousand dollars
($10,000). The [related] Servicer shall notify the Master Servicer in writing
of
the commencement of foreclosure proceedings and not less than five (5) days
prior to the acceptance or rejection of any offer of reinstatement. The
[related] Servicer shall be responsible for all costs and expenses incurred
by
it in any such proceedings or functions; provided, however, that it shall be
entitled to reimbursement thereof from the related property, as contemplated
in
Section 4.02(e). 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 [related] Servicer has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Master Servicer or the Indenture Trustee otherwise requests an
environmental inspection or review of such Mortgaged Property, such an
inspection or review is to be conducted by a qualified inspector at the Master
Servicer’s or Indenture Trustee’s expense, as applicable. Upon completion of the
inspection, the [related] Servicer shall promptly provide the Master Servicer
and the Indenture Trustee with a written report of the environmental inspection.
After reviewing the environmental inspection report, the Master Servicer shall
determine how the [related] Servicer shall proceed with respect to the Mortgaged
Property.
55
Notwithstanding
the generality of the preceding paragraph, the [related] Servicer shall take
such actions generally in accordance with the [related] Servicer’s established
default timeline and in accordance with Accepted Servicing Practices with
respect to each Mortgage Loan and Mortgagor for which there is a delinquency
until such time as the related Mortgagor is current with all payments due under
the Mortgage Loan.
(d) Establishment
of and Deposits to Custodial Account.
(i) The
Servicer[s] shall segregate and hold all funds collected and received pursuant
to the Mortgage Loans separate and apart from any of its own funds and general
assets and shall initially establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, each of which accounts
shall be titled “[Xxxxxx, Bean & Xxxxxxxx Mortgage Corp. in trust for
[ ], as Indenture Trustee, for the TBW Mortgage Trust
[ ] Mortgage Backed Notes” and referred to herein as a
“Custodial Account.” Each Custodial Account shall be an Eligible Account. Any
funds deposited in the Custodial Account shall at all times be insured by the
FDIC up to the FDIC insurance limits, or must be invested in Eligible
Investments subject to the provisions of Section 4.02(i) hereof. Funds deposited
in the Custodial Account may be drawn on by the Servicer in accordance with
Section 4.02(e) hereof. The creation of any Custodial Account shall be evidenced
by a letter agreement in the form of Exhibit D hereto. A
copy of
such certification or letter agreement shall be furnished to the Indenture
Trustee, the Master Servicer and, upon request, to any subsequent owner of
the
Mortgage Loans. The
Servicer shall deposit or cause to be deposited into the Custodial Account,
no
later than 48 hours after receipt of funds, and retain therein the following
payments and collections received or made by it subsequent to the Cut-off Date,
or received by it prior to the Cut-off Date but allocable to a period subsequent
thereto, other than in respect of principal and interest on the Mortgage Loans
due on or before the Cut-off Date:
(1) all
payments
on account of principal, including Principal Prepayments and related penalties,
on the Mortgage Loans;
(2) all
payments on account of interest on the Mortgage Loans adjusted to the Net
Mortgage Rate;
(3) all
Net
Liquidation Proceeds;
56
(4) any
amounts required to be deposited by the Servicer[s] in connection with any
REO
Property pursuant to Section 4.02(o) and in connection therewith, the [related]
Servicer shall provide the Master Servicer with written detail itemizing all
of
such amounts;
(5) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 4.02(j), other than proceeds to be held in the Escrow Account and
applied to the restoration or repair of the Mortgaged Property or released
to
the Mortgagor in accordance with Accepted Servicing Practices, the Mortgage
Loan
Documents or applicable law;
(6) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with Accepted Servicing Practices, the loan
documents or applicable law;
(7) any
Monthly Advances;
(8) with
respect to each full or partial Principal Prepayment, any Prepayment Interest
Shortfalls, to the extent of the [related] Servicer's aggregate Servicing Fee
received with respect to the related Prepayment Period;
(9) any
amounts required to be deposited by the Servicer[s] pursuant to
Section 4.02(j) in connection with the deductible clause in any blanket
hazard insurance policy, such deposit shall be made from the [related]
Servicer's own funds, without reimbursement therefor; and
(10) any
amounts
required
to be deposited in the Custodial Account pursuant this Agreement.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of the Servicing Fee and Ancillary Income,
need not be deposited by the [related] Servicer in the Custodial Account. Any
interest paid on funds deposited in the Custodial Account by the depository
institution and any income or appreciation on any investment of such funds
shall
accrue to the benefit of the [related] Servicer and [the/such] Servicer shall
be
entitled to retain and withdraw such interest from the Custodial Account
pursuant to Section 4.02(e). The
amount of any losses incurred in respect of any such investments shall be
deposited in the Custodial Account by the
[related]
Servicer
out of its own funds, without any right of reimbursement therefor, immediately
as realized.
(ii) [The/Each]
Servicer agrees that it shall not create, incur or subject any Mortgage Loans,
or any funds that are deposited in any Custodial Account or Escrow Account,
or
any funds that otherwise are or may become due or payable to or for the benefit
of the Indenture Trustee, to any claim, lien, security interest, judgment,
levy,
writ of attachment or other encumbrance, nor assert by legal action or otherwise
any claim or right of setoff against any Mortgage Loan or any funds collected
on, or in connection with, a Mortgage Loan.
57
(e) Permitted
Withdrawals from Custodial Account.
The
Servicer[s] may, from time to time, withdraw from the Custodial Account for
the
following purposes:
(i) to
make
payments to the Master Servicer in the amounts and in the manner provided for
in
Section 4.03(a);
(ii) to
reimburse [itself/themselves] for Monthly Advances, the [Servicer's/Servicers’]
right to reimburse itself pursuant to this subclause (ii) being limited to
amounts received on the related Mortgage Loan which represent late collections
(net of the related Servicing Fees) of principal and/or interest respecting
which any such advance was made, it being understood that, in the case of such
reimbursement, the [related] Servicer's right thereto shall be prior to the
rights of the Noteholders, except that, where the [related] Servicer is required
to repurchase a Mortgage Loan, pursuant to Section 3.03, the [related]
Servicer's right to such reimbursement shall be subsequent to the payment to
the
Trust of the Purchase Price pursuant to such Section and all other amounts
required to be paid to the Trust with respect to such Mortgage
Loan;
(iii) to
reimburse itself for unreimbursed Monthly Advances and Servicing Advances and
any unpaid Servicing Fees (or REO administration fees described in Section
4.02(o)), the [related] Servicer's right to reimburse itself pursuant to this
subclause (3) with respect to any Mortgage Loan being limited to related
proceeds from Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds
in accordance with the relevant provisions of the Xxxxxx Xxx Guides or as
otherwise set forth in this Agreement; any recovery shall be made upon
liquidation of the REO Property;
(iv) to
pay to
itself as part of its servicing compensation (a) any interest income or
appreciation earned on funds in the Custodial Account (all such interest to
be
withdrawn monthly not later than each Servicer Remittance Date), (b) the
Servicing Fee from that portion of any payment or recovery as to interest with
respect to a particular Mortgage Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 3.03 all amounts received thereon and not distributed as of the date
on
which the related Purchase Price is determined,
58
(vi) to
transfer funds to another Eligible Account in accordance with Section 4.02(i)
hereof;
(vii) to
remove
funds inadvertently placed in the Custodial Account by [the/a]
Servicer;
(viii) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
[and]
(ix) to
reimburse itself for any Nonrecoverable Advances and amounts reimbursable
pursuant to Section 4.05(b) and Section 4.06(b) [; and]
(x) [to
reimburse itself for the amount of any Credit Line Advances made by or on behalf
of [the/a] Servicer and not timely reimbursed by the Administrator in accordance
with Section 4.02(a) hereof.]
(f) Establishment
of and Deposits to Escrow Account.
The
Servicer[s] shall segregate and hold all funds collected and received pursuant
to a Mortgage Loan constituting Escrow Payments separate and apart from any
of
its own funds and general assets and shall establish and maintain one or more
Escrow Accounts, in the form of time deposit or demand accounts, titled
“[Xxxxxx, Bean & Xxxxxxxx Mortgage Corp.] in trust for [
], as Indenture Trustee, for the TBW Mortgage Trust [ ].” The
Escrow Accounts shall be an Eligible Account. Nothing herein shall require
the
Servicer to compel a Mortgagor to establish an Escrow Account in violation
of
applicable law. Funds deposited in the Escrow Account may be drawn on by the
Servicer[s] in accordance with Section 4.02(g). The creation of any Escrow
Account shall be evidenced by a letter agreement in the form of Exhibit E
hereto. A copy of such certification or letter agreement shall be furnished
to
the Master Servicer.
The
Servicer[s] shall deposit in the Escrow Account or Accounts on a daily basis,
and in the Escrow Account or Accounts no later than 48 hours after receipt
of
funds, and retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, if required, for
the
purpose of effecting timely payment of any such items as required under the
terms of this Agreement to be paid by the related Mortgagor to the [related]
Servicer;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient to
cover escrow disbursements.
The
Servicer[s] shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 4.02(g).
The Servicer[s] shall be entitled to retain any interest earnings paid on funds
deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To
the
extent required by law, the Servicer[s] shall pay interest on escrowed funds
to
the Mortgagor notwithstanding that the Escrow Account may be non-interest
bearing or the interest earnings paid thereon are insufficient for such
purposes.
59
(g) Permitted
Withdrawals from Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the Servicer[s]
only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy premiums, if applicable, condominium charges, fire
and
hazard insurance premiums or other items constituting Escrow Payments for the
related Mortgage;
(ii) to
reimburse the [related] Servicer for any Servicing Advance of an Escrow Payment
made by the [related] Servicer with respect to a related Mortgage Loan, but
only
from amounts received on the related Mortgage Loan which represent late
collections of Escrow Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required to
be
escrowed under the terms of the related Mortgage Loan;
(iv) to
the
extent permitted by applicable law, for transfer to the Custodial Account and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with Section 4.02(n);
(vi) to
pay to
the Servicer[s], or any Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this Agreement. As part
of [its/their] servicing duties, the Servicer[s] shall pay to the Mortgagors
interest on funds in Escrow Account, to the extent required by law, and to
the
extent that interest earned on funds in the Escrow Account is insufficient,
shall pay such interest from its own funds, without any reimbursement therefor;
and
(viii) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.02(f).
(h) Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary Mortgage Insurance
Policies; Collections Thereunder.
With
respect to each Mortgage Loan, the Servicer[s] shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of primary mortgage insurance premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges, including renewal premiums and shall effect payment thereof prior
to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits of
the
Mortgagor in the Escrow Account which shall have been estimated and accumulated
by the Servicer[s] in amounts sufficient for such purposes, as allowed under
the
terms of the Mortgage or applicable law. To the extent that the Mortgage does
not provide for Escrow Payments, the [related] Servicer shall determine that
any
such payments are made by the Mortgagor at the time they first become due.
[The/Each] Servicer assumes full responsibility for the timely payment of all
such bills and shall effect timely 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 (which will constitute a Servicing Advance).
60
(i) The
[related] Servicer will maintain in full force and effect Primary Mortgage
Insurance Policies or Lender Primary Mortgage Insurance Policies issued by
a
Qualified Insurer with respect to each Mortgage Loan for which such coverage
is
herein required. Such coverage will be terminated only with the approval of
Purchaser, or as required by applicable law or regulation. The [related]
Servicer will not cancel or refuse to renew any Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy in effect on the Closing
Date
that is required to be kept in force under this Agreement unless a replacement
Primary Mortgage Insurance Policy or Lender Primary Mortgage Insurance Policy
for such canceled or nonrenewed policy is obtained from and maintained with
a
Qualified Insurer. The [related] Servicer shall not take any action which would
result in non-coverage under any applicable Primary Mortgage Insurance Policy
or
Lender Primary Mortgage Insurance Policy of any loss which, but for the actions
of the [related] Servicer would have been covered thereunder. In connection
with
any assumption or substitution agreement entered into or to be entered into
pursuant to Section 4.04(a), the [related] Servicer shall promptly notify the
insurer under the related Primary Mortgage Insurance Policy or Lender Primary
Mortgage Insurance Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such policy and shall take all actions
which may be required by such insurer as a condition to the continuation of
coverage under the Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy. If such Primary Mortgage Insurance Policy or Lender Primary
Mortgage Insurance Policy is terminated as a result of such assumption or
substitution of liability, the [related] Servicer shall obtain a replacement
Primary Mortgage Insurance Policy or Lender Primary Mortgage Insurance Policy
as
provided above.
In
connection with [its/their] activities as servicer, [the/each] Servicer agrees
to prepare and present, on behalf of itself and the Issuer, claims to the
insurer under any Private Mortgage Insurance Policy in a timely fashion in
accordance with the terms of such Primary Mortgage Insurance Policy or Lender
Primary Mortgage Insurance Policy and, in this regard, to take such action
as
shall be necessary to permit recovery under any Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy respecting a defaulted
Mortgage Loan. Pursuant to Section 4.02(d), any amounts collected by the
Servicer[s] under any Primary Mortgage Insurance Policy or Lender Primary
Mortgage Insurance Policy shall be deposited in the Custodial Account, subject
to withdrawal pursuant to Section 4.02(e).
61
(i) Protection
of Accounts.
The
Servicer[s] may transfer the Custodial Account or the Escrow Account to a
different Eligible Institution from time to time. Such transfer shall be made
only upon obtaining the consent of the Master Servicer, which consent shall
not
be withheld unreasonably, and the [related] Servicer shall give notice to the
Master Servicer and the Indenture Trustee of any change in the location of
the
Custodial Account.
(j) Maintenance
of Hazard Insurance.
The
Servicer[s] shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is acceptable to Xxxxxx Mae or Xxxxxxx
Mac
and customary in the area where the Mortgaged Property is located in an amount
which is equal to the lesser of (i) the maximum insurable value of the
improvements securing such Mortgage Loan or (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan, and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor and/or the
mortgagee from becoming a co-insurer. If required by the Flood Disaster
Protection Act of 1973, as amended, each Mortgage Loan shall be covered by
a
flood insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance Administration in effect with an insurance carrier acceptable
to Xxxxxx Mae or Xxxxxxx Mac, in an amount representing coverage not less than
the least of (i) the outstanding principal balance of the Mortgage Loan, (ii)
the maximum insurable value of the improvements securing such Mortgage Loan
or
(iii) 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/a] Servicer determines in accordance with applicable
law
and pursuant to the Xxxxxx Mae 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 [related] Servicer shall notify the related Mortgagor
that
the Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails to obtain the required flood insurance coverage within forty-five (45)
days after such notification, the [related] Servicer shall immediately force
place the required flood insurance on the Mortgagor's behalf. The Servicer[s]
shall also maintain on each REO Property, fire and hazard insurance with
extended coverage in an amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, and, to the extent
required and available under the Flood Disaster Protection Act of 1973, as
amended, flood insurance in an amount as provided above. Any amounts collected
by [the/a] Servicer under any such policies other than amounts to be deposited
in the Escrow Account and applied to the restoration or repair of the Mortgaged
Property or REO Property, or released to the Mortgagor in accordance with
Accepted Servicing Practices, shall be deposited in the Custodial Account,
subject to withdrawal pursuant to Section 4.02(e). It is understood and agreed
that no other additional insurance need be required by the Servicer[s] of the
Mortgagor or maintained on property acquired in respect of the Mortgage Loan,
other than pursuant to this Agreement, the Xxxxxx Xxx Guides or such applicable
state or federal laws and regulations as shall at any time be in force and
as
shall require such additional insurance. All such policies shall be endorsed
with standard mortgagee clauses with loss payable to the [related] Servicer
and
its successors and/or assigns and shall provide for at least thirty (30) days
prior written notice of any cancellation, reduction in the amount or material
change in coverage to the [related] Servicer. The Servicer[s] shall not
interfere with the Mortgagor's freedom of choice in selecting either his
insurance carrier or agent, provided, however, that the Servicer[s] shall not
accept any such insurance policies from insurance companies unless such
companies are Qualified Insurers.
62
(k) Maintenance
of Mortgage Impairment Insurance.
In the
event that [the/a] Servicer shall obtain and maintain a blanket policy issued
by
an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac insuring against hazard
losses on all of the Mortgage Loans, then, to the extent such policy provides
coverage in an amount equal to the amount required pursuant to Section 4.02(j)
and otherwise complies with all other requirements of Section 4.02(j), it shall
conclusively be deemed to have satisfied its obligations as set forth in Section
4.02(j), it being understood and agreed that such policy may contain a
deductible clause, in which case the [related] Servicer shall, in the event
that
there shall not have been maintained on the related Mortgaged Property or REO
Property a policy complying with Section 4.02(j), and there shall have been
a
loss which would have been covered by such policy, deposit in the Custodial
Account the amount not otherwise payable under the blanket policy because of
such deductible clause. In connection with [its/their] activities as servicer[s]
of the Mortgage Loans, [the/each] Servicer agrees to prepare and present, on
behalf of the Master Servicer and the Indenture Trustee, claims under any such
blanket policy in a timely fashion in accordance with the terms of such policy.
Upon request of the Master Servicer or Indenture Trustee, the [related] Servicer
shall cause to be delivered to the Master Servicer or the Indenture Trustee,
as
applicable, a certified true copy of such policy and shall use its best efforts
to obtain a statement from the insurer thereunder that such policy shall in
no
event be terminated or materially modified without thirty (30) days’ prior
written notice to the Master Servicer and the Indenture Trustee.
(l) Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
[The/Each] Servicer shall maintain, at its own expense, a blanket fidelity
bond
and an errors and omissions insurance policy, with broad coverage with
responsible companies on all officers, employees or other persons acting in
any
capacity with regard to the Mortgage Loan to handle funds, money, documents
and
papers relating to the Mortgage Loan. The Servicer Fidelity Bond shall be in
the
form of the Mortgage Banker's Blanket Bond and shall protect and insure the
Servicer[s] against losses, including forgery, theft, embezzlement and fraud
of
such persons. The Servicer Errors and Omissions Insurance Policy shall protect
and insure the Servicer[s] against losses arising out of errors and omissions
and negligent acts of such persons. Such Servicer Errors and Omissions Insurance
Policy shall also protect and insure the Servicer[s] against losses in
connection with the failure to maintain any insurance policies required pursuant
to this Agreement and the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.02(l) requiring the Servicer Fidelity Bond or the
Servicer Errors and Omissions Insurance Policy shall diminish or relieve [the/a]
Servicer from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by Xxxxxx Mae in the Xxxxxx Xxx
Guides. Upon request of the Master Servicer or the Indenture Trustee, the
[related] Servicer shall deliver to the Master Servicer and the Indenture
Trustee a certificate from the surety and the insurer as to the existence of
the
Servicer Fidelity Bond and the Servicer Errors and Omissions Insurance Policy
and shall obtain a statement from the surety and the insurer that such Servicer
Fidelity Bond or Servicer Errors and Omissions Insurance Policy shall in no
event be terminated or materially modified without thirty (30) days prior
written notice to the Master Servicer. The [related] Servicer shall notify
the
Master Servicer and the Indenture Trustee within five (5) business days of
receipt of notice that such Servicer Fidelity Bond or Servicer Errors and
Omissions Insurance Policy will be, or has been, materially modified or
terminated. The Issuer must be named as a loss payee on the Servicer Fidelity
Bond and as an additional insured on the Servicer Errors and Omissions Insurance
Policy. Upon request by the Master Servicer, the [related] Servicer shall
provide the Master Servicer with an insurance certificate certifying coverage
under this Section 4.02(l), and will provide an update to such certificate
upon
request, or upon renewal or material modification of coverage.
63
(m) Inspections.
The
Servicer[s] shall inspect the Mortgaged Property as often as deemed necessary
by
[the/each] Servicer to assure itself that the value of the Mortgaged Property
is
being preserved. In addition, the Servicer[s] shall inspect the Mortgaged
Property and/or take such other actions as may be necessary or appropriate
in
accordance with Accepted Servicing Practices or as may be required by the
primary mortgage guaranty insurer. The Servicer[s] shall keep a written report
of each such inspection.
(n) Restoration
of Mortgaged Property.
The
Servicer[s] need not obtain the approval of the Master Servicer prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor
to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Accepted Servicing Practices. At a minimum, the
Servicer[s] shall comply with the following conditions in connection with any
such release of Insurance Proceeds or Condemnation Proceeds:
(i) the
Servicer[s] shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect thereto;
(ii) the
Servicer[s] shall take all steps necessary to preserve the priority of the
lien
of the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens; and
(iii) pending
repairs or restoration, the Servicer[s] shall place the Insurance Proceeds
or
Condemnation Proceeds in the Escrow Account.
(o) Title,
Management and Disposition of REO Property.
[In the
event that title to the Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Indenture Trustee or its designee, or in the event the Indenture
Trustee or its designee is not authorized or permitted to hold title to real
property in the state where the REO Property is located, or would be adversely
affected under the “doing business” or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such Person
or Persons as shall be consistent with an Opinion of Counsel obtained by the
[related] Servicer from an attorney duly licensed to practice law in the state
where the REO Property is located. Any Person or Persons holding such title
other than the Issuer shall acknowledge in writing that such title is being
held
as nominee for the benefit of the Issuer.
64
The
Servicer[s] shall notify the Master Servicer in accordance with the Xxxxxx
Mae
Guides of each acquisition of REO Property upon such acquisition (and, in any
event, shall provide notice of the consummation of any foreclosure sale within
three (3) Business Days from the date the [related] Servicer receives notice
of
such consummation), together with a copy of the drive by appraisal or brokers
price opinion of the Mortgaged Property obtained in connection with such
acquisition, and thereafter assume the responsibility for marketing such REO
property in accordance with Accepted Servicing Practices. Thereafter, the
[related] Servicer shall continue to provide certain administrative services
to
the Master Servicer relating to such REO Property as set forth in this Section
4.02(o). No Servicing Fee shall be assessed or otherwise accrue on any REO
Property from and after the date on which it becomes an REO
Property.
The
[related] Servicer shall, either itself or through an agent selected by the
[related] Servicer, and in accordance with the Xxxxxx Xxx Guides manage,
conserve, protect and operate each 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 [related] Servicer shall cause each REO
Property to be inspected promptly upon the acquisition of title thereto and
shall cause each REO Property to be inspected at least monthly thereafter or
more frequently as required by the circumstances. The [related] Servicer shall
make or cause to be made a written report of each such inspection. Such reports
shall be retained in the Mortgage File and copies thereof shall be forwarded
by
the [related] Servicer to the Master Servicer.
The
Servicer[s] shall use [its/their] best efforts to dispose of the REO Property
as
soon as possible and shall sell such REO Property in any event within one year
after title has been taken to such REO Property, unless the [related] Servicer
determines, and gives an appropriate notice to the Master Servicer to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property. If a longer period than one (1) year is permitted under the
foregoing sentence and is necessary to sell any REO Property, the [related]
Servicer shall report monthly to the Master Servicer as to the progress being
made in selling such REO Property. No REO Property shall be marketed for less
than the Appraised Value, without the prior consent of Master Servicer. No
REO
Property shall be sold for less than ninety five percent (95%) of its Appraised
Value, without the prior consent of Indenture Trustee. All requests for
reimbursement of Servicing Advances shall be in accordance with the Xxxxxx
Mae
Guides. The disposition of REO Property shall be carried out by the [related]
Servicer at such price, and upon such terms and conditions, as the [related]
Servicer deems to be in the best interests of the Trust (subject to the above
conditions) only with the prior written consent of the Master Servicer. The
Servicer[s] shall provide monthly reports to the Master Servicer in reference
to
the status of the marketing of the REO Properties.]
65
(p) Compliance
with Safeguarding Customer Information Requirements.
The
Servicer[s] [has/have] implemented and will maintain security measures designed
to meet the objectives of the Interagency Guidelines Establishing Standards
for
Safeguarding Customer Information published in final form on February 1, 2001,
66 Fed. Reg. 8616, and the rules promulgated thereunder, as amended from time
to
time (the “Guidelines”).
(q) Notification
of Maturity Date.
With
respect to each Mortgage Loan, the Servicer[s] shall execute and deliver to
the
Mortgagor any and all necessary notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the maturity date
if
required under applicable law.
(r) Purchase
of Defaulted Mortgage Loans.
[The/Each] Servicer, in its sole discretion, shall have the right to elect
(by
written notice sent to the Indenture Trustee, the Master Servicer and the
Securities Administrator) to purchase for its own account from the Trust Estate
any Mortgage Loan that is (as of the first day of a calendar quarter) 90 days
or
more Delinquent or is an REO Property at a price equal to the Purchase Price;
provided,
however, that (i) such Mortgage Loan is still 90 days or more delinquent or
is
an REO Property as of the date of such purchase and (ii) this purchase option,
if not theretofore exercised, shall terminate on the date prior to the last
day
of the related calendar quarter. This purchase option, if not exercised, shall
not be thereafter reinstated unless the delinquency is cured and the Mortgage
Loan thereafter again becomes 90 days or more delinquent or becomes an REO
Property, in which case the option shall again become exercisable as of the
first day of the related calendar quarter. The principal portion of the funds
in
respect of such purchase of a Mortgage Loan will be considered a Principal
Prepayment and the Purchase Price shall be deposited in the Collection Account.
Upon receipt by the Securities Administrator of the full amount of the Purchase
Price for such Mortgage Loan and notification thereof has been made to the
Indenture Trustee, the Indenture Trustee shall release or cause to be released
and reassign to the [related] Servicer the related Mortgage File for such
Mortgage Loan and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as shall
be necessary to vest in such party or its designee or assignee title to any
such
Mortgage Loan released pursuant hereto, free and clear of all security
interests, liens and other encumbrances created by this Agreement and the
Indenture, which instruments shall be prepared by the [related] Servicer and
the
Indenture Trustee shall have no further responsibility with respect to the
Mortgage File relating to such 90 days Delinquent Mortgage Loan purchased by
the
[related] Servicer.
