] 200__-[ ], as Issuer INDYMAC ABS, INC., as Depositor ____________________, as Trust Administrator and Servicer ____________________________, as Seller and ____________________________________, as Indenture Trustee SALE AND SERVICING AGREEMENT Dated...
EXHIBIT
4.4
[ ]
200__-[ ], as Issuer
INDYMAC
ABS, INC., as Depositor
____________________,
as Trust Administrator and Servicer
____________________________,
as Seller
and
____________________________________,
as Indenture Trustee
___________________________
Dated
as
of _______, 200_
___________________________
[ ]
200__-[ ]
MORTGAGE
BACKED NOTES
TABLE
OF
CONTENTS
|
ARTICLE
I
DEFINITIONS
|
|
|
Section
1.01.
|
Definitions
|
|
Section
1.02.
|
Calculations
With Respect to the Mortgage Loans
|
|
Section
1.03.
|
Calculations
With Respect to Accrued Interest
|
|
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS
|
|
|
Section
2.01.
|
Creation
and Declaration of Trust Estate; Conveyance of Mortgage
Loans.
|
|
Section
2.02.
|
Acceptance
of Trust Estate; Review of Documentation.
|
|
Section
2.03.
|
Grant
Clause.
|
|
Section
2.04.
|
Option
to Contribute Derivative Instrument.
|
|
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
|
|
|
Section
3.01.
|
Representations
and Warranties of the Depositor and the Seller.
|
|
Section
3.02.
|
Discovery
of Breach
|
|
Section
3.03.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
|
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS BY THE SERVICER AND THE TRUST
ADMINISTRATOR
|
|
|
Section
4.01.
|
Servicer
to Perform Servicing Responsibilities.
|
|
Section
4.02.
|
Duties
of the Servicer; Representations and Warranties.
|
|
Section
4.03.
|
Servicer
Fidelity Bond and Servicer Errors and Omissions Insurance
Policy.
|
|
Section
4.04.
|
Servicer’s
Financial Statements and Related Information
|
|
Section
4.05.
|
Power
to Act; Procedures.
|
|
Section
4.06.
|
[Reserved]
|
|
Section
4.07.
|
Establishment
of and Deposits to Collection Account.
|
|
Section
4.08.
|
Application
of Funds in the Collection Account
|
|
Section
4.09.
|
Servicing
of the Mortgage Loans.
|
|
Section
4.10.
|
Reports
to Trust Administrator.
|
|
Section
4.11.
|
Reports
to Indenture Trustee and Noteholders.
|
|
Section
4.12.
|
Transfers
of Mortgaged Property.
|
|
Section
4.13.
|
Termination
for Cause.
|
|
Section
4.14.
|
Assumption
of Servicing by Indenture Trustee, Successor to
Servicer.
|
|
Section
4.15.
|
[Reserved]
|
|
Section
4.16.
|
Release
of Mortgage Files.
|
|
Section
4.17.
|
Documents,
Records and Funds in Possession of Servicer To Be Held for Indenture
Trustee.
|
|
Section
4.18.
|
Opinion
|
|
Section
4.19.
|
[Reserved]
|
|
Section
4.20.
|
[Reserved]
|
|
Section
4.21.
|
[Reserved]
|
|
Section
4.22.
|
Indenture
Trustee To Retain Possession of Certain Insurance Policies and
Documents
|
|
Section
4.23.
|
Compensation
to the Servicer
|
|
Section
4.24.
|
[Reserved]
|
|
Section
4.25.
|
Reports
to the Indenture Trustee.
|
|
Section
4.26.
|
Annual
Officer’s Certificate as to Compliance.
|
|
Section
4.27.
|
Inspection.
|
|
Section
4.28.
|
Merger
or Consolidation
|
|
Section
4.29.
|
Resignation
of Servicer
|
|
Section
4.30.
|
Assignment
or Delegation of Duties by the Servicer
|
|
Section
4.31.
|
Limitation
on Liability of the Servicer and Others.
|
|
Section
4.32.
|
Indemnification;
Third Party Claims
|
|
Section
4.33.
|
Alternative
Index
|
|
Section
4.34.
|
Miscellaneous
Servicing Provisions.
|
|
Section
4.35.
|
Advance
Facility.
|
|
ARTICLE
V
DEPOSITS
AND PAYMENTS TO HOLDERS
|
|
|
Section
5.01.
|
The
Collection Account.
|
|
Section
5.02.
|
Payments
from the Collection Account.
|
|
Section
5.03.
|
[Reserved].
|
|
Section
5.04.
|
Control
of the Trust Account and Deferred Interest.
|
|
Section
5.05.
|
Advances
by Servicer.
|
|
Section
5.06.
|
The
Interest Rate Cap Agreements.
|
|
Section
5.07.
|
[Class
AF-5B] Policy; Rights of the [Class AF-5B] Insurer.
|
|
ARTICLE
VI
ADMINISTRATION
OF THE AGREEMENTS
|
|
|
Section
6.01.
|
Duties
of the Trust Administrator.
|
|
Section
6.02.
