Exhibit 99.3
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.,
as Depositor
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS TRUST, SERIES 2005-A9,
as Issuer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
▇▇▇▇▇ FARGO BANK, N.A.,
as Master Servicer and Securities Administrator
and
TABERNA REALTY HOLDINGS TRUST,
as Seller
-------------------------------------
SALE AND SERVICING AGREEMENT
Dated as of December 22, 2005
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors Trust,
Mortgage-Backed Notes, Series MLCC 2005-A9
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.........................8
Section 2.04. Substitution of Mortgage Loans.........................................................9
Section 2.05. Representations and Warranties Concerning the Depositor...............................10
Section 2.06. Representations and Warranties Regarding the Master Servicer..........................11
Section 2.07. Assignment of Agreement...............................................................12
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS.................................................14
Section 3.01. Master Servicer.......................................................................14
Section 3.02. Monitoring of Servicer................................................................15
Section 3.03. Fidelity Bond.........................................................................17
Section 3.04. Power to Act; Procedures..............................................................17
Section 3.05. Due-on-Sale Clauses; Assumption Agreements............................................17
Section 3.06. Release of Mortgage Files.............................................................18
Section 3.07. Documents, Records and Funds in Possession of Master Servicer To Be Held for Issuer
and Indenture Trustee.................................................................18
Section 3.08. Standard Hazard Insurance and Flood Insurance Policies................................19
Section 3.09. Presentment of Claims and Collection of Proceeds......................................20
Section 3.10. Maintenance of the Primary Mortgage Insurance Policies................................20
Section 3.11. Indenture Trustee to Retain Possession of Certain Insurance Policies and Documents....21
Section 3.12. Realization Upon Defaulted Mortgage Loans.............................................21
Section 3.13. Compensation for the Master Servicer..................................................21
Section 3.14. REO Property..........................................................................22
Section 3.15. Annual Officer's Certificate as to Compliance.........................................22
Section 3.16. Annual Independent Accountant's Servicing Report......................................23
Section 3.17. Reports Filed with Securities and Exchange Commission.................................23
Section 3.18. UCC...................................................................................24
Section 3.19. Foreclosure Proceedings, and Optional Purchase of Delinquent and Defaulted Mortgage
Loans.................................................................................24
Section 3.20. Monthly Advances......................................................................25
Section 3.21. Compensating Interest Payments........................................................25
ARTICLE IV ACCOUNTS.......................................................................................26
Section 4.01. Protected Accounts....................................................................26
Section 4.02. Master Servicer Collection Account....................................................27
Section 4.03. Permitted Withdrawals and Transfers from the Master Servicer Collection Account.......28
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
Section 4.04. Payment Account.......................................................................29
Section 4.05. Permitted Withdrawals and Transfers from the Payment Account..........................30
ARTICLE V THE MASTER SERVICER............................................................................32
Section 5.01. Liabilities of the Master Servicer....................................................32
Section 5.02. Merger or Consolidation of the Master Servicer........................................32
Section 5.03. Indemnification of the Indenture Trustee, Owner Trustee, the Master Servicer and the
Securities Administrator..............................................................32
Section 5.04. Limitations on Liability of the Master Servicer and Others............................33
Section 5.05. Master Servicer Not to Resign.........................................................34
Section 5.06. Successor Master Servicer.............................................................34
Section 5.07. Sale and Assignment of Master Servicing...............................................34
ARTICLE VI DEFAULT........................................................................................36
Section 6.01. Master Servicer Events of Default.....................................................36
Section 6.02. Indenture Trustee to Act; Appointment of Successor....................................38
Section 6.03. Notification to Noteholders...........................................................39
Section 6.04. Waiver of Defaults....................................................................39
ARTICLE VII MISCELLANEOUS PROVISIONS.......................................................................40
Section 7.01. Amendment.............................................................................40
Section 7.02. Recordation of Agreement..............................................................41
Section 7.03. Governing Law.........................................................................41
Section 7.04. Notices...............................................................................41
Section 7.05. Severability of Provisions............................................................42
Section 7.06. Successors and Assigns................................................................42
Section 7.07. Article and Section Headings..........................................................42
Section 7.08. Counterparts..........................................................................42
Section 7.09. Notice to Rating Agencies.............................................................42
Section 7.10. Termination...........................................................................42
Section 7.11. No Petition...........................................................................43
Section 7.12. No Recourse...........................................................................43
Section 7.13. Additional Terms Regarding Indenture..................................................43
Section 7.14. Third Party Beneficiary...............................................................43
-ii-
TABLE OF CONTENTS
(continued)
PAGE
----
EXHIBITS
--------
Exhibit A - Mortgage Loan Schedule
Exhibit B - Request for Release of Documents
Exhibit C-1 - ▇▇▇▇▇ Fargo Servicing Agreement
Exhibit C-2 - PHH Servicing Agreement
Exhibit C-3 Aurora Servicing Agreement
Exhibit C-4 Countrywide Servicing Agreement
Exhibit D-1 - ▇▇▇▇▇ Fargo Assignment Agreement
Exhibit D-2 - PHH Assignment Agreement
Exhibit D-3 Countrywide-▇▇▇▇▇▇ Assignment Agreement
Exhibit D-4 Countrywide-Merrill Assignment Agreement
Exhibit E - Mortgage Loan Purchase Agreement
-iii-
SALE AND SERVICING AGREEMENT
Sale and Servicing Agreement dated as of December 22, 2005 (the
"Agreement"), among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., a Delaware
corporation, as depositor (the "Depositor"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors
Trust, Series 2005-A9, a Delaware statutory trust, as issuer (the "Issuer"),
Wachovia Bank, National Association, a national banking association, as
indenture trustee (the "Indenture Trustee"), ▇▇▇▇▇ Fargo Bank, N.A. ("▇▇▇▇▇
Fargo"), as master servicer (in such capacity, the "Master Servicer") and as
securities administrator (in such capacity, the "Securities Administrator"), and
Taberna Realty Holdings Trust, a Maryland real estate investment trust, as
seller (in such capacity, the "Seller").
PRELIMINARY STATEMENT
On or prior to the Closing Date, the Depositor acquired the Mortgage Loans
from the Seller pursuant to the Mortgage Loan Purchase Agreement. On or prior to
the Closing Date, pursuant to a Trust Agreement, the Depositor created ▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Investors Trust, Series 2005-A9, 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 $927,442,200.
In consideration of the mutual agreements herein contained, each of the
Depositor, the Issuer, the Master Servicer, the Securities Administrator, the
Seller and the Indenture Trustee undertakes and agrees to perform their
respective duties hereunder as follows:
ARTICLE I
Definitions
Section 1.01. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions contained in Appendix A to the Indenture which
is incorporated by reference herein. 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.
-2-
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 and the proceeds thereof and all rights under the
Related Documents; (ii) all funds on deposit from time to time in the Master
Servicer Collection Account, excluding any investment income from such funds;
(iii) all funds on deposit from time to time in the Payment Account and in all
proceeds thereof; (iv) any REO Property; (v) (I) all rights under the Mortgage
Loan Purchase Agreement as assigned to the Issuer to the extent provided in
Section 2.03(a), (II) all rights under 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) and (III) the rights with respect to the
Servicing Agreements, each as assigned to the Issuer by the related Assignment
Agreement; and (vi) 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.
(a) In connection with such transfer and assignment of the Mortgage Loans,
the Depositor shall deliver to, and deposit with, or cause to be delivered to
and deposited with, the Custodian, on behalf of the Issuer, the following
documents or instruments with respect to each Mortgage Loan so transferred and
assigned (or such related documents as have been delivered to the Depositor by
the Seller pursuant to the Mortgage Loan Purchase Agreement):
(i) The original Mortgage Note endorsed, "Pay to the order of
___________, without recourse" and signed in the name of the name of last
endorsee, by an authorized officer of the last endorsee. If the Mortgage Loan
was acquired by the last endorsee in a merger or other type of acquisition, the
endorsement must be by "[name of last endorsee], successor [by merger to or in
interest to, as applicable] [name of predecessor]"; and if the Mortgage Loan was
acquired or originated by the last endorsee while doing business under another
name, the endorsement must be by "[name of last endorsee], successor in interest
to [previous name]." The Mortgage Note shall include all intervening
endorsements showing a complete chain of title from the originator to the last
endorsee. A lost note affidavit (including a copy of the original Mortgage Note)
may be delivered in lieu of the original Mortgage Note.
(ii) The original recorded Mortgage, with evidence of recording
thereon, or, if the original Mortgage has not yet been returned from the
recording office, a copy of the original Mortgage certified by the previous
owner to be a true copy of the original of the Mortgage which has been delivered
for recording in the appropriate recording office of the jurisdiction in which
the Mortgaged Property is located.
