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EXHIBIT 4.3
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SALE AND SERVICING AGREEMENT
Dated as of _______ ___, 199__
among
CITYSCAPE LOAN TRUST 199__-__
(Issuer)
-------------------------------------------
(Depositor)
CITYSCAPE CORP.
(Servicer)
___________________________________________(Transferor)
and
-------------------------------------------
(Indenture Trustee and Co-Owner Trustee)
Cityscape Loan Trust 199___-___
Mortgage Loan Asset Backed Notes
Series 199___-___
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS......................................................1
Section 1.01 Definitions...............................................1
Section 1.02 Other Definitional Provisions............................25
ARTICLE II. CONVEYANCE OF THE MORTGAGE LOANS...............................27
Section 2.01 Conveyance of the Mortgage Loans.........................27
Section 2.02 [RESERVED]...............................................27
Section 2.03 Ownership and Possession of Mortgage Loan Files..........27
Section 2.04 Books and Records........................................27
Section 2.05 Delivery of Mortgage Loan Documents......................28
Section 2.06 Acceptance by Indenture Trustee of the Mortgage
Loans; Certain Substitutions; Initial Certification by
Custodian....................................................31
Section 2.07 Subsequent Transfers.....................................33
ARTICLE III. REPRESENTATIONS AND WARRANTIES................................36
Section 3.01 Representations and Warranties of the Depositor..........36
Section 3.02 Representations and Warranties of the Transferor.........37
Section 3.03 Representations, Warranties and Covenants of the
Servicer..................................................40
Section 3.04 Representations and Warranties regarding Individual
Mortgage Loans............................................42
Section 3.05 [RESERVED]...............................................48
Section 3.06 Purchase and Substitution................................48
ARTICLE IV. ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS.............52
Section 4.01 Duties of the Servicer...................................52
Section 4.02 Liquidation of Mortgage Loans; Defaulted Mortgage
Loans.....................................................53
Section 4.03 Fidelity Bond; Errors and Omission Insurance.............54
Section 4.04 Title, Management and Disposition of Foreclosure
Property..................................................55
Section 4.05 Access to Certain Documentation and Information
Regarding the Mortgage Loans.................................57
Section 4.06 [RESERVED]...............................................57
Section 4.07 Subservicing.............................................57
Section 4.08 Successor Servicers......................................59
Section 4.09 Maintenance of Hazard Insurance; Property Protection
Expenses..................................................59
Section 4.10 Maintenance of Mortgage Impairment Insurance Policy......60
Section 4.11 Reports to the Securities and Exchange Commission........60
Section 4.12 Payment of Taxes, Insurance and Other Charges............61
Section 4.13 Filing of Continuation Statements........................61
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ARTICLE V. ESTABLISHMENT OF TRUST ACCOUNTS.................................62
Section 5.01 Collection Account and Note Distribution Account.........62
Section 5.02 Certificate Distribution Account and Distributions
on the Notes..............................................65
Section 5.03 Trust Accounts; Trust Account Property...................66
Section 5.04 Allocation of Losses.....................................69
Section 5.05 Pre-Funding Account......................................69
Section 5.06 Capitalized Interest Account.............................70
ARTICLE VI. STATEMENTS AND REPORTS; SPECIFICATION OF TAX MATTERS...........71
Section 6.01 Statements...............................................71
Section 6.02 Reports of Foreclosure and Abandonment of Mortgaged
Property..................................................74
Section 6.03 Specification of Certain Tax Matters.....................74
ARTICLE VII. GENERAL SERVICING PROCEDURE...................................75
Section 7.01 Assumption Agreements....................................75
Section 7.02 Satisfaction of Mortgages and Release of Mortgage
Loan Files................................................75
Section 7.03 Servicing Compensation...................................77
Section 7.04 Statement as to Compliance and Financial Statements......77
Section 7.05 Independent Public Accountants' Servicing Report.........78
Section 7.06 Right to Examine Servicer Records........................78
Section 7.07 Reports to the Indenture Trustee; Collection Account
Statements................................................79
ARTICLE VIII. REPORTS TO BE PROVIDED BY SERVICER...........................80
Section 8.01 Financial Statements.....................................80
ARTICLE IX. THE SERVICER...................................................81
Section 9.01 Indemnification; Third Party Claims......................81
Section 9.02 Merger or Consolidation of the Servicer..................82
Section 9.03 Limitation on Liability of the Servicer and Others.......83
Section 9.04 Servicer Not to Resign; Assignment.......................83
Section 9.05 Relationship of Servicer to Issuer and the Indenture
Trustee...................................................83
Section 9.06 Servicer May Own Notes...................................83
ARTICLE X. DEFAULT.........................................................85
Section 10.01 Events of Default.......................................85
Section 10.02 Indenture Trustee to Act; Appointment of Successor......86
Section 10.03 Waiver of Defaults......................................88
Section 10.04 Accounting Upon Termination of Servicer.................88
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ARTICLE XI. TERMINATION....................................................89
Section 11.01 Termination.............................................89
Section 11.02 Optional Termination....................................89
Section 11.03 Notice of Termination...................................89
ARTICLE XII. MISCELLANEOUS PROVISIONS......................................90
Section 12.01 Acts of Securityholders.................................90
Section 12.02 Amendment...............................................90
Section 12.03 Recordation of Agreement................................91
Section 12.04 Duration of Agreement...................................91
Section 12.05 Governing Law...........................................91
Section 12.06 Notices.................................................91
Section 12.07 Severability of Provisions..............................92
Section 12.08 No Partnership..........................................92
Section 12.09 Counterparts............................................92
Section 12.10 Successors and Assigns..................................92
Section 12.11 Headings................................................92
Section 12.12 Actions of Securityholders..............................92
Section 12.13 Reports to Rating Agencies..............................93
Section 12.14 Holders of the Residual Interest........................93
EXHIBITS
EXHIBIT A Mortgage Loan Schedule
EXHIBIT B Form of Servicer Remittance Report to Trustee
EXHIBIT C Form of Release
EXHIBIT D Form of Request for Release
EXHIBIT E Form of Subsequent Transfer Agreement
EXHIBIT F Reports of Trustee Pursuant to Section 2.06.
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THIS SALE AND SERVICING AGREEMENT is entered into effective as of _______
___, 199___, among CITYSCAPE LOAN TRUST 199__-__, a ________________ (the
"Issuer" or the "Trust"), _________________________________, a
___________________, as Depositor (the "Depositor"), CITYSCAPE CORP., a New York
corporation ("Cityscape"), as Servicer (the "Servicer"),
____________________________, a _________________, as Transferor (the
"Transferor"), and ___________________________________, a
______________________, as Indenture Trustee on behalf of the Noteholders (in
such capacity, the "Indenture Trustee") and as Co-Owner Trustee on behalf of the
Certificateholders (in such capacity, the "Co-Owner Trustee").
PRELIMINARY STATEMENT
WHEREAS, the Issuer desires to purchase a pool of Mortgage Loans which
were originated or purchased by the Servicer in its ordinary course of business
and subsequently conveyed by the Servicer to the Transferor and by the
Transferor to the Depositor;
WHEREAS, the Depositor is willing to sell such Mortgage Loans to the
Issuer; and
WHEREAS, the Servicer is willing to service such Mortgage Loans in
accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article. Unless otherwise specified, all calculations of interest described
herein shall be made on the basis of a 360-day year consisting of twelve 30-day
months.
Accepted Servicing Procedures: Servicing procedures that meet at least the
same standards the Servicer would follow in servicing first, second and third
lien residential mortgage loans such as the Mortgage Loans held for its own
account, giving due consideration to standards of practice of prudent mortgage
lenders and loan servicers that originate and service mortgage loans comparable
to the Mortgage Loans and to the reliance placed by the Securityholders on the
Servicer for the servicing of the Mortgage Loans but without regard to:
(i) any relationship that the Servicer, any Subservicer or any
affiliate of the Servicer or any Subservicer may have with the related
Obligor;
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(ii) the ownership of any Securities by the Servicer or any
affiliate of the Servicer;
(iii) the Servicer's obligation to make Servicing Advances; or
(iv) the Servicer's or any Subservicer's right to receive
compensation for its services hereunder with respect to any particular
transaction.
Accrual Period: With respect to the first Distribution Date and the Class
A-[ ] Notes, the period commencing on the Closing Date and ending on the day
immediately preceding such distribution Date. With respect to any subsequent
Distribution Date and the Class A-[ ] Notes, the period commencing on the
immediately preceding Distribution Date and ending on the day immediately
preceding such subsequent Distribution Date. With respect to the Classes of
Notes other than the Class A-[ ] Notes for a given Distribution Date, the
calendar month preceding the month of such Distribution Date based on a 360-day
year consisting of twelve 30-day months (or, in the case of the first
Distribution Date, a 360-day year and 28 days' accrued interest).
Addition Notice: For any date during the Funding Period, a notice (which
may be verbal or written) given to the Rating Agencies and the Trustee pursuant
to Section 2.07.
Aggregate Note Principal Balance: With respect to any Distribution Date,
the aggregate of the Class Principal Balances of the Notes.
Agreement: This Sale and Servicing Agreement and all amendments hereof and
supplements hereto.
Allocable Loss Amount: With respect to each Distribution Date, the excess,
if any, of (a) the aggregate of the Class Principal Balances of all Classes of
Securities (after giving effect to all distributions on such Distribution Date)
over (b) the Pool Principal Balance as of the end of the preceding Due Period.
Allocable Loss Amount Priority: With respect to any Distribution Date,
sequentially, to the [INSERT CLASSES OF NOTES TO WHICH LOSSES ARE TO BE
ALLOCABLE], in that order, until the respective Class Principal Balances thereof
are reduced to zero.
Assignment of Mortgage: With respect to each Mortgage Loan secured by a
Mortgage, an assignment, notice of transfer or equivalent instrument sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect or record the sale of the related Mortgage Loan, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages secured by Mortgaged
Properties located in the same county, if permitted by law.
Available Collection Amount: With respect to any Distribution Date, an
amount equal to the sum of: (i) all amounts received on the Mortgage Loans or
required to be paid by the Servicer or the Transferor during the related Due
Period (exclusive of amounts not required to be deposited by the Servicer in the
Collection Account pursuant to Section 5.01(b)(1) and amounts permitted to
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be withdrawn by the Indenture Trustee from the Collection Account pursuant to
Section 5.01(b)(3) of this Agreement) as reduced by any portion thereof that may
not be withdrawn therefrom pursuant to an order of a United States bankruptcy
court of competent jurisdiction imposing a stay pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code; (ii) with respect to the final Distribution Date
or an early redemption or termination of the Securities pursuant to Section
11.02, the Termination Price; (iii) the Purchase Price paid for any Mortgage
Loans required to be purchased pursuant to Section 3.06 prior to the related
Determination Date and (iv) the Capitalized Interest Requirement, if any, with
respect to such Distribution Date.
Available Distribution Amount: With respect to any Distribution Date, the
Available Collection Amount, minus the amount required to be paid from the Note
Distribution Account pursuant to Section 5.01(c)(i), plus, if applicable, the
amount of any Pre-Funding Earnings for the related Due Period and, on the
Distribution Date relating to the Due Period in which the termination of the
Funding Period occurred, the amount on deposit in the Pre-Funding Account at
such time.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day
on which banking institutions in New York City or in the city in which the
corporate trust office of the Indenture Trustee is located are authorized or
obligated by law or executive order to be closed.
Call Option Date: The first Distribution Date on which the Majority
Residual Interest Holders are able to cause an optional termination of the Trust
pursuant to Section 11.02 of this Agreement.
Capitalized Interest Account: The account designated as such, established
and maintained pursuant to Section 5.06.
Capitalized Interest Requirement: With respect to the Distribution Date in
________, 199_ [SPECIFY THE MONTH IMMEDIATELY SUCCEEDING THE MONTH IN WHICH THE
CLOSING DATE OCCURS], (A) the product of (a) a fraction, the numerator of which
is the Pre-Funding Amount on the Closing Date and the denominator of which is
the sum of the Pre-Funding Amount on the Closing Date and the Original Pool
Principal Balance and (b) the aggregate amount of interest accrued on each Class
of Notes for the respective Accrual Periods minus (B) in the case of any
Subsequent Loan transferred to the Trust during the related Due Period, the
amount of any interest collected after the Cut-Off Date applicable to such
Subsequent Loan and during such related Due Period and minus (C) any Pre-Funding
Earnings for the related Due Period.
With respect to the Distribution Date in ________, 199_ [SPECIFY THE
SECOND MONTH SUCCEEDING THE MONTH IN WHICH THE CLOSING DATE OCCURS], (A) the
product of (a) a fraction, the numerator of which is the Pre-Funding Amount on
the first day of the related Due Period and the denominator of which is the sum
of the Pre-Funding Amount on the first day of the related Due Period and the
Pool Principal Balance on the first day of the related Due Period and (b) the
percentage equivalent of fraction the numerator of which is the aggregate amount
of interest accrued on each Class of Notes for the respective Accrual Periods
minus (B) any Pre-Funding Earnings for the related Due Period and minus (C) in
the case of any Subsequent Loan transferred to the Trust during the related Due
Period, the amount of any interest collected after the Cut-Off Date applicable
to such Subsequent Loan and during such related Due Period.
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With respect to the Distribution Date in ____________, 199_ [SPECIFY THE
THIRD MONTH SUCCEEDING THE MONTH IN WHICH THE CLOSING DATE OCCURS], (A) the
product of (a) the Pre-Funding Amount on the first day of the related Due Period
the denominator of which is the sum of the Pre-Funding Amount on the first day
of the related Due Period and the Pool Principal Balance on the first day of the
related Due Period and (b) the aggregate amount of interest accrued on each
Class of Notes for the respective Accrual Periods minus (B) any Pre-Funding
Earnings for the related Due Period and minus (C) in the case of any Subsequent
Loan transferred to the Trust during the related Due Period, the amount of any
interest collected after the Cut-Off Date applicable to such Subsequent Loan and
during such related Due Period.
Certificate: Any Residual Interest Instrument issued pursuant to the Trust
Agreement.
Certificate Distribution Account: The Account established and maintained
pursuant to Section 5.02.
Certificate Register: The register established pursuant to Section 3.4 of
the Trust Agreement.
Certificateholder: A holder of any Certificate.
Cityscape: Cityscape Corp.
Class: With respect to the Notes, all Notes bearing the same Class
designation.
Class A Excess Spread Distribution Amount: With respect to any
Distribution Date, the least of (i) the excess of (x) the Class Principal
Balance of all Senior Notes (after giving effect to all distributions pursuant
to Section 5.01(d)) over (y) the Senior Optimal Principal Balance for such
Distribution Date, (ii) the Overcollateralization Deficiency Amount for such
Distribution Date, and (iii) the Excess Spread for such Distribution Date.
Class A Principal Distribution Amount: With respect to any Distribution
Date, the lesser of (i) the Regular Principal Distribution Amount and (ii) the
excess of (x) the aggregate Class Principal Balance of all Senior Notes (prior
to giving effect to distributions on such Distribution Date, other than any
distributions in respect of the Pre-Funded Amount on the Distribution Date on
which a Pre-Funding Pro Rata Distribution Trigger has occurred) over (y) the
Senior Optimal Principal Balance for such Distribution Date.
Class A-[ ] Note and Class [ ] Note [ADD ADDITIONAL CLASSES OF NOTES WHERE
APPLICABLE]: The respective meanings assigned thereto in the Indenture.
Class [ ] Noteholders' Interest Carry-Forward Amount: With respect to any
Distribution Date, the excess of (A) the Class [ ] Noteholders' Monthly Interest
Distribution Amount for the preceding Distribution Date and any outstanding
Class [ ] Noteholders' Interest Carry-Forward Amount on such preceding
Distribution Date, over (B) the amount in respect of interest that is actually
distributed with respect to the Class [ ] Notes on such preceding Distribution
Date.
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Class [ ] Noteholders' Interest Distribution Amount: With respect to any
Distribution Date and the Class [ ] Notes, the sum of the Class [ ] Noteholders'
Monthly Interest Distribution Amount for such Distribution Date and the Class [
] Noteholders' Interest Carry-Forward Amount for such Distribution Date.
Class [ ] Noteholders' Monthly Interest Distribution Amount: With respect
to any Distribution Date (other than the first Distribution Date) and the Class
[ ] Notes, the aggregate amount of thirty (30) days' accrued interest at the
Class [ ] Note Interest Rate on the Class Principal Balance of the Class [ ]
Notes immediately preceding such Distribution Date. With respect to the first
Distribution Date, _______________ (___) days' [INSERT NUMBER OF DAYS FROM
CLOSING DATE TO THE END OF THE MONTH IN WHICH THE CLOSING DATE OCCURS] accrued
interest at the Class [ ] Note Interest Rate on the Original Class Principal
Balance of the Class [ ] Notes.]
Class Factor: With respect to each Class and any date of determination,
the then applicable Class Principal Balance of such Class divided by the
Original Class Principal Balance thereof.
Class Principal Balance: With respect to each Class and as of any date of
determination, the Original Class Principal Balance of such Class reduced by the
sum of all amounts previously distributed in respect of principal of such Class
on all previous Distribution Dates and, with respect to the Class [ ] Notes, all
Allocable Loss Amounts applied in reduction of principal of such Class on all
previous Distribution Dates.
Closing Date: ______ ___, 199___.
Code: The Internal Revenue Code of 1986, as amended from time to time, and
Treasury Regulations promulgated thereunder.
Collection Account: The account established and maintained by the Servicer
in accordance with Section 5.01.
Combination Loan: A loan, the proceeds of which were used by the Obligor
in combination to finance property improvements and for debt consolidation or
other purposes.
Co-Owner Trustee: _______________________, a ________________________, in
its capacity as the Co-Owner Trustee under the Trust Agreement, acting on behalf
of the Certificateholders, or any successor co-owner trustee under the Trust
Agreement.
Cram Down Losses: With respect to any Loan, the reduction to the related
Loan Balance and/or the amount by which the installment of interest due on the
related Due Date under the terms of such Loan has been reduced as a result of a
reduction in the related Loan Interest Rate, in each case resulting from an
order issued by a court of appropriate jurisdiction in an insolvency proceeding.
A Cram Down Loss shall be deemed to have occurred on the date of issuance of
such order.
Custodial Agreement: The custodial agreement dated as of ________ ___,
199___ by and among the Depositor, the Servicer, the Transferor, the Indenture
Trustee and the Custodian,
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providing for the retention of the Mortgage Loan Files by the Custodian on
behalf of the Indenture Trustee.
Custodian: Any custodian appointed by the Indenture Trustee pursuant to
the Custodial Agreement, which shall not be affiliated with the Servicer, the
Transferor, any Subservicer or the Depositor. ____________________ shall be the
initial Custodian pursuant to the terms of the Custodial Agreement.
Cut-Off Date: With respect to the Initial Loans, the close of business on
______ ___, 199__. With respect to any Subsequent Loan, the date designated as
such in the related Subsequent Transfer Agreement.
DCR: Duff & ▇▇▇▇▇▇ Credit Rating Co. [ADD OR SUBSTITUTE DEFINITIONS FOR
OTHER RATING AGENCIES WHERE APPROPRIATE.]
Debt Consolidation Loan: A loan, the proceeds of which were primarily used
by the related Obligor for debt consolidation purposes or purposes other than to
finance property improvements.
Debt Instrument: The note or other evidence of indebtedness evidencing the
indebtedness of an Obligor under a Mortgage Loan.
Defaulted Mortgage Loan: With respect to any date of determination, any
Mortgage Loan, including without limitation any Liquidated Mortgage Loan,
incident to foreclosure, default or imminent default.
Defective Mortgage Loan: As defined in Section 3.06 hereof.
Deleted Mortgage Loan: As defined in Section 3.06 hereof.
Delinquent: A Mortgage Loan is "Delinquent" if any Monthly Payment due
thereon is not made by the close of business on the day such Monthly Payment is
scheduled to be paid. A Mortgage Loan is "30 days Delinquent" if such Monthly
Payment has not been received by the close of business on the corresponding day
of the month immediately succeeding the month in which such Monthly Payment was
due, or, if there is no such corresponding day (e.g., as when a 30-day month
follows a 31-day month in which a payment was due on the 31st day of such
month), then on the last day of such immediately succeeding month. The
determination of whether a Mortgage Loan is "60 days Delinquent," "90 days
Delinquent", etc., shall be done in like manner.
Delivery: When used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-105(1)(i) of the UCC and are
susceptible of physical delivery, transfer thereof to the Indenture
Trustee or its nominee or custodian by physical delivery to the Indenture
Trustee or its nominee or custodian endorsed to, or registered in the name
of, the Indenture Trustee or its nominee or custodian or endorsed in
blank, and, with respect to a certificated
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security (as defined in Section 8-102 of the UCC), transfer thereof (i) by
delivery of such certificated security endorsed to, or registered in the
name of, the Indenture Trustee or its nominee or custodian or endorsed in
blank to a financial intermediary (as defined in Section 8-313 of the UCC)
and the making by such financial intermediary of entries on its books and
records identifying such certificated securities as belonging to the
Indenture Trustee or its nominee or custodian and the sending by such
financial intermediary of a confirmation of the purchase of such
certificated security by the Indenture Trustee or its nominee or custodian
or (ii) by delivery thereof to a "clearing corporation" (as defined in
Section 8-102(3) of the UCC) and the making by such clearing corporation
of appropriate entries on its books reducing the appropriate securities
account of the transferor and increasing the appropriate securities
account of a financial intermediary by the amount of such certificated
security, the identification by the clearing corporation of the
certificated securities for the sole and exclusive account of the
financial intermediary, the maintenance of such certificated securities by
such clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by the Indenture Trustee or its
nominee or custodian of such securities and the making by such financial
intermediary of entries on its books and records identifying such
certificated securities as belonging to the Indenture Trustee or its
nominee or custodian (all of the foregoing, "Physical Property"), and, in
any event, any such Physical Property in registered form shall be in the
name of the Indenture Trustee or its nominee or custodian; and such
additional or alternative procedures as may hereafter become appropriate
to effect the complete transfer of ownership of any such Trust Account
Property (as defined herein) to the Indenture Trustee or its nominee or
custodian, consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any securities issued by the U.S. Treasury, FNMA
or FHLMC that are book-entry securities held through the Federal Reserve
System pursuant to federal book-entry regulations, the following
procedures, all in accordance with applicable law, including applicable
federal regulations and Articles 8 and 9 of the UCC: book-entry
registration of such Trust Account Property to an appropriate book-entry
account maintained with a Federal Reserve Bank by a financial intermediary
that is also a "depository" pursuant to applicable federal regulations and
issuance by such financial intermediary of a deposit advice or other
written confirmation of such book-entry registration to the Indenture
Trustee or its nominee or custodian of the purchase by the Indenture
Trustee or its nominee or custodian of such book-entry securities; the
making by such financial intermediary of entries in its books and records
identifying such book-entry securities held through the Federal Reserve
System pursuant to federal book-entry regulations as belonging to the
Indenture Trustee or its nominee or custodian and indicating that such
custodian holds such Trust Account Property solely as agent for the
Indenture Trustee or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Trust Account Property to the
Indenture Trustee or its nominee or custodian, consistent with changes in
applicable law or regulations or the interpretation thereof; and
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(c) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of the
issuer thereof in the name of the financial intermediary, the sending of a
confirmation by the financial intermediary of the purchase by the
Indenture Trustee or its nominee or custodian of such uncertificated
security, the making by such financial intermediary of entries on its
books and records identifying such uncertificated security as belonging to
the Indenture Trustee or its nominee or custodian.
Depositor: _______________________, a ____________________, and any
successor thereto.
Determination Date: With respect to any Distribution Date, the fourteenth
calendar day of the month in which such Distribution Date occurs or if such day
is not a Business Day, the immediately preceding Business Day.
Distribution Date: The 25th day of any month or, if such 25th day is not a
Business Day, the first Business Day immediately following such day, commencing
in ________ 199_ [SPECIFY THE MONTH IMMEDIATELY SUCCEEDING THE MONTH IN WHICH
THE CLOSING DATE OCCURS].
Distribution Statement: As defined in Section 6.01.
DTC: The Depository Trust Company.
Due Date: The day of the month on which the Monthly Payment is due from
the Obligor on a Mortgage Loan.
Due Period: With respect to any Determination Date or Distribution Date
(other than the first such date), the calendar month immediately preceding the
month in which such Determination Date or Distribution Date occurs, as the case
may be. With respect to the first Determination Date or the first Distribution
Date, the period from _______ __, 199_ through _______ ___, 199_. [SPECIFY
PERIOD RUNNING FROM THE DAY AFTER THE CLOSING DATE TO THE END OF THE MONTH IN
WHICH THE CLOSING DATE OCCURS.]
Eligible Account: At any time, an account which is any of the following:
(i) an account maintained with a depository institution (A) the long-term debt
obligations of which are at such time rated by each Rating Agency in one of
their two highest long-term rating categories or (B) the short-term debt
obligations of which are then rated by each Rating Agency in their highest
short-term rating category; (ii) an account or accounts the deposits in which
are fully insured by either the Bank Insurance Fund or the Savings Association
Insurance Fund of the FDIC; (iii) a trust account (which shall be a "segregated
trust account") maintained with the corporate trust department of a federal or
state chartered depository institution or trust company with trust powers and
acting in its fiduciary capacity for the benefit of the Indenture Trustee and
the Issuer, which depository institution or trust company shall have capital and
surplus of not less than $50,000,000; or (iv) an account that will not cause any
Rating Agency to downgrade or withdraw its then-current rating(s) assigned to
the Notes, as evidenced in writing by such Rating Agency. (Each reference in
this
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definition of "Eligible Account" to the Rating Agency shall be construed as
a reference to Standard & Poor's and DCR [ADD OR SUBSTITUTE RATING AGENCIES AS
APPROPRIATE].)
Eligible Servicer: A Person who is qualified to act as Servicer of the
Mortgage Loans under applicable federal and state laws and regulations.
Event of Default: As described in Section 10.01 hereof.
Excess Spread: With respect to any Distribution Date, the excess of (a)
the Available Distribution Amount over (b) the Regular Distribution Amount.
FDIC: The Federal Deposit Insurance Corporation and any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation and any successor
thereto.
FICO Score: The credit evaluation scoring methodology developed by Fair,
▇▇▇▇▇ and Company.
FNMA: The Federal National Mortgage Association and any successor thereto.
Foreclosure Property: Any real property securing a Mortgage Loan that has
been acquired by the Servicer through foreclosure, deed in lieu of foreclosure
or similar proceedings in respect of the related Mortgage Loan.
Funding Period: The period commencing on the Closing Date and ending on
the earliest to occur of (i) the date on which the amount on deposit in the
Pre-Funding Account (exclusive of any Pre-Funding Earnings) is less than
$100,000, and (ii) the close of business on ________ ___, 199___ [SPECIFY THE
DATE FOR THE LAST DAY OF THE THIRD MONTH SUCCEEDING THE MONTH IN WHICH THE
CLOSING DATE OCCURS].
Mortgage Loan: Any Debt Consolidation Loan or Combination Loan that is
included in the Mortgage Loan Pool. As applicable, a Mortgage Loan shall be
deemed to refer to the related Debt Instrument, Mortgage and any related
Foreclosure Property. The term "Mortgage Loan" includes any Subsequent Loan.
Mortgage Loan File: As defined in Section 2.05(a).
Mortgage Loan Interest Rate: The fixed annual rate of interest borne by a
Debt Instrument, as shown on the related Mortgage Loan Schedule as the same may
be modified by the Servicer in accordance with Section 4.01(c) hereof.
Mortgage Loan Pool: The pool of Mortgage Loans.
Mortgage Loan Purchase Agreement: The loan purchase agreement between the
Transferor, as seller, the Servicer and the Depositor, as purchaser, dated as of
_______ ___, 199__.
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Mortgage Loan Schedule: The schedule of Mortgage Loans attached hereto as
Exhibit A, as amended or supplemented from time to time, such schedule
identifying each Mortgage Loan by address (including the related state and zip
code) of the related Mortgaged Property, if any, and the name(s) of each Obligor
and setting forth as to each Mortgage Loan the following information: (i) the
Principal Balance as of the Cut-Off Date, (ii) the account number, (iii) the
original principal amount, (iv) the Due Date, (v) the Mortgage Loan Interest
Rate, (vi) the first date on which a Monthly Payment is due under the related
Debt Instrument, (vii) the Monthly Payment, (viii) the maturity date of the
related Debt Instrument, and (ix) the remaining number of months to maturity as
of the Cut-Off Date.
HUD: The United States Department of Housing and Urban Development and any
successor thereto.