|
Duties
of the Trust Administrator With Respect to the Indenture, the Trust
Agreement and this Agreement.
|
|
Section
6.03.
|
Records
|
|
Section
6.04.
|
Compensation
|
|
Section
6.05.
|
Additional
Information to be Furnished to the Issuer
|
|
Section
6.06.
|
Independence
of the Trust Administrator
|
|
Section
6.07.
|
No
Joint Venture
|
|
Section
6.08.
|
Other
Activities of Trust Administrator and the Depositor
|
|
Section
6.09.
|
Resignation
and Removal of Trust Administrator.
|
|
Section
6.10.
|
Action
upon Termination, Resignation or Removal of the Trust
Administrator
|
|
ARTICLE
VII
SERVICER
EVENTS OF DEFAULT
|
|
|
Section
7.01.
|
Servicer
Events of Default; Indenture Trustee To Act; Appointment of
Successor.
|
|
Section
7.02.
|
Additional
Remedies of Indenture Trustee Upon Servicer Event of
Default
|
|
Section
7.03.
|
Waiver
of Defaults
|
|
Section
7.04.
|
Notification
to Holders
|
|
Section
7.05.
|
Directions
by Noteholders and Duties of Indenture Trustee During Servicer
Event of
Default
|
|
Section
7.06.
|
Action
Upon Certain Failures of the Servicer and Upon Servicer Event of
Default
|
|
ARTICLE
VIII
TERMINATION
|
|
|
Section
8.01.
|
Termination
|
|
Section
8.02.
|
Termination
Prior to Maturity Date; Optional Redemption.
|
|
Section
8.03.
|
Certain
Notices upon Final Payment
|
|
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
|
|
|
Section
9.01.
|
Binding
Nature of Agreement; Assignment
|
|
Section
9.02.
|
Entire
Agreement
|
|
Section
9.03.
|
Amendment.
|
|
Section
9.04.
|
Acts
of Noteholders
|
|
Section
9.05.
|
Recordation
of Agreement
|
|
Section
9.06.
|
Governing
Law
|
|
Section
9.07.
|
Notices
|
|
Section
9.08.
|
Severability
of Provisions
|
|
Section
9.09.
|
Indulgences;
No Waivers
|
|
Section
9.10.
|
Headings
Not To Affect Interpretation
|
|
Section
9.11.
|
Benefits
of Agreement
|
|
Section
9.12.
|
Special
Notices to the Rating Agencies.
|
|
Section
9.13.
|
Counterparts
|
|
Section
9.14.
|
Execution
by the Issuer
|
|
ARTICLE
X
EXCHANGE
ACT REPORTING
|
|
|
Section
10.01.
|
Filing
Obligations.
|
|
Section
10.02.
|
Form
10-D Filings.
|
|
Section
10.03.
|
Form
8-K Filings.
|
|
Section
10.04.
|
Form
10-K Filings.
|
|
Section
10.05.
|
Xxxxxxxx-Xxxxx
Certification.
|
|
Section
10.06.
|
Form
15 Filing.
|
|
Section
10.07.
|
Report
on Assessment of Compliance and Attestation.
|
|
Section
10.08.
|
Use
of Subcontractors.
|
|
Section
10.09.
|
Amendments.
|
|
|
|
|
ATTACHMENTS
|
|
|
Exhibit
A-1
|
Form
of Initial Certification
|
|
Exhibit
A-2
|
Form
of Interim Certification
|
|
Exhibit
A-3
|
Form
of Final Certification
|
|
Exhibit
A-4
|
Form
of Endorsement
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C
|
Form
of Lost Note Affidavit
|
|
Exhibit
D
|
Escrow
Account Letter Agreement
|
|
Exhibit
E-1
|
Form
of Monthly Remittance Advice
|
|
Exhibit
E-2
|
Standard
Layout For Monthly Defaulted Loan Report
|
|
Exhibit
E-3
|
Form
332 Realized Loss Report
|
|
Exhibit
F-1
|
Form
of Certification to be Provided to the Servicer by the
Trustee
|
|
Exhibit
F-2
|
Form
of Servicer Certification
|
|
Exhibit
G
|
Item
1119 Party Schedule
|
|
Exhibit
H
|
Form
of Servicing Criteria to be Addressed in Assessment of Compliance
Statement
|
|
Exhibit
I
|
Form
of [Class AF-5B] Policy
|
|
[Exhibit
J
|
Form
of Subsequent Transfer Agreement]
|
|
Exhibit
K
|
Form
of Xxxxxxxx-Xxxxx Certification (Replacement of
Servicer)
|
|
Schedule
A
|
Mortgage
Loan Schedule
|
This
SALE
AND SERVICING AGREEMENT, dated as of _______, 200_ (the “Agreement” or the “Sale
and Servicing Agreement”), is by and among
[ ]
200__-[ ], a Delaware statutory trust, as issuer (the
“Issuer”), IndyMac ABS, INC., a Delaware corporation, as depositor (the
“Depositor”), ____________________________________, as indenture trustee (the
“Indenture Trustee”), ____________________, as trust administrator (the “Trust
Administrator”) and servicer (the “Servicer”), and ____________________________,
as seller (the “Seller”).