-3-
(iii) The original Assignment of Mortgage, executed in blank by
either the Seller or its Servicer. If the Mortgage Loan was acquired by the last
endorsee in a merger or other type of acquisition, the assignment must be by
"[name of last assignee], successor [by merger to or in interest to, as
applicable] [name of predecessor]"; and if the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another name, the
assignment must be by "[name of last assignee], successor in interest to
[previous name]."
(iv) The original policy of title insurance (or a preliminary title
report if the original title insurance policy has not been received from the
title insurance company).
(v) Originals of any intervening assignments of the Mortgage, with
evidence of recording thereon or, if the original intervening assignment has not
yet been returned from the recording office, a copy of such assignment certified
by the Seller to be a true copy of the original of the assignment which has been
delivered for recording in the appropriate recording office of the jurisdiction
in which the Mortgaged Property is located.
(vi) With respect to a Mortgage Loan that, according to the Mortgage
Loan Schedule is covered by a primary mortgage insurance policy, the original or
a copy of primary mortgage insurance certificate, if any.
(vii) If indicated on the Mortgage Loan Schedule, originals of all
assumption and modification agreements, if any, with originals or copies of the
underlying instruments being modified.
(viii) With respect to each Additional Collateral Mortgage Loan,
(A) copy of the related Mortgage 100 Pledge Agreement for
Securities Account or the Parent Power Guaranty and Security Agreement for
Securities Account or the Parent Power Guaranty Agreement for Real Estate, as
the case may be;
(B) copy of the UCC-1 (applicable for South Carolina and
Rhode Island only);
(C) an original form UCC-3, if applicable;
(D) for loans originated by a correspondent lender, an
original assignment of security interest of the related Mortgage 100 Pledge
Agreement or Parent Power Agreement, as the case may be.
(ix) With respect to each Cooperative Loan:
(A) the original proprietary lease;
(B) the original recognition agreement;
(C) the original security agreement;
(D) the original or copy of the assignment of proprietary
lease;
-4-
(E) the original cooperative stock certificate and stock
power executed by borrower in blank;
(F) the original UCC-1 Financing Statements;
(G) the original UCC-3 Financing Statements; and
(x) Power of Attorney, if applicable.
provided, however, that in lieu of the foregoing, the Depositor may deliver to
(or cause to be delivered to) the Custodian, the following documents, under the
circumstances set forth below: (w) in lieu of the original Security Instrument
(including the Mortgage), assignments to the Indenture Trustee or intervening
assignments thereof which have been delivered, are being delivered or will, upon
receipt of recording information relating to such documents required to be
included thereon, be delivered to recording offices for recording and have not
been returned to the Depositor (or its predecessor) in time to permit their
delivery as specified above, the Depositor may deliver (or cause to be
delivered) a true copy thereof with a certification by the related Servicer, or
its agent on its behalf, substantially to the effect that such copy is a true
and correct copy of the original; (x) in lieu of the Security Instrument,
assignment in blank or to the Indenture Trustee or intervening assignments
thereof, if the applicable jurisdiction retains the originals of such documents
(as evidenced by a certification from the Depositor to such effect) the
Depositor may deliver (or cause to be delivered) photocopies of such documents
containing 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 (or cause to be
delivered) lost note affidavits; and (z) the Depositor shall not be required to
deliver intervening assignments or Mortgage Note endorsements between the
related originator and the Seller, 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 the Mortgage Loans which
have been prepaid in full after the Cut-off Date and prior to the Closing Date,
the Depositor, in lieu of delivering the above documents, may deliver to (or
cause to be delivered to) the Indenture Trustee, a certification to such effect
and shall deposit all amounts paid in respect of such Mortgage Loans in the
Master Servicer Collection Account on the Closing Date. The Depositor shall
deliver (or cause to be delivered) such original documents (including any
original documents as to which certified copies had previously been delivered)
to the Custodian, promptly after they are received. No assignment of the
Security Instrument described above will be recorded; provided, however,
notwithstanding the foregoing, each assignment shall be submitted for recording
at no expense to the 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 Default or an Event of Default, (iii) the occurrence
of a bankruptcy, insolvency or foreclosure relating to the Seller or the
Depositor and (iv) the occurrence of a servicing transfer as described in
Section 6.02 hereof.
-5-
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, with respect to the Mortgage Loans, in accordance with the Custodial
Agreement, the Custodian shall verify with respect to each Mortgage Loan by
delivery to the Depositor, the Seller, the Indenture Trustee and the Issuer of
an Initial Certification, that (a) all documents described in Sections
2.01(b)(i), (ii), (iii), (iv) and (iv) hereof and to the extent provided by
Section 2.01(b) and all documents described in Sections 2.01(b)(vi), (vii),
(viii), (ix) and (x) hereof, if applicable, are in its possession, (b) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan, (c) based on its examination and only as to the foregoing
documents, the information set forth in terms (i), (ii) excluding the zip code
requirement, (viii) and (xiv) of the definition of "Mortgage Loan Schedule"
respecting such Mortgage Loan is correct, and which as to items (xxv) and (xxix)
for adjustable rate Mortgage Loan Documents and (d) each Mortgage Note has been
endorsed and each Assignment of Mortgage has been executed as provided in
Section 2.01 hereof. No later than 90 days after the Closing Date (or, with
respect to any Substitute Mortgage Loan, within five Business Days after the
receipt by the Custodian thereof), the Custodian, in accordance with the
Custodial Agreement, shall review each Mortgage File delivered to it and shall
execute and deliver to the Depositor, the Seller, the Indenture Trustee and
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
Depositor, the Seller and the Indenture Trustee of such Material Defect in
writing. In accordance with the Mortgage Loan Purchase Agreement and the related
Transfer 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 (or such other time period specified in the related Transfer
Agreement) and if the Seller fails to correct or cure the Material Defect within
the relevant period, the Indenture Trustee shall enforce the Seller's obligation
under the Mortgage Loan Purchase Agreement within ninety (90) days from the
Indenture Trustee's notification (or such other time period specified in the
related Transfer Agreement), provide a Substitute Mortgage Loan or purchase such
Mortgage Loan at the Repurchase Price; provided, however, that if such Material
Defect relates solely to the inability of the Seller to deliver the original
Security Instrument, or a certified copy because the originals of such
documents, or a certified copy have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan if
the Seller delivers such original documents or certified copy promptly upon
-6-
receipt, but in no event later than 360 days after the Closing Date. The
foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver such original or copy of any document submitted for recording to
the appropriate recording office in the applicable jurisdiction because such
document has not been returned by such office; provided that the Seller shall
instead deliver a recording receipt of such recording office or, if such receipt
is not available, a certificate confirming that such documents have been
accepted for recording, and delivery to the Custodian shall be effected by the
Seller within thirty days of its receipt of the original recorded document.
(b) No later than 180 days after the Closing Date, the Custodian, in
accordance with the Custodial Agreement, will review, for the benefit of the
Noteholders, the Mortgage Files delivered to it and will execute and deliver or
cause to be executed and delivered to the Depositor, the Seller, the Indenture
Trustee and the 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 and the related Transfer Agreement,
the Seller shall correct or cure any such Material Defect within ninety
(90) days from the date of notice from the Custodian or the Indenture Trustee of
the Material Defect (or such other time period specified in the related Transfer
Agreement) and if the Seller is unable to cure such Material Defect within such
period, and if such Material Defect materially and adversely affects the
interests of the Noteholders in the related Mortgage Loan, the Indenture Trustee
shall enforce the Seller's obligation under the Mortgage Loan Purchase Agreement
within ninety (90) days from the Custodian's or Indenture Trustee's notification
(or such other time period specified in the related Transfer Agreement), provide
a Substitute Mortgage Loan or purchase such Mortgage Loan at the Repurchase
Price; provided, however, that if such defect relates solely to the inability of
the Seller to deliver the original Security Instrument, or a certified copy,
because the originals of such documents or a certified copy, have not been
returned by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan, if the Seller delivers such original documents or
certified copy promptly upon receipt, but in no event later than 360 days after
the Closing Date (or such other time period specified in the related Transfer
Agreement).
(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with the Mortgage Loan Purchase Agreement as required by Subsections
2.02(a) or (b) above, the Seller shall remit to the Master Servicer the
Repurchase Price for deposit in the Master Servicer Collection Account and the
Seller shall provide to the Securities Administrator and the Indenture Trustee
written notification detailing the components of the Repurchase Price. Upon
deposit of the Repurchase Price in the Master Servicer Collection Account, the
Indenture Trustee (upon receipt of a Request for Release in the form of Exhibit
B attached hereto with respect to such
-7-
Mortgage Loan and certification that the Repurchase Price has been deposited in
the Master Servicer Collection Account), shall cause the Custodian to release to
the Seller the related Mortgage File and the Indenture Trustee shall execute and
deliver all instruments of transfer or assignment, without recourse,
representation or warranty, furnished to it by or on behalf of the Seller, as
are necessary to vest in the Seller (or its designee) title to and rights under
the Mortgage Loan. Such purchase shall be deemed to have occurred on the date on
which the Repurchase Price in available funds is deposited in the Master
Servicer Collection Account. The Master Servicer shall amend the Mortgage Loan
Schedule, which was previously delivered to it by the Depositor in a form agreed
to between the Depositor, the Indenture Trustee and the Custodian, to reflect
such repurchase and shall promptly deliver to the Rating Agencies, the Indenture
Trustee, the Custodian and the 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 it being
understood and agreed that the Seller's obligations to repurchase any Mortgage
Loan hereunder are no greater than the Seller's rights to cause the applicable
Transferor to repurchase such Mortgage Loan pursuant to the applicable Transfer
Agreement.