Indenture: The Indenture, dated as of _____ ___, 199___, between the
Issuer and the Indenture Trustee.
Indenture Trustee: _________________________, a ______________________, as
Indenture Trustee under the Indenture and this Agreement, acting on behalf of
the Noteholders, or any successor indenture trustee under the Indenture or this
Agreement.
Indenture Trustee Fee: The annual fee payable to the Indenture Trustee,
calculated and payable monthly on each Distribution Date pursuant to Section
5.01(c)(i), equal to __% per annum percentage of the Pool Principal Balance as
of the first day of the immediately preceding Due Period.
Independent: When used with respect to any specified Person, such Person
that (i) is in fact independent of Cityscape Corp., the Servicer, the Depositor
or any of their respective affiliates, (ii) does not have any direct financial
interest in or any material indirect financial interest in any of Cityscape
Corp., the Servicer, the Depositor or any of their respective affiliates and
(iii) is not connected with any of Cityscape Corp., the Servicer, the Depositor
or any of their respective affiliates, as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of Cityscape
Corp., the Servicer, the Depositor or any of their respective affiliates merely
because such Person is the beneficial owner of 1% or less of any class of
securities issued by Cityscape Corp., the Servicer, the Depositor or any of
their respective affiliates, as the case may be.
Independent Accountants: A firm of nationally recognized certified public
accountants which is Independent.
Insurance Proceeds: With respect to any Mortgage Loan, the proceeds paid
to the Servicer by any insurer pursuant to any insurance policy covering a
Mortgage Loan, Mortgaged Property or Foreclosure Property or any other insurance
policy that relates to a Mortgage Loan, net of any expenses which are incurred
by the Servicer in connection with the collection of such proceeds and not
otherwise reimbursed to the Servicer, other than proceeds of any insurance
policy that are to be applied to the restoration or repair of the Mortgaged
Property or released to the Obligor in
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accordance with customary mortgage loan servicing procedures applicable to the
respective loan type, including Debt Consolidation Loans and Combination Loans.
Interest Determination Date: With respect to any Accrual Period, the
second London Business Day preceding the commencement of such Accrual Period.
Issuer: Cityscape Loan Trust 199_-_.
Liquidated Mortgage Loan: With respect to any date of determination, any
Mortgage Loan or Foreclosure Property in respect of a Mortgage Loan as to which
the Servicer has determined that all amounts which it reasonably and in good
faith expects to collect have been recovered from or on account of such Mortgage
Loan or the related Foreclosure Property; provided that, in any event, such
Mortgage Loan or the related Foreclosure Property shall be deemed uncollectible
and therefore deemed a Liquidated Mortgage Loan upon the earlier of: (a) the
liquidation of the related Foreclosure Property, (b) the determination by the
Servicer in accordance with customary servicing practices that no further
amounts are collectible from the Mortgage Loan and any related Mortgaged
Property, or (c) the date on which any portion of a Monthly Payment on any
Mortgage Loan is in excess of 180 consecutive days past due.
Liquidation Proceeds: With respect to a Liquidated Mortgage Loan, any cash
amounts received in connection with the liquidation of such Liquidated Mortgage
Loan, whether through trustee's sale, foreclosure sale or other disposition, and
any other amounts required to be deposited in the Collection Account pursuant to
Section 4.02 or 4.04, in each case, other than Insurance Proceeds and Released
Mortgaged Property Proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan as of a given date,
the fraction, expressed as a percentage, the numerator of which is the Principal
Balance of the related Mortgage Loan as of such date and the denominator of
which is the value of the related Mortgaged Property, as established by the
latest appraisal.
London Business Day: Any day on which banks in the City of London or New
York are open and conducting transactions in United States dollars.
Loss Reimbursement Deficiency: With respect to any Distribution Date and
the Class [ ] Notes [INSERT ADDITIONAL CLASSES OF NOTES AS APPLICABLE], the
amount of Allocable Loss Amounts applied to the reduction of the Class Principal
Balance of such Class and not reimbursed pursuant to Section 5.01 hereof as of
such Distribution Date plus interest accrued thereon during the related Accrual
Period at the related Note Interest Rate.
Mandatory Redemption Date: The Distribution Date immediately following the
end of the Funding Period.
Majority Residual Interestholders: The holder, or holders in aggregate, of
a Residual Interest representing a Percentage Interest in excess of 50% in
amount.
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Majority Securityholders: The holder or holders of in excess of 50% of the
Class Principal Balance of all Classes of Notes.
Maximum Collateral Amount: The sum of the Cut-Off Date Pool Principal
Balance and the Principal Balances of all Subsequent Loans as of the applicable
Cut-Off Dates.
Monthly Payment: The scheduled monthly payment of principal and/or
interest required to be made by an Obligor on the related Mortgage Loan, as set
forth in the related Debt Instrument.
Mortgage: The mortgage, deed of trust or other security instrument
creating a lien in accordance with applicable law on a Mortgaged Property to
secure the Debt Instrument which evidences a secured Mortgage Loan.
Mortgaged Property: The real property encumbered by the Mortgage which
secures the Debt Instrument evidencing a secured Mortgage Loan.
Mortgaged Property States: Each state in which any Mortgaged Property
securing a Mortgage Loan is located as set forth in the Mortgage Loan Schedule.
Net Delinquency Calculation Amount: With respect to any Distribution Date,
beginning with the sixth Distribution Date, the excess, if any, of (x) the
product of 2.5 and the Six-Month Rolling Delinquency Average over (y) the
aggregate of the amount of Excess Spread for each of the three preceding
Distribution Dates.
Net Liquidation Proceeds: With respect to any Distribution Date, any cash
amounts received from Liquidated Mortgage Loans during the related Due Period,
whether through trustee's sale, foreclosure sale, disposition of Mortgaged
Properties or otherwise (other than Insurance Proceeds and Released Mortgaged
Property Proceeds), and any other cash amounts received in connection with the
management of the Mortgaged Properties relating to Defaulted Loans, in each
case, net of any reimbursements to the Servicer made from such amounts for any
unreimbursed Servicing Compensation and Servicing Advances (including
Nonrecoverable Servicing Advances) made and any other fees and expenses paid in
connection with the foreclosure, conservation and liquidation of the related
Liquidated Mortgage Loans or Foreclosure Property pursuant to Sections 4.02 and
4.04 hereof.
Net Loan Losses: On each Distribution Date, the sum of
(A) with respect to the Mortgage Loans that become Liquidated Mortgage
Loans during the immediately preceding Due Period, an amount (but not less than
zero) determined as of the related Determination Date equal to:
(i) the aggregate uncollected Principal Balances of such Liquidated
Mortgage Loans as of the last day of such Due Period prior to the
application of any amounts included in clause (ii) below, minus
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(ii) the aggregate amount, with respect to such Liquidated Mortgage
Loans, of any recoveries attributable to principal from whatever source
received during any Due Period, including any Due Period subsequent to the
Due Period wherein such Mortgage Loan became a Liquidated Mortgage Loan
and including, without limitation, any Net Liquidation Proceeds, any
Insurance Proceeds, any Released Mortgaged Property Proceeds, any payments
from the related Obligor and any payments made pursuant to Section 3.06,
less the amount of any expenses incurred in connection with such
recoveries; and
(B) the aggregate Cram Down Losses during the related Due Period.
Net Loan Rate: With respect to each Mortgage Loan, the related Mortgage
Loan Interest Rate, less the rate at which the Servicing Fee is calculated.
Nonrecoverable Servicing Advance: (A) Any Servicing Advance previously
made and not reimbursed from late collections, Liquidation Proceeds, Insurance
Proceeds, Post Liquidation Proceeds or the Released Mortgaged Property Proceeds,
or (B) a Servicing Advance proposed to be made in respect of a Mortgage Loan or
Foreclosure Property, either of which, in the good faith business judgment of
the Servicer, as evidenced by an Officer's Certificate delivered to the
Indenture Trustee, would not be ultimately recoverable.
Note: Any of the Senior Notes and the Class [ ] Notes. [ADD ANY ADDITIONAL
CLASSES OF NOTES WHERE APPROPRIATE.]
Note Distribution Account: The account established and maintained pursuant
to Section 5.01(a)(2).
Noteholder: A holder of a Note.
Noteholders' Interest Distribution Amount: With respect to any
Distribution Date, the sum of the Senior Noteholders' Interest Distribution
Amount and the Class [ ] Noteholders' Interest Distribution Amount for such
Distribution Date. [ADD ANY ADDITIONAL CLASSES OF NOTES WHERE APPROPRIATE.]
Note Interest Rate: With respect to each Class of Notes and any
Distribution Date, the per annum rate of interest payable to the holders of such
Class of Notes. The Note Interest Rates with respect to the Classes of Notes are
as follows:
Class A-[ ] Notes: [SPECIFY INTEREST RATE OR FORMULA
USED TO CALCULATED INTEREST RATE.]
Class [ ] Notes: [SPECIFY INTEREST RATE OR FORMULA
USED TO CALCULATED INTEREST RATE.]
[ADD ANY OTHER CLASSES OF NOTES AND THEIR CORRESPONDING INTEREST RATES AS
APPLICABLE.]
Obligor: Each obligor on a Debt Instrument.
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Officer's Certificate: A certificate delivered to the Indenture Trustee or
the Issuer signed by the President or a Vice President or an Assistant Vice
President of the Depositor, the Servicer or the Transferor, in each case, as
required by this Agreement.
[IF FLOATING-RATE NOTES ARE CONTEMPLATED, ADD: ONE-MONTH LIBOR: WITH
RESPECT TO ANY ACCRUAL PERIOD AND THE CLASS [ ] NOTES, THE RATE DETERMINED BY
THE INDENTURE TRUSTEE ON THE RELATED INTEREST DETERMINATION DATE ON THE BASIS OF
THE OFFERED RATES OF THE REFERENCE BANKS FOR ONE-MONTH UNITED STATES DOLLAR
DEPOSITS, AS SUCH RATES APPEAR ON TELERATE SCREEN 3750, AS OF 11:00 A.M. (LONDON
TIME) ON SUCH INTEREST DETERMINATION DATE. ON EACH INTEREST DETERMINATION DATE,
ONE-MONTH LIBOR FOR THE RELATED ACCRUAL PERIOD WILL BE ESTABLISHED BY THE
INDENTURE TRUSTEE AS FOLLOWS:
(i) IF ON SUCH INTEREST DETERMINATION DATE TWO OR MORE REFERENCE
BANKS PROVIDE SUCH OFFERED QUOTATIONS, ONE-MONTH LIBOR FOR THE RELATED
ACCRUAL PERIOD SHALL BE THE ARITHMETIC MEAN OF SUCH OFFERED QUOTATIONS
(ROUNDED UPWARDS IF NECESSARY TO THE NEAREST WHOLE MULTIPLE OF 1/16%).
(ii) IF ON SUCH INTEREST DETERMINATION DATE FEWER THAN TWO REFERENCE
BANKS PROVIDE SUCH OFFERED QUOTATIONS, ONE-MONTH LIBOR FOR THE RELATED
ACCRUAL PERIOD SHALL BE THE HIGHER OF (i) ONE-MONTH LIBOR AS DETERMINED ON
THE PREVIOUS INTEREST DETERMINATION DATE AND (ii) THE RESERVE INTEREST
RATE.]
Optimal Principal Balance: With respect to the Senior Notes [INSERT
ADDITIONAL CLASSES OF NOTES AS APPLICABLE], the Senior Optimal Principal Balance
[WITH RESPECT TO EACH ADDITIONAL CLASS OF NOTE TO WHICH OPTIMAL PRINCIPAL
BALANCE IS RELEVANT, INSERT THE DEFINED TERM FOR OPTIMAL PRINCIPAL BALANCE WITH
RESPECT TO SUCH CLASS OF NOTE].
Original Class Principal Balance: With respect to the Classes of
Securities, as follows: Class A-[ ]: $_____ and Class [ ]: $_____ [ADD
ADDITIONAL CLASSES OF NOTES AS APPROPRIATE].
Original Pool Principal Balance: $ _____________, which is the Pool
Principal Balance as of the Cut-Off Date.
Original Pre-Funded Amount: $ ______________.
Overcollateralization Amount: With respect to any Distribution Date, the
amount equal to the excess of (A) the sum of the Pool Principal Balance and the
Pre-Funded Amount, each as of the end of the preceding Due Period, over (B) the
aggregate of the Class Principal Balances of the Notes (after giving effect to
all distributions on the Classes of Securities and to the Residual Interest on
such Distribution Date).
Overcollateralization Deficiency Amount: With respect to any Distribution
Date, the excess, if any, of the Overcollateralization Target Amount over the
Overcollateralization Amount (such Overcollateralization Amount to be calculated
after giving effect to all prior distributions on the Classes of Securities and
to the Residual Interest on such Distribution Date pursuant to Section 5.01(d)
hereof).
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Overcollateralization Target Amount: (A) With respect to any Distribution
Date occurring prior to the Stepdown Date, an amount equal to the greater of (x)
8% of the Maximum Collateral Amount and (y) the Net Delinquency Calculation
Amount; (B) with respect to any other Distribution Date, an amount equal to the
greater of (x) 16% of the Pool Principal Balance as of the end of the related
Due Period and (y) the Net Delinquency Calculation Amount; provided, however,
that the Overcollateralization Target Amount shall in no event be less than
0.50% of the Maximum Collateral Amount.
Ownership Interest: As to any Security, any ownership or security interest
in such Security, including any interest in such Security as the holder thereof
and any other interest therein, whether direct or indirect, legal or beneficial,
as owner or as pledgee.
Owner Trustee: ______________________, as owner trustee under the Trust
Agreement, and any successor owner trustee under the Trust Agreement.
Owner Trustee Fee: The annual fee of $2,500, payable in equal monthly
installments to the Servicer, who shall in turn pay such $2,500 to the Owner
Trustee on the Distribution Date occurring in _______ each year during the term
of this Agreement, commencing in _____ 199___; provided, however, that the
initial Owner Trustee Fee shall be paid by the Transferor on the Closing Date.
Percentage Interest: As defined in the Trust Agreement.
Permitted Investments: Each of the following:
(1) obligations of, or guaranteed as to principal and interest by,
the United States or any agency or instrumentality thereof when such
obligations are backed by the full faith and credit of the United States;
(2) a repurchase agreement that satisfies the following criteria:
(1) the agreement must be between the Indenture Trustee and either (a)
primary dealers on the Federal Reserve reporting dealer list which are
rated in one of the two highest categories for long-term unsecured debt
obligations by at least one Rating Agency, or (b) banks rated in one of
the two highest categories for long-term unsecured debt obligations by at
least one Rating Agency; and (2) the written agreement must include the
following: (a) securities which are acceptable for transfer and are either
(I) direct U.S. government obligations, or (II) obligations of a federal
agency that are backed by the full faith and credit of the U.S.
government, or FNMA or FHLMC; (b) a term no greater than 60 days for any
repurchase transaction; (c) the collateral must be delivered to the
Indenture Trustee or a third party custodian acting as agent for the
Indenture Trustee by appropriate book entries and confirmation statements
and must have been delivered before or simultaneous with payment (i.e.,
perfection by possession of certificated securities); and (d) the
securities sold thereunder must be valued weekly, marked-to-market at the
current market price plus accrued interest, and the value of the
collateral must be equal to at least 104% of the amount of cash
transferred by the Indenture Trustee under the repurchase agreement, and
if the value of the securities held as collateral declines to an amount
below 104% of the cash
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transferred by the Indenture Trustee plus accrued interest (i.e., a margin
call), then additional cash and/or acceptable securities must be
transferred to the Indenture Trustee to satisfy such margin call;
provided, however, that if the securities used as collateral are
obligations of FNMA or FHLMC, then the value of the securities held as
collateral must equal at least 105% of the cash transferred by the
Indenture Trustee under such repurchase agreement;
(3) certificates of deposit, time deposits and bankers acceptances
of any United States depository institution or trust company incorporated
under the laws of the United States or any state, including the Indenture
Trustee; provided that the debt obligations of such depository institution
or trust company at the date of the acquisition thereof have been rated by
at least one Rating Agency in one of its two highest long-term rating
categories;
(4) deposits, including deposits with the Indenture Trustee, which
are fully insured by the Bank Insurance Fund or the Savings Association
Insurance Fund of the FDIC, as the case may be;
(5) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof, including corporate affiliates
of the Indenture Trustee, which at the date of acquisition is rated by at
least one Rating Agency in its highest short-term rating category and
which has an original maturity of not more than 365 days;
(6) debt obligations rated by at least one Rating Agency at the time
at which the investment is made in its highest long-term rating category
(or those investments specified in (3) above with depository institutions
which have debt obligations rated by at least one Rating Agency in one of
its two highest long-term rating categories);
(7) money market funds which are rated by at least one Rating
Agency at the time at which the investment is made in its highest
long-term rating category, any such money market funds which provide for
demand withdrawals being conclusively deemed to satisfy any maturity
requirements for Permitted Investments set forth in this Agreement; or
(8) any other demand, money market or time deposit obligation,
security or investment as may be acceptable to each Rating Agency at the
time at which the investment is made;
provided, however, that no instrument described in the foregoing subparagraphs
shall evidence either the right to receive (a) only interest with respect to the
obligations underlying such instrument or (b) both principal and interest
payments derived from obligations underlying such instrument where the interest
and principal payments with respect to such instrument provide a yield to
maturity at par greater than 120% of the yield to maturity at par of the
underlying obligations; provided, further, that no instrument described in the
foregoing subparagraphs may be purchased at a price greater than par if such
instrument may be prepaid or called at a price less than its purchase price
prior to stated maturity. Any loans repurchased after the end of a Due Period
and prior to the following Determination Date shall be deemed to have been
repurchased during such Due Period.
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Each reference in this definition of "Permitted Investments" to the Rating
Agency shall be construed, in the case of each subparagraph above referring to
each Rating Agency, as a reference to each of Standard & Poor's and DCR [ADD OR
SUBSTITUTE OTHER RATING AGENCIES WHERE APPROPRIATE].
Person: Any individual, corporation, partnership, joint venture, limited
liability company, association, joint-stock company, trust, national banking
association, unincorporated organization or government or any agency or
political subdivision thereof.
Physical Property: As defined in the definition of "Delivery" above.
Pool Principal Balance: With respect to any date of determination, the
aggregate Principal Balances of the Mortgage Loans as of the end of the
preceding Due Period, provided, however, that the Pool Principal Balance as of
the end of the Due Period relating to the Distribution Date on which the
Termination Price is to be paid will be deemed to have been equal to zero as of
such date.
Post Liquidation Proceeds: As defined in Section 4.02(b).
Pre-Funded Percentage: With respect to any Class of Notes and a
Distribution Date, the percentage obtained from the fraction, the numerator of
which is the Class Principal Balance of such Class of Notes on the Closing Date
and the denominator of which is the Maximum Collateral Amount.
Pre-Funding Account: The account created and maintained by the Indenture
Trustee pursuant to Section 5.05.
Pre-Funding Amount: With respect to any date, the amount on deposit in the
Pre-Funding Account (net of any Pre-Funding Earnings).
Pre-Funding Earnings: With respect to the Distribution Date in _____ 199__
[INSERT THE NAME OF THE MONTH IMMEDIATELY SUCCEEDING THE MONTH IN WHICH THE
CLOSING DATE OCCURS], the actual investment earnings earned on amounts on
deposit in the Pre-Funding Account during the period from _______ ___, 199___
through and including ______ ____, 199___ [SPECIFY END DATE OF THE MONTH IN
WHICH THE CLOSING DATE OCCURS]. With respect to the Distribution Date in
________ 199___ [SPECIFY THE SECOND MONTH SUCCEEDING THE MONTH IN WHICH THE
CLOSING DATE OCCURS], the actual investment earnings earned on amounts on
deposit in the Pre-Funding Account during the period from _______ ____, 199___
through and including ______ ___, 199__ [SPECIFY THE DATES FOR FIRST AND LAST
DAYS OF THE MONTH IMMEDIATELY SUCCEEDING THE MONTH IN WHICH THE CLOSING DATE
OCCURS] (which amount shall be available on ______ ___, 199__). With respect to
the Distribution Date in ________ 199__ [SPECIFY THE THIRD MONTH SUCCEEDING THE
MONTH IN WHICH THE CLOSING DATE OCCURS], the actual investment earnings earned
on amounts on deposit in the Pre-Funding Account during the period from ________
___, 199__ through and including _______ __, 199__ [SPECIFY THE DATES FOR FIRST
AND LAST DAYS OF THE MONTH IN WHICH THE CLOSING DATE OCCURS] (which amount shall
be available on _________ ___, 199__).
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Pre-Funding Pro Rata Distribution Trigger: With respect to the
Distribution Date following the Due Period in which the termination of the
Funding Period occurs, a Pre-Funding Pro Rata Distribution Trigger will be
deemed to have occurred if, at such time, the Pre-Funded Amount was greater than
or equal to $100,000.
Principal Balance: With respect to any Mortgage Loan or related
Foreclosure Property, (i) at the Cut-Off Date, the outstanding unpaid principal
balance of the Mortgage Loan as of the Cut-Off Date and (ii) with respect to any
date of determination, the outstanding unpaid principal balance of the Mortgage
Loan as of the last day of the preceding Due Period (after giving effect to all
payments received thereon and the allocation of any Net Loan Losses [PURSUANT TO
CLAUSE (B) THEREOF] with respect thereto for any Defaulted Mortgage Loan which
relates to such Due Period), without giving effect to amounts received in
respect of such Mortgage Loan or related Foreclosure Property after such Due
Period; provided, however, that any Mortgage Loan that became a Liquidated
Mortgage Loan during the preceding Due Period shall have a Principal Balance of
zero. With respect to any Distribution Date, any Mortgage Loans repurchased in
the month following the end of the related Due Period but prior to the
Determination Date in such month shall be deemed to have been repurchased during
such related Due Period. [QUERY: WHY LIMIT TO CRAM DOWN LOSSES?]
Principal Prepayment: With respect to any Mortgage Loan and any Due
Period, any principal amount received on a Mortgage Loan in excess of the
principal portion of the Monthly Payment due in such Due Period.
Property: The property (real, personal or mixed) encumbered by the
Mortgage which secures the Debt Instrument evidencing a secured Mortgage Loan.
Purchase Price: As defined in Section 3.06 herein.
Qualified Substitute Mortgage Loan: A mortgage loan or mortgage loans
substituted for a Defective Mortgage Loan pursuant to Section 2.06 or 3.06,
which (i) has or have an interest rate or rates of not less than two percentage
points fewer and not more than two percentage points greater than the Mortgage
Loan Interest Rate for the Defective Mortgage Loan, (ii) matures or mature not
more than two years later than, and not more than two years earlier than, the
Defective Mortgage Loan (provided, however, that no such Qualified Substitute
Mortgage Loan shall mature later than the latest maturing Mortgage Loan in the
Trust as of the Closing Date), (iii) has or have a principal balance or
principal balances (after application of all payments received on or prior to
the date of substitution) equal to or less than the Principal Balance of the
Defective Mortgage Loan as of such date, (iv) has or have a lien priority equal
or superior to that of the Defective Mortgage Loan, (v) has or have a borrower
with a comparable credit grade classification to the credit grade classification
of the borrower with respect to the Deleted Mortgage Loans, including a FICO
Score that is no more than 10 points below that of such Deleted Mortgage Loan;
and (vi) complies or comply as of the date of substitution with each
representation and warranty set forth in Section 3.04 and is or are not more
than 29 days delinquent as of the date of substitution for such Deleted Mortgage
Loan. For purposes of determining whether multiple mortgage loans proposed to be
substituted for one or more Deleted Mortgage Loans pursuant to Section 2.06 or
3.06 are in fact
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"Qualified Substitute Mortgage Loans" as provided above, the criteria specified
in clauses (i) and (iii) above may be considered on an aggregate or weighted
average basis, rather than on a loan-by-loan basis (e.g., so long as the
weighted average Mortgage Loan Interest Rate of any loans proposed to be
substituted is not less than two percentage points fewer than and not more than
two percentage points greater than the Mortgage Loan Interest Rate for the
designated Deleted Mortgage Loan or Mortgage Loans, the requirements of clause
(i) above would be deemed satisfied).
Rating Agencies: Standard & Poor's and DCR [ADD OR SUBSTITUTE OTHER RATING
AGENCIES AS APPROPRIATE]. If, with respect to either such organization, neither
such organization nor a successor is any longer in existence, "Rating Agency"
shall mean a nationally recognized statistical rating organization or other
comparable person designated by the Issuer, notice of which designation shall
have been given to the Indenture Trustee, the Issuer and the Servicer.
Ratings: The ratings initially assigned to the Notes by the Rating
Agencies, as evidenced by letters from the Rating Agencies.
Record Date: With respect to each Distribution Date, the close of business
on the last Business Day of the month immediately preceding the month in which
such Distribution Date occurs.
[IF FLOATING RATE NOTES ARE CONTEMPLATED, ADD: REFERENCE BANKS: BANKERS
TRUST COMPANY, ▇▇▇▇▇▇▇'▇ BANK PLC, THE BANK OF TOKYO AND NATIONAL WESTMINSTER
BANK PLC; PROVIDED THAT IF ANY OF THE FOREGOING BANKS ARE NOT SUITABLE TO SERVE
AS A REFERENCE BANK, THEN ANY LEADING BANKS SELECTED BY THE INDENTURE TRUSTEE
WHICH ARE ENGAGED IN TRANSACTIONS IN EURODOLLAR DEPOSITS IN THE INTERNATIONAL
EUROCURRENCY MARKET (i) WITH AN ESTABLISHED PLACE OF BUSINESS IN LONDON,
ENGLAND, (ii) WHO ARE NOT CONTROLLING, UNDER THE CONTROL OF OR UNDER COMMON
CONTROL WITH THE DEPOSITOR OR ANY AFFILIATE THEREOF, (iii) WHOSE QUOTATIONS
APPEAR ON TELERATE SCREEN 3750 ON THE RELEVANT INTEREST DETERMINATION DATE AND
(iv) WHO HAVE BEEN DESIGNATED AS SUCH BY THE TRUSTEE.]
Regular Distribution Amount: With respect to any Distribution Date, the
lesser of (a) the Available Distribution Amount and (b) the sum of (i) the
Noteholders' Interest Distribution Amount, (ii) the Regular Principal
Distribution Amount and (iii) if such Distribution Date relates to the Due
Period in which the Funding Period ended and at the termination of such Funding
Period a Pre-Funding Pro Rata Distribution Trigger occurred, the amount on
deposit in the Pre-Funding Account on such date.
Regular Principal Distribution Amount: On each Distribution Date, an
amount equal to the lesser of:
(A) the aggregate of the Class Principal Balances of the Classes of
Securities immediately prior to such Distribution Date; and
(B) the sum of (i) each scheduled payment of principal actually
collected by the Servicer in the related Due Period, (ii) all partial and
full principal prepayments applied by
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the Servicer during such related Due Period, (iii) the principal portion
of all Net Liquidation Proceeds, Insurance Proceeds and Released Mortgaged
Property Proceeds received during the related Due Period, (iv) that
portion of the Purchase Price, received prior to the related Determination
Date, that represents principal of the related Repurchased Mortgage Loan,
(v) the principal portion of any Substitution Adjustments required to be
deposited in the Collection Account as of the related Determination Date,
(vi) if such Distribution Date relates to the Due Period in which the
Funding Period ended and at the termination of such Funding Period a
Pre-Funding Pro Rata Distribution Trigger did not occur, the amount on
deposit in the Pre-Funding Account on such date and (vii) on the
Distribution Date on which the Trust is to be terminated pursuant to
Section 11.02 hereof, that portion of the Termination Price to be applied
to the payment of principal of the Securities.
Released Mortgaged Property Proceeds: With respect to any secured Mortgage
Loan, proceeds received by the Servicer in connection with (i) a taking of an
entire Mortgaged Property by exercise of the power of eminent domain or
condemnation or (ii) any release of part of the Mortgaged Property from the lien
of the related Mortgage, whether by partial condemnation, sale or otherwise;
which in either case are not released to the Obligor in accordance with
applicable law, Accepted Servicing Procedures and this Agreement.
Reserve Interest Rate: With respect to any Interest Determination Date,
the rate per annum that the Indenture Trustee determines to be either (i) the
arithmetic mean (rounded upwards if necessary to the nearest whole multiple of
1/16%) of the one-month United States dollar lending rates which New York City
banks selected by the Indenture Trustee are quoting on the relevant Interest
Determination Date to the principal London offices of leading banks in the
London interbank market or (ii) in the event that the Indenture Trustee can
determine no such arithmetic mean, the lowest one-month United States dollar
lending rate which New York City banks selected by the Indenture Trustee are
quoting on such Interest Determination Date to leading European banks.