PRELIMINARY
STATEMENT
WHEREAS,
the Depositor has acquired all of the rights, title and interest of the Seller
in certain conventional, adjustable rate, residential mortgage loans identified
in Schedule A hereto (the “Mortgage Loans”) on a servicing-retained basis from
the Seller, and at the Closing Date is the owner of the Mortgage Loans and
the
other property being conveyed by it to the Issuer hereunder for inclusion in
the
Trust Estate;
WHEREAS,
the Depositor has duly authorized the execution and delivery of this Agreement
to provide for the conveyance to the Issuer of the Mortgage Loans and the other
property constituting the Trust Estate;
WHEREAS,
on the Closing Date, the Depositor will acquire the Notes and the Ownership
Certificate from the Issuer as consideration for its transfer to the Issuer
of
the Mortgage Loans and the other property constituting the Trust
Estate;
WHEREAS,
pursuant to the Indenture, the Issuer will pledge the Mortgage Loans and the
other property constituting the Trust Estate to the Indenture Trustee as
security for the Notes;
WHEREAS,
the Seller desires that the Servicer service the Mortgage Loans upon such
transfer to the Issuer pursuant to this Agreement, and the Servicer has agreed
to do so;
WHEREAS,
the Servicer shall be obligated under this Agreement, among other things, to
supervise the servicing of the Mortgage Loans on behalf of the Issuer, and
shall
have the right, under certain circumstances, to terminate the rights and
obligations of the Servicer under this Agreement upon the occurrence and
continuance of a Servicer Event of Default as provided herein;
WHEREAS,
the parties hereto acknowledge and agree that, at the direction of the
Depositor, the Seller will assign all of its rights with respect to the Mortgage
Loans (other than the servicing rights) to the Indenture Trustee;
WHEREAS,
the Issuer has entered into certain agreements in connection with the issuance
of the Notes, including (i) the Depository Agreement and (ii) the Indenture
(the
Depository Agreement, the Indenture and the Trust Agreement being hereinafter
referred to collectively as the “Related Agreements”);
WHEREAS,
pursuant to the Related Agreements, the Issuer is required to perform certain
duties in connection with (a) the Notes and the collateral therefor pledged
pursuant to the Indenture (the “Collateral”) and (b) the undivided subordinate
beneficial ownership interest in the Issuer represented by the Ownership
Certificate;
WHEREAS,
the Issuer desires to have the Trust Administrator perform certain of the duties
of the Issuer referred to in the preceding clause, and to provide such
additional services consistent with the terms of this Agreement and the Related
Agreements as the Issuer or the Owner Trustee may from time to time reasonably
request; and
WHEREAS,
the Trust Administrator has the capacity to provide the services required hereby
and is willing to perform such services for the Issuer or the Owner Trustee
on
the terms set forth herein.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
The
following table sets forth (or describes) the Class designation, Note Interest
Rate, initial Class Principal Amount and minimum denomination for each Class
of
Notes issued pursuant to the Indenture.
|
Class
Designation
|
Note
Interest Rate
|
Initial
Class
Principal Amount
|
Minimum
Denominations
|
|
[Class
AF-1A]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
AF-1B]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
AF-2]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
AF-3]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
AF-4]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
AF-5A]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
AF-5B]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
AF-6]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
MF-1]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MF-2]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MF-3]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MF-4]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MF-5]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MF-6]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MF-7]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MF-8]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
BF]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
2-AV-1]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
2-AV-2]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
3-AV-1]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
3-AV-2]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
3-AV-3]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
3-AV-4]
|
Variable
(1)
|
$
__________
|
$
25,000
|
|
[Class
MV-1]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MV-2]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MV-3]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MV-4]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MV-5]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MV-6]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MV-7]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
MV-8]
|
Variable
(1)
|
$
__________
|
$
100,000
|
|
[Class
BV]
|
Variable
(1)
|
$
__________
|
$
100,000
|
_______________
(1) See
the
definition of “Note Interest Rate” herein.
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
The
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accounts:
Any or
all of the Escrow Accounts, the Collection Account, the Interest Rate Cap
Account and any other accounts created or maintained by the Trust Administrator
or the Servicer pursuant to this Agreement.
Accountant:
A
Person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accrual
Period:
With
respect to any Payment Date and the Notes, the period beginning on the
immediately preceding Payment Date (or, in the case of the first Payment Date,
beginning on the Closing Date) and ending on the day immediately preceding
the
related Payment Date.
Additional
Designated Information:
As
defined in Section 10.02.
Adjustable
Rate Notes:
The
[Class AF-1A] Notes, the [Group AV] Notes and the Adjustable Rate Subordinate
Notes.