Section
4.03. Payments
to the Master Servicer.
(a) Remittances.
[On
each Servicer Remittance Date, the Servicer[s] shall remit by wire transfer
of
immediately available funds to the Master Servicer (i) all amounts credited
to
the Custodial Account as of the close of business on the preceding Determination
Date, net of charges against or withdrawals from the Custodial Account pursuant
to Section 4.02(e), plus (ii) all Monthly Advances, if any, which the
Servicer[s] [is/are] obligated to remit pursuant to Section 4.03(c), plus,
(iii)
Compensating Interest Payments, minus
(iv) any
amounts attributable to Monthly Payments collected but due on a Due Date or
Dates subsequent to the preceding Determination Date, which amounts shall be
remitted on the Servicer Remittance Date next succeeding the Collection Period
for such amounts. It is understood that, by operation of Section 4.02(d), the
remittance on the first Servicer Remittance Date with respect to the Mortgage
Loans is to include principal collected after the Cut- off Date through the
preceding Determination Date plus interest, adjusted to the Net Mortgage Rate
collected through such Determination Date exclusive of any portion thereof
allocable to the period prior to the Cut-off Date, with the adjustments
specified in clauses (ii), (iii) and (iv) above.
66
With
respect to any remittance received by the Master Servicer after the Servicer
Remittance Date, the Servicer[s] shall pay to the Master Servicer interest
on
any such late payment at a per annum rate equal to the Prime Rate, adjusted
as
of the date of each change plus two (2) percentage points, but in no event
greater than the maximum amount permitted by applicable law. Such interest
shall
cover the period commencing with the day following the Business Day such payment
was due and ending with the Business Day on which such payment is made to the
Master Servicer, both inclusive. The payment by [the/a] Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver of
any
Event of Default by [the/such] Servicer. On each Servicer Remittance Date,
[the/each] Servicer shall provide a remittance report detailing all amounts
being remitted pursuant to this Section 4.03(a).
All
remittances required to be made to the Master Servicer shall be made to the
following wire account or to such other account as may be specified by the
Master Servicer from time to time:
(b) Statements
to Master Servicer and Securities Administrator.
The
Servicer[s] shall furnish to Master Servicer an individual loan accounting
report, as of the last Business Day of each month, in the
[Servicer's/Servicers’] assigned loan number order to document Mortgage Loan
payment activity on an individual Mortgage Loan basis. With respect to each
month, the corresponding individual loan accounting report shall be received
by
the Master Servicer no later than the [fifth] Business Day of the following
month on a disk or tape or other computer-readable format in such format as
may
be mutually agreed upon by both Master Servicer and Servicer, and no later
than
the [fifth] Business Day of the following month in hard copy, and shall contain
the following:
(i) With
respect to each Monthly 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 penalties or premiums, along
with a detailed report of interest on principal prepayment amounts remitted
in
accordance with Section 4.02(d));
(ii) with
respect to each Monthly Payment, the amount of such remittance allocable to
interest;
67
(iii) the
amount of servicing compensation received by the Servicer[s] during the prior
distribution period;
(iv) the
aggregate Scheduled Principal Balance of the Mortgage Loans;
(v) the
aggregate of any expenses reimbursed to the Servicer[s] during the prior
distribution period pursuant to Section 4.02(e); and
(vi) The
number and aggregate outstanding principal balances of Mortgage Loans (a)
Delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90 days or more and (4)
180
days or more and charged-off; (b) as to which foreclosure has commenced; and
(c)
as to which REO Property has been acquired.
The
Servicer[s] shall provide a monthly remittance report to the Master Servicer
in
a mutually agreeable format. The Servicer[s] shall also provide a default report
containing the information specified in Exhibit F attached hereto with each
such
report.
The
Servicer[s] shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or to
the
Master Servicer and the Securities Administrator pursuant to any applicable
law
with respect to the Mortgage Loans and the transactions contemplated hereby.
In
addition, the Servicer[s] shall provide the Master Servicer and the Securities
Administrator with such information as may be requested by it and required
for
the completion of any tax reporting responsibility of the Securities
Administrator within such reasonable time frame as shall enable the Securities
Administrator to timely file each Schedule Q (or other applicable tax report
or
return) required to be filed by it.
(c) Monthly
Advances by Servicer[s].
Not
later than the close of business on the Business Day preceding each Servicer
Remittance Date, the Servicer[s] shall deposit in the Custodial Account an
amount equal to all payments not previously advanced by the [related] Servicer,
whether or not deferred pursuant to Section 4.03(a), of principal (due after
the
Cut-off Date) and interest not allocable to the period prior to the Cut-off
Date, adjusted to the Net Mortgage Rate, which were due on a Mortgage Loan
and
delinquent at the close of business on the related Determination Date; provided,
however, that the Servicer[s] may use the Amount Held for Future Distribution
(as defined below) then on deposit in the Custodial Account to make such Monthly
Advances. The Servicer[s] shall deposit any portion of the Amount Held for
Future Distribution used to pay Monthly Advances into the Custodial Account
on
any future Servicer Remittance Date to the extent that the funds that are
available in the Custodial Account for remittance to the Master Servicer on
such
Servicer Remittance Date are less than the amount of payments required to be
made to the Master Servicer on such Servicer Remittance Date.
The
“Amount Held for Future Distribution” as to any Servicer Remittance Date shall
be the total of the amounts held in the Custodial Account at the close of
business on the preceding Determination Date which were received after the
Cut-off Date on account of (i) Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds and Principal Prepayments received or made in the month
of
such Servicer Remittance Date, and (ii) payments which represent early receipt
of Monthly Payments of principal and interest due on a date or dates subsequent
to the related Due Date.
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The
[Servicer's/Servicers’] obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or through the Servicer Remittance Date
prior to the date on which the Mortgaged Property liquidates (including
Insurance Proceeds, proceeds from the sale of REO Property or Condemnation
Proceeds) with respect to the Mortgage Loan unless the [related] Servicer deems
such advance to be a Nonrecoverable Advance. In such event, the [related]
Servicer shall deliver to the Master Servicer an Officer's Certificate of
[the/such] Servicer to the effect that an officer of the Servicer has reviewed
the related Mortgage File and has made the reasonable determination that any
additional advances are nonrecoverable.
(d) Liquidation
Reports.
Upon
the foreclosure sale of any Mortgaged Property, the acquisition thereof by
the
Indenture Trustee pursuant to a deed in lieu of foreclosure or the charge off
of
a Mortgage Loan that is 180 days Delinquent, the Servicer[s] shall submit to
the
Indenture Trustee and the Master Servicer a monthly liquidation report with
respect to such Mortgaged Property. The Servicer[s] shall also provide reports
on the status of REO Property containing such information as the Indenture
Trustee may reasonably request.
(e) Credit
Reporting.
For
each Mortgage Loan, in accordance with its current servicing practices, the
Servicer[s] will accurately and fully report its underlying borrower credit
files to each of the following credit repositories or their successors: Equifax
Credit Information Services, Inc., Trans Union, LLC and Experian Information
Solution, Inc., on a monthly basis in a timely manner.
Section
4.04. General
Servicing Procedures.
Transfers
of Mortgaged Property.
[The/Each] Servicer will, to the extent it has actual knowledge of any
conveyance or prospective conveyance by any Mortgagor of the Mortgaged Property
(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 any “due-on-sale” clause to the extent permitted by law; provided,
however, that the [related] Servicer shall not exercise any such rights if
prohibited by law or the terms of the Mortgage Note from doing so or if the
exercise of such rights would impair or threaten to impair any recovery under
the related Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy, if any. If [the/a] Servicer reasonably believes it is unable
under applicable law to enforce such “due-on- sale” clause, [the/such] Servicer
will enter into an assumption agreement with the person to whom the Mortgaged
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. Where an assumption
is allowed pursuant to this Section 4.04(a), the [related] Servicer, with the
prior consent of the Master Servicer, the Indenture Trustee and the primary
mortgage insurer, if any, is authorized to enter into a substitution of
liability agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed pursuant to which the original mortgagor
is released from liability and such Person is substituted as mortgagor and
becomes liable under the related Mortgage Note. Any such substitution of
liability agreement shall be in lieu of an assumption agreement.
69
In
connection with any such assumption or substitution of liability, the
Servicer[s] shall follow the underwriting practices and procedures of the
[related] Servicer. With respect to an assumption or substitution of liability,
the Mortgage Rate borne by the related Mortgage Note, the amount of the Monthly
Payment and the maturity date may not be changed (except pursuant to the terms
of the Mortgage Note). If the credit of the proposed transferee does not meet
such underwriting criteria, the [related] Servicer diligently shall, to the
extent permitted by the Mortgage or the Mortgage Note and by applicable law,
accelerate the maturity of the Mortgage Loan. The [related] Servicer shall
notify the Master Servicer and the Indenture Trustee that any such substitution
of liability or assumption agreement has been completed and shall forward to
the
Custodian the original of any such substitution of liability or assumption
agreement, which document shall be added to the related Mortgage File and shall,
for all purposes, be considered a part of such Mortgage File to the same extent
as all other documents and instruments constituting a part thereof. All fees
collected by the Servicer[s] for entering into an assumption or substitution
of
liability agreement shall belong to [the/such] Servicer.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, [the/a] 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 any assumption which the [related] Servicer
may be restricted by law from preventing, for any reason whatsoever. For
purposes of this Section 4.04(a), 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.
(a) Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the payment in full of any Mortgage Loan, or the receipt by the [related]
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, [the/such] Servicer shall immediately notify the
Master Servicer by a certification of a Servicing Officer, 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 Custodial Account pursuant to Section 4.02(d) have been or will be so
deposited, and the [related] Servicer shall request delivery to it of the
portion of the Mortgage File held by the Custodian in accordance with the
provisions of Section 5.12.
In
the
event [the/a] Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Trust may have under the mortgage instruments,
the [related] Servicer, upon written demand, shall remit within [two (2)]
Business Days to the Trust the then outstanding principal balance of the related
Mortgage Loan by deposit thereof in the Custodial Account. The Servicer[s]
shall
maintain the Servicer Fidelity Bond and the Servicer Errors and Omissions
Insurance Policy insuring the Servicer[s] against any loss it may sustain with
respect to any Mortgage Loan not satisfied in accordance with the procedures
set
forth herein.
70
(b) Servicing
Compensation.
[As
compensation for [its/their] services hereunder, the Servicer[s] shall be
entitled to withdraw from the Custodial Account (to the extent of interest
payments collected on the Mortgage Loans) or to retain from interest payments
collected on the Mortgage Loans, the Servicing Fee, subject to Compensating
Interest Payments. Additional servicing compensation in the form of assumption
fees, as provided in Section 4.04(a), and late payment charges or otherwise
shall be retained by the [related] Servicer to the extent not required to be
deposited in the Custodial Account. No Servicing Fee shall be payable in
connection with partial Monthly Payments. The Servicer[s] shall be required
to
pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided for in this Agreement.]
(c) Annual
Audit Report.
On or
before [February 28th]
of each
year beginning [February 28], [ ],
[the/each] Servicer at its expense shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish to the Seller, the Master Servicer, the Indenture Trustee
and the Depositor in a form acceptable for filing with the Commission as an
exhibit to a Form 10-K a report on the assessment of compliance made by
[the/each] Servicer and delivered pursuant to subsection (d) of this Section
4.04, which report shall be in accordance with Rules 1-02(a)(3) and 2-02(g)
of
Regulation S-X under the Securities Act and the Exchange Act. In addition,
on an
annual basis, Servicer[s] shall provided the Seller, the Master Servicer, the
Indenture Trustee and the Depositor with copies of its audited financial
statements.
(d) Annual
Compliance Certifications.
(i) On
or
before [February 28th]
of each
year beginning [February 28], [ ],
[the/each] Servicer shall deliver to the Seller, the Master Servicer, the
Indenture Trustee and the Depositor a servicer’s certificate stating, as to each
signer thereof, that (i) a review of the activities of the [related] Servicer
during such preceding fiscal year and of performance under this Agreement has
been made under such officers’ supervision, and (ii) to the best of such
officers’ knowledge, based on such review, the [related] Servicer has fulfilled
all its obligations under this Agreement for such year, or, if there has been
a
default in the fulfillment of any such obligation, specifying each such default
known to such officers and the nature and status thereof, including the steps
being taken by the [related] Servicer to remedy such default.
(ii) On
or
before [February 28th]
of each
year beginning [February 28], [ ], the
Servicer shall deliver to the Seller, the Master Servicer, the Indenture Trustee
and the Depositor a report regarding the [each] Servicer’s assessment of
compliance with the Servicing Criteria during the immediately preceding calendar
year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of Regulation AB.
71
(iii) For
so
long as a certificate under the Xxxxxxxx-Xxxxx Act of 2002, as amended is
required to be delivered on behalf of the Trust, a Servicing Officer shall
execute and deliver on or prior to [February 28th]
of each
applicable year, commencing in 2006, or at any other time upon thirty (30)
days
written request, an Officer’s Certificate to the Depositor for the benefit of
the Depositor and its officers, directors and affiliates, certifying as to
the
following matters:
(1) I
have
reviewed the servicer compliance statement of the [related] Servicer provided
in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer pursuant to
the Transfer and Servicing Agreement (the “Transfer and Servicing Agreement”)
[dated as of [ ] by and among
[ ]
(collectively, the “Servicing Information”);
(2) Based
on
my knowledge, the Servicing Information, taken as a whole, does not contain
any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in the light of the circumstances under which
such
statements were made, not misleading as of the end of
200[ ];
(3) Based
on
my knowledge, all of the Servicing Information required to be provided by the
[related] Servicer under the Transfer and Servicing Agreement has been provided
to the Master Servicer;
(4) I
am
responsible for reviewing the activities performed by the [related] Servicer
as
servicer under the Transfer and Servicing Agreement, and based on my knowledge
and the compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment or
the
Attestation Report, the [related] Servicer has fulfilled its obligations under
the Transfer and Servicing Agreement; and
(5) The
Compliance Statement, the Servicing Assessment and the Attestation Report
required to be included in the Annual Report on Form 10-K filed by the Depositor
have been provided to the [Depositor] [Master Servicer]. Any material instances
of noncompliance described in such reports have been disclosed to the Depositor.
Any material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
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(iv) The
Servicer[s] shall indemnify and hold harmless the Issuer, the Depositor and
the
Master Servicer and their respective officers, directors, agents and affiliates
from and against any losses, damages, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments and other costs and expenses arising
out
of or based upon a breach by [the/a] Servicer or any of its officers, directors,
agents or affiliates of its obligations under this Section 4.04(e) for the
negligence, bad faith or willful misconduct of the [related] Servicer in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless any of the foregoing parties, then the
[related] Servicer agrees that it shall contribute to the amount paid or payable
by the indemnified party or parties as a result of the losses, claims, damages
or liabilities of the indemnified party or parties in such proportion as is
appropriate to reflect the relative fault of the indemnified party or parties
on
the one hand and the [related] Servicer on the other in connection with a breach
of [the/such] Servicer’s obligations under this Section 4.04(e) or [the/such]
Servicer’s negligence, bad faith or willful misconduct in connection
therewith.
Section
4.05. Representations,
Warranties and Agreements.
(a) Representations,
Warranties and Agreements of the Servicer[s].
[The/Each] Servicer, as a condition to the consummation of the transactions
contemplated hereby, hereby makes the following representations and warranties
to the Master Servicer, the Depositor, the Seller, the Indenture Trustee and
the
Securities Administrator, as of the Closing Date:
(i) Due
Organization and Authority.
[The/Each] Servicer is a corporation duly organized, validly existing and in
good standing under the laws of the State of [Georgia]
[ ] and has all licenses necessary to carry
out [its/their] business as now being conducted; [the/each] Servicer has the
full power and authority and legal right to execute, deliver and perform, and
to
enter into and consummate all transactions contemplated by this Agreement and
to
conduct its business as presently conducted, has duly authorized the execution,
delivery and performance of this Agreement and any agreements contemplated
hereby, has duly executed and delivered this Agreement and any agreements
contemplated hereby, and this Agreement and any agreements contemplated hereby,
constitutes a legal, valid and binding obligation of the Servicer[s],
enforceable against it in accordance with its terms, and all requisite corporate
action has been taken by the Servicer[s] to make this Agreement and all
agreements contemplated hereby valid and binding upon the Servicer[s] in
accordance with their terms;
(ii) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer[s];
73
(iii) No
Conflicts.
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby, or the fulfillment of or compliance with
the
terms and conditions of this Agreement will conflict with any of the terms,
conditions or provisions of the [Servicer’s/Servicers’] charter or by-laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions of any legal restriction or any agreement or instrument
to which the [related] Servicer is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing,
or
result in the material violation of any law, rule, regulation, order, judgment
or decree to which the [related] Servicer or their properties are
subject;
(iv) Ability
to Perform.
[The/Each] Servicer does not believe, nor does it have any reason or cause
to
believe, that it cannot perform each and every covenant contained in this
Agreement;
(v) No
Litigation Pending.
There
is no litigation, suit, proceeding or investigation pending or, to the best
of
the [Servicer’s/Servicers’] knowledge, threatened, or any order or decree
outstanding, with respect to the Servicer[s] which, either in any one instance
or in the aggregate, is reasonably likely to have a material adverse effect
on
the sale of the Mortgage Loans, the execution, delivery, performance or
enforceability of this Agreement, or which is reasonably likely to have a
material adverse effect on the financial condition of the
Servicer[s];
(vi) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer[s]
of or compliance by the Servicer[s] with this Agreement, or if required, such
approval has been obtained prior to the Closing Date;
(vii) Servicing
Practices.
The
servicing practices used by the Servicer[s] have been legal and in accordance
with applicable laws and regulations and the mortgage loan documents, and in
all
material respects proper and prudent in the mortgage servicing business. Each
Mortgage Loan has been serviced in all material respects with Accepted Servicing
Practices. With respect to escrow deposits and payments that the Servicer[s],
on
behalf of the Trust, is entitled to collect, all such payments are in the
possession of, or under the control of, the Servicer[s], and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All escrow payments have been collected
in
full compliance with state and federal law and the provisions of the related
Mortgage Note and Mortgage. As to any Mortgage Loan that is the subject of
an
escrow, escrow of funds is not prohibited by applicable law and has been
established. No escrow deposits or other charges or payments due under the
Mortgage Note have been capitalized under any Mortgage or the related Mortgage
Note;
(viii) Ability
to Service.
[The/Each] Servicer is equipped with such facilities, procedures and personnel
necessary for the sound servicing of such mortgage loans. [The/Each] Servicer
is
duly qualified, licensed, registered and otherwise authorized under all
applicable federal, state and local laws, and regulations, if applicable, and
is
in good standing to sell mortgage loans to and service mortgage loans for Xxxxxx
Xxx and Xxxxxxx Mac and no event has occurred which would make [the/a] Servicer
unable to comply with eligibility requirements or which would require
notification to either Xxxxxx Mae or Xxxxxxx Mac;
74
(ix) Servicing
Fee.
[The/Each] Servicer acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Servicer[s], for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement; and
(x) No
Commissions to Third Parties.
The
Servicer[s] [has/have] not dealt with any broker or agent or anyone else who
might be entitled to a fee or commission in connection with this transaction
other than the Seller.
(b) Remedies
for Breach of Representations and Warranties of the Servicer[s].
It is
understood and agreed that the representations and warranties set forth in
Sections 4.05(a) shall survive the engagement of the Servicer[s] to perform
the
servicing responsibilities as of the Closing Date hereunder and the delivery
of
the Servicing Files to the Servicer[s] and shall inure to the benefit of the
Master Servicer and the Indenture Trustee. Upon discovery by either the
Servicer[s], the Master Servicer or the Indenture Trustee of a breach of any
of
the foregoing representations and warranties which materially and adversely
affects the ability of [the/a] Servicer to perform its duties and obligations
under this Agreement or otherwise materially and adversely affects the value
of
the Mortgage Loans, the Mortgaged Property or the priority of the security
interest on such Mortgaged Property or the interests of the Master Servicer
or
the Indenture Trustee, the party discovering such breach shall give prompt
written notice to the other parties.
Within
[sixty (60)] days of the earlier of either discovery by or notice to the
[related] Servicer of any breach of a representation or warranty set forth
in
Section 4.05(a) which materially and adversely affects the ability of the
[related] Servicer to perform its duties and obligations under this Agreement
or
otherwise materially and adversely affects the value of the Mortgage Loans,
the
Mortgaged Property or the priority of the security interest on such Mortgaged
Property, the [related] Servicer shall use its best efforts promptly to cure
such breach in all material respects and, if such breach cannot be cured, the
[related] Servicer shall, at the Master Servicer’s option, assign its rights and
obligations under this Agreement (or respecting the affected Mortgage Loans)
to
a successor servicer.
In
addition, the Servicer[s] shall indemnify all other parties to this Agreement
and hold each of them harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
[Servicer’s/Servicers’] representations and warranties contained in
Section 4.05(a).
75
Any
cause
of action against [the/a] Servicer relating to or arising out of the breach
of
any representations and warranties made in Section 4.05(a) shall accrue upon
(i)
discovery of such breach by the [related] Servicer or notice thereof by the
Master Servicer or the Indenture Trustee to the [related] Servicer, (ii) failure
by the [related] Servicer to cure such breach within the applicable cure period,
and (iii) demand upon the [related] Servicer by the Master Servicer or the
Indenture Trustee for compliance with this Agreement.
(c) Additional
Indemnification by the Servicer[s].
The
Servicer[s] shall indemnify the Master Servicer, the Issuer, the Indenture
Trustee, and the Securities Administrator and hold each of them harmless against
any and all claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other costs,
fees
and expenses (collectively, the “Liabilities”) that the indemnified party may
sustain in any way related to the failure of the [related] Servicer to perform
its duties and service the Mortgage Loans in accordance with the terms of this
Agreement. The [related] Servicer shall immediately notify the Master Servicer,
the Indenture Trustee and the Securities Administrator if a claim is made by
a
third party with respect to this Agreement or the Mortgage Loans that may result
in such Liabilities, and the [related] Servicer shall assume (with the prior
written consent of the indemnified party) the defense of any such claim and
pay
all expenses in connection therewith, including counsel fees, promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or
any indemnified party in respect of such claim and follow any written
instructions received from such indemnified party in connection with such claim.
The Servicer[s] shall be reimbursed promptly from the Custodial Account for
all
amounts advanced by it pursuant to the preceding sentence except when the claim
is in any way related to the [Servicer’s/Servicers’] indemnification pursuant to
this Section 4.05(c), the failure of the [related] Servicer to service and
administer the Mortgage Loans in accordance with the terms of this Agreement,
the breach of a representation or warranty set forth in Section 4.05(a) or
the
gross negligence, bad faith or willful misconduct of the [related]
Servicer.
Section
4.06. The
Servicer.
(a) Merger
or Consolidation of [the/a] Servicer.
[The/Each] Servicer shall keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and shall obtain and preserve its qualification
to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any
Person into which the [related] Servicer may be merged or consolidated, or
any
corporation resulting from any merger, conversion or consolidation to which
the
[related] Servicer shall be a party, or any Person succeeding to the business
of
the [related] Servicer whether or not related to loan servicing, shall be the
successor of the Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that the successor
or
surviving Person, or the parent company of such successor or surviving Person,
shall be an institution (i) having a generally accepted accounting principals
(“GAAP”) net worth not less than $25,000,000, (ii) which is a HUD-approved
mortgagee whose primary business is in origination and servicing of residential
mortgage loans, and (iii) who is a Xxxxxx Xxx or Xxxxxxx Mac approved
seller/servicer in good standing; provided, however, that if such successor
or
surviving Person does not have a GAAP net worth of at least $25,000,000, the
parent company of such successor or surviving Person shall act as guarantor
with
respect to such successor's obligations under this Agreement.
76
(b) Limitation
on Liability of the Servicer[s] and Others.
Neither
the Servicer[s] nor any of the directors, officers, employees or agents of
the
Servicer[s] shall be under any liability to the Master Servicer, the Depositor,
the Issuer, the Indenture Trustee or the Securities Administrator for any action
taken or for refraining from the taking of any action in good faith pursuant
to
this Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Servicer[s] or any such person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of any
breach of the terms and conditions of this Agreement (except to the extent
otherwise covered by Section 4.05(c)). The Servicer[s] and any director,
officer, employee or agent of the Servicer[s] may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer[s] shall not be under
any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or liability;
provided,
however,
that
the [related] Servicer may undertake any such action which it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties hereto. In such event, the [related] Servicer shall be entitled to
reimbursement from the Custodial Account for the reasonable legal expenses
and
costs of such action.
The
Servicer[s] and any director, officer, employee or agent of the Servicer[s]
shall be indemnified and held harmless by the Trust against any and all
Liabilities incurred in connection with any legal action relating to this
Agreement or the Notes, except to the extent such Liabilities resulted from
or
arose out of the negligence, bad faith or willful misfeasance in the performance
of the [Servicer’s/Servicers’] (or any director, officer, employee or agent of
[the/a] Servicer) duties hereunder or by reason of its reckless disregard of
its
obligations and duties hereunder.
(c) Limitation
on Resignation and Assignment by the Servicer[s].