Residual Interest: The interest which represents (i) the right to the
amount remaining, if any, after all prior distributions have been made under
this Agreement, the Indenture and the Trust Agreement on each Distribution Date
and (ii) certain other rights to receive amounts hereunder and under the Trust
Agreement.
Residual Interest Instrument: As defined in the Trust Agreement.
Responsible Officer: When used with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Secretary, Assistant Secretary or
any other officer of the Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject. When used with respect to the Issuer, any officer in the
Corporate Trust Administration Department of the Owner Trustee with direct
responsibility for the administration of the Trust Agreement and this Agreement
on behalf of the Issuer. When used with respect to the Depositor, the
Transferor, the Servicer, or the Custodian,
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then the President or any Vice President, Assistant Vice President, or any
Secretary or Assistant Secretary.
Securities: The Notes.
Securityholder: A holder of a Note.
Senior Noteholders' Interest Carry-Forward Amount: With respect to any
Distribution Date, the excess of (A) the Senior Noteholders' Monthly Interest
Distribution Amount for the preceding Distribution Date and any outstanding
Senior Noteholders' Interest Carry-Forward Amount for preceding Distribution
Dates, over (B) the amount in respect of interest that was actually distributed
to such Notes on such preceding Distribution Date.
Senior Noteholders' Interest Distribution Amount: With respect to any
Distribution Date, the sum of the Senior Noteholders' Monthly Interest
Distribution Amount for such Distribution Date and the Senior Noteholders'
Interest Carry-Forward Amount for such Distribution Date.
Senior Noteholders' Monthly Interest Distribution Amount: With respect to
each Distribution Date (other than the first Distribution Date) and the Classes
of Senior Notes, the aggregate amount of interest accrued during the related
Accrual Period at the respective Note Interest Rates on the respective Class
Principal Balances of such Classes immediately preceding such Distribution Date.
Senior Notes: The Class A-[ ] Notes [ADD ADDITIONAL CLASSES OF NOTES WHERE
APPROPRIATE].
Senior Optimal Principal Balance: With respect to any Distribution Date
prior to the Stepdown Date, zero; with respect to any other Distribution Date,
an amount equal to the Pool Principal Balance as of the preceding Determination
Date minus the greater of (a) the sum of (1) 47.0% of the Pool Principal Balance
as of the preceding Determination Date and (2) the Overcollateralization Target
Amount for such Distribution Date (without giving effect to the proviso in the
definition thereof) and (b) 0.50% of the Maximum Collateral Amount; provided,
however, that the Senior Optimal Principal Balance shall never be less than zero
or greater than the aggregate Note Principal Balance of the Senior Notes as of
the Closing Date.
Series or Series 199 - : Cityscape Mortgage Loan Asset Backed Notes,
Series 199_-_.
Servicer: Cityscape, in its capacity as the servicer hereunder, or any
successor appointed as herein provided.
Servicer's Fiscal Year: January 1st through December 31st of each year.
Servicer Mortgage Loan File: In respect of each Mortgage Loan, all
documents customarily included in the servicer's loan file for the related type
of Mortgage Loan in accordance with the servicing standard set forth in Section
4.01.
Servicer Remittance Report: The monthly report described in Section
6.01(a).
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Servicing Advances: Subject to Section 4.01(b), all reasonable, customary
and necessary "out of pocket" costs and expenses advanced or paid by the
Servicer with respect to the Mortgage Loans in accordance with the performance
by the Servicer of its servicing obligations hereunder, including, but not
limited to, the costs and expenses for (i) the preservation, restoration and
protection of the Mortgaged Property, including without limitation advances in
respect of real estate taxes and assessments, (ii) any collection, enforcement
or judicial proceedings, including without limitation foreclosures, collections
and liquidations pursuant to Section 4.02, (iii) the conservation, management
and sale or other disposition of a Foreclosure Property pursuant to Section
4.04, (iv) the preservation of the security for a Mortgage Loan if any
lienholder under a Superior Lien has accelerated or intends to accelerate the
obligations secured by such Superior Lien pursuant to Section 4.06; provided,
however, that such Servicing Advances are reimbursable to the Servicer on
account of late collections as set forth in Section 5.01(b)(3)(iii) or, to the
extent that such Servicing Advances constitute Nonrecoverable Servicing
Advances, from any amounts on deposit in the Collection Account.
Servicing Compensation: The Servicing Fee and other amounts to which the
Servicer is entitled pursuant to Sections 7.01 and 7.03.
Servicing Fee: As to each Mortgage Loan (including any Mortgage Loan that
has been foreclosed and has become a Foreclosure Property, but excluding any
Liquidated Mortgage Loan), the fee payable monthly to the Servicer on each
Distribution Date, which shall be the (i) product of 0.50% (fifty (50) basis
points) and the Principal Balance of such Mortgage Loan as of the beginning of
the immediately preceding Due Period (ii) divided by twelve (12). The Servicing
Fee is inclusive of any servicing fees owed or payable to any Subservicer, which
fees shall be paid from the Servicing Fee.
Servicing Officer: Any officer of the Servicer or Subservicer involved in,
or responsible for, the administration and servicing of the Mortgage Loans whose
name and specimen signature appears on a list of servicing officers annexed to
an Officer's Certificate furnished by the Servicer or the Subservicer,
respectively, to the Issuer and the Indenture Trustee, as such list may from
time to time be amended.
Six-Month Rolling Delinquency Average: With respect to any Distribution
Date, the average of the applicable 60-Day Delinquency Amounts for each of the
six immediately preceding Due Periods, where the 60-Day Delinquency Amount for
any Due Period is the aggregate of the Principal Balances of (i) all Loans that
are sixty (60) or more days delinquent, (ii) all Loans that are in foreclosure
and (iii) all Foreclosure Property, each as of the end of such Due Period.
Standard & Poor's: Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto. [ADD OR SUBSTITUTE
DEFINITION FOR OTHER RATING AGENCIES WHERE APPROPRIATE]
Stepdown Date: The first Distribution Date occurring after ____________
___ as to which all of the following conditions exist:
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(1) the Pool Principal Balance has been reduced to an amount less
than or equal to 50% of the Maximum Collateral Amount;
(2) the Net Delinquency Calculation Amount is less than 8% of the
Original Pool Principal Balance; and
(3) the aggregate Class Principal Balance of the Senior Notes (after
giving effect to distributions of principal on such Distribution Date)
will be reduced on such Distribution Date (such determination to be made
by the Indenture Trustee prior to making actual distributions on such
Distribution Date) to the excess of (i) the Pool Principal Balance as of
the preceding Determination Date over (ii) the greater of (a) the sum of
(1) 47.0% of the Pool Principal Balance as of the preceding Determination
Date and (2) the Overcollateralization Target Amount for such Distribution
Date (such Overcollateralization Target Amount to be calculated for this
purpose solely pursuant to clause (B) in the definition thereof and
without giving effect to clause (A) or the proviso in the definition
thereof) and (b) 0.50% of the Maximum Collateral Amount.
Subsequent Cut-Off Date Deposit: With respect to any Subsequent Transfer
Date and any Subsequent Loan which is transferred to the Trust during any month
and which does not have a Monthly Payment due until the second Due Period
following such month, an amount equal to the product of (a) the Loan Balance of
such Subsequent Loan on the related Cut-Off Date and (b) one-twelfth of the Net
Loan Rate on such Subsequent Loan.
Subsequent Loans: The Mortgage Loans sold to the Trust for inclusion
pursuant to Section 2.07 of this Agreement and the applicable Subsequent
Transfer Agreement, which shall be listed on the loan schedule attached to such
Subsequent Transfer Agreement.
Subsequent Transfer Agreement: Each Subsequent Transfer Agreement executed
by the Owner Trustee, Indenture Trustee and Transferor, substantially in the
form in Exhibit E hereto, by which Subsequent Loans are sold and assigned to the
Trust.
Subsequent Transfer Date: The date specified in each Subsequent Transfer
Agreement; provided, however, that in no event shall there be more than three
(3) such Subsequent Transfer Agreements.
Subservicer: Any Person with whom the Servicer has entered into a
Subservicing Agreement and who is an Eligible Servicer and satisfies any
requirements set forth in Section 4.07(a) in respect of the qualifications of a
Subservicer.
Subservicing Account: An account established by a Subservicer pursuant to
a Subservicing Agreement, which account must be an Eligible Account.
Subservicing Agreement: Any agreement between the Servicer and any
Subservicer relating to subservicing and/or administration of any or all
Mortgage Loans, as provided in Section 4.07(a), copies of which shall be made
available, along with any modifications thereto, to the Issuer and the Indenture
Trustee.
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Substitution Adjustment: As to any date on which a substitution occurs
pursuant to Sections 2.06 or 3.06, the amount, if any, by which (a) the sum of
the aggregate principal balance (after application of principal payments
received on or before the date of substitution) of any Qualified Substitute
Mortgage Loans as of the date of substitution and any accrued and unpaid
interest thereon to the date of substitution, is less than (b) the aggregate of
the Principal Balances, together with accrued and unpaid interest thereon to the
date of substitution, of the related Defective Mortgage Loans.
Superior Lien: With respect to any Mortgage Loan which is secured by a
lien other than a first priority lien, the mortgage loan(s) relating to the
corresponding Mortgaged Property having a superior priority lien.
Termination Price: As of any date of determination, an amount equal to the
sum of the following items, without duplication: (i) the then outstanding
Principal Balances of the Mortgage Loans plus all accrued and unpaid interest
thereon, (ii) any Trust Fees and Expenses due and unpaid on such date and (iii)
any unreimbursed Servicing Advances or any Nonrecoverable Servicing Advances.
Transferor: ______________________, in its capacity as the transferor
hereunder.
Trust: The Issuer.
Trust Account Property: The Trust Accounts, all amounts and investments
held from time to time in any Trust Account and all proceeds of the foregoing.
Trust Accounts: The Note Distribution Account, the Certificate
Distribution Account, the Collection Account, the Pre-Funding Account and the
Capitalized Interest Account.
Trust Agreement: The Trust Agreement dated as of __________, 199_, among
the Depositor, the Company, the Co-Owner Trustee and the Owner Trustee.
Trust Estate: The assets subject to this Agreement, the Trust Agreement
and the Indenture and assigned to the Trust, which assets consist of: (i) such
Mortgage Loans as from time to time are subject to this Agreement, as listed in
the Mortgage Loan Schedule as the same may be amended or supplemented from time
to time, including the addition of Subsequent Loans, the removal of Deleted
Mortgage Loans and the addition of Qualified Substitute Mortgage Loans, together
with the Servicer Mortgage Loan Files and the Trustee Mortgage Loan Files
relating thereto and all proceeds thereof, (ii) all payments in respect of
interest received with respect to the Mortgage Loans on or after the Cut-Off
Date and all payments received with respect to principal on or after the Cut-Off
Date, (iii) such assets as from time to time are identified as Foreclosure
Property, (iv) such assets and funds as are from time to time deposited in the
Collection Account, the Note Distribution Account and the Certificate
Distribution Account, including amounts on deposit in such accounts which are
invested in Permitted Investments, (v) the Issuer's rights under all insurance
policies with respect to the Mortgage Loans, (vi) any Insurance Proceeds, (vii)
Net Liquidation Proceeds, Post Liquidation Proceeds and Released Mortgaged
Property Proceeds, (viii) all right, title and interest of the Servicer and the
Transferor in and to the rights and obligations of
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any Subservicer, pursuant to any Subservicing Agreement and (ix) all rights,
title and interest of the Depositor in and to the obligations of the Transferor
under the Mortgage Loan Purchase Agreement in which the Depositor acquired the
Mortgage Loans from the Transferor.
Trust Fees and Expenses: As of each Distribution Date, an amount equal to
the Servicing Compensation, the Indenture Trustee Fee and the Owner Trustee Fee.
Trustee Mortgage Loan File: As defined in Section 2.05(d).
Underwriters: Greenwich Capital Markets, Inc. and ____________________.
Uninsured Cause: Any cause of damage to a Mortgaged Property such that the
complete restoration of such property is not fully reimbursable by the hazard
insurance policies required to be maintained pursuant to this Agreement.
Section 1.02 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined herein have
the meanings assigned to them in the Indenture and the Trust Agreement.
(b) 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.
(c) 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.
(d) 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; Article, Section, Schedule and
Exhibit references contained in this Agreement are references to Articles,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" shall mean "including without limitation."
(e) 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 to the feminine and neuter genders of such terms.
(f) 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
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agreements or instruments) references to all attachments thereto and instruments
incorporated therein.
(g) References to a "Person" are also to its permitted successors and
assigns.
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ARTICLE II.
CONVEYANCE OF THE MORTGAGE LOANS
Section 2.01 Conveyance of the Mortgage Loans.
(a) As of the Closing Date, in consideration of the Issuer's delivery of
the Notes and Residual Interest Instruments to the Depositor, or its designee
upon the order of the Depositor, the Depositor, as of the Closing Date and
concurrently with the execution and delivery hereof, does hereby sell, transfer,
assign, set over and otherwise convey to the Trust, without recourse, but
subject to the other terms and provisions of this Agreement, all of the right,
title and interest of the Depositor in and to the Trust Estate. The foregoing
sale, transfer, assignment, set over and conveyance does not and is not intended
to result in a creation or an assumption by the Trust of any obligation of the
Depositor, the Transferor or any other person in connection with the Trust
Estate or under any agreement or instrument relating thereto, except as
specifically set forth herein.
(b) As of the Closing Date, the Issuer acknowledges the conveyance to it
of the Trust Estate, including all right, title and interest of the Depositor in
and to the Trust Estate, receipt of which is hereby acknowledged by the Issuer.
Concurrently with such delivery and in exchange therefor, the Issuer has pledged
the Trust Estate to the Indenture Trustee, and the Indenture Trustee, pursuant
to the written instructions of the Issuer, has executed and caused to be
authenticated and delivered the Notes to the Depositor, or its designee upon the
order of the Issuer. In addition, concurrently with such delivery and in
exchange therefor, the Owner Trustee, pursuant to the instructions of the
Depositor, has executed (not in its individual capacity, but solely as Owner
Trustee on behalf of the Issuer) and caused to be authenticated and delivered
the Residual Interest Instruments to the Depositor or its designee, upon the
order of the Depositor.
Section 2.02 [RESERVED].
Section 2.03 Ownership and Possession of Mortgage Loan Files.
Upon the issuance of the Securities, with respect to each of the Mortgage
Loans, the ownership of the related Debt Instrument and Mortgage and the
contents of the related Servicer Mortgage Loan File and the Trustee Mortgage
Loan File shall be vested in the Owner Trustee and the Co-Owner Trustee and
pledged to the Indenture Trustee for the benefit of the Securityholders,
although possession of the Servicer Mortgage Loan Files (other than items
required to be maintained in the Trustee Mortgage Loan Files) on behalf of and
for the benefit of the Securityholders shall remain with the Servicer as
contemplated in Section 2.06, and the Custodian shall take possession of the
Trustee Mortgage Loan Files as contemplated in Section 2.05.
Section 2.04 Books and Records.
The sale of each Mortgage Loan shall be reflected on the Depositor's or
the Transferor's, as the case may be, balance sheets and other financial
statements as a sale of assets by the Depositor or the Transferor, as the case
may be, under generally accepted accounting principles. Each of the Servicer and
the Custodian shall be responsible for maintaining, and shall maintain, a
complete set
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of books and records for each Mortgage Loan, which shall be clearly marked to
reflect the ownership of each Mortgage Loan by the Owner Trustee and the
Co-Owner Trustee and pledged to the Indenture Trustee for the benefit of the
Securityholders.
It is the intention of the parties hereto that the transfers and
assignments contemplated by this Agreement shall constitute a sale of the
Mortgage Loans and the other property specified in Section 2.01(a) from the
Depositor to the Trust, and such property shall not be property of the
Depositor. If the assignment and transfer of the Mortgage Loans and the other
property specified in this Section 2.01(a) to the Owner Trustee and Co-Owner
Trustee pursuant to this Agreement or the conveyance of the Mortgage Loans or
any of such other property to the Owner Trustee and Co-Owner Trustee is held or
deemed not to be a sale or is held or deemed to be a pledge of security for a
loan, the Depositor intends that the rights and obligations of the parties shall
be established pursuant to the terms of this Agreement and that, in such event,
(i) the Depositor shall be deemed to have granted and does hereby grant to the
Owner Trustee and Co-Owner Trustee a first priority security interest in the
entire right, title and interest of the Depositor in and to the Mortgage Loans
and all other property conveyed to the Owner Trustee and Co-Owner Trustee
pursuant to Section 2.01(a) and all proceeds thereof, and (ii) this Agreement
shall constitute a security agreement under applicable law. Within five (5) days
after the Closing Date, the Depositor shall cause to be filed UCC-1 financing
statements naming the Owner Trustee and Co-Owner Trustee as "secured parties"
and describing the Mortgage Loans and such other assets being sold by the
Depositor to the Trust with the office of the Secretary of State of the state in
which the Depositor is located.
Section 2.05 Delivery of Mortgage Loan Documents.
(a) With respect to each Mortgage Loan, on the Closing Date the Transferor
has delivered or caused to be delivered to the Custodian, as the designated
agent of the Indenture Trustee, each of the following documents (collectively,
the "Mortgage Loan Files"):
(i) The original Debt Instrument, endorsed by Cityscape in blank or
in the following form: "Pay to the order of ____________________, as
Indenture Trustee and Co-Owner Trustee under the Sale and Servicing
Agreement, dated as of ____________ ___, 199_, Cityscape Loan Trust
199_-_, without recourse", with all prior and intervening endorsements
showing a complete chain of endorsement from origination of the Mortgage
Loan to Cityscape;
(ii) The original Mortgage with evidence of recording thereon (or,
if the original Mortgage has not been returned from the applicable public
recording office or is not otherwise available, a copy of the Mortgage
certified by a Responsible Officer of the Transferor or by the closing
attorney or by an officer of the title insurer or agent of the title
insurer which issued the related title insurance policy or commitment
therefor to be a true and complete copy of the original Mortgage submitted
for recording) and, if the Mortgage was executed pursuant to a power of
attorney, the original power of attorney with evidence of recording
thereon (or, if the original power of attorney has not been returned from
the applicable public recording office or is not otherwise available, a
copy of the power of attorney certified by a Responsible Officer of the
Transferor or by the closing attorney or by
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an officer of the title insurer or agent of the title insurer which issued
the related title insurance policy or commitment therefor, to be a true
and complete copy of the original power of attorney submitted for
recording);
(iii) The original executed Assignment of Mortgage, acceptable for
recording except with respect to any currently unavailable recording
information, from the Transferor to the Indenture Trustee in blank or in
the following form: "____________________, as Indenture Trustee and
Co-Owner Trustee under the Sale and Servicing Agreement, dated as of
____________ ___, 199_, of Cityscape Loan Trust 199_-_";
(iv) The original Assignment of Mortgage and any original
intervening Assignments of Mortgage, with evidence of recording thereon,
showing a complete chain of assignment from origination of the Mortgage
Loan to the Transferor (or, if any such Assignment of Mortgage has not
been returned from the applicable public recording office or is not
otherwise available, a copy of such Assignment of Mortgage certified by a
Responsible Officer of the Transferor or by the closing attorney or by an
officer of the title insurer or agent of the title insurer which issued
the related title insurance policy or commitment therefor to be a true and
complete copy of the original Assignment submitted for recording); and
(v) the original, or a copy certified by the Transferor to be a true
and correct copy of the original, of each assumption, modification,
written assurance or substitution agreement, if any.
(b) [RESERVED].
(c) With respect to any Mortgage referred to in Section 2.05(a)(ii) above
as to which the original Mortgage is not available as of the Closing Date or the
Subsequent Transfer Date, as the case may be, and with respect to any Assignment
of Mortgage referred to in Section 2.05(a)(iii) or 2.05(a)(iv) as to which the
original Assignment of Mortgage is not available as of the Closing Date or the
Subsequent Transfer Date, as the case may be, the Transferor shall deliver to
the Indenture Trustee, prior to the Closing Date or the Subsequent Transfer
Date, as the case may be, a copy of such Mortgage or such Assignment of
Mortgage, as the case may be, certified by the Transferor to be a true and
correct copy, and shall also deliver the original Mortgage, or where the
original Mortgage is unavailable, a copy thereof certified by the applicable
public recording office, and the original Assignment of Mortgage, or where the
original Assignment of Mortgage is unavailable, a copy thereof certified by the
applicable public recording office, to the Indenture Trustee within five (5)
Business Days of receipt thereof by the Transferor, but in no event later than
360 days following the date of origination of the related Mortgage Loan or the
date of such Assignment of Mortgage to the Transferor. The failure of the
Transferor to deliver to the Indenture Trustee (x) any original Mortgage under
Section 2.05(a)(ii) (or where the original is unavailable a copy thereof
certified by the applicable public recording office), or (y) any original
Assignment of Mortgage under Section 2.05(a)(iii) and (iv) (or where the
original is unavailable a copy thereof certified by the applicable public
recording office), shall not be deemed a breach of this Agreement for any
purpose whatsoever until the expiration of such 360-day period.
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The Indenture Trustee shall promptly (and in no event later than five (5)
Business Days following the Closing Date and each Subsequent Transfer Date)
submit for recording, at the Transferor's own expense, in the appropriate public
office for real property records, each original Assignment of Mortgage referred
to in Section 2.05(a)(iii) above, as well as each original Assignment of
Mortgage referred to in Section 2.05(a)(iv) above that was not previously
submitted for recording. With respect to any original Assignment of Mortgage
referred to in Section 2.05(a)(iii) above as to which the related recording
information is unavailable within five (5) Business Days following the Closing
Date or Subsequent Transfer Date, as the case may be, such original Assignment
of Mortgage shall be submitted for recording within five (5) Business Days after
receipt of such information (or any longer period as approved by the Indenture
Trustee in writing with respect to specific Mortgage Loans upon the request of
the Transferor pursuant to an Officer's Certificate in accordance with Accepted
Servicing Procedures stating the amount of time generally required by the
applicable recording office to record and return such documents submitted for
recordation) after the Closing Date or Subsequent Transfer Date. The Transferor
shall deliver each recorded Assignment of Mortgage referred to in Section
2.05(a)(iii) or, where the original is unavailable, a copy thereof certified by
the applicable public recording office to be a true and correct copy of the
original, to the Indenture Trustee no later than the earlier of (i) five (5)
Business Days after receipt thereof and (ii) within 360 days of the Closing Date
or Subsequent Transfer Date. Any failure of the Transferor to deliver to the
Indenture Trustee, prior to the expiration of such 360-day period, any such
recorded Assignment of Mortgage, or such certified copy if such recorded
Assignment of Mortgage has not been received by it, shall not be deemed a breach
of this Agreement for any purpose. In the event that any such Assignment of
Mortgage is lost or returned unrecorded because of a defect therein, the
Transferor shall promptly prepare a substitute Assignment of Mortgage or cure
such defect, as the case may be, and thereafter cause each such Assignment of
Mortgage to be duly recorded.
The Indenture Trustee shall promptly upon receipt thereof (and in any
event no longer than thirty (30) days following the Closing Date or Subsequent
Transfer Date, as the case may be), with respect to each Debt Instrument and
Assignment of Mortgage delivered in blank in accordance with Section 2.05(a)(i)
and (iii), respectively, endorse each such Debt Instrument and Assignment of
Mortgage in the form described therein.
The Servicer shall promptly upon receipt thereof (and in no event later
than the earlier of (i) five (5) Business Days following such receipt and (ii)
360 days after the Closing Date or Subsequent Transfer Date, as the case may be)
deliver to the Indenture Trustee (a) the original recorded Mortgage in those
instances where a certified copy thereof was delivered to the Indenture Trustee;
(b) the original recorded Assignment of Mortgage or Assignment of Mortgages
showing a complete chain of assignment from origination of a Mortgage Loan to
the Transferor in those instances where certified copies thereof were delivered
to the Indenture Trustee; (c) the original policy of title insurance or title
report, as applicable, or a copy certified by the Transferor to be a true and
correct copy in those instances where a commitment (binder) (including any
marked additions thereto or deletions therefrom) to issue such policy was
delivered to the Indenture Trustee; and (d) any other original documents
constituting a part of the Mortgage Loan File received with respect to any
Mortgage Loan, including, but not limited to, any original documents evidencing
an assumption or modification of any Mortgage Loan.
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All original documents relating to the Mortgage Loans that are not
delivered to the Indenture Trustee are and shall be held by the Transferor or
the Servicer, as the case may be, in trust for the benefit of the Indenture
Trustee on behalf of the Securityholders. In the event that any such original
document is required pursuant to the terms of this Section to be a part of a
Mortgage Loan File, such document shall be delivered promptly to the Indenture
Trustee. Any original document that is not required pursuant to the terms of
this Section to be a part of a Mortgage Loan File delivered to or held by the
Indenture Trustee shall be delivered promptly to the Servicer.
In connection with the delivery of documentation provided by this Section
2.05, the Transferor hereby appoints the Indenture Trustee its attorney with
full power and authority to act in its stead for the purpose of executing and
certifying assignments and endorsing and certifying promissory notes which make
a part of each Mortgage Loan File in order to cure any deficiencies in such
documentation.
If the Transferor has not delivered all required documentation with
respect to any Mortgage Loan within the time periods, if any, specified in this
Agreement, the Transferor shall be required to take action with respect to such
Mortgage Loan as and to the extent provided in Section 2.06 hereof.
(d) All Mortgage Loan documents held by the Custodian on behalf of the
Indenture Trustee are referred to herein as the "Trustee Mortgage Loan Files."
All recordings required pursuant to this Section 2.05 shall be accomplished by
and at the expense of the Transferor.
Section 2.06 Acceptance by Indenture Trustee of the Mortgage Loans;
Certain Substitutions; Initial Certification by Custodian.
(a) The Indenture Trustee acknowledges receipt by it on the Closing Date,
in good faith without notice of adverse claims, subject to the provisions of
Sections 2.05(a)(ii) and 2.05(c) and to any exceptions noted on the Indenture
Trustee's receipt, in the form annexed hereto as Exhibit C, delivered to the
Transferor, the Depositor and the Servicer on the Closing Date, of the documents
referred to in Section 2.05(a)(i), (ii), (iii), (iv) and (v) above (except that
any such applicable document may be endorsed in blank upon receipt) with respect
to the Mortgage Loans listed on the Mortgage Loan Schedule delivered to the
Indenture Trustee on the Closing Date; in addition, the Indenture Trustee
acknowledges the assignment to it of (x) all other assets included in clauses
(i) through (v) of the definition of "Trust Estate" and (y) the Trust Accounts
and declares that it holds and will hold such documents and the other documents
delivered to it constituting the Mortgage Loan Files, and that it holds or will
hold all such assets and such other assets included in the definition of "Trust
Estate" that are delivered to it, in trust for the exclusive use and benefit of
all present and future Securityholders.
Within ten (10) Business Days of the Closing Date or Subsequent Transfer
Date, as applicable, the Indenture Trustee shall deliver to the Transferor, the
Depositor and the Servicer a certification in the form annexed hereto as Exhibit
D, with any applicable exceptions noted thereon.
After the delivery of the certification, the Indenture Trustee shall
provide to the Servicer, the Transferor and the Depositor, and the Transferor
shall in turn provide to the Indenture Trustee, no
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less frequently than quarterly, updated certifications, a form of which is
attached hereto as Exhibit F, indicating the then current status of exceptions
until all such exceptions have been eliminated.
If in the process of reviewing the Mortgage Loan Files and making or
preparing the certifications referred to above the Indenture Trustee finds any
document or documents constituting a part of a Mortgage Loan File to be missing
or defective in any material respect or, at the end of any 360-day period
referenced above, finds that all recorded Assignments of Mortgage and all
original Mortgages or certified copies thereof have not been delivered to it,
the Indenture Trustee shall promptly so notify the Transferor, the Depositor and
the Servicer. In performing any such review, the Indenture Trustee may
conclusively rely on the Transferor as to the purported genuineness of any such
document and any signature thereon. It is understood that the scope of the
Indenture Trustee's review of the items delivered to the Indenture Trustee
pursuant to this Section 2.06, unless otherwise expressly stated, shall be
limited solely to confirming that the documents listed in this Section 2.06 have
been executed and received, relate to the Mortgage Loans in the Mortgage Loan
Schedule and conform as to the loan number and address and description thereof
in the Mortgage Loan Schedule. In addition, upon the discovery by the
Transferor, the Depositor, the Servicer or the Indenture Trustee of a breach of
any of the representations and warranties made by the Transferor herein in
respect of any Mortgage Loan which materially and adversely affects the value of
such Mortgage Loan or the interests of the Securityholders in such Mortgage
Loan, the Person discovering such breach shall give prompt written notice to the
other Persons set forth in this sentence.