Section 2.03. Assignment of Interest in the Mortgage Loan Purchase
Agreement. (a) The 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 Seller's rights and obligations pursuant to the Servicing
Agreements (noting that the Seller has retained the right in the event of breach
of the representations, warranties and covenants, if any, with respect to the
Mortgage Loans of the related Servicer under the related Servicing Agreement to
enforce the provisions thereof and to seek all or any available remedies). 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 Depositor's, 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 seller, 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 60 days of its discovery or receipt of notice
that such breach has occurred (whichever occurs earlier) (or such other time
period specified in the related Transfer Agreement), shall cure the breach in
all material respects or, subject to the Mortgage Loan Purchase Agreement (and
the related Transfer 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 so required in the applicable Transfer
Agreement). 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(if so required in the applicable Transfer Agreement). Any such
purchase by the Seller shall be made by providing an amount equal to the
Repurchase Price to the Master Servicer for deposit in the Master Servicer
Collection Account and written
-8-
notification detailing the components of such Repurchase Price. The Depositor
shall submit to the Indenture Trustee and the Custodian a Request for Release,
and the Indenture Trustee shall cause the Custodian to release, upon receipt of
certification from the Master Servicer that the Repurchase Price has been
deposited in the Master Servicer Collection Account, to the Seller the related
Mortgage File and the Indenture Trustee shall execute and deliver all
instruments of transfer or assignment furnished to it by or on behalf of the
Seller, without recourse, representation or warranty as are necessary to vest in
the Seller title to and rights under the Mortgage Loan or any property acquired
with respect thereto. Such purchase shall be deemed to have occurred on the date
on which the Repurchase Price in available funds is deposited in the Master
Servicer Collection Account. The Master Servicer shall amend the Mortgage Loan
Schedule to reflect such repurchase and shall promptly deliver to the 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 it being understood and
agreed that the Seller's obligations to repurchase any Mortgage Loan hereunder
are no greater than the Seller's rights to cause the applicable Transferor to
repurchase such Mortgage Loan pursuant to the applicable Transfer Agreement.
Section 2.04. Substitution of Mortgage Loans. Notwithstanding anything to
the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant
to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this
Agreement, the Seller may, no later than the date by which such purchase by the
Seller would otherwise be required, tender to the Indenture Trustee a Substitute
Mortgage Loan accompanied by a certificate of an authorized officer of the
Seller that such Substitute Mortgage Loan conforms to the requirements set forth
in the definition of "Substitute Mortgage Loan" in this Agreement. The Indenture
Trustee shall cause the Custodian to examine the Mortgage File for any
Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the
Indenture Trustee shall cause the Custodian to notify the Seller, in writing,
within five Business Days after receipt, whether or not the documents relating
to the Substitute Mortgage Loan satisfy the requirements of Section 2.02. Within
two Business Days after such notification, the Seller shall provide to the
Master Servicer for deposit in the Master Servicer Collection Account the
amount, if any, by which the Outstanding Principal Balance as of the next
preceding Due Date of the Mortgage Loan for which substitution is being made,
after giving effect to the Scheduled Principal due on such date, exceeds the
Outstanding Principal Balance as of such date of the Substitute Mortgage Loan,
after giving effect to Scheduled Principal due on such date, which amount shall
be treated for the purposes of this Agreement as if it were the payment by the
Seller of the Repurchase Price for the purchase of a Mortgage Loan by the
Seller. After such notification to the Seller and, if any such excess exists,
upon receipt of certification from the Master Servicer that such excess has been
deposited in the Master Servicer Collection Account, the Indenture Trustee shall
accept such Substitute Mortgage Loan which shall thereafter be deemed to be a
Mortgage Loan hereunder. In the event of such a substitution, accrued interest
on the Substitute Mortgage Loan for the month in which the substitution occurs
and any Principal Prepayments made thereon during such month shall be the
property of the Trust Estate and accrued interest for such month on the Mortgage
Loan for which the substitution is made and any Principal Prepayments made
thereon during such month shall be the property of the Seller. The Scheduled
Principal on a Substitute Mortgage Loan due on the Due Date in the month of
substitution shall be the property of the Seller and the Scheduled Principal on
the Mortgage Loan for which the substitution is made due on such Due Date shall
be the property of the Trust Estate. Upon acceptance of the Substitute Mortgage
Loan (and delivery to
-9-
the Indenture Trustee and the Custodian of a Request for Release for such
Mortgage Loan), the Indenture Trustee shall cause the Custodian to release to
the Seller the related Mortgage File related to any Mortgage Loan released
pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, and shall execute and deliver all instruments of
transfer or assignment, without recourse, representation or warranty in form as
provided to it as are necessary to vest in the Seller title to and rights under
any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable. The Seller shall deliver to (or
cause to be delivered to) the Custodian the documents related to the Substitute
Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase
Agreement and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable,
with the date of acceptance of the Substitute Mortgage Loan deemed to be the
Closing Date for purposes of the time periods set forth in those Subsections.
The representations and warranties set forth in the Mortgage Loan Purchase
Agreement (and the related Transfer 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 Seller, the Master Servicer and the Securities Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and (b) is
qualified and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure so
to qualify would not reasonably be expected to have a material adverse effect on
the Depositor's business as presently conducted or on the Depositor's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(ii) the Depositor has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Depositor or its properties or the
articles of incorporation or by-laws of the Depositor, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Depositor's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except those
-10-
consents, approvals, notices, registrations or other actions as have already
been obtained, given or made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by any
court, administrative agency, arbitrator or governmental body with respect to
any of the transactions contemplated by this Agreement; or
(vii) with respect to any other matter which in the judgment of the
Depositor will be determined adversely to the Depositor and will if determined
adversely to the Depositor materially and adversely affect the Depositor's
ability to enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement;
and
(viii) immediately prior to the transfer and assignment to the
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 United
States of America and has the corporate power to own its assets and to transact
the business in which it is currently engaged. The Master Servicer is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Master Servicer or
the validity or enforceability of this Agreement;
(ii) The Master Servicer has the power and authority to make,
execute, deliver and perform this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement. When
executed and delivered, this Agreement will constitute the legal, valid and
binding obligation of the Master Servicer enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
-11-
(iii) The Master Servicer is not required to obtain the consent of
any other Person or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consent, license, 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.
Section 2.08 Representations, Warranties and Covenants of the Seller.
-12-
The Seller hereby represents and warrants to the Issuer, the Depositor,
the Indenture Trustee, the Master Servicer and the Securities Administrator as
follows:
(i) The representations and warranties of the Seller in the Mortgage
Loan Purchase Agreement are in true and correct as of the date hereof as if made
on the date hereof.
(ii) The Seller is qualified as of the date hereof and will qualify
at all times that the Notes are Outstanding as a real estate investment trust
within the meaning of Section 856 of the Code and shall promptly notify the
Securities Administrator if at any time while the Notes are Outstanding it no
longer qualifies as a real estate investment trust within the meaning of Section
856 of the Code.
(iii) The Seller will hold all Notes (other than the Offered Notes
or Notes with respect to which a "will be debt" for federal income tax purposes
opinion has been delivered by nationally recognized federal income tax counsel)
either directly or through one or more subsidiaries, each of which is either a
"qualified REIT subsidiary" within the meaning of the Section 856(i)(2) of the
Code or a disregarded entity under Treasury Regulation promulgated pursuant to
Section 7701 of the Code.
-13-
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 Servicers to service and administer
the Mortgage Loans in accordance with the terms of the related 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 Servicers 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 Servicers and shall cause the
Servicers to perform and observe the covenants, obligations and conditions to be
performed or observed by such Servicer under the related Servicing Agreement.
The Master Servicer shall independently and separately monitor the Servicers'
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 Servicers' 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 Servicers pursuant to the Servicing Agreements.
Notwithstanding the foregoing or any other provision of this Agreement or
any Servicing Agreement to the contrary, the Master Servicer shall have no duty
or obligation to supervise, monitor or oversee the activities of or to enforce
the obligation of any Servicer under a Servicing Agreement with respect to any
Additional Collateral or any Surety Bond, including, without limitation, the
collection of any amounts owing to the trust in respect thereof (unless and
until the Master Servicer shall have assumed the obligations of the related
Servicer as successor Servicer under such Servicing Agreement pursuant to
Section 3.02 hereof, in which case, as successor Servicer, it shall be bound to
service and administer the Additional Collateral and the Surety Bonds in
accordance with the provisions of such Servicing Agreement).