The
Servicer[s] shall not assign this Agreement or resign from the obligations
and
duties hereby imposed on it except by mutual consent of the Servicer[s] and
the
Master Servicer or upon the determination that its duties hereunder are no
longer permissible under applicable law and such incapacity cannot be cured
by
the [related] Servicer. Any such determination permitting the resignation of
the
[related] Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Seller, the Master Servicer and the Indenture Trustee, which
Opinion of Counsel shall be in form and substance acceptable to each of them.
No
such resignation shall become effective until a successor shall have assumed
the
Servicer's responsibilities and obligations hereunder in the manner provided
in
Section 4.08.
77
With
respect to the retention of the [related] Servicer to service the Mortgage
Loans
hereunder, the [related] Servicer acknowledges that the Seller, Master Servicer
and Indenture Trustee have acted in reliance upon the [related] Servicer's
independent status, the adequacy of its servicing facilities, plan, personnel,
records and procedures, its integrity, reputation and financial standing and
the
continuance thereof. Without in any way limiting the generality of this Section,
the Servicer[s] shall not either assign this Agreement or the servicing
hereunder or delegate [its/their] rights or duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets, other than in the normal course of business, without the
prior written approval of the Seller, the Master Servicer and the Indenture
Trustee, which consent shall not be unreasonably withheld; provided
that the
[related] Servicer may assign the Agreement and the servicing hereunder without
the consent of the Seller, the Master Servicer and the Indenture Trustee to
an
affiliate of the Servicer to which all servicing of the [related] Servicer
is
assigned so long as (i) such affiliate is a Xxxxxx Xxx and Xxxxxxx Mac approved
servicer and (ii) if it is intended that such affiliate be spun off to the
shareholders of the [related] Servicer, such affiliate has a GAAP net worth
of
at least $25,000,000 and (iii) such affiliate shall deliver to the Seller,
the
Master Servicer and the Indenture Trustee a certification pursuant to which
such
affiliate shall agree to be bound by the terms and conditions of this Agreement
and shall certify that such affiliate is a Xxxxxx Mae and Xxxxxxx Mac approved
servicer in good standing.
Without
in any way limiting the generality of this Section 4.06(c), in the event that
[the/a] Servicer shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof without (i)
satisfying the requirements set forth herein or (ii) the prior written consent
of the then such parties shall have the right to terminate this Agreement,
without any payment of any penalty or damages and without any liability
whatsoever to the [related] Servicer (other than with respect to accrued but
unpaid Servicing Fees and Servicing Advances remaining unpaid) or any third
party. Nothing in this Section shall restrict the right of the [related]
Servicer to cause the Mortgage Loans to be subserviced as provided in this
Agreement.
(d) Successor
Servicers.
The
provisions of Sections 4.06(a), (b) and (c) shall apply to any successor to
[the/a] Servicer hereunder.
78
Section
4.07. Termination
for Cause.
Any
of
the following occurrences shall constitute an event of default (each, a
“Servicer Event of Default”) on the part of the Servicer[s]:
(i) [any
failure by the Servicer[s] to remit to the Master Servicer any payment required
to be made under the terms of this Agreement which continues unremedied for
a
period of one (1) Business Day; or
(ii) failure
by the Servicer[s] 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 (other than Sections 4.04(d) and 4.04(e)) which continues unremedied
for a period of thirty (30) days after the date on which written notice of
such
failure, requiring the same to be remedied, shall have been given to the
Servicer[s] by the Master Servicer and the remedial period provided for herein
has expired; or
(iii) the
[related] Servicer ceases to be qualified to transact business in any
jurisdiction where it is currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Servicer's ability to
perform its obligations hereunder; 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,
readjustment of debt, including bankruptcy, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its
affairs, shall have been entered against the Servicer[s] and such decree or
order shall have remained in force undischarged or unstayed for a period of
[sixty (60)] days; or
(v) the
Servicer[s] shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the [related] Servicer
or
of or relating to all or substantially all of its property; or
(vi) the
Servicer[s] shall admit in writing its inability to pay its debts 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,
voluntarily suspend payment of its obligations; or
(vii) the
[related] Servicer ceases to be approved by either Xxxxxx Mae or Xxxxxxx Mac
as
a mortgage loan seller or servicer for more than [thirty (30)] days;
or
(viii) the
[related] Servicer attempts to assign its right to servicing compensation
hereunder or the Servicer attempts, without the consent of the Master Servicer,
to sell or otherwise dispose of all or substantially all of its property or
assets or to assign this Agreement or the servicing responsibilities hereunder
or to delegate its duties hereunder or any portion thereof; or
(ix) the
[related] Servicer fails to meet the eligibility criteria set forth in the
last
sentence of Section 4.06(a); or
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(x) failure
by the Servicer[s] to duly perform, within the required time period, its
obligations under Sections 4.04(d) or 4.04(e) which failure continues unremedied
for a period of [fifteen (15)] days after the date on which written notice
of
such failure, requiring the same to be remedied, shall have been given to the
Servicer[s] by the Master Servicer.]
Then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Master Servicer, by notice in writing to the [related] Servicer,
in addition to whatever rights the Master Servicer may have under Sections
3.03
and 4.05(c) and at law or equity or to damages, including injunctive relief
and
specific performance, may, and shall, if so directed by the Majority
Noteholders, terminate all the rights and obligations of the [related] Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the [related] Servicer for the same. On or after the
receipt by the [related] Servicer of such written notice, all authority and
power of the [related] Servicer under this Agreement, whether with respect
to
the Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 4.08. Upon written request from the Master
Servicer, the [related] Servicer shall prepare, execute and deliver, any and
all
documents and other instruments, place in such successor's possession all
Mortgage Files, and 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, at the [related] Servicer's sole expense.
The
[related] Servicer agrees to cooperate with the Master Servicer and such
successor in effecting the termination of the [related] Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the [related] Servicer to the Custodial Account
or Escrow Account or thereafter received with respect to the Mortgage Loans
or
any REO Property.
By
a
written notice, the Master Servicer may waive any default by the Servicer in
the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so
waived.
Section
4.08. Successor
to Servicer[s].
Prior
to termination of the [related] Servicer's responsibilities and duties under
this Agreement pursuant to Sections 4.06(c), 4.07 and 5.10, the Master Servicer
shall (i) succeed to and assume all of the [related] Servicer's
responsibilities, rights, duties and obligations under this Agreement, or (ii)
appoint a successor having the characteristics set forth in Section 4.06(a)
hereof acceptable to the Rating Agencies, as evidenced by a letter from each
Rating Agency to the effect that such an appointment will not result in a
qualification, withdrawal or downgrade of the then current rating of any of
the
Notes, and which shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the [related] Servicer under this
Agreement prior to the termination of the [related] Servicer's responsibilities,
duties and liabilities under this Agreement. In connection with such appointment
and assumption, the Master Servicer may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as the Master
Servicer and such successor shall agree. In the event that the [related]
Servicer's duties, responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned Sections, the [related] Servicer
shall discharge such duties and responsibilities during the period from the
date
it acquires knowledge of such termination until the effective date thereof
with
the same degree of diligence and prudence which it is obligated to exercise
under this Agreement, and shall take no action whatsoever that might impair
or
prejudice the rights or financial condition of its successor. The resignation
or
removal of the [related] Servicer pursuant to the aforementioned Sections shall
not become effective until a successor shall be appointed pursuant to this
Section and shall in no event relieve the [related] Servicer of the
representations and warranties made pursuant to Section 4.05(a) and the remedies
available to the Master Servicer and the Indenture Trustee under Sections
4.05(b) and 4.05(c), it being understood and agreed that the provisions of
such
Sections 4.05(a), 4.05(b) and 4.05(c) shall be applicable to the [related]
Servicer notwithstanding any such resignation or termination of the [related]
Servicer, or the termination of this Agreement.
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Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the [related] Servicer and to the Master Servicer an instrument accepting such
appointment, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
[related] Servicer, with like effect as if originally named as a party to this
Agreement. Any termination or resignation of the [related] Servicer or this
Agreement pursuant to Section 4.06(c), 4.07 or 5.10 shall not affect any claims
that the Master Servicer may have against the Servicer arising prior to any
such
termination or resignation.
The
[related] Servicer shall promptly deliver to the successor the funds in the
Custodial Account and the Escrow Account and the Mortgage Files and related
documents and statements held by it hereunder and the [related] Servicer shall
account for all funds. The [related] Servicer shall execute and deliver such
instruments and do such other things all as may reasonably be required to more
fully and definitely vest and confirm in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the [related] Servicer.
Within [ten (10)] Business Days of the execution and delivery of such
instruments, the successor shall reimburse the [related] Servicer for
unrecovered Servicing Advances which the successor retains hereunder and which
would otherwise have been recovered by the [related] Servicer pursuant to this
Agreement but for the appointment of the successor servicer.
Upon
a
successor's acceptance of appointment as such, the [related] Servicer shall
notify by mail the Indenture Trustee, the Master Servicer, the Securities
Administrator, the Seller and the Depositor of such appointment.
81
Section
4.09. [Subservicers
and Subservicing Agreements; Subcontractors.
(a) The
Mortgage Loans may be subserviced by a Subservicer on behalf of the [related]
Servicer provided
that the
Subservicer is an entity that engages in the business of servicing loans, and
in
either case shall be authorized to transact business, and licensed to service
mortgage loans, in the state or states where 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
related subservicing Agreement, and in either case shall be a Xxxxxxx Mac or
Xxxxxx Mae approved mortgage servicer in good standing, and no event has
occurred, including but not limited to a change in insurance coverage, which
would make it unable to comply with the eligibility requirements for lenders
imposed by Xxxxxx Xxx or for seller/servicers imposed by Xxxxxx Mae or Xxxxxxx
Mac, or which would require notification to Xxxxxx Mae or Xxxxxxx Mac. In
addition, each Subservicer will obtain and preserve its qualifications to do
business as a foreign corporation and its licenses to service mortgage loans,
in
each jurisdiction in which such qualifications and/or licenses are or shall
be
necessary to protect the validity and enforceability of this Agreement, or
any
of the Mortgage Loans and to perform or cause to be performed its duties under
the related Subservicing Agreement. The [related] Servicer may perform any
of
its servicing responsibilities hereunder or may cause the Subservicer to perform
any such servicing responsibilities on its behalf, but the use by the [related]
Servicer of the Subservicer shall not release the [related] Servicer from any
of
its obligations hereunder and the [related] Servicer shall remain responsible
hereunder for all acts and omissions of the Subservicer as fully as if such
acts
and omissions were those of the [related] Servicer. The [related] Servicer
shall
pay all fees and expenses of the Subservicer from its own funds, and the
Subservicer's fee shall not exceed the Servicing Fee. The [related] Servicer
shall notify the Master Servicer promptly in writing upon the appointment of
any
Subservicer.
(b) At
the
cost and expense of the [related] Servicer, without any right of reimbursement
from the Custodial Account, the [related] Servicer shall be entitled to
terminate the rights and responsibilities of the subservicer and arrange for
any
servicing responsibilities to be performed by a successor Subservicer meeting
the requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the [related] Servicer,
at the Servicer’s option, from electing to service the Mortgage Loans itself. In
the event that the [related] Servicer’s responsibilities and duties under this
Agreement are terminated and if requested to do so by the Master Servicer,
the
[related] Servicer shall at its own cost and expense terminate the rights and
responsibilities of the Subservicer effective as of the date of termination
of
the [related] Servicer. The [related] Servicer shall pay all fees, expenses
or
penalties necessary in order to terminate the rights and responsibilities of
the
subservicer from the [related] Servicer’s own funds without reimbursement from
the Trust Estate.
(c) 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 [related] Servicer alone and the Master Servicer and the
Indenture Trustee shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to any Subservicer,
except that the Indenture Trustee shall have such claims or rights that arise
as
a result of any funds held by a Subservicer in trust for or on behalf of the
Issuer. Notwithstanding the execution of any subservicing agreement, the
[related] Servicer shall not be relieved of any liability hereunder and shall
remain obligated and liable for the servicing and administration of the Mortgage
Loans.
82
(d) Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving the subservicer shall be deemed to be between the
Subservicer and [related] Servicer alone, and none of the Master Servicer,
the
Indenture Trustee, the Depositor or the Issuer shall have no obligations, duties
or liabilities with respect to the subservicer including no obligation, duty
or
liability of such parties to pay the Subservicer's fees and expenses. For
purposes of distributions and advances by the Servicer pursuant to this
Agreement, the [related] Servicer shall be deemed to have received a payment
on
a Mortgage Loan when the Subservicer has received such payment.
(e) As
a
condition to the utilization of any Subservicer determined to be “participating
in the servicing function” within the meaning of Item 1122, the [related]
Servicer shall obtain from any such Subservicer used by the Servicer for the
benefit of the Depositor such Subservicer’s written agreement (in form and
substance satisfactory to the Depositor) to comply with the provisions of
Sections 4.04(c) and (d) of this Agreement to the same extent as if such
Subservicer were the [related] Servicer.
(f) As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122, the
[related] Servicer shall obtain from any such Subcontractor used by the Servicer
(or by any Subservicer) for the benefit of the Depositor such Subcontractor’s
written agreement (in form and substance satisfactory to the Depositor) to
comply with the provisions of Sections 4.04(c) and (d) of this Agreement to
the
same extent as if such Subcontractor were the [related] Servicer.]
Section
4.10. Superior
Liens.
(a) The
Servicer[s] shall file (or cause to be filed) a request for notice of any action
by a superior lienholder under a Superior Lien for the protection of the
Indenture Trustee’s interest, where permitted by local law and whenever
applicable state law does not require that a junior lienholder be named as
a
party defendant in foreclosure proceedings in order to foreclosure such junior
lienholder’s equity of redemption.
(b)
If
[the/a] Servicer is notified that any superior lienholder has accelerated or
intends to accelerate the obligations secured by the Superior Lien, or has
declared or intends to declare a default under the mortgage or the promissory
note secured thereby, or has filed or intends to file an election to have the
Mortgaged Property sold or foreclosed, the [related] Servicer shall take, on
behalf of the Trust, whatever actions are necessary to protect the interests
of
the Trust in accordance with Accepted Servicing Practices. The [related]
Servicer shall not make such a Servicing Advance except to the extent that
it
determines in its reasonable good faith judgment that such advance would be
recoverable from Liquidation Proceeds on the related Mortgage Loan. The Servicer
shall thereafter take such action as is necessary to recover the amount so
advanced.
83
(c) The
Servicer[s] may, in accordance with Accepted Servicing Practices, consent to
the
refinancing of any Superior Lien on a Mortgaged Property.
ARTICLE
V
ADMINISTRATION
AND MASTER SERVICING OF MORTGAGE LOANS
BY
THE
MASTER SERVICER AND THE SECURITIES ADMINISTRATOR
Section
5.01. Duties
of the Master Servicer; Representations and Warranties.
(a) For
and
on behalf of the Issuer, the Indenture Trustee and the Noteholders, the Master
Servicer shall master service the Mortgage Loans from and after the Closing
Date
in accordance with the provisions of this Article V. The Master Servicer hereby
represents and warrants to the Depositor, the Issuer, the Indenture Trustee,
the
Securities Administrator and the Servicer[s], as of the Closing Date,
that:
(i) it
is
validly existing and in good standing as a federally chartered national banking
association and as Master Servicer has full power and authority to transact
any
and all business contemplated by this Agreement and to execute, deliver and
comply with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all necessary
corporate action on the part of the Master Servicer. The Master Servicer is
duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Master Servicer
or
the validity or enforceability of this Agreement;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A) violate
the Master Servicer’s charter or bylaws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C) constitute
a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Master Servicer is a party or by
which it is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master Servicer’s
ability to perform its obligations under this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
84
(iv) the
Master Servicer is not in default with respect to any order or decree of any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is the
servicing of residential mortgage loans, is a Xxxxxx Mae- or Xxxxxxx
Mac-approved seller/servicer of residential mortgage loans for Xxxxxx Mae,
Xxxxxxx Mac and HUD;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer;
(x) the
Master Servicer has obtained a Master Servicer Errors and Omissions Insurance
Policy and a Master Servicer Fidelity Bond in accordance with Section 5.02
each
of which is in full force and effect, and each of which provides at least such
coverage as is required hereunder; and
(xi) the
information about the Master Servicer under the heading “The Master Servicer” in
the Offering Documents relating to the Master Servicer does not include an
untrue statement of a material fact and does not omit to state a material fact,
with respect to the statements made, necessary in order to make the statements
in light of the circumstances under which they were made not
misleading.
85
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 5.01 shall survive the execution and delivery of this Agreement. The
Master Servicer shall indemnify the Seller, the Depositor, the Issuer, the
Indenture Trustee, the Owner Trustee, the Securities Administrator and the
Servicer[s] and hold them harmless against any loss, damages, penalties, fines,
forfeitures, legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach of the Master Servicer’s
representations and warranties contained in this Section 5.01. It is understood
and agreed that the enforcement of the obligation of the Master Servicer set
forth in this Section to indemnify the foregoing parties as provided in this
Section constitutes the sole remedy (other than as set forth in Section 8.01)
of
such parties respecting a breach of the foregoing representations and
warranties. Such indemnification shall survive any termination of the Master
Servicer as Master Servicer hereunder, and any termination of this
Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by the Seller, the Depositor, the Issuer, the Indenture
Trustee, the Securities Administrator or the Servicer[s] or notice thereof
by
any one of such parties to the other parties. Notwithstanding anything in this
Agreement to the contrary, the Master Servicer shall not be liable for special,
indirect or consequential losses or damages of any kind whatsoever (including,
but not limited to, lost profits).
Section
5.02. Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions Insurance
Policy.
(a) The
Master Servicer, at its expense, shall maintain in effect a Master Servicer
Fidelity Bond and a Master Servicer Errors and Omissions Insurance Policy,
affording coverage with respect to all directors, officers, employees and other
Persons acting on such Master Servicer’s behalf, and covering errors and
omissions in the performance of the Master Servicer’s obligations hereunder. The
Master Servicer Errors and Omissions Insurance Policy and the Master Servicer
Fidelity Bond shall be in such form and amount that would be consistent with
coverage customarily maintained by master servicers of mortgage loans similar
to
the Mortgage Loans and shall by its terms not be cancelable without thirty
days’
prior written notice to the Indenture Trustee. The Master Servicer shall provide
the Depositor and the Indenture Trustee, upon request, with a copy of such
policy and fidelity bond. The Master Servicer shall (i) require the
Servicer[s] to maintain a Servicer Errors and Omissions Insurance Policy and
a
Servicer Fidelity Bond in accordance with the provisions of Section 4.02(l)
of
this Agreement, (ii) cause the Servicer[s] to provide to the Master Servicer
certificates evidencing that such policy and bond is in effect and to furnish
to
the Master Servicer any notice of cancellation, non-renewal or modification
of
the policy or bond received by it, as and to the extent provided in Section
4.02(l) of the Agreement, and (iii) furnish copies of such policies and of
the
certificates and notices referred to in clause (ii) to the Indenture Trustee
upon request.
(b) The
Master Servicer shall promptly report to the Indenture Trustee and the
Securities Administrator any material changes that may occur in the Master
Servicer Fidelity Bond or the Master Servicer Errors and Omissions Insurance
Policy and shall furnish either such party, on request, certificates evidencing
that such bond and insurance policy are in full force and effect. The Master
Servicer shall promptly report to the Indenture Trustee and the Securities
Administrator all cases of embezzlement or fraud, if such events involve funds
relating to the Mortgage Loans. The total losses, regardless of whether claims
are filed with the applicable insurer or surety, shall be disclosed in such
reports together with the amount of such losses covered by insurance. If a
bond
or insurance claim report is filed with any of such bonding companies or
insurers, the Master Servicer shall promptly furnish a copy of such report
to
the Indenture Trustee and the Securities Administrator. Any amounts relating
to
the Mortgage Loans collected by the Master Servicer under any such bond or
policy shall be promptly remitted by the Master Servicer to the Securities
Administrator for deposit into the Collection Account. Any amounts relating
to
the Mortgage Loans collected by the Servicer[s] under any such bond or policy
shall be remitted to the Master Servicer.
86
Section
5.03. Master
Servicer’s Financial Statements and Related Information.
For
each year this Agreement is in effect, the Master Servicer shall deliver to
the
Securities Administrator, the Indenture Trustee, each Rating Agency and the
Depositor a copy of its annual unaudited financial statements on or prior to
[ ] of each year, beginning [ ]. Such
financial statements shall include a balance sheet, income statement, statement
of retained earnings, statement of additional paid-in capital, statement of
changes in financial position and all related notes and schedules and shall
be
in comparative form, certified by a nationally recognized firm of Independent
Accountants to the effect that such statements were examined and prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with that of the preceding year.
Section
5.04. Power
to Act; Procedures.
(a) The
Master Servicer shall master service the Mortgage Loans, provided
that the
Master Servicer shall not take, or knowingly permit the Servicer[s] to take,
any
action that is inconsistent with or prejudices the interests of the Issuer,
the
Indenture Trustee or the Noteholders in any Mortgage Loan or the rights and
interests of the Depositor, the Issuer, the Indenture Trustee and the
Noteholders under this Agreement and the Indenture. The Master Servicer shall
represent and protect the interests of the Issuer, the Indenture Trustee and
the
Noteholders in the same manner as it protects its own interests in mortgage
loans in its own portfolio in any claim, proceeding or litigation regarding
a
Mortgage Loan. Without limiting the generality of the foregoing, the Master
Servicer in its own name, and the Servicer[s], to the extent such authority
is
delegated to such Servicer[s] under this Agreement, is hereby authorized and
empowered by the Indenture Trustee when the Master Servicer or such Servicer,
as
the case may be, believes it appropriate in its best judgment and in accordance
with Accepted Servicing Practices, to execute and deliver, on behalf of itself
and the Noteholders, the Securities Administrator, the Indenture Trustee or
any
of them, any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge and all other comparable instruments, with respect
to the Mortgage Loans and with respect to the Mortgaged Properties. The
Indenture Trustee shall furnish the Master Servicer, upon request, with any
powers of attorney (on the standard form used by the Indenture Trustee)
empowering the Master Servicer or the Servicer[s] to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property,
and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with this Agreement, and the
Indenture Trustee shall execute and deliver such other documents as the Master
Servicer may request, necessary or appropriate to enable the Master Servicer
to
master service the Mortgage Loans and carry out its duties hereunder, and to
allow the Servicer[s] to service the Mortgage Loans in each case in accordance
with Accepted Servicing Practices (and the Indenture Trustee or the Securities
Administrator shall have no liability for misuse of any such powers of attorney
by the Master Servicer or the Servicer[s]). If the Master Servicer or the
Indenture Trustee has been advised that it is likely that the laws of the state
in which action is to be taken prohibit such action if taken in the name of
the
Indenture Trustee or that the Indenture Trustee would be adversely affected
under the “doing business” or tax laws of such state if such action is taken in
its name, then upon request of the Indenture Trustee, the Master Servicer shall
join with the Indenture Trustee in the appointment of a co-trustee pursuant
to
Section [6.10] of the Indenture. In no event shall the Master Servicer, without
the Indenture Trustee’s written consent: (i) initiate any action, suit or
proceeding solely under the Indenture Trustee’s name without indicating the
Master Servicer’s representative capacity or (ii) take any action with the
intent to cause, and which actually does cause, the Indenture Trustee to be
registered to do business in any state. The Master Servicer shall indemnify
the
Indenture Trustee for any and all costs, liabilities and expenses incurred
by
the Indenture Trustee in connection with the negligent or willful misuse of
such
powers of attorney by the Master Servicer. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall
not,
except in those instances where it is taking action in the name of the Indenture
Trustee, be deemed to be the agent of the Indenture Trustee.
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(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall employ
procedures and exercise the same care that it customarily employs and exercises
in master servicing and administering loans for its own account, giving due
consideration to Accepted Servicing Practices where such practices do not
conflict with this Agreement.
Section
5.05. Enforcement
of [Servicer’s/Servicers’] and Master Servicer’s Obligations.
(a) The
Master Servicer shall not be required to (i) take any action with respect to
the
servicing of any Mortgage Loan that the Servicer is not required to take under
this Agreement and (ii) cause the Servicer[s] to take any action or refrain
from
taking any action if this Agreement does not require the Servicer[s] to take
such action or refrain from taking such action.
(b) The
Master Servicer, for the benefit of the Issuer, the Indenture Trustee and the
Noteholders, shall enforce the obligations of the Servicer[s] hereunder, and
shall, in the event that [the/a] Servicer fails to perform its obligations
in
accordance herewith, terminate the rights and obligations of the [related]
Servicer hereunder and either act as servicer of the related Mortgage Loans
or
cause other parties hereto to either assume the obligations of the [related]
Servicer under this Agreement (or agree to execute and deliver a successor
servicing or subservicing agreement with a successor servicer). Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of servicing or subservicing rights and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, and shall
be reimbursed therefor initially (i) from a general recovery resulting from
such
enforcement only to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans, (ii) from a specific recovery
of
costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed, and then, (iii) to the extent that such amounts are
insufficient to reimburse the Master Servicer for the costs of such enforcement,
from the Collection Account.
88
Section
5.06. Collection
Account.
(a) On
the
Closing Date, the Master Servicer shall open and shall thereafter maintain
a
segregated account held in trust in the name of the Indenture Trustee (the
“Collection Account”), entitled “Collection Account, [ ], as
Indenture Trustee, in trust for Holders of the TBW
Mortgage Trust [ ], Mortgage Backed Notes.” The Collection
Account shall relate solely to the Notes issued by the Issuer, and funds
deposited in the Collection Account shall not be commingled with any other
monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Securities Administrator shall
establish a new Collection Account that is an Eligible Account within [ten
(10)]
days and transfer all funds and investment property on deposit in such existing
Collection Account into such new Collection Account.