At such time as any Mortgage Loan becomes ninety (90) days Delinquent, the
Servicer shall make, or cause to be made, a reasonable investigation to
determine whether such Mortgage Loan satisfied the representations and
warranties of the Transferor set forth in Section 3.04 as of the Closing Date;
provided, however, that only one such investigation shall be required for any
Mortgage Loan.
If the Transferor has not delivered all required documentation with
respect to any Mortgage Loan within the time periods specified in this Agreement
(as such may have been extended pursuant to Section 2.05(c) hereof), the
Transferor shall be required to take action with respect to such Mortgage Loan
as and to the extent provided in Section 3.06 hereof.
(b) The Servicer Mortgage Loan File shall be held in the custody of the
Servicer for the benefit of, and as agent for, the Securityholders and the
Indenture Trustee as the owner thereof. It is intended that, by the Servicer's
agreement pursuant to this Section 2.06(b), the Indenture Trustee shall be
deemed to have possession of the Servicer Mortgage Loan Files for purposes of
Section 9-305 of the Uniform Commercial Code of the state in which such
documents or instruments are located. The Servicer shall promptly report to the
Indenture Trustee any failure by it to hold the Servicer Mortgage Loan File as
herein provided and shall promptly take appropriate action to remedy any such
failure. In acting as custodian of such documents and instruments, the Servicer
agrees not to assert any legal or beneficial ownership interest in the Mortgage
Loans or such documents or instruments. The Servicer agrees to indemnify the
Securityholders and the Indenture Trustee for any and all liabilities,
obligations, losses, damages, payments, costs or expenses of any
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kind whatsoever which may be imposed on, incurred by or asserted against the
Securityholders or the Indenture Trustee as the result of any act or omission by
the Servicer relating to the maintenance and custody of such documents or
instruments which have been delivered to the Servicer; provided, however, that
the Servicer will not be liable for any portion of any such amount resulting
from the negligence or misconduct of any Securityholder or the Indenture
Trustee; provided, further, that the Servicer will not be liable for any portion
of any such amount resulting from the Servicer's compliance with any
instructions or directions consistent with this Agreement issued to the Servicer
by the Indenture Trustee. The Indenture Trustee shall have no duty to monitor or
otherwise oversee the Servicer's performance as custodian hereunder.
(c) If the Custodian, during the process of reviewing the Trustee Mortgage
Loan Files, finds any document constituting a part of a Trustee Mortgage Loan
File which is not executed, has not been received, is unrelated to any Mortgage
Loan identified in the Mortgage Loan Schedule, does not conform to the
requirements of Section 2.05 or does not conform, in all material respects, to
the description thereof as set forth in the Mortgage Loan Schedule, then the
Custodian shall promptly so notify the Transferor, the Servicer, the Indenture
Trustee, the Issuer and the Depositor. In performing any such review, the
Custodian may conclusively rely on the Transferor as to the purported
genuineness of any such document and any signature thereon. It is understood
that the scope of the Custodian's review of the Trustee Mortgage Loan Files is
limited solely to confirming that the documents listed in Section 2.05 have been
received and further confirming that any and all documents delivered pursuant to
Section 2.05 have been executed and relate to the Mortgage Loans identified in
the Mortgage Loan Schedule. Neither the Issuer nor the Custodian shall have any
responsibility for determining whether any document is valid and binding,
whether the text of any assignment or endorsement is in proper or recordable
form, whether any document has been recorded in accordance with the requirements
of any applicable jurisdiction or whether a blanket assignment is permitted in
any applicable jurisdiction. If a material defect in a document constituting
part of a Trustee Mortgage Loan File is discovered, then the Transferor and
Cityscape shall comply with the cure, substitution and repurchase provisions of
Section 3.06 hereof.
Section 2.07 Subsequent Transfers.
(a) Subject to the satisfaction of the conditions set forth in this
Article and in paragraph (b) below and pursuant to the terms of the related
Subsequent Transfer Agreement, in consideration of the Indenture Trustee's
delivery on each Subsequent Transfer Date to or upon the order of the Transferor
of all or a portion of the balance of funds in the Pre-Funding Account, the
Transferor shall on such Subsequent Transfer Date sell, transfer, assign, set
over and otherwise convey without recourse to the Indenture Trustee and Co-Owner
Trustee, all of its right, title and interest in and to each Subsequent Loan
listed on the related Loan Schedule delivered by the Transferor on such
Subsequent Transfer Date, including (i) the related Loan Balance, all interest
payments received after the related Cut-Off Date and all collections in respect
of principal received after the related Subsequent Cut-Off Date; (ii) any real
property that secured such Subsequent Loan and that has been acquired by
foreclosure or deed in lieu of foreclosure; (iii) all of its interest in any
insurance policies in respect of such Subsequent Loan; and (iv) all proceeds of
the foregoing. The transfer by the Transferor to the Indenture Trustee and
Co-Owner Trustee of the Subsequent Loans set forth in the related Subsequent
Transfer Agreement shall be absolute and shall be intended by
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all parties hereto to be treated as a sale by the Transferor to the Trust. If
the assignment and transfer of the Subsequent Loans and the other property
specified in this Section 2.07(a) from the Transferor to the Trust pursuant to
this Agreement is held or deemed not to be a sale or is held or deemed to be a
pledge of security for a loan, the Transferor intends that the rights and
obligations of the parties shall be established pursuant to the terms of this
Agreement and that, in such event, (A) the Transferor shall be deemed to have
granted and does hereby grant to the Indenture Trustee and Co-Owner Trustee as
of each Subsequent Transfer Date a perfected, first priority security interest
in the entire right, title and interest of the Transferor in and to the related
Subsequent Loans and all other property conveyed to the Owner Trustee and
Co-Owner Trustee pursuant to this Section 2.07(a) and all proceeds thereof and
(B) this Agreement shall constitute a security agreement under applicable law.
The amount released to the Transferor from the Pre-Funding Account shall be 100%
of the aggregate Cut-Off Date Loan Balances of the Subsequent Loans so
transferred.
(b) The Indenture Trustee shall contribute from the Pre-Funding Account
funds in an amount equal to 100% of the aggregate Cut-Off Date Loan Balances of
the Subsequent Loans so transferred to the Trust and use such cash to purchase
the Subsequent Loans on behalf of the Trust, along with the other property and
rights related thereto described in paragraph (a) above, only upon the
satisfaction of each of the following conditions on or prior to the related
Subsequent Transfer Dates:
(i) the Transferor shall have provided the Indenture Trustee, Owner
Trustee, Co-Owner Trustee and Rating Agencies with an Addition Notice,
which notice shall be given not less than two (2) Business Days prior to
the related Subsequent Transfer Date and shall designate the Subsequent
Loans to be sold to the Trust and the aggregate Cut-Off Date Loan Balances
of such Mortgage Loans;
(ii) the Transferor shall have deposited in the Collection Account
(A) all principal collected after the related Cut-Off Date and interest
payments collected after the related Cut-Off Date in respect of each
Subsequent Loan and (B) the related Subsequent Cut-Off Date Deposit;
(iii) the Transferor shall have delivered an Officer's Certificate
to the Indenture Trustee and the Co-Owner Trustee confirming that, as of
the related Subsequent Transfer Date, the Transferor was not insolvent,
nor will it be made insolvent by such transfer, nor is it aware of any
pending insolvency;
(iv) the Funding Period shall not have ended;
(v) the Transferor shall have delivered to the Trustee an Officer's
Certificate confirming the satisfaction of each condition precedent
specified in this paragraph (b) and in the related Subsequent Transfer
Agreement;
(vi) the Transferor shall have delivered an Officer's Certificate to
the Indenture Trustee and the Co-Owner Trustee confirming that the
representations and warranties of the Transferor pursuant to Section 3.04
(other than to the extent representations and warranties relate to
statistical information as to the characteristics of the Initial Loans in
the aggregate)
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and pursuant to Section 3.02 are true and correct with respect to the
Transferor and the Subsequent Loans, as applicable, as of the Subsequent
Transfer Date;
(vii) the Transferor shall have provided the Indenture Trustee and
the Co-Owner Trustee with an Opinion of Counsel relating to the sale of
the Subsequent Loans to the Trustee;
(viii) the Trust shall not purchase a Subsequent Loan unless (a) the
Rating Agencies shall have consented (which consent shall not have been
unreasonably withheld) to the purchase by the Trust of such Subsequent
Loan and (b) such Subsequent Loan shall mature no later than six months
after the latest maturing Initial Loan; and
(ix) in connection with the transfer and assignment of the
Subsequent Loans, the Transferor shall satisfy the document delivery
requirements set forth in Section 2.05.
(c) In connection with each Subsequent Transfer Date and on the related
Distribution Date, the Indenture Trustee shall determine (i) the amount and
correct dispositions of the Capitalized Interest Requirement and Pre-Funding
Earnings for such Distribution Date in accordance with the provisions of this
Agreement and (ii) any other necessary matters in connection with the
administration of the Pre-Funding Account and of the Capitalized Interest
Account. In the event that any amounts are released as a result of calculation
error by the Indenture Trustee from the Pre-Funding Account or from the
Capitalized Interest Account, the Indenture Trustee shall not be liable
therefor, and the Transferor shall immediately repay such amounts to the
Indenture Trustee.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Transferor, the
Indenture Trustee, the Owner Trustee, the Co-Owner Trustee and the
Securityholders that as of the Closing Date:
(a) The Depositor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has, and had at all
relevant times, full power to own its property, to carry on its business as
presently conducted, to enter into and perform its obligations under this
Agreement and to create the Trust pursuant to the Trust Agreement;
(b) The execution and delivery of this Agreement by the Depositor and its
performance of and compliance with the terms of this Agreement will not violate
the Depositor's certificate of incorporation or by-laws or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach or acceleration of, any material
contract, agreement or other instrument to which the Depositor is a party or
which may be applicable to the Depositor or any of its assets;
(c) The Depositor has the full power and authority to enter into and
consummate the transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Indenture Trustee, the Transferor and the
Servicer, constitutes a valid, legal and binding obligation of the Depositor,
enforceable against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) The Depositor is not in violation of, and the execution and delivery
of this Agreement by the Depositor and its performance and compliance with the
terms of this Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, which violation would
materially and adversely affect the condition (financial or otherwise) or
operations of the Depositor or its properties or materially and adversely affect
the performance of its duties hereunder;
(e) There are no actions or proceedings against, or investigations of, the
Depositor pending with regard to which the Depositor has received service of
process, or, to the knowledge of the Depositor, threatened, before any court,
administrative agency or other tribunal (A) that, if determined adversely, would
prohibit its entering into this Agreement or render the Securities invalid, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or (C) that, if determined
adversely, would prohibit or
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materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement or the
Securities;
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Depositor of, or compliance by the Depositor with, this
Agreement or the Certificates, or for the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations and orders, if any, that have been obtained prior to the Closing
Date;
(g) The Depositor is solvent, is able to pay its debts as they become due
and has capital sufficient to carry on its business and its obligations
hereunder; it will not be rendered insolvent by the execution and delivery of
this Agreement or its obligations hereunder; no petition of bankruptcy (or
similar insolvency proceeding) has been filed by or against the Depositor prior
to the date hereof;
(h) The Depositor did not sell the Mortgage Loans to the Trust with any
intent to hinder, delay or defraud any of its creditors; the Depositor will not
be rendered insolvent as a result of the sale of the Mortgage Loans to the
Trust;
(i) As of the Closing Date, the Depositor had good title to, and was the
sole owner of, each Mortgage Loan free and clear of any Lien other than any such
Lien released simultaneously with the sale contemplated herein, and, immediately
upon each transfer and assignment herein contemplated, the Depositor will have
taken all steps necessary so that the Trust will have good title to, and will be
the sole owner of, each Mortgage Loan free and clear of any lien;
(j) The Depositor acquired title to each of the Mortgage Loans in good
faith, without notice of any adverse claim;
(k) No Officers' Certificate, statement, report or other document prepared
by the Depositor and furnished or to be furnished by it pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not misleading;
(l) The Depositor is not required to be registered as an "investment
company" under the Investment Company Act of 1940, as amended; and
(m) The transfer, assignment and conveyance of the Debt Instruments and
the Mortgages by the Depositor pursuant to this Agreement are not subject to the
bulk transfer laws or any similar statutory provisions in effect in any
applicable jurisdiction.
Section 3.02 Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Indenture Trustee,
the Owner Trustee, the Securityholders and the Depositor that as of the Closing
Date or the Subsequent Transfer Date, as the case may be (except as otherwise
specifically provided herein):
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(a) The Transferor is a corporation licensed as a mortgage banker, is duly
organized, validly existing and in good standing under the laws of the State of
New York and has, and had at all relevant times, full corporate power to
originate or purchase the Mortgage Loans, to own its property, to carry on its
business as presently conducted and to enter into and perform its obligations
under this Agreement;
(b) The execution and delivery of this Agreement by the Transferor and its
performance of and compliance with the terms of this Agreement will not violate
the Transferor's articles of incorporation or by-laws or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach or acceleration of, any material
contract, agreement or other instrument to which the Transferor is a party or
which may be applicable to the Transferor or any of its assets;
(c) The Transferor has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement to be consummated by
it, has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement. This Agreement,
assuming due authorization, execution and delivery by the Indenture Trustee and
the Depositor, constitutes a valid, legal and binding obligation of the
Transferor, enforceable against it in accordance with the terms hereof, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) The Transferor is not in violation of, and the execution and delivery
of this Agreement by the Transferor and its performance and compliance with the
terms of this Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, which violation would
materially and adversely affect the condition (financial or otherwise) or
operations of the Transferor or its properties or materially and adversely
affect the performance of its duties hereunder;
(e) There are no actions or proceedings against, or investigations of, the
Transferor pending with regard to which the Transferor has received service of
process or, to the knowledge of the Transferor, threatened, before any court,
administrative agency or other tribunal (A) that, if determined adversely, would
prohibit its entering into this Agreement or render the Securities invalid, (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Agreement or (C) that, if determined
adversely, would prohibit or materially and adversely affect the sale of the
Mortgage Loans to the Depositor, the performance by the Transferor of its
obligations under, or the validity or enforceability of, this Agreement or the
Securities;
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Transferor of, or compliance by the Transferor with, this
Agreement or the Securities, or for the consummation of the transactions
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contemplated by this Agreement, except for such consents, approvals,
authorizations and orders, if any, that have been obtained prior to the Closing
Date;
(g) The Transferor acquired title to the Mortgage Loans in good faith,
without notice of any adverse claim;
(h) The collection practices used by the Transferor with respect to the
Mortgage Loans have been, in all material respects, legal, proper, prudent and
customary in the non-conforming mortgage servicing business;
(i) No Officers' Certificate, statement, report or other document prepared
by the Transferor and furnished or to be furnished by it pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not misleading;
(j) The Transferor is duly licensed where required as a "Licensee" or is
otherwise qualified in each state in which it transacts business and is not in
default of such state's applicable laws, rules and regulations, except where the
failure to so qualify or such default would not have a material adverse effect
on the ability of the Transferor to conduct its business or perform its
obligations hereunder;
(k) The Transferor is solvent, is able to pay its debts as they become due
and has capital sufficient to carry on its business and its obligations
hereunder; it will not be rendered insolvent by the execution and delivery of
this Agreement or by the performance of its obligations hereunder; no petition
of bankruptcy (or similar insolvency proceeding) has been filed by or against
the Transferor prior to the date hereof;
(l) As of the date of the Prospectus Supplement, the information under the
captions "Summary of Terms -- The Mortgage Loans" and "The Mortgage Pool" in the
Prospectus Supplement contains no untrue statement of a material fact and does
not omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they will be made, not misleading; and
(m) The Transferor is not required to be registered as an "investment
company" under the Investment Company Act of 1940, as amended.
It is understood and agreed that the representations and warranties set
forth in this Section 3.02 shall survive delivery of the respective Mortgage
Loan Files to the Custodian (as the agent of the Indenture Trustee) and shall
inure to the benefit of the Securityholders, the Depositor, the Servicer, the
Indenture Trustee, the Owner Trustee and the Trust. Upon discovery by any of the
Transferor, the Depositor, the Servicer or the Indenture Trustee of a breach of
any of the foregoing representations and warranties that materially and
adversely affects the value of any Mortgage Loan or the interests of the
Securityholders therein, the party discovering such breach shall give prompt
written notice (but in no event later than two Business Days following such
discovery) to the other parties. The obligations of the Transferor and Cityscape
set forth in Section 3.06 to cure any breach or to substitute for or repurchase
an affected Mortgage Loan shall constitute the sole remedies
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available to the Securityholders, the Depositor, the Servicer, the Indenture
Trustee and the Owner Trustee respecting a breach of the representations and
warranties contained in this Section 3.02.
Section 3.03 Representations, Warranties and Covenants of the Servicer.
The Servicer hereby represents and warrants to and covenants with the
Owner Trustee, the Securityholders, the Depositor and the Transferor that as of
the Closing Date or as of such date specifically provided herein:
(a) The Servicer is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York and is or will be in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan in accordance with the terms of this Agreement;
(b) The execution and delivery of this Agreement by the Servicer and its
performance of and compliance with the terms of this Agreement will not violate
the Servicer's articles of incorporation or by-laws or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach or acceleration of, any material
contract, agreement or other instrument to which the Servicer is a party or
which may be applicable to the Servicer or any of its assets;
(c) The Servicer has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Indenture Trustee and the Owner Trustee,
constitutes a valid, legal and binding obligation of the Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, receivership, moratorium
or other similar laws relating to or affecting the rights of creditors
generally, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(d) The Servicer is not in violation of, and the execution and delivery of
this Agreement by the Servicer and its performance and compliance with the terms
of this Agreement will not constitute a violation with respect to, any order or
decree of any court or any order or regulation of any federal, state, municipal
or governmental agency having jurisdiction, which violation would materially and
adversely affect the condition (financial or otherwise) or operations of the
Servicer or materially and adversely affect the performance of its duties
hereunder;
(e) There are no actions or proceedings against, or investigations of, the
Servicer pending or, to the knowledge of the Servicer, threatened before any
court, administrative agency or other tribunal (A) that, if determined
adversely, would prohibit its entering into this Agreement or render the
Securities invalid, (B) seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this Agreement or (C)
that, if determined adversely, would prohibit or materially and adversely affect
the performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement or the Securities;
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(f) The Servicer will examine each Subservicing Agreement and will be
familiar with the terms thereof. Each designated Subservicer and the terms of
each Subservicing Agreement will be required to comply with the provisions of
Section 4.07. The terms of any Subservicing Agreement will not be inconsistent
with any of the provisions of this Agreement;
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of, or compliance by the Servicer with, this
Agreement or the Securities, or for the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations and orders, if any, that have been obtained prior to the Closing
Date;
(h) The collection practices used by the Servicer with respect to the
Mortgage Loans have been, in all material respects, legal, proper, prudent and
customary in the non-conforming mortgage servicing business;
(i) The transactions contemplated by this Agreement are in the ordinary
course of business of the Servicer;
(j) The Servicer is duly licensed where required as a "licensee" or is
otherwise qualified in each state in which it transacts business and is not in
default of such state's applicable laws, rules and regulations, except where the
failure to so qualify or such default would not have a material adverse effect
on the ability of the Servicer to conduct its business or perform its
obligations hereunder;
(k) The Servicer is an Eligible Servicer and services mortgage loans in
accordance with Accepted Servicing Procedures;
(l) [RESERVED]
(m) No Officers' Certificate, statement, report or other document prepared
by the Servicer and furnished or to be furnished by it pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not misleading;
(n) The Servicer is solvent and will not be rendered insolvent as a result
of the performance of its obligations pursuant to this Agreement;
(o) The Servicer has not waived any default, breach, violation or event of
acceleration under any Debt Instrument or the related Mortgage; and
(p) The Servicer is not required to be registered as an "investment
company" under the Investment Company Act of 1940, as amended.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 3.03 shall survive delivery of the
respective Mortgage Loan Files to the Indenture Trustee and shall inure to the
benefit of the Depositor, the Securityholders and the Indenture
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Trustee. Upon discovery by any of the Transferor, the Depositor, the Servicer or
the Indenture Trustee of a breach of any of the foregoing representations,
warranties and covenants that materially and adversely affects the value of any
Mortgage Loan or the interests of the Securityholders therein, the party
discovering such breach shall give prompt written notice (but in no event later
than two (2) Business Days following such discovery) to the other parties. The
obligations of the Servicer set forth in (x) Section 3.06 to cure any breach or
to purchase an affected Mortgage Loan and (y) Section 9.01(a) to indemnify and
hold harmless the Trust, the Depositor, the Transferor, the Trustee and the
Securityholders, shall constitute the sole remedies available to the Transferor,
the Securityholders, the Trust, the Depositor or the Indenture Trustee
respecting a breach of the representations, warranties and covenants contained
in this Section 3.03.
Section 3.04 Representations and Warranties regarding Individual Mortgage
Loans.
Each of Cityscape and the Transferor hereby represents and warrants to the
Depositor, the Issuer, the Indenture Trustee and the Securityholders, with
respect to each Mortgage Loan, as of the Closing Date and, with respect to each
Subsequent Loan, as of the related Subsequent Transfer Date (except as otherwise
expressly stated):
(a) Mortgage Loan Information. The information with respect to each
Initial Loan set forth in the Mortgage Loan Schedule is complete, true and
correct as of the Cut-Off Date.
(b) Delivery of Mortgage Loan Documents. All of the original or certified
documentation required to be delivered to the Indenture Trustee or to the
Custodian on or prior to the Closing Date or as otherwise provided in this
Agreement has been so delivered.
(c) Payments Current. As of the Cut-Off Date, approximately 0.45% (by
aggregate Cut-Off Date Principal Balance) of the Initial Loans are more than 30
days but not more than 59 days delinquent, based on the terms under which the
related Mortgages, if applicable, and Debt Instruments have been made and none
of the Mortgage Loans is 60 or more days delinquent. The Transferor has not
advanced funds, or induced, solicited or knowingly received any advance of funds
from a party other than the related Obligor, directly or indirectly, for the
payment of any amount required by any Mortgage Loan.
(d) No Waiver or Modification. The terms of each Debt Instrument and
Mortgage have not been impaired, waived, altered or modified in any respect that
would have any adverse effect upon any of the Securityholders, except by written
instruments reflected in the Trustee Mortgage Loan File. No instrument of
waiver, alteration, modification or assumption has been executed except for the
instruments that are part of the Trustee Mortgage Loan File and the terms of
which are reflected in the Trustee Mortgage Loan File.
(e) No Defenses. No Debt Instrument or Mortgage, if applicable, is subject
to any set-off, counterclaim or defense, including the defense of usury, nor
will the operation of any of the terms of any Debt Instrument or Mortgage, if
applicable, or the exercise of any right thereunder, render such Debt Instrument
or Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of
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rescission, set-off, counterclaim or defense has been asserted in any proceeding
or was asserted in any state or federal bankruptcy or insolvency proceeding at
the time the related Mortgage Loan was originated.
(f) Compliance with Laws. Any and all requirements of any federal, state
or local law applicable to each Mortgage Loan have been complied with,
including, without limitation, all consumer, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to each Mortgage Loan; each Mortgage
Loan was originated in compliance with all applicable laws, and no fraud or
misrepresentation was committed by any Person in connection therewith.
(g) No Satisfaction or Release of Lien. No Mortgage, if applicable, has
been satisfied, canceled, subordinated or rescinded, in whole or in part. No
Mortgaged Property has been released from the lien of the related Mortgage, if
applicable, in whole or in part, nor has any instrument been executed that would
effect any such release, cancellation, subordination or rescission, other than
the subordination of the lien of such Mortgage securing a Mortgage Loan with
respect to which a related Superior Lien was released in connection with the
refinancing of the mortgage loan relating to such Superior Lien.
(h) Valid Lien. With respect to each Debt Instrument that is secured by a
Mortgage, such Mortgage is or creates a valid, subsisting and enforceable lien
on the related Mortgaged Property, including the land and all buildings on the
related Mortgaged Property.
(i) Validity of Mortgage Loan Documents. Each Debt Instrument and each
Mortgage is genuine and each is the legal, valid and binding obligation of the
Obligor thereof, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting creditors' rights in general and by general
principles of equity. All parties to each Debt Instrument and each Mortgage, if
applicable, had legal capacity at the time to enter into the related Mortgage
Loan and to execute and deliver such Debt Instrument and Mortgage, and such Debt
Instrument and Mortgage have been duly and properly executed by such parties.
(j) Full Disbursement of Proceeds. As of the Cut-Off Date, the proceeds of
each Mortgage Loan have been fully disbursed and there is no requirement for
future advances thereunder, all costs, fees and expenses incurred in making or
closing each Mortgage Loan and the recording of the Mortgage, if applicable,
have been fully disbursed, the Obligor is not entitled to any refund of any
amounts paid or due under the Debt Instrument or any related Mortgage and any
and all requirements set forth in the related Mortgage Loan documents have been
complied with.
(k) Ownership. Immediately prior to the conveyance thereof to the
Depositor, the Transferor had good and marketable title to each Mortgage Loan,
Debt Instrument and Mortgage, was the sole owner thereof and had full right to
sell each Mortgage Loan, Debt Instrument and Mortgage to the Depositor and upon
the conveyance thereof by the Transferor to the Depositor, the Depositor became
the sole owner of each Mortgage Loan, Debt Instrument and Mortgage free and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest.
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(l) Ownership of Mortgaged Property. With respect to each Mortgage Loan,
to the best of the Servicer's knowledge, the related Mortgaged Property is
occupied by the Obligor(s) under such Mortgage Loan.
(m) Marketability of Title. Immediately prior to the transactions hereby
contemplated, the Depositor had good and marketable title thereto, and was the
sole owner and holder of each Mortgage Loan free and clear of any and all liens,
claims, encumbrances, participation interests, equities, pledges, charges or
security interests of any nature, other than any such lien related
simultaneously with the sale contemplated herein, and had full right and
authority, subject to no interest or participation of, or agreement with, any
other party, to sell and assign the same pursuant to this Agreement, and
immediately upon the transfer and assignment of each Mortgage Loan as herein
contemplated, the Issuer shall have good title to, and will be the sole legal
owner of, each Mortgage Loan free and clear of any Lien;
(n) [RESERVED].
(o) Bulk Transfer Laws. The transfer, assignment and conveyance of the
Mortgage Loans, the Debt Instruments and the Mortgages by the Transferor to the
Depositor pursuant to this Agreement are not subject to the bulk transfer laws
or any similar statutory provisions in effect in any applicable jurisdiction.
(p) No Defaults. Except with respect to any delinquent scheduled payment
set forth in subsection (c) above, there is no default, breach, violation or
event of acceleration existing under any Mortgage, if applicable, or any Debt
Instrument and, to the best of the Transferor's knowledge, there is no event
which, with the passage of time or with notice and/or the expiration of any
grace or cure period, would constitute such a default, breach, violation or
event of acceleration, and the Transferor has not waived any such default,
breach, violation or event of acceleration, except as set forth in an instrument
of waiver, alteration, modification or assumption that is included in the
Trustee Mortgage Loan File.
(q) No Condemnation or Damage. To the best of the Transferor's knowledge,
the physical condition of each Mortgaged Property has not deteriorated since the
date of origination of the related Mortgage Loan (normal wear and tear
excepted), and there is no proceeding pending for the total or partial
condemnation of any Mortgaged Property.
(r) Mortgage Remedies Adequate. Each Mortgage, if applicable, contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the related Mortgaged
Property of the benefits of the security provided thereby, including (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale and (ii)
otherwise, by judicial foreclosure.
(s) Underwriting of Mortgage Loans. Each Mortgage Loan has been
underwritten by the originator thereof in accordance with the Transferor's then
current "Sav*-A-Loan" underwriting guidelines.
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(t) Terms of Mortgage Loans. Each Mortgage Loan is a fixed rate loan; each
Debt Instrument has an original term to maturity of not less than 120 months nor
more than 240 months from the date of origination; each Debt Instrument is
payable in monthly installments of principal and interest, with interest payable
in arrears, and requires a monthly payment which is sufficient to amortize the
original principal balance over the original term and to pay interest at the
related Mortgage Loan Interest Rate; and no Debt Instrument provides for any
extension of the original term.
(u) Security. No Debt Instrument is, or has been, secured by any
collateral except the lien of the related Mortgage, if applicable.