The Indenture Trustee shall furnish the Servicers and the Master Servicer
with any powers of attorney and other documents in form as provided to it
necessary or appropriate to enable the related 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 Servicers' or the Master
Servicer's use or misuse of such powers of attorney.
The Indenture Trustee shall provide access to the records and
documentation in possession of the Indenture Trustee regarding the related
Mortgage Loans and REO Property and the servicing thereof to the Noteholders,
the FDIC, and the supervisory agents and examiners of the FDIC, such access
being afforded only upon reasonable prior written request and during normal
business hours at the office of the Indenture Trustee; provided, however, that,
unless otherwise required by law, the Indenture Trustee shall not be required to
provide access to such records and documentation to the Noteholders if the
provision thereof would violate the legal
-14-
right to privacy of any Mortgagor. The Indenture Trustee shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers the Indenture Trustee's actual costs.
The Indenture Trustee shall execute and deliver to the related Servicer or
the Master Servicer, as applicable based on the requesting party, any court
pleadings, requests for trustee's sale or other documents necessary or
reasonably desirable to (i) effect the foreclosure or trustee's sale with
respect to a Mortgaged Property; (ii) take any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02. Monitoring of Servicer. (a) The Master Servicer shall be
responsible for reporting to the Issuer, the Indenture Trustee, the Seller and
the Depositor the compliance by each Servicer with its duties under the related
Servicing Agreement. In the review of the Servicers' activities, the Master
Servicer may rely upon an officer's certificate of the related Servicer (or
similar document signed by an officer of the related Servicer) with regard to
such Servicer's compliance with the terms of the related Servicing Agreement. In
the event that the Master Servicer, in its judgment, determines that a Servicer
(other than ▇▇▇▇▇ Fargo) should be terminated in accordance with the related
Servicing Agreement, or that a notice should be sent pursuant to the related
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. In the event that the Master Servicer, in its judgment, determines
that ▇▇▇▇▇ Fargo should be terminated in accordance with the ▇▇▇▇▇ Fargo
Servicing Agreement, or that a notice should be sent pursuant to the ▇▇▇▇▇ Fargo
Servicing Agreement with respect to the occurrence of an event that, unless
cured, would constitute grounds for such termination, the Master Servicer shall
notify the Depositor and the Indenture Trustee thereof in writing. Pursuant to
its receipt of such written notification from the Master Servicer, the Indenture
Trustee shall issue such notice of termination to ▇▇▇▇▇ Fargo 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 Servicers
under the related Servicing Agreement, and shall, in the event that a Servicer
other than ▇▇▇▇▇ Fargo fails to perform its obligations in accordance with the
related Servicing Agreement, subject to the preceding paragraph, terminate the
rights and obligations of such Servicer thereunder and act as servicer of the
related Mortgage Loans or cause the Issuer and the Indenture Trustee to enter
into a new 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. In the event that ▇▇▇▇▇ Fargo fails to perform its obligations in
accordance with the ▇▇▇▇▇ Fargo Servicing Agreement, subject to the preceding
paragraph, the Master Servicer shall notify the Indenture Trustee in writing of
such failure. Pursuant to its receipt of such notification from the Master
Servicer, the Indenture Trustee shall terminate the rights and obligations of
▇▇▇▇▇ Fargo under the ▇▇▇▇▇ Fargo Servicing Agreement and enter in to a new
Servicing Agreement with a successor Servicer selected by the Indenture Trustee;
-15-
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. In
either event, such enforcement, including, without limitation, the legal
prosecution of claims, termination of the related 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 (or in the case ▇▇▇▇▇
Fargo is terminated as the Servicer, the Indenture Trustee), 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. In the event that ▇▇▇▇▇ Fargo is terminated as the Servicer, the
Indenture Trustee shall pay the costs of such enforcement at its own expense,
subject to its right to be reimbursed for such costs from the Master Servicer
Collection Account pursuant to Section 3.03(c); provided that the Indenture
Trustee shall not be required to prosecute or defend any legal action except to
the extent that the Indenture Trustee shall have received reasonable indemnity
for its costs and expenses in pursuing such action. Nothing herein shall impose
any obligation on the part of the Indenture Trustee to assume or succeed to the
duties or obligations of ▇▇▇▇▇ Fargo or the Master Servicer.
(c) In the event that ▇▇▇▇▇ Fargo is terminated as Servicer, to the extent
that the costs and expenses of the Indenture Trustee related to any termination
of ▇▇▇▇▇ Fargo, or the enforcement or prosecution of related claims, rights or
remedies, or the appointment of a successor Servicer (including, without
limitation, (i) all legal costs and expenses and all due diligence costs and
expenses associated with an evaluation of the potential termination of the ▇▇▇▇▇
Fargo as a result of an event of default by ▇▇▇▇▇ Fargo and (ii) all costs and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor Servicer
to correct any errors or insufficiencies in the servicing data or otherwise to
enable the successor Servicer to service the Mortgage Loans in accordance with
the related Servicing Agreement) are not fully and timely reimbursed by ▇▇▇▇▇
Fargo after such termination, the Indenture Trustee shall be entitled to
reimbursement of such costs and expenses from the Master Servicer Collection
Account (which the Master Servicer hereby agrees to pay to the Indenture Trustee
from the Master Servicer Collection Account upon demand) or, to the extent not
paid from such account, the Indenture Trustee shall be entitled to reimburse
itself for such costs and expenses from the Payment Account. In all other cases,
to the extent that the costs and expenses of the Master Servicer related to any
termination of a Servicer (other than ▇▇▇▇▇ Fargo), appointment of a successor
servicer or the transfer and assumption of servicing by the Master Servicer with
respect to the related 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 a
Servicer as a result of an event of default by such 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 related 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 Master Servicer Collection Account.
-16-
(d) The Master Servicer shall require the Servicers to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as a Servicer, it will not assume
liability for the representations and warranties of the Servicer (other than
▇▇▇▇▇ Fargo), if any, that it replaces.
Section 3.03. Fidelity Bond. The Master Servicer, at its expense, shall
maintain in effect a blanket fidelity bond and an errors and omissions insurance
policy, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer's behalf, and covering errors
and omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.04. Power to Act; Procedures. The Master Servicer shall master
service the Mortgage Loans and shall have full power and authority to do any and
all things that it may deem necessary or desirable in connection with the master
servicing and administration of the Mortgage Loans, including but not limited to
the 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 related 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
related 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 related 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 related Servicer). If the Master Servicer or the
Indenture Trustee has been advised that it is likely that the laws of the state
in which action is to be taken prohibit such action if taken in the name of the
Indenture Trustee or that the Indenture Trustee would be adversely affected
under the "doing business" or tax laws of such state if such action is taken in
its name, the Master Servicer shall join with the Indenture Trustee in the
appointment of a co-trustee pursuant to Section 6.11 of the Indenture. In the
performance of its duties hereunder, the Master Servicer shall be an independent
contractor and shall not, except in those instances where it is taking action in
the name of the Issuer or the Indenture Trustee, be deemed to be the agent of
the Issuer or the Indenture Trustee.
Section 3.05. Due-on-Sale Clauses; Assumption Agreements. To the extent
provided in the related Servicing Agreement, to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
related Servicer to enforce such clauses in accordance with the related
Servicing Agreement. If applicable law prohibits the enforcement of
-17-
a due-on-sale clause or such clause is otherwise not enforced in accordance with
the related Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the related Servicing Agreement.
Section 3.06. Release of Mortgage Files. (a) Upon becoming aware of the
payment in full of any Mortgage Loan, or the receipt by the related 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 related
Servicer will, if required under the related Servicing Agreement, or the Master
Servicer may promptly furnish to the Indenture Trustee two copies of a
certification substantially in the form of Exhibit B hereto signed by a
Servicing Officer or in a mutually agreeable electronic format which will, in
lieu of a signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the
Protected Account maintained by such Servicer pursuant to the related Servicing
Agreement have been so deposited) and shall request that the Indenture Trustee
deliver or cause the Custodian to deliver to such Servicer the related Mortgage
File. Upon receipt of such certification and request, the Indenture Trustee
shall promptly release or cause the Custodian to release the related Mortgage
File to the related Servicer and the Indenture Trustee shall have no further
responsibility with regard to such Mortgage File. Upon any such payment in full,
the related 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 related Servicing Agreement, the
Indenture Trustee shall execute such documents as shall be prepared and
furnished to the Indenture Trustee by the Servicers 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 related 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
related Servicer or the Master Servicer, as applicable. The related 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 such 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 related
Servicer or the Master Servicer.
Section 3.07. Documents, Records and Funds in Possession of Master
Servicer To Be Held for Issuer and Indenture Trustee.