Adjustable
Rate Cumulative Loss Trigger Event:
With
respect to a Payment Date on or after the Adjustable Rate Stepdown Date, an
Adjustable Rate Cumulative Loss Trigger Event occurs if (x) the aggregate amount
of Realized Losses on the Mortgage Loans in [Pool 2] and [Pool 3] from the
Cut-off Date for each such Mortgage Loan to (and including) the last day of
the
related Due Period (reduced by the aggregate amount of any Recoveries related
to
the Mortgage Loans in [Pool 2] and [Pool 3] received through the last day of
that Due Period) exceeds (y) the applicable percentage, for such Payment Date,
of the sum of the aggregate Cut-off Date Principal Balance of the Initial
Mortgage Loans in [Pool 2] and [Pool 3], as set forth below:
|
Payment
Date
|
Percentage
|
|
_____
200_ — _____ 200_
|
_____%
with respect to ______ 200_, plus an additional 1/12th of ____% for
each
month thereafter through ______ 200_
|
|
_____
200_ — _____ 200_
|
_____%
with respect to ______ 200_, plus an additional 1/12th of ____% for
each
month thereafter through ______ 200_
|
|
_____
200_ — _____ 200_
|
_____%
with respect to ______ 200_, plus an additional 1/12th of ____% for
each
month thereafter through ______ 200_
|
|
_____
200_ and thereafter
|
____%
|
Adjustable
Rate Delinquency Trigger Event:
With
respect to any Payment Date on or after the Adjustable Rate Stepdown Date,
an
Adjustable Rate Delinquency Trigger Event exists if the Rolling [Sixty-Day]
Delinquency Rate for outstanding Mortgage Loans in [Pool 2] and [Pool 3] equals
or exceeds the product of (x) the Adjustable Rate Senior Enhancement Percentage
for such Payment Date and (y) the applicable percentage listed below for the
most senior class of outstanding [Group AV] Notes and Adjustable Rate
Subordinate Notes:
|
Class
|
Percentage
|
|
[Group
AV]
|
_____%
|
|
[Class
MV-1]
|
_____%
|
|
[Class
MV-2]
|
_____%
|
|
[Class
MV-3]
|
_____%
|
|
[Class
MV-4]
|
_____%
|
|
[Class
MV-5]
|
_____%
|
|
[Class
MV-6]
|
_____%
|
|
[Class
MV-7]
|
_____%
|
|
[Class
MV-8]
|
_____%
|
|
[Class
BV]
|
_____%
|
Adjustable
Rate Excess Overcollateralization Amount:
With
respect to any Payment Date, an amount equal to the excess, if any, of the
Adjustable Rate Overcollateralized Amount for such Payment Date over the
Adjustable Rate Overcollateralization Target Amount for such Payment
Date.
Adjustable
Rate Pool Excess Cashflow:
With
respect to any Payment Date the sum of (i) the amount remaining after the
distribution of interest to Noteholders for such Payment Date pursuant to
Section 5.02(c), (ii) the amount remaining after the distribution of principal
to Noteholders for such Payment Date, pursuant to Section 5.02(e) and (iii)
the
Adjustable Rate Overcollateralization Reduction Amount for such Payment Date,
if
any.
Adjustable
Rate OC Floor:
For any
Payment Date, an amount equal to ____% of the sum of the aggregate Cut-off
Date
Principal Balance of the Initial Mortgage Loans in [Pool 2] and [Pool 3] the
[Pool 2] Pre-Funded Amount and the [Pool 3] Pre-Funded Amount.
Adjustable
Rate Overcollateralization Deficiency Amount:
With
respect to any Payment Date, the amount, if any, by which the Adjustable Rate
Overcollateralization Target Amount exceeds the Adjustable Rate
Overcollateralized Amount on such Payment Date (after giving effect to
distribution of the Principal Distribution Amount (other than the portion
thereof consisting of the Extra Principal Distribution Amount) for [Pool 2]
and
[Pool 3] on such Payment Date).
Adjustable
Rate Overcollateralization Reduction Amount:
With
respect to any Payment Date, an amount equal to the lesser of (i) the Adjustable
Rate Excess Overcollateralization Amount for such Payment Date and (ii) the
aggregate Principal Remittance Amount for [Pool 2] and [Pool 3] for such Payment
Date.
Adjustable
Rate Overcollateralization Target Amount:
With
respect to any Payment Date (a) prior to the Adjustable Rate Stepdown Date,
an
amount equal to ___% of the sum of the aggregate Cut-off Date Principal Balance
of the Initial Mortgage Loans in [Pool 2] and [Pool 3], the [Pool 2] Pre-Funded
Amount and the [Pool 3] Pre-Funded Amount, and (b) on or after the Adjustable
Rate Stepdown Date, the greater of (i) an amount equal to ____% of the aggregate
Stated Principal Balance of the Mortgage Loans in [Pool 2] and [Pool 3] for
the
current Payment Date and (ii) the Adjustable Rate OC Floor; provided, however,
that if an Adjustable Rate Trigger Event is in effect on any Payment Date,
the
Adjustable Rate Overcollateralization Target Amount will be the Adjustable
Rate
Overcollateralization Target Amount as in effect for the prior Payment
Date.