(c) The
Master Servicer shall give to the Securities Administrator and the Indenture
Trustee prior written notice of the name and address of the depository
institution at which the Collection Account is maintained and the account number
of such Collection Account. The Master Servicer shall take such actions as
are
necessary to cause the depository institution holding the Collection Account
to
hold such account in the name of the Indenture Trustee. On each Payment Date,
the entire amount on deposit in the Collection Account relating to the Mortgage
Loans (subject to permitted withdrawals set forth in Section 5.07), other than
amounts not included in Interest Funds or Principal Funds to be paid to
Noteholders for such Payment Date, shall be applied to make the requested
payment of principal and/or interest on each Class of Notes.
(d) [The
Master Servicer shall deposit or cause to be deposited in the Collection Account
on the earlier of the applicable Payment Date and one Business Day following
receipt thereof, the following amounts received or payments made by the Master
Servicer (other than in respect of principal of and interest on the Mortgage
Loans due on or before the
Cut-off Date):
(i) all
remittances from the Custodial Account to the Master Servicer pursuant to
Section 4.03;
89
(ii) all
Monthly Advances made by the Servicer[s] or the Master Servicer pursuant to
Section 6.04 hereof and any payment in respect of Prepayment Interest Shortfalls
paid by the Master Servicer pursuant to Section 5.16 hereof; and
(iii) the
Purchase Price of any Mortgage Loan repurchased by the Depositor or the Seller
during the related Prepayment Period or any other Person and any Substitution
Amount related to any Qualifying Substitute Mortgage Loan.
(e) Funds
in
the Collection Account may be invested by the Master Servicer in Eligible
Investments selected by and at the written direction of the Master Servicer,
which shall mature not later than one Business Day prior to the next Payment
Date (or on the Payment Date with respect to any Eligible Investment of the
Master Servicer or any other fund managed or advised by it or any Affiliate)
and
any such Eligible Investment shall not be sold or disposed of prior to its
maturity. All such Eligible Investments shall be made in the name of the Master
Servicer in trust for the benefit of the Indenture Trustee and the Noteholders.
All income and gain net of the Indenture Trustee Fee, the Owner Trustee Fee,
the
Custodian Fee and any losses realized from any such investment of funds on
deposit in the Collection Account shall be for the benefit of the Master
Servicer and shall be subject to its withdrawal or order from time to time,
subject to Section 5.07 and shall not be part of the Trust Estate. The amount
of
any losses incurred in respect of any such investments shall be deposited in
such Collection Account by the Master Servicer out of its own funds, without
any
right of reimbursement therefor, immediately as realized. The foregoing
requirements for deposit in the Collection Account are exclusive, it being
understood and agreed that, without limiting the generality of the foregoing,
payments of interest on funds in the Collection Account and payments in the
nature of late payment charges, assumption fees and other incidental fees and
charges relating to the Mortgage Loans need not be deposited by the Master
Servicer in the Collection Account and may be retained by the Master Servicer
or
the Servicer[s], as applicable, as additional servicing compensation. If the
Master Servicer deposits in the Collection Account any amount not required
to be
deposited therein, it may at any time withdraw such amount from such Collection
Account.]
Section
5.07. Application
of Funds in the Collection Account.
The
Master Servicer shall withdraw funds from the Collection Account for payments
to
the Note Payment Account pursuant to Section 6.01. In addition, the Master
Servicer may prior to making the payment pursuant to Section 6.01 from time
to
time make withdrawals from the Collection Account for the following
purposes:
(i) [to
pay
to the Indenture Trustee and the Owner Trustee, the Indenture Trustee Fee and
the Owner Trustee Fee, respectively, and to pay to the Custodian its fees,
in
each case on the Payment Date each year in the month in which such Indenture
Trustee Fee and Owner Trustee Fee, and the fees of the Custodian, as applicable,
are due and payable pursuant to the terms of the respective fee letter
agreements with the Indenture Trustee, the Owner Trustee and the
Custodian;
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(ii) to
reimburse the Master Servicer or the Servicer[s], as applicable, for any
previously unreimbursed Monthly Advances or Servicing Advances made by any
such
party, such right to reimbursement pursuant to this subclause (ii) being limited
to amounts received on or in respect of a particular Mortgage Loan (including,
for this purpose, Liquidation Proceeds, Condemnation Proceeds and amounts
representing Insurance Proceeds with respect to the property subject to the
related Mortgage) which represent late recoveries (net of the applicable
Servicing Fee) of payments of principal or interest respecting which any such
Monthly Advance was made, it being understood, in the case of any such
reimbursement, that the Master Servicer’s or [related] Servicer’s right thereto
shall be prior to the rights of the Noteholders;
(iii) to
reimburse the Master Servicer or the Servicer[s] following a final liquidation
of a Mortgage Loan for any previously unreimbursed Monthly Advances made by
any
such party (A) that such party determines in good faith will not be recoverable
from amounts representing late recoveries of payments of principal or interest
respecting the particular Mortgage Loan as to which such Monthly Advance was
made or from Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds
with respect to such Mortgage Loan and/or (B) to the extent that such
unreimbursed Monthly Advances exceed the related Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds, it being understood, in the case
of
each such reimbursement, that the Master Servicer’s or [related] Servicer’s
right thereto shall be prior to the rights of the Noteholders;
(iv) to
reimburse the Master Servicer or the Servicer[s] from Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds for Liquidation Expenses and for
amounts expended by it pursuant to Section 4.02(n) in good faith in connection
with the restoration of damaged property and, to the extent that Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds after such reimbursement
exceed the unpaid principal balance of the related Mortgage Loan, together
with
accrued and unpaid interest thereon at the applicable Mortgage Rate less the
Servicing Fee Rate for such Mortgage Loan to the Due Date next succeeding the
date of its receipt of such Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds, to pay to the Master Servicer or the Servicer[s] out of
such
excess the amount of any unpaid assumption fees, late payment charges or other
Mortgagor charges on the related Mortgage Loan and to retain any excess
remaining thereafter as additional servicing compensation, it being understood,
in the case of any such reimbursement or payment, that such Master Servicer’s or
[related] Servicer’s right thereto shall be prior to the rights of the
Noteholders;
(v) to
pay to
the Depositor or the Seller or any other Person, as applicable, with respect
to
each Mortgage Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon and not
paid
on the date on which the related repurchase was effected, and to pay to the
applicable party any Monthly Advances and Servicing Advances to the extent
specified in the definition of Purchase Price;
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(vi) to
the
extent not paid by the Servicer[s], to pay any insurance premium with respect
to
a Mortgage Loan;
(vii) to
pay to
the Master Servicer income earned on the investment of funds on deposit in
the
Collection Account;
(viii) to
make
payment to itself, the Master Servicer, the Securities Administrator, the
Servicer[s], the Indenture Trustee, the Custodian, the Owner Trustee and others
pursuant to any provision of any Operative Agreement;
(ix) to
withdraw funds deposited in error in the Collection Account;
(x) to
clear
and terminate the Collection Account pursuant to Article IX; and
(xi) to
reimburse a successor master servicer (solely in its capacity as successor
master servicer), for any fee or advance occasioned by a termination of the
Master Servicer and the assumption of such duties by the Indenture Trustee
as
successor master servicer or a successor master servicer appointed by the
Indenture Trustee pursuant to Section 8.01, in each case to the extent not
reimbursed by the terminated Master Servicer, it being understood, in the case
of any such reimbursement or payment, that the right of the Master Servicer
or
the Indenture Trustee thereto shall be prior to the rights of the
Noteholders.
In
connection with withdrawals pursuant to subclauses (ii) through (iv) above,
the
Master Servicer’s or the [Servicer’s/Servicers’] or such other Person’s
entitlement thereto is limited to collections or other recoveries on the related
Mortgage Loan. The Master Servicer shall therefore keep and maintain a separate
accounting for each Mortgage Loan for the purpose of justifying any withdrawal
from the Collection Account it maintains pursuant to such
subclauses.]
Section
5.08. Reports
to Indenture Trustee and Noteholders.
(a) On
each
Payment Date, the Securities Administrator shall make available to the Indenture
Trustee, [the Swap Counterparty] and each Noteholder a report setting forth
the
following information (on the basis of Mortgage Loan level information obtained
from the Servicer):
(i) [the
aggregate amount of the payment to be made on such Payment Date to the Holders
of each Class of Notes, to the extent applicable, allocable to principal on
the
Mortgage Loans, including Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds, stating separately the amount attributable to scheduled
principal payments and unscheduled payments in the nature of
principal;
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(ii) the
aggregate amount of the payment to be made on such Payment Date to the Holders
of each Class of Notes allocable to interest and the calculation
thereof;
(iii) the
amount, if any, of any payment to the Holder of the Ownership
Certificate;
(iv) (A) the
aggregate amount of any Monthly Advances required to be made by or on behalf
of
the Servicer[s] (or the Master Servicer) with respect to such Payment Date,
(B) the aggregate amount of such Monthly Advances actually made, and
(C) the amount, if any, by which (A) above exceeds (B) above;
(v) the
aggregate amount of Servicing Advances required to be made by or on behalf
of
the Servicer (or the Master Servicer) with respect to such Payment
Date;
(vi) the
aggregate amount of unreimbursed Monthly Advances outstanding and Servicing
Advances outstanding with respect to such Payment Date, in each case, including
the general use of funds advanced and the general source of funds for
reimbursements;
(vii) the
aggregate amount of Nonrecoverable Advances with respect to such Payment
Date;
(viii) the
total
number of Mortgage Loans, the aggregate Scheduled Principal Balance of all
the
Mortgage Loans as of the close of business on the last day of the related
Collection Period, after giving effect to payments allocated to principal
reported under clause (i) above;
(ix) the
Class
Principal Amount of each Class of Notes, to the extent applicable, as of such
Payment Date after giving effect to payments allocated to principal reported
under clause (i) above;
(x) the
amount of any Realized Losses incurred with respect to the Mortgage Loans (x)
in
the applicable Prepayment Period and (y) in the aggregate since the Cut-off
Date;
(xi) the
amount of the Servicing Fee paid during the Collection Period to which such
payment relates;
(xii) the
number and aggregate Scheduled Principal Balance of Mortgage Loans, as reported
to the Securities Administrator by the Servicer, (a) remaining outstanding,
(b) Delinquent 30 to 59 days on a contractual basis, (c) Delinquent 60 to
89 days on a contractual basis, (d) Delinquent 90 or more days on a contractual
basis, (e) 180 days or more Delinquent and charged off; (f) as to which
foreclosure proceedings have been commenced as of the close of business on
the
last Business Day of the calendar month immediately preceding the month in
which
such Payment Date occurs, (g) in bankruptcy and (h) that are REO
Properties;
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(xiii) the
aggregate Scheduled Principal Balance of any Mortgage Loans with respect to
which the related Mortgaged Property became an REO Property as of the close
of
business on the last Business Day of the calendar month immediately preceding
the month in which such Payment Date occurs;
(xiv) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Scheduled Principal Balance of each Deleted Mortgage Loan and of each Qualifying
Substitute Mortgage Loan;
(xv) the
aggregate outstanding Prepayment Interest Shortfalls, Basis Risk Shortfalls
and
Basis Risk Shortfall Carryforward Amounts, if any, for each Class of Notes,
after giving effect to the payments made on such Payment Date;
(xvi) the
Note
Interest Rate applicable to such Payment Date with respect to each Class of
Notes;
(xvii) the
Interest Funds, the Principal Funds and the Extra Principal Payment Amount
applicable to such Payment Date;
(xviii) if
applicable, the amount of any shortfall (i.e., the difference between the
aggregate amounts of principal and interest which Noteholders would have
received if there were sufficient available amounts in the Collection Account
and the amounts actually paid);
(xix) the
amount of any Principal Deficiency Amount and Deferred Interest with respect
to
each Class of Notes, after giving effect to payments on such Payment
Date;
(xx) [the
amount of any Credit Line Advances, if any, made during such Collection
Period;]
(xxi) any
applicable Record Dates, accrual dates, determination dates for calculating
distributions and actual Payment Dates for the Collection Period;
(xxii) the
amount of cashflows received and the sources thereof for distributions, fees
and
expenses;
(xxiii) the
amount of fees and expenses accrued and paid, the purpose of such fees and
expenses and the identification of each payee, including the amount of fees
paid
to the Indenture Trustee, the Custodian, the Master Servicer, the Securities
Administrator[, and] the Servicer[s] [and Subservicer] for such Payment
Date;
94
(xxiv) the
amount of payments accrued and paid with respect to the Cap Counterparty,
[insurance premiums], other credit enhancement and support for the Trust, the
purpose of such payments and the identification of each payee;
(xxv) the
amount of excess cash flow or excess spread and the disposition of such excess
cash flow or excess spread;
(xxvi) delinquency
and loss information for the distribution period with respect to the Mortgage
Loans;
(xxvii) the
number of properties and the unpaid principal balance with respect to each
property relating to defaulted Mortgage Loans in the Trust;
(xxviii)
the
beginning and ending balances of the Note Payment Account, Collection Account
[and any material account activity during the related period];
(xxix)
any
material modifications, extensions or waivers to Mortgage Loan terms, fees,
penalties or payments during the Collection Period or that have cumulatively
become material over time; information with respect to material breaches of
Mortgage Loan representations or warranties or of covenants in the Operative
Documents;
(xxx) information
on whether a Delinquency Event or a Cumulative Loss Trigger Event has
occurred;
(xxxi) information
regarding any changes to the Mortgage Loans, including any additions or removals
in connection with the [Pre-Funding Period] [Revolving Period], repurchases
or
substitutions;
(xxxii) the
amounts on deposit in the [Pre-Funding Account] [Revolving
Account];
(xxxiii)
information regarding any material changes in the solicitation, credit granting,
underwriting, origination, acquisition or selection criteria or procedures,
as
applicable, used to originate, acquire or select additional Mortgage Loans
acquired during the [Pre-funding Period] [Revolving Period] or in connection
with a substitution;
(xxxiv)
any
Overcollateralization Deficiency after giving effect to the payments made on
such Payment Date;
(xxxv) [the
[ ]-year Hybrid Loan Amount, the [ ]-year
Hybrid Loan Amount and the [ ]-year Hybrid Loan Amount for
such Payment Date;]
(xxxvi) [the
amount of any Net Swap Payment to the Trust pursuant to the Swap Agreement,
any
Net Swap Payment to the Swap Counterparty made pursuant to Section 6.02, any
Swap Termination Payment to the Trust made pursuant to Swap Agreement and any
Swap Termination Payment to the Swap Counterparty made pursuant to Section
6.02;] and
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(xxxvii) LIBOR
with respect to such Payment Date.]
[To
be
modified for each transaction]
In
the
case of information furnished pursuant to subclauses (i), (ii) and (ix) above,
the amounts shall (except in the case of the report delivered to the holder
of
the Ownership Certificate) be expressed as a dollar amount per $1,000 of
original principal amount of Notes.
The
Securities Administrator will make such report and additional loan level
information (and, at its option, any additional files containing the same
information in an alternative format) available each month to the Rating
Agencies and Noteholders via the Securities Administrator’s website. The
Securities Administrator’s website can be accessed at [ ].
Assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at [ ]. Such parties
that are unable to use the website are entitled to have a paper copy mailed
to
them via first class mail by notifying the Securities Administrator at
[ ], and indicating such. The Securities Administrator shall
have the right to change the way such statements are distributed in order to
make such distribution more convenient and/or more accessible to the above
parties and the Securities Administrator shall provide timely and adequate
notification to all above parties regarding any such changes.
The
foregoing information and reports shall be prepared and determined by the
Securities Administrator based solely on Mortgage Loan data provided to the
Securities Administrator by the Master Servicer (in a format agreed to by the
Securities Administrator and the Master Servicer) no later than 12:00 p.m.
(noon) Eastern Standard Time four Business Days prior to the Payment Date.
In
preparing or furnishing the foregoing information, the Securities Administrator
and the Master Servicer shall be entitled to rely conclusively on the accuracy
of the information or data regarding the Mortgage Loans and the related REO
Property that has been provided to the Master Servicer by the Servicer[s],
and
neither the Securities Administrator nor the Master Servicer shall be obligated
to verify, recompute, reconcile or recalculate any such information or data.
The
Securities Administrator, the Indenture Trustee, the Custodian and the Master
Servicer shall be entitled to conclusively rely on the Mortgage Loan data
provided to the Master Servicer and shall have no liability for any errors
in
such Mortgage Loan data.
(b) Upon
the
reasonable advance written request of any Noteholder that is a savings and
loan,
bank or insurance company, which request, if received by the Indenture Trustee
shall be forwarded promptly to the Securities Administrator, the Securities
Administrator shall provide, or cause to be provided (or, to the extent that
such information or documentation is not required to be provided by the
Servicer[s], shall use reasonable efforts to obtain such information and
documentation from the Servicer[s], and provide), to such Noteholder such
reports and access to information and documentation regarding the Mortgage
Loans
as such Noteholder may reasonably deem necessary to comply with applicable
regulations of the Office of Thrift Supervision or its successor or other
regulatory authorities with respect to an investment in the Notes; provided,
however,
that
the Securities Administrator shall be entitled to be reimbursed by such
Noteholder for actual expenses incurred in providing such reports and access.
96
(c) Within
[ninety (90)] days, or such shorter period as may be required by statute or
regulation, after the end of each calendar year, the Securities Administrator
shall have prepared and shall make available to each Person who at any time
during the calendar year was a Noteholder of record, and make available to
Security Owners (identified as such by the Clearing Agency) in accordance with
applicable regulations, a report summarizing the items provided to the
Noteholders pursuant to Section 5.08(a) on an annual basis as may be required
to
enable such Holders to prepare their federal income tax returns. Such
information shall include the amount of original issue discount accrued on
each
Class of Notes and information regarding the expenses of the Issuer. The
Securities Administrator shall be deemed to have satisfied such requirement
if
it forwards such information in any other format permitted by the Code. The
Master Servicer shall provide the Securities Administrator with such information
as is necessary for the Securities Administrator to prepare such
reports.
(d) The
Securities Administrator shall furnish any other information that is required
by
the Code and regulations thereunder to be made available to Noteholders. The
Master Servicer shall provide the Securities Administrator with such information
as is necessary for the Securities Administrator to prepare such reports (and
the Securities Administrator may rely solely upon such
information).
Section
5.09. Termination
of Servicer[s]; Successor Servicers.
(a) The
Master Servicer shall be entitled to terminate the rights and obligations of
the
Servicer[s] upon the occurrence of a Servicer Event of Default as set forth
in
Section 4.07; provided,
however,
that in
the event of termination of the Servicer, the Master Servicer shall provide
for
the servicing of the Mortgage Loans by a successor servicer as provided in
Section 4.08.
The
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer of
servicing to a successor servicer. The Master Servicer shall be entitled to
be
reimbursed by the Servicer[s] (or by the Trust Estate, if the [related] Servicer
is unable to fulfill its obligations hereunder) for all costs associated with
the transfer of servicing, including without limitation, any costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data, as may be required by the
Master Servicer to correct any errors or insufficiencies in the servicing data
or otherwise to enable the Master Servicer to service the Mortgage Loans
properly and effectively.
(b) If
the
Master Servicer acts as a successor Servicer, it shall not assume liability
for
the representations and warranties of the Servicer that it replaces. The Master
Servicer shall use reasonable efforts to have the successor Servicer assume
liability for the representations and warranties made by the terminated Servicer
and in the event of any such assumption by the successor servicer, the Master
Servicer may, in the exercise of its business judgment, release the terminated
Servicer from liability for such representations and warranties.
97
(c) If
the
Master Servicer acts as a successor Servicer, it will have no obligation to
make
a Monthly Advance if it determines in its reasonable judgment that such Monthly
Advance would constitute a Nonrecoverable Advance.
Section
5.10. Master
Servicer Liable for Enforcement.
The
Master Servicer shall use commercially reasonable efforts to ensure that the
Mortgage Loans are serviced in accordance with the provisions of this Agreement
and shall use commercially reasonable efforts to enforce the provisions of
Article IV for the benefit of the Noteholders. The Master Servicer shall be
entitled to enter into any agreement with any Servicer for indemnification
of
the Master Servicer and nothing contained in this Agreement shall be deemed
to
limit or modify such indemnification. Except as expressly set forth herein,
the
Master Servicer shall have no liability for the acts or omissions of the
Servicer[s] in the performance by such Servicer of its obligations under Article
IV.
Section
5.11. Assumption
of Master Servicing by Indenture Trustee.
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Master Servicer Event of Default under Section
8.01
of this Agreement), the Indenture Trustee shall thereupon assume all of the
rights and obligations of such Master Servicer hereunder. The Indenture Trustee,
its designee or any successor master servicer appointed by the Indenture Trustee
shall be deemed to have assumed all of the Master Servicer’s interest herein,
except that the Master Servicer shall not thereby be relieved of any liability
or obligations of the Master Servicer accruing prior to its replacement as
Master Servicer, and shall be liable to the Indenture Trustee, and hereby agrees
to indemnify and hold harmless the Indenture Trustee from and against all costs,
damages, expenses and liabilities (including reasonable attorneys’ fees)
incurred by the Indenture Trustee as a result of such liability or obligations
of the Master Servicer and in connection with the Indenture Trustee’s assumption
(but not its performance, except to the extent that costs or liability of the
Indenture Trustee are created or increased as a result of negligent or wrongful
acts or omissions of the Master Servicer prior to its replacement as Master
Servicer) of the Master Servicer’s obligations, duties or responsibilities
thereunder.
(b) The
Master Servicer that has been terminated shall, upon request of the Indenture
Trustee but at the expense of such Master Servicer, deliver to the assuming
party all documents and records relating to the Mortgage Loans and an accounting
of amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of master servicing to the assuming party.
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Section
5.12. Release
of Mortgage Files.
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the [related] Servicer of a notification that payment in full has been or
will be escrowed in a manner customary for such purposes, the [related]
Servicer, promptly notify the Indenture Trustee (or the Custodian) by a
certification (which certification shall include a statement to the effect
that
all amounts received in connection with such payment that are required to be
deposited in the Collection Account maintained by the Master Servicer pursuant
to Section 5.06 have been or will be so deposited) of a Servicing Officer and
shall deliver a Request for Release in the form of Exhibit A-5 hereto to the
Indenture Trustee or the Custodian with respect to such Mortgage Loan. Upon
receipt of such certification and Request for Release, the Indenture Trustee
or
the Custodian (with the consent, and at the direction of the Indenture Trustee),
shall promptly release the related Mortgage File to the [related] Servicer
and
the Indenture Trustee shall have no further responsibility with regard to such
Mortgage File. Upon any such payment in full, the Servicer is authorized, to
give, as agent for the Indenture Trustee, as the mortgagee under the Mortgage
that secured the Mortgage Loan, an instrument of satisfaction (or assignment
of
mortgage without recourse) regarding the Mortgaged Property subject to the
Mortgage, which instrument of satisfaction or assignment, as the case may be,
shall be delivered to the Person or Persons entitled thereto against receipt
therefor of such payment, it being understood and agreed that no expenses
incurred in connection with such instrument of satisfaction or assignment,
as
the case may be, shall be chargeable to the Collection Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any Primary Insurance
Policy, the Indenture Trustee shall execute such documents as shall be prepared
and furnished to the Indenture Trustee by the Servicer[s] (in form reasonably
acceptable to the Indenture Trustee) and as are necessary to the prosecution
of
any such proceedings. The Indenture Trustee or the Custodian, shall, upon
request of the Master Servicer or of the [related] Servicer, as applicable,
and
delivery to the Indenture Trustee or the Custodian, of a Request for Release
signed by a Servicing Officer, release the related Mortgage File held in its
possession or control to the Master Servicer (or the [related] Servicer, as
applicable). Such trust receipt shall obligate the Master Servicer or the
Servicer, as applicable, to return the Mortgage File to the Indenture Trustee
or
the Custodian, as applicable, when the need therefor by the Master Servicer
or
the Servicer, as applicable, no longer exists unless (i) the Mortgage Loan
has
been liquidated and the Liquidation Proceeds relating to the Mortgage Loan
have
been deposited in the Collection Account or (ii) 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 [related] 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.
(c) At
any
time that the [related] Servicer is required to deliver to the Custodian a
Request for Release, the [related] Servicer shall deliver two copies of the
Request for Release if delivered in hard copy or the [related] Servicer may
furnish such Request for Release electronically to the Custodian, in which
event
the Servicing Officer transmitting the same shall be deemed to have signed
the
Request for Release. In connection with any Request for Release of a Mortgage
File because of a repurchase of a Mortgage Loan, such Request for Release shall,
if required, be followed by an assignment of mortgage, without recourse,
representation or warranty from the Indenture Trustee to the Seller and the
related Mortgage Note shall be endorsed either in blank or without recourse
by
the Indenture Trustee and be returned to the Seller. In connection with any
Request for Release of a Mortgage File because of the payment in full of a
Mortgage Loan, such Request for Release shall, if required, be accompanied
by a
certificate of satisfaction or other similar instrument to be executed by or
on
behalf of the Indenture Trustee and returned to the Servicer.
99
Section
5.13. Documents,
Records and Funds in Possession of Master Servicer to be Held for Indenture
Trustee.