-18-
(a) The Master Servicer shall transmit and the Servicers (to the extent
required by the related Servicing Agreement) shall transmit to the Indenture
Trustee such documents and instruments coming into the possession of the Master
Servicer or the Servicers from time to time as are required by the terms hereof,
or in the case of the Servicers, the related Servicing Agreement, to be
delivered to the Indenture Trustee. Any funds received by the Master Servicer or
by any Servicer in respect of any Mortgage Loan or which otherwise are collected
by the Master Servicer or by any 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 Master Servicer Collection Account the Master
Servicing Compensation and other amounts provided in this Agreement and the
right of each Servicer to retain its Servicing Fee and other amounts as provided
in the related Servicing Agreement. The Master Servicer shall, and (to the
extent provided in the related Servicing Agreement) shall cause each 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 Servicers
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 such Servicer under
this Agreement or the related Servicing Agreement.
Section 3.08. Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related 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
related Servicing Agreement. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
related 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.
-19-
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by the
related 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
related Servicing Agreement) shall be deposited into the Master Servicer
Collection Account, subject to withdrawal pursuant to Section 4.02 and 4.03. Any
cost incurred by the Master Servicer or any 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 4.02 and 4.03.
Section 3.09. Presentment of Claims and Collection of Proceeds. The Master
Servicer shall (to the extent provided in the related Servicing Agreement) cause
the related 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 any Servicer and remitted to the Master Servicer) in respect of such
policies, bonds or contracts shall be promptly deposited in the Master Servicer
Collection Account upon receipt, except that any amounts realized that are to be
applied to the repair or restoration of the related Mortgaged Property as a
condition precedent to the presentation of claims on the related Mortgage Loan
to the insurer under any applicable Insurance Policy need not be so deposited
(or remitted).
Section 3.10. Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the related 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 such Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause the Servicers (to the
extent required under the related 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 related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
the Servicers (to the extent required under the related 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 related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to cause the Servicers (to the extent
required under the related 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 4.02, any amounts collected by the Master Servicer or the
Servicers under any Primary
-20-
Mortgage Insurance Policies shall be deposited in the Master Servicer Collection
Account, subject to withdrawal pursuant to Sections 4.02 and 4.03.
Section 3.11. Indenture Trustee to Retain Possession of Certain Insurance
Policies and Documents.
The Indenture Trustee shall retain or shall cause the Custodian to retain
possession and custody of the originals (to the extent available) of any Primary
Mortgage Insurance Policies, or certificate of insurance if applicable, and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect of
the Notes have been distributed in full and the Indenture has been satisfied and
discharged in accordance with Section 4.10 of the Indenture, the Indenture
Trustee shall also retain, or shall cause the Custodian to retain, possession
and custody of each Mortgage File in accordance with and subject to the terms
and conditions of this Agreement. The Master Servicer shall promptly deliver or
cause to be delivered to the Indenture Trustee upon the execution or receipt
thereof the originals of any Primary Mortgage Insurance Policies, any
certificates of renewal, and such other documents or instruments that constitute
portions of the Mortgage File that come into the possession of the Master
Servicer from time to time.
Section 3.12. Realization Upon Defaulted Mortgage Loans. For each Mortgage
Loan that comes into and continues in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, the Master
Servicer shall cause the Servicers (to the extent required under and subject to
the provisions of the related Servicing Agreement and subject to the provisions
of Section 3.19 hereof) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such Mortgage Loans, all
in accordance with the related Servicing Agreement. The related 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 such Servicer as contemplated in Section 4.05.
In addition, the Servicers may also, in their discretion, as an
alternative to foreclosure, sell defaulted Mortgage Loans at fair market value
to third parties, if such Servicer reasonably believes that such sale would
maximize proceeds to the Noteholders in the aggregate (on a present value basis)
with respect to that Mortgage Loan.
Section 3.13. Compensation for the Master Servicer.
On each Payment Date the Master Servicer will be entitled to all income
and gain realized from any investment of funds in the Master Servicer Collection
Account and the Payment Account, pursuant to Article IV, for the performance of
its activities hereunder (the "Master Servicer Compensation"). Servicing
compensation in the form of assumption fees, if any, late payment charges, as
collected, if any, or otherwise (including any prepayment premium or penalty)
shall be retained by the related 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 the fees of the
Indenture Trustee and any Custodian as agreed on by each such party and the
Master Servicer and shall not be entitled to reimbursement therefor except as
provided in this Agreement.
-21-
Section 3.14. REO Property.
(a) In the event the Trust Estate acquires ownership of any REO Property
in respect of any related Mortgage Loan, the deed or certificate of sale shall
be issued to the Indenture Trustee, or to its nominee, on behalf of the
Noteholders. The Master Servicer shall, to the extent provided in the related
Servicing Agreement, cause the Servicers to sell any REO Property as
expeditiously as possible and in accordance with the provisions of the related
Servicing Agreement, as applicable. Pursuant to its efforts to sell such REO
Property, the Master Servicer shall cause the Servicers to protect and conserve,
such REO Property in the manner and to the extent required by the related
Servicing Agreement.
(b) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the Servicers 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 Servicers, 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 related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the related 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 Master
Servicer Collection Account on the next succeeding Servicer Remittance Date.
Section 3.15. 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, 2006, 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 related
Servicer has failed to perform any of its duties, responsibilities and
obligations under the related 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.
-22-
(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 3.16. 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, 2006
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.
Prior to (i) March 15, 2006 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 each
Servicer, in each case, required to be delivered pursuant to the related
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 this Agreement.
Section 3.17. 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, file a Form 15
Suspension Notice with respect to the Trust Estate, if applicable. Prior to (i)
March 15, 2006 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
-23-
annual statement of compliance of each Servicer, in each case, required to be
delivered pursuant to the related 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 3.15 and
3.16. Prior to (i) March 31, 2006, 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
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 3.17; 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 3.17 shall not be reimbursable from the Trust Estate.
Section 3.18. UCC. The Depositor shall inform the Indenture Trustee in
writing of any Uniform Commercial Code financing statements that were filed on
the Closing Date in connection with the Trust Estate with stamped recorded
copies of such financing statements to be delivered to the Indenture Trustee
promptly upon receipt by the Depositor. If directed by the Depositor in writing,
the Indenture Trustee will execute any continuation statements prepared by the
Depositor and deliver them as directed solely at the expense of the Depositor.
The Depositor shall file any financing statements or amendments thereto required
by any change in the Uniform Commercial Code.
Section 3.19. Foreclosure Proceedings, and Optional Purchase of Delinquent
and Defaulted Mortgage Loans. (a) The Master Servicer shall give written notice
to the holder of the Trust Certificates with respect to any Mortgage Loan which
is delinquent in payment by 90 days or more or is an REO Property. The holder of
the Trust Certificates shall, within three Business Days of receipt of such
notice, direct the Master Servicer to (1) foreclose on such Mortgage Loan or REO
Property in accordance with the procedures set forth herein or (2) sell such
Mortgage Loan or REO Property to a third-party at a price equal to fair market
value; provided, however, that if the Master Servicer is directed pursuant to
clause (2) above, then the holder of the Trust Certificates will first have the
option to purchase such Mortgage Loan or REO Property at a price equal to the
Repurchase Price. If the holder of the Trust Certificates does not direct the
Master Servicer to take action in accordance with (1) or (2) above within 3
Business Days of receipt, then the Master Servicer may foreclose, purchase or
sell such Mortgage Loan or REO Property in accordance with this Agreement.
-24-
(b) If at any time the Master Servicer remits to a payment for
deposit in the Payment Account covering the amount of the Repurchase Price for a
Mortgage Loan in accordance with clause (a) above, and the 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 Securities Administrator shall execute the assignment of such
Mortgage Loan to the Master Servicer, without recourse, representation or
warranty and the Master Servicer shall succeed to all of the Indenture Trustee's
right, title and interest in and to such Mortgage Loan, and all security and
documents relative thereto. Such assignment shall be an assignment outright and
not for security. The Master 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 3.20. Monthly Advances. If the Scheduled Payment on a Mortgage
Loan that was due on a related Due Date is delinquent other than as a result of
application of the Relief Act and for which the related Servicer was required to
make an advance pursuant to the related Servicing Agreement exceeds the amount
deposited in the Master Servicer Collection Account which will be used for an
advance with respect to such Mortgage Loan, the Master Servicer will deposit in
the Master Servicer Collection Account not later than the related Payment
Account Deposit Date immediately preceding the related Payment Date an amount
equal to such deficiency, net of the Servicing Fee for such Mortgage Loan except
to the extent the Master Servicer determines any such advance to be a
Nonrecoverable Advance. Subject to the foregoing, the Master Servicer shall
continue to make such advances through the date that the related Servicer is
required to do so under the related Servicing Agreement. If the Master Servicer
deems an advance to be a Nonrecoverable Advance, on the Payment Account Deposit
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 3.21. Compensating Interest Payments. The Master Servicer shall
deposit in the Master Servicer Collection Account not later than each Payment
Account Deposit Date an amount equal to the lesser of (i) the sum of the
aggregate amounts required to be paid by the Servicers under the related
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 related Servicer and (ii) the Master
Servicing Compensation for such Payment Date (such amount, the "Compensating
Interest Payment"). The Master Servicer shall not be entitled to any
reimbursement of any Compensating Interest Payment.