(v) Deed of Trust. If a Mortgage for a Mortgage Loan constitutes a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves as such and is named in such
Mortgage, or a valid substitution of trustee has been recorded or may be
recorded and no extraordinary fees or expenses are, or will become, payable by
the Transferor to the trustee under the deed of trust, except in connection with
default proceedings and a trustee's sale after default by the related Obligor.
(w) Types of Mortgage Loans. Each Mortgage Loan is either (i) a Debt
Consolidation Loan, or (ii) a Combination Loan. No Mortgage Loan was originated
for the express purpose of purchasing a home.
(x) Origination Practices. The origination practices used by each
originator of the Mortgage Loans and the servicing and collection practices used
by Cityscape with respect to each Mortgage Loan have been in all material
respects legal, proper, prudent and customary with respect to the loan
origination and servicing business as applicable to the respective loan type.
(y) Servicing Practices. Each Mortgage Loan has been serviced in
accordance with all applicable laws and, to the best of the Transferor's
knowledge, no fraud or misrepresentation was committed by any Person in
connection therewith.
(z) [RESERVED].
(aa) [RESERVED].
(bb) Relief Act Matters. No Obligor has notified the Transferor, and no
relief has been requested or allowed to an Obligor, under the Soldiers' and
Sailors' Civil Relief Act of 1940.
(cc) Selection Criteria. The Mortgage Loans were not selected by the
Transferor for sale to the Depositor or the Issuer on any basis intended to
adversely affect the Depositor or the Issuer.
(dd) Superior Lien Delinquencies. No Superior Lien was more than 30 days
past due at the time of origination of the related Mortgage Loan.
(ee) Treasury Regulation Section 301.7701. On the Closing Date, 55% or
more (by aggregate Principal Balance) of the Mortgage Loans do not constitute
"real estate mortgages" for the purpose
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of Treasury Regulation Section 301.7701 under the Code. For this purpose a
Mortgage Loan does not constitute a "real estate mortgage" if:
(i) The Mortgage Loan is not secured by an interest in real
property, or
(ii) The Mortgage Loan is not an "obligation principally secured by
an interest in real property." For this purpose an "obligation is
principally secured by an interest in real property" if it satisfies
either the test set out in paragraph (1) or paragraph (2) below.
(1) The 80-percent test. An obligation is principally secured
by an interest in real property if the fair market value of the
interest in real property securing the obligation
(A) was at least equal to 80 percent of the adjusted
issue price of the obligation at the time the obligation was
originated (or, if later, the time the obligation was
significantly modified); or
(B) is at least equal to 80 percent of the adjusted
issue price of the obligation on the Closing Date.
For purposes of this paragraph (1), the fair market value of the
real property interest must be first reduced by the amount of any
lien on the real property interest that is senior to the obligation
being tested and must be further reduced by a proportionate amount
of any lien that is in parity with the obligation being tested, in
each case before the percentages set forth in (1)(A) and (1)(B) are
determined. The adjusted issue price of an obligation is its issue
price plus the amount of accrued original issue discount, if any, as
of the date of determination.
(2) Alternative test. An obligation is principally secured by
an interest in real property if substantially all of the proceeds of
the obligation were used to acquire or to improve or protect an
interest in real property that, at the origination date, is the only
security for the obligation. For purposes of this test, loan
guarantees made by the United States or any state (or any political
subdivision, agency or instrumentality of the United States or of
any state), or other third party credit enhancement, are not viewed
as additional security for a loan. An obligation is not considered
to be secured by property other than real property solely because
the obligor is personally liable on the obligation. For this purpose
only, substantially all of the proceeds of the obligations means
66K% or more of the gross proceeds.
(ff) Good Repair. To the best of the Transferor's knowledge, the related
Mortgaged Property is free of damage and in good repair or will be free of
damage and in good repair following the completion of any improvements or
repairs to be financed by the related Mortgage Loan.
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(gg) Mortgage Loan Interest Method. Interest for each Mortgage Loan is
calculated at a rate of interest computed by the actuarial method.
(hh) [RESERVED].
(ii) No Encroachment. To the best of the Transferor's knowledge, all
required inspections, licenses and certificates with respect to the use and
occupancy of all occupied portions of all property securing the Mortgages, if
applicable, have been made, obtained or issued as applicable. To the best of the
Transferor's knowledge, all improvements which were considered in determining
the appraised value of the property securing each Mortgage, if applicable, lay
wholly within the boundaries and building restrictions lines of the related
property and no improvements on adjoining properties encroach upon such property
and no improvement located on or being a part of such property is in violation
of any applicable zoning laws or regulation.
(jj) Consent of Superior Lien. With respect to each Mortgage Loan that is
not a first mortgage loan, either (i) no consent for the Mortgage Loan is
required by the holder of the related Superior Lien or (ii) such consent has
been obtained and has been delivered to the Indenture Trustee.
(kk) Insurance. If the Mortgaged Property was, at the time of origination
of the related Mortgage Loan, in an area identified on a Flood Hazard Boundary
Map or Flood Hazard Rate Map issued by the Federal Emergency Management Agency
as having special flood hazards (and if the flood insurance policy referenced
herein has been made available), a flood insurance policy is in effect with
respect to such Mortgaged Property with a generally acceptable carrier in an
amount that is not less than the value of such Mortgaged Property. All
individual insurance policies (collectively, the "hazard insurance policy") are
the valid and binding obligation of the insurer and contain a standard mortgagee
clause naming the Transferor, its successors and assigns, as mortgagee. All
premiums thereon have been paid. The Mortgage obligates the Obligor thereunder
to maintain all such insurance at the Obligor's cost and expense, and upon the
Obligor's failure to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at the Obligor's cost and expense and to seek
reimbursement therefor from the Obligor. All acts required to be performed to
preserve the rights and remedies of the Indenture Trustee in any such insurance
policies have been performed including, without limitation, any necessary
notifications of insurers and assignments of policies or interests therein.
(ll) No Fraudulent Conveyance. The Mortgage Loans are not being
transferred with any intent to hinder, delay or defraud any creditors.
(mm) [RESERVED].
(nn) Environmental Compliance. To the best of Cityscape's and the
Transferor's knowledge, the Mortgaged Property is free from any and all toxic or
hazardous substances and there exists no violation of any local, state or
federal environmental law, rule or regulation.
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(oo) Description Conforms to Prospectus Supplement. Each Mortgage Loan
will conform, and all Mortgage Loans in the aggregate will conform, in all
material respects to the description thereof set forth in the Prospectus
Supplement.
(pp) No Buydown, GPM or Shared Appreciation Loans. No Mortgage Loan
contains any provisions pursuant to which principal and interest payments are
paid or partially paid with funds deposited in any separate account established
by the Transferor, the Obligor or anyone else on behalf of the Obligor, or paid
by any source other than the Obligor. No Mortgage Loan contains any other
similar provision which may constitute a "buydown" provision. No Mortgage Loan
is a graduated payment mortgage loan. No Mortgage Loan has a shared appreciation
or other contingent interest feature.
(qq) No Chattel Paper. Each Debt Instrument is comprised of one original
promissory note and each such promissory note constitutes an "instrument" for
purposes of Section 9-105(1)(i) of the UCC. No Debt Instrument constitutes or is
comprised of "chattel paper" as such term is defined in Section 9-105(1)(b) of
the UCC. Each Debt Instrument has been delivered to the Indenture Trustee or the
Custodian.
(rr) Entire Agreement. The Debt Instrument and the Mortgage, if
applicable, contain the entire agreement between the related Obligor and the
lender and all obligations of the lender under the related Mortgage Loan, and no
other agreement defines, modifies, or expands the obligations of the lender
under the Mortgage Loan, except for any assumptions or modifications included in
the Trustee Mortgage Loan File pursuant to Section 2.05(a)(v). In light of the
Transferor's underwriting guidelines, the Transferor has reviewed all of the
documents constituting each Servicer Mortgage Loan File and each Trustee
Mortgage Loan File and has made such inquiries as it deems reasonable under the
circumstances to make and confirm the accuracy of the representations set forth
herein.
Section 3.05 [RESERVED].
Section 3.06 Purchase and Substitution.
(a) It is understood and agreed that the representations and warranties
set forth in this Article III shall survive the conveyance of the Mortgage Loans
to the Issuer, the grant of the Mortgage Loans to the Indenture Trustee and the
delivery of the Securities to the Securityholders. Upon discovery by the
Depositor, the Servicer, the Transferor, the Custodian, the Issuer, the
Indenture Trustee or any Securityholder of a breach of any of such
representations and warranties which materially and adversely affects the value
of the Mortgage Loans or the interest of the Securityholders, or which
materially and adversely affects the interests of the Securityholders in the
related Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan (notwithstanding that such representation and warranty
was made to the Transferor's or the Servicer's best knowledge), the party
discovering such breach shall give prompt written notice to the others. The
Transferor or Cityscape shall within sixty (60) days of the earlier of its
discovery or its receipt of notice of any breach of a representation or
warranty, promptly cure such breach in all material respects. If, however,
within sixty (60) days after the earlier of the Transferor's or Cityscape's
discovery of such breach or the Transferor's or Cityscape's receiving notice
thereof,
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such breach has not been remedied by either the Transferor or Cityscape and such
breach materially and adversely affects the interests of the Securityholders in
the related Mortgage Loan (the "Defective Mortgage Loan"), the Transferor or
Cityscape shall, on or before the Determination Date next succeeding the end of
such 60-day period, either (i) remove such Defective Mortgage Loan from the
Trust (in which case it shall become a "Deleted Mortgage Loan") and substitute
one or more Qualified Substitute Mortgage Loans in the manner and subject to the
conditions set forth in this Section 3.06 or (ii) purchase such Defective
Mortgage Loan at a purchase price equal to the Purchase Price (as defined below)
by depositing such Purchase Price in the Collection Account. The Transferor or
Cityscape shall provide the Servicer (if the certificate is to come from the
Transferor), the Indenture Trustee and the Issuer with a certification executed
by a Responsible Officer on the Determination Date next succeeding the end of
such 60-day period indicating whether the Transferor or Cityscape is purchasing
the Defective Mortgage Loan or substituting, in lieu of such Defective Mortgage
Loan, a Qualified Substitute Mortgage Loan. With respect to the purchase of a
Defective Mortgage Loan pursuant to this Section, the "Purchase Price" shall be
equal to the Principal Balance of such Defective Mortgage Loan as of the date of
purchase, plus all accrued and unpaid interest on such Defective Mortgage Loan
to, but not including, the Due Date in the Due Period most recently ended prior
to such Determination Date computed at the applicable Mortgage Loan Interest
Rate, plus the amount of any unreimbursed Servicing Advances and Nonrecoverable
Servicing Advances made by the Servicer with respect to such Defective Mortgage
Loan, which Purchase Price shall be deposited in the Collection Account (after
deducting therefrom any amounts received in respect of such repurchased
Defective Mortgage Loan and being held in the Collection Account for future
distribution to the extent such amounts represent recoveries of principal not
yet applied to reduce the related Principal Balance or interest (net of the
Servicing Fee) for the period from and after the Due Date in the Due Period most
recently ended prior to such Determination Date).
Any substitution of Mortgage Loans pursuant to this Section 3.06(a) and
Section 2.06(c) shall be accompanied by payment by the Transferor or Cityscape
of the Substitution Adjustment, if any, to be deposited in the Collection
Account. For purposes of calculating the Available Collection Amount for any
Distribution Date, amounts paid by the Transferor or Cityscape pursuant to this
Section 3.06 in connection with the repurchase or substitution of any Defective
Mortgage Loan that are on deposit in the Collection Account as of the
Determination Date for such Distribution Date shall be deemed to have been paid
during the related Due Period and shall be transferred to the Note Distribution
Account as part of the Available Collection Amount to be retained therein or
transferred to the Certificate Distribution Account, if applicable, pursuant to
Section 5.01(c).
As to any Deleted Mortgage Loan for which the Transferor or Cityscape
substitutes a Qualified Substitute Mortgage Loan or Loans, the Transferor or
Cityscape shall effect such substitution by delivering to the Issuer (i) a
certification executed by a Responsible Officer of the Transferor or Cityscape
to the effect that the Substitution Adjustment has been credited to the
Collection Account and (ii) the documents constituting the Trustee Mortgage Loan
File for such Qualified Substitute Mortgage Loan or Loans.
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(b) The Transferor or Cityscape, as the case may be, shall deposit in
the Collection Account all payments received in connection with such Qualified
Substitute Mortgage Loan or Loans after the date of such substitution. Monthly
Payments received with respect to Qualified Substitute Mortgage Loans on or
before the date of substitution will be retained by the Transferor (or
Cityscape, if substituted by Cityscape). The Issuer will be entitled to all
payments received on the Defective Mortgage Loan on or before the date of
substitution, and the Transferor or Cityscape, as the case may be, shall
thereafter be entitled to retain all amounts subsequently received in respect of
such Deleted Mortgage Loan. The Transferor or Cityscape shall give written
notice to the Issuer, the Servicer and the Indenture Trustee that such
substitution has taken place, and the Servicer shall amend the Mortgage Loan
Schedule to reflect (i) the removal of such Defective Mortgage Loan from the
terms of this Agreement and (ii) the substitution of the Qualified Substitute
Mortgage Loan. The Transferor or Cityscape shall promptly deliver to the Issuer,
the Servicer and the Indenture Trustee a copy of the amended Mortgage Loan
Schedule. Upon such substitution, such Qualified Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects, and the
Transferor and Cityscape shall be deemed to have made with respect to such
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution, the
covenants, representations and warranties set forth in Section 3.04. On the date
of such substitution, the Transferor or Cityscape, as the case may be, will
deposit into the Collection Account an amount equal to the related Substitution
Adjustment, if any. In addition, on the date of such substitution, the Issuer
shall cause the Indenture Trustee to release the Deleted Mortgage Loan from the
lien of the Indenture and the Issuer will cause such Qualified Substitute
Mortgage Loan to be pledged to the Indenture Trustee under the Indenture as part
of the Trust Estate.
(c) It is understood and agreed that the obligations of the Transferor
and Cityscape set forth in this Section 3.06 to cure, purchase or substitute for
a Defective Mortgage Loan constitute the sole remedies of the Depositor, the
Issuer, the Indenture Trustee and the Securityholders hereunder respecting a
breach of the representations and warranties contained in Section 3.04. Any
cause of action against the Transferor or Cityscape relating to or arising out
of a defect in a Trustee Mortgage Loan File as contemplated by Section 2.06 or
against the Transferor and Cityscape relating to or arising out of a breach of
any representations and warranties made in Section 3.04 shall accrue as to any
Mortgage Loan upon (i) discovery of such defect or breach by any party and
notice thereof to the Transferor or Cityscape or notice thereof by the
Transferor or Cityscape to the Issuer, (ii) failure by the Transferor or
Cityscape to cure such defect or breach or purchase or substitute such Mortgage
Loan as specified above, and (iii) demand upon the Transferor or Cityscape, as
applicable, by the Issuer or the Majority Securityholders for all amounts
payable in respect of such Mortgage Loan.
(d) Neither the Issuer nor the Indenture Trustee shall have any duty to
conduct any affirmative investigation other than as specifically set forth in
this Agreement as to the occurrence of any condition requiring the repurchase or
substitution of any Mortgage Loan pursuant to this Section or the eligibility of
any Mortgage Loan for purposes of this Agreement.
(e) With respect to all Defective Mortgage Loans or other Mortgage
Loans repurchased by the Transferor or Cityscape pursuant to this Agreement,
upon the deposit of the Purchase Price therefor in the Note Distribution
Account, the Indenture Trustee shall assign to the Transferor or
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Cityscape, as the case may be, without recourse, representation or warranty, all
the Indenture Trustee's right, title and interest in and to such Defective
Mortgage Loans or Mortgage Loans, which right, title and interest were conveyed
to the Indenture Trustee pursuant to Section 2.01.
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ARTICLE IV.
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 4.01 Duties of the Servicer.
(a) Servicing Standard. The Servicer, as an independent contractor,
shall service and administer the Mortgage Loans and shall have full power and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable
and consistent with the terms of this Agreement. Notwithstanding anything to the
contrary contained herein, the Servicer, in servicing and administering the
Mortgage Loans, shall employ or cause to be employed procedures (including
collection, foreclosure, liquidation and Foreclosure Property management and
liquidation procedures) and exercise the same care that it customarily employs
and exercises in servicing and administering loans of the same type as the
Mortgage Loans for its own account, all in accordance with Accepted Servicing
Procedures of prudent lending institutions and servicers of loans of the same
type as the Mortgage Loans and giving due consideration to the Securityholders'
reliance on the Servicer. The Servicer has and shall maintain the facilities,
procedures and experienced personnel necessary to comply with the servicing
standard set forth in this subsection (a) and the duties of the Servicer set
forth in this Agreement relating to the servicing and administration of the
Mortgage Loans.
(b) Servicing Advances. In accordance with the preceding general
servicing standard, the Servicer, or any Subservicer on behalf of the Servicer,
shall make all Servicing Advances in connection with the servicing of each
Mortgage Loan hereunder. Notwithstanding any provision to the contrary herein,
neither the Servicer, nor any Subservicer on behalf of the Servicer, shall have
any obligation to advance its own funds for any delinquent scheduled payments of
principal and interest on any Mortgage Loan or to satisfy or keep current the
indebtedness secured by any Superior Liens on the related Mortgaged Property. No
costs incurred by the Servicer or any Subservicer in respect of Servicing
Advances shall, for the purposes of distributions to Securityholders, be added
to the amount owing under the related Mortgage Loan. Notwithstanding any
obligation by the Servicer to make a Servicing Advance hereunder with respect to
a Mortgage Loan, before making any Servicing Advance that is material in
relation to the outstanding principal balance thereof, the Servicer shall assess
the reasonable likelihood of (i) recovering such Servicing Advance and any prior
Servicing Advances for such Mortgage Loan, and (ii) recovering any amounts
attributable to outstanding interest and principal owing on such Mortgage Loan
for the benefit of the Securityholders in excess of the costs, expenses and
other deductions to obtain such recovery, including without limitation any
Servicing Advances therefor and, if applicable, the outstanding indebtedness of
all Superior Liens. The Servicer shall only make a Servicing Advance with
respect to a Mortgage Loan to the extent that the Servicer determines in its
reasonable, good faith judgment that such Servicing Advance would likely be
recovered as aforesaid; provided, however, that the Servicer will be entitled to
be reimbursed for any Nonrecoverable Servicing Advance pursuant to this
Agreement.
(c) Waivers, Modifications and Extensions. The Servicer shall make
reasonably diligent efforts to collect all payments called for under the terms
and provisions of the Mortgage
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Loans, and shall, to the extent such procedures shall be consistent with this
Agreement, follow Accepted Servicing Procedures. The Servicer may in its
discretion waive or permit to be waived any penalty interest or any other fee or
charge which the Servicer would be entitled to retain hereunder as servicing
compensation and extend the Due Date on a Debt Instrument for a period (with
respect to each payment as to which the Due Date is extended) not greater than
ninety (90) days after the initially scheduled due date for such payment.
Notwithstanding anything in this Agreement to the contrary, the Servicer shall
not permit any additional extension or modification with respect to any Mortgage
Loan other than that permitted by the immediately preceding sentence unless the
Mortgage Loan is a Defaulted Mortgage Loan.
(d) Instruments of Satisfaction or Release. Without limiting the
generality of Section 4.01(c), the Servicer, in its own name or in the name of a
Subservicer, is hereby authorized and empowered, when the Servicer believes it
appropriate in its best judgment and subject to the requirements of this
Agreement or Acceptable Servicing Procedures, to execute and deliver, on behalf
of the Securityholders and the Trust, or any of them, and upon notice to the
Indenture Trustee, any and all instruments of satisfaction or cancellation or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Mortgage Loans and the Mortgaged Properties and to institute
foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert
the ownership of such properties, and to hold, or cause to be held, title to
such properties, on behalf of the Trust and Securityholders, or any of them. The
Servicer shall service and administer the Mortgage Loans in accordance with
applicable state and federal law and shall provide to the Obligors any reports
required to be provided to them thereby. The Indenture Trustee shall execute, at
the written direction of the Servicer, any limited or special powers of attorney
and other documents reasonably acceptable to the Indenture Trustee to enable the
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, including, without limitation, limited or special powers of
attorney with respect to any Foreclosure Property, and the Indenture Trustee
shall not be accountable for the actions of the Servicer or any Subservicers
under such powers of attorney and shall be indemnified by such parties with
respect to such actions.
Section 4.02 Liquidation of Mortgage Loans; Defaulted Mortgage Loans.
(a) In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.01(c) is not paid when the same becomes due and
payable, or in the event the Obligor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Servicer shall, in accordance with the standard of
care specified in Section 4.01(a), take such action as it shall deem to be in
the best interest of the Securityholders to collect or liquidate such Defaulted
Mortgage Loan in a manner that in the reasonable judgment of the Servicer will
be likely to maximize the net proceeds realizable therefrom under the
circumstances (including, but without limitation, causing the resale or
substitution of such Mortgage Loan pursuant to Section 3.06 or, if no Superior
Liens exist on the related Mortgaged Property, foreclosing or taking other
comparable action to effect ownership in such Mortgaged Property in the name of
the Issuer for the benefit of Securityholders). The Servicer shall give the
Indenture Trustee notice of the election of remedies made pursuant to this
Section 4.02. The Servicer shall not be required to satisfy the indebtedness
secured by any Superior Liens
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on the related Mortgaged Property or to advance funds to keep the indebtedness
secured by such Superior Liens current. In connection with any collection or
liquidation activities, the Servicer shall exercise collection or liquidation
procedures with the same degree of care and skill as it would exercise or use
under the circumstances in the conduct of its own affairs.
(b) During any Due Period occurring after a Mortgage Loan becomes a
Liquidated Mortgage Loan, the Servicer shall deposit into the Collection Account
any proceeds received by it with respect to such Liquidated Mortgage Loan or the
related Foreclosure Property ("Post Liquidation Proceeds").
(c) After a Mortgage Loan has become a Liquidated Mortgage Loan, the
Servicer shall promptly prepare and forward to the Issuer and the Indenture
Trustee, and upon the request of any Securityholder to such Securityholder, a
Liquidation Report detailing the following: (i) the Net Liquidation Proceeds,
Insurance Proceeds or Released Mortgaged Property Proceeds received in respect
of such Liquidated Mortgage Loan; (ii) expenses incurred with respect thereto;
(iii) any Net Loan Losses incurred in connection therewith; and (iv) any Post
Liquidation Proceeds.
(d) The Servicer may, at its option, purchase from the Trust any
Mortgage Loan which is ninety (90) days or more Delinquent and which the
Servicer determines in good faith would otherwise become subject to foreclosure
proceedings at a price equal to the Purchase Price; provided, however, that the
aggregate Principal Balance of all Mortgage Loans that may be so purchased by
the Servicer shall not exceed an amount equal to 10% of the Original Pool
Principal Balance. The Purchase Price for any Mortgage Loan purchased hereunder
shall be deposited into the Collection Account, and the Indenture Trustee, upon
(i) receipt of an Officer's Certificate of the Servicer as to the making of such
deposit and (ii) confirmation that such deposit has been made, shall release or
cause to be released to the Servicer the related Mortgage Loan File and shall
execute and deliver such instruments of transfer or assignment as are furnished
by the Transferor or the Servicer, as the case may be, in each case without
recourse, as shall be necessary to vest in the Transferor or the Servicer, as
the case may be, title to any Mortgage Loan released pursuant hereto, and the
Indenture Trustee shall have no further responsibility or liability (except as
to its own acts) with regard to such Mortgage Loan.
Section 4.03 Fidelity Bond; Errors and Omission Insurance.
The Servicer shall keep in force during the term of this Agreement a
policy or policies of insurance covering errors and omissions for failure in the
performance of the Servicer's obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements of
FNMA or FHLMC if it were the purchaser of the Mortgage Loans. The Servicer shall
also maintain a fidelity bond in the form and amount that would meet the
requirements of FNMA or FHLMC if it were the purchaser of the Mortgage Loans.
The Servicer shall be deemed to have complied with this provision if an
affiliate of the Servicer has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. Any such errors and
omissions policy and fidelity bond shall not be canceled without thirty (30)
days' prior written notice to the Indenture Trustee. Upon the request of the
Indenture Trustee, or any Securityholder, the Servicer
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shall furnish to the requesting party copies of all binders and policies or
certificates evidencing that such fidelity bonds and insurance policies are in
full force and effect. The Servicer shall also cause each Sub-Servicer to
maintain a policy of insurance covering errors and omissions and a fidelity bond
which would meet the requirements set forth above.
Section 4.04 Title, Management and Disposition of Foreclosure Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure (a "Foreclosure Property"), the
deed or certificate of sale shall be taken in the name of the Indenture Trustee
for the benefit of the Securityholders.
The Servicer shall manage, conserve, protect and operate each
Foreclosure Property for the Indenture Trustee and the Securityholders solely
for the purpose of its prudent and prompt disposition and sale. The Servicer
shall, either itself or through an agent selected by the Servicer, manage,
conserve, protect and operate the Foreclosure Property in the same manner that
it manages, conserves, protects and operates other foreclosure property for its
own account. The Servicer shall attempt to sell the same (and may temporarily
lease the same) on such terms and conditions as the Servicer deems to be in the
best interest of the Securityholders.
The Servicer shall, consistent with the servicing standards set forth
herein, foreclose upon or otherwise comparably convert the ownership of
properties securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made for collection
of delinquent payments. In connection with realization upon defaulted Mortgage
Loans, the Servicer shall follow such practices and procedures as it shall deem
necessary or advisable, as shall be normal and usual in accordance with Accepted
Servicing Procedures and the requirements of insurers under any insurance policy
required to be maintained hereunder with respect to the related Mortgage Loan.
The Servicer shall be responsible for all costs and expenses incurred by it in
any such proceedings; provided, however, that such costs and expenses will be
recoverable as Servicing Advances by the Servicer as contemplated herein.
The Servicer shall not be required to make any Servicing Advance, to
foreclose upon any Mortgaged Property, or otherwise expend its own funds toward
the restoration of any Mortgaged Property that shall have suffered damage from
an Uninsured Cause, unless it shall determine in its reasonable judgment, as
evidenced by a certificate of a Servicing Officer, that such foreclosure or
restoration, as the case may be, will increase the proceeds of liquidation of
the related Mortgage Loan after reimbursement to itself for Servicing Advances.
Any Servicing Advances made with respect to a Mortgage Loan shall be recoverable
by the Servicer only from recoveries on such Mortgage Loan except to the extent
such Servicing Advance is deemed a Nonrecoverable Servicing Advance.
The disposition of Foreclosure Property shall be carried out by the
Servicer at such price, and upon such terms and conditions, as the Servicer
deems to be in the best interest of the Indenture Trustee and the
Securityholders, and as soon as practicable thereafter, the expenses of such
sale shall be paid. The Net Liquidation Proceeds or Post Liquidation Proceeds,
as applicable, from the conservation, disposition and sale of the Foreclosure
Property shall be promptly deposited by the
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Servicer in the Collection Account in accordance with Section 5.01 of this
Agreement and the Indenture.
Prior to acquiring any Foreclosure Property, the Servicer shall cause a
review to be performed, in accordance with Accepted Servicing Procedures, on the
related Mortgaged Property by a company such as Equifax, Inc. or Toxicheck; the
scope of such review shall be limited to the review of public records and
documents for indications that such Mortgaged Property has on it, or is near,
hazardous or toxic material or waste. If such review reveals that the Mortgaged
Property has on it, under it or is near hazardous or toxic material or waste or
reveals any other environmental problem, the Servicer shall provide a copy to
the Indenture Trustee of the related report. If the Servicer attaches to such
report a certification executed by a Responsible Officer stating that, based on
an analysis of all available information (including potential clean-up costs and
liability claims) at the time, it is the best judgment of such Responsible
Officer that such foreclosure shall increase Net Liquidation Proceeds to the
Indenture Trustee, then the Trust shall take title to such Mortgaged Property.
The Indenture Trustee shall promptly forward such report and certification to
the Securityholders.
The Servicer may contract with any independent contractor for the
operation and management of any Foreclosure Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent with this Agreement;
(ii) any such contract shall require, or shall be administered
to require, that the independent contractor pay all costs and expenses
incurred in connection with the operation and management of such
Foreclosure Property and remit all related revenues (net of such costs
and expenses) to the Servicer as soon as practicable, but in no event
later than thirty (30) days following the receipt thereof by such
independent contractor;
(iii) none of the provisions of this Section 4.04 relating to
any such contract or to actions taken through any such independent
contractor shall be deemed to relieve the Servicer of any of its duties
and obligations hereunder with respect to the operation and management
of any such Foreclosure Property; and
(iv) the Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
Foreclosure Property.