(a) The
Master Servicer shall transmit, or cause the Servicer[s] to transmit, to the
Indenture Trustee such documents and instruments coming into the possession
of
the Master Servicer or the Servicer[s] from time to time as are required by
the
terms hereof to be delivered to the Indenture Trustee or the Custodian. Any
funds received by the Master Servicer or by the Servicer[s] in respect of any
Mortgage Loan or which otherwise are collected by the Master Servicer or the
Servicer[s] as Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds
in respect of any Mortgage Loan shall be held for the benefit of the Indenture
Trustee and the Noteholders subject to the Master Servicer’s right to retain or
withdraw amounts provided in this Agreement and to the right of the Servicer[s]
to retain its Servicing Fee and other amounts as provided herein. The Master
Servicer shall, and shall cause the Servicer[s] to, provide access to
information and documentation regarding the Mortgage Loans to the Indenture
Trustee, their respective agents and accountants at any time upon reasonable
request and during normal business hours, and to Noteholders that are savings
and loan associations, banks or insurance companies, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of such Office
and Corporation or examiners of any other federal or state banking or insurance
regulatory authority if so required by applicable regulations of the Office
of
Thrift Supervision or other regulatory authority, such access to be afforded
without charge but only upon reasonable request in writing and during normal
business hours at the offices of the Master Servicer designated by it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer or the Servicer[s], in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds, shall be held by the
Master Servicer or by the Servicer[s] for and on behalf of the Indenture Trustee
as the Indenture Trustee’s agent and bailee for purposes of perfecting the
Indenture Trustee’s security interest therein as provided by relevant Uniform
Commercial Code or laws; provided,
however,
that the
Master Servicer and the Servicer[s] shall be entitled to setoff against, and
deduct from, any such funds any amounts that are properly due and payable to
the
Master Servicer or the Servicer[s] under this Agreement and shall be authorized
to remit such funds to the Securities Administrator in accordance with this
Agreement.
100
(c) The
Servicer[s] and the Master Servicer each hereby acknowledges that concurrently
with the execution of this Agreement, the Indenture Trustee shall own or, to
the
extent that a court of competent jurisdiction shall deem the conveyance of
the
Mortgage Loans from the Seller to the Depositor not to constitute a sale, the
Indenture Trustee shall have a security interest in the Mortgage Loans and
in
all Mortgage Files representing such Mortgage Loans and in all funds and
investment property now or hereafter held by, or under the control of, the
Servicer[s] or the Master Servicer that are collected by the Servicer[s] or
the
Master Servicer in connection with the Mortgage Loans, whether as scheduled
installments of principal and interest or as full or partial prepayments of
principal or interest or as Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or otherwise, and in all proceeds of the foregoing and
proceeds of proceeds (but excluding any fee or other amounts to which the
Servicer[s] or the Master Servicer is entitled to hereunder); and the
Servicer[s] and the Master Servicer each agrees that so long as the Mortgage
Loans are assigned to and held by the Indenture Trustee or the Custodian, all
documents or instruments constituting part of the Mortgage Files, and such
funds
relating to the Mortgage Loans which come into the possession or custody of,
or
which are subject to the control of, the Master Servicer or the Servicer[s]
shall be held by the Master Servicer or the Servicer[s] for and on behalf of
the
Indenture Trustee as the Indenture Trustee’s agent and bailee for purposes of
perfecting the Indenture Trustee’s security interest therein as provided by the
applicable Uniform Commercial Code or other applicable laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize the
Servicer[s] to, create, incur or subject any Mortgage Loans, or any funds that
are deposited in any Custodial Account, Escrow Account or the Collection
Account, or any funds that otherwise are or may become due or payable to or
for
the benefit of the Indenture Trustee, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, nor assert by legal
action or otherwise any claim or right of setoff against any Mortgage Loan
or
any funds collected on, or in connection with, a Mortgage Loan.
Section
5.14. Opinion.
On or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Seller, the Indenture Trustee, the Issuer, the Securities
Administrator and the Servicer[s] one or more Opinions of Counsel, dated the
Closing Date, in form and substance reasonably satisfactory to the Depositor,
as
to the due authorization, execution and delivery of this Agreement by the Master
Servicer and the enforceability thereof.
Section
5.15. Indenture
Trustee To Retain Possession of Certain Insurance Policies and
Documents.
The
Indenture Trustee (or the Custodian on behalf of the Indenture Trustee) shall
retain possession and custody of the originals of the primary mortgage insurance
policies or certificate of insurance if applicable and any certificates of
renewal as to the foregoing as may be issued from time to time as contemplated
by this Agreement. Until all amounts payable in respect of the Notes have been
paid in full and the Master Servicer otherwise has fulfilled its obligations
under this Agreement, the Indenture Trustee (or the Custodian) shall also retain
possession and custody of each Mortgage File in accordance with and subject
to
the terms and conditions of this Agreement. The Master Servicer shall promptly
deliver or cause the Servicer[s] to deliver to the Indenture Trustee (or the
Custodian), upon the execution or receipt thereof the originals of the primary
mortgage insurance policies and any certificates of renewal thereof, and such
other documents or instruments that constitute portions of the Mortgage File
that come into the possession of the Master Servicer or the Servicer[s] from
time to time.
101
Section
5.16. Compensation
to the Master Servicer.
Pursuant to Sections 5.06(e) and [6.01(d)(ii)], all income and gain realized
from any investment of funds in the Collection Account and the Note Payment
Account shall be for the benefit of the Master Servicer as
compensation
net
of the
sum of the Indenture Trustee Fee, Owner Trustee Fee and the Custodian Fee
payable by the Master Servicer to the Indenture Trustee, the Owner Trustee
and
the Custodian, respectively, on behalf of the Trust, as provided in Section
5.07. Notwithstanding the foregoing, the Master Servicer shall deposit in the
Collection Account, on or before the related Payment Date, an amount equal
to
the lesser of (i) its master servicing compensation with respect to such Payment
Date and (ii) the amount of any Compensating Interest Payment required to be
paid by the Servicer[s] with respect to such Payment Date pursuant to this
Agreement, but which is not paid by the [related] Servicer on its behalf. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
Section
5.17. Annual
Officer’s Certificate as to Compliance.
(a) The
Master Servicer shall deliver to the Securities Administrator and the Indenture
Trustee on or before [March 1st]
of each
calendar year, commencing on [March 1], [ ], an Officer’s
Certificate, certifying that with respect to the period ending on the
immediately preceding December 31: (i) such Servicing Officer has reviewed
the
activities of such Master Servicer during the preceding calendar year or portion
thereof and its performance under this Agreement, (ii) to the best of such
Servicing Officer’s knowledge, based on such review, such Master Servicer has
performed and fulfilled its duties, responsibilities and obligations under
this
Agreement in all material respects throughout such year, or, if there has been
a
default in the fulfillment of any such duties, responsibilities or obligations,
specifying each such default known to such Servicing Officer and the nature
and
status thereof, (iii) nothing has come to the attention of such Servicing
Officer to lead such Servicing Officer to believe that [the/a] Servicer has
failed to perform any of its duties, responsibilities and obligations set forth
in Article IV hereunder in all material respects throughout such year, or,
if
there has been a material default in the performance or fulfillment of any
such
duties, responsibilities or obligations, specifying each such default known
to
such Servicing Officer and the nature and status thereof, and (iv) the Master
Servicer has received from [the/each] Servicer an annual certificate of
compliance and a copy of such Servicer’s annual audit report, or, if any such
certificate or report has not been received by the Master Servicer, the Master
Servicer is using its best reasonable efforts to obtain such certificate or
report. In addition, the Master Servicer shall deliver to the Securities
Administrator and the Indenture Trustee a report regarding the Master Servicer’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB.
102
(b) The
Securities Administrator shall deliver to the Indenture Trustee a report
regarding the Securities Administrator’s assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB.
(c) Copies
of
such statements shall be provided to any Noteholder upon request, by the Master
Servicer or the Securities Administrator or by the Indenture Trustee at the
Master Servicer’s or Securities Administrator’s, as applicable, expense if the
Master Servicer or the Securities Administrator, as applicable, failed to
provide such copies (unless (i) the Master Servicer or the Securities
Administrator, as the case may be, shall have failed to provide the Indenture
Trustee (or the Securities Administrator with respect to statements provided
by
the Master Servicer) with such statement or (ii) the Indenture Trustee (or
the
Securities Administrator with respect to statements provided by the Master
Servicer) has no actual knowledge of the Master Servicer’s or Securities
Administrator’s failure to provide such statement).
Section
5.18. Annual
Independent Accountants’ Servicing Report.
Each of
the Master Servicer and the Securities Administrator at its expense shall cause
a nationally recognized firm of independent certified public accountants to
furnish to the Issuer, the Indenture Trustee, the Rating Agencies and the
Depositor on or before March 1 of each calendar year in a form acceptable for
filing with the Commission as an exhibit to a Form 10-K a report on the
assessment of compliance made by the Master Servicer or the Securities
Administrator, as the case may be, and delivered pursuant to Section 5.17,
which
report shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation
S-X under the Securities Act and the Exchange Act. In addition, on an annual
basis, Master Servicer and the Securities Administrator shall provided the
Seller, the Indenture Trustee and the Depositor with copies of its audited
financial statements. Copies of such statements shall be provided to any
Noteholder upon request by the Indenture Trustee at the expense if the Master
Servicer or the Securities Administrator, as applicable, failed to provide
such
copies (unless (i) the Master Servicer or the Securities Administrator, as
the
case may be, shall have failed to provide the Indenture Trustee (or the
Securities Administrator with respect to statements provided by the Master
Servicer) with such report or (ii) the Indenture Trustee (or the Securities
Administrator with respect to statements provided by the Master Servicer) has
no
actual knowledge of the Master Servicer’s or Securities Administrator’s failure
to provide such report). If such report discloses exceptions that are material,
the Master Servicer and the Securities Administrator, as the case may be, shall
advise the Indenture Trustee whether such exceptions have been or are
susceptible of cure, and will take prompt action to do so.
Section
5.19. Merger
or Consolidation.
Any
Person into which the Master Servicer may be merged or consolidated, or any
Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to
the
Master Servicer hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided,
however,
that
the successor or resulting Person to the Master Servicer shall be a Person
that
shall be qualified and approved (or that have an Affiliate that is qualified
and
approved) seller/servicer of residential mortgage loans for Xxxxxx Xxx, Xxxxxxx
Mac and HUD and shall have a net worth of not less than
$25,000,000.
103
Section
5.20. Resignation
of Master Servicer.
Except
as otherwise provided in Sections 5.19 and this Section 5.20 hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on
it
unless it determines that the Master Servicer’s duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Indenture Trustee and the Issuer. No such resignation shall
become effective until the Indenture Trustee shall have assumed, or a successor
master servicer shall have been appointed by the Indenture Trustee and until
such successor shall have assumed, the Master Servicer’s responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Indenture
Trustee.
Section
5.21. Assignment
or Delegation of Duties by the Master Servicer.
Except
as expressly provided herein, the Master Servicer shall not assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or
delegate to or subcontract with, or authorize or appoint any other Person to
perform any of the duties, covenants or obligations to be performed by the
Master Servicer hereunder, unless the Indenture Trustee and the Depositor shall
have consented to such action; provided,
however,
that
the Master Servicer shall have the right without the prior written consent
of
the Indenture Trustee or the Depositor to delegate or assign to or subcontract
with or authorize or appoint an Affiliate of the Master Servicer to perform
and
carry out any duties, covenants or obligations to be performed and carried
out
by the Master Servicer hereunder. In no case, however, shall any such
delegation, subcontracting or assignment to an Affiliate of the Master Servicer
relieve the Master Servicer of any liability hereunder. Notice of such permitted
assignment shall be given promptly by the Master Servicer to the Depositor
and
the Indenture Trustee. If, pursuant to any provision hereof, the duties of
the
Master Servicer are transferred to a successor master servicer, the entire
amount of compensation payable to the Master Servicer pursuant hereto, including
amounts payable to or permitted to be retained or withdrawn by the Master
Servicer pursuant to Section 5.16 hereof, shall thereafter be payable to such
successor master servicer.
Section
5.22. Limitation
on Liability of the Master Servicer and Others.
(a) The
Master Servicer undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to act
or
its own willful misconduct; provided,
however,
that
the duties and obligations of the Master Servicer shall be determined solely
by
the express provisions of this Agreement, the Master Servicer shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement; no implied covenants or obligations
shall be read into this Agreement against the Master Servicer and, in absence
of
bad faith on the part of the Master Servicer, the Master Servicer may
conclusively rely, as to the truth of the statements and the correctness of
the
opinions expressed therein, upon any certificates or opinions furnished to
the
Master Servicer and conforming to the requirements of this
Agreement.
104
(c) Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Indenture Trustee or
the
Noteholders for any action taken or for refraining from the taking of any action
in good faith pursuant to this Agreement, or for errors in judgment;
provided,
however,
that
this provision shall not protect the Master Servicer or any such person against
any liability that would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of its duties or by reason of
reckless disregard for its obligations and duties under this Agreement. The
Master Servicer and any director, officer, employee or agent of the Master
Servicer shall be entitled to indemnification by the Trust Estate and will
be
held harmless against any loss, liability or expense incurred in connection
with
any legal action relating to this Agreement, the Notes or any other Operative
Agreement other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of his or its
duties hereunder or by reason of reckless disregard of his or its obligations
and duties hereunder. The Master Servicer and any director, officer, employee
or
agent of the Master Servicer may rely in good faith on any document of any
kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Master Servicer shall be under no obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties
to
master service the Mortgage Loans in accordance with this Agreement and that
in
its opinion may involve it in any expenses or liability; provided,
however,
that
the Master Servicer may in its sole discretion undertake any such action that
it
may deem necessary or desirable in respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Noteholders hereunder.
In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Issuer
and
the Master Servicer shall be entitled to be reimbursed therefor out of the
Collection Account it maintains as provided by Section 5.07.
Section
5.23. Indemnification;
Third Party Claims.
The
Master Servicer agrees to indemnify the Depositor, the Issuer, the Indenture
Trustee, the Owner Trustee and the Servicer[s] and hold them harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, liability, fees and expenses
that
the Depositor, the Issuer, the Indenture Trustee, the Owner Trustee or the
Servicer[s] may sustain as a result of the failure of the Master Servicer to
perform its duties and master service the Mortgage Loans in compliance with
the
terms of this Agreement. The Depositor, the Issuer, the Indenture Trustee,
the
Owner Trustee and the Servicer[s] shall immediately notify the Master Servicer
if a claim is made by a third party with respect to this Agreement, the Mortgage
Loans entitling the Depositor, the Issuer, the Indenture Trustee, the Owner
Trustee or the Servicer to indemnification under this Section 5.23, whereupon
the Master Servicer shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it
or
them in respect of such claim. The failure to provide such immediate notice
shall not affect the Master Servicer’s obligation pursuant to this Section 5.23
to indemnify the Depositor, the Issuer, the Indenture Trustee, the Owner Trustee
and the Servicer[s], except to the extent that the Master Servicer is materially
prejudiced by such failure to notify.
105
Section
5.24. Alternative
Index.
In the
event that the Index for any Mortgage Loan, as specified in the related Mortgage
Note, becomes unavailable for any reason, the Servicer[s] shall select an
alternative index in accordance with the terms of such Mortgage Note or, if
such
Mortgage Note does not make provision for the selection of an alternative index
in such event, the Servicer[s] shall, subject to applicable law, select an
alternative index based on information comparable to that used in connection
with the original Index and, in either case, such alternative index shall
thereafter be the Index for such Mortgage Loan.
Section
5.25. Transfer
of Servicing.
[The/Each] Servicer agrees that it shall provide written notice to the Master
Servicer and the Indenture Trustee [thirty] days prior to any proposed transfer
or assignment by the Seller of the servicing of the Mortgage Loans. In addition,
the ability of the Servicer[s] to transfer or assign the servicing hereunder
to
a successor servicer shall be subject to the following conditions:
(i) Receipt
of written consent of the Master Servicer to such transfer, which consent shall
not be unreasonably withheld;
(ii) Such
successor servicer must satisfy the servicer eligibility standards set forth
in
Section 4.06(a);
(iii) Such
successor servicer must execute and deliver to the Master Servicer and the
Indenture Trustee an agreement, in form and substance reasonably satisfactory
to
the Master Servicer and the Indenture Trustee, that contains an assumption
by
such successor servicer of the due and punctual performance and observance
of
each covenant and condition to be performed and observed by the
Servicer[s];
(iv) At
the
time of the transfer, there must be delivered to the Indenture Trustee a letter
from each Rating Agency to the effect that such transfer of servicing will
not
result in a qualification, withdrawal or downgrade of the then-current rating
of
any of the Notes; and
(v) The
Seller shall, at its cost and expense, take such steps, or cause the terminated
Servicer to take such steps, as may be necessary or appropriate to effectuate
and evidence the transfer of the servicing of the Mortgage Loans to such
successor servicer, including, but not limited to, the following: (A) to the
extent required by the terms of the Mortgage Loans and by applicable federal
and
state laws and regulations, the Seller shall cause the prior Servicer to timely
mail to each obligor under a Mortgage Loan any required notices or disclosures
describing the transfer of servicing of the Mortgage Loans to the successor
servicer; (B) prior to the effective date of such transfer of servicing, the
Seller shall cause the prior Servicer to transmit to any related insurer
notification of such transfer of servicing; (C) on or prior to the effective
date of such transfer of servicing, the Seller shall cause the prior Servicer
to
deliver to the successor servicer all Mortgage Loan Documents and any related
records or materials; (D) on or prior to the effective date of such transfer
of
servicing, the Seller shall cause the prior Servicer to transfer to the
successor servicer, or, if such transfer occurs after a Servicer Remittance
Date
but before the next succeeding Payment Date, to the Securities Administrator,
all funds held by the prior Servicer in respect of the Mortgage Loans; (E)
on or
prior to the effective date of such transfer of servicing, the Seller shall
cause the prior Servicer to, after the effective date of the transfer of
servicing to the successor servicer, continue to forward to such successor
servicer, within one Business Day of receipt, the amount of any payments or
other recoveries received by the prior Servicer, and to notify the successor
servicer of the source and proper application of each such payment or recovery;
and (F) the Seller shall cause the prior Servicer to, after the effective date
of transfer of servicing to the successor servicer, continue to cooperate with
the successor servicer to facilitate such transfer in such manner and to such
extent as the successor servicer may reasonably request.
106
Section
5.26. Compliance
with Safeguarding Customer Information Requirements.
The
Master Servicer has implemented and will maintain security measures designed
to
meet the objectives of the Guidelines.
ARTICLE
VI
DEPOSITS
AND PAYMENTS TO HOLDERS
Section
6.01. The
Note Payment Account.
(a) The
Paying Agent shall establish and maintain on behalf of the Noteholders, the
Note
Payment Account entitled “Note Payment Account, [ ], as
Indenture Trustee, in trust for Holders of the TBW Mortgage
Trust [ ], Mortgage Backed Notes.”
(b) The
Note
Payment Account shall be an Eligible Account. If the Note Payment Account ceases
to be an Eligible Account, the Paying Agent shall establish a new Note Payment
Account that is an Eligible Account within [10] days and transfer all funds
and
investment property on deposit in such existing Note Payment Account into such
new Note Payment Account.
(c) [On
each
Master Servicer Remittance Date, the Master Servicer shall remit to the Paying
Agent the entire amount on deposit in the Collection Account (subject to
permitted withdrawals set forth in Section 5.07).
107
(d) Upon
receipt, the Paying Agent shall deposit the amount received from the Master
Servicer pursuant to subsection (c) of this Section 6.01 into the Note Payment
Account.
(e) Funds
in
the Note Payment Account may be invested by the Paying Agent in Eligible
Investments selected by and at the written direction of the Master Servicer,
which shall mature not later than the related Payment Date and any such Eligible
Investment shall not be sold or disposed of prior to its maturity. All such
Eligible Investments shall be made in the name of the Indenture Trustee in
trust
for the benefit of the Noteholders. All income and gain net of the Indenture
Trustee Fee, the Owner Trustee Fee, the Custodian Fee and any losses realized
from any such investment of funds on deposit in the Note Payment Account shall
be for the benefit of the Master Servicer and shall be subject to withdrawal
by
the Paying Agent for payment to the Master Servicer from time to time in
accordance with subsection (f) below and shall not be part of the Trust Estate.
The amount of any losses incurred in respect of any such investments shall
be
deposited in the Note Payment Account by the Master Servicer out of its own
funds, without any right of reimbursement therefor, immediately as
realized.
(f) The
Paying Agent shall withdraw funds from the Note Payment Account for payments
to
Noteholders and the Certificate Distribution Account in the manner specified
in
this Agreement. In addition, the Paying Agent may prior to making the payment
pursuant to Section 6.02 from time to time make withdrawals from the Note
Payment Account for the following purposes:
(i) to
the
extent not reimbursed by the Master Servicer, to make payment to itself pursuant
to any provision of the Operative Agreements;
(ii) to
pay to
the Master Servicer income earned on the investment of funds on deposit in
the
Note Payment Account;
(iii) to
pay to
the Indenture Trustee, the Owner Trustee and the Custodian, amounts required
to
be reimbursed to them in accordance with the provisions of the Operative
Agreements;
(iv) to
withdraw funds deposited in error in the Note Payment Account; and
(v) to
clear
and terminate the Note Payment Account pursuant to Article IX.]
Section
6.02. Payments
from the Note Payment Account.
(a) On
each
Payment Date, the Paying Agent shall pay the Interest Funds for such date,
from
funds in the Note Payment Account, in the following order of priority in
accordance with the report of the Securities Administrator:
(i) [to
the
Swap Counterparty, the amount of any Net Swap Payment or Swap Termination
Payment owed to the Swap Counterparty for such Payment Date (including amounts
remaining unpaid for previous Payment Dates) pursuant to each Swap Agreement
(to
the extent that any such Swap Termination Payment is not due to a Swap
Counterparty Trigger Event);]
108
(ii) [concurrently,
in proportion to the amount of Accrued Note Interest for each such Class, to
the
Senior Notes, Accrued Note Interest for each such Class for such Payment
Date;
(iii) to
the
Class [ ] Notes, Accrued Note Interest for such Class for such
Payment Date;
(iv) to
the
Class [ ] Notes, Accrued Note Interest for such Class for such
Payment Date; and
(v) for
application as part of Monthly Excess Interest for such Payment Date, as
provided in subsection (d) of this Section, any Interest Funds remaining after
application pursuant to clauses (i) through ([ ])
above.]
[To
be
modified in accordance with the structure of the related
transaction.]
(b) On
each
Payment Date, the Paying Agent shall pay the Principal Payment Amount for such
Payment Date from funds in the Note Payment Account as follows:
(i) [On
each
Payment Date during the Revolving Period, in the following order of
priority:
(1) [to
the
Swap Counterparty, any Net Swap Payment or Swap Termination Payment owed to
the
Swap Counterparty (to the extent payable but not paid from the Interest Funds
pursuant to subsection 6.02(a)(i) above);]
(2) [On
each
Payment Date during the Revolving Period, to the Depositor, the purchase price
of any Additional Mortgage Loans to be purchased by the Trust Fund from the
Depositor on such Payment Date;];]
(ii) [After
the
Revolving Period and]
On
each
Payment Date (a) prior to the Stepdown Date or (b) with respect to which a
Trigger Event is in effect, in the following order of priority:
(1) [to
the
Swap Counterparty, any Net Swap Payment or Swap Termination Payment owed to
the
Swap Counterparty (to the extent payable but not paid from the Interest Funds
pursuant to subsection 6.02(a)(i) above);]
(2) [concurrently,
in proportion to the Class Principal Amounts thereof, to the Senior Notes,
in
reduction of their Class Principal Amounts until the Class Principal Amount
of
each such Class has been reduced to zero;
109
(3) to
the
Class [ ] Notes, in reduction of their Class Principal Amount,
until the Class Principal Amount of such Class has been reduced to
zero;
(4) to
the
Class [ ] Notes, in reduction of their Class Principal Amount,
until the Class Principal Amount of such Class has been reduced to zero;
and
(5) for
application as part of Monthly Excess Cashflow for such Payment Date, as
provided in subsection (c) of this Section, any Principal Payment Amount
remaining after application pursuant to clauses (1) through ([
]) above.]
(iii) On
each
Payment Date (a) on or after the Stepdown Date and (b) with respect to which
a
Trigger Event is not in effect, in the following order of priority:
(1) [to
the
Swap Counterparty, any Net Swap Payment or Swap Termination Payment owed to
the
Swap Counterparty (to the extent payable but not paid from the Interest Funds
pursuant to subsection 6.02(a)(i) above);]
(2) [concurrently,
in proportion to the Class Principal Amounts thereof, to the Senior Notes,
an
amount equal to the Class [ ] Principal Payment Amount, in
reduction of their Class Principal Amounts until the Class Principal Amount
of
each such Class has been reduced to zero;
(3) to
the
Class [ ] Notes, an amount equal to the Class
[ ] Principal Payment Amount, in reduction of their Class
Principal Amount, until the Class Principal Amount of such Class has been
reduced to zero;
(4) to
the
Class [ ] Notes, an amount equal to the Class
[ ]Principal Payment Amount, in reduction of their Class
Principal Amount, until the Class Principal Amount of such Class has been
reduced to zero; and
(5) for
application as part of Monthly Excess Cashflow for such Payment Date, as
provided in subsection (c) of this Section, any Principal Payment Amount
remaining after application pursuant to clauses (1) through ([
]) above.]
[To
be
modified in accordance with the structure of the related
transaction.]