Adjustable
Rate Overcollateralized Amount:
With
respect to any Payment Date, the amount, if any, by which (x) the sum of the
aggregate Stated Principal Balance of the Initial Mortgage Loans in [Pool 2]
and
[Pool 3] and any amount on deposit in the Pre-Funding Account in respect of
[Pool 2] and [Pool 3] for such Payment Date exceeds (y) the sum of the aggregate
Note Principal Amount of the [Group AV] Notes and the Adjustable Rate
Subordinate Notes as of such Payment Date (after giving effect to distribution
of the Principal Remittance Amounts for [Pool 2] and [Pool 3] to be made on
such
Payment Date and, in the case of the Payment Date immediately following the
end
of the Funding Period, any amounts to be released from the Pre-Funding Account
in respect of [Pool 2] and [Pool 3]).
Adjustable
Rate Senior Enhancement Percentage:
With
respect to a Payment Date on or after the Adjustable Rate Stepdown Date, the
fraction (expressed as a percentage) (1) the numerator of which is the excess
of
(a) the aggregate Stated Principal Balance of the Mortgage Loans in [Pool 2]
and
[Pool 3] for the preceding Payment Date over (b) (i) before the Note Principal
Amounts of the [Group AV] Notes have been reduced to zero, the sum of the Note
Principal Amounts of the [Group AV] Notes, or (ii) after such time, the Note
Principal Amount of the most senior Class of Adjustable Rate Subordinate Notes
outstanding, as of the Business Day immediately preceding the Payment Date,
and
(2) the denominator of which is the aggregate Stated Principal Balance of the
Mortgage Loans in [Pool 2] and [Pool 3] for the preceding Payment
Date.
Adjustable
Rate Stepdown Date:
The
later to occur of (x) the Payment Date in ______ 200_ and (y) the first Payment
Date on which the aggregate Note Principal Amount of the [Group AV] Notes (after
calculating anticipated distributions on such Payment Date) is less than or
equal to ____% of the aggregate Stated Principal Balance of the Mortgage Loans
in [Pool 2] and [Pool 3] for such Payment Date.
Adjustable
Rate Subordinate Class Principal Distribution Amount:
With
respect to any Payment Date and any Class of Adjustable Rate Subordinate Notes,
the excess of (1) the sum of (a) the aggregate Note Principal Amount of the
[Group AV] Notes (after taking into account distribution of the [Group AV]
Principal Distribution Amount for such Payment Date), (b) the aggregate Note
Principal Amount of any Class(es) of Adjustable Rate Subordinate Notes that
are
senior to the subject Class (in each case, after taking into account
distribution of the Adjustable Rate Subordinate Class Principal Distribution
Amount(s) for such senior Class(es) of Notes for such Payment Date), and (c)
the
Note Principal Amount of the subject Class of Adjustable Rate Subordinate Notes
immediately prior to such Payment Date over (2) the lesser of (a) the product
of
(x) [100]% minus the Stepdown Target Subordination Percentage for the subject
Class of Notes and (y) the aggregate Stated Principal Balance of the Mortgage
Loans in [Pool 2] and [Pool 3] for such Payment Date and (b) the aggregate
Stated Principal Balance of the Mortgage Loans in [Pool 2] and [Pool 3] for
such
Payment Date minus the Adjustable Rate OC Floor; provided, however, that if
such
Class of Adjustable Rate Subordinate Notes is the only Class of Adjustable
Rate
Subordinate Notes outstanding on such Payment Date, that Class will be entitled
to receive the entire remaining Principal Distribution Amount for [Pool 2]
and
[Pool 3] until the Note Principal Amount thereof is reduced to
zero.
Adjustable
Rate Subordinate Notes:
The
[Class MF-1], [Class MF-2], [Class MF-3], [Class MF-4], [Class MF-5], [Class
MF-6], [Class MF-7], [Class MF-8] and [Class BV] Notes.
Adjustable
Rate Trigger Event:
With
respect to any Payment Date on or after the Adjustable Rate Stepdown Date,
either an Adjustable Rate Delinquency Trigger Event with respect to that Payment
Date or an Adjustable Rate Cumulative Loss Trigger Event with respect to that
Payment Date.
Advance:
With
respect to each Servicer Remittance Date and each Mortgage Loan, an amount
equal
to the Scheduled Payment (with the interest portion of such Scheduled Payment
adjusted to the Mortgage Loan Remittance Rate) that was due on the Mortgage
Loan
on the Due Date in the related Collection Period, and that (i) was
delinquent at the close of business on the related Determination Date and
(ii) was not the subject of a previous Advance, but only to the extent that
such amount is expected, in the reasonable judgment of the Servicer to be
recoverable from collections or other recoveries in respect of such Mortgage
Loan.
Advance
Facility:
As
defined in Section 4.35(a) hereof.
Advance
Facility Notice:
As
defined in Section 4.35(a) hereof.
Advancing
Person:
As
defined in Section 4.35(a) hereof.
Affiliate:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
Aggregate
Collateral Balance:
As of
any date of determination, an amount equal to the Aggregate Loan Balance plus
the amount on deposit in the Pre-Funded Account.