The Servicer shall be entitled to enter into any agreement with any independent
contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such independent contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be liable for all fees owed by it to any
such independent contractor, and that any amounts so expended shall be deemed
Servicing Advances. Each liquidation of a Foreclosure Property shall be carried
out by the Servicer at such price and upon such terms and conditions as the
Servicer shall deem necessary or advisable, as shall be
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normal and usual in accordance with Accepted Servicing Procedures, and the
resulting Liquidation Proceeds shall be distributed in accordance with the
Section 5.01 hereof.
Section 4.05 Access to Certain Documentation and Information Regarding
the Mortgage Loans.
The Servicer shall provide to the Issuer, the Indenture Trustee and the
Securityholders, and the supervisory agents and examiners of each of the
foregoing, access to the documentation regarding the Mortgage Loans required by
applicable state and federal regulations, such access being afforded without
charge but only upon reasonable request and during normal business hours at the
offices of the Servicer designated by it.
Section 4.06 [RESERVED].
Section 4.07 Subservicing.
(a) The Servicer may enter into Subservicing Agreements for any
servicing and administration of Mortgage Loans with any institution which is in
compliance with the laws of each state necessary to enable it to perform its
obligations under such Subservicing Agreement and is an Eligible Servicer. The
Servicer shall give prior written notice to the Issuer and the Indenture Trustee
of the appointment of any Subservicer. The Servicer shall be entitled to
terminate any Subservicing Agreement in accordance with the terms and conditions
of such Subservicing Agreement and to either directly service the related
Mortgage Loans or enter into a Subservicing Agreement with a successor
subservicer which qualifies hereunder.
In the event of termination of any Subservicer, and unless a successor
Subservicer has otherwise been appointed, all servicing obligations of such
Subservicer shall be assumed simultaneously by the Servicer without any
additional act or deed on the part of such Subservicer or the Servicer, and the
Servicer shall directly service the related Mortgage Loans.
Each Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Indenture Trustee in the event
that the Servicer shall, for any reason, no longer be the Servicer. In no event
shall any Subservicing Agreement require the Indenture Trustee, as Successor
Servicer, for any reason whatsoever, to pay compensation to a Subservicer in
order to terminate such Subservicer.
(b) Notwithstanding any Subservicing Agreement, any of the provisions
of this Agreement relating to agreements or arrangements between the Servicer
and a Subservicer, or reference to actions taken through a Subservicer or
otherwise, the Servicer shall remain obligated and primarily liable to the
Issuer, the Indenture Trustee and Securityholders for the servicing and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering the Mortgage Loans. For
purposes of this Agreement, the Servicer shall be deemed to have received
payments on Mortgage Loans when the Subservicer has actually received such
payments and,
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unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Servicer in servicing the Mortgage Loans include
actions taken or to be taken by a Subservicer on behalf of the Servicer. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer, and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
(c) In the event the Servicer shall for any reason no longer be the
Servicer (including by reason of an Event of Default), the successor Servicer,
on behalf of the Issuer, the Indenture Trustee and the Securityholders pursuant
to Section 4.08, shall thereupon assume all of the rights and obligations of the
Servicer under each Subservicing Agreement that the Servicer may have entered
into, unless the successor Servicer elects to terminate any Subservicing
Agreement in accordance with its terms. The successor Servicer shall be deemed
to have assumed all of the Servicer's interest therein and to have replaced the
Servicer as a party to each Subservicing Agreement to the same extent as if the
Subservicing Agreements had been assigned to the assuming party, except that the
Servicer shall not thereby be relieved of any liability or obligations under the
Subservicing Agreements which accrued prior to the transfer of servicing to the
successor Servicer. The Servicer at its expense and without right of
reimbursement therefor, shall, upon request of the successor Servicer, deliver
to the assuming party all documents and records relating to each Subservicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of the Subservicing Agreements to the
assuming party.
(d) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Issuer, the Indenture Trustee and the Securityholders, shall
enforce the obligations of each Subservicer under the related Subservicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims and the pursuit of other appropriate remedies, shall be in
such form and carried out to such an extent and at such time as the Servicer, in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Servicer shall pay the costs of such enforcement at its own
expense, and shall be reimbursed therefor only (i) from a general recovery
resulting from such enforcement to the extent, if any, that such recovery
exceeds all amounts due in respect of the related Mortgage Loan or (ii) from a
specific recovery of costs, expenses or attorneys fees against the party against
whom such enforcement is directed.
(e) Any Subservicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Servicer alone and none of the Issuer, the Indenture
Trustee or the Securityholders shall be deemed parties thereto or shall have any
claims, rights, obligations, duties or liabilities with respect to the
Subservicer in its capacity as such except as set forth in Section 4.07(c)
above.
(f) In those cases where a Subservicer is servicing a Mortgage Loan
pursuant to a Subservicing Agreement, the Subservicer will be required to
establish and maintain one or more accounts (collectively, the "Subservicing
Account"). The Subservicing Account shall be an Eligible Account. The
Subservicer will be required to deposit into the Subservicing Account no later
than the first Business Day after receipt all proceeds of Mortgage Loans
received by the
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Subservicer and remit such proceeds to the Servicer for deposit in the
Collection Account not later than the Business Day following receipt thereof by
the Subservicer. Notwithstanding anything in this clause (f) to the contrary,
the Subservicer shall only be able to withdraw funds from the Subservicing
Account for the purpose of remitting such funds to the Servicer for deposit into
the Collection Account. The Servicer shall require the Subservicer to cause any
collection agent of the Subservicer to send a copy to the Servicer of each
statement of monthly payments collected by or on behalf of the Subservicer
within five (5) Business Days after the end of every month, and the Servicer
shall compare the information provided in such reports with the deposits made by
the Subservicer into the Collection Account for the same period. The Servicer
shall be deemed to have received payments on the Mortgage Loans on the date on
which the Subservicer has received such payments.
Section 4.08 Successor Servicers.
In the event that the Servicer is terminated pursuant to Section 10.01
hereof, or resigns pursuant to Section 9.04 hereof or otherwise becomes unable
to perform its obligations under this Agreement, the Indenture Trustee will
become the successor servicer or will appoint a successor servicer in accordance
with the provisions of Section 10.02 hereof; provided that any successor
servicer, including the Indenture Trustee, shall satisfy the requirements of an
Eligible Servicer and shall be approved by the Rating Agencies.
Section 4.09 Maintenance of Hazard Insurance; Property Protection
Expenses.
For each Mortgage Loan, the Servicer shall cause to be maintained fire
and hazard insurance naming the Servicer as loss payee thereunder and providing
extended coverage in an amount which is at least equal to the lesser of (i) the
maximum insurable value of the improvements securing such Mortgage Loan from
time to time, (ii) the combined principal balance owing on such Mortgage Loan
and any mortgage loan senior to such Mortgage Loan and (iii) the minimum amount
required to compensate for damage or loss on a replacement cost basis. The
Servicer shall also maintain on property acquired upon foreclosure, or by deed
in lieu of foreclosure, hazard insurance with extended coverage in an amount
which is at least equal to the lesser of (i) the maximum insurable value from
time to time of the improvements which are a part of such property, (ii) the
combined principal balance owing on such Mortgage Loan and any mortgage loan
senior to such Mortgage Loan and (iii) the minimum amount required to compensate
for damage or loss on a replacement cost basis at the time of such foreclosure,
fire and or deed in lieu of foreclosure.
Any amounts to be collected by the Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Obligor in
accordance with Accepted Servicing Procedures, subject to the terms and
conditions of the related Mortgage and Debt Instrument) shall be deposited in
the Collection Account, subject to withdrawal as set forth herein.
Any cost incurred by the Servicer in maintaining any such insurance
shall not, for the purpose of calculating distributions to Securityholders, be
added to the Principal Balance of the related Mortgage Loan, notwithstanding
that the terms of such Mortgage Loan so permit. It is understood and agreed that
no earthquake or other additional insurance is to be required of any
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Obligor other than pursuant to such applicable laws and regulations as shall at
any time be in force and as shall require such additional insurance. If the
Mortgaged Property or Foreclosure Property is located at the time of origination
of the Mortgage Loan in a federally designated special flood hazard area (and if
the flood insurance policy referenced herein has been made available), the
Servicer will cause to be maintained flood insurance in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the sum of the
Principal Balance of the related Mortgage Loan and any Senior Lien, (ii) the
maximum insurable value of the related Mortgaged Property and (iii) the maximum
amount of such insurance available for the related Mortgaged Property under the
national flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program).
Section 4.10 Maintenance of Mortgage Impairment Insurance Policy.
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer having a general policy rating of A:VIII or better in
Best's Key Rating Guide, insuring against fire and hazards of extended coverage
on all of the Mortgage Loans, then, to the extent such policy names the Servicer
as loss payee and provides coverage in an amount equal to the aggregate unpaid
principal balance on the Mortgage Loans without co-insurance, and otherwise
complies with the requirements of Section 4.09, the Servicer shall be deemed
conclusively to have satisfied its obligations with respect to fire and hazard
insurance coverage under Section 4.09, it being understood and agreed that such
blanket policy may contain a deductible clause that is in form and substance
consistent with standard industry practice for servicers of mortgage loans
comparable to the Mortgage Loans, in which case the Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property a
policy complying with Section 4.09 and there shall have been a loss which would
have been covered by such policy, deposit in the Collection Account the
difference, if any, between the amount that would have been payable under a
policy complying with Section 4.09 and the amount paid under such blanket
policy. Upon the request of the Indenture Trustee or any Securityholder, the
Servicer shall cause to be delivered to the Indenture Trustee or such
Certificateholder, as the case may be, a certified true copy of such policy. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself, the
Indenture Trustee and Securityholders, claims under any such policy in a timely
fashion in accordance with the terms of such policy.
Section 4.11 Reports to the Securities and Exchange Commission.
The Indenture Trustee shall, on behalf of the Trust, cause to be filed
with the Securities and Exchange Commission all monthly collateral reports on
Forms 8-K and 10-K required to be filed under the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission thereunder. Upon the request of the Indenture
Trustee, each of the Servicer and the Transferor shall cooperate with the
Indenture Trustee in the preparation of any such report and shall provide to the
Indenture Trustee in a timely manner all such information or documentation as
the Indenture Trustee may reasonably request in connection with the performance
of its duties and obligations under this Section.
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Section 4.12 Payment of Taxes, Insurance and Other Charges.
The Servicer may and, if required by the Servicer, the Subservicers
shall, establish and maintain one or more accounts (the "Servicing Accounts"),
into which any collections from the Obligors (or related advances from
Subservicers) for the payment of taxes, assessments, hazard insurance premiums,
and comparable items for the account of the Obligors shall be deposited and
retained. Servicing Accounts shall be Eligible Accounts. Withdrawals of amounts
so collected from a Servicing Account may be made only to (i) effect timely
payment of taxes, assessments, hazard insurance premiums, and comparable items;
(ii) reimburse the Servicer (or a Subservicer to the extent provided in the
related Subservicing Agreement) out of related collections for any advances with
respect to taxes, assessments and insurance premiums and with respect to hazard
insurance; (iii) refund to Obligors any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to Obligors on
balances in the Servicing Account; or (v) clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 11.01.
As part of its servicing duties, the Servicer or Subservicers shall pay to the
Obligors interest on funds in Servicing Accounts, to the extent required by law,
and to the extent that interest earned on funds in the Servicing Accounts is
insufficient, shall pay such interest from its or their own funds, without any
reimbursement from the Trust, the Indenture Trustee, the Depositor or any
Securityholder therefor. Upon request of the Indenture Trustee, the Transferor
or the Servicer shall cause the bank, savings association or other depository
for each Servicing Account to forward to the Indenture Trustee copies of such
statements or reports as the Indenture Trustee, the Depositor, or any
Securityholder shall reasonably request.
Section 4.13 Filing of Continuation Statements.
On or before the fifth anniversary of the filing of any financing
statements by Cityscape and the Depositor, respectively, with respect to the
assets conveyed to the Trust, Cityscape and the Depositor shall prepare, have
executed by the necessary parties and file in the proper jurisdictions all
financing and continuation statements necessary to maintain the liens, security
interests, and priorities of such liens and security interests that have been
granted by Cityscape and the Depositor, respectively, and Cityscape and the
Depositor shall continue to file on or before each fifth anniversary of the
filing of any financing and continuation statements such additional financing
and continuation statements until the Trust has terminated pursuant to Section
9.1 of the Trust Agreement. The Indenture Trustee agrees to cooperate with
Cityscape and the Depositor in preparing, executing and filing such statements.
The Indenture Trustee agrees to notify Cityscape and the Depositor on the third
Distribution Date prior to each such fifth anniversary of the requirement to
file such financing and continuation statements. The filing of any such
statement with respect to Cityscape and the Depositor shall not be construed as
any indication of an intent of any party contrary to the expressed intent set
forth in Section 2.04 hereof. If Cityscape or the Depositor has ceased to do
business whenever any such financing and continuation statements must be filed
or Cityscape or the Depositor fails to file any such financing statements or
continuation statements at least one month prior to the expiration thereof, the
Indenture Trustee shall perform the services required under this Section 4.13.
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ARTICLE V.
ESTABLISHMENT OF TRUST ACCOUNTS
Section 5.01 Collection Account and Note Distribution Account.
(a) (1) Establishment of Collection Account. The Servicer, for the
benefit of the Securityholders, shall cause to be established and maintained one
or more Collection Accounts, which shall be separate Eligible Accounts, which
may be interest-bearing, entitled "Collection Account,
______________________________, as Indenture Trustee, in trust for the Cityscape
Mortgage Loan Asset Backed Securities, Series 199_-_". The Collection Account
may be maintained with the Indenture Trustee or any other depository institution
which satisfies the requirements set forth in the definition of Eligible
Account. The creation of any Collection Account other than one maintained with
the Indenture Trustee shall be evidenced by a letter agreement between the
Servicer and the depository institution acceptable to the Indenture Trustee. A
copy of such letter agreement shall be furnished to the Indenture Trustee and,
upon request of any Securityholder, to such Securityholder. Funds in the
Collection Account shall be invested in accordance with Section 5.03.
The Collection Account shall be established, as of the Closing Date,
with the Indenture Trustee as an Eligible Account pursuant to the definition
thereof. The Collection Account may, upon written notice to the Issuer and the
Indenture Trustee, be transferred to a different depository institution so long
as such transfer is to an Eligible Account reasonably acceptable to the
Indenture Trustee.
(2) Establishment of Note Distribution Account. No later than the
Closing Date, the Servicer, for the benefit of the Securityholders, shall cause
to be established and maintained with the Indenture Trustee one or more Note
Distribution Accounts, which shall be separate Eligible Accounts, which may be
interest-bearing and which shall be entitled "Note Distribution Account,
______________________________, as Indenture Trustee, in trust for the Cityscape
Mortgage Loan Asset Backed Securities, Series 199_-_". Funds in the Note
Distribution Account shall be invested in accordance with Section 5.03.
(b) (1) Deposits to Collection Account. The Servicer shall use its best
efforts to deposit or cause to be deposited (without duplication) within two (2)
Business Days of receipt thereof in the Collection Account and retain therein in
trust for the benefit of the Securityholders:
(i) all payments on account of principal on the Mortgage Loans
collected after the Cut-Off Date;
(ii) all payments on account of interest on the Mortgage Loans
received after the Cut-Off Date;
(iii) all Net Liquidation Proceeds and Post Liquidation
Proceeds pursuant to Sections 4.02 or 4.04;
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(iv) all Insurance Proceeds;
(v) all Released Mortgaged Property Proceeds;
(vi) any amounts payable in connection with the repurchase of
any Mortgage Loan and the amount of any Substitution Adjustment
pursuant to Sections 2.06 and 3.06;
(vii) any amount required to be deposited in the Collection
Account pursuant to the receipt of proceeds from any insurance policies
under Section 4.03 or the deposit of the Termination Price under
Section 11.02; and
(viii) any amounts to be deposited from the Capitalized
Interest Account.
The Servicer shall be entitled to retain and not deposit into the
Collection Account any amounts received with respect to a Mortgage Loan that
constitute additional servicing compensation pursuant to Section 7.03, and such
amounts retained by the Servicer during a Due Period shall be excluded from the
calculation of the Servicing Compensation that is distributable to the Servicer
from the Note Distribution Account on the next Distribution Date following such
Due Period.
(2) Deposits to Note Distribution Account. On the Business Day
prior to the Distribution Date, the Indenture Trustee (based on information
provided by the Servicer for such Distribution Date) shall withdraw from the
Collection Account the Available Collection Amount and deposit such into the
Note Distribution Account for such Distribution Date. In addition, on each of
the first three Distribution Dates, the Servicer shall deposit to the Note
Distribution Account the amounts of any Pre-Funding Earnings for the related Due
Period or any amounts to be deposited thereto pursuant to Section 5.05(b) or
5.05(c), as applicable.
(3) Withdrawals from Collection Account. The Indenture
Trustee, at the direction of the Servicer, shall also make the following
withdrawals from the Collection Account, in no particular order of priority, but
in the cases of clauses (ii), (iii) and (iv), after giving effect to any
withdrawal therefrom pursuant to 5.01(b)(2):
(i) to withdraw any amount not required to be deposited in the
Collection Account or deposited therein in error;
(ii) on each Distribution Date, to pay to the Servicer any
accrued and unpaid Servicing Fees and any additional Servicing
Compensation pursuant to Section 7.03 not withheld pursuant to Section
5.01(b)(1);
(iii) on each Distribution Date, to pay to the Servicer any
unreimbursed Servicing Advances; provided, however, that the Servicer's
right to reimbursement for unreimbursed Servicing Advances shall be
limited to late collections (excluding the scheduled monthly payments)
on the related Mortgage Loans, including, without limitation, late
collections constituting Liquidation Proceeds, Released Mortgaged
Property Proceeds, Insurance Proceeds, Post Liquidation Proceeds and
such other amounts as may be collected
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by the Servicer from the related Obligor or otherwise relating to the
Mortgage Loan in respect of which such unreimbursed amounts are owed;
(iv) on each Distribution Date, to reimburse the Servicer for
any Servicing Advances determined by the Servicer in good faith to have
become Nonrecoverable Servicing Advances; and
(v) to make payments set forth in Section 9.01(e).
(c) Withdrawals from Note Distribution Account. To the extent funds are
available in the Note Distribution Account, the Indenture Trustee (based on the
information provided by the Servicer contained in the Servicer Remittance Report
for such Distribution Date) shall make withdrawals therefrom by 11:00 a.m. (New
York City time) on each Distribution Date, for application in the following
order of priority:
(i) to distribute on such Distribution Date the following
amounts pursuant to the Indenture in the following order: (a) to the
Indenture Trustee, an amount equal to the Indenture Trustee Fee and all
unpaid Indenture Trustee Fees from prior Distribution Dates, and (b) to
the Servicer, in trust for the Owner Trustee, an amount equal to the
Owner Trustee Fee and all unpaid Owner Trustee Fees from prior
Distribution Dates; and
(ii) to deposit into the Certificate Distribution Account the
applicable portions of the Available Distribution Amount distributable
in respect of the Residual Interest calculated pursuant to 5.01(d) and
(e) below on such Distribution Date;
Notwithstanding that the Notes have been paid in full, the Indenture
Trustee and the Servicer shall continue to maintain the Collection Account and
the Note Distribution Account hereunder until the Class Principal Balance of
each Class of Securities has been reduced to zero.
(d) On each Distribution Date, the Indenture Trustee shall distribute
the Regular Distribution Amount from the Note Distribution Account (in the case
of all amounts distributable to Noteholders), in the following order of
priority:
(i) to the holders of the Senior Notes, the Senior
Noteholders' Interest Distribution Amount for such Distribution Date
allocated to each Class of Senior Notes, pro rata, based on the amount
of interest distributable in respect of each such Class based on the
related Note Interest Rate;
(ii) [INSERT ADDITIONAL CLASSES OF NOTES TO RECEIVE PAYMENTS
WITH RESPECT TO INTEREST, AS APPLICABLE];
(iii) if with respect to such Distribution Date the
Pre-Funding Pro Rata Distribution Trigger has occurred, the amount on
deposit in the Pre-Funding Account at the end of the Funding Period
will be distributed as principal to all Classes of Notes and the
Residual Interest pro rata, based on the Original Class Principal
Balances thereof (which, with respect to the Residual Interest, for
purposes of this clause, shall be represented by the
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Overcollateralization Amount on the Closing Date) in relation to the
sum of the Original Pool Principal Balance and the Original Pre-Funded
Amount;
(iv) [INSERT ADDITIONAL CLASSES OF NOTES TO RECEIVE PAYMENTS
WITH RESPECT TO PRINCIPAL, AS APPLICABLE];
(v) any remaining amount to the holders of the Residual
Interest.
(e) On each Distribution Date, the Indenture Trustee shall distribute
the Excess Spread, if any, in the following order of priority (in each case,
after giving effect to the distributions in Section 5.01(d)):
(i) in an amount equal to the Overcollateralization Deficiency
Amount, if any, as follows:
(A) [INSERT DISTRIBUTION SCHEME AMONG NOTEHOLDERS];
and
(ii) sequentially, to the Class [ ] Notes and [INSERT OTHER
APPROPRIATE CLASSES OF NOTES], in that order, until their respective
Loss Reimbursement Deficiencies, if any, have been paid in full; and
(iii) any remaining amount to the holders of the Residual
Interest.
(f) Notwithstanding the priorities specified above, on any Distribution
Date as to which the Class Principal Balances of each of the Class [ ] Notes and
[INSERT APPROPRIATE CLASSES OF NOTES] and the Overcollateralization Amount have
been reduced to zero, distributions of principal on the Classes of Senior Notes
will be applied to such Classes pro rata based on their respective Class
Principal Balances.
Section 5.02 Certificate Distribution Account and Distributions on the
Notes.
(a) Establishment. No later than the Closing Date, the Servicer, for
the benefit of the Securityholders, shall cause to be established and maintained
with the Indenture Trustee for the benefit of the Owner Trustee on behalf of the
Certificateholders one or more separate Eligible Accounts, which Trust
Account(s) shall be entitled "Certificate Distribution Account, _____________
_________________, as Indenture Trustee, in trust for the Cityscape Loan Trust
Series 199_-_". Funds in the Certificate Distribution Account shall be invested
in accordance with Section 5.03.
(b) [RESERVED].
(c) Distributions. On each Distribution Date, the Indenture Trustee
shall withdraw from the Note Distribution Account all amounts required to be
deposited in the Certificate Distribution Account with respect to such
Distribution Date pursuant to Section 5.01(c)(ii) and will remit such amount to
the Owner Trustee or the Co-Owner Trustee for deposit into the Certificate
Distribution Account. The Indenture Trustee shall distribute all remaining
amounts on deposit in the Note Distribution Account to the holders of the Notes
to the extent of amounts due and unpaid
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on the Notes for principal thereof and interest thereon as set forth in Section
5.01(d). The Owner Trustee or the Co-Owner Trustee shall distribute all amounts
on deposit in the Certificate Distribution Account to the holders of the
Residual Interest.
(d) All distributions made on the Notes on each Distribution Date will
be made on a pro rata basis among the Noteholders of record of such Class on the
next preceding Record Date based on the Percentage Interest represented by their
respective Notes, and except as otherwise provided in the next succeeding
sentence, shall be made by wire transfer of immediately available funds to the
account of such Noteholder, if such Noteholder shall own of record Notes which
have original denominations aggregating at least $250,000 and shall have so
notified the Indenture Trustee, and otherwise by check mailed to the address of
such Noteholder appearing in the Notes Register. The final distribution on each
Note will be made in like manner, but only upon presentment and surrender of
such Note at the location specified in the notice to Noteholders of such final
distribution.
(e) [RESERVED].
(f) All distributions made on the Residual Interest on each
Distribution Date will be made on a pro rata basis among the holders of the
Residual Interest of record on the next preceding Record Date based on the
Percentage Interest represented by their respective Residual Interest, and
except as otherwise provided in the next succeeding sentence, shall be made by
wire transfer of immediately available funds to the account of each such holder,
if such holder shall own of record a Residual Interest which represents a
Percentage Interest equal to at least 10% in amount and shall have so notified
the Owner Trustee or Co-Owner Trustee, and otherwise by check mailed to the
address of such Residual Interest holder appearing in the Certificate Register.
The final distribution on each Residual Interest Instrument will be made in like
manner, but only upon presentment and surrender of such Residual Interest
Instrument at the location specified in the notice to holders of the Residual
Interest of such final distribution.
Section 5.03 Trust Accounts; Trust Account Property.
(a) Control of Trust Accounts. Each of the Trust Accounts established
hereunder has been pledged by the Issuer to the Indenture Trustee under the
Indenture and shall be subject to the lien of the Indenture. In addition to the
provisions hereunder, each of the Trust Accounts shall also be established and
maintained pursuant to the Indenture. Amounts distributed from each Trust
Account in accordance with the Indenture and this Agreement shall be released
from the lien of the Indenture upon such distribution thereunder or hereunder.
The Indenture Trustee shall possess all right, title and interest in all funds
on deposit from time to time in the Trust Accounts (other than the Certificate
Distribution Account) and in all proceeds thereof (excluding all income
thereon), and all such funds, investments, proceeds and income shall be part of
the Trust Account Property and the Trust Estate. If, at any time, any Trust
Account ceases to be an Eligible Account, the Indenture Trustee (or the Servicer
on its behalf) shall within ten (10) Business Days (or such longer period, not
to exceed thirty (30) calendar days, as to which each Rating Agency may consent)
(i) establish a new Trust Account as an Eligible Account, (ii) terminate the
ineligible Trust Account
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and (iii) transfer any cash and investments from such ineligible Trust Account
to such new Trust Account.
With respect to the Trust Accounts (other than the Certificate
Distribution Account), the Indenture Trustee agrees, by its acceptance hereof,
that each such Trust Account shall be subject to the sole and exclusive custody
and control of the Indenture Trustee for the benefit of the Securityholders and
the Issuer, as the case may be, and the Indenture Trustee shall have sole
signature and withdrawal authority with respect thereto.
In addition to this Agreement and the Indenture, the Certificate
Distribution Account established hereunder also shall be subject to and
established and maintained in accordance with the Trust Agreement. Subject to
rights of the Indenture Trustee hereunder and under the Indenture, the Owner
Trustee or Co-Owner Trustee shall possess all right, title and interest for the
benefit of the Certificateholders in all funds on deposit from time to time in
the Certificate Distribution Account and in all proceeds thereof (excluding all
income thereon) and all such funds, investments, proceeds and income shall be
part of the Trust Account Property and the Trust Estate. Subject to the rights
of the Indenture Trustee, the Owner Trustee and Co-Owner Trustee each agrees, by
its acceptance hereof, that such Certificate Distribution Account shall be
subject to the sole and exclusive custody and control of the Owner Trustee and
Co-Owner Trustee for the benefit of the Issuer and the parties entitled to
distributions therefrom, including without limitation, the Certificateholders,
and the Owner Trustee and the Co-Owner Trustee shall have sole signature and
withdrawal authority with respect to the Certificate Distribution Account.
Notwithstanding the preceding, the distribution of amounts from the Certificate
Distribution Account in accordance with Section 5.02(c) also shall be made for
the benefit of the Indenture Trustee (including, without limitation, with
respect to its duties under the Indenture and this Agreement relating to the
Trust Estate), and the Indenture Trustee (in its capacity as Indenture Trustee)
shall have the right, but not the obligation, to take custody and control of the
Certificate Distribution Account and to cause the distribution of amounts
therefrom in the event that the Owner Trustee fails to distribute such amounts
in accordance with Section 5.02(f).
The Servicer shall have the power, revocable by the Indenture Trustee
or by the Owner Trustee or Co-Owner Trustee with the consent of the Indenture
Trustee, to instruct the Indenture Trustee or Owner Trustee to make withdrawals
and payments from the Trust Accounts for the purpose of permitting the Servicer
to carry out its respective duties hereunder or permitting the Indenture Trustee
or Owner Trustee to carry out its duties herein or under the Indenture or the
Trust Agreement, as applicable.