-25-
ARTICLE IV
Accounts
Section 4.01. Protected Accounts. (a) The Master Servicer shall enforce
the obligation of the Servicers to establish and maintain a Protected Account in
accordance with the related 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 related Servicing Agreement) of receipt, all collections of
principal and interest on any Mortgage Loan and any REO Property received by the
Servicers, including Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, and advances made from the Servicers' own funds (less servicing
compensation as permitted by the related Servicing Agreement) and all other
amounts to be deposited in the related Protected Account. Each Protected Account
shall be an Eligible Account. Each Servicer is hereby authorized to make
withdrawals from and deposits to the related Protected Account for purposes
required or permitted by this Agreement. To the extent provided in the related
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 related 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 Master Servicer Collection Account, and shall be
held until required for such deposit. The income earned from Permitted
Investments made pursuant to this Section 4.01 shall be paid to the related
Servicer under the related 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 related Servicer. The related Servicer
(to the extent required by the related 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 related Servicing Agreement and subject
to this Article IV, on or before each Servicer Remittance Date, the Servicers
shall withdraw or shall cause to be withdrawn from its Protected Account and
shall immediately deposit or cause to be deposited in the Master Servicer
Collection Account amounts representing the following collections and payments
(other than with respect to principal of or interest on the Mortgage Loans due
on or before the Cut-off Date):
(i) Scheduled Payments on the Mortgage Loans received or any related
portion thereof advanced by the Servicers pursuant to the related Servicing
Agreement which were due on or before the related Due Date, net of the amount
thereof comprising the Servicing Fee or any fees with respect to any lender-paid
primary mortgage insurance policy;
(ii) Principal Prepayments in full and any Lpiquidation Proceeds
received by the related Servicer with respect to the Mortgage Loans in the
related Prepayment Period, with
-26-
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), 4.02 and 4.03; to reimburse the
Master Servicer or the Servicers 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 4.02(b) certain amounts otherwise due to the related Servicer may be
retained by it and need not be deposited in the Master Servicer Collection
Account.
Section 4.02. Master Servicer Collection Account. (a) The Master Servicer
shall establish and maintain in the name of the Indenture Trustee, for the
benefit of the Noteholders, the Master Servicer Collection Account as a
segregated trust account or accounts. The Master Servicer Collection Account may
be a sub-account of the Payment Account but in any event shall be an Eligible
Account. The Master Servicer will deposit in the Master Servicer Collection
Account as identified by the Master Servicer and as received by the Master
Servicer, the following amounts:
(i) Any amounts withdrawn from the 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 Master Servicer 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
Certificateholder pursuant to Section 3.19;
(v) Any amounts required to be deposited by the Master Servicer with
respect to losses on investments of deposits in the Master Servicer Collection
Account or Payment Account; and
(vi) Any other amounts received by or on behalf of the Master
Servicer and required to be deposited in the Master Servicer Collection Account
pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account shall
be held by the Master Servicer in the name of the Indenture Trustee in trust for
the benefit of the
-27-
Noteholders in accordance with the terms and provisions of this Agreement and
the Indenture. The requirements for crediting the Master Servicer Collection
Account or the Payment Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (viii), (ix), (x), (xi) and (xii), need not be
credited by the Master Servicer or the related Servicer to the Master Servicer
Collection Account or remitted by the Master Servicer or related Servicer to the
Securities Administrator for deposit in the Payment Account, as applicable. In
the event that the Master Servicer shall remit or cause to be remitted to the
Securities Administrator for deposit to the Payment Account any amount not
required to be credited thereto, the Securities Administrator, upon receipt of a
written request therefor signed by a Servicing Officer of the Master Servicer,
shall promptly transfer such amount to the Master Servicer, any provision herein
to the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account may be invested, in the name of the Indenture Trustee, or its nominee,
for the benefit of the Noteholders, in Permitted Investments as directed by
Master Servicer. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the next
succeeding Payment Account Deposit Date. Any and all investment earnings on
amounts on deposit in the Master Servicer Collection Account from time to time
shall be for the account of the Master Servicer. The Master Servicer from time
to time shall be permitted to withdraw or receive distribution of any and all
investment earnings from the Master Servicer Collection Account. The risk of
loss of moneys required to be distributed to the Noteholders resulting from such
investments shall be borne by and be the risk of the Master Servicer. The Master
Servicer shall deposit the amount of any such loss in the Master Servicer
Collection Account within two Business Days of receipt of notification of such
loss but not later than the second Business Day prior to the Payment Date on
which the moneys so invested are required to be distributed to the Noteholders.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Master Servicer Collection Account pursuant to subclauses
(i) through (iv) of Section 3.25 of the Indenture or with respect to any such
amounts which would have been covered by such subclauses had the amounts not
been retained by the Master Servicer without being remitted to the Securities
Administrator for deposit in the Payment Account under Section 4.03 of this
Agreement.
Section 4.03. Permitted Withdrawals and Transfers from the Master Servicer
Collection Account. (a) The Master Servicer will, from time to time on demand of
the related Servicer or the Securities Administrator, make or cause to be made
such withdrawals or transfers from the Master Servicer Collection Account as the
Master Servicer has designated for such transfer or withdrawal pursuant to this
Agreement and the Servicing Agreement. The Master Servicer may clear and
terminate the Master Servicer Collection Account pursuant to Section 7.10 and
remove amounts from time to time deposited in error.
-28-
(b) On an ongoing basis, the Master Servicer shall withdraw from the
Master Servicer Collection Account (i) any expenses, costs and liabilities
recoverable by the Master Servicer or the Securities Administrator pursuant to
Sections 3.02 and 5.04 hereof and Section 6.07 of the Indenture and (ii) any
amounts payable to the Master Servicer as set forth in Section 3.13; provided
however, that the Master Servicer shall be obligated to pay from its own funds
any amounts which it is required to pay under Section 5.03(a).
(c) In addition, on or before each Payment Account Deposit Date, the
Master Servicer shall deposit in the Payment Account any Monthly Advances
required to be made by the Master Servicer with respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Payment Account Deposit
Date, the Master Servicer will transfer all Available Funds on deposit in the
Master Servicer Collection Account with respect to the related Payment Date to
the Securities Administrator for deposit in the Payment Account.
Section 4.04. Payment Account. (a) The Securities Administrator shall
establish and maintain in the name of the Indenture Trustee, for the benefit of
the Noteholders, the Payment Account as a segregated trust account or accounts.
(b) All amounts deposited to the Payment Account shall be held by the
Securities Administrator in the name of the Indenture Trustee in trust for the
benefit of the Noteholders in accordance with the terms and provisions of this
Agreement.
(c) The Payment Account shall constitute a non-interest bearing trust
account of the Trust Estate segregated on the books of the Securities
Administrator and held by the Securities Administrator in trust, and the Payment
Account and the funds deposited therein shall not be subject to, and shall be
protected from, all claims, liens, and encumbrances of any creditors or
depositors of the Securities Administrator (whether made directly, or indirectly
through a liquidator or receiver of the Securities Administrator). The Payment
Account shall be an Eligible Account.
(d) The amount at any time credited to the Payment Account shall be (i)
held in cash or (ii) invested, in the name of the Indenture Trustee, for the
benefit of the Noteholders, but only in Permitted Investments as directed by
Master Servicer. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the next
succeeding Payment Date if the obligor for such Permitted Investment is the
Securities Administrator, or if such obligor is any other Person, the Business
Day preceding such Payment Date. All investment earnings on amounts on deposit
in the Payment Account or benefit from funds uninvested therein from time to
time shall be for the account of the Master Servicer. The Securities
Administrator shall remit all investment earnings from the Payment Account to
the Master Servicer on each Payment Date. If there is any loss on a Permitted
Investment, the Master Servicer shall remit the amount of the loss to the
Securities Administrator who shall deposit such amount in the Payment Account.