Aggregate
Loan Balance:
As of
any date of determination, an amount equal to the aggregate of the Stated
Principal Balances of the Mortgage Loans as of such date.
Agreement:
This
Sale and Servicing Agreement and all amendments and supplements
hereto.
Ancillary
Income:
All
income derived from the Mortgage Loans, excluding Servicing Fees and Prepayment
Premiums attributable to the Mortgage Loans and other amounts treated as payment
proceeds of the Mortgage Loans, including but not limited to, late charges,
fees
received with respect to checks or bank drafts returned by the related bank
for
non-sufficient funds, assumption fees, optional insurance administrative fees
and all other incidental fees and charges.
Applied
Realized Loss Amount:
With
respect to any Payment Date and (i) [Pool 1] and the Fixed Rate Subordinate
Notes, the amount, if any, by which, the aggregate Note Principal Amount of
the
Fixed Rate Notes (after all distributions of principal on such Payment Date)
exceeds the sum of (x) the Stated Principal Balance of the Mortgage Loans in
[Pool 1] for such Payment Date and (y) the amount on deposit in the Pre-Funding
Account in respect of [Pool 1],, (ii) [Pool 2] and [Pool 3] and the Adjustable
Rate Subordinate Notes, the amount, if any, by which, the aggregate Note
Principal Amount of the Adjustable Rate Notes (after all distributions of
principal on such Payment Date) exceeds the sum of (x) the aggregate Stated
Principal Balance of the Mortgage Loans in [Pool 2] and [Pool 3] and (y) the
amount on deposit in the Pre-Funding Account in respect of [Pool 2] and [Pool
3]
and (iii) [Pool 2] and the [Class 2-A-2] Notes, after the Note Principal Amounts
of the Adjustable Rate Subordinate Notes have been reduced to zero, the amount,
if any, by which, the aggregate Note Principal Amount of the [Group 2-AV] Notes
(after all distributions of principal on such Payment Date) exceeds the sum
of
(x) the aggregate Stated Principal Balance of the Mortgage Loans in [Pool 2]
and
(y) the amount on deposit in the Pre-Funding Account in respect of [Pool
2].
Appraised
Value:
With
respect to any Mortgage Loan, the amount set forth in an appraisal made in
connection with the origination of such Mortgage Loan as the value of the
related Mortgaged Property.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument, in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the assignment of the Mortgage
to the Indenture Trustee for the benefit of Noteholders, which assignment,
notice of transfer or equivalent instrument may be in the form of one or more
blanket assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction, if permitted by law; provided,
however,
that
neither the Issuer nor the Indenture Trustee shall be responsible for
determining whether any such assignment is in recordable form.
Authorized
Officer:
Any
Person who may execute an Officer’s Certificate on behalf of the
Issuer.
Bankruptcy:
As to
any Person, the making of an assignment for the benefit of creditors, the filing
of a voluntary petition in bankruptcy, adjudication as a bankrupt or insolvent,
the entry of an order for relief in a bankruptcy or insolvency proceeding,
the
seeking of reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief, or seeking, consenting to or acquiescing in
the
appointment of a trustee, receiver or liquidator, dissolution, or termination,
as the case may be, of such Person pursuant to the provisions of either the
United States Bankruptcy Code of 1986, as amended, or any other similar state
laws.
Bankruptcy
Code:
The
United States Bankruptcy Code of 1986, as amended.
Basis
Risk Shortfall:
With
respect to any Class of Notes and any Payment Date, the amount by which (a)
the
amount of interest calculated at the Note Interest Rate applicable to such
Class
for such date, determined without regard to the applicable Net Funds Cap for
such date (but with regard to the Fixed Rate Cap) exceeds (b) the amount of
interest calculated at the applicable Net Funds Cap.
Bloomberg
Screen LIBO Page:
The
display designated as page “BBAM” on the Bloomberg L.P. (or such other page as
may replace the BBAM page on that service for the purpose of displaying London
interbank offered rates of major banks).
Book-Entry
Notes:
As
defined in the Indenture.
Business
Day:
Any day
other than (i) a Saturday or a Sunday or (ii) a day on which banking
institutions in New York, New York or, if other than New York, the city in
which
the Corporate Trust Office of the Indenture Trustee is located, or the States
of
California, Delaware, Maryland or Minnesota are authorized or obligated by
law
or executive order to be closed.
Cap
Agreement Assignment Agreement:
The
assignment agreement dated as of the Closing Date among
________________________, the Issuer and the Cap Counterparty.
Cap
Counterparty:
_____________________________, as counterparty under the Interest Rate Cap
Agreements.
Certificate:
The
Ownership Certificate.
Certificate
Registrar:
As
defined in the Trust Agreement, the initial Certificate Registrar shall be
the
Trust Administrator.
Certificateholder:
Any
registered holder of the Ownership Certificate.
Certification
Party:
As
defined in Section 10.05.
Certifying
Person:
As
defined in Section 10.05.
Civil
Relief Act:
The
Servicemembers Civil Relief Act, as such may be amended from time to time,
and
any similar state laws.
