MORTGAGEIT SECURITIES CORP.,
as Depositor
MortgageIT TRUST 2004-2,
as Issuer
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer and Securities Administrator
and
MORTGAGEIT HOLDINGS, INC.,
as Seller and Company
________________________________________________
SALE AND SERVICING AGREEMENT
Dated as of November 24, 2004
________________________________________________
MortgageIT Securities Corp.
MortgageIT Trust 2004-2,
Mortgage-Backed Notes, Series 2004-2
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions.................................................2
Section 1.01. Definitions...............................................2
Section 1.02. Other Definitional Provisions.............................2
ARTICLE II Conveyance of Mortgage Loans................................3
Section 2.01. Conveyance of Mortgage Loans to Issuer....................3
Section 2.02. Acceptance of Mortgage Loans by the Issuer................5
Section 2.03. Assignment of Interest in the Mortgage Loan
Purchase Agreement........................................7
Section 2.04. Substitution of Mortgage Loans............................8
Section 2.05. Representations and Warranties Concerning the
Depositor.................................................9
Section 2.06. Representations and Warranties Regarding the
Master Servicer..........................................10
Section 2.07. Assignment of Agreement..................................11
ARTICLE III Administration and Servicing of Mortgage Loans.............13
Section 3.01. Master Servicer..........................................13
Section 3.02. [Reserved]...............................................14
Section 3.03. Monitoring of Servicer...................................14
Section 3.04. Fidelity Bond............................................15
Section 3.05. Power to Act; Procedures.................................15
Section 3.06. Due-on-Sale Clauses; Assumption Agreements...............16
Section 3.07. Release of Mortgage Files................................16
Section 3.08. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Issuer and Indenture Trustee.....17
Section 3.09. Standard Hazard Insurance and Flood Insurance Policies...18
Section 3.10. Presentment of Claims and Collection of Proceeds.........18
Section 3.11. Maintenance of the Primary Mortgage Insurance Policies...18
Section 3.12. Indenture Trustee to Retain Possession of Certain
Insurance Policies and Documents.........................19
Section 3.13. Realization Upon Defaulted Mortgage Loans................19
Section 3.14. Compensation for the Master Servicer.....................20
Section 3.15. REO Property.............................................20
Section 3.16. Annual Officer's Certificate as to Compliance............20
Section 3.17. Annual Independent Accountant's Servicing Report.........21
Section 3.18. Reports Filed with Securities and Exchange Commission....21
Section 3.19. Reserved.................................................22
Section 3.20. UCC......................................................22
Section 3.21. Optional Purchase of Mortgage Loans......................22
Section 3.22. Monthly Advances.........................................23
Section 3.23. Compensating Interest Payments...........................23
ARTICLE IV Accounts...................................................24
Section 4.01. Protected Accounts.......................................24
Section 4.02. [Reserved]...............................................25
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TABLE OF CONTENTS
(continued)
PAGE
Section 4.03. [Reserved]...............................................26
Section 4.04. Payment Account..........................................27
Section 4.05. Permitted Withdrawals and Transfers from the
Payment Account..........................................27
ARTICLE V The Master Servicer........................................30
Section 5.01. Liabilities of the Master Servicer.......................30
Section 5.02. Merger or Consolidation of the Master Servicer...........30
Section 5.03. Indemnification of the Indenture Trustee, Owner Trustee,
the Master Servicer and the Securities Administrator.....30
Section 5.04. Limitations on Liability of the Master Servicer and
Others...................................................31
Section 5.05. Master Servicer Not to Resign............................32
Section 5.06. Successor Master Servicer................................32
Section 5.07. Sale and Assignment of Master Servicing..................32
ARTICLE VI Default....................................................34
Section 6.01. Master Servicer Events of Default........................34
Section 6.02. Indenture Trustee to Act; Appointment of Successor.......36
Section 6.03. Notification to Noteholders..............................37
Section 6.04. Waiver of Defaults.......................................37
ARTICLE VII Miscellaneous Provisions...................................38
Section 7.01. Amendment................................................38
Section 7.02. Recordation of Agreement.................................39
Section 7.03. Governing Law............................................39
Section 7.04. Notices..................................................39
Section 7.05. Severability of Provisions...............................40
Section 7.06. Successors and Assigns...................................40
Section 7.07. Article and Section Headings.............................40
Section 7.08. Counterparts.............................................40
Section 7.09. Notice to Rating Agencies................................40
Section 7.10. Termination..............................................40
Section 7.11. No Petition..............................................41
Section 7.12. No Recourse..............................................41
Section 7.13. Additional Terms Regarding Indenture.....................41
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TABLE OF CONTENTS
(continued)
PAGE
EXHIBITS
Exhibit A - Mortgage Loan Schedule
Exhibit B - Request for Release of Documents
Exhibit C - MortgageIT Servicing Agreement
Exhibit D - Assignment Agreement
Exhibit E - Mortgage Loan Purchase Agreement
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SALE AND SERVICING AGREEMENT
Sale and Servicing Agreement dated as of November 24, 2004 (the
"Agreement"), among MortgageIT Securities Corp., a Delaware corporation, as
depositor (the "Depositor"), MortgageIT Trust 2004-2, a Delaware statutory
trust, as issuer (the "Issuer"), Deutsche Bank National Trust Company, a
national banking association, not in its individual capacity but solely as
indenture trustee (the "Indenture Trustee"), ▇▇▇▇▇ Fargo Bank, National
Association ("▇▇▇▇▇ Fargo"), as master servicer (in such capacity, the "Master
Servicer") and as securities administrator (in such capacity, the "Securities
Administrator"), and MortgageIT Holdings, Inc., as seller (in such capacity, the
"Seller") and as company (in such capacity, the "Company").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Depositor acquired the Mortgage
Loans from the Seller pursuant to the Mortgage Loan Purchase Agreement. Prior to
the Closing Date, pursuant to a Trust Agreement, as amended and restated on the
Closing Date, the Depositor created MortgageIT Trust 2004-2, a Delaware
statutory trust, for the purpose of holding the Mortgage Loans and issuing the
Trust Certificates (the "Certificates"), pursuant to the Trust Agreement, and
the Notes, pursuant to the Indenture. Pursuant to this Agreement, on the Closing
Date, the Depositor will sell the Mortgage Loans and certain other property to
the Issuer and pursuant to the Indenture, the Issuer will pledge all of its
right, title and interest in and to the Mortgage Loans and other property
acquired from the Depositor pursuant to this Agreement to the Indenture Trustee
to secure the Notes issued pursuant to the Indenture. In consideration for the
Mortgage Loans and other property conveyed pursuant to this Agreement, the
Depositor will receive from the Issuer the Certificates evidencing the entire
beneficial ownership interest in the Issuer and the Notes representing
indebtedness of the Issuer.
The Mortgage Loans will have an Outstanding Principal Balance as of the
Cut-off Date, after deducting all Scheduled Principal due on or before the
Cut-off Date, of $635,331,368.20.
In consideration of the mutual agreements herein contained, each of the
Depositor, the Issuer, the Master Servicer, the Securities Administrator, the
Seller, the Company and the Indenture Trustee undertakes and agrees to perform
their respective duties hereunder as follows:
ARTICLE I
Definitions
Section 1.01 DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions contained in Appendix A to the Indenture which
is incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document, to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
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ARTICLE II
Conveyance of Mortgage Loans
Section 2.01 CONVEYANCE OF MORTGAGE LOANS TO ISSUER. (a) The Depositor
concurrently with the execution and delivery of this Agreement, sells, transfers
and assigns to the Issuer without recourse all its right, title and interest in
and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule,
including all interest and principal due with respect to the Mortgage Loans
after the Cut-off Date, but excluding any payments of principal and interest due
on or prior to the Cut-off Date; (ii) such assets as shall from time to time be
credited or are required by the terms of this Agreement to be credited to the
Payment Account, (iii) such assets relating to the Mortgage Loans as from time
to time may be held by the Servicer in the Protected Account and the Securities
Administrator in the Payment Account, (iv) any REO Property, (v) the Required
Insurance Policies and any amounts paid or payable by the insurer under any
Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the
Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a),
(vii) the rights with respect to the MortgageIT Servicing Agreement and (viii)
any proceeds of the foregoing. Although it is the intent of the Depositor and
the Issuer that the conveyance of the Depositor's right, title and interest in
and to the Mortgage Loans and other assets in the Trust Estate to the Issuer
pursuant to this Agreement shall constitute a purchase and sale and not a loan,
in the event that such conveyance is deemed to be a loan, it is the intent of
the parties to this Agreement that the Depositor shall be deemed to have granted
to the Issuer a first priority perfected security interest in all of the
Depositor's right, title and interest in, to and under the Mortgage Loans and
other assets in the Trust Estate, and that this Agreement shall constitute a
security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor
hereby delivers to the Custodian, on behalf of the Issuer, with respect to each
Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in
blank or to the order of the Indenture Trustee and showing an unbroken chain of
endorsements from the originator thereof to the Person endorsing it in blank or
to the Indenture Trustee, or lost note affidavit together with a copy of the
related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan
is a MOM Loan, noting the presence of the MIN and language indicating that such
Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original
is not available, a copy), with evidence of such recording indicated thereon (or
if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy
of the assignment (which may be in the form of a blanket assignment if permitted
in the jurisdiction in which the Mortgaged Property is located) in blank or to
"Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the
Noteholders", with evidence of recording with respect to each Mortgage Loan in
the name of the Indenture Trustee thereon (or if clause (w) in the proviso below
applies or for Mortgage Loans with respect to which the related Mortgaged
Property is located in a state other than Maryland or an Opinion of Counsel has
been provided as set forth in this Section 2.01(b), shall be in recordable
form);
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(iv) all intervening assignments of the Security Instrument,
if applicable and only to the extent available to the Depositor with evidence of
recording thereon;
(v) the original or a copy of the policy or certificate of
primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance
or mortgagee's certificate of title insurance or commitment or binder for title
insurance; and
(vii) originals of all modification agreements, if applicable
and available;
PROVIDED, HOWEVER, that in lieu of the foregoing, the Depositor may deliver to
the Custodian, the following documents, under the circumstances set forth below:
(w) in lieu of the original Security Instrument (including the Mortgage),
assignments to the Indenture Trustee or intervening assignments thereof which
have been delivered, are being delivered or will, upon receipt of recording
information relating to such documents required to be included thereon, be
delivered to recording offices for recording and have not been returned to the
Depositor in time to permit their delivery as specified above, the Depositor may
deliver a true copy thereof with a certification by the Servicer, or its agent
on its behalf, substantially to the effect that such copy is a true and correct
copy of the original; (x) in lieu of the Security Instrument, assignment in
blank or to the Indenture Trustee or intervening assignments thereof, if the
applicable jurisdiction retains the originals of such documents (as evidenced by
a certification from the Depositor to such effect) the Depositor may deliver
photocopies of such documents containing an original certification by the
judicial or other governmental authority of the jurisdiction where such
documents were recorded or from the Depositor's agent, escrow agent or closing
attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the
Depositor may deliver lost note affidavits from the Seller; and (z) the
Depositor shall not be required to deliver intervening assignments or Mortgage
Note endorsements between the Seller and the Depositor, between the Depositor
and the Issuer, and between the Issuer and the Indenture Trustee; and provided,
further, however, that in the case of Mortgage Loans which have been prepaid in
full after the Cut-off Date and prior to the Closing Date, the Depositor, in
lieu of delivering the above documents, may deliver to the Indenture Trustee, a
certification to such effect and shall deposit all amounts paid in respect of
such Mortgage Loans in the Payment Account on the Closing Date. The Depositor
shall deliver such original documents (including any original documents as to
which certified copies had previously been delivered) to the Custodian, promptly
after they are received. The Depositor shall cause the Seller, at its expense,
to cause each assignment of the Security Instrument to the Indenture Trustee to
be recorded not later than 180 days after the Closing Date, unless (a) such
recordation is not required by the Rating Agencies as evidenced in writing or an
Opinion of Counsel addressed to the Indenture Trustee has been provided to the
Indenture Trustee and the Issuer which states that recordation of such Security
Instrument is not required to protect the interests of the Noteholders in the
related Mortgage Loans or (b) MERS is identified on the Mortgage or on a
properly recorded assignment of the Mortgage as the mortgagee of record solely
as nominee for the Seller and its successor and assigns; provided, however,
notwithstanding the foregoing, each assignment shall be submitted for recording
by the Seller in the manner described above, at no expense to the Issuer or the
Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by
the Holders of Notes aggregating at least 25% of the Note Principal Balance of
the Notes, (ii) the occurrence of a Master Servicer Event of
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Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Seller and (iv) the occurrence of a servicing
transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if
the Seller fails to pay the cost of recording the assignments, such expense will
be paid by the Securities Administrator from funds in the Payment Account in
accordance with Section 4.05 of this Agreement.