110
(c) On
each
Payment Date, the Paying Agent shall pay the Monthly Excess Cashflow for such
date from funds in the Note Payment Account in accordance with the report of
the
Securities Administrator, in the following order of priority:
(i) [On
each
Payment Date during the Revolving Period, to the Depositor, the purchase price
of any Additional Mortgage Loans to be purchased by the Trust Fund from the
Depositor on such Payment Date;]
(ii) [On
each
Payment Date after the Revolving Period, in the following order of
priority:]
(1) [to
fund
the Extra Principal Payment Amount, to the extent of Monthly Excess Interest
available on such Payment Date;
(2) concurrently,
in proportion to the amount of Deferred Interest for each such class, to the
Senior Notes, any Deferred Interest for each such Class and such Payment
Date;
(3) to
the
Class [ ] Notes, any Deferred Interest for such Class and such
Payment Date;
(4) to
the
Class [ ] Notes, any Deferred Interest for such Class and such
Payment Date;
(5) concurrently,
in proportion to the amount of Basis Risk Shortfall Carryforward Amount for
each
such Class, to the Senior Notes, any Basis Risk Shortfall Carryforward Amount
for each such Class and such Payment Date [to the extent not covered by the
[Cap] [Swap] Agreements];
(6) to
the
Class [ ] Notes, any applicable Basis Risk Shortfall
Carryforward Amount for such Class and such Payment Date [to the extent not
covered by the [Cap] [Swap] Agreements];
(7) to
the
Class [ ] Notes, any applicable Basis Risk Shortfall
Carryforward Amount for such Class and such Payment Date [to the extent not
covered by the [Cap] [Swap] Agreements];
(8) [on
each
Payment Date, for payment to the Swap Counterparty, any unpaid Swap Termination
Payment triggered by a Swap Counterparty Trigger Event owed to the Swap
Counterparty pursuant to any Swap Agreement;]
(9) [on
each
Payment Date, for payment to the Swap Counterparty any amount payable in
connection with the purchase of a substitute Swap Agreement, if any;]
and;
(10) to
the
Certificate Distribution Account, for payment to the Residual Holder (or as
otherwise provided in the Trust Agreement), any amount remaining on such Payment
Date after application pursuant to clauses (i) through ([ ])
above.]
111
[To
be
modified in accordance with the structure of the related
transaction.]
Section
6.03. Control
of the Trust Account.
(a) The
Depositor and the Issuer hereby appoint the Securities Administrator as
Securities Intermediary with respect to the Trust Accounts, and the Issuer
has,
pursuant to the Indenture, granted to the Indenture Trustee, for the benefit
of
the Noteholders, a security interest to secure all amounts due Noteholders
hereunder in and to the Trust Accounts and the Security Entitlements to all
Financial Assets credited to the Trust Accounts, including without limitation
all amounts, securities, investments, Financial Assets, investment property
and
other property from time to time deposited in or credited to the Trust Accounts
and all proceeds thereof. Amounts held from time to time in the Trust Accounts
will continue to be held by the Securities Intermediary for the benefit of
the
Indenture Trustee, as collateral agent, for the benefit of the Noteholders.
Upon
the termination of the Issuer or the discharge of the Indenture, the Indenture
Trustee shall inform the Securities Intermediary of such termination. By
acceptance of their Notes or interests therein, the Noteholders shall be deemed
to have appointed the Securities Administrator as Securities Intermediary.
The
Securities Administrator hereby accepts such appointment as Securities
Intermediary.
(b) With
respect to the Trust Account Property credited to the Trust Accounts, the
Securities Intermediary agrees that:
(i) with
respect to any Trust Account Property that is held in deposit accounts, each
such deposit account shall be subject to the exclusive custody and control
of
the Securities Intermediary, and the Securities Intermediary shall have sole
signature authority with respect thereto;
(ii) the
sole
assets permitted in each Trust Account shall be those as the Securities
Intermediary agrees to treat as Financial Assets; and
(iii) any
such
Trust Account Property that is, or is treated as, a Financial Asset shall be
physically delivered (accompanied by any required endorsements) to, or credited
to an account in the name of, the Securities Intermediary or other eligible
institution maintaining each Trust Account in accordance with the Securities
Intermediary’s customary procedures such that the Securities Intermediary or
such other institution establishes a Security Entitlement in favor of the
Indenture Trustee with respect thereto over which the Securities Intermediary
or
such other institution has Control;
(c) The
Securities Intermediary hereby confirms that (A) each Trust Account is an
account to which Financial Assets are or may be credited, and the Securities
Intermediary shall, subject to the terms of this Agreement, treat the Indenture
Trustee, as collateral agent, as entitled to exercise the rights that comprise
any Financial Asset credited to each Trust Account, (B) all Trust Account
Property in respect of each Trust Account will be promptly credited by the
Securities Intermediary to such account, and (C) all securities or other
property underlying any Financial Assets credited to each Trust Account shall
be
registered in the name of the Securities Intermediary, endorsed to the
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case will any
Financial Asset credited to any Trust Account be registered in the name of
the
Depositor or the Issuer, payable to the order of the Depositor or the Issuer
or
specially endorsed to the Depositor or the Issuer, except to the extent the
foregoing have been specially endorsed to the Securities Intermediary or in
blank;
112
(d) The
Securities Intermediary hereby agrees that each item of property (whether
investment property, Financial Asset, security, instrument or cash) credited
to
each Trust Account shall be treated as a Financial Asset;
(e) If
at any
time the Securities Intermediary shall receive an Entitlement Order from the
Indenture Trustee (or the Securities Administrator on its behalf) directing
transfer or redemption of any Financial Asset relating to any Trust Account,
the
Securities Intermediary shall comply with such Entitlement Order without further
consent by the Depositor, the Issuer or any other Person. If at any time the
Indenture Trustee or the Securities Administrator notifies the Securities
Intermediary in writing that the Issuer has been terminated or the Indenture
discharged in accordance herewith and with the Trust Agreement or the Indenture,
as applicable, and the security interest granted pursuant to the Indenture
has
been released, then thereafter if the Securities Intermediary shall receive
any
order from the Depositor or the Issuer directing transfer or redemption of
any
Financial Asset relating to any Trust Account, the Securities Intermediary
shall
comply with such Entitlement Order without further consent by the Indenture
Trustee or any other Person;
(f) In
the
event that the Securities Intermediary has or subsequently obtains by agreement,
operation of law or otherwise a security interest in a Trust Account or any
Financial Asset credited thereto, the Securities Intermediary hereby agrees
that
such security interest shall be subordinate to the security interest of the
Indenture Trustee. The Financial Assets credited to each Trust Account will
not
be subject to deduction, set-off, banker’s lien, or any other right in favor of
any Person other than the Indenture Trustee (except that the Securities
Intermediary may set-off (i) all amounts due to it in respect of its customary
fees and expenses for the routine maintenance and operation of a Trust Account
and (ii) the face amount of any checks which have been credited to a Trust
Account but are subsequently returned unpaid because of uncollected or
insufficient funds);
(g) There
are
no other agreements entered into between the Securities Intermediary in such
capacity and the Depositor or the Issuer with respect to the Trust Accounts.
In
the event of any conflict between this Agreement (or any provision of this
Agreement) and any other agreement now existing or hereafter entered into,
the
terms of this Agreement shall prevail;
(h) The
rights and powers granted under the Indenture and herein to the Indenture
Trustee have been granted in order to perfect its security interest in each
Trust Account and the Security Entitlements to the Financial Assets credited
thereto, and are powers coupled with an interest and will neither be affected
by
the bankruptcy of the Depositor or the Issuer nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
until the security interest of the Indenture Trustee in the Trust Accounts,
and
in such Security Entitlements, has been terminated pursuant to the terms of
this
Agreement and the Indenture Trustee or the Issuer, as applicable, has notified
the Securities Intermediary of such termination in writing; and
113
(i) Notwithstanding
anything else contained herein, the Depositor and the Issuer agree that each
Trust Account will be established only with the Securities Intermediary or
another institution meeting the requirements of this Section, which by
acceptance of its appointment as Securities Intermediary agrees substantially
as
follows: (1) it will comply with Entitlement Orders related to each Trust
Account issued by the Indenture Trustee, as collateral agent, without further
consent by the Depositor or the Issuer, without further consent by the
Depositor; (2) until termination of the Issuer or discharge of the Indenture,
it
will not enter into any other agreement related to such accounts pursuant to
which it agrees to comply with Entitlement Orders of any Person other than
the
Indenture Trustee, as collateral agent, or the Securities Administrator on
its
behalf; and (3) all assets delivered or credited to it in connection with such
account and all investments thereof will be promptly credited to the applicable
account.
(j) Notwithstanding
the foregoing, the Issuer shall have the power, revocable by the Indenture
Trustee or by the Owner Trustee with the consent of the Indenture Trustee,
to
instruct the Indenture Trustee, the Securities Administrator and the Master
Servicer to make withdrawals and payments from each Trust Account for the
purpose of permitting the Master Servicer, the Securities Administrator or
the
Owner Trustee to carry out its respective duties hereunder or permitting the
Indenture Trustee to carry out its duties under the Indenture.
(k) Each
of
the Depositor and the Issuer agrees to take or cause to be taken such further
actions, to execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments (including, without limitation,
any
financing statements under the Relevant UCC or this Agreement) as may be
necessary to perfect the interests created by this Section in favor of the
Issuer and the Indenture Trustee and otherwise fully to effectuate the purposes,
terms and conditions of this Section. The Depositor shall:
(i) promptly
execute, deliver and file any financing statements, amendments, continuation
statements, assignments, certificates and other documents with respect to such
interests and perform all such other acts as may be necessary in order to
perfect or to maintain the perfection of the Issuer’s and the Indenture
Trustee’s security interest in the Trust Account Property; and
(ii) make
the
necessary filings of financing statements or amendments thereto within five
days
after the occurrence of any of the following: (1) any change in its corporate
name or any trade name or its jurisdiction of organization; (2) any change
in
the location of its chief executive office or principal place of business;
and
(3) any merger or consolidation or other change in its identity or corporate
structure and promptly notify the Issuer and the Indenture Trustee of any such
filings.
114
(iii) Neither
the Depositor nor the Issuer shall organize under the law of any jurisdiction
other than the State under which each is organized as of the Closing Date
(whether changing its jurisdiction of organization or organizing under an
additional jurisdiction) without giving [thirty (30)] days prior written notice
of such action to its immediate and mediate transferee, including the Indenture
Trustee. Before effecting such change, each of the Depositor or the Issuer
proposing to change its jurisdiction of organization shall prepare and file
in
the appropriate filing office any financing statements or other statements
necessary to continue the perfection of the interests of its immediate and
mediate transferees, including the Indenture Trustee, in the Trust Account
Property. In connection with the transactions contemplated by the Operative
Agreements relating to the Trust Account Property, each of the Depositor and
the
Issuer authorizes its immediate or mediate transferee to file in any filing
office any initial financing statements, any amendments to financing statements,
any continuation statements, or any other statements or filings described in
this Section 6.03.
None
of
the Securities Intermediary or any director, officer, employee or agent of
the
Securities Intermediary shall be under any liability to the Indenture Trustee
or
the Noteholders for any action taken, or not taken, in good faith pursuant
to
this Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Securities Intermediary against any
liability to the Indenture Trustee or the Noteholders which would otherwise
be
imposed by reason of the Securities Intermediary’s willful misconduct, bad faith
or negligence in the performance of its obligations or duties hereunder. The
Securities Intermediary and any director, officer, employee or agent of the
Securities Intermediary may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any Person respecting
any matters arising hereunder. The Securities Intermediary shall be under no
duty to inquire into or investigate the validity, accuracy or content of such
document. The Issuer shall indemnify the Securities Intermediary for and hold
it
harmless against any loss, liability or expense arising out of or in connection
with this Agreement and carrying out its duties hereunder, including the costs
and expenses of defending itself against any claim of liability, except in
those
cases where the Securities Intermediary has been guilty of bad faith, negligence
or willful misconduct. The foregoing indemnification shall survive any
termination of this Agreement or the resignation or removal of the Securities
Intermediary.
Section
6.04. Monthly
Advances by Master Servicer and Servicer[s].
(a) Subject
to Section 4.03(c), Monthly Advances shall be made in respect of each Servicer
Remittance Date as provided herein. If, on any Determination Date, [the/a]
Servicer determines that any Monthly Payments due during the related Collection
Period have not been received, such Servicer shall advance such amount to the
extent provided in Section 4.03(c) hereof. If any Servicer fails to remit
Monthly Advances required to be made under Section 4.03(c) hereof, the Master
Servicer shall itself make, or shall cause the successor Servicer to make,
such
Monthly Advance on the Servicer Remittance Date immediately following such
Determination Date. If the Master Servicer determines that a Monthly Advance
is
required, it shall on the Business Day immediately prior to the related Payment
Date deposit in the Collection Account (from its own funds or funds advanced
by
the Servicer[s]) immediately available funds in an amount equal to such Monthly
Advance. The Master Servicer and the Servicer[s] shall be entitled to be
reimbursed from the Collection Account, and the Servicer shall be entitled
to be
reimbursed from the Custodial Account, for all Monthly Advances made by it
as
provided in Section 4.02(e). Notwithstanding anything to the contrary herein,
in
the event the Master Servicer determines in its reasonable judgment that a
Monthly Advance is a Nonrecoverable Advance, the Master Servicer shall be under
no obligation to make such Monthly Advance.
115
(b) In
the
event that the Master Servicer or [related] Servicer fails for any reason to
make a Monthly Advance required to be made pursuant to this Section 6.04, the
Indenture Trustee, as successor Master Servicer, shall, on or before the related
Payment Date, deposit in the Collection Account an amount equal to the excess
of
(a) Monthly Advances required to be made by the Master Servicer or the
Servicer[s] that would have been deposited in such Collection Account over
(b)
the amount of any Monthly Advance made by the Master Servicer or the Servicer[s]
with respect to such Payment Date; provided,
however,
that
the Indenture Trustee as successor Master Servicer shall be required to make
such Monthly Advance only if it is not prohibited by law from doing so and
it
has determined that such Monthly Advance would be recoverable from amounts
to be
received with respect to such Mortgage Loan, including late payments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, or otherwise.
The Indenture Trustee shall be entitled to be reimbursed from the Collection
Account for Monthly Advances made by it pursuant to this Section 6.04 as if
it
were the Master Servicer and shall be entitled to receive all compensation
and
fees of the Master Servicer in accordance with Section 8.01(b).
Section
6.05. [Cap]
[Swap] Agreements.
(a) The
Securities Administrator shall establish and maintain an Eligible Account in
its
name, in trust for the benefit of the Noteholders, the [Cap] [Swap]
Account.
(b) The
Securities Administrator shall deposit any [Cap Receipts] [Net Swap Payment]
received on any [Cap] [Swap] Agreement Payment Date into the [Cap] [Swap]
Account. Amounts on deposit in the [Cap] [Swap] Account shall remain
uninvested.
(c) On
each
Payment Date, the Securities Administrator shall distribute the amounts received
by the Trust under each [Cap] [Swap] Agreement to holders of the Notes in the
following order of priority:
(i) [concurrently,
in proportion to the amount of Accrued Note Interest for each such Class, to
the
Senior Notes, Accrued Note Interest for each such Class for such Payment Date,
after giving effect to payments made pursuant to Section
6.02(a)(ii);]
(ii) [to
the
Class [ ] Notes, Accrued Note Interest for such Class for such
Payment Date, after giving effect to payments made pursuant to Section
6.02(a)(iii);]
116
(iii) [to
the
Class [ ] Notes, Accrued Note Interest for such Class for such
Payment Date, after giving effect to payments made pursuant to Section
6.02(a)(iv);]
(iv) concurrently,
pro
rata,
in
proportion to the amount of Basis Risk Shortfall applicable to each such Class,
to the Senior Notes, any applicable Basis Risk Shortfall for each such Class
and
such Payment Date;
(v) to
the
Class [ ] Notes, any applicable Basis Risk Shortfall for such
Class and such Payment Date;
(vi) to
the
Class [ ] Notes, any applicable Basis Risk Shortfall for such
Class and such Payment Date; and
(vii) to
the
Certificate Distribution Account, for payment to the Residual Holder (or as
otherwise provided in the Trust Agreement), any amount remaining on such Payment
Date after application pursuant to clauses (i) through ([ ])
above.
If
such
amounts are insufficient to cover the total amount of any Basis Risk Shortfall,
the only other source of coverage will be the Monthly Excess Cashflow, if any,
that would otherwise be payable to the Ownership Certificate.
(d) On
the
date on which the [Cap] [Swap] Agreements have terminated and any amounts
therefrom have been paid in accordance with Section 6.05(c) above, any amounts
remaining in the [Cap] [Swap] Account shall be paid by the Securities
Administrator to the Ownership Certificate, and the [Cap] [Swap] Account shall
be terminated by the Securities Administrator.]
(e) [On
each
Payment Date for which the Securities Administrator has received a payment
under
a Swap Agreement, the Securities Administrator shall pay such amounts pursuant
to priorities provided in Section 6.05(c). On each Payment Date, the Securities
Administrator shall pay in accordance with the monthly report furnished by
it
with respect to such Payment Date pursuant to Section 5.08 in the order of
priority and to the extent specified in Section 6.05(c) of this Agreement any
payments made by the Swap Counterparty to the Securities Administrator on behalf
of the Trust for such Payment Date with respect to the applicable Swap
Agreement.]
(f) [If
the
Securities Administrator shall not have received a payment with respect to
any
Swap Agreement by the date on which such payment was due and payable pursuant
to
the terms thereof, the Securities Administrator shall make demand upon the
Swap
Counterparty for immediate payment, and the Indenture Trustee may, and at the
direction of a majority (by Voting Interests) of the Noteholders shall, take
any
available legal action, including the prosecution of any claims in connection
therewith. The Depositor and the Issuer shall cooperate with the Securities
Administrator and the Indenture Trustee in connection with any such demand
or
action to the extent reasonably requested by the Securities Administrator or
the
Indenture Trustee. The reasonable legal fees and expenses incurred by the
Indenture Trustee in connection with the prosecution of any such legal action
shall be reimbursable to the Indenture Trustee from the Trust.]
117
(g) [At
any
time when the Issuer is permitted to terminate a Swap Agreement pursuant to
the
terms of such agreement (whether due to the occurrence of an event of default,
a
termination event or otherwise), the Securities Administrator, on behalf of
the
Issuer, shall terminate such Swap Agreement in writing (i) subject to the Rating
Agency Condition or (ii) at the written direction of any Rating Agency; provided
that prior to or simultaneously with any termination of any Swap Agreement
by
the Issuer as a result of any downgrade of the ratings of the Swap Counterparty
or its credit support provider, the Issuer shall have entered into a substitute
Swap Agreement.]
(h) [In
the
event of an early termination of a Swap Agreement, the Issuer shall enter into
a
substitute Swap Agreement (i) within 20 days after the termination of such
existing Swap Agreement or (ii) prior to or simultaneously with the termination
of the existing Swap Agreement as described in Section 6.05(g) above, with
a
substitute counterparty acceptable to the Rating Agencies. The Depositor, on
behalf of the Issuer, shall send written notice to the Securities Administrator,
the Indenture Trustee and each Rating Agency, within 10 days of the termination
of the existing Swap Agreement, identifying a proposed counterparty with respect
to the substitute Swap Agreement. Any proposed substitute counterparty shall
be
subject to the prior written approval of each Rating Agency.]
(i) [Any
up-front fee payable to a replacement Swap Counterparty or other cost or expense
associated with the Issuer’s entering into a new Swap Agreement pursuant to this
Section 6.05 shall be payable by or on behalf of the Issuer from any payment
received by the Securities Administrator in connection with any termination
of
the existing Swap Agreement; provided,
however,
if such
amount received is not sufficient to pay such up-front fee, the difference
shall
be paid pursuant to Section 6.02(c)(xix).]
(j) [Any
up-front premium payable to the Trust by a replacement Swap Counterparty in
connection with a replacement Swap Agreement shall be distributed pursuant
to
the priorities provided in Section 6.05(c).]
(k) [Promptly
upon receipt of written notice of termination of any Swap Agreement, the
Securities Administrator shall cause notice thereof to be mailed by first-class
mail, postage prepaid, to each Rating Agency and the Noteholders at their last
addresses appearing upon the Note Register.]
[To
be
modified in accordance with the structure of the related
transaction.]
118
Section
6.06. The
Capitalized Interest Account.
[The
Securities Administrator shall establish and maintain in its name, as Securities
Administrator, a trust account entitled “Capitalized Interest Account,
[ ], as Securities Administrator, in trust for the benefit of
the Holders of “TBW Mortgage
Trust [ ] Mortgage Backed Notes.” The Capitalized Interest
Account shall be an Eligible Account and if the account ceases to be an Eligible
Account, the Securities Administrator shall establish a new Capitalized Interest
Account that is also an Eligible Account within five Business Days and transfer
all funds and investment property on deposit in the Capitalized Interest Account
into such new Capitalized Interest Account. On the Closing Date, the Depositor
shall deposit in the Capitalized Interest Account the Original Capitalized
Interest Amount. On the Business Day preceding any Payment Date occurring during
the Pre-Funding Period, the Securities Administrator shall withdraw from the
Capitalized Interest Account an amount equal to the Capitalized Interest
Requirement for deposit into the Note Payment Account for distribution to
Noteholders in accordance with this Article VI on such Payment Date. Amounts
on
deposit in the Capitalized Interest Account may be invested by the Securities
Administrator in Eligible Investments at the written direction of the Depositor.
All investment income and other gain on such investments shall be for the
benefit of the Depositor and shall be subject to withdrawal on order of the
Depositor from time to time. The amount of any losses incurred in respect of
any
such investments shall be paid by the Depositor by a deposit into the
Capitalized Interest Account of its own funds, immediately as realized. At
the
end of the Pre-Funding Period, all amounts, if any, on deposit in the
Capitalized Interest Account shall be withdrawn by the Securities Administrator
and distributed to the Depositor and the Capitalized Interest Account shall
be
terminated.
Section
6.07. [The
Pre-Funding Account] [The Revolving Account].
(a) The
Securities Administrator shall establish and maintain in its name, as Securities
Administrator, a trust account entitled “[Pre-Funding Account] [Revolving
Account], [ ], as Securities Administrator, in trust for the
benefit of the Holders of “TBW Mortgage
Trust [ ] Mortgage Backed Notes” and the funds therein shall
be used solely for the purchase of [Subsequent Mortgage Loans] [Additional
Mortgage Loans]. The [Pre-Funding Account] [Revolving Account] shall be an
Eligible Account and if the account ceases to be an Eligible Account, the
Securities Administrator shall establish a new [Pre-Funding Account] [Revolving
Account] that is also an Eligible Account within five Business Days and transfer
all funds and investment property on deposit in the [Pre-Funding Account]
[Revolving Account] into such new [Pre-Funding Account] [Revolving Account].
On
the Closing Date, the Depositor shall cause to be deposited the [Pre-Funding
Amount] [Revolving Amount], into the [Pre-Funding Account] [Revolving Account].
On any subsequent Transfer Date, provided the conditions set forth in Section
2.01(b) have been fully satisfied, the Securities Administrator shall cause
to
be withdrawn from the [Pre-Funding Account ] [Revolving Account] an amount
equal
to the Transfer Price of any [Subsequent Mortgage Loans] [Additional Mortgage
Loans] as of any applicable Transfer Date sold to the Issuer and to pay such
Transfer Price to the Depositor. In no event shall the Securities Administrator
withdraw from the [Pre-Funding Account] [Revolving Account] an amount in excess
of the [Pre-Funding Amount] [Revolving Amount] or withdraw funds from the
[Pre-Funding Account] [Revolving Account] during the [Pre-Funding Period]
[Revolving Period] for any other purpose.
119
(b) Funds
in
the [Pre-Funding Account] [Revolving Account] may be invested by the Securities
Administrator in Eligible Investments at the written direction of the Depositor.
All income and gain on such investments shall be for the benefit of the
Depositor and shall be subject to withdrawal on order by the Depositor from
time
to time. The amount of any losses incurred in respect of any such investments
shall be paid by the Depositor by a deposit in the [Pre-Funding Account]
[Revolving Account] out of its own funds, without any right of reimbursement
therefor, immediately as realized.
On
the
Business Day immediately following the end of the [Pre-Funding Period]
[Revolving Period], the Securities Administrator shall transfer any amounts
on
deposit in the [Pre-Funding Account] [Revolving Account] to the Note Payment
Account for distribution on the Payment Date occurring in [ ]
as principal to the Holders of the Notes in accordance with this Article
VI.
ARTICLE
VII
THE
SECURITIES ADMINISTRATOR
Section
7.01. Duties
of the Securities Administrator.
(a) The
Securities Administrator undertakes to perform such duties and only such duties
as are specifically set forth in this Agreement and shall not be liable except
for the performance of such duties and obligations as are specifically set
forth
in this Agreement and no implied covenants or obligations shall be read into
this Agreement against the Securities Administrator.
(b) In
the
absence of bad faith on its part, the Securities Administrator may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Securities
Administrator and on their face conforming to the requirements of this
Agreement; however, the Securities Administrator shall examine the certificates
and opinions to determine whether or not they conform on their face to the
requirements of this Agreement.
(c) The
Securities Administrator may not be relieved from liability for its own
negligent action, its own negligent failure to act, its own willful misconduct
or its own bad faith, except that:
(i) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the
Securities Administrator shall not be liable for any error of judgment made
in
good faith by a Responsible Officer unless it is proved that the Securities
Administrator was negligent in ascertaining the pertinent facts;
and
(iii) the
Securities Administrator shall not be liable with respect to any action it
takes
or omits to take in good faith in accordance with this Agreement.