(b) (1) Investment of Funds. So long as no Event of Default shall have
occurred and be continuing, the funds held in any Trust Account may be invested
(to the extent practicable and consistent with any requirements of the Code) in
Permitted Investments, as directed by the Servicer in writing or by telephone or
facsimile transmission confirmed in writing by the Servicer. In any case, funds
in any Trust Account must be available for withdrawal without penalty, and any
Permitted Investments must mature or otherwise be available for withdrawal, not
later than the Business Day immediately preceding the Distribution Date next
following the date of such investment and shall not be sold or disposed of prior
to its maturity, subject to Section 5.03(b)(2)
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below. All interest and any other investment earnings on amounts or investments
held in any Trust Account shall be deposited into the Collection Account
immediately upon receipt by the Indenture Trustee, or in the case of the
Certificate Distribution Account, the Owner Trustee or Co-Owner Trustee, as
applicable, but shall be payable to the Servicer as additional Servicing
Compensation and may be withdrawn from the Collection Account pursuant to
Section 5.01(b)(3)(ii). All Permitted Investments in which funds in any Trust
Account (other than the Certificate Distribution Account) are invested must be
held by or registered in the name of "______________________________, as
Indenture Trustee, in trust for the Cityscape Mortgage Loan Asset Backed
Securities, Series 199_-_". While the Co-Owner Trustee holds the Certificate
Distribution Account, all Permitted Investments in which funds in the
Certificate Distribution Account are invested shall be held by or registered in
the name of "______________________________, as Co-Owner Trustee, in trust for
the Cityscape Mortgage Loan Asset Backed Securities, Series 199_-_".
(2) Insufficiency and Losses in Trust Accounts. If any amounts
are needed for disbursement from any Trust Account held by or on behalf of the
Indenture Trustee and sufficient uninvested funds are not available to make such
disbursement, the Indenture Trustee, or Owner Trustee or Co-Owner Trustee in the
case of the Certificate Distribution Account, shall cause to be sold or
otherwise converted to cash a sufficient amount of the investments in such Trust
Account. The Indenture Trustee, or Owner Trustee or Co-Owner Trustee in the case
of the Certificate Distribution Account, shall not be liable for any investment
loss or other charge resulting therefrom, unless such loss or charge is caused
by the failure of the Indenture Trustee or Owner Trustee or Co-Owner Trustee,
respectively, to perform in accordance with this Section 5.03.
If any losses are realized in connection with any investment in any
Trust Account pursuant to this Agreement and the Indenture, then the Servicer
shall deposit the amount of such losses (to the extent not offset by income from
other investments in such Trust Account) in such Trust Account immediately upon
the realization of such loss. All interest and any other investment earnings on
amounts held in any Trust Account shall be taxed to the Issuer and, for federal
and state income tax purposes, the Issuer shall be deemed to be the owner of
each Trust Account.
(c) Subject to Section 6.01 of the Indenture, the Indenture Trustee
shall not in any way be held liable by reason of any insufficiency in any Trust
Account held by the Indenture Trustee resulting from any investment loss on any
Permitted Investment included therein (except to the extent that the Indenture
Trustee is the obligor and has defaulted thereon).
(d) With respect to the Trust Account Property (other than the
Certificate Distribution Account and amounts held from time to time therein),
the Indenture Trustee acknowledges and agrees that:
(1) any Trust Account Property that is held in deposit
accounts shall be held solely in Eligible Accounts, subject to the last
sentence of Section 5.03(a); and each such Eligible Account shall be
subject to the exclusive custody and control of the Indenture Trustee,
and the Indenture Trustee shall have sole signature authority with
respect thereto;
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(2) any Trust Account Property that constitutes Physical
Property shall be delivered to the Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by the Indenture Trustee or a
financial intermediary (as such term is defined in Section 8-313(4) of
the UCC) acting solely for the Indenture Trustee;
(3) any Trust Account Property that is a book-entry security
held through the Federal Reserve System pursuant to federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by the Indenture
Trustee, pending maturity or disposition, through continued book-entry
registration of such Trust Account Property, as described in such
paragraph; and
(4) any Trust Account Property that is an "uncertificated
security" under Article VIII of the UCC and is not governed by clause
(3) above shall be delivered to the Indenture Trustee in accordance
with paragraph (c) of the definition of "Delivery" and shall be
maintained by the Indenture Trustee, pending maturity or disposition,
through continued registration of the Indenture Trustee's (or its
nominee's) ownership of such security.
(e) The Servicer shall have the power, revocable by the Indenture
Trustee or by the Issuer with the consent of the Indenture Trustee, to instruct
the Indenture Trustee to make withdrawals and payments from the Trust Accounts
for the purpose of permitting the Servicer or the Issuer to carry out their
respective duties hereunder or permitting the Indenture Trustee to carry out its
duties under the Indenture.
Section 5.04 Allocation of Losses.
(a) In the event that Net Liquidation Proceeds, Insurance Proceeds or
Released Mortgaged Property Proceeds on a Liquidated Mortgage Loan are less than
the related Principal Balance plus accrued interest thereon, or any Obligor
makes a partial payment of any Monthly Payment due on a Mortgage Loan, such Net
Liquidation Proceeds, Insurance Proceeds, Released Mortgaged Property Proceeds
or partial payment shall be applied to payment of the related Debt Instrument,
first to interest accrued at the Mortgage Loan Interest Rate and then to
principal.
(b) On any Distribution Date, any Allocable Loss Amounts shall be
applied to the reduction of the Class Principal Balances of the Class [] Notes
and [INSERT CLASSES OF NOTES TO WHICH LOSSES ARE TO BE ALLOCABLE] in accordance
with the Allocable Loss Amount Priority.
Section 5.05 Pre-Funding Account.
(a) The Servicer, for the benefit of the Noteholders, shall establish
and maintain in the name of the Indenture Trustee an Eligible Account (the
"Pre-Funding Account") bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders.
On the Closing Date, the Owner Trustee will deposit in the Pre-Funding
Account the Pre-Funded Amount from the net proceeds of the sale of the Notes. On
each Subsequent Transfer Date,
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upon satisfaction of the conditions set forth in Section 2.07 with respect to
such transfer, the Indenture Trustee shall withdraw from the Pre-Funding Account
an amount equal to the Principal Balances of the Subsequent Loans transferred to
the Issuer on such Subsequent Transfer Date, and shall distribute such amount to
or upon the order of the Transferor.
(b) If the Pre-Funded Amount has not been reduced to zero on the last
day of the Funding Period after giving effect to any reductions in the
Pre-Funded Amount on such date pursuant to paragraph (a) above, the Indenture
Trustee shall withdraw the Pre-Funded Amount from the Pre-Funding Account on the
Mandatory Redemption Date and (i) if the Pre-Funded Amount is less than
$100,000, deposit such amount in the Note Distribution Account to be applied to
reduce the Outstanding Amount of the Class of Notes then entitled to
distributions of principal and (ii) if the Pre-Funded Amount is greater than or
equal to $100,000, deposit such amounts to the Note Distribution Account for
distribution pursuant to Section 5.01(d)(iii).
(c) On the Business Day preceding each of the second and third
Distribution Dates, if applicable, the Indenture Trustee shall withdraw the
related Pre-Funding Earnings for the related Due Period and deposit such amounts
into the Note Distribution Account.
Section 5.06 Capitalized Interest Account.
(a) The Servicer, for the benefit of the Noteholders, shall establish
and maintain in the name of the Indenture Trustee an Eligible Account (the
"Capitalized Interest Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Noteholders.
(b) On each Determination Date during the Funding Period (including the
Determination Date in the month following the Due Period during which the
Funding Period ends), the Indenture Trustee will withdraw from the Capitalized
Interest Account an amount equal to the Capitalized Interest Requirement and
deposit such amount into the Collection Account.
(c) On the Mandatory Redemption Date, any amounts remaining in the
Capitalized Interest Account shall be paid to the Transferor.
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ARTICLE VI.
STATEMENTS AND REPORTS; SPECIFICATION OF TAX MATTERS
Section 6.01 Statements.
(a) No later than each Determination Date, the Servicer shall deliver
to the Indenture Trustee (i) computer-readable magnetic tape setting forth the
payments and collections received with respect to the Mortgage Loans during the
Due Period for the month immediately preceding the month in which such
Determination Date occurs (each such tape, a "Servicer Remittance Report") and
(ii) if not included in the Servicer Remittance Report, a report and an
electromagnetic tape in computer readable format setting forth the information
described in clauses (A)-(I) of Section 6.01(b) for the month immediately
preceding the month in which such Determination Date occurs (such report, a
"Delinquency Report"). Furthermore, no later than each Determination Date, the
Servicer shall deliver to the Indenture Trustee a magnetic tape or computer disk
providing such information regarding the Servicer's activities in servicing the
Mortgage Loans during the related Due Period as the Indenture Trustee may
reasonably require.
(b) On each Distribution Date, Indenture Trustee shall distribute,
based on information provided by the Servicer, a monthly statement (the
"Distribution Statement"), to the Depositor, the Securityholders and the Rating
Agencies, stating the date of original issuance of the Securities (day, month
and year), the name of the Issuer (i.e., "Cityscape Loan Trust 199_-_"), the
series designation of the Notes (i.e., "Series 199 - "), the date of this
Agreement and the following information:
(i) the Available Collection Amount and Available Distribution
Amount for the related Distribution Date;
(ii) the Class Principal Balance of each Class of Notes before
and after giving effect to distributions made to the holders of such
Securities on such Distribution Date and the Pool Principal Balance as
of the first and last day of the related Due Period;
(iii) the Class Factor with respect to each Class of the
Securities then outstanding;
(iv) the amount of principal and interest received on the
Mortgage Loans during the related Due Period;
(v) with respect to each applicable Class of Securities, the
Optimal Principal Balance thereof;
(vi) the Overcollateralization Deficiency Amount, and any
amount to be distributed to the Securityholders or the holders of the
Residual Interest on such Distribution Date;
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(vii) the Servicing Compensation, the Indenture Trustee Fee
and the Owner Trustee Fee for such Distribution Date;
(viii) the Overcollateralization Amount on such Distribution
Date, the Overcollateralization Target Amount as of such Distribution
Date and the Allocable Loss Amount for such Distribution Date;
(ix) the weighted average maturity of the Mortgage Loans and
the weighted average Mortgage Loan Interest Rate of the Mortgage Loans;
(x) certain performance information, including delinquency and
foreclosure information with respect to the Mortgage Loans, as set
forth in the Servicer Remittance Report; and
(xi) the Pre-Funding Amount at the end of the related Due
Period.
In addition, on each Distribution Date, the Indenture Trustee shall
distribute to each Securityholder, together with the information described
above, the following information, based solely upon information provided to the
Indenture Trustee pursuant to Section 6.01(a) hereof, upon which the Indenture
Trustee may conclusively rely without independent verification:
(A) the number and aggregate Principal Balance (including the
percentage equivalent relative to the aggregate Principal Balance of
all Mortgage Loans) of Mortgage Loans (i) 30-59 days delinquent, (ii)
60-89 days delinquent and (iii) 90 days or more delinquent (which
statistics shall include Mortgage Loans in foreclosure and bankruptcy
but which shall exclude Foreclosure Properties), as of the close of
business on the last day of the calendar month next preceding such
Distribution Date as well as the aggregate Principal Balances of all
Mortgage Loans as of such date;
(B) the number of, and aggregate Principal Balance of, all
Mortgage Loans in foreclosure proceedings (other than any Mortgage
Loans described in clause (C)) and the percentage of the aggregate
Principal Balances of such Mortgage Loans relative to the aggregate
Principal Balances of all Mortgage Loans, all as of the close of
business on the last day of the calendar month next preceding such
Distribution Date;
(C) the number of, and the aggregate Principal Balance of, all
Mortgage Loans in bankruptcy proceedings (other than any Mortgage Loans
described in clause (B)) and the percentage of the aggregate Principal
Balances of such Mortgage Loans relative to the aggregate Principal
Balances of all Mortgage Loans, all as of the close of business on the
last day of the calendar month next preceding such Distribution Date;
(D) the number of Foreclosure Properties, the aggregate
Principal Balances of the related Mortgage Loans, the book value of
such Foreclosure Properties and the percent of the aggregate Principal
Balances of such Mortgage Loans to the aggregate Principal Balances of
all Mortgage Loans, all as of the close of business on the last day of
the calendar month next preceding such Distribution Date;
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(E) for each Foreclosure Property, the Principal Balance of
the related Mortgage Loan, the loan number of such Mortgage Loans, the
value of the Mortgaged Property, the value established by any new
appraisal, the estimated cost of disposing of the Mortgage Loan and the
amount of any unreimbursed Servicing Advances;
(F) for each Mortgage Loan which is in foreclosure, the
Principal Balance of such Mortgage Loan, the book value of the
Mortgaged Property, the Loan-to-Value Ratio as of the date of
origination, the Loan-to-Value Ratio as of the close of business on the
last day of the calendar month next preceding such Distribution Date
and the last paid to date;
(G) the principal balance of each Mortgage Loan that was
modified or extended pursuant to the terms hereof;
(H) during the related Due Period, the number of and aggregate
Principal Balance and the loan numbers of all Mortgage Loans that,
respectively, (A) became Liquidated Mortgage Loans and (B) became
Defective Mortgage Loans pursuant to Section 3.06, including the
foregoing amounts by loan type (i.e., Combination Loans or Debt
Consolidation Loans);
(I) from the Closing Date through the most current Due Period,
the number of and cumulative aggregate Principal Balance of all
Mortgage Loans that, respectively, (A) became Liquidated Mortgage Loans
and (B) became Defective Mortgage Loans pursuant to Section 3.06,
including the foregoing amounts by loan type (i.e., Combination Loans
or Debt Consolidation Loans); and
(J) the Net Delinquency Calculation Amount for such
Distribution Date.
All reports prepared by the Indenture Trustee of the withdrawals from
and deposits in the Collection Account will be based in whole or in part upon
the information provided to the Indenture Trustee by the Servicer, and the
Indenture Trustee may fully rely upon and shall have no liability with respect
to such information provided by the Servicer.
(c) Within a reasonable period of time after the end of each calendar
year, the Indenture Trustee shall prepare and distribute to each Person who at
any time during the calendar year was a Securityholder, such information as is
reasonably necessary to provide to such Person a statement containing the
information set forth in subclauses (b)(iv) and (vii) above, aggregated for such
calendar year or applicable portion thereof during which such Person was a
Securityholder.
(d) On each Distribution Date, the Indenture Trustee shall forward to
each holder of a Residual Interest a copy of the Distribution Statement in
respect of such Distribution Date and a statement setting forth the amounts
actually distributed to such holders of a Residual Interest on such Distribution
Date, together with such other information as the Indenture Trustee deems
necessary or appropriate.
(e) Within a reasonable period of time after the end of each calendar
year, the Indenture Trustee shall prepare and distribute to each Person who at
any time during the calendar year was a
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holder of a Residual Interest, if requested in writing by such Person, such
information as is reasonably necessary to provide to such Person a statement
containing the information provided pursuant to the previous paragraph,
aggregated for such calendar year or applicable portion thereof during which
such Person was a holder of Residual Interest.
(f) Upon reasonable advance notice in writing, the Servicer will
provide to each Securityholder which is a savings and loan association, bank or
insurance company access to information and documentation regarding the Mortgage
Loans sufficient to permit such Securityholder to comply with applicable
regulations of the FDIC or other regulatory authorities with respect to
investment in such Securities.
(g) The Indenture Trustee shall forward to each Securityholder and the
holder of a Residual Interest, during the term of this Agreement, such periodic,
special, or other reports, including information tax returns or reports required
with respect to the Securities and the Residual Interest, including Internal
Revenue Service Forms 1099 and (if instructed in writing by the Depositor on the
basis of the advice of legal counsel) Form 1066, Schedule Q and other similar
reports that are required to be filed by the Indenture Trustee or its agent and
the holder of a Residual Interest, whether or not provided for herein, as shall
be necessary, reasonable, or appropriate with respect to the Securityholders or
the holder of a Residual Interest, or otherwise with respect to the purposes of
this Agreement, all such reports or information to be provided by and in
accordance with such applicable instructions and directions as the
Securityholders or the holder of a Residual Interest may reasonably require.
(h) Reports and computer tapes furnished by the Servicer and the
Indenture Trustee pursuant to this Agreement shall be deemed confidential and of
a proprietary nature and shall not be copied or distributed except in connection
with the purposes and requirements of this Agreement. No Person entitled to
receive copies of such reports or tapes shall use the information therein for
the purpose of soliciting the customers of the Depositor or the Servicer or for
any other purpose except as set forth in this Agreement.
Section 6.02 Reports of Foreclosure and Abandonment of Mortgaged
Property.
Each year beginning in 199_ [SPECIFY THE YEAR IMMEDIATELY SUCCEEDING
THE YEAR IN WHICH THE CLOSING DATE OCCURS], the Servicer, at its expense, shall
make the reports of foreclosures and abandonments of any Mortgaged Property
required by Section 6050J of the Code. The reports from the Servicer shall be in
form and substance sufficient to meet the reporting requirements imposed by such
Section 6050J of the Code.
Section 6.03 Specification of Certain Tax Matters.
Each Securityholder in whose name a Security is registered shall
provide the Indenture Trustee with a completed and executed Form W-9 or Form
W-8, as applicable, prior to purchasing a Security. The Indenture Trustee shall
comply with all requirements of the Code, and applicable state and local law,
with respect to the withholding from any distributions made to any
Securityholder of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection therewith.
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ARTICLE VII.
GENERAL SERVICING PROCEDURE
Section 7.01 Assumption Agreements.
Except as otherwise provided in the next sentence, the Servicer will,
to the extent it has knowledge of any conveyance or prospective conveyance of
any Mortgaged Property by any Obligor (whether by absolute conveyance or by
contract of sale and whether or not the Obligor remains or is to remain liable
under the Debt Instrument and/or the Mortgage), exercise its rights to
accelerate the maturity of such Mortgage Loan under the "due-on-sale" clause, if
any, applicable thereto. If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause or enforcement would
materially increase the risk of default or delinquency on, or impair the
security for, the Mortgage Loan, the Servicer will enter into an assumption and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Debt Instrument and, to the extent permitted by applicable
state law, the Obligor remains liable thereon. The Servicer is also authorized
to enter into a substitution of liability agreement with such person, pursuant
to which the original Obligor is released from liability and such person is
substituted as the Obligor and becomes liable under the Debt Instrument. In
connection with any assumption or substitution, the Servicer shall apply
Accepted Servicing Procedures. Any fee collected by the Servicer in respect of
an assumption or substitution of liability agreement will be retained by the
Servicer as additional servicing compensation. In connection with any such
assumption, no material term of the Debt Instrument (including, but not limited
to, the related Mortgage Loan Interest Rate and the amount of the Monthly
Payment) may be amended or modified, except as otherwise required pursuant to
the terms thereof. The Servicer shall notify the Indenture Trustee that any such
substitution or assumption agreement has been completed by forwarding to the
Indenture Trustee the original copy of such substitution or assumption
agreement, which copy shall be added to the related Trustee Mortgage Loan File
and shall, for all purposes, be considered a part of such Mortgage Loan File to
the same extent as all other documents and instruments constituting a part
thereof.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Debt Instrument or any
assumption which the Servicer believes in good faith that it may be restricted
by law from preventing, for any reason whatever. For purposes of this Section
7.01, the term "assumption" is deemed to also include a sale (of the Mortgaged
Property) subject to the Mortgage that is not accompanied by an assumption or
substitution of liability agreement.
Section 7.02 Satisfaction of Mortgages and Release of Mortgage Loan
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full shall be escrowed in a manner
customary for such purposes, the Servicer will notify the Indenture Trustee by
an appropriate certification of a Servicing Officer and
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shall request delivery to it of the Trustee Mortgage Loan File. Upon receipt of
such certification and request, the Indenture Trustee shall promptly release the
related Mortgage Loan File to the Servicer. The Servicer shall provide for
preparation of the appropriate instrument of satisfaction covering any Mortgage
Loan which pays in full, and the Indenture Trustee shall cooperate in the
execution and return of such instrument to provide for its delivery or recording
as may be required. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to any Trust Account or
shall be otherwise chargeable to the Trust, the Indenture Trustee or the
Securityholders.
From time to time and as appropriate for the servicing or foreclosure
of any Mortgage Loan, the Indenture Trustee shall, upon request of the Servicer
and delivery to the Indenture Trustee of a Request for Release in the form of
Exhibit D, release the related Mortgage Loan File to the Servicer, and the
Indenture Trustee shall, at the direction of the Servicer, execute such
documents as shall be necessary to the prosecution of any such proceedings. Such
Request for Release shall obligate the Servicer to return each and every
document previously requested from the Mortgage Loan File to the Indenture
Trustee when the need therefor by the Servicer no longer exists, unless the
Mortgage Loan has been liquidated and the Net Liquidation Proceeds relating to
the Mortgage Loan File have been deposited in the Collection Account or the
Mortgage Loan File or such document has been delivered to an attorney, or to a
public trustee or other public official as required by law, for purposes of
initiating or pursuing legal action or other proceedings for the foreclosure of
the Mortgaged Property either judicially or non-judicially, and the Servicer has
delivered to the Indenture Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage Loan
File or such document was delivered and the purpose or purposes of such
delivery. Upon receipt of a certificate of a Servicing Officer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation which are required to be deposited into the
Collection Account have been so deposited, a copy of the Request for Release
shall be released by the Indenture Trustee to the Servicer.
Upon written certification of a Servicing Officer, the Indenture
Trustee shall execute and deliver to the Servicer any court pleadings, requests
for trustee's sale or other documents necessary to the foreclosure or trustee's
sale in respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Obligor on the Debt Instrument or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
Debt Instrument or Mortgage or otherwise available at law or in equity. Each
such certification shall include a request that such pleadings or documents be
executed by the Indenture Trustee and a statement as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Indenture Trustee will not invalidate or otherwise affect the lien of the
Mortgage, except for the termination of such a lien upon completion of the
foreclosure or trustee's sale.
The Indenture Trustee shall, upon receipt of a written request from a
Servicing Officer, execute any document provided to the Indenture Trustee by the
Servicer or take any other action requested in such request that is, in the
opinion of the Servicer as evidenced by such request, required by any state or
other jurisdiction to discharge the lien of a Mortgage upon the satisfaction
thereof and the Indenture Trustee will sign and post, but will not guarantee
receipt of, any such
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documents to the Servicer, or such other party as the Servicer may direct,
within five (5) Business Days, or more promptly if needed, of the Indenture
Trustee's receipt of such certificate or documents. Such certificate or
documents shall establish to the Indenture Trustee's satisfaction that the
related Mortgage Loan has been paid in full by or on behalf of the Obligor and
that such payment has been deposited in the Collection Account.
Section 7.03 Servicing Compensation.
As compensation for its services hereunder, the Servicer shall be
entitled to receive from the Collection Account, the Servicing Fee out of which
the Servicer shall pay any servicing fees owed or payable to any Subservicer.
Additional servicing compensation in the form of assumption fees, modification
fees, and other administrative fees, insufficient funds charges, prepayment
penalties, amounts remitted pursuant to Section 7.01, late payment charges and
investment income on earnings on the Trust Accounts shall be part of the
Servicing Compensation payable to the Servicer hereunder and shall be paid
either by the Servicer retaining such additional servicing compensation prior to
deposit in the Collection Account pursuant to Section 5.01(b)(1) or, if
deposited into the Collection Account, as part of the Servicing Compensation
withdrawn from the Note Distribution Account pursuant to Section 5.01(b)(3)
hereof.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement therefor except as specifically provided for herein. The Servicer
also agrees to pay all annual Rating Agency monitoring fees.
Section 7.04 Statement as to Compliance and Financial Statements.
The Servicer will deliver to the Indenture Trustee, the Depositor and
the Transferor not later than ninety (90) days following the end of each
Servicer's Fiscal Year (beginning with the end of the Servicer's Fiscal Year in
_____ [SPECIFY THE YEAR IN WHICH THE CLOSING DATE OCCURS]), an Officers'
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Servicer during the preceding year and of performance under
this Agreement has been made under such officer's supervision and (ii) to the
best of such officer's knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement throughout such year or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status
thereof.
Contemporaneously with the submission of the Officers' Certificate
required by the preceding paragraph, the Servicer shall deliver to the Trustee a
copy of its annual audited financial statements prepared in the ordinary course
of business. The Servicer shall, upon the request of the Depositor, deliver to
such party any unaudited quarterly financial statements of the Servicer.
The Servicer agrees to make available on a reasonable basis to the
Depositor a knowledgeable officer of the Servicer for the purpose of answering
reasonable questions respecting recent developments affecting the Servicer or
the financial statements of the Servicer and to permit the Depositor or the
Underwriters on reasonable notice to inspect the Servicer's servicing facilities
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during normal business hours for the purpose of satisfying the Depositor that
the Servicer has the ability to service the Mortgage Loans in accordance with
this Agreement.
The Servicer shall also furnish and certify to the requesting party
such other information as to (i) its organization, activities and personnel
relating to the performance of the obligations of the Servicer hereunder, (ii)
its financial condition, (iii) the Mortgage Loans and (iv) the performance of
the obligations of any Subservicer under the related Subservicing Agreement, in
each case as the Trustee or the Depositor may reasonably request from time to
time.
Section 7.05 Independent Public Accountants' Servicing Report.
Not later than ninety (90) days following the end of each Servicer's
Fiscal Year (beginning with the end of the Servicer's Fiscal Year in _____
[SPECIFY THE YEAR IN WHICH THE CLOSING DATE OCCURRED]), the Servicer, at its
expense, shall cause any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., Coopers & ▇▇▇▇▇▇▇, Deloitte &
Touche, Ernst & Young, KPMG Peat Marwick and Price Waterhouse & Co., or such
other nationally recognized firm of Independent Certified Public Accountants,
(which may also render other services to the Servicer) to furnish a statement to
the Trustee, the Transferor and the Depositor to the effect that such firm has
examined certain documents and records relating to the servicing of the Mortgage
Loans under this Agreement or of mortgage loans under pooling and servicing
agreements (which shall include the Mortgage Loans and this Agreement)
substantially similar to one another (such statement to have attached thereto a
schedule setting forth the pooling and servicing agreements covered thereby) and
that, on the basis of such examination conducted substantially in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FHLMC, such firm confirms that such servicing
has been conducted in compliance with this Agreement or such pooling and
servicing agreements, as applicable, except for such significant exceptions or
errors in records that, in the opinion of such firm, the Uniform Single
Attestation Program for Mortgage Bankers or the Attestation Program for
Mortgages serviced for FHLMC requires it to report, each of which errors and
omissions shall be specified in such statement. In rendering such statement,
such firm may rely, as to matters relating to direct servicing of mortgage loans
by Subservicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Program for Mortgages serviced for FHLMC (rendered
within one year of such statement) of independent public accountants with
respect to the related Subservicer.
Section 7.06 Right to Examine Servicer Records.
Each Securityholder, the Indenture Trustee, the Issuer and each of
their respective agents shall have the right, upon reasonable prior notice,
during normal business hours and as often as reasonably required, to examine,
audit and copy, at the expense of the Person making such examination, any and
all of the books, records or other information of the Servicer (including,
without limitation, any Subservicer to the extent provided in the related
Subservicing Agreement) whether held by the Servicer or by another on behalf of
the Servicer, which may be relevant to the performance or observance by the
Servicer of the terms, covenants or conditions of this Agreement.
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Each Securityholder, the Indenture Trustee and the Issuer agree that any
information obtained pursuant to the terms of this Agreement shall be held
confidential.
Section 7.07 Reports to the Indenture Trustee; Collection Account
Statements.
If the Collection Account is not maintained with the Indenture Trustee,
then not later than twenty-five (25) days after each Record Date, the Servicer
shall forward to the Indenture Trustee a statement, certified by a Servicing
Officer, setting forth the status of the Collection Account as of the close of
business on the preceding Record Date and showing, for the period covered by
such statement, the aggregate of deposits into the Collection Account for each
category of deposit specified in Section 5.01(b)(1), the aggregate of
withdrawals from the Collection Account for each category of withdrawal
specified in Section 5.01(b)(2) and (3) for the related Due Period.
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ARTICLE VIII.
REPORTS TO BE PROVIDED BY SERVICER
Section 8.01 Financial Statements.
The Servicer understands that, in connection with the transfer of the
Securities, Securityholders may request that the Servicer make available to the
Securityholders and to prospective Securityholders annual audited financial
statements of the Servicer for one or more of the most recently completed five
(5) fiscal years for which such statements are available, which request shall
not be unreasonably denied.
The Servicer also agrees to make available on a reasonable basis to the
Securityholders or any prospective Securityholder a knowledgeable financial or
accounting officer for the purpose of answering reasonable questions respecting
recent developments affecting the Servicer or the financial statements of the
Servicer and to permit the Securityholders and any prospective Securityholder to
inspect the Servicer's servicing facilities during normal business hours for the
purpose of satisfying the Securityholders and such prospective Securityholder
that the Servicer has the ability to service the Mortgage Loans in accordance
with this Agreement.
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ARTICLE IX.
THE SERVICER
Section 9.01 Indemnification; Third Party Claims.