Section 2.02 ACCEPTANCE OF MORTGAGE LOANS BY THE ISSUER. (a) The Issuer
acknowledges the sale, transfer and assignment of the Trust Estate to it by the
Depositor and receipt of, subject to further review by the Custodian, on its
behalf, and the exceptions which may be noted by the Custodian, on its behalf,
pursuant to the procedures described below, and the Issuer will cause the
Custodian to hold, the documents (or certified copies thereof) delivered to the
Custodian, pursuant to Section 2.01, and any amendments, replacements or
supplements thereto and all other assets of the Trust Estate delivered to it, in
trust for the use and benefit of all present and future Holders of the Notes
issued pursuant to the Indenture. On the Closing Date, in accordance with the
Custodial Agreement, the Custodian shall acknowledge with respect to each
Mortgage Loan by delivery to the Depositor, the Seller, the Indenture Trustee
and the Issuer of an Initial Certification, receipt of the Mortgage File, but
without review of such Mortgage File, except to the extent necessary to confirm
that such Mortgage File contains the related Mortgage Note or lost note
affidavit. No later than 90 days after the Closing Date (or, with respect to any
Substitute Mortgage Loan, within five Business Days after the receipt by the
Custodian thereof), the Custodian, in accordance with the Custodial Agreement,
shall review each Mortgage File delivered to it and shall execute and deliver to
the Depositor, the Seller, the Indenture Trustee and Issuer an Interim
Certification. In conducting such review, the Custodian will ascertain whether
all documents required to be reviewed by it have been executed and received, and
based on the Mortgage Loan Schedule, whether the Mortgage Notes relate,
determined on the basis of the Mortgagor name, original principal balance and
loan number, to the Mortgage Loans it has received, as identified in the
Mortgage Loan Schedule. In performing any such review, the Custodian may
conclusively rely on the purported due execution and genuineness of any such
document and on the purported genuineness of any signature thereon. If the
Custodian finds any document constituting part of the Mortgage File has not been
executed or received, or is unrelated, determined on the basis of the Mortgagor
name, original principal balance and loan number, to the Mortgage Loans
identified in Exhibit A or does not conform on its face to the review criteria
specified in this Section (a "Material Defect"), the Custodian shall notify the
Seller and the Indenture Trustee of such Material Defect in writing. In
accordance with the Mortgage Loan Purchase Agreement, the Seller shall correct
or cure any such Material Defect within ninety (90) days from the date of notice
from the Indenture Trustee of the defect and if the Seller fails to correct or
cure the Material Defect within such period, the Indenture Trustee shall enforce
the Seller's obligation under the Mortgage Loan Purchase Agreement to, within 90
days from the Indenture Trustee's notification, provide a Substitute Mortgage
Loan or purchase such Mortgage Loan at the Repurchase Price; provided, however,
that if such Material Defect relates solely to the inability of the Seller to
deliver the original Security Instrument or intervening assignments thereof, or
a certified copy because the originals of such documents, or a certified copy
have not been returned by the applicable jurisdiction, the Seller shall not be
required to purchase such Mortgage Loan if the Seller delivers such original
documents or certified copy promptly upon receipt, but in no event later than
360 days after the Closing Date. The foregoing repurchase obligation shall not
apply in the event that the Seller cannot deliver such original or copy of any
document submitted for recording to the appropriate recording
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office in the applicable jurisdiction because such document has not been
returned by such office; provided that the Seller shall instead deliver a
recording receipt of such recording office or, if such receipt is not available,
a certificate confirming that such documents have been accepted for recording,
and delivery to the Custodian shall be effected by the Seller within thirty days
of its receipt of the original recorded document.
(b) No later than 180 days after the Closing Date, the Custodian, in
accordance with the Custodial Agreement, will review, for the benefit of the
Noteholders, the Mortgage Files delivered to it and will execute and deliver or
cause to be executed and delivered to the Depositor, the Seller, the Indenture
Trustee and the Issuer a Final Certification. In conducting such review, the
Custodian will ascertain whether an original of each document required to be
recorded has been returned from the recording office with evidence of recording
thereon or a certified copy has been obtained from the recording office. If the
Custodian finds a Material Defect, the Custodian shall promptly notify the
Seller and the Indenture Trustee in writing (provided, however, that with
respect to those documents described in subsections (b)(iv), (v) and (vii) of
Section 2.01, the Custodian's obligations shall extend only to the documents
actually delivered to the Custodian pursuant to such subsections). In accordance
with the Mortgage Loan Purchase Agreement, the Seller shall correct or cure any
such Material Defect within 90 days from the date of notice from the Custodian
or the Indenture Trustee of the Material Defect and if the Seller is unable to
cure such Material Defect within such period, and if such Material Defect
materially and adversely affects the interests of the Noteholders in the related
Mortgage Loan, the Indenture Trustee shall enforce the Seller's obligation under
the Mortgage Loan Purchase Agreement to, within 90 days from the Custodian's or
Indenture Trustee's notification, provide a Substitute Mortgage Loan or purchase
such Mortgage Loan at the Repurchase Price; provided, however, that if such
defect relates solely to the inability of the Seller to deliver the original
Security Instrument or intervening assignments thereof, or a certified copy,
because the originals of such documents or a certified copy, have not been
returned by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan, if the Seller delivers such original documents or
certified copy promptly upon receipt, but in no event later than 360 days after
the Closing Date. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver such original or copy of any document
submitted for recording to the appropriate recording office in the applicable
jurisdiction because such document has not been returned by such office;
provided that the Seller shall instead deliver a recording receipt of such
recording office or, if such receipt is not available, a certificate confirming
that such documents have been accepted for recording, and delivery to the
Indenture Trustee shall be effected by the Seller within thirty days of its
receipt of the original recorded document.
(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with Subsections 2.02(a) or (b) above, the Seller shall remit to
Securities Administrator the Repurchase Price for deposit in the Payment Account
and the Seller shall provide to the Securities Administrator and the Indenture
Trustee written notification detailing the components of the Repurchase Price.
Upon deposit of the Repurchase Price in the Payment Account, the Depositor shall
notify the Indenture Trustee and the Custodian and, the Indenture Trustee (upon
receipt of a Request for Release in the form of Exhibit B attached hereto with
respect to such Mortgage Loan and certification that the Repurchase Price has
been deposited in the Payment Account), shall cause the Custodian to release to
the Seller the related Mortgage File and the Indenture Trustee shall execute and
deliver all instruments of transfer or assignment, without
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recourse, representation or warranty, furnished to it by the Seller, as are
necessary to vest in the Seller title to and rights under the Mortgage Loan.
Such purchase shall be deemed to have occurred on the date on which the
Repurchase Price in available funds is deposited in the Payment Account. The
Master Servicer shall amend the Mortgage Loan Schedule, which was previously
delivered to it by the Depositor in a form agreed to between the Depositor, the
Indenture Trustee and the Custodian, to reflect such repurchase and shall
promptly deliver to the Rating Agencies, the Indenture Trustee, the Custodian
and the Issuer a copy of such amendment. The obligation of the Seller to
repurchase or substitute for any Mortgage Loan a Substitute Mortgage Loan as to
which such a Material Defect in a constituent document exists shall be the sole
remedy respecting such Material Defect available to the Issuer, the Noteholders
or to the Indenture Trustee on their behalf.
Section 2.03 ASSIGNMENT OF INTEREST IN THE MORTGAGE LOAN PURCHASE
AGREEMENT. (a) Depositor hereby assigns to the Issuer, all of its right, title
and interest in the Mortgage Loan Purchase Agreement, including but not limited
to the Depositor's rights and obligations pursuant to the MortgageIT Servicing
Agreement. The Depositor hereby acknowledges that such right, title and interest
in the Mortgage Loan Purchase Agreement, will be pledged by the Issuer to the
Indenture Trustee pursuant to the Indenture. The obligations of the Seller to
substitute or repurchase, as applicable, a Mortgage Loan shall be the Issuer's,
the Indenture Trustee's and the Noteholders' sole remedy for any breach thereof.
At the request of the Issuer or the Indenture Trustee, the Depositor shall take
such actions as may be necessary to enforce the above right, title and interest
on behalf of the Issuer, the Indenture Trustee and the Noteholders and shall
execute such further documents as the Issuer or the Indenture Trustee may
reasonably require in order to enable the Indenture Trustee to carry out such
enforcement.
(b) If the Depositor, the Securities Administrator, the Issuer or the
Indenture Trustee discovers a breach of any of the representations and
warranties set forth in the Mortgage Loan Purchase Agreement, which breach
materially and adversely affects the value of the interests of the Issuer, the
Noteholders or the Indenture Trustee in the related Mortgage Loan, the party
discovering the breach shall give prompt written notice of the breach to the
other parties. The Seller, within 90 days of its discovery or receipt of notice
that such breach has occurred (whichever occurs earlier), shall cure the breach
in all material respects or, subject to the Mortgage Loan Purchase Agreement and
Section 2.04 of this Agreement, shall purchase the Mortgage Loan or any property
acquired with respect thereto from the Issuer; provided, however, that if there
is a breach of any representation set forth in the Mortgage Loan Purchase
Agreement, and the Mortgage Loan or the related property acquired with respect
thereto has been sold, then the Seller shall pay, in lieu of the Repurchase
Price, any excess of the Repurchase Price over the Net Liquidation Proceeds
received upon such sale. If the Net Liquidation Proceeds exceed the Repurchase
Price, any excess shall be paid to the Seller to the extent not required by law
to be paid to the borrower. Any such purchase by the Seller shall be made by
providing an amount equal to the Repurchase Price to the Securities
Administrator for deposit in the Payment Account and written notification
detailing the components of such Repurchase Price. The Depositor shall submit to
the Indenture Trustee and the Custodian a Request for Release, and the Indenture
Trustee shall cause the Custodian to release, upon receipt of certification from
the Securities Administrator that
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the Repurchase Price has been deposited in the Payment Account, to the Seller
the related Mortgage File and the Indenture Trustee shall execute and deliver
all instruments of transfer or assignment furnished to it by the Seller, without
recourse, representation or warranty as are necessary to vest in the Seller
title to and rights under the Mortgage Loan or any property acquired with
respect thereto. Such purchase shall be deemed to have occurred on the date on
which the Repurchase Price in available funds is deposited in the Payment
Account. The Master Servicer shall amend the Mortgage Loan Schedule to reflect
such repurchase and shall promptly deliver to the Issuer, Indenture Trustee, the
Custodian and the Rating Agencies a copy of such amendment. Enforcement of the
obligation of the Seller to purchase (or substitute a Substitute Mortgage Loan
for) any Mortgage Loan or any property acquired with respect thereto (or pay the
Repurchase Price as set forth in the above proviso) as to which a breach has
occurred and is continuing shall constitute the sole remedy respecting such
breach available to the Issuer, the Noteholders or the Indenture Trustee on
their behalf.