120
Section
7.02. Records.
The
Securities Administrator shall maintain appropriate books of account and records
relating to services performed hereunder, which books of account and records
shall be accessible for inspection by the Issuer and the Depositor at any time
during normal business hours with prior written notification.
Section
7.03. Compensation
and Indemnity.
The
Securities Administrator will perform the duties and provide the services under
this Agreement for such compensation as shall be agreed upon between the
Securities Administrator and the Master Servicer. The Issuer shall indemnify
the
Securities Administrator and its employees, directors and agents from funds
in
the Accounts, against any and all claim, loss, liability or expense (including
attorneys’ fees) incurred by it in connection with the performance of its duties
hereunder or under any Operative Agreement. The Securities Administrator shall
notify the Issuer promptly of any claim for which it may seek indemnity. Failure
by the Securities Administrator to so notify the Issuer shall not relieve the
Issuer of its obligations hereunder. The Issuer shall defend any such claim,
and
the Securities Administrator may have separate counsel fees and expenses of
such
counsel shall be payable on behalf of the Issuer from funds in the Accounts.
The
Issuer shall not be required to reimburse any expense or indemnify against
any
loss, liability or expense incurred by the Securities Administrator through
the
Securities Administrator’s own willful misconduct, negligence or bad
faith.
The
Issuer’s obligations to the Securities Administrator pursuant to this Section
shall survive the resignation or removal of the Securities
Administrator.
Section
7.04. Additional
Information to be Furnished to the Issuer.
The
Depositor shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably
request.
Section
7.05. Independence
of the Securities Administrator.
For all
purposes of this Agreement, the Securities Administrator shall be an independent
contractor and shall not be subject to the supervision of the Issuer or the
Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized by the
Issuer, the Securities Administrator shall have no authority to act for or
represent the Issuer or the Owner Trustee in any way and shall not otherwise
be
deemed an agent of the Issuer or the Owner Trustee.
Section
7.06. No
Joint Venture.
Nothing
contained in this Agreement (i) shall constitute the Securities Administrator
or
the Depositor, respectively, and either of the Issuer or the Owner Trustee,
as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section
7.07. Other
Activities of Securities Administrator.
Nothing
herein shall prevent the Securities Administrator or its Affiliates from
engaging in other businesses or, in its sole discretion, from acting in a
similar capacity as an Securities Administrator for any other person or entity
even though such person or entity may engage in business activities similar
to
those of the Issuer or the Owner Trustee.
121
Section
7.08. Resignation
and Removal of Securities Administrator.
(a) Subject
to Section 7.08(d) hereof, the Securities Administrator may resign its duties
hereunder by providing the Issuer with at least [60] days’ prior written
notice.
(b) Subject
to Section 7.08(d) hereof, the Issuer may remove the Securities Administrator
without cause by providing the Securities Administrator with at least 60 days’
prior written notice.
(c) Subject
to Section 7.08(d) hereof, the Issuer may remove the Securities Administrator
immediately upon written notice of termination from the Issuer to the Securities
Administrator if any of the following events shall occur:
(i) the
Securities Administrator shall default in the performance of any of its duties
under this Agreement and, after notice of such default, shall not cure such
default within ten days (or, if such default cannot be cured in such time,
shall
not give within ten days such assurance of cure as shall be reasonably
satisfactory to the Issuer); or
(ii) a
court
having jurisdiction in the premises shall (x) enter a decree or order for
relief, which decree or order shall not have been vacated within 60 days, in
respect of the Securities Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or (y) appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Securities Administrator or any
substantial part of its property, or (z) order the winding-up or liquidation
of
the Securities Administrator’s affairs; or
(iii) the
Securities Administrator shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for the
Securities Administrator or any substantial part of its property, shall consent
to the taking of possession by any such official of any substantial part of
its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The
Securities Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 7.08(c) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven days after the
occurrence of such event.
(d) No
resignation or removal of the Securities Administrator pursuant to this Section
shall be effective until (i) a successor Securities Administrator shall have
been appointed by the Issuer in accordance with this Agreement and (ii) such
successor Securities Administrator shall have agreed in writing to be bound
by
the terms of this Agreement in the same manner as the Securities Administrator
is bound hereunder. If a successor Securities Administrator does not take office
within [60] days after the retiring Securities Administrator resigns or is
removed, the resigning or removed Securities Administrator or the Issuer may
petition any court of competent jurisdiction for the appointment of a successor
Securities Administrator.
122
(e) [In
the
event of the resignation or removal of the Securities Administrator under the
terms of this Agreement, the Issuer shall appoint a successor securities
administrator having a combined capital of $50,000,000 as set forth in its
most
recent published annual report of condition and it or its parent shall have
a
long term debt rating of Baa3 or better by Moody’s and BBB or better by S&P.
The appointment of any successor Securities Administrator shall be effective
only after receipt of a letter from each Rating Agency to the effect that such
proposed appointment will not cause a reduction or withdrawal of the then
current ratings of the Notes.]
(f) Subject
to Sections 7.08(d) and 7.08(d) above, the Securities Administrator acknowledges
that upon the appointment of a successor Master Servicer pursuant to Section
8.01, the Securities Administrator shall immediately resign and such successor
Master Servicer shall automatically become the Securities Administrator under
this Agreement. Any such successor Master Servicer shall be required to agree
to
assume the duties of the Securities Administrator under the terms and conditions
of this Agreement and the other Operative Agreements in its acceptance of
appointment as successor Master Servicer. Additionally, the Master Servicer
acknowledges that upon the appointment of a successor Securities Administrator
pursuant to this Section 7.08, the Master Servicer shall immediately resign
and
such successor Securities Administrator shall automatically become the Master
Servicer under this Agreement. Any such successor Securities Administrator
shall
be required to agree to assume the duties of the Master Servicer under the
terms
and conditions of this Agreement and the other Operative Agreements in its
acceptance of appointment as successor Securities Administrator.
(g) [The
Securities Administrator (i) may not be an Originator, Master Servicer,
Servicer[s], the Depositor or
an
affiliate of the Depositor unless the Securities Administrator is in an
institutional trust department of the Securities Administrator, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch
is a
Rating Agency, or the equivalent rating by S&P or Moody's. If no successor
Securities Administrator shall have been appointed and shall have accepted
appointment within 90 days after the Securities Administrator ceases to be
the
Securities Administrator pursuant to this Section 7.08, then the Indenture
Trustee shall perform the duties of the Securities Administrator pursuant to
this Agreement. The Indenture Trustee shall be entitled to receive the same
amount of compensation as the Securities Administrator in the event that it
is
required to perform the duties of Securities Administrator. The Indenture
Trustee shall notify the Rating Agencies of any change of Securities
Administrator.]
Section
7.09. Action
upon Termination, Resignation or Removal of the Securities
Administrator.
Promptly upon the effective date of termination of this Agreement or the
resignation or removal of the Securities Administrator pursuant to Section
7.08
hereof, the Securities Administrator shall be entitled to be paid all
reimbursable expenses, including any reasonable out-of-pocket attorneys’ fees,
accruing to it to the date of such termination, resignation or removal. The
Securities Administrator shall forthwith upon such termination pursuant to
Section 7.08 deliver to the successor Securities Administrator all property
and
documents of or relating to the Collateral then in the custody of the Securities
Administrator, or if this Agreement has been terminated, to the Depositor.
In
the event of the resignation or removal of the Securities Administrator pursuant
to Section 7.08, the Securities Administrator shall cooperate with the Issuer
and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Securities Administrator.
123
ARTICLE
VIII
MASTER
SERVICER EVENTS OF DEFAULT
Section
8.01. Master
Servicer Events of Default; Indenture Trustee To Act; Appointment of
Successor.
(a) The
occurrence of any one or more of the following events shall constitute a “Master
Servicer Event of Default”:
(i) [Any
failure by the Master Servicer to cause to be deposited in the Collection
Account any amount so required to be deposited pursuant to this Agreement (other
than a Monthly Advance), and such failure continues unremedied for a period
of
three Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer;
or
(ii) Any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
by the Indenture Trustee or the Securities Administrator or to the Master
Servicer and the Indenture Trustee by the Majority Noteholders; or
(iii) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of [60] days or any
Rating Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the Notes because of the financial condition or loan servicing capability
of
such Master Servicer; or
124
(iv) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
the
Master Servicer or of or relating to all or substantially all of its property;
or
(v) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors or voluntarily suspend payment of its obligations; or
(vi) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
5.19
hereof; or
(vii) If
a
representation or warranty set forth in Section 5.01 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Noteholders, and the circumstance or condition
in
respect of which such representation or warranty was incorrect shall not have
been eliminated or cured within 30 days after the date on which written notice
of such incorrect representation or warranty shall have been given to the Master
Servicer by the Indenture Trustee or the Securities Administrator, or to the
Master Servicer and the Indenture Trustee by the Majority Noteholders;
or
(viii) A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or duties
of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted hereunder and without the prior written consent of the Indenture
Trustee and the Majority Noteholders; or
(ix) The
Master Servicer has notice or actual knowledge that [the/a] Servicer at any
time
is not either a Xxxxxx Mae- or Xxxxxxx Mac-approved Seller/Servicer, and the
Master Servicer has not terminated the rights and obligations of such Servicer
under this Agreement and replaced the Servicer with an Xxxxxx Mae- or Xxxxxxx
Mac-approved servicer within [60] days of the date the Master Servicer receives
such notice or acquires such actual knowledge; or
(x) Any
failure of the Master Servicer to remit to the Securities Administrator any
Monthly Advance required to be made to the Securities Administrator for the
benefit of Noteholders under the terms of this Agreement, which failure
continues unremedied as of the close of business on the Business Day prior
to a
Payment Date.
If
a
Master Servicer Event of Default described in clauses (i) through (ix) of this
Section 8.01 shall occur, then, in each and every case, subject to applicable
law, so long as any such Master Servicer Event of Default shall not have been
remedied within any period of time prescribed by this Section 8.01, the
Indenture Trustee, upon obtaining actual knowledge thereof, by notice in writing
to the Master Servicer may, and shall, if so directed by the Majority
Noteholders, terminate all of the rights and obligations of the Master Servicer
hereunder and in and to the Mortgage Loans and the proceeds thereof. If a Master
Servicer Event of Default described in clause (x) of this Section 8.01 shall
occur, then, in each and every case, subject to applicable law, so long as
such
Master Servicer Event of Default shall not have been remedied within the time
period prescribed by clause (x) of this Section 8.01, the Indenture Trustee,
by
notice in writing to the Master Servicer, shall promptly terminate all of the
rights and obligations of the Master Servicer hereunder and in and to the
Mortgage Loans and the proceeds thereof. On or after the receipt by the Master
Servicer of such written notice, all authority and power of the Master Servicer,
and only in its capacity as Master Servicer under this Agreement, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the
Indenture Trustee pursuant to and under the terms of this Agreement; and the
Indenture Trustee is hereby authorized and empowered to execute and deliver,
on
behalf of the defaulting Master Servicer as attorney-in-fact or otherwise,
any
and all documents and other instruments, and to do or accomplish all other
acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents or otherwise. The defaulting Master
Servicer agrees to cooperate with the Indenture Trustee in effecting the
termination of the defaulting Master Servicer’s responsibilities and rights
hereunder as Master Servicer including, without limitation, notifying the
Servicer[s] of the assignment of the master servicing function and providing
the
Indenture Trustee or its designee all documents and records in electronic or
other form reasonably requested by it to enable the Indenture Trustee or its
designee to assume the defaulting Master Servicer’s functions hereunder and the
transfer to the Indenture Trustee for administration by it of all amounts which
shall at the time be or should have been deposited by the defaulting Master
Servicer in the Collection Account maintained by such defaulting Master Servicer
and any other account or fund maintained with respect to the Notes or thereafter
received with respect to the Mortgage Loans. The Master Servicer being
terminated shall bear all reasonable out-of-pocket costs of a master servicing
transfer, including but not limited to those of the Indenture Trustee, legal
fees and expenses, accounting and financial consulting fees and expenses, and
costs of amending the Agreement, if necessary.]
125
The
Indenture Trustee shall be entitled to be reimbursed from the Master Servicer
(or by the Trust Estate, if the Master Servicer is unable to fulfill its
obligations hereunder) for all costs associated with the transfer of servicing
from the predecessor Master Servicer, including, without limitation, any costs
or expenses associated with the complete transfer of all servicing data and
the
completion, correction or manipulation of such servicing data as may be required
by the Indenture Trustee to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Indenture Trustee to master service
the Mortgage Loans properly and effectively. If the terminated Master Servicer
does not pay such reimbursement within thirty (30) days of its receipt of an
invoice therefore, such reimbursement shall be an expense of the Trust Estate
and the Indenture Trustee shall be entitled to withdraw such reimbursement
from
amounts on deposit in the Collection Account pursuant to Section
5.07(viii);
provided
that the
terminated Master Servicer shall reimburse the Trust Estate for any such expense
incurred by the Trust Estate; and provided,
further,
that
the Indenture Trustee shall take such action, if any, as provided in the
Indenture and as directed by the Noteholders pursuant thereto with respect
to
pursuing any remedy against any party obligated to make such
reimbursement.
126
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 5.07 to the extent such reimbursement relates to the period prior
to
such Master Servicer’s termination.
If
any
Master Servicer Event of Default shall occur, of which a Responsible Officer
of
the Indenture Trustee has actual knowledge, the Indenture Trustee shall promptly
notify each Rating Agency of the nature and extent of such Master Servicer
Event
of Default. The Securities Administrator or the Master Servicer shall
immediately give written notice by facsimile to the Indenture Trustee upon
the
Master Servicer’s failure to remit Monthly Advances on the date specified
herein.
(b) On
and
after the time the Master Servicer receives a notice of termination from the
Indenture Trustee pursuant to Section 8.01(a) or the Indenture Trustee receives
the resignation of the Master Servicer evidenced by an Opinion of Counsel
pursuant to Section 5.20, the Indenture Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the Master
Servicer in its capacity as such under this Agreement and the transactions
set
forth or provided for herein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto
and
arising thereafter placed on the Master Servicer hereunder, including the
obligation to make Monthly Advances; provided,
however,
that
any failure to perform such duties or responsibilities caused by the Master
Servicer’s failure to provide information required by this Agreement shall not
be considered a default by the Indenture Trustee hereunder. In addition, the
Indenture Trustee shall have no responsibility for any act or omission of the
Master Servicer prior to the issuance of any notice of termination and shall
have no liability relating to the representations and warranties of the Master
Servicer set forth in Section 5.01. In the Indenture Trustee’s capacity as such
successor, the Indenture Trustee shall have the same limitations on liability
herein granted to the Master Servicer. As compensation therefor, the Indenture
Trustee shall be entitled to receive all compensation payable to the Master
Servicer under this Agreement.
(c) Notwithstanding
the above, the Indenture Trustee may, if it shall be unwilling to continue
to so
act, or shall, if it is unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $15,000,000 and meeting such
other standards for a successor master servicer as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of all
of
the responsibilities, duties or liabilities of a master servicer, like the
Master Servicer. Such successor Master Servicer may be an Affiliate of the
Indenture Trustee; provided,
however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Indenture Trustee, in its
individual capacity shall agree, at the time of such designation, to be and
remain liable to the Issuer and the Indenture Trustee for such Affiliate’s
actions and omissions in performing its duties hereunder. In connection with
such appointment and assumption, the Indenture Trustee may make such
arrangements for the compensation of such successor out of payments on the
Mortgage Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted to the Master Servicer
hereunder. The Indenture Trustee and such successor shall take such actions,
consistent with this Agreement, as shall be necessary to effectuate any such
succession and may make other arrangements with respect to the servicing to
be
conducted hereunder which are not inconsistent herewith. The Master Servicer
shall cooperate with the Indenture Trustee and any successor master servicer
in
effecting the termination of the Master Servicer’s responsibilities and rights
hereunder including, without limitation, notifying the Servicer[s] of the
assignment of the master servicing functions and providing the Indenture Trustee
and successor master servicer, as applicable, all documents and records in
electronic or other form reasonably requested by it to enable it to assume
the
Master Servicer’s functions hereunder and the transfer to the Indenture Trustee
or such successor master servicer, as applicable, all amounts or investment
property which shall at the time be or should have been deposited by the Master
Servicer in the Collection Account and any other account or fund maintained
with
respect to the Notes or thereafter be received with respect to the Mortgage
Loans. Neither the Indenture Trustee nor any other successor master servicer
shall be deemed to be in default hereunder by reason of any failure to make,
or
any delay in making, any payment hereunder or any portion thereof caused by
(i)
the failure of the Master Servicer to deliver, or any delay in delivering,
cash,
documents or records to it, (ii) the failure of the Master Servicer to cooperate
as required by this Agreement, (iii) the failure of the Master Servicer to
deliver the Mortgage Loan data to the Indenture Trustee as required by this
Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer.
127
Section
8.02. Additional
Remedies of Indenture Trustee Upon Event of Default.
During
the continuance of any Master Servicer Event of Default, so long as such Master
Servicer Event of Default shall not have been remedied, the Indenture Trustee,
in addition to the rights specified in Section 8.01, shall have the right,
in
its own name and as trustee of an express trust, to take all actions now or
hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies,
of
the Noteholders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filings of proofs of claim and
debt
in connection therewith). Except as otherwise expressly provided in this
Agreement, no remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition
to
any other remedy, and no delay or omission to exercise any right or remedy
shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default.
Section
8.03. Waiver
of Defaults.
The
Majority Noteholders may, on behalf of all Noteholders, waive any default or
Master Servicer Event of Default by the Master Servicer in the performance
of
its obligations hereunder, except that a default in the making of any required
deposit to the Collection Account that would result in a failure of the
Securities Administrator to make any required payment of principal of or
interest on the Notes may only be waived with the consent of 100% of the
affected Noteholders. Upon any such waiver of a past default, such default
shall
cease to exist, and any Event of Default arising therefrom shall be deemed
to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
128
Section
8.04. Notification
to Holders.
Upon
termination of the Master Servicer or appointment of a successor to the Master
Servicer, in each case as provided herein, the Indenture Trustee shall promptly
mail notice thereof by first class mail to the Noteholders at their respective
addresses appearing on the applicable Register. The Indenture Trustee shall
also, within [45] days after the occurrence of any Master Servicer Event of
Default known to the Indenture Trustee, give written notice thereof to
Noteholders, unless such Event of Default shall have been cured or waived prior
to the issuance of such notice and within such [45]-day period.
Section
8.05. Directions
by Noteholders and Duties of Indenture Trustee During Master Servicer Event
of
Default.
During
the continuance of any Master Servicer Event of Default, the Majority
Noteholders may direct the time, method and place of conducting any proceeding
for any remedy available to the Indenture Trustee, or exercising any trust
or
power conferred upon the Indenture Trustee, under this Agreement; provided,
however,
that
the Indenture Trustee shall be under no obligation to pursue any such remedy,
or
to exercise any of the trusts or powers vested in it by this Agreement
(including, without limitation, (i) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto and (ii)
the
terminating of the Master Servicer or any successor master servicer from its
rights and duties as master servicer hereunder) at the request, order or
direction of any of the Noteholders, unless such Noteholders shall have offered
to the Indenture Trustee security or indemnity reasonably satisfactory to it
against the cost, expenses and liabilities which may be incurred therein or
thereby; and, provided further,
that,
the Indenture Trustee shall have the right to decline to follow any such
direction if the Indenture Trustee, in accordance with an Opinion of Counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Indenture Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability for which it
is
not indemnified to its satisfaction or be unjustly prejudicial to the
non-assenting Noteholders.
Section
8.06. Action
Upon Certain Failures of the Master Servicer and Upon Master Servicer Event
of
Default.
In the
event that a Responsible Officer of the Indenture Trustee or the Securities
Administrator shall have actual knowledge of any action or inaction of the
Master Servicer that would become a Master Servicer Event of Default upon the
Master Servicer’s failure to remedy the same after notice, the Indenture Trustee
or Securities Administrator, as applicable, shall give notice thereof to the
Master Servicer.
129
Section
8.07. Preparation
of Reports.
(a) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. Thereafter, within [15] days after each Payment Date, the Securities
Administrator shall, in accordance with industry standards customary for
securities similar to the Notes as required by the Exchange Act and the rules
and regulations of the Commission (the “SEC Rules”), file with the Commission
via the Electronic Data Gathering and Retrieval System (XXXXX), a Form 10-D
with
(i) a copy of the statement to the Noteholders for such Payment Date as an
exhibit thereto and (ii) such other information as is required by Form 10-D,
including, but not limited to, the information required by Item 1121 (§
229.1121) of Regulation AB, so long as such information is made available to
the
Administrator
in a
format compatible with XXXXX filing requirements.
Prior to
January 30, 20[ ], the Securities Administrator shall, in
accordance with industry standards applicable to the Notes, file a Form 15
Suspension Notification with respect to the Issuer, if applicable. Prior to
March 31, 20[ ] and prior to March 31 in each succeeding year
so long as a Form 15 has not been filed for the prior calendar year, the
Securities Administrator shall file (and the Master Servicer will execute)
a
Form 10-K, in substance conforming to industry standards applicable to the
Notes, with respect to the Issuer.] The
Form
10-K shall include (w) the certification required pursuant to Rule 13a-14 under
the Exchange Act and any future guidance from the Commission (the “Form 10-K
Certification”) signed by or on behalf of the Depositor, (x)
the
annual certifications delivered by the Indenture Trustee, the Securities
Administrator, the Master Servicer, the Owner Trustee, the Servicer[s] [(or
the
Subservicer on its behalf)], any Subcontractor and the Custodian pursuant to
this Agreement[, the Subservicing Agreement] and the Trust Agreement, (y) the
related public accounting firm attestation reports and (z) such other
information as is required by the SEC Rules and Regulation AB.
If
any
party’s report on assessment of compliance with servicing criteria required by
clause (x) in the immediately preceding sentence, or the related public
accounting firm attestation report required by clause (y) in the immediately
preceding sentence, identifies any material instance of noncompliance with
the
servicing criteria specified in paragraph (d) of Item 1122 of Regulation AB
(§
229.1122(d)), the Securities Administrator shall identify the material instance
of noncompliance in such report in the Form 10-K; and in the event that the
Securities Administrator is unable to include any report required by either
clause (x) or (y) in the immediately preceding sentence in the Form 10-K, the
Securities Administrator shall disclose such fact in the Form 10-K together
with
an explanation as to why such report is not included as an exhibit to the Form
10-K. The Indenture Trustee and the Securities Administrator shall have no
liability for any delay in filing the Form 10-K due to the failure of such
party
to timely sign the Form 10-K or Form 10-K Certification. The Depositor hereby
grants, and in the case of the Form 10-K Certification, an Authorized Officer
of
the Depositor will grant, to the Master Servicer and the Securities
Administrator a limited power of attorney to execute and file each such document
on behalf of the Depositor. Such power of attorney shall continue until either
the earlier of (i) receipt by the Master Servicer and the Securities
Administrator from the Depositor of written termination of such power of
attorney and (ii) the termination of the Issuer. The Depositor agrees to
promptly furnish to the Securities 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 Depositor
reasonably deems appropriate to prepare and file all necessary reports with
the
Commission. The Securities Administrator shall have no responsibility to file
any items other than those specified in this section.
130
(b) Each
person (including their officers or directors) that signs any Form 10-K
Certification shall be entitled to indemnification from the Trust Estate for
any
liability or expense incurred by it in connection with such certification,
other
than any liability or expense attributable to such Person’s own bad faith,
negligence or willful misconduct. The provisions of this subsection shall
survive any termination of this Agreement and the resignation or removal of
such
Person.
(c) To
the
extent that, following the Closing Date, the contents of Forms 8-K, 10-K or
other Forms required by the Exchange Act and the Rules and Regulations of the
Commission and the time by which such Forms are required to be filed, differs
from the provisions of this Agreement, the parties hereto hereby agree that
each
shall reasonably cooperate to amend the provisions of this Agreement (in
accordance with Section 10.03) in order to comply with such amended reporting
requirements and such amendment of this Agreement. Any such amendment may result
in the reduction of the reports filed by the Servicer[s] under the Exchange
Act.
Notwithstanding the foregoing, none of the Depositor, the Master Servicer,
the
Servicer[s] or the Securities Administrator shall be obligated to enter into
any
amendment pursuant to this Section that adversely affects its obligations and
immunities under this Agreement.
ARTICLE
IX
TERMINATION
Section
9.01. Termination. The
respective obligations and responsibilities of the Master Servicer, the
Securities Administrator, the Depositor, the Issuer, the Servicer[s] and the
Indenture Trustee created hereby (other than obligations expressly stated to
survive the termination of the Trust) shall terminate on the day after the
day
on which the Notes are paid in full (including payment pursuant to Section
9.02
below) (the “Termination Date”).
Section
9.02. Termination
Prior to Maturity Date; Optional Redemption.