(a) The Servicer shall indemnify the Transferor, the Trust, the Owner
Trustee, the Co-Owner Trustee, the Depositor and the Indenture Trustee (each an
"Indemnified Party") and hold harmless each of them against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach of any of the Servicer's representations and warranties and covenants
contained in this Agreement or in any way relating to the failure of the
Servicer to perform its duties and service the Mortgage Loans in compliance with
the terms of this Agreement; provided, however, that if the Servicer is not
liable, pursuant to the provisions of Section 9.01(d) hereof, for its failure to
perform its duties and service the Mortgage Loans in compliance with the terms
of this Agreement, then the provisions of this Section 9.01 shall have no force
and effect with respect to such failure.
(b) The Transferor, the Owner Trustee, the Co-Owner Trustee, the
Depositor or the Indenture Trustee, as the case may be, shall promptly notify
the Servicer if a claim is made by a third party with respect to a breach of any
of the Servicer's representations and warranties and covenants contained in this
Agreement or in any way relating to the failure of the Servicer to perform its
duties and service the Mortgage Loans in compliance with the terms of this
Agreement. The Servicer shall promptly notify the Indenture Trustee and the
Depositor of any claim of which it has been notified pursuant to this Section
9.01 by a Person other than the Depositor and, in any event, shall promptly
notify the Depositor of its intended course of action with respect to any claim.
(c) The Servicer shall be entitled to participate in and, upon notice
to the Indemnified Party, assume the defense of any such action or claim in
reasonable cooperation with, and with the reasonable cooperation of, the
Indemnified Party. The Indemnified Party will have the right to employ its own
counsel in any such action in addition to the counsel of the Servicer, but the
fees and expenses of such counsel will be at the expense of such Indemnified
Party unless (a) the employment of counsel by the Indemnified Party at its
expense has been authorized in writing by the Servicer, (b) the Servicer has not
in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both the Servicer and one or more Indemnified Parties, and the
Indemnified Parties shall have been advised by counsel that there may be one or
more legal defenses available to them which are different from or additional to
those available to the Servicer. The Servicer shall not be liable for any
settlement of any such claim or action unless the Servicer shall have consented
thereto or be in default on its obligations hereunder. Any failure by an
Indemnified Party to comply with the provisions of this Section shall relieve
the Servicer of liability only if such failure is materially prejudicial to the
position of the Servicer, and then only to the extent of such prejudice.
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(d) Neither the Transferor, the Depositor or the Servicer nor any of
the directors, officers, employees or agents of the Transferor, the Depositor or
the Servicer, or members or affiliates of the Depositor shall be under any
liability to the Trust or the Securityholders for any action taken, or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Transferor, the Depositor, the Servicer or any such person
against the remedies provided herein for the breach of any warranties,
representations or covenants made herein, or against any specific liability
imposed on the Transferor, the Depositor or the Servicer herein, or against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of the duties of the Servicer, the
Depositor or the Transferor, as the case may be, or by reason of reckless
disregard of the obligations and duties of the Servicer, the Depositor or the
Transferor, as the case may be, hereunder. The Transferor, the Depositor, the
Servicer and any director, officer, employee or agent of the Transferor, the
Depositor or the Servicer, or any member or affiliate of the Depositor may rely
in good faith on any document of any kind which, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
(e) The Servicer, the Transferor and the Depositor and any director,
officer, employee or agent of the Servicer, the Transferor or the Depositor
shall be indemnified by the Trust and held harmless against any loss, liability
or expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Securities, other than any loss, liability or
expense related to any specific Mortgage Loan or Mortgage Loans (except as any
such loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder or
by reason of reckless disregard of obligations and duties hereunder. Except as
otherwise provided herein, neither of the Transferor, the Depositor nor the
Servicer shall be under any obligation to appear in, prosecute or defend any
legal action that is not related to its respective duties under this Agreement;
provided, however, that, except as otherwise provided herein, any of the
Transferor, the Depositor, or the Servicer may, with the prior consent of the
Indenture Trustee, in its discretion, undertake any such action which it may
deem necessary or desirable with respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Securityholders hereunder.
In such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust, and
the Transferor, the Depositor and the Servicer shall be entitled to be
reimbursed therefor out of the Collection Account.
Section 9.02 Merger or Consolidation of the Servicer.
The Servicer shall keep in full effect its existence, rights and
franchises as a corporation, and will obtain and preserve its qualification to
do business as a foreign corporation and maintain such other licenses and
permits, in each jurisdiction necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Servicer shall be a party, or
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any Person succeeding to the business of the Servicer, shall be an Eligible
Servicer and shall be the successor of the Servicer, as applicable hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding. The
Servicer shall send notice of any such merger, conversion, consolidation or
succession to the Indenture Trustee and the Issuer.
Section 9.03 Limitation on Liability of the Servicer and Others.
The Servicer and any director, officer, employee or agent of the
Servicer may rely on any document of any kind which it in good faith reasonably
believes to be genuine and to have been adopted or signed by the proper
authorities respecting any matters arising hereunder. Subject to the terms of
Section 9.01 herein, the Servicer shall have no obligation to appear with
respect to or prosecute or defend any legal action which is not incidental to
the Servicer's duty to service the Mortgage Loans in accordance with this
Agreement.
Section 9.04 Servicer Not to Resign; Assignment.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) by the consent of the Indenture Trustee or (b) upon
determination that its duties hereunder are no longer permissible under
applicable law. Any such determination pursuant to clause (b) of the preceding
sentence permitting the resignation of the Servicer shall be evidenced by an
independent opinion of counsel to such effect delivered (at the expense of the
Servicer) to the Indenture Trustee. No resignation of the Servicer shall become
effective until the Indenture Trustee or a successor servicer, appointed
pursuant to the provisions of Section 10.02 and satisfying the requirements of
Sections 4.08 hereof with respect to the qualifications of a successor Servicer,
shall have assumed the Servicer's responsibilities, duties, liabilities (other
than those liabilities arising prior to the appointment of such successor) and
obligations under this Agreement.
Except as expressly provided herein, the Servicer shall not assign or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Servicer hereunder, without the prior written consent of the Indenture
Trustee, and absent such written consent, any agreement, instrument or act
purporting to effect any such assignment, transfer, delegation or appointment
shall be void.
Section 9.05 Relationship of Servicer to Issuer and the Indenture
Trustee.
The relationship of the Servicer (and of any successor to the Servicer
as servicer under this Agreement) to the Issuer and the Indenture Trustee under
this Agreement is intended by the parties hereto to be that of an independent
contractor and not of a joint venturer, agent or partner of the Issuer or the
Indenture Trustee.
Section 9.06 Servicer May Own Notes.
Each of the Servicer and any affiliate of the Servicer may in its
individual or any other capacity become the owner or pledgee of Notes with the
same rights as it would have if it were not
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the Servicer or an affiliate thereof, except as otherwise specifically provided
herein. Notes so owned by or pledged to the Servicer or such affiliate shall
have an equal and proportionate benefit under the provisions of this Agreement,
without preference, priority, or distinction as among all of the Notes;
provided, however, that any Notes owned by the Servicer or any affiliate
thereof, during the time such Notes are owned by any of them, shall be without
voting rights for any purpose set forth in this Agreement. The Servicer shall
notify the Indenture Trustee promptly after it or any of its affiliates becomes
the owner or pledgee of a Note.
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ARTICLE X.
DEFAULT
Section 10.01 Events of Default.
(a) In case one or more of the following Events of Default by the
Servicer shall occur and be continuing, that is to say:
(i) any failure by the Servicer to deposit in the Collection
Account in accordance with Section 5.01(b) any payments in respect of
the Mortgage Loans received by the Servicer no later than the second
Business Day following the day on which such payments were received; or
(ii) failure by the Servicer duly to observe or perform, in
any material respect, any other covenants, obligations or agreements of
the Servicer as set forth in this Agreement, which failure continues
unremedied for a period of sixty (60) days after the date on which
written notice of such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder, shall have
been given (a) to the Servicer by the Indenture Trustee or the Issuer
or (b) to the Servicer, the Indenture Trustee or the Issuer by any
Majority Securityholder; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered
against the Servicer and such decree or order shall have remained in
force, undischarged or unstayed for a period of sixty (60) days; or
(iv) the Servicer shall consent 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 Servicer or of or relating to all or substantially
all of the Servicer's property; or
(v) the Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its
obligations;
(b) then, and in each and every such case, so long as an Event of
Default shall not have been remedied, the Majority Securityholders, the
Indenture Trustee or the Issuer by notice in writing to the Servicer may, in
addition to whatever rights such Person may have at law or equity to damages,
including injunctive relief and specific performance, may terminate all the
rights and obligations of the Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, as servicer under this Agreement. Upon
receipt by the Servicer of such written notice, all authority and power of the
Servicer under this Agreement, whether with respect to the
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Mortgage Loans or otherwise, shall, subject to Section 10.02, pass to and be
vested in a successor servicer, or the Indenture Trustee if a successor servicer
cannot be retained in a timely manner, and the successor servicer, or Indenture
Trustee, as applicable, is hereby authorized and empowered to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including, but not limited to, the transfer and endorsement or
assignment of the Mortgage Loans and related documents. The Servicer agrees to
cooperate with the successor servicer in effecting the termination of the
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the successor servicer for administration by it of all amounts
which shall at the time be credited by the Servicer to each Collection Account
or thereafter received with respect to the Mortgage Loans.
Section 10.02 Indenture Trustee to Act; Appointment of Successor.
On and after the date the Servicer receives a notice of termination
pursuant to Section 10.01, or the Indenture Trustee receives the resignation of
the Servicer evidenced by an opinion of counsel or accompanied by the consents
required by Section 9.04, or the Servicer is removed as servicer pursuant to
this Article X, then, subject to Section 4.08, the Indenture Trustee shall
appoint a successor servicer to be the successor in all respects to the Servicer
in its capacity as Servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof; provided, however, that the successor servicer shall not be
liable for any actions of any servicer prior to it; provided further, however,
that if a successor servicer cannot be retained in a timely manner, the
Indenture Trustee shall act as successor Servicer. In the event the Indenture
Trustee assumes the responsibilities of the Servicer pursuant to this Section
10.02, the Indenture Trustee will make reasonable efforts consistent with
applicable law to become licensed, qualified and in good standing in each
Mortgaged Property State in which the laws require licensing or qualification
for it to perform its obligations as Servicer hereunder or, alternatively, shall
retain an agent who is so licensed, qualified and in good standing in any such
Mortgaged Property State.
In the case that the Indenture Trustee serves as successor servicer,
the Indenture Trustee in such capacity shall not be liable for any servicing of
the Mortgage Loans prior to its date of appointment and shall not be subject to
any obligations to repurchase any Mortgage Loans. The successor servicer shall
be obligated to make Servicing Advances hereunder. As compensation therefor, the
successor servicer appointed pursuant to the following paragraph shall be
entitled to all funds relating to the Mortgage Loans which the Servicer would
have been entitled to receive from the Note Distribution Account pursuant to
Section 5.01(c) as if the Servicer had continued to act as servicer hereunder,
together with other servicing compensation in the form of assumption fees, late
payment charges or otherwise as provided in Sections 7.01 and 7.03.
Any collections received by the Servicer after removal or resignation
shall be endorsed by it to the Indenture Trustee and remitted directly to the
Indenture Trustee or, at the direction of the Indenture Trustee, to the
successor servicer. The compensation of any successor servicer (including,
without limitation, the Indenture Trustee) so appointed shall be the Servicing
Fees, together with other Servicing Compensation provided for herein. In the
event the Indenture Trustee
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is required to solicit bids to appoint a successor servicer, the Indenture
Trustee shall solicit, by public announcement, bids from housing and home
finance institutions, banks and mortgage servicing institutions that: (i) have a
net worth of not less than $25,000,000, (ii) have a blanket fidelity bond and
errors and omissions insurance coverage satisfying the requirements set forth in
Section 4.03 and (iii) would not cause any rating of any Class of the Securities
in effect immediately prior to such assignment to be qualified, downgraded or
withdrawn, as evidenced by a letter from each Rating Agency to such effect. Such
public announcement shall specify that the successor servicer shall be entitled
to the full amount of the Servicing Fee and Servicing Compensation provided for
herein. Within thirty (30) days after any such public announcement, the
Indenture Trustee shall negotiate and effect the sale, transfer and assignment
of the servicing rights and responsibilities hereunder to the qualified party
submitting the highest qualifying bid. The Indenture Trustee shall deduct from
any sum received by the Indenture Trustee from the successor to the Servicer in
respect of such sale, transfer and assignment all costs and expenses of any
public announcement and of any sale, transfer and assignment of the servicing
rights and responsibilities hereunder and the amount of any unpaid Servicing
Fees and unreimbursed Servicing Advances made by the Indenture Trustee. After
such deductions, the remainder of such sum shall be paid by the Indenture
Trustee to the Servicer at the time of such sale, transfer and assignment to the
Servicer's successor. The Indenture Trustee, the Issuer, any Custodian, the
Servicer and any such successor servicer shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. The
Servicer agrees to cooperate with the Indenture Trustee and any successor
servicer in effecting the termination of the Servicer's servicing
responsibilities and rights hereunder and shall promptly provide the Indenture
Trustee or such successor servicer, as applicable, all documents and records
reasonably requested by it to enable it to assume the Servicer's functions
hereunder and shall promptly also transfer to the Indenture Trustee or such
successor servicer, as applicable, all amounts which then have been or should
have been deposited in any Trust Account maintained by the Servicer or which are
thereafter received with respect to the Mortgage Loans. Neither the Indenture
Trustee nor any other successor servicer shall be held liable by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by (i) the failure of the Servicer to deliver, or any
delay by the Servicer in delivering, cash, documents or records to it or (ii)
restrictions imposed by any regulatory authority having jurisdiction over the
Servicer hereunder. No appointment of a successor to the Servicer hereunder
shall be effective until written notice of such proposed appointment shall have
been provided by the Indenture Trustee to each Securityholder, the Issuer and
the Depositor and, except in the case of the appointment of the Indenture
Trustee as successor to the Servicer (when no consent shall be required).
Pending appointment of a successor to the Servicer hereunder, the
Indenture Trustee shall act as servicer hereunder as hereinabove provided. In
connection with such appointment and assumption, the Indenture Trustee may make
such arrangements for the compensation of such successor servicer out of
payments on the Mortgage Loans as it and such successor servicer shall agree
(provided, however, that no such compensation shall be in excess of that
permitted the Servicer pursuant to Section 7.03) together with other Servicing
Compensation in the form of assumption fees, late payment charges or otherwise
as provided in this Agreement.
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In connection with any transfer of servicing responsibilities pursuant
to this Section 10.02, the successor Servicer shall be responsible for all costs
and expenses in connection with such transfer, other than the costs and expenses
of transferring the files and records relating to the Loans which shall be at
the expense of the Servicer being replaced.
Section 10.03 Waiver of Defaults.
The Majority Securityholders may waive any events permitting removal of
the Servicer as servicer pursuant to this Article X, provided, however, that the
Majority Securityholders may not waive a default in making a required
distribution on a Security or Residual Interest without the consent of the
related Securityholder or holders of the Residual Interest. Upon any waiver of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto except to the extent expressly so waived.
Section 10.04 Accounting Upon Termination of Servicer.
Upon termination of the Servicer under this Article X, the Servicer
shall, at its own expense:
(a) deliver to its successor or, if none shall yet have been appointed,
to the Indenture Trustee, the funds in any Trust Account maintained by the
Servicer;
(b) deliver to its successor or, if none shall yet have been appointed,
to the Indenture Trustee all Mortgage Loan Files and related documents, and
statements held by it hereunder and a Mortgage Loan portfolio computer tape;
(c) deliver to its successor or, if none shall yet have been appointed,
to the Indenture Trustee, the Issuer and the Securityholders, a full accounting
of all funds, including a statement showing the Monthly Payments collected by it
and a statement of monies held in trust by it for payments or charges with
respect to the Mortgage Loans; and
(d) execute and deliver such instruments and perform all acts
reasonably requested in order to effect the orderly and efficient transfer of
servicing of the Mortgage Loans to its successor and to more fully and
definitively vest in such successor all rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer under this
Agreement.
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ARTICLE XI.
TERMINATION
Section 11.01 Termination.
This Agreement shall terminate upon notice to the Indenture Trustee of
either: (a) the later of (i) the satisfaction and discharge of the Indenture
pursuant to the provisions thereof or (ii) the disposition of all funds with
respect to the last Mortgage Loan and the remittance of all funds due hereunder
and the payment of all amounts due and payable to the Indenture Trustee, the
Owner Trustee, the Co-Owner Trustee, the Issuer and the Custodian; or (b) the
mutual consent of the Servicer, the Depositor, the Transferor and all
Securityholders in writing.
Section 11.02 Optional Termination.
The Majority Residual Interestholders may, at their option, effect an
early termination of the Trust on or after any Distribution Date on which the
Pool Principal Balance declines to 10% or less of the Maximum Collateral Amount.
The Majority Residual Interestholders shall effect such early termination by
providing notice thereof to the Indenture Trustee and Owner Trustee and by
purchasing all of the Mortgage Loans at a price not less than the Termination
Price.
Any such early termination by the Majority Residual Interestholders
shall be accomplished by depositing into the Collection Account on the
Determination Date immediately preceding the Distribution Date on which the
purchase is to occur the amount of the Termination Price to be paid. The
Termination Price and any amounts then on deposit in the Collection Account
(other than any amounts not required to have been deposited therein pursuant to
Section 5.01(b)(1) and any amounts withdrawable therefrom by the Indenture
Trustee pursuant to Section 5.01(b)(3)) shall be transferred to the Note
Distribution Account pursuant to Section 5.01(b)(2) for distribution to
Securityholders on the succeeding Distribution Date; and any amounts received
with respect to the Mortgage Loans and Foreclosure Properties subsequent to the
Due Period immediately preceding such final Distribution Date shall belong to
the purchaser thereof. For purposes of calculating the Available Distribution
Amount for such final Distribution Date, amounts transferred to the Note
Distribution Account immediately preceding such final Distribution Date shall in
all cases be deemed to have been received during the related Due Period, and
amounts so transferred shall be applied pursuant to Section 5.01(c) and 5.01(d).
Section 11.03 Notice of Termination.
Notice of termination of this Agreement or of early redemption and
termination of the Trust shall be sent (i) by the Indenture Trustee to the
Noteholders in accordance with Section 2.06(b) of the Indenture and (ii) by the
Owner Trustee to the holders of Residual Interests in accordance with Section
9.1(d) of the Trust Agreement.
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ARTICLE XII.
MISCELLANEOUS PROVISIONS
Section 12.01 Acts of Securityholders.
Except as otherwise specifically provided herein, whenever
Securityholder action, consent or approval is required under this Agreement,
such action, consent or approval shall be deemed to have been taken or given on
behalf of, and shall be binding upon, all Securityholders if the Majority
Securityholders agree to take such action or give such consent or approval.
Section 12.02 Amendment.
(a) This Agreement may be amended from time to time by the Depositor,
the Servicer, the Transferor and the Issuer, by written agreement with notice
thereof to the Securityholders, without the consent of any of the
Securityholders, to cure any error or ambiguity, to correct or supplement any
provisions hereof which may be defective or inconsistent with any other
provisions hereof or to add any other provisions with respect to matters or
questions arising under this Agreement; provided, however, that such action will
not adversely affect in any material respect the interests of the
Securityholders. An amendment described above shall be deemed not to adversely
affect in any material respect the interests of the Securityholders if either
(i) an opinion of counsel is obtained to such effect and (ii) the party
requesting the amendment obtains a letter from each of the Rating Agencies
confirming that the amendment, if made, would not result in the downgrading or
withdrawal of the rating then assigned by the respective Rating Agency to any
Class of Securities then outstanding.
(b) This Agreement may also be amended from time to time by the
Depositor, the Servicer, the Transferor and the Issuer by written agreement,
with the prior written consent of the Majority Securityholders, 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
Securityholders; provided, however, that no such amendment shall (i) without the
consent of the holders of 100% of each Class of Notes affected thereby, reduce
in any manner the amount of, or delay the timing of, collections of payments on
Mortgage Loans or distributions which are required to be made on any Security,
(ii) without the consent of the holders of 100% of such Class of Notes,
adversely affect in any material respect the interests of the holders of any
Class of Notes in any manner other than as described in (i), or (iii) without
the consent of the holders of 100% of such Class of Notes, reduce the percentage
of any Class of Notes, the holders of which are required to consent to any such
amendment.
(c) It shall not be necessary for the consent of Securityholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Issuer
shall be entitled to receive and rely upon an opinion of counsel stating that
the execution of such amendment is authorized or permitted by this Agreement.
The Issuer may, but shall not be obligated to, enter into
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any such amendment which affects the Issuer's own rights, duties or immunities
under this Agreement.
Section 12.03 Recordation of Agreement.
To the extent permitted by applicable law, this Agreement, or a
memorandum thereof if permitted under applicable law, is subject to recordation
in all appropriate public offices for real property records in all of the
counties or other comparable jurisdictions in which any or all of the Mortgaged
Properties are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Servicer at the
Securityholders' expense on direction of the Majority Securityholders, but only
when accompanied by an opinion of counsel to the effect that such recordation
materially and beneficially affects the interests of the Securityholders or is
necessary for the administration or servicing of the Mortgage Loans.
Section 12.04 Duration of Agreement.
This Agreement shall continue in existence and effect until terminated
as herein provided.
Section 12.05 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 12.06 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or mailed
by overnight mail, certified mail or registered mail, postage prepaid, to: (i)
in the case of the Depositor, ____________________ [INSERT FULL NAME OF THE
DEPOSITOR], ____________________________________________________________, or
such other addresses as may hereafter be furnished to the Securityholders and
the other parties hereto in writing by the Depositor, (ii) in the case of the
Issuer, Cityscape Loan Trust 199_-_, c/o ____________________ [INSERT FULL NAME
OF THE OWNER TRUSTEE] or such other address as may hereafter be furnished to the
Securityholders and the other parties hereto, (iii) in the case of the Servicer,
Cityscape Corp., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇,
or such other address as may hereafter be furnished to the Securityholders and
the other parties hereto in writing by the Servicer, (iv) in the case of the
Transferor, ____________________ [INSERT FULL NAME OF THE TRANSFEROR],
___________ (v) in the case of the Indenture Trustee or Co-Owner Trustee,
____________________ [INSERT FULL NAME OF THE INDENTURE TRUSTEE], __________ and
(vi) in the case of the Securityholders, as set forth in the applicable Note
Register and Certificate Register. Any such notices shall be deemed to be
effective with respect to any party hereto upon the receipt of such notice by
such party, except that notices to the Securityholders shall be effective upon
mailing or personal delivery.
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Section 12.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement.
Section 12.08 No Partnership.
Nothing herein contained shall be deemed or construed to create any
partnership or joint venture between the parties hereto and the services of the
Servicer shall be rendered as an independent contractor.
Section 12.09 Counterparts.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same Agreement.
Section 12.10 Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
Servicer, the Transferor, the Depositor, the Issuer and the Securityholders and
their respective successors and permitted assigns.
Section 12.11 Headings.
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
Section 12.12 Actions of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Securityholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Depositor, the Servicer or the Issuer. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Depositor, the Servicer and the Issuer if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Securityholder of any
such instrument or writing may be proved in any reasonable manner which the
Depositor, the Servicer or the Issuer deems sufficient.
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(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Securityholder shall bind every holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done or omitted to be done
by the Depositor, the Servicer or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Security.
(d) The Depositor, the Servicer or the Issuer may require additional
proof of any matter referred to in this Section 12.12 as it shall deem
necessary.
Section 12.13 Reports to Rating Agencies.
(a) The Servicer shall provide, or cause the Indenture Trustee to
provide or cause to be provided to, each Rating Agency copies of statements,
reports and notices, to the extent received or prepared in connection herewith,
as follows:
(i) copies of amendments to this Agreement;
(ii) notice of any substitution or repurchase of any Mortgage
Loans;
(iii) notice of any termination, replacement, succession,
merger or consolidation of either the Servicer, any Custodian or the
Issuer;
(iv) notice of final payment on the Notes;
(v) notice of any Event of Default;
(vi) copies of the annual independent auditor's report
delivered pursuant to Section 7.05, and copies of any compliance
reports delivered by the Servicer hereunder including Section 7.04; and
(vii) copies of any Distribution Statement pursuant to Section
6.01.
(b) With respect to the requirement of the Indenture Trustee to provide
statements, reports and notices to the Rating Agencies such statements, reports
and notices shall be delivered to the Rating Agencies at the following
addresses: (i) if to Standard & Poor's, then to Standard & Poor's Ratings Group,
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Asset-Backed
Monitoring Department, (ii) if to DCR, then to Duff & ▇▇▇▇▇▇ Credit Rating Co.,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: MBS
Monitoring [ADD OR SUBSTITUTE OTHER RATING AGENCIES WHERE APPROPRIATE].
Section 12.14 Holders of the Residual Interest.
(a) Any sums to be distributed or otherwise paid hereunder or under the
Trust Agreement to the holders of the Residual Interest shall be paid to such
holders pro rata based on their Percentage Interest;
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(b) Where any act or event hereunder is expressed to be subject to the
consent or approval of the holders of the Residual Interest, such consent or
approval shall be capable of being given by the holder, or holders in aggregate,
of a Residual Interest representing a Percentage Interest of not less than 51%.
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IN WITNESS WHEREOF, the Servicer, the Transferor, the Issuer, the
Indenture Trustee, the Co-Owner Trustee and the Depositor have caused their
names to be signed by their respective officers, thereunto duly authorized, as
of the day and year first above written.
CITYSCAPE LOAN TRUST 199_-_,
By: ____________________ [INSERT NAME OF OWNER
TRUSTEE], not in its individual capacity but
solely as Owner Trustee
By: _______________________________
Name: _________________________
Title: ________________________
____________________ [INSERT NAME OF DEPOSITOR],
as Depositor
By: _______________________________
Name: _________________________
Title: ________________________
CITYSCAPE CORP., as Servicer
By: _______________________________
Name: _________________________
Title: ________________________
____________________ [INSERT NAME OF INDENTURE
TRUSTEE], as Indenture Trustee and Co-Owner Trustee
By: _______________________________
Name: _________________________
Title: ________________________
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____________________ [INSERT NAME OF
TRANSFEROR], as Transferor
By: _______________________________
Name: _________________________
Title: ________________________
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THE STATE OF ________ }
} ss.:
COUNTY OF ________ }
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared __________________________, known to me to be a person and
officer whose name is subscribed to the foregoing instrument and acknowledged to
me that the same was the act of the said ____________________, not in its
individual capacity but in its capacity as Owner Trustee of CITYSCAPE LOAN TRUST
199_-_ as Issuer, and that he executed the same as the act of such corporation
for the purpose and consideration therein expressed, and in the capacity therein
stated.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this the __th day of __________, 199_.
_______________________________________
Notary Public, State of ________
THE STATE OF ________ }
} ss.:
COUNTY OF ________ }
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared _______________________, known to me to be a person and
officer whose name is subscribed to the foregoing instrument and acknowledged to
me that the same was the act of the said ______________________________, as the
Depositor, and that he executed the same as the act of such corporation for the
purpose and consideration therein expressed, and in the capacity therein stated.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, this the __th day of __________, 199_.
_______________________________________
Notary Public, State of ________
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THE STATE OF ________ }
} ss.:
COUNTY OF ________ }
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared __________________________, known to me to be the person and
officer whose name is subscribed to the foregoing instrument and acknowledged to
me that the same was the act of the said CITYSCAPE CORP., as the Servicer, and
that he executed the same as the act of such corporation for the purposes and
consideration therein expressed, and in the capacity therein stated.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, this the __th day of __________, 199_.
_______________________________________
Notary Public, State of ________
THE STATE OF ________ }
} ss.:
COUNTY OF ________ }
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared ____________________, known to me to be the person and
officer whose name is subscribed to the foregoing instrument and acknowledged to
me that the same was the act of the said ____________________, a national
banking association, as the Indenture Trustee, and that he executed the same as
the act of such entity for the purposes and consideration therein expressed, and
in the capacity therein stated.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, this the __th day of __________, 199_.
_______________________________________
Notary Public, State of ________
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THE STATE OF ________ }
} ss.:
COUNTY OF ________ }
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared __________________________, known to me to be the person and
officer whose name is subscribed to the foregoing instrument and acknowledged to
me that the same was the act of the said ____________________, as the
Transferor, and that he executed the same as the act of such corporation for the
purposes and consideration therein expressed, and in the capacity therein
stated.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, this the __th day of __________, 199_.
_______________________________________
Notary Public, State of ________