Section 2.04 SUBSTITUTION OF MORTGAGE LOANS. Notwithstanding anything
to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan
pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of
this Agreement, the Seller may, no later than the date by which such purchase by
the Seller would otherwise be required, tender to the Indenture Trustee a
Substitute Mortgage Loan accompanied by a certificate of an authorized officer
of the Seller that such Substitute Mortgage Loan conforms to the requirements
set forth in the definition of "Substitute Mortgage Loan" in this Agreement. The
Indenture Trustee shall cause the Custodian to examine the Mortgage File for any
Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the
Indenture Trustee shall cause the Custodian to notify the Seller, in writing,
within five Business Days after receipt, whether or not the documents relating
to the Substitute Mortgage Loan satisfy the requirements of Section 2.02. Within
two Business Days after such notification, the Seller shall provide to the
Securities Administrator for deposit in the Payment Account the amount, if any,
by which the Outstanding Principal Balance as of the next preceding Due Date of
the Mortgage Loan for which substitution is being made, after giving effect to
the Scheduled Principal due on such date, exceeds the Outstanding Principal
Balance as of such date of the Substitute Mortgage Loan, after giving effect to
Scheduled Principal due on such date, which amount shall be treated for the
purposes of this Agreement as if it were the payment by the Seller of the
Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such
notification to the Seller and, if any such excess exists, upon receipt of
certification from the Securities Administrator that such excess has been
deposited in the Payment Account, the Indenture Trustee shall accept such
Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan
hereunder. In the event of such a substitution, accrued interest on the
Substitute Mortgage Loan for the month in which the substitution occurs and any
Principal Prepayments made thereon during such month shall be the property of
the Trust Estate and accrued interest for such month on the Mortgage Loan for
which the substitution is made and any Principal Prepayments made thereon during
such month shall be the property of the Seller. The Scheduled Principal on a
Substitute Mortgage Loan due on the Due Date in the month of substitution shall
be the property of the Seller and the Scheduled Principal on the Mortgage Loan
for which the substitution is made due on such Due Date shall be the property of
the Trust Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery
to the Indenture Trustee and the Custodian of a Request for Release for such
Mortgage Loan), the Indenture Trustee shall cause the Custodian to release to
the Seller the related Mortgage File related to any Mortgage Loan released
pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement,
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as applicable, and shall execute and deliver all instruments of transfer or
assignment, without recourse, representation or warranty in form as provided to
it as are necessary to vest in the Seller title to and rights under any Mortgage
Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04
of this Agreement, as applicable. The Seller shall deliver to the Custodian the
documents related to the Substitute Mortgage Loan in accordance with the
provisions of the Mortgage Loan Purchase Agreement and Subsections 2.01(b) and
2.02(b) of this Agreement, as applicable, with the date of acceptance of the
Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time
periods set forth in those Subsections. The representations and warranties set
forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made
by the Seller with respect to each Substitute Mortgage Loan as of the date of
acceptance of such Mortgage Loan by the Indenture Trustee. The Master Servicer
shall amend the Mortgage Loan Schedule to reflect such substitution and shall
provide a copy of such amended Mortgage Loan Schedule to the Issuer, the
Indenture Trustee, the Custodian and the Rating Agencies.
Section 2.05 REPRESENTATIONS AND WARRANTIES CONCERNING THE DEPOSITOR.
The Depositor hereby represents and warrants to the Issuer, the Indenture
Trustee, the Master Servicer and the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and (b) is
qualified and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure so
to qualify would not reasonably be expected to have a material adverse effect on
the Depositor's business as presently conducted or on the Depositor's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(ii) the Depositor has full corporate power to own its
property, to carry on its business as presently conducted and to enter into and
perform its obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Depositor; and neither the execution and delivery of this Agreement,
nor the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its properties
or the articles of incorporation or by-laws of the Depositor, except those
conflicts, breaches or defaults which would not reasonably be expected to have a
material adverse effect on the Depositor's ability to enter into this Agreement
and to consummate the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated hereby
do not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except those consents,
approvals, notices, registrations or other actions as have already been
obtained, given or made;
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(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (i) with
respect to any of the transactions contemplated by this Agreement or
(vii) with respect to any other matter which in the judgment
of the Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially and adversely affect the
Depositor's ability to enter into this Agreement or perform its obligations
under this Agreement; and the Depositor is not in default with respect to any
order of any court, administrative agency, arbitrator or governmental body so as
to materially and adversely affect the transactions contemplated by this
Agreement; and
(viii) immediately prior to the transfer and assignment to the
Issuer, each Mortgage Note and each Mortgage were not subject to an assignment
or pledge, and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage Loan to the
Issuer free and clear of any encumbrance, equity, lien, pledge, charge, claim or
security interest.
Section 2.06 REPRESENTATIONS AND WARRANTIES REGARDING THE MASTER
SERVICER. The Master Servicer represents and warrants to the Issuer, the
Depositor, the Seller and the Indenture Trustee for the benefit of the
Noteholders, as follows:
(i) The Master Servicer is a national banking association duly
organized, validly existing and in good standing under the laws of the Untied
States of America and has the corporate power to own its assets and to transact
the business in which it is currently engaged. The Master Servicer is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Master Servicer or
the validity or enforceability of this Agreement;
(ii) The Master Servicer has the power and authority to make,
execute, deliver and perform this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement. When
executed and delivered, this Agreement will constitute the legal, valid and
binding obligation of the Master Servicer enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
(iii) The Master Servicer is not required to obtain the
consent of any other Person or any consent, license, approval or authorization
from, or registration or declaration
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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;
(iv) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by the Master Servicer will
not violate any provision of any existing law or regulation or any order or
decree of any court applicable to the Master Servicer or any provision of the
certificate of incorporation or bylaws of the Master Servicer, or constitute a
material breach of any mortgage, indenture, contract or other agreement to which
the Master Servicer is a party or by which the Master Servicer may be bound; and
(v) No litigation or administrative proceeding of or before
any court, tribunal or governmental body is currently pending (other than
litigation with respect to which pleadings or documents have been filed with a
court, but not served on the Master Servicer), or to the knowledge of the Master
Servicer threatened, against the Master Servicer or any of its properties or
with respect to this Agreement or the Notes or the Certificates which, to the
knowledge of the Master Servicer, has a reasonable likelihood of resulting in a
material adverse effect on the transactions contemplated by this Agreement.
The foregoing representations and warranties shall survive any
termination of the Master Servicer hereunder.
Section 2.07 ASSIGNMENT OF AGREEMENT. The Seller, the Depositor and the
Master Servicer hereby acknowledge and agree that the Issuer may assign its
interest under this Agreement to the Indenture Trustee, for the benefit of the
Noteholders, as may be required to effect the purposes of the Indenture, without
further notice to, or consent of, the Seller, the Depositor or the Master
Servicer, and the Indenture Trustee shall succeed to such of the rights of the
Issuer hereunder as shall be so assigned. The Issuer shall, pursuant to the
Indenture, assign all of its right, title and interest in and to the Mortgage
Loans and its right to exercise the remedies created by Article II of this
Agreement for breaches of the representations, warranties, agreements and
covenants of the Seller contained in the Mortgage Loan Purchase Agreement, to
the Indenture Trustee, for the benefit of the Noteholders. The Seller agrees
that, upon such assignment to the Indenture Trustee, such representations,
warranties, agreements and covenants will run to and be for the benefit of the
Indenture Trustee and the Indenture Trustee may enforce, without joinder of the
Depositor or the Issuer, the repurchase obligations of the Seller set forth
herein and in the Mortgage Loan Purchase Agreement with respect to breaches of
such representations, warranties, agreements and covenants. Any such assignment
to the Indenture Trustee shall not be deemed to constitute an assignment to the
Indenture Trustee of any obligations or liabilities of the Issuer under this
Agreement.
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ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 MASTER SERVICER. The Master Servicer shall supervise,
monitor and oversee the obligations of the Servicer to service and administer
the Mortgage Loans in accordance with the terms of the MortgageIT Servicing
Agreement and shall have full power and authority to do any and all things which
it may deem necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult with the Servicer as
necessary from time-to-time to carry out the Master Servicer's obligations
hereunder, shall receive, review and evaluate all reports, information and other
data provided to the Master Servicer by the Servicer and shall cause the
Servicer to perform and observe the covenants, obligations and conditions to be
performed or observed by such Servicer under the MortgageIT Servicing Agreement.
The Master Servicer shall independently and separately monitor the Servicer's
servicing activities with respect to the Mortgage Loans, reconcile the results
of such monitoring with such information provided in the previous sentence on a
monthly basis and coordinate corrective adjustments to the Servicer's and Master
Servicer's records, and based on such reconciled and corrected information, the
Master Servicer shall provide such information to the Securities Administrator
as shall be necessary in order for it to prepare the statements specified in
Section 7.03 of the Indenture, and prepare any other information and statements
required to be forwarded by the Master Servicer hereunder. The Master Servicer
shall reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the Servicer pursuant to the MortgageIT Servicing Agreement.
The Indenture Trustee shall furnish the Servicer and the Master
Servicer with any powers of attorney and other documents in form as provided to
it necessary or appropriate to enable the Servicer and the Master Servicer to
service and administer the related Mortgage Loans and REO Property. The
Indenture Trustee shall not be liable for the Servicer's or the Master
Servicer's use or misuse of such powers of attorney.
The Indenture Trustee shall provide access to the records and
documentation in possession of the Indenture Trustee regarding the related
Mortgage Loans and REO Property and the servicing thereof to the Noteholders,
the FDIC, and the supervisory agents and examiners of the FDIC, such access
being afforded only upon reasonable prior written request and during normal
business hours at the office of the Indenture Trustee. The Indenture Trustee
shall allow representatives of the above entities to photocopy any of the
records and documentation and shall provide equipment for that purpose at a
charge that covers the Indenture Trustee's actual costs.
The Indenture Trustee shall execute and deliver to the Servicer or the
Master Servicer, as applicable based on the requesting party, any court
pleadings, requests for trustee's sale or other documents necessary or
reasonably desirable to (i) the foreclosure or trustee's sale with respect to a
Mortgaged Property; (ii) any legal action brought to obtain judgment against any
Mortgagor on the Mortgage Note or Security Instrument; (iii) obtain a deficiency
judgment against the Mortgagor; or (iv) enforce any other rights or remedies
provided by the Mortgage Note or Security Instrument or otherwise available at
law or equity.
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Section 3.02 [Reserved]
Section 3.03 MONITORING OF SERVICER. (a) The Master Servicer shall be
responsible for reporting to the Issuer, the Indenture Trustee and the Depositor
the compliance by the Servicer with its duties under the MortgageIT Servicing
Agreement. In the review of the Servicer's activities, the Master Servicer may
rely upon an officer's certificate of the Servicer (or similar document signed
by an officer of the Servicer) with regard to such Servicer's compliance with
the terms of the MortgageIT Servicing Agreement. In the event that the Master
Servicer, in its judgment, determines that the Servicer should be terminated in
accordance with the MortgageIT Servicing Agreement, or that a notice should be
sent pursuant to the MortgageIT Servicing Agreement with respect to the
occurrence of an event that, unless cured, would constitute grounds for such
termination, the Master Servicer shall notify the Depositor, the Issuer and the
Indenture Trustee thereof and the Master Servicer shall issue such notice or
take such other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Issuer, the Indenture
Trustee and the Noteholders, shall enforce the obligations of the Servicer under
the MortgageIT Servicing Agreement, and shall, in the event that the Servicer
fails to perform its obligations in accordance with the MortgageIT Servicing
Agreement, subject to the preceding paragraph, terminate the rights and
obligations of the Servicer thereunder and act as servicer of the related
Mortgage Loans or cause the Issuer and the Indenture Trustee to enter in to a
new MortgageIT Servicing Agreement with a successor Servicer selected by the
Master Servicer; provided, however, it is understood and acknowledged by the
parties hereto that there will be a period of transition (not to exceed 90 days)
before the actual servicing functions can be fully transferred to such successor
Servicer. Such enforcement, including, without limitation, the legal prosecution
of claims, termination of the MortgageIT Servicing Agreement and the pursuit of
other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
provided that the Master Servicer shall not be required to prosecute or defend
any legal action except to the extent that the Master Servicer shall have
received reasonable indemnity for its costs and expenses in pursuing such
action.