(a) [On
any
Payment Date occurring on or after the Initial Purchase Date, the Residual
Holder shall have the option to purchase the Mortgage Loans, any REO Property
and any other property remaining in the Trust for a price equal to the
Termination Price. The Master Servicer and the Servicer[s] will be reimbursed
from the Termination Price for any outstanding Monthly Advances, Servicing
Advances and unpaid Servicing Fees and other amounts not previously reimbursed
pursuant to the provisions of this Agreement, as applicable, and the Securities
Administrator, the Owner Trustee, the Indenture Trustee, the Custodian [and
the
Swap Counterparty] shall be reimbursed for any previously unreimbursed amounts
for which they are entitled to be reimbursed pursuant to this Agreement, the
Indenture, the Custodial Agreement, the Trust Agreement [or any Swap Agreement],
as applicable. If such option is exercised, the Trust will be terminated
resulting in a mandatory redemption of the Notes. The Residual Holder shall
deliver written notice of its intention to exercise such option to the Issuer,
the Securities Administrator, the Indenture Trustee and the Master Servicer
not
less than [30] days prior to the applicable Payment Date. If the Residual Holder
fails to exercise such option on the Initial Purchase Date, the Note Interest
Rate for each Class of Notes will be increased as set forth in the table in
the
Preliminary Statement herein beginning on the Step-up Date and for each Payment
Date thereafter.
131
In
connection with such purchase, the Residual Holder shall direct the Servicer[s]
to remit to the Master Servicer all amounts then on deposit in the Custodial
Account (other than amounts permitted to be withdrawn by it pursuant to Section
4.02(e)) for deposit to the Collection Account.
(b) Promptly
following any such purchase pursuant to paragraph (a) of this Section and
receipt of an Officer’s Certificate of the Residual Holder that the purchase
price has been deposited in the Collection Account, the Indenture Trustee or
the
Custodian shall release the Mortgage Files to the purchaser of such Mortgage
Loans pursuant to this Section 9.02, or otherwise upon its order.]
Section
9.03. Certain
Notices upon Final Payment. The
Master Servicer or the Securities Administrator, as applicable, shall give
the
Issuer, the Indenture Trustee, the Owner Trustee, each Rating Agency, [the
Swap
Counterparty], each Noteholder and the Depositor at least [thirty (30)] days’
prior written notice of the date on which the Trust is expected to terminate
in
accordance with Section 9.01, or the date on which the Notes will be redeemed
in
accordance with Section 9.02. Not later than the fifth Business Day in the
Collection Period in which the final payment in respect to the Notes is payable
to the Noteholders, the Securities Administrator shall mail to the Noteholders
a
notice specifying the procedures with respect to such final payment. The
Securities Administrator on behalf of the Indenture Trustee shall give a copy
of
such notice to each Rating Agency at the time such notice is given to
Noteholders. Following the final payment thereon, such Notes shall become void,
no longer outstanding and no longer evidence any right or interest in the
Mortgage Loans, the Mortgage Files or any proceeds of the
foregoing.
ARTICLE
X
MISCELLANEOUS
PROVISIONS
Section
10.01. Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
10.02. Entire
Agreement.
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
132
Section
10.03. Amendment.
(a) This
Agreement may be amended from time to time by the parties hereto, [without
notice to or the consent of the Swap Counterparty (except to the extent that
the
rights or obligations of the Swap Counterparty hereunder or under any Swap
Agreement are affected thereby, and except to the extent the ability of the
Securities Administrator on behalf of the Trust to perform fully and timely
its
obligations under any Swap Agreement is adversely affected, in which case prior
written consent of the Swap Counterparty is required)] or any of the Holders
of
the Notes, (i) to cure any ambiguity, (ii) to cause the provisions herein to
conform to or be consistent with or in furtherance of the statements made with
respect to the Notes, the Trust or this Agreement in any Offering Document,
or
to correct or supplement any provision herein which may be inconsistent with
any
other provisions herein or in any other Operative Agreement, to make any other
provisions with respect to matters or questions arising under this Agreement,
(iii) to make any other provision with respect to matters or questions arising
under this Agreement (iv) to add, delete, or amend any provisions to the extent
necessary or desirable relating to any Class of Notes issued pursuant to a
supplemental indenture to the Indenture that is subordinate in rights of payment
of interest and principal to each Class of Notes issued pursuant to the
Indenture on the Closing Date, or (v) to add, delete, or amend any provisions
to
the extent necessary or desirable to comply with any requirements imposed by
the
Code or ERISA and applicable regulations. No such amendment effected pursuant
to
the preceding sentence shall, as evidenced by an Opinion of Counsel (which
shall
be an expense of the party requesting such amendment and shall not be an expense
of the Trust or the Indenture Trustee), (1) affect the status of the Notes
as
debt for federal income tax purposes and (2) nor shall such amendment effected
pursuant to clauses (iii) or (iv) of such sentence adversely affect in any
material respect the interests of any Holder. Prior to entering into any
amendment without the consent of Holders pursuant to this paragraph, the
Indenture Trustee may require an Opinion of Counsel (at the expense of the
party
requesting such amendment) to the effect that such amendment is permitted under
this paragraph. Any such amendment shall be deemed not to adversely affect
in
any material respect any Holder, if the Indenture Trustee receives written
confirmation from each Rating Agency that such amendment will not cause such
Rating Agency to reduce the then current rating assigned to the
Notes.
(b) This
Agreement may also be amended from time to time by the parties hereto, with
the
consent of the Noteholders representing [66-2/3]% Voting Interests for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Agreement or of modifying in any manner the rights
of
the Holders; provided,
however,
that no
such amendment may (i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be paid on any Class of Notes, without the
consent of the Noteholders of such Class or (ii) reduce the aforesaid
percentages of Class Principal Amount of Notes, the Holders of which are
required to consent to any such amendment without the consent of the Holders
of
100% of the Class Principal Amount of the Notes. For purposes of this paragraph,
references to “Holder” or “Holders” shall be deemed to include, in the case of
Book-Entry Notes, the related Note Owners.
133
(c) Promptly
after the execution of any such amendment, the Indenture Trustee shall furnish
written notification of the substance of such amendment to each Holder, the
Depositor and to each Rating Agency.
(d) It
shall
not be necessary for the consent of Holders under this Section 10.03 to approve
the particular form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by Holders
shall be subject to such reasonable regulations as the Indenture Trustee may
prescribe.
Section
10.04. Acts
of Noteholders.
Except
as otherwise specifically provided herein, whenever Noteholder action, consent
or approval is required under this Agreement, such action, consent or approval
shall be deemed to have been taken or given on behalf of, and shall be binding
upon, all Noteholders if the Majority Noteholders agree to take such action
or
give such consent or approval.
Section
10.05. Recordation
of Agreement.
To the
extent permitted by applicable law, this Agreement, or a memorandum thereof
if
permitted under applicable law, is subject to recordation in all appropriate
public offices for real property records in all of the counties or other
comparable jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Depositor on direction and
at
the expense of Holders of not less than 66-2/3% of the Note Principal Balance
of
the Notes and of the Holder of the Ownership Certificate requesting such
recordation, but only when accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of
the
Noteholders, or is necessary for the administration or servicing of the Mortgage
Loans.
Section
10.06. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
134
Section
10.07. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed by overnight courier, addressed as
follows or delivered by facsimile (or such other address as may hereafter be
furnished to the other party by like notice):
(i) if
to the
Seller:
[Xxxxxx,
Xxxx & Xxxxxxxx Mortgage Corp.
000
XX
0xx
Xxxxxx
Xxxxx,
Xxxxxxx 00000]
Attention:
[ ]
Facsimile:
[ ]
with
a
copy to:
[Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp.
000
XX
0xx
Xxxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
General Counsel
Facsimile:
[ ]]
(ii) if
to the
Servicer[s]:
a)
[Xxxxxx, Bean & Xxxxxxxx Mortgage Corp.
000
XX
0xx
Xxxxxx
Xxxxx,
Xxxxxxx 00000]
Attention:
[ ]
Facsimile:
[ ]
with
a
copy to:
[Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp.
000
XX
0xx
Xxxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
General Counsel
Facsimile:
[ ] ]
b)
[ ]
(iii) if
to the
Master Servicer:
[
]
[
]
(iv) if
to the
Securities Administrator:
[ ]
[
]
135
(v) if
to the
Indenture Trustee:
[
]
[
]
if
to the
Depositor:
0000
Xxxxx Xxxxxxx Xxxx, Xx. 000
Xxxxxxxx,
Xxxxxxx 00000
Attention:
[ ]
Facsimile:
[ ]
with
a
copy to:
0000
Xxxxx Xxxxxxx Xxxx, Xx. 000
Xxxxxxxx,
Xxxxxxx 00000
Attention:
[ ]
Facsimile:
[ ]
(vi) if
to the
Issuer:
[
]
[
]
All
demands, notices and communications to a party hereunder shall be in writing
and
shall be deemed to have been duly given when delivered to such party at the
relevant address, facsimile number or electronic mail address set forth above
or
at such other address, facsimile number or electronic mail address as such
party
may designate from time to time by written notice in accordance with this
Section 10.07.
Section
10.08. Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Notes or the rights of the Holders thereof.
Section
10.09. Indulgences;
No Waivers.
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted to
have
granted such waiver.
136
Section
10.10. Headings
Not To Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
10.11. Benefits
of Agreement.
Nothing
in this Agreement or in the Notes, express or implied, shall give to any Person,
other than the parties to this Agreement and their successors hereunder and
the
Holders of the Notes, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement. Notwithstanding the foregoing, (i) the Owner
Trustee shall be an express third party beneficiary of this Agreement and (ii)
the Residual Holder shall be an express third party beneficiary with respect to
Section 9.02.
Section
10.12. Special
Notices to [the Swap Counterparty and] the Rating Agencies.
(a) The
Servicer[s] shall give prompt notice to [the Swap Counterparty and] each Rating
Agency of the occurrence of any of the following events of which it has
notice:
(vii) any
amendment to this Agreement pursuant to Section 10.03; and
(viii) the
making of a final payment hereunder.
(b) All
notices to the Rating Agencies provided for by this Section shall be in writing
and sent by first class mail, telecopy or overnight courier, as
follows:
if
to
[ ]:
[
]
[
]
if
to
[ ]:
[
]
[
]
if
to
[ ]:
[
]
[
]
(c) The
Securities Administrator shall make available to [the Swap Counterparty and]
the
Rating Agencies each report prepared pursuant to Section 5.08.
137
Section
10.13. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one and
the
same instrument.
Section
10.14. Agreement
of the Issuer.
The
Issuer hereby acknowledges and agrees that, to the extent that the Issuer is
deemed to have any interest in any assets of the Depositor that constitute
the
assets of the trust for any other series of securities with respect to which
the
Depositor acts as depositor:
(a) the
interest of the Issuer in such assets is subordinate to claims or rights of
the
holders of such other series of securities to such assets; and
(b) this
Agreement constitutes a subordination agreement for purposes of Section 510(a)
of the Bankruptcy Code.
Section
10.15. Execution
by the Issuer.
It is
expressly understood and agreed by the parties hereto that (a) this Agreement
is
executed and delivered by [ ], not
individually or personally but solely as Owner Trustee of the Issuer, in the
exercise of the powers and authority conferred and vested in it as trustee,
(b)
each of the representations, undertakings and agreements herein made on the
part
of the Issuer is made and intended not as personal representations, undertakings
and agreements by [ ] but is made and
intended for the purpose of binding only the Issuer, (c) nothing herein
contained shall be construed as creating any liability on
[ ], individually or personally, to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
person claiming by, through or under the parties hereto and (d) under no
circumstances shall [ ] be
personally liable for the payment of any indebtedness or expenses of the Issuer
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Issuer under this Agreement
or
any other document.
138
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
TBW
MORTGAGE TRUST [ ],
as Issuer
|
||
By:
|
[
], not in its individual capacity but solely
as
Owner Trustee
|
|
|
|
|
By: | ||
Name: [ ] |
||
Title: [ ] |
as Depositor
|
||
|
|
|
By: | ||
Name: [ ] |
||
Title: [ ] |
[
], not in its individual capacity but solely as
Indenture
Trustee
|
||
|
|
|
By: | ||
Name: [ ] |
||
Title: [ ] |
[
],
as
Securities Administrator and Master Servicer
|
||
|
|
|
By: | ||
Name: [ ] |
||
Title: [ ] |
1
[
]
|
)
|
)ss.:
|
|
[
]
|
)
|
On
the
[ ]th day of [ ] before me, a notary public
in and for said State, personally appeared [ ] known to me to
be a [ ] of [ ] that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
said corporation and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
[ ] | ||
Notary
Public
|
||
[SEAL] |
[
]
|
)
|
)ss.:
|
|
[
]
|
)
|
On
the
[ ]th day of [ ] before me, a notary public
in and for said State, personally appeared [ ] known to me to
be a [ ] of [ ] that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
said corporation and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
[ ] | ||
Notary
Public
|
||
[SEAL] |
[STATE
OF GEORGIA]
|
)
|
)ss.:
|
|
[COUNTY
OF XXXXXX]
|
)
|
On
the
[ ] before me, a notary public in and for said State,
personally appeared [ ] known to me to be an
[ ] of TBALT Corp., one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
[ ] | ||
Notary
Public
|
||
[Notarial Seal] |
[
]
|
)
|
)ss.:
|
|
[ ]
|
)
|
On
the
[ ]th day of [ ] before me, a notary public
in and for said State, personally appeared [ ] known to me to
be a [ ] of [ ] that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
said corporation and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
[ ] | ||
Notary
Public
|
||
[SEAL] |
[
]
|
)
|
)ss.:
|
|
[
]
|
On
the
[ ]th day of [ ] before me, a notary public
in and for said State, personally appeared [ ] known to me to
be a [ ] of [ ] that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
said corporation and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
[ ] | ||
Notary
Public
|
||
[SEAL] |
EXHIBIT
A-1
FORM
OF
INITIAL CERTIFICATION
|
||
Date
|
[
]
[
]
0000
Xxxxx Xxxxxxx Xxxx, Xx. 000
Xxxxxxxx,
Xxxxxxx 00000
Attention:
[ ]
Re: |
Transfer
and Servicing Agreement (the “Transfer and Servicing Agreement”) dated as
of [ ] by and among TBALT Corp., as
Depositor, [ ], as Indenture Trustee,
[ ], as Securities Administrator
and Master Servicer, TBW Mortgage
Trust [ ], as Issuer[,] [[and] Xxxxxx,
Xxxx & Xxxxxxxx Mortgage Corp.], as Seller and [a] Servicer [and
[ ], as a
Servicer]
|
Ladies
and Gentlemen:
In
accordance with Section [2.02(a)] of
the
Transfer and Servicing Agreement, subject to review of the contents thereof,
the
undersigned, as Custodian, hereby certifies that it has received the documents
listed in Section [2.01(c)] of
the
Transfer and Servicing Agreement for each Mortgage File pertaining to each
Mortgage Loan listed on Schedule A to the Transfer and Servicing Agreement,
subject to any exceptions noted on Schedule I hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have the
respective meanings assigned to them in the Transfer and Servicing Agreement.
This certificate is subject in all respects to the terms of Section [2.02]
of
the Transfer and Servicing Agreement and the Transfer and Servicing Agreement
sections cross-referenced therein.
[Custodian] | ||
|
|
|
By: | ||
Name: |
||
Title: |
EXHIBIT
A-2
FORM
OF INTERIM CERTIFICATION
|
||
Date
|
[
]
[
]
0000
Xxxxx Xxxxxxx Xxxx, Xx. 000
Xxxxxxxx,
Xxxxxxx 00000
Attention:
[ ]
Re: |
Transfer
and Servicing Agreement (the “Transfer and Servicing Agreement”) dated as
of [ ] by and among TBALT Corp., as
Depositor, [ ], as Indenture Trustee,
[ ], as Securities Administrator and Master
Servicer, TBW Mortgage
Trust [ ], as Issuer[,] [[and] Xxxxxx, Xxxx
& Xxxxxxxx Mortgage Corp.], as Seller and [a] Servicer [and
[ ], as a
Servicer]
|
Ladies
and Gentlemen:
In
accordance with Section [2.02(b)] of
the
Transfer and Servicing Agreement, the undersigned, as Custodian, hereby
certifies that as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or listed on Schedule I hereto)
it
(or its custodian) has received the applicable documents listed in Section
[2.01(c)] of the Transfer and Servicing Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents identified above and has determined that
each such document appears regular on its face and appears to relate to the
Mortgage Loan identified in such document.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Transfer and Servicing Agreement. This certificate is qualified
in
all respects by the terms of said Transfer and Servicing Agreement including,
but not limited to, Section [2.02(b)].
[Custodian] | ||
|
|
|
By: | ||
Name: |
||
Title: |
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CERTIFICATION
|
||
Date
|
[
]
[
]
TBALT
Corp.
0000
Xxxxx Xxxxxxx Xxxx, Xx. 000
Xxxxxxxx,
Xxxxxxx 00000
Attention:
[ ]
Re: |
Transfer
and Servicing Agreement (the “Transfer and Servicing Agreement”) dated as
of [ ] by and among TBALT Corp., as Depositor,
[ ], as Indenture Trustee, [ ], as
Securities Administrator and Master Servicer, TBW Mortgage
Trust [ ], as Issuer[,] [[and] Xxxxxx, Xxxx &
Xxxxxxxx Mortgage Corp.], as Seller and [a] Servicer [and
[ ], as a
Servicer]
|
Ladies
and Gentlemen:
In
accordance with Section [2.02(d)] of the Transfer and Servicing Agreement,
the
undersigned, as Custodian on behalf of the Indenture Trustee, hereby certifies
that as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section [2.01(c)]
of
the Transfer and Servicing Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Transfer and Servicing Agreement. This certificate is qualified
in
all respects by the terms of said Transfer and Servicing Agreement.
[Custodian] | ||
|
|
|
By: | ||
Name: |
||
Title: |
X-0-0
XXXXXXX
X-0
FORM
OF
ENDORSEMENT
Pay
to
the order of [
],
as
indenture trustee (the “Indenture Trustee”) under the Transfer and Servicing
Agreement dated as of [
]
by and
among TBALT Corp., as Depositor, the Indenture Trustee, [
],
as
Securities Administrator and Master Servicer, TBW Mortgage Trust [
],
as
Issuer[,]
[[and]
Xxxxxx,
Bean & Xxxxxxxx Mortgage Corp.], as
Seller
and [a] Servicer [and [ ], as a Servicer], relating
to TBW Mortgage Trust [
]
Mortgage
Backed Notes without recourse.
[current signatory on note] |
||
|
|
|
By: | ||
Name: |
||
Title: |
X-0-0
XXXXXXX
X-0
REQUEST
FOR RELEASE
[
]
[
]
[
]
[
]
Re:
|
Transfer
and Servicing Agreement (the “Transfer and Servicing Agreement”) dated as
of [ ] by and among TBALT Corp., as Depositor,
[ ], as Indenture Trustee, [ ], as
Securities Administrator and Master Servicer, TBW Mortgage
Trust [ ], as Issuer[,] [[and] Xxxxxx, Bean &
Xxxxxxxx Mortgage Corp.], as Seller and [a] Servicer [and
[ ], as a
Servicer]
|
In
connection with the administration of the Mortgage Loans held by the Custodian
for the benefit of the Indenture Trustee pursuant to the above-captioned
Transfer and Servicing Agreement, we request the release, and hereby acknowledge
receipt, of the Mortgage File for the Mortgage Loan described below, for the
reason indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
_____
|
1.
|
Mortgage
Paid in Full and proceeds have been deposited into the Collection
Account
|
||
_____
|
2.
|
Foreclosure
|
||
_____
|
3.
|
Substitution
|
||
_____
|
4.
|
Other
Liquidation
|
||
_____
|
5.
|
Nonliquidation
Reason:
|
By: | ||
Name: |
||
Title: | ||
Issuer: | ||
|
||
Address: | ||
|
A-5-1
EXHIBIT
B
FORM
OF
LOST NOTE AFFIDAVIT
I,
_________________________________________, being duly sworn, do hereby state
under oath that:
1. I
am a
duly elected ______________________ of [Xxxxxx, Bean & Xxxxxxxx Mortgage
Corp.] (the “Company”) and am duly authorized to make this
affidavit.
2. This
affidavit is being delivered in connection with the transfer of the Mortgage
Loan described in Paragraph 3 hereof by the Company pursuant to the Transfer
and
Servicing Agreement, dated as of [ ], among TBW Mortgage Trust
[ ], as Issuer, TBALT Corp., as Depositor, [
], as Master Servicer and as Securities Administrator, [Xxxxxx, Bean &
Xxxxxxxx Mortgage Corp.] as Seller and [a] Servicer[, [ ], as
a Servicer] and [ ], as Indenture Trustee, relating to the
TBWMortgage Trust [ ] Mortgage Backed Notes (the “Agreement”).
3. The
______________ is the payee under the following described Mortgage Note
(“Mortgage Note”) which evidences the obligation of the borrower(s) to repay the
Mortgage Loan:
Loan
Number: __________________________________
Mortgage
Note Date:_____________________________
Borrower(s):
___________________________________
Original
Payee (if not the Company): ___________
Original
Amount:________________________________
Mortgage
Rate: _________________________________
Address
of Mortgaged Property: _________________
________________________________________________
4. The
Company is the lawful owner of the Mortgage Note and has not cancelled, altered,
assigned or hypothecated the Mortgage Note.
5. A
thorough and diligent search for the executed original Mortgage Note was
undertaken and was unsuccessful.
6. Attached
hereto is a true and correct copy of the Mortgage Note.
7. The
Mortgage Note has not been endorsed by the Company in any manner inconsistent
with its transfer of the Mortgage Loan under the Mortgage Loan Purchase
Agreement.
8. Without
limiting the generality of the rights and remedies of the Indenture Trustee
contained in the Agreement, the Company hereby confirms and agrees that in
the
event the inability to produce the executed original Mortgage Note results
in a
breach of the representations, warranties and covenants appearing in Exhibit
A
to the Mortgage Loan Purchase Agreement and Section [3.01] of the Agreement,
the
Company shall repurchase the Mortgage Loan at the Purchase Price and otherwise
in accordance with Section [3.03] of the Agreement. In addition, the Company
covenants and agrees to indemnify the Indenture Trustee and the Trust from
and
hold them harmless against any and all losses, liabilities, damages, claims
or
expenses arising from the Company’s failure to have delivered the Mortgage Note
to the Indenture Trustee, including without limitation any such losses,
liabilities, damages, claims or expenses arising from any action to enforce
the
indebtedness evidenced by the Mortgage Note or any claim by any third party
who
is the holder of such indebtedness by virtue of possession of the Mortgage
Note.
B-1
9. In
the
event that the Company locates the executed original Mortgage Note, it shall
promptly provide the Mortgage Note to the Indenture Trustee.
10. Capitalized
terms used but not otherwise defined herein shall have the meanings given to
them in the Agreement.
Date: _______________________ | ||
|
|
(signature) |
(print name) |
||
(print title) |
||
X-0
XXXXXXX
X
XXXXXXXXX
XXXXXXXXX
X-0
XXXXXXX
X
CUSTODIAL
ACCOUNT LETTER AGREEMENT
______________
__,
____
|
||
|
To:
|
||
(the
“Depository”)
|
As
Servicer[s] under the Transfer and Servicing Agreement dated as of
[ ], by and among TBALT Corp., as Depositor, you, as Indenture
Trustee, [ ], as Securities Administrator and Master Servicer,
TBW Mortgage
Trust [ ], as Issuer[,] [[and] Xxxxxx, Xxxx & Xxxxxxxx
Mortgage Corp.], as Seller and [a] Servicer [and [ ], as a
Servicer] (the “Transfer and Servicing Agreement”), we hereby authorize and
request you to establish an account, as a Custodial Account pursuant to Section
[4.02(d)] of the Transfer and Servicing Agreement, designated as “Xxxxxx, Bean
& Xxxxxxxx Mortgage Corp. in trust for [ ], as Indenture
Trustee for the TBW Mortgage
Trust [ ].” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer[s]. This letter is
submitted to you in duplicate. Please execute and return one original to
us.
[XXXXXX,
BEAN
& XXXXXXXX
MORTGAGE
CORP.]
Servicer
|
||
|
|
|
By: | ||
Name: |
||
Title:
|
||
Date:
|
||
|
||
[ ] | ||
Servicer | ||
By: | ||
Name: |
||
Title:
|
||
Date:
|
||
|
D-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
Depository
|
||
|
|
|
By: | ||
Name: |
||
Title: | ||
Date: |
D-2
EXHIBIT
E
ESCROW
ACCOUNT LETTER AGREEMENT
______________
__,
____
|
||
|
To:
|
||
(the
“Depository”)
|
As
Servicer[s] under the Transfer and Servicing Agreement dated as of
[ ], by and among TBALT Corp., as Depositor, you, as Indenture
Trustee, [ ], as Securities Administrator and Master Servicer,
TBW Mortgage Trust [ ], as Issuer[,] [[and] Xxxxxx, Bean &
Xxxxxxxx Mortgage Corp.] as Seller and Servicer [and [ ], as
Servicer] (the “Transfer and Servicing Agreement”), we hereby authorize and
request you to establish an account, as an Escrow Account pursuant to Section
[4.02(f)] of the Transfer and Servicing Agreement, designated as “Xxxxxx, Bean
& Xxxxxxxx Mortgage Corp. in trust for [ ], as Indenture
Trustee for the TBW Mortgage
Trust [ ].” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer[s]. This letter is
submitted to you in duplicate. Please execute and return one original to
us.
[XXXXXX,
BEAN
& XXXXXXXX
MORTGAGE
CORP.]
Servicer
|
||
|
|
|
By: | ||
Name: |
||
|
||
[ ]
Servicer
|
||
By: | ||
Name: |
E-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
Depository
|
||
|
|
|
By: | ||
|
||
Name: | ||
|
E-2
EXHIBIT
F
[INSERT
FORMS OF SERVICING REMITTANCE REPORTS]
F-1
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
Sch
II-A-1
[SCHEDULE
B
REVOLVING
CREDIT LOAN SCHEDULE]
Sch
II-B-1