Class:
All
Notes bearing the same class designation.
Class
A Notes:
Collectively, the [Class AF-1A], [Class AF-1B], [Class AF-2], [Class AF-3],
[Class AF-4], [Class AF-5A], [Class AF-5B], [Class AF-6], [Class 2-AV-1], [Class
2-AV-2]; [Class 3-AV-1], [Class 3-AV-2], [Class 3-AV-3] and [Class 3-AV-4]
Notes.
[Class
AF-1A] Cap Agreement:
The
interest rate cap agreement transaction evidenced by the related Confirmation
(as assigned to the Trust pursuant to the Cap Agreement Assignment Agreement),
with respect to the Class [AF-1A] Notes.
[Class
AF-1A] Cap Agreement Payment Date:
With
respect to the [Class AF-1A] Cap Agreement, the Business Day immediately
preceding the related Payment Date, beginning with the Payment Date in ________
200_ and ending with the Payment Date in ________ 200_.
[Class
AF-5B] Available Funds:
With
respect to any Payment Date, funds allocated from amounts available pursuant
to
this Agreement to make distributions on the [Class AF-5B] Notes on such Payment
Date, other than any Insured Amounts.
[Class
AF-5B] Insurer:
________________ in its capacity as insurer under the [Class AF-5B] Policy,
and
any permitted successor or assign.
[Class
AF-5B] Insurer Contact Person:
The
officer designated by the Servicer to provide information to the [Class AF-5B]
Insurer pursuant to Section 5.07(i)].
[Class
AF-5B] Insurer Default:
As
defined in Section 5.07(k).
[Class
AF-5B] Policy:
The
irrevocable Note Guaranty Insurance Policy, No. ______________, including any
endorsements thereto, issued by ________ with respect to the [Class AF-5B]
Notes, in the form attached hereto as Exhibit [I].
[Class
AF-5B] Premium:
For any
Payment Date is the fee payable to the [Class AF-5B] Insurer in respect of
its
services as [Class AF-5B] Insurer that accrues at the [Class AF-5B] Policy
Premium Rate for the [Class AF-5B] Notes on a balance equal to the Note
Principal Amount of the [Class AF-5B] Notes immediately prior to such Payment
Date. The [Class AF-5B] Premium shall be computed on the basis of a 360-day
year
consisting of twelve 30-day months.
[Class
AF-5B] Policy Premium Rate:
The
“Premium Percentage” as defined in the [Class AF-5B] Policy.
[Class
AF-5B] Reimbursement Amount:
As to
any Payment Date, (i) all Insured Payments paid by the [Class AF-5B] Insurer,
but for which the [Class AF-5B] Insurer has not been reimbursed prior to such
Payment Date pursuant to Section 5.02 hereof, plus (ii) interest accrued on
such
Insured Payments not previously repaid, calculated at the Late Payment Rate
from
the date such Insured Payments were made.
Class
B Notes:
Collectively, the Class [BF] and Class [BV] Notes.
Class
C Notes:
Collectively, the Class [CF] and Class [CV] Notes.
Class
M Notes:
Collectively, the [Class MF-1], [Class MF-2], [Class MF-3], [Class MF-4], [Class
MF-5], [Class MF-6], [Class MF-7], [Class MF-8], [Class MV-1], [Class MV-2],
[Class MV-3], [Class MV-4], [Class MV-5], [Class MV-6], [Class MV-7] and [Class
MV-8] Notes.
Class
P Notes:
Collectively, the Class [PF] and Class [PV] Notes.
Class
Principal Amount:
With
respect to each Class of Notes, the aggregate of the Note Principal Amounts
of
all Notes of such Class at the date of determination.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act, as amended. As of the Closing Date, the Clearing Agency shall
be
The Depository Trust Company.
Closing
Date:
_______, 200_.
Code:
The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collateral:
As
defined in the Indenture.
Collection
Account:
A
separate account established and maintained by the Trust Administrator for
the
benefit of the Indenture Trustee pursuant to Section 4.07.
Collection
Period:
With
respect to any Payment Date and Mortgage Loan, the period commencing on the
second day of the month immediately preceding the month in which such Payment
Date occurs and ending on the first day of the month in which such Payment
Date
occurs.
Commission:
The
U.S. Securities and Exchange Commission.
Compensating
Interest Payment:
With
respect to any Payment Date, an amount equal to the lesser of (x) the aggregate
Prepayment Interest Shortfall Amount with respect to such Payment Date and
(y)
the Servicing Fee payable to the Servicer in respect of such Payment
Date.
Condemnation
Proceeds:
All
awards of settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan documents.
Confirmation:
Any of
the Confirmations dated __________, 200_ evidencing a transaction between the
Cap Counterparty and __________________, an affiliate of the Depositor, relating
to the Interest Rate Cap Agreements.
Control:
The
meaning specified in Section 8-106 of the New York UCC.