(c) To the extent that the costs and expenses of the Master Servicer
related to any termination of the Servicer, appointment of a successor servicer
or the transfer and assumption of servicing by the Master Servicer with respect
to the MortgageIT Servicing Agreement (including, without limitation, (i) all
out of pocket legal costs and expenses and all due diligence costs and expenses
associated with an evaluation of the potential termination of the Servicer as a
result of an event of default by the Servicer and (ii) all costs and expenses
associated with the complete transfer of servicing, including all servicing
files and all servicing data and the completion, correction or manipulation of
such servicing data as may be required by the successor servicer to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
successor service to service the Mortgage Loans in accordance with the
MortgageIT Servicing Agreement) are not fully and timely reimbursed by the
terminated Servicer, the Master Servicer shall be entitled to reimbursement of
such costs and expenses from the Payment Account.
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(d) The Master Servicer shall require the Servicer to comply with the
remittance requirements and other obligations set forth in the MortgageIT
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
Section 3.04 FIDELITY BOND. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05 POWER TO ACT; PROCEDURES. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority to do any and
all things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the power and authority (i) to execute and deliver, on behalf of the Issuer,
Noteholders and the Indenture Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and the MortgageIT Servicing Agreement, as applicable. The
Indenture Trustee shall furnish the Master Servicer, upon written request from a
Servicing Officer, with any powers of attorney empowering the Master Servicer or
the Servicer to execute and deliver instruments of satisfaction or cancellation,
or of partial or full release or discharge, and to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in any court
action relating to the Mortgage Loans or the Mortgaged Property, in accordance
with the MortgageIT Servicing Agreement and this Agreement, and the Indenture
Trustee shall execute and deliver such other documents, as the Master Servicer
may request, to enable the Master Servicer to master service and administer the
Mortgage Loans and carry out its duties hereunder, in each case in accordance
with Accepted Master Servicing Practices (and the Indenture Trustee shall have
no liability for use or misuse of any such powers of attorney by the Master
Servicer or the Servicer). If the Master Servicer or the Indenture Trustee has
been advised that it is likely that the laws of the state in which action is to
be taken prohibit such action if taken in the name of the Indenture Trustee or
that the Indenture Trustee would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Indenture Trustee in the appointment of a
co-trustee pursuant to Section 6.10 of the Indenture. In the performance of its
duties hereunder, the Master Servicer shall be an independent contractor and
shall not, except in those instances where it is taking action in the name of
the Issuer or the Indenture Trustee, be deemed to be the agent of the Issuer or
the Indenture Trustee.
Section 3.06 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS. To the extent
provided in the MortgageIT Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-
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on-sale clauses, the Master Servicer shall cause the Servicer to enforce such
clauses in accordance with the MortgageIT Servicing Agreement. If applicable law
prohibits the enforcement of a due-on-sale clause or such clause is otherwise
not enforced in accordance with the MortgageIT Servicing Agreement, and, as a
consequence, a Mortgage Loan is assumed, the original Mortgagor may be released
from liability in accordance with the MortgageIT Servicing Agreement.
Section 3.07 RELEASE OF MORTGAGE FILES. (a) Upon becoming aware of the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Noteholders on the next Payment Date, the Servicer
will, if required under the MortgageIT Servicing Agreement, promptly furnish to
the Indenture Trustee two copies of a certification substantially in the form of
Exhibit B hereto signed by a Servicing Officer or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate from
a Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the Servicer pursuant to the
MortgageIT Servicing Agreement have been so deposited) and shall request that
the Indenture Trustee deliver or cause the Custodian to deliver to the Servicer
the related Mortgage File. Upon receipt of such certification and request, the
Indenture Trustee shall promptly release or cause the Custodian to release the
related Mortgage File to the Servicer and the Indenture Trustee shall have no
further responsibility with regard to such Mortgage File. Upon any such payment
in full, the Servicer is authorized, to give, as agent for the Indenture
Trustee, as the mortgagee under the Mortgage that secured the Mortgage Loan, an
instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument of
satisfaction or assignment, as the case may be, shall be delivered to the Person
or Persons entitled thereto against receipt therefor of such payment, it being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Protected Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with the MortgageIT Servicing
Agreement, the Indenture Trustee shall execute such documents as shall be
prepared and furnished to the Indenture Trustee by the Servicer or the Master
Servicer (in form reasonably acceptable to the Indenture Trustee) and as are
necessary to the prosecution of any such proceedings. The Indenture Trustee
shall, upon the request of the Servicer or the Master Servicer, and delivery to
the Indenture Trustee, of two copies of a request for release signed by a
Servicing Officer substantially in the form of Exhibit B (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), release or cause the Custodian to release
the related Mortgage File held in its or the Custodian's possession or control
to the Servicer or the Master Servicer, as applicable. The Servicer or the
Master Servicer shall be obligated to return the Mortgage File to the Indenture
Trustee or the Custodian when the need therefor by the Servicer or the Master
Servicer, as it reasonably determines, no longer exists unless the Mortgage Loan
shall be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that hereinabove specified, the Mortgage File shall be
released by the Indenture Trustee or the Custodian to the Servicer or the Master
Servicer.
Section 3.08 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR ISSUER AND INDENTURE TRUSTEE.
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(a) The Master Servicer shall transmit and the Servicer (to the extent
required by the MortgageIT Servicing Agreement) shall transmit to the Indenture
Trustee such documents and instruments coming into the possession of the Master
Servicer or the Servicer from time to time as are required by the terms hereof,
or in the case of the Servicer, the MortgageIT Servicing Agreement, to be
delivered to the Indenture Trustee. Any funds received by the Master Servicer or
by the Servicer in respect of any Mortgage Loan or which otherwise are collected
by the Master Servicer or by the Servicer as Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan shall be held for the benefit of the
Issuer and the Indenture Trustee subject to the Master Servicer's right to
retain or withdraw from the Payment Account the Master Servicer Compensation and
other amounts provided in this Agreement and the right of the Servicer to retain
its Servicing Fee and other amounts as provided in the MortgageIT Servicing
Agreement. The Master Servicer shall, and (to the extent provided in the
MortgageIT Servicing Agreement) shall cause the Servicer to, provide access to
information and documentation regarding the Mortgage Loans to the Issuer, the
Indenture Trustee, and their respective agents and accountants at any time upon
reasonable request and during normal business hours, and to Noteholders that are
savings and loan associations, banks or insurance companies, the Office of
Thrift Supervision, the FDIC and the supervisory agents and examiners of such
Office and Corporation or examiners of any other federal or state banking or
insurance regulatory authority if so required by applicable regulations of the
Office of Thrift Supervision or other regulatory authority, such access to be
afforded without charge but only upon reasonable request in writing and during
normal business hours at the offices of the Master Servicer designated by it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, in respect of any Mortgage Loans, whether from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, shall be held by the Master Servicer for and on behalf of
the Issuer, the Indenture Trustee and the Noteholders and shall be and remain
the sole and exclusive property of the Issuer, subject to the pledge to the
Indenture Trustee; provided, however, that the Master Servicer and the Servicer
shall be entitled to setoff against, and deduct from, any such funds any amounts
that are properly due and payable to the Master Servicer or the Servicer under
this Agreement or the MortgageIT Servicing Agreement.
Section 3.09 STANDARD HAZARD INSURANCE AND FLOOD INSURANCE POLICIES.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicer under the MortgageIT Servicing Agreement to maintain
or cause to be maintained standard fire and casualty insurance and, where
applicable, flood insurance, all in accordance with the provisions of the
MortgageIT Servicing Agreement. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
MortgageIT Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require such
additional insurance.
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(b) Pursuant to Section 4.01 and 4.04, any amounts collected by the
Servicer or the Master Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the Mortgagor in accordance with the
MortgageIT Servicing Agreement) shall be deposited into the Payment Account,
subject to withdrawal pursuant to Section 4.04 and 4.05. Any cost incurred by
the Master Servicer or the Servicer in maintaining any such insurance if the
Mortgagor defaults in its obligation to do so shall be added to the amount owing
under the Mortgage Loan where the terms of the Mortgage Loan so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to Noteholders
and shall be recoverable by the Master Servicer or such Servicer pursuant to
Section 4.04 and 4.05.
Section 3.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Master Servicer shall (to the extent provided in the MortgageIT Servicing
Agreement) cause the Servicer to prepare and present on behalf of the Issuer,
the Indenture Trustee and the Noteholders all claims under the Insurance
Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to the Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Payment Account upon receipt, except that any amounts realized that are to be
applied to the repair or restoration of the related Mortgaged Property as a
condition precedent to the presentation of claims on the related Mortgage Loan
to the insurer under any applicable Insurance Policy need not be so deposited
(or remitted).
Section 3.11 MAINTENANCE OF THE PRIMARY MORTGAGE INSURANCE POLICIES.
(a) The Master Servicer shall not take, or permit the Servicer (to the
extent such action is prohibited under the MortgageIT Servicing Agreement) to
take, any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the Master
Servicer or the Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause the Servicer (to the
extent required under the MortgageIT Servicing Agreement) to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the MortgageIT Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
the Servicer (to the extent required under the MortgageIT Servicing Agreement)
to, cancel or refuse to renew any such Primary Mortgage Insurance Policy that is
in effect at the date of the initial issuance of the Mortgage Note and is
required to be kept in force hereunder except in accordance with the provisions
of this Agreement and the MortgageIT Servicing Agreement, as applicable.
(b) The Master Servicer agrees to cause the Servicer (to the extent
required under the MortgageIT Servicing Agreement) to present, on behalf of the
Issuer, the Indenture Trustee and the Noteholders, claims to the insurer under
any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Section 4.01 and 4.04, any amounts collected by the Master Servicer or the
Servicer under any Primary
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Mortgage Insurance Policies shall be deposited in the Payment Account, subject
to withdrawal pursuant to Sections 4.04 and 4.05.
Section 3.12 INDENTURE TRUSTEE TO RETAIN POSSESSION OF CERTAIN
INSURANCE POLICIES AND DOCUMENTS.
The Indenture Trustee shall retain or shall cause the Custodian to
retain possession and custody of the originals (to the extent available) of any
Primary Mortgage Insurance Policies, or certificate of insurance if applicable,
and any certificates of renewal as to the foregoing as may be issued from time
to time as contemplated by this Agreement. Until all amounts distributable in
respect of the Notes have been distributed in full and the Indenture has been
satisfied and discharged in accordance with Section 4.10 of the Indenture, the
Indenture Trustee shall also retain, or shall cause the Custodian to retain,
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions of this Agreement. The Master Servicer shall promptly
deliver or cause to be delivered to the Indenture Trustee upon the execution or
receipt thereof the originals of any Primary Mortgage Insurance Policies, any
certificates of renewal, and such other documents or instruments that constitute
portions of the Mortgage File that come into the possession of the Master
Servicer from time to time.
Section 3.13 REALIZATION UPON DEFAULTED MORTGAGE LOANS. For each
Mortgage Loan that comes into and continues in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments, the
Master Servicer shall cause the Servicer (to the extent required under the
MortgageIT Servicing Agreement) to either (i) foreclose upon, repossess or
otherwise comparably convert the ownership of Mortgaged Properties securing such
Mortgage Loans, all in accordance with the MortgageIT Servicing Agreement or
(ii) as an alternative to foreclosure, sell such defaulted Mortgage Loans at
fair market value to third-parties, if the Servicer reasonably believes that
such sale would maximize proceeds to the Trust (on a present value basis) with
respect to those Mortgage Loans. The Servicer shall be responsible for all costs
and expenses incurred by it in any such proceedings or sale; provided, however,
that such costs and expenses will be recoverable as servicing advances by the
Servicer as contemplated in Section 4.05.
Section 3.14 COMPENSATION FOR THE MASTER SERVICER.
On each Payment Date the Master Servicer will be entitled to all income
and gain realized from any investment of funds in the Payment Account, pursuant
to Article IV, for the performance of its activities hereunder (the "Master
Servicer Compensation"). In addition, the Master Servicer shall be entitled to
receive the Master Servicing Fee in accordance with Section 4.05 as compensation
for its services in connection with master servicing of the Mortgage Loans.