(e) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest
-29-
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 related Servicing Agreement or as
the Securities Administrator has instructed hereunder for the following purposes
(limited in the case of amounts due the Master Servicer to those not withdrawn
from the Master Servicer Collection Account as certified by the Securities
Administrator in accordance with the terms of this Agreement but not in any
order of priority):
(i) to reimburse the Master Servicer or the related Servicer for any
Monthly Advance of its own funds, the right of the Master Servicer or the
related 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 related 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 related 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 related 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 related 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;
-30-
(v) to reimburse the Master Servicer or the related Servicer for any
Monthly Advance or advance, after a Realized Loss has been allocated with
respect to the related Mortgage Loan if the Monthly Advance or advance has not
been reimbursed pursuant to clauses (i) and (iv);
(vi) to pay the Master Servicer as set forth in Section 3.13;
provided however, that the Master Servicer shall be obligated to pay from its
own funds any amounts which it is required to pay under Section 5.03;
(vii) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to Sections 3.02,
5.04(c) and (d), to the extent that the Master Servicer has not already
reimbursed itself for such amounts from the Master Servicer Collection Account;
(viii) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by the
related Servicer;
(ix) to reimburse or pay the related Servicer any such amounts as
are due thereto under the related Servicing Agreement and have not been retained
by or paid to the related Servicer, to the extent provided in the related
Servicing Agreement;
(x) to reimburse or pay the Indenture Trustee, the Owner Trustee and
the Securities Administrator any amounts due or expenses, costs and liabilities
incurred by or reimbursable to it pursuant to this Agreement, the Indenture and
the Trust Agreement, to the extent such amounts have not already been previously
paid or reimbursed to such party from the Master Servicer Collection Account;
(xi) to remove amounts deposited in error; and
(xii) to clear and terminate the Payment Account pursuant to Section
7.10.
(b) The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Payment Account pursuant to subclauses (i) through (iv)
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 4.02(b).
(c) On each Payment Date, pursuant to Section 3.03 of the Indenture, the
Securities Administrator shall distribute the Available Funds to the extent on
deposit in the Payment Account to the Holders of the Notes, in accordance with
Section 3.03 of the Indenture.
-31-
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, the Owner Trustee, the Seller, the Depositor
and the Securities Administrator (each an "Indemnified Person") for, and to hold
them harmless against, any loss, liability or expense (including reasonable
legal fees and disbursements of counsel) incurred on their part that may be
sustained in connection with, arising out of, or relating to, any claim or legal
action (including any pending or threatened claim or legal action) relating to
this Agreement, the Indenture, the Servicing Agreements, the Assignment
Agreements or the Notes or the powers of attorney delivered by the Indenture
Trustee hereunder (i) related to the Master Servicer's failure to perform its
duties in compliance with this Agreement (except as any such loss, liability or
expense shall be otherwise reimbursable pursuant to this Agreement) or (ii)
incurred by reason of the Master Servicer's willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder, provided, in each case, that with
respect to any such claim or legal action (or pending or threatened claim or
legal action), the Indemnified Person shall have given the Master Servicer and
the Depositor written notice thereof promptly after such Indemnified Person
shall have with respect to such claim or legal action knowledge thereof. The
Master Servicer's failure to receive any such notice shall not affect an
Indemnified Persons' right to indemnification hereunder, except to the extent
the Master Servicer is materially prejudiced by such failure to give notice.
This indemnity shall survive the resignation or removal of the Indenture
Trustee, Owner Trustee, Master Servicer and the Securities Administrator and the
termination of this Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc. agrees to
indemnify the Owner Trustee for any loss, liability or expense for which the
Depositor is required to indemnify the Owner Trustee, other than (x) any loss
liability or expense required to be covered by the Master Servicer pursuant to
this Section 5.03 and (y) any loss,
-32-
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 and the Indenture Trustee, to the extent it becomes a party
to the ▇▇▇▇▇ Fargo Servicing Agreement pursuant to Section 3.03, and any
officer, director, employee or agent of the Indenture Trustee, shall be
indemnified by the Trust Estate and held harmless thereby against any loss,
liability or expense (including reasonable legal fees and disbursements of
counsel) incurred on their part that may be sustained in connection with,
arising out of, or related to, any claim or legal action (including any pending
or threatened claim or legal action) relating to this Agreement, the Indenture,
the Notes or the related Servicing Agreement (except to the extent that the
Master Servicer or the Indenture Trustee, as the case may be, is indemnified by
the related Servicer thereunder), other than (i) any such loss, liability or
expense related to the Master Servicer's failure to perform its duties in
compliance with this Agreement (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement), or (ii) any such
loss, liability or expense incurred by reason of the Master Servicer's willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder.
(d) The Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its duties under
this Agreement and that in its opinion may involve it in any expense or
liability; provided, however, the Master Servicer may in its discretion
undertake any such action which it may deem necessary or desirable with respect
to this Agreement or the Indenture and the rights and duties of the parties
hereto and the interests of the Noteholders hereunder and thereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Estate, and the
Master Servicer shall be entitled to be reimbursed therefor out of the Master
Servicer Collection Account as provided by Section 4.03. Nothing in this
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).
-33-
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this Agreement, the
Master Servicer shall not be required to investigate or make recommendations
concerning potential liabilities which the Trust Estate might incur as a result
of such course of action by reason of the condition of the Mortgaged Properties
but shall give written notice to the Indenture Trustee if it has notice of such
potential liabilities.
(f) The Master Servicer shall not be liable for any acts or omissions of a
Servicer, with the exception of ▇▇▇▇▇ Fargo, except as otherwise expressly
provided herein.
(g) It is expressly understood and agreed by the parties hereto that (i)
this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as trustee of the Trust, in the exercise
of the powers and authority conferred and vested in it under the Trust
Agreement, (ii) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose of binding only the Trust and (iii) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement or the other Transaction Documents.
Section 5.05. Master Servicer Not to Resign. Except as provided in Section
5.07, the Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon a determination that any such duties hereunder
are no longer permissible under applicable law and such impermissibility cannot
be cured. Any such determination permitting the resignation of the Master
Servicer shall be evidenced by an Opinion of Counsel addressed to the Indenture
Trustee and the Issuer to such effect delivered to the Indenture Trustee and the
Issuer. No such resignation by the Master Servicer shall become effective until
the Depositor or the Indenture Trustee or a successor to the Master Servicer
reasonably satisfactory to the Indenture Trustee and the Depositor shall have
assumed the responsibilities and obligations of the Master Servicer in
accordance with Section 6.02 hereof. The Indenture Trustee shall notify the
Rating Agencies of the resignation of the Master Servicer. Any resignation of
the Master Servicer shall result in the automatic resignation of the Securities
Administrator.
Section 5.06. Successor Master Servicer. In connection with the
appointment of any successor master servicer or the assumption of the duties of
the Master Servicer, the Depositor or the Indenture Trustee may make such
arrangements for the compensation of such successor master servicer out of
payments on the Mortgage Loans as the Depositor or the Indenture Trustee and
such successor master servicer shall agree. If the successor master servicer
does not agree that such market value is a fair price, such successor master
servicer shall obtain two quotations of market value from third parties actively
engaged in the servicing of single-family mortgage loans. Notwithstanding the
foregoing, the compensation payable to a successor master servicer may not
exceed the compensation which the Master Servicer would have been entitled to
retain if the Master Servicer had continued to act as Master Servicer hereunder.
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
-34-
under this Agreement; provided, however, that: (i) the purchaser or transferee
accepting such assignment and delegation (a) shall be a Person which shall be
qualified to service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b) shall
have a net worth of not less than $25,000,000 (unless otherwise approved by each
Rating Agency pursuant to clause (ii) below); (c) shall be reasonably
satisfactory to the Indenture Trustee and the Depositor (as evidenced in a
writing signed by the Indenture Trustee and the Depositor); and (d) shall
execute and deliver to the Indenture Trustee an agreement, in form and substance
reasonably satisfactory to the 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 evidenced by a letter to
such effect delivered to the Master Servicer, the Issuer and the Indenture
Trustee; and (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. No such assignment or delegation shall affect any
liability of the Master Servicer arising prior to the effective date thereof.
-35-
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
-36-
(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 Depositor, may terminate all of the
rights and obligations (but not the liabilities) of the Master Servicer under
this Agreement and in and to the Mortgage Loans and/or the REO Property serviced
by the Master Servicer and the proceeds thereof. Upon the receipt by the Master
Servicer of the written notice, all authority and power of the Master Servicer
under this Agreement, whether with respect to the Notes, the Mortgage Loans, REO
Property or under any other related agreements (but only to the extent that such
other agreements relate to the Mortgage Loans or related REO Property) shall,
subject to Section 6.02, automatically and without further action pass to and be
vested in the Indenture Trustee pursuant to this Section 6.01; and, without
limitation, the Indenture Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer as attorney-in-fact or otherwise,
any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and 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.