Servicing compensation in the form of assumption fees, if any, late payment
charges, as collected, if any, or otherwise (but not including any prepayment
premium or penalty) shall be retained by the Servicer and shall not be deposited
in the Protected Account. 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 3.15 REO PROPERTY.
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(a) In the event the Trust Estate acquires ownership of any REO
Property in respect of any related Mortgage Loan, the deed or certificate of
sale shall be issued to the Indenture Trustee, or to its nominee, on behalf of
the Noteholders. The Master Servicer shall, to the extent provided in the
MortgageIT Servicing Agreement, cause the Servicer to sell any REO Property as
expeditiously as possible and in accordance with the provisions of the
MortgageIT Servicing Agreement, as applicable. Pursuant to its efforts to sell
such REO Property, the Master Servicer shall cause the Servicer to protect and
conserve, such REO Property in the manner and to the extent required by the
MortgageIT Servicing Agreement.
(b) The Master Servicer shall, to the extent required by the MortgageIT
Servicing Agreement, cause the Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the Protected
Account.
(c) The Master Servicer and the Servicer, upon the final disposition of
any REO Property, shall be entitled to reimbursement for any related
unreimbursed Monthly Advances and other unreimbursed advances as well as any
unpaid Servicing Fees from Liquidation Proceeds received in connection with the
final disposition of such REO Property; provided, that any such unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
(d) To the extent provided in the MortgageIT Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the Servicer as provided above shall be
deposited in the Protected Account on or prior to the Determination Date in the
month following receipt thereof and be remitted by wire transfer in immediately
available funds to the Master Servicer for deposit into the Payment Account on
the next succeeding Servicer Remittance Date.
Section 3.16 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
(a) The Master Servicer shall deliver to the Issuer, the Indenture
Trustee and the Rating Agencies on or before March 1 of each year, commencing on
March 1, 2005, an Officer's Certificate, certifying that with respect to the
period ending December 31 of the prior year: (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 Servicer has failed to perform any of its duties,
responsibilities and obligations under the MortgageIT Servicing Agreement 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.
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(b) Copies of such statements shall be provided to any Noteholder upon
request, by the Master Servicer or by the Indenture Trustee at the Master
Servicer's expense if the Master Servicer failed to provide such copies (unless
(i) the Master Servicer shall have failed to provide the Indenture Trustee with
such statement or (ii) the Indenture Trustee shall be unaware of the Master
Servicer's failure to provide such statement).
Section 3.17 ANNUAL INDEPENDENT ACCOUNTANT'S SERVICING REPORT. If the
Master Servicer has, during the course of any fiscal year, directly serviced any
of the Mortgage Loans, then the Master Servicer at its expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish a statement to the Issuer, the Indenture Trustee, the Rating Agencies
and the Depositor on or before March 1 of each year, commencing on March 1, 2005
to the effect that, with respect to the most recently ended fiscal year, such
firm has examined certain records and documents relating to the Master
Servicer's performance of its servicing obligations under this Agreement and
pooling and servicing and trust agreements in material respects similar to this
Agreement and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
▇▇▇▇▇▇▇ Mac or the Uniform Single Attestation Program for Mortgage Bankers, such
firm is of the opinion that the Master Servicer's activities have been conducted
in compliance with this Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation Program
for Mortgage Bankers or the Audit Program for Mortgages Serviced by ▇▇▇▇▇▇▇ Mac
requires it to report. Copies of such statements shall be provided to any
Noteholder upon request by the Master Servicer, or by the Indenture Trustee at
the expense of the Master Servicer if the Master Servicer shall fail to provide
such copies. If such report discloses exceptions that are material, the Master
Servicer shall advise the Indenture Trustee whether such exceptions have been or
are susceptible of cure, and will take prompt action to do so.
Section 3.18 REPORTS FILED WITH SECURITIES AND EXCHANGE COMMISSION.
Within 15 days after each Payment Date, the Securities Administrator shall, in
accordance with industry standards, file with the Commission via the Electronic
Data Gathering and Retrieval System ("▇▇▇▇▇"), a Form 8-K (or other comparable
Form containing the same or comparable information or other information mutually
agreed upon) with a copy of the statement to the Noteholders for such Payment
Date as an exhibit thereto. Prior to January 30 in any year, the Securities
Administrator shall, in accordance with industry standards and only if
instructed by the Depositor, file a Form 15 Suspension Notice with respect to
the Trust Estate, if applicable. Prior to (i) March 15, 2005 and (ii) unless and
until a Form 15 Suspension Notice shall have been filed, prior to March 15 of
each year thereafter, the Master Servicer shall provide the Securities
Administrator with a Master Servicer Certification, together with a copy of the
annual independent accountant's servicing report and annual statement of
compliance of the Servicer, in each case, required to be delivered pursuant to
the MortgageIT Servicing Agreement, and, if applicable, the annual independent
accountant's servicing report and annual statement of compliance to be delivered
by the Master Servicer pursuant to Sections 3.16 and 3.17. Prior to (i) March
31, 2005, or such earlier filing date as may be required by the Commission, and
(ii) unless and until a Form 15 Suspension Notice shall have been filed, March
31 of each year thereafter, or such earlier filing date as may be required by
the Commission, the Securities Administrator shall file a Form 10-K, in
substance conforming to industry standards, with
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respect to the Trust. Such Form 10-K shall include the Master Servicer
Certification and other documentation provided by the Master Servicer pursuant
to the second preceding sentence. The Depositor hereby grants to 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 Securities Administrator from the Depositor of
written termination of such power of attorney and (ii) the termination of the
Trust Estate. 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 Securities Administrator 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 3.18; provided, however, the Securities Administrator
will cooperate with the Depositor and the Issuer in connection with any
additional filings with respect to the Trust Estate as the Depositor deems
necessary under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Fees and expenses incurred by the Securities Administrator in connection
with this Section 3.18 shall not be reimbursable from the Trust Estate.
Section 3.19 RESERVED.
Section 3.20 UCC. The Depositor shall inform the Indenture Trustee in
writing of any Uniform Commercial Code financing statements that were filed on
the Closing Date in connection with the Trust Estate with stamped recorded
copies of such financing statements to be delivered to the Indenture Trustee
promptly upon receipt by the Depositor. If directed by the Depositor in writing,
the Indenture Trustee will execute any continuation statements prepared by the
Depositor and deliver them as directed solely at the expense of the Depositor.
The Depositor shall file any financing statements or amendments thereto required
by any change in the Uniform Commercial Code.
Section 3.21 OPTIONAL PURCHASE OF MORTGAGE LOANS.
(a) With respect to any Mortgage Loan which is delinquent in payment by
90 days or more or is an REO Property, the Servicer shall have the right to
purchase such Mortgage Loan from the Trust Estate at a price equal to the
Repurchase Price.
(b) Pursuant to the MortgageIT Servicing Agreement, the Servicer will
have the option at any time to purchase any of the Mortgage Loans from the Trust
Estate at the Repurchase Price, up to a maximum of five Mortgage Loans. In the
event that this option is exercised as to any five Mortgage Loans, this option
will thereupon terminate. This option is not revocable by the Servicer.
(c) If at any time the Servicer remits to the Master Servicer a payment
for deposit in the Payment Account covering the amount of the Repurchase Price
for a Mortgage Loan in accordance with Section 3.21(a) or Section 3.21(b) above,
and the Master Servicer provides to the Indenture Trustee a certification signed
by a Servicing Officer stating that the amount of such payment has been
deposited in the Payment Account, then the Indenture Trustee shall execute the
assignment of such Mortgage Loan to the Servicer, without recourse,
representation or warranty and the Servicer shall succeed to all of the
Indenture Trustee's right, title and interest in
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and to such Mortgage Loan, and all security and documents relative thereto. Such
assignment shall be an assignment outright and not for security. The Servicer
will thereupon own such Mortgage, and all such security and documents, free of
any further obligation to the Issuer, the Indenture Trustee or the Noteholders
with respect thereto.
Section 3.22 MONTHLY ADVANCES. If the Scheduled Payment on a Mortgage
Loan that was due on a related Due Date is delinquent other than as a result of
application of the Relief Act and for which the Servicer was required to make an
advance pursuant to the MortgageIT Servicing Agreement exceeds the amount
deposited in the Payment Account which will be used for an advance with respect
to such Mortgage Loan, the Master Servicer (solely in its capacity as successor
Servicer) will deposit in the Payment Account not later than the related Payment
Date an amount equal to such deficiency, net of the Servicing Fee and Master
Servicing Fee for such Mortgage Loan except to the extent the Master Servicer
determines any such advance to be a Nonrecoverable Advance. Subject to the
foregoing, the Master Servicer (solely in its capacity as successor Servicer)
shall continue to make such advances through the date that the Servicer is
required to do so under the MortgageIT Servicing Agreement. If the Master
Servicer deems an advance to be a Nonrecoverable Advance, on the Payment Date,
the Master Servicer shall present an Officer's Certificate to the Securities
Administrator (i) stating that the Master Servicer elects not to make a Monthly
Advance in a stated amount and (ii) detailing the reason it deems the advance to
be a Nonrecoverable Advance.
Section 3.23 COMPENSATING INTEREST PAYMENTS. The Master Servicer shall
deposit in the Payment Account not later than each Payment Account Deposit Date
an amount equal to the lesser of (i) the sum of the aggregate amounts required
to be paid by the Servicer under the MortgageIT Servicing Agreement with respect
to subclauses (a) and (b) of the definition of Interest Shortfalls with respect
to the Mortgage Loans for the related Prepayment Period, and not so paid by the
Servicer and (ii) the Master Servicing Fee for such Payment Date (such amount,
the "Compensating Interest Payment"). The Master Servicer shall not be entitled
to any reimbursement of any Compensating Interest Payment.
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ARTICLE IV
Accounts
Section 4.01 PROTECTED ACCOUNTS. (a) The Master Servicer shall enforce
the obligation of the Servicer to establish and maintain a Protected Account in
accordance with the MortgageIT Servicing Agreement, with records to be kept with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which account
shall be deposited within two (2) Business Days (or as of such other time
specified in the MortgageIT Servicing Agreement) of receipt, all collections of
principal and interest on any Mortgage Loan and any REO Property received by the
Servicer, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, and advances made from the Servicer's own funds (less servicing
compensation as permitted by the MortgageIT Servicing Agreement in the case of
the Servicer) and all other amounts to be deposited in the Protected Account.
The Protected Account shall be an Eligible Account. The Servicer is hereby
authorized to make withdrawals from and deposits to the Protected Account for
purposes required or permitted by this Agreement. To the extent provided in the
MortgageIT Servicing Agreement, the Protected Account shall be held by a
Designated Depository Institution and segregated on the books of such
institution in the name of the Indenture Trustee for the benefit of the
Noteholders.
(b) To the extent provided in the MortgageIT Servicing Agreement,
amounts on deposit in the Protected Account may be invested in Permitted
Investments in the name of the Indenture Trustee for the benefit of Noteholders
and, except as provided in the preceding paragraph, not commingled with any
other funds. Such Permitted Investments shall mature, or shall be subject to
redemption or withdrawal, no later than the date on which such funds are
required to be withdrawn for deposit in the Payment Account, and shall be held
until required for such deposit. The income earned from Permitted Investments
made pursuant to this Section 4.01 shall be paid to the Servicer under the
MortgageIT Servicing Agreement, and the risk of loss of moneys required to be
distributed to the Noteholders resulting from such investments shall be borne by
and be the risk of the Servicer. The Servicer (to the extent required by the
MortgageIT Servicing Agreement) shall deposit the amount of any such loss in the
Protected Account within two Business Days of receipt of notification of such
loss but not later than the second Business Day prior to the Payment Date on
which the moneys so invested are required to be distributed to the Noteholders.