-37-
Section 6.02. Indenture Trustee to Act; Appointment of Successor. (a) Upon
the receipt by the Master Servicer of a notice of termination pursuant to
Section 6.01 or an Opinion of Counsel pursuant to Section 5.05 to the effect
that the Master Servicer is legally unable to act or to delegate its duties to a
Person which is legally able to act, the Indenture Trustee shall automatically
become the successor in all respects to the Master Servicer in its capacity
under this Agreement and the transactions set forth or provided for herein and
shall thereafter be subject to all the responsibilities, duties, liabilities and
limitations on liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof; provided, however, that the Depositor shall have
the right to select a successor Master Servicer; provided further, however, that
the Indenture Trustee shall have no obligation whatsoever with respect to any
liability (including advances deemed recoverable and not previously made with
respect to the relevant Payment Date giving rise to the Master Servicer Event of
Default which shall be made by such successor Master Servicer) incurred by the
Master Servicer at or prior to the time of termination. 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 $25,000,000, as
the successor to the Master Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer
hereunder; 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 it and such successor shall agree; provided, however, that
the provisions of Section 5.06 shall apply, the compensation shall not be in
excess of that which the Master Servicer would have been entitled to if the
Master Servicer had continued to act hereunder, and that such successor shall
undertake and assume the obligations of the Master Servicer to pay compensation
to any third Person acting as an agent or independent contractor in the
performance of master servicing responsibilities hereunder. The Indenture
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
(b) If the Indenture Trustee shall succeed to any duties of the Master
Servicer respecting the Mortgage Loans as provided herein, it shall do so in a
separate capacity and not in its capacity as Indenture Trustee and, accordingly,
the provisions of Article VI of the Indenture 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.
-38-
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.
-39-
ARTICLE VII
Miscellaneous Provisions
Section 7.01. Amendment. (a) This Agreement may be amended from time to
time by the Issuer, the Seller, the Depositor, the Master Servicer, the
Securities Administrator and the Indenture Trustee, without notice to or the
consent of any of the Noteholders, to cure any ambiguity, to correct or
supplement any provisions herein or therein that may be defective or
inconsistent with any other provisions herein or therein, to comply with any
changes in the Code or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, addressed to the Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder.
(b) This Agreement may also be amended from time to time by the Issuer,
the Seller, the Master Servicer, the Depositor, the Securities Administrator and
the Indenture Trustee, with the consent of the Holders of Notes aggregating at
least 66 2/3% of Note Principal Balance of the Notes, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which are
required to be distributed on any Note without the consent of the Holder of such
Note or (ii) reduce the aforesaid percentage of Notes the Holders of which are
required to consent to any such amendment, without the consent of the Holders of
all Notes then outstanding. Notwithstanding any other provision of this
Agreement, for purposes of the giving or withholding of consents pursuant to
this Section 7.01(b), Notes registered in the name of or held for the benefit of
the 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.
-40-
Section 7.02. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation in all appropriate
public offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere. The Depositor
shall effect such recordation, at the expense of the Trust Estate upon the
request in writing of a Noteholder, but only if such direction is accompanied by
an Opinion of Counsel (provided at the expense of the Noteholder requesting
recordation) to the effect that such recordation would materially and
beneficially affect the interests of the Noteholders or is required by law.
Section 7.03. Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO ITS CONFLICT OF LAWS RULES (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW, WHICH THE PARTIES HERETO EXPRESSLY RELY UPON IN THE CHOICE OF
SUCH LAW AS THE GOVERNING LAW HEREUNDER) AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 7.04. Notices. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, 4 World Financial Center, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or to
such other address as may hereafter be furnished to the other parties hereto in
writing; (ii) in the case of the Indenture Trustee, at the Corporate Trust
Office or such other address as may hereafter be furnished to the other parties
hereto in writing; (iii) in the case of the Seller, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇▇▇▇▇▇, with a copy to the same
address, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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, N.A., ▇.▇. ▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or, in the case of overnight deliveries, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 21045) (Attention: Corporate Trust Services -
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors Trust, Series 2005-A9), facsimile no.: (410)
715-2380, or such other address as may hereafter be furnished to the other
parties hereto in writing; (v) in the case of the Issuer, to ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Investors Trust, Series 2005-A9 c/o Wilmington Trust Company, ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administrator, or such other address as may hereafter
be furnished to the other parties hereto in writing; (vi) in the case of the
Owner Trustee, to Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administrator; or such other address as may hereafter be furnished to the other
parties hereto in writing; and (vii) in the case of the Rating Agencies,
Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Fitch Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Any notice delivered to the Depositor, the Seller, 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
within the time prescribed in this Agreement shall be conclusively
-41-
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:
a) Any material change or amendment to this Agreement;
b) The occurrence of any Master Servicer Event of Default that has
not been cured;
c) The resignation or termination of the Master Servicer, the
Indenture Trustee or the Securities Administrator; and
d) Any change in the location of the Master Servicer Collection
Account.
Section 7.10. Termination. The respective obligations and responsibilities
of the parties hereto created hereby shall terminate upon the satisfaction and
discharge of the Indenture pursuant to Section 4.10 thereof and, if applicable,
the optional redemption of the Notes pursuant to Section 8.07 thereof. In the
event that this Agreement is terminated by reason of the payment or liquidation
of all Mortgage Loans or the disposition of all property acquired with respect
to all Mortgage Loans under this Section, the Master Servicer shall deliver to
the Securities Administrator for deposit in the Payment Account all
distributable amounts remaining in the Master Servicer Collection Account. Upon
the presentation and surrender of the Notes, the Securities Administrator shall
distribute to the remaining Noteholders, in accordance with their respective
interests, all distributable amounts remaining in the Payment Account. Upon
deposit by the Master Servicer of such distributable amounts, and following such
final Payment Date, the Indenture Trustee shall, or shall cause the Custodian
to, release promptly to the Issuer or its
-42-
designee the Mortgage Files for the remaining Mortgage Loans, and the Master
Servicer Collection Account and the Payment Account shall terminate, subject to
the Securities Administrator's obligation to hold any amounts payable to the
Noteholders in trust without interest pending final distributions pursuant to
the Indenture.
Section 7.11. No Petition. Each party to this Agreement (and with respect
to ▇▇▇▇▇ 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.
Section 7.14. Third Party Beneficiary. The Owner Trustee is an express
third party beneficiary entitled to invokes the rights provided to it in Section
5.03 hereof.
-43-
IN WITNESS WHEREOF, the Depositor, the Issuer, the Seller, the Indenture
Trustee, the Master Servicer and the Securities Administrator have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS,
INC., as Depositor
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS
TRUST, SERIES 2005-A9, as Issuer
By: WILMINGTON TRUST COMPANY,
but solely as Owner Trustee
By:
-----------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Indenture Trustee
By:
-----------------------------------------
Name:
Title:
TABERNA REALTY HOLDINGS TRUST, as
Seller
By:
-----------------------------------------
Name:
Title:
-44-
▇▇▇▇▇ FARGO BANK, N.A., as Master
Servicer
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A., as Securities
Administrator
By:
-----------------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED
for purposes of section 5.03:
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE CAPITAL INC.
By:
----------------------------------------
Name:
Title:
-45-
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
A-1
EXHIBIT B
REQUEST FOR RELEASE OF DOCUMENTS
To: Wachovia Bank, National Association
Corporate Trust & Loan Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A. (the "Custodian")
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Inventory Control
RE: Sale and Servicing Agreement, dated as of December 22, 2005 (the
"Sale and Servicing Agreement"), among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Investors Trust, Series 2005-A9 as Issuer, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Investors, Inc., as Depositor, Wachovia Bank, National Association,
as Indenture Trustee, ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator and Master Servicer and Taberna Realty Holdings Trust,
as Seller .
In connection with the administration of the Mortgage Loans held by the
Custodian for the benefit of the Indenture Trustee pursuant to the
above-captioned Sale and Servicing Agreement, we request the release, and hereby
acknowledge receipt, of the Mortgage File for the Mortgage Loan described below,
for the reason indicated.
This release will not invalidate any insurance coverage provided in
respect of the Mortgage Loan under any of the Insurance Policies.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one):
____ 1. Mortgage, or if applicable California Mortgage Loan, Paid in
Full and proceeds have been deposited into the Payment Account
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason:
B-1
By:
-------------------------------
(authorized signer)
Issuer:
---------------------------
Address:
--------------------------
Date:
-----------------------------
B-2
EXHIBIT C-1
▇▇▇▇▇ FARGO Servicing Agreement
See Exhibit 99.9
C-1-1
EXHIBIT C-2
PHH SERVICING AGREEMENT
See Exhibit 99.7
C-2-1
EXHIBIT C-3
AURORA SERVICING AGREEMENT
See Exhibit 99.4
C-3-1
EXHIBIT C-4
COUNTRYWIDE SERVICING AGREEMENT
See Exhibit 99.6
C-4-1
EXHIBIT D-1
▇▇▇▇▇ FARGO ASSIGNMENT AGREEMENT
[Intentionally Omitted]
D-1-1
EXHIBIT D-2
PHH ASSIGNMENT AGREEMENT
[Intentionally Omitted]
D-2-1
EXHIBIT D-3
COUNTRYWIDE-▇▇▇▇▇▇ ASSIGNMENT AGREEMENT
[Intentionally Omitted]
D-3-1
EXHIBIT D-4
COUNTRYWIDE-MERRILL ASSIGNMENT AGREEMENT
[Intentionally Omitted]
D-4-1
EXHIBIT E
MORTGAGE LOAN PURCHASE AGREEMENT
See Exhibit 99.2
E-1