(c) To the extent required by the MortgageIT Servicing Agreement and
subject to this Article IV, on or before each Servicer Remittance Date, the
Servicer shall withdraw or shall cause to be withdrawn from its Protected
Account and shall immediately deposit or cause to be deposited in the Payment
Account amounts representing the following collections and payments (other than
with respect to principal of or interest on the Mortgage Loans due on or before
the Cut-off Date):
(i) Scheduled Payments on the Mortgage Loans received or any
related portion thereof advanced by the Servicer pursuant to the MortgageIT
Servicing Agreement which were due on or before the related Due Date, net of the
amount thereof comprising the Servicing Fee or any fees with respect to any
lender-paid primary mortgage insurance policy;
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(ii) Principal Prepayments in full and any Liquidation
Proceeds received by the Servicer with respect to the Mortgage Loans in the
related Prepayment Period, with interest to the date of prepayment or
liquidation, net of the amount thereof comprising the Servicing Fee;
(iii) Principal Prepayments in part received by the Servicer
for the Mortgage Loans in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals may be made from the Protected Account only to make
remittances as provided in Section 4.01(c), 4.04 and 4.05; to reimburse the
Master Servicer or the Servicer for Monthly Advances which have been recovered
by subsequent collections from the related Mortgagor; to remove amounts
deposited in error; to remove fees, charges or other such amounts deposited on a
temporary basis; or to clear and terminate the account at the termination of
this Agreement in accordance with Section 7.10. As provided in Sections 4.01(a)
and 4.04(b) certain amounts otherwise due to the Servicer may be retained by it
and need not be deposited in the Payment Account.
Section 4.02 [RESERVED].
Section 4.03 [RESERVED].
Section 4.04 PAYMENT ACCOUNT. (a) The Securities Administrator shall
establish and maintain in the name of the Indenture Trustee, for the benefit of
the Noteholders, the Payment Account as a segregated trust account or accounts.
The Securities Administrator will deposit in the Payment Account as identified
by the Securities Administrator and as received by the Securities Administrator,
the following amounts:
(i) Any amounts withdrawn from the Protected Account;
(ii) Any Monthly Advance and any Compensating Interest
Payments;
(iii) Any Insurance Proceeds or Net Liquidation Proceeds
received by or on behalf of the Securities Administrator or which were not
deposited in the Protected Account;
(iv) The Repurchase Price with respect to any Mortgage Loans
purchased by the Seller pursuant to the Mortgage Loan Purchase Agreement or
Sections 2.02 or 2.03 hereof, any amounts which are to be treated pursuant to
Section 2.04 of this Agreement as the payment of a Repurchase Price in
connection with the tender of a Substitute Mortgage Loan by the Seller and the
Repurchase Price with respect to any Mortgage Loans purchased by the Servicer
pursuant to Section 3.21;
(v) Any amounts required to be deposited by the Master
Servicer with respect to losses on investments of deposits in the Payment
Account; and
(vi) Any other amounts received by or on behalf of the
Securities Administrator and required to be deposited in the Payment Account
pursuant to this Agreement.
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(b) The requirements for crediting the Payment Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of (i) prepayment or late payment
charges or assumption, tax service, statement account or payoff, substitution,
satisfaction, release and other like fees and charges and (ii) the items
enumerated in Subsections 4.05(a)(i), (ii), (iii), (iv), (vi), (vii), (viii),
(ix), (x), (xi) and (xii), need not be remitted by the Master Servicer or
Servicer to the Securities Administrator for deposit in the Payment Account. In
the event that the Master Servicer shall remit or cause to be remitted to the
Securities Administrator for deposit to the Payment Account any amount not
required to be credited thereto, the Securities Administrator, upon receipt of a
written request therefor signed by a Servicing Officer of the Master Servicer,
shall promptly transfer such amount to the Master Servicer, any provision herein
to the contrary notwithstanding.
(c) The Payment Account shall constitute a non-interest bearing trust
account of the Trust Estate segregated on the books of the Securities
Administrator and held by the Securities Administrator in trust, and the Payment
Account and the funds deposited therein shall not be subject to, and shall be
protected from, all claims, liens, and encumbrances of any creditors or
depositors of the Securities Administrator (whether made directly, or indirectly
through a liquidator or receiver of the Securities Administrator). The Payment
Account shall be an Eligible Account.
(d) The amount at any time credited to the Payment Account shall be (i)
held in cash or (ii) invested, in the name of the Indenture Trustee, for the
benefit of the Noteholders, but only in Permitted Investments as directed by
Master Servicer. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the next
succeeding Payment Date if the obligor for such Permitted Investment is the
Securities Administrator, or if such obligor is any other Person, the Business
Day preceding such Payment Date. All investment earnings on amounts on deposit
in the Payment Account or benefit from funds uninvested therein from time to
time shall be for the account of the Master Servicer. The Securities
Administrator shall remit all investment earnings from the Payment Account to
the Master Servicer on each Payment Date. If there is any loss on a Permitted
Investment, the Master Servicer shall remit the amount of the loss to the
Securities Administrator who shall deposit such amount in the Payment Account.
(e) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) servicing as investment advisor,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation shall not be considered an
amount that is reimbursable or payable pursuant to Section 4.05.
Section 4.05 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE PAYMENT
ACCOUNT. (a) The Securities Administrator will, from time to time on demand of
the Master Servicer, make or cause to be made such withdrawals or transfers from
the Payment Account as the Master Servicer has designated for such transfer or
withdrawal pursuant to this Agreement and the Servicing Agreement or as the
Securities Administrator has instructed hereunder for the following purposes
(limited in the case of amounts due the Master Servicer to those not
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withdrawn from the Payment Account as certified by the Securities Administrator
in accordance with the terms of this Agreement but not in any order of
priority):
(i) to reimburse the Master Servicer or the Servicer for any
Monthly Advance of its own funds, the right of the Master Servicer or the
Servicer to reimbursement pursuant to this subclause (i) being limited to
amounts received on a particular Mortgage Loan (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late payments or recoveries of the principal of or interest on such
Mortgage Loan respecting which such Monthly Advance was made;
(ii) to reimburse the Master Servicer or the Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a particular Mortgage
Loan for amounts expended by the Master Servicer or such Servicer in good faith
in connection with the restoration of the related Mortgaged Property which was
damaged by an Uninsured Cause or in connection with the liquidation of such
Mortgage Loan;
(iii) to reimburse the Master Servicer or the Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for insured expenses
incurred with respect to such Mortgage Loan and to reimburse the Master Servicer
or the Servicer from Liquidation Proceeds from a particular Mortgage Loan for
Liquidation Expenses incurred with respect to such Mortgage Loan; provided that
the Master Servicer shall not be entitled to reimbursement for Liquidation
Expenses with respect to a Mortgage Loan to the extent that (i) any amounts with
respect to such Mortgage Loan were paid as Excess Liquidation Proceeds pursuant
to clause (viii) of this Subsection 4.05 (a) to the Master Servicer; and (ii)
such Liquidation Expenses were not included in the computation of such Excess
Liquidation Proceeds;
(iv) to reimburse the Master Servicer or the Servicer for
advances of funds (other than Monthly Advances) made with respect to the
Mortgage Loans, and the right to reimbursement pursuant to this subclause being
limited to amounts received on the related Mortgage Loan (including, for this
purpose, the Repurchase Price therefor, Insurance Proceeds and Liquidation
Proceeds) which represent late recoveries of the payments for which such
advances were made;
(v) to reimburse the Master Servicer or the Servicer for any
Monthly Advance or advance, after a Realized Loss has been allocated with
respect to the related Mortgage Loan if the Monthly Advance or advance has not
been reimbursed pursuant to clauses (i) and (iv);
(vi) to pay the Master Servicer as set forth in Section 3.14;
provided however, that the Master Servicer shall be obligated to pay from its
own funds any amounts which it is required to pay under Section 5.03;
(vii) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to Sections 3.03,
5.04(c) and (d), to the extent that the Master Servicer has not already
reimbursed itself for such amounts from the Payment Account;
(viii) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by the
Servicer;
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(ix) to reimburse or pay the Servicer any such amounts as are
due thereto under the Servicing Agreement and have not been retained by or paid
to the Servicer, to the extent provided in the Servicing Agreement;
(x) to reimburse or pay the Indenture Trustee, the Owner
Trustee and the Securities Administrator any amounts due or expenses, costs and
liabilities incurred by or reimbursable to it pursuant to this Agreement, the
Indenture and the Trust Agreement, to the extent such amounts have not already
been previously paid or reimbursed to such party from the Payment Account;
(xi) to remove amounts deposited in error; and
(xii) to clear and terminate the Payment Account pursuant to
Section 7.10.
(b) The Master Servicer shall keep and maintain separate accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Payment Account pursuant to subclauses (i) through (iv)
or with respect to any such amounts which would have been covered by such
subclauses had the amounts not been retained by the Master Servicer without
being deposited in the Payment Account under Section 4.04(b).
(c) On each Payment Date, pursuant to Section 3.05 of the Indenture,
the Securities Administrator shall distribute the Available Funds to the extent
on deposit in the Payment Account to the Holders of the Notes, in accordance
with Section 3.05 of the Indenture.
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ARTICLE V
The Master Servicer
Section 5.01 LIABILITIES OF THE MASTER SERVICER. The Master Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by it herein.
Section 5.02 MERGER OR CONSOLIDATION OF THE MASTER SERVICER.
(a) The Master Servicer will keep in full force and effect its
existence, rights and franchises as a corporation under the laws of the state of
its incorporation, and will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Notes or any of the Mortgage Loans and to perform its duties under this
Agreement.
(b) Any Person into which the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Master Servicer shall be a party, or any Person succeeding to the
business of the Master Servicer, shall be the successor of the Master Servicer
hereunder, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 5.03 INDEMNIFICATION OF THE INDENTURE TRUSTEE, OWNER TRUSTEE,
THE MASTER SERVICER AND THE SECURITIES ADMINISTRATOR. The Master Servicer agrees
to indemnify the Indenture Trustee, Owner Trustee and Securities Administrator
(each an "Indemnified Person") for, and to hold them harmless against, any loss,
liability or expense (including reasonable legal fees and disbursements of
counsel) incurred on their part that may be sustained in connection with,
arising out of, or relating to, any claim or legal action (including any pending
or threatened claim or legal action) relating to this Agreement, the Indenture,
the MortgageIT Servicing Agreement, the Assignment Agreement or the Notes or the
powers of attorney delivered by the Indenture Trustee hereunder (i) related to
the Master Servicer's failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) or (ii) incurred by reason of the
Master Servicer's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder, provided, in each case, that with respect to
any such claim or legal action (or pending or threatened claim or legal action),
the Indemnified Person shall have given the Master Servicer and the Depositor
written notice thereof promptly after such Indemnified Person shall have with
respect to such claim or legal action knowledge thereof. The Master Servicer's
failure to receive any such notice shall not affect an Indemnified Persons'
right to indemnification hereunder, except to the extent the Master Servicer is
materially prejudiced by such failure to give notice. This indemnity shall
survive the resignation or removal of the Indenture Trustee, Owner Trustee,
Master Servicer and the Securities Administrator and the termination of this
Agreement. The Seller agrees to indemnify the Owner Trustee for any loss,
liability or expense for which the Depositor is required to indemnify the Owner
Trustee pursuant to Section 7.02 of the Trust Agreement, other than (x) any loss
liability or expense required to be covered by the Master Servicer pursuant to
this
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Section 5.03 (y) and any loss, liability or expense already paid by the
Depositor in accordance with Section 7.02 of the Trust Agreement.
Section 5.04 LIMITATIONS ON LIABILITY OF THE MASTER SERVICER AND
OTHERS. Subject to the obligation of the Master Servicer to indemnify the
Indemnified Persons pursuant to Section 5.03:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Indemnified Persons, the Depositor, the Trust Estate or the Noteholders for
taking any action or for refraining from taking any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person's willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent of
the Master Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
(c) The Master Servicer and any director, officer, employee or agent of
the Master Servicer shall be indemnified by the Trust Estate and held harmless
thereby against any loss, liability or expense (including reasonable legal fees
and disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or related to, any claim or legal action
(including any pending or threatened claim or legal action) relating to this
Agreement, the Indenture, the Notes or the MortgageIT Servicing Agreement
(except to the extent that the Master Servicer is indemnified by the Servicer
thereunder), other than (i) any such loss, liability or expense related to the
Master Servicer's failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement), or (ii) any such loss, liability or
expense incurred by reason of the Master Servicer's willful misfeasance, bad
faith or gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion
undertake any such action which it may deem necessary or desirable with respect
to this Agreement or the Indenture and the rights and duties of the parties
hereto and the interests of the Noteholders hereunder and thereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Estate, and the
Master Servicer shall be entitled to be reimbursed therefor out of the Payment
Account as provided by Section 4.05. Nothing in this Subsection 5.04(d) shall
affect the Master Servicer's obligation to supervise, or to take such actions as
are necessary to ensure, the servicing and administration of the Mortgage Loans
pursuant to Subsection 3.01(a).
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicer shall not be
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required to investigate or make recommendations concerning potential liabilities
which the Trust Estate might incur as a result of such course of action by
reason of the condition of the Mortgaged Properties but shall give written
notice to the Indenture Trustee if it has notice of such potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions
of the Servicer, except as otherwise expressly provided herein.
Section 5.05 MASTER SERVICER NOT TO RESIGN. Except as provided in
Section 5.07, the Master Servicer shall not resign from the obligations and
duties hereby imposed on it except upon a determination that any such duties
hereunder are no longer permissible under applicable law and such
impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
addressed to the Indenture Trustee and the Issuer to such effect delivered to
the Indenture Trustee and the Issuer. No such resignation by the Master Servicer
shall become effective until the Company or the Indenture Trustee or a successor
to the Master Servicer reasonably satisfactory to the Indenture Trustee and
Company shall have assumed the responsibilities and obligations of the Master
Servicer in accordance with Section 6.02 hereof. The Indenture Trustee shall
notify the Rating Agencies of the resignation of the Master Servicer. Any
resignation of the Master Servicer shall result in the automatic resignation of
the Securities Administrator.
Section 5.06 SUCCESSOR MASTER SERVICER. In connection with the
appointment of any successor master servicer or the assumption of the duties of
the Master Servicer, the Company or the Indenture Trustee may make such
arrangements for the compensation of such successor master servicer out of
payments on the Mortgage Loans as the Company and such successor master servicer
shall agree. If the successor master servicer does not agree that such market
value is a fair price, such successor master servicer shall obtain two
quotations of market value from third parties actively engaged in the servicing
of single-family mortgage loans. Notwithstanding the foregoing, the compensation
payable to a successor master servicer may not exceed the compensation which the
Master Servicer would have been entitled to retain if the Master Servicer had
continued to act as Master Servicer hereunder.
Section 5.07 SALE AND ASSIGNMENT OF MASTER SERVICING. The Master
Servicer may sell and assign its rights and delegate its duties and obligations
in its entirety as Master Servicer under this Agreement and the Company may
terminate the Master Servicer without cause and select a new Master Servicer;
provided, however, that: (i) the purchaser or transferee accepting such
assignment and delegation (a) shall be a Person which shall be qualified to
master service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b) shall have a
net worth of not less than $10,000,000 (unless otherwise approved by each Rating
Agency pursuant to clause (ii) below); (c) shall be reasonably satisfactory to
the Indenture Trustee and Company (as evidenced in a writing signed by the
Indenture Trustee and Company); and (d) shall execute and deliver to the
Indenture Trustee an agreement, in form and substance reasonably satisfactory to
the Issuer and the Indenture Trustee, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant and
condition to be performed or observed by it as master servicer under this
Agreement; (ii) each Rating Agency shall be given prior written notice of the
identity of the proposed successor to the Master Servicer and each Rating
Agency's rating of the Notes in effect immediately prior to such assignment,
sale and delegation will not be downgraded, qualified or withdrawn as a result
of such assignment, sale and delegation, as
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evidenced by a letter to such effect delivered to the Master Servicer, the
Issuer and the Indenture Trustee; (iii) the Master Servicer assigning and
selling the master servicing shall deliver to the Issuer and the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel addressed to the
Issuer and the Indenture Trustee, each stating that all conditions precedent to
such action under this Agreement have been completed and such action is
permitted by and complies with the terms of this Agreement; and (iv) in the
event the Master Servicer is terminated without cause by the Company, the
Company shall pay the terminated Master Servicer a termination fee equal to
0.25% of the aggregate Scheduled Principal Balance of the Mortgage Loans at the
time the master servicing of the Mortgage Loans is transferred to the successor
Master Servicer. No such assignment or delegation shall affect any liability of
the Master Servicer arising prior to the effective date thereof.
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ARTICLE VI
Default
Section 6.01 MASTER SERVICER EVENTS OF DEFAULT. "Master Servicer Event
of Default," wherever used herein, means any one of the following events
(whatever the reason for such Master Servicer Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) and only with respect to the
defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the
Payment Account any amount so required to be deposited pursuant to this
Agreement (other than a Monthly Advance), and such failure continues unremedied
for a period of three Business Days after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Master Servicer; or
(ii) The Master Servicer fails to observe or perform in any
material respect any other material covenants and agreements set forth in this
Agreement to be performed by it, which covenants and agreements materially
affect the rights of Noteholders, and such failure continues unremedied for a
period of 60 days after the date on which written notice of such failure,
properly requiring the same to be remedied, shall have been given to the Master
Servicer by the Indenture Trustee or to the Master Servicer and the Indenture
Trustee by the Holders of Notes aggregating at least 25% of the Note Principal
Balance of the Notes; or
(iii) There is entered against the Master Servicer a decree or
order by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order is unstayed and in effect for a
period of 60 consecutive days, or an involuntary case is commenced against the
Master Servicer under any applicable insolvency or reorganization statute and
the petition is not dismissed within 60 days after the commencement of the case;
or
(iv) The Master Servicer consents to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Master Servicer or substantially all of its property; or the Master Servicer
admits in writing its inability to pay its debts generally as they become due,
files a petition to take advantage of any applicable insolvency or
reorganization statute, makes an assignment for the benefit of its creditors, or
voluntarily suspends payment of its obligations;
(v) The Master Servicer assigns or delegates its duties or
rights under this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 5.05 or 5.07; or
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(vi) The Master Servicer fails to deposit, or cause to be
deposited, in the Payment Account any Monthly Advance (other than a
Nonrecoverable Advance) by 5:00 p.m. New York City time on the Payment Account
Deposit Date.
In each and every such case, so long as such Master Servicer Event of Default
with respect to the Master Servicer shall not have been remedied, either the
Indenture Trustee or the Holders of Notes aggregating at least 51% of the Note
Principal Balance of the Notes, by notice in writing to the Master Servicer (and
to the Indenture Trustee if given by such Noteholders), with a copy to the
Rating Agencies, and with the consent of the Company, may terminate all of the
rights and obligations (but not the liabilities) of the Master Servicer under
this Agreement and in and to the Mortgage Loans and/or the REO Property serviced
by the Master Servicer and the proceeds thereof. Upon the receipt by the Master
Servicer of the written notice, all authority and power of the Master Servicer
under this Agreement, whether with respect to the Notes, the Mortgage Loans, REO
Property or under any other related agreements (but only to the extent that such
other agreements relate to the Mortgage Loans or related REO Property) shall,
subject to Section 6.02, automatically and without further action pass to and be
vested in the Indenture Trustee pursuant to this Section 6.01; and, without
limitation, the Indenture Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer as attorney-in-fact or otherwise,
any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees to cooperate with the Indenture Trustee in effecting the termination of
the Master Servicer's rights and obligations hereunder, including, without
limitation, the transfer to the Indenture Trustee of (i) the property and
amounts which are then or should be part of the Trust Estate or which thereafter
become part of the Trust Estate; and (ii) originals or copies of all documents
of the Master Servicer reasonably requested by the Indenture Trustee to enable
it to assume the Master Servicer's duties thereunder. In addition to any other
amounts which are then, or, notwithstanding the termination of its activities
under this Agreement, may become payable to the Master Servicer under this
Agreement, the Master Servicer shall be entitled to receive, out of any amount
received on account of a Mortgage Loan or related REO Property, that portion of
such payments which it would have received as reimbursement under this Agreement
if notice of termination had not been given. The termination of the rights and
obligations of the Master Servicer shall not affect any obligations incurred by
the Master Servicer prior to such termination.
Notwithstanding the foregoing, if an Event of Default described in
clause (vi) of this Section 6.01 shall occur of which a Responsible Officer of
the Indenture Trustee has received written notice or has actual knowledge, the
Indenture Trustee shall, by notice in writing to the Master Servicer, which may
be delivered by telecopy, immediately terminate all of the rights and
obligations of the Master Servicer thereafter arising under this Agreement, but
without prejudice to any rights it may have as a Noteholder or to reimbursement
of Monthly Advances and other advances of its own funds, and the Indenture
Trustee shall thereupon become the successor Master Servicer as provided in
Section 6.02 and carry out the duties of the Master Servicer, including the
obligation to make any Monthly Advance the nonpayment of which was an Event of
Default described in clause (vi) of this Section 6.01. Any such action taken by
the Indenture Trustee must be prior to the distribution on the relevant Payment
Date.
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Section 6.02 INDENTURE TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. (a)
Upon the receipt by the Master Servicer of a notice of termination pursuant to
Section 6.01 or an Opinion of Counsel pursuant to Section 5.05 to the effect
that the Master Servicer is legally unable to act or to delegate its duties to a
Person which is legally able to act, the Indenture Trustee shall automatically
become the successor in all respects to the Master Servicer in its capacity
under this Agreement and the transactions set forth or provided for herein and
shall thereafter be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof; provided, however, that the Seller shall have the
right to either (a) immediately assume the duties of the Master Servicer or (b)
select a successor Master Servicer; provided further, however, that the
Indenture Trustee shall have no obligation whatsoever with respect to any
liability (including advances deemed recoverable and not previously made with
respect to the relevant Payment Date giving rise to the Master Servicer Event of
Default which shall be made by such successor Master Servicer) incurred by the
Master Servicer at or prior to the time of termination. As compensation
therefor, but subject to Section 5.06, the Indenture Trustee shall be entitled
to compensation which the Master Servicer would have been entitled to retain if
the Master Servicer had continued to act hereunder, except for those amounts due
the Master Servicer as reimbursement permitted under this Agreement for advances
previously made or expenses previously incurred. Notwithstanding the above, the
Indenture Trustee may, if it shall be unwilling so to act, or shall, if it is
legally unable so to act, appoint or petition a court of competent jurisdiction
to appoint, any established housing and home finance institution which is a
▇▇▇▇▇▇ Mae- or ▇▇▇▇▇▇▇ Mac-approved servicer, and with respect to a successor to
the Master Servicer only, having a net worth of not less than $10,000,000, as
the successor to the Master Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer
hereunder; provided, that the Indenture Trustee shall obtain a letter from each
Rating Agency that the ratings, if any, on each of the Notes will not be lowered
as a result of the selection of the successor to the Master Servicer. Pending
appointment of a successor to the Master Servicer hereunder, the Indenture
Trustee shall be the successor and act in such capacity as hereinabove provided.
In connection with such appointment and assumption, the Indenture Trustee may
make such arrangements for the compensation of such successor out of payments on
the Mortgage Loans as the Company and such successor shall agree; provided,
however, that the provisions of Section 5.06 shall apply, the compensation shall
not be in excess of that which the Master Servicer would have been entitled to
if the Master Servicer had continued to act hereunder, and that such successor
shall undertake and assume the obligations of the Master Servicer to pay
compensation to any third Person acting as an agent or independent contractor in
the performance of master servicing responsibilities hereunder. The Indenture
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
(b) If the Indenture Trustee shall succeed to any duties of the Master
Servicer respecting the Mortgage Loans as provided herein, it shall do so in a
separate capacity and not in its capacity as Indenture Trustee and, accordingly,
the provisions of Article VI of the Indenture shall be inapplicable to the
Indenture Trustee in its duties as the successor to the Master Servicer in the
servicing of the Mortgage Loans (although such provisions shall continue to
apply to the Indenture Trustee in its capacity as Indenture Trustee); the
provisions of Article V, however, shall apply to it in its capacity as successor
master servicer.
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Section 6.03 NOTIFICATION TO NOTEHOLDERS. Upon any termination or
appointment of a successor to the Master Servicer, the Indenture Trustee shall
give prompt written notice thereof to Noteholders at their respective addresses
appearing in the Note Register and to the Rating Agencies.
Section 6.04 WAIVER OF DEFAULTS. The Indenture Trustee shall transmit
by mail to all Noteholders, within 60 days after the occurrence of any Master
Servicer Event of Default of which a Responsible Officer of the Indenture
Trustee received written notice or has actual knowledge, unless such Master
Servicer Event of Default shall have been cured, notice of each such Master
Servicer Event of Default. The Holders of Notes aggregating at least 51% of the
Note Principal Balance of the Notes may, on behalf of all Noteholders, waive any
default by the Master Servicer in the performance of its obligations hereunder
and the consequences thereof, except a default in the making of or the causing
to be made any required distribution on the Notes, which default may only be
waived by Holders of Notes aggregating 100% of the Note Principal Balance of the
Notes. Upon any such waiver of a past default, such default shall be deemed to
cease to exist, and any Master Servicer Event of Default arising therefrom shall
be deemed to have been timely remedied for every purpose of this Agreement. No
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived. The Indenture
Trustee shall give notice of any such waiver to the Rating Agencies.
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ARTICLE VII
Miscellaneous Provisions
Section 7.01 AMENDMENT. (a) This Agreement may be amended from time to
time by the Issuer, the Company, the Depositor, the Master Servicer, the
Securities Administrator and the Indenture Trustee, without notice to or the
consent of any of the Noteholders, to cure any ambiguity, to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions herein or therein, to comply with any
changes in the Code or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, addressed to the Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder.
(b) This Agreement may also be amended from time to time by the Issuer,
the Company, the Master Servicer, the Depositor, the Securities Administrator
and the Indenture Trustee, with the consent of the Holders of Notes aggregating
at least 51% of Note Principal Balance of the Notes, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which are
required to be distributed on any Note without the consent of the Holder of such
Note or (ii) reduce the aforesaid percentage of Notes the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all Notes then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 7.01(b), Notes registered in the name of or held for the benefit of
the Issuer, the Depositor, the Securities Administrator, the Master Servicer, or
the Indenture Trustee or any Affiliate thereof shall be entitled to vote their
Percentage Interests with respect to matters affecting such Notes.
(c) Promptly after the execution of any such amendment, the Indenture
Trustee shall furnish a copy of such amendment or written notification of the
substance of such amendment to each Noteholder, with a copy to the Rating
Agencies.
(d) In the case of an amendment under Subsection 7.01(b) above, it
shall not be necessary for the Noteholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Noteholders approve the
substance of the amendment. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Noteholders shall be
subject to such reasonable regulations as the Indenture Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the
Indenture Trustee shall be entitled to receive and rely upon an Opinion of
Counsel addressed to the Indenture Trustee stating that the execution of such
amendment is authorized or permitted by this Agreement. The Indenture Trustee,
the Master Servicer and the Securities Administrator may, but shall not be
obligated to, enter into any such amendment which affects its own respective
rights, duties or immunities under this Agreement.
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Section 7.02 RECORDATION OF AGREEMENT. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the Trust Estate upon the
request in writing of a Noteholder, but only if such direction is accompanied by
an Opinion of Counsel (provided at the expense of the Noteholder requesting
recordation) to the effect that such recordation would materially and
beneficially affect the interests of the Noteholders or is required by law.
Section 7.03 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES (OTHER THAN SECTION 51401 OF THE GENERAL
OBLIGATIONS LAW, WHICH THE PARTIES HERETO EXPRESSLY RELY UPON IN THE CHOICE OF
SUCH LAW AS THE GOVERNING LAW HEREUNDER) AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 7.04 NOTICES. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
General Counsel, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as
may hereafter be furnished to the other parties hereto in writing; (ii) in the
case of the Indenture Trustee, at the Corporate Trust Office or such other
address as may hereafter be furnished to the other parties hereto in writing;
(iii) in the case of the Company, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: General Counsel, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, or to such
other address as may hereafter be furnished to the other parties hereto in
writing; (iv) in the case of the Master Servicer or Securities Administrator,
▇▇▇▇▇ Fargo Bank, National Association, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or, in the case of overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ 21045) (Attention: Corporate Trust Services - MortgageIT 2004-2),
facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may hereafter be
furnished to the other parties hereto in writing; or (v) in the case of the
Issuer, to MortgageIT Trust 2004-2 c/o Wilmington Trust Company, ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration, or such other address as may hereafter be
furnished to the other parties hereto in writing; (vi) in the case of the Owner
Trustee, to Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration,
or such other address as may hereafter be furnished to the other parties hereto
in writing; and (vii) in the case of the Rating Agencies, Standard & Poor's, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. Any notice delivered to the Depositor, the Master Servicer, the
Securities Administrator, the Indenture Trustee, the Issuer or the Owner Trustee
under this Agreement shall be effective only upon receipt. Any notice required
or permitted to be mailed to a Noteholder, unless otherwise provided herein,
shall be given by first-class mail, postage prepaid, at the address of such
Noteholder as shown in the Note Register. Any notice so mailed
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within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given when mailed, whether or not the Noteholder receives such
notice.
Section 7.05 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severed from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Notes or the
rights of the Noteholders thereof.
Section 7.06 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon the parties hereto, the Noteholders and their respective
successors and assigns. The Indenture Trustee shall have the right to exercise
all rights of the Issuer under this Agreement.
Section 7.07 ARTICLE AND SECTION HEADINGS. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 7.08 COUNTERPARTS. This Agreement may be executed in two or
more counterparts each of which when so executed and delivered shall be an
original but all of which together shall constitute one and the same instrument.
Section 7.09 NOTICE TO RATING AGENCIES. The Indenture Trustee shall
promptly provide notice to each Rating Agency with respect to each of the
following of which a Responsible Officer of the Indenture Trustee has actual
knowledge or written notice:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Master Servicer Event of Default that
has not been cured;
3. The resignation or termination of the Master Servicer, the
Indenture Trustee or the Securities Administrator; and
4. Any change in the location of the Payment Account.
Section 7.10 TERMINATION. The respective obligations and
responsibilities of the parties hereto created hereby shall terminate upon the
satisfaction and discharge of the Indenture pursuant to Section 4.10 thereof
and, if applicable, the optional redemption of the Notes pursuant to Section
8.07 thereof. Upon the presentation and surrender of the Notes, the Securities
Administrator shall distribute to the remaining Noteholders, in accordance with
their respective interests, all distributable amounts remaining in the Payment
Account. Following such final Payment Date, the Indenture Trustee shall, or
shall cause the Custodian to, release promptly to the Issuer or its designee the
Mortgage Files for the remaining Mortgage Loans, and the Payment Account shall
terminate, subject to the Securities Administrator's obligation to hold any
amounts payable to the Noteholders in trust without interest pending final
distributions pursuant to the Indenture.
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Section 7.11 NO PETITION. Each party to this Agreement (and with
respect to ▇▇▇▇▇ Fargo, solely in its capacities as Master Servicer and
Securities Administrator and not in its individual or corporate capacity) by
entering into this Agreement, hereby covenants and agrees that it will not at
any time institute against the Issuer, or join in any institution against the
Issuer, any bankruptcy proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations of the Issuer. This
section shall survive the termination of this Agreement by one year.
Section 7.12 NO RECOURSE. The Master Servicer acknowledges that no
recourse may be had against the Issuer, except as may be expressly set forth in
this Agreement.
Section 7.13 ADDITIONAL TERMS REGARDING INDENTURE. The Indenture
Trustee shall have only such duties and obligations under this Agreement as are
expressly set forth herein, and no implied duties on its part shall be read into
this Agreement. In entering into and acting under this Agreement, the Indenture
Trustee shall be entitled to all of the rights, immunities, indemnities and
other protections set forth in Article VI of the Indenture.
-39-
IN WITNESS WHEREOF, the Depositor, the Issuer, the Company, the
Indenture Trustee, the Master Servicer and the Securities Administrator have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
MORTGAGEIT SECURITIES CORP.,
as Depositor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
MortgageIT TRUST 2004-2,
as Issuer
By: WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Indenture Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
MORTGAGEIT HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: General Counsel and Secretary
-40-
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Securities Administrator
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the 24th day of November, 2004 before me, a notary public in and for
said State, personally appeared _______________, known to me to be a
________________ of MortgageIT Securities Corp., the corporation that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
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]
-42-
STATE OF DELAWARE )
) ss.:
COUNTY OF WILMINGTON )
On the 24th day of November, 2004 before me, a notary public in and for
said State, personally appeared ______________ known to me to be a Financial
Services Officer of Wilmington Trust Company, the entity that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity 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.:
COUNTY OF ORANGE )
On the 24th day of November, 2004 before me, a notary public in and for
said State, personally appeared _______________, known to me to be an Associate
of Deutsche Bank National Trust Company, the entity that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said entity, and acknowledged to me that such entity 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.:
COUNTY OF ▇▇▇▇▇▇ )
On the 24th day of November, 2004 before me, a notary public in and for
said State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be an Assistant
Vice President of ▇▇▇▇▇ Fargo Bank, National Association, the entity that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
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.:
COUNTY OF ▇▇▇▇▇▇ )
On the 24th day of November, 2004 before me, a notary public in and for
said State, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, known to me to be an Assistant
Vice President of ▇▇▇▇▇ Fargo Bank, National Association, the entity that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said entity, and acknowledged to me that such entity
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.:
COUNTY OF DALLAS )
On the 24th day of November, 2004 before me, a notary public in and for
said State, personally appeared _______________, known to me to be an
___________________ of MortgageIT Holdings, Inc., the corporation that executed
the within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
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]
-47-
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[In accordance with Rule 202 of Regulation S-T this
Mortgage Loan Schedule is being filed in paper
pursuant to a continuing hardship exemption.]
A-1
EXHIBIT B
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company (the "Indenture Trustee")
[_______________]
[_______________]
Deutsche Bank National Trust Company (the "Custodian")
[_______________]
[_______________]
RE: Sale and Servicing Agreement, dated as of November 24, 2004
(the "Sale and Servicing Agreement"), among MortgageIT Trust
2004-2 as Issuer, MortgageIT Securities Corp., as Depositor,
Deutsche Bank National Trust Company, as Indenture Trustee,
▇▇▇▇▇ Fargo Bank, National Association, as Securities
Administrator and Master Servicer and MortgageIT Holdings, Inc.,
as Seller.
In connection with the administration of the Mortgage Loans held by the
Custodian for the benefit of the Indenture Trustee pursuant to the
above-captioned Sale and Servicing Agreement, we request the release, and hereby
acknowledge receipt, of the Mortgage File for the Mortgage Loan described below,
for the reason indicated.
This release will not invalidate any insurance coverage provided in
respect of the Mortgage Loan under any of the Insurance Policies.
MORTGAGE LOAN NUMBER:
MORTGAGOR NAME, ADDRESS & ZIP CODE:
REASON FOR REQUESTING DOCUMENTS (CHECK ONE):
____ 1. Mortgage Paid in Full and proceeds have been deposited into the
Payment Account
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ________________________
____ 6. California Mortgage Loan paid in full
By: ____________________________
B-1
(authorized signer)
Issuer: ________________________
Address: _______________________
Date: __________________________
B-2
EXHIBIT C
MORTGAGEIT SERVICING AGREEMENT
[Provided Upon Request]
C-1
EXHIBIT D
ASSIGNMENT AGREEMENT
[Provided Upon Request]
D-1
EXHIBIT E
MORTGAGE LOAN PURCHASE AGREEMENT
E-1