Corporate
Trust Office:
With
respect to (i) the Trust Administrator, the principal corporate trust office
of
the Trust Administrator at which, at any particular time, its corporate trust
business shall be administered, which office at the date of execution of this
Agreement for purposes of transfers and exchanges and for presentment and
surrender of the Notes and for payment thereof is located at
____________________, __________________, Attention: __________________, and
for
all other purposes is located at
____________________,___________________________, Attention: ________________;
(ii) the Certificate Registrar, the principal office of the Certificate
Registrar at which at any particular time its corporate trust business shall
be
administered, which office at the date of execution of this Agreement is located
at the Corporate Trust Office of the Trust Administrator, or at such other
address as the Certificate Registrar may designate from time to time by notice
to the Noteholders and the Trust, or the principal corporate trust office of
any
successor Certificate Registrar at the address designated by such successor
Certificate Registrar by notice to the Noteholders and the Trust; and (iii)
the
Indenture Trustee, the principal office of the Indenture Trustee at which at
any
particular time its corporate trust business shall be administered, which office
at the date of execution of this Agreement is located at _____________________,
Attention: ___________________, or at such other address as the Indenture
Trustee may designate from time to time by notice to the Noteholders and the
Trust, or the principal corporate trust office of any successor Indenture
Trustee at the address designated by such successor Indenture Trustee by notice
to the Noteholders and the Trust.
Current
Interest:
With
respect to any Class of Notes and any Payment Date, will equal the aggregate
amount of interest accrued at the applicable Note Interest Rate during the
related Accrual Period on the Class Principal Amount of such Class immediately
prior to such Payment Date, provided,
however,
that
for any Class of Subordinate Notes and for any Payment Date, Current Interest
shall be reduced by the amount specified in clause (a) of the definition of
Deferred Interest, if any, for such Class and Payment Date.
Cut-off
Date:
In the
case of any Initial Mortgage Loan, the later of (x) _________, 200_ and (y)
the
date of origination of such Mortgage Loan (the “Initial Cut-off Date”), and in
the case of any Subsequent Mortgage Loan, the later of (x) the first day of
the
month of the related Subsequent Transfer Date and (y) the date of origination
of
such Subsequent Mortgage Loan (the related “Subsequent Cut-off Date”). When used
with respect to any Mortgage Loan the “Cut-off Date” shall mean the related
Cut-off Date.
Cut-off
Date Balance:
The
Aggregate Loan Balance as of the Cut-off Date.
Cut-off
Date Collateral Balance:
The
Cut-off Date Balance.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, the Stated Principal Balance thereof as of the close of
business on the Cut-off Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction of the Scheduled Payment that the
related Mortgagor is obligated to pay on any Due Date as a result of any
proceeding under Bankruptcy law or any similar proceeding.
Deferred
Interest:
For any
Class of Subordinate Notes and any Payment Date, the sum of (a) the aggregate
amount of interest accrued at the applicable Note Interest Rate during the
related Accrual Period on the Principal Deficiency Amount for the Class, (b)
any
amounts due pursuant to clause (a) for such Class for prior Payment Dates that
remain unpaid and (c) interest accrued during the Accrual Period related to
such
Payment Date on the amount in clause (b) at the Note Interest Rate applicable
to
such Class.
Deficiency
Amount:
With
respect to:
(a)
any
Payment Date prior to the Last Scheduled Payment Date, the sum of (i) the
excess, if any, of the Current Interest on the [Class AF-5B] Notes net of any
interest shortfalls resulting from Prepayment Interest Shortfalls and any
interest shortfalls resulting from the application of the Civil Relief Act,
or
similar state or local laws, over [Class AF-5B] Available Funds for such Payment
Date, and (ii) for any Payment Date after the Note Principal Amount of the
Fixed
Rate Subordinate Notes has been reduced to zero, the excess, if any, of (A)
the
Note Principal Amount of the [Class AF-5B] Notes over (B) the sum of the
aggregate Stated Principal Balance of the [Pool 1] Mortgage Loans, in each
case
taking into account all distributions to be made on such Payment
Date;
(b)
the
Last Scheduled Payment Date, an amount equal to the sum of (i) the excess,
if
any, of the Current Interest on the [Class AF-5B] Notes net of any interest
shortfalls resulting from Prepayment Interest Shortfalls and any interest
shortfalls resulting from the application of the Relief Act, or similar state
or
local laws over the [Class AF-5B] Available Funds for such Payment Date and
(ii)
the Note Principal Amount of the [Class AF-5B] Notes on such Last Scheduled
Payment Date (after taking into account all distributions to be made to the
[Class AF-5B] Notes on such Payment Date); and
(c)
any
date on which the redemption of the Notes has been directed or consented to
by
the [Class AF-5B] Insurer, the excess of (i) the amount required to pay the
outstanding Note Principal Amount of the [Class AF-5B] Notes in full, together
with accrued and unpaid interest thereon through the date of payment of the
[Class AF-5B] Notes and (ii) the [Class AF-5B] Available Funds for that Payment
Date.
Definitive
Notes:
As
defined in the Indenture.
Deleted
Mortgage Loan:
A
Mortgage Loan that is repurchased from the Trust Estate pursuant to the terms
hereof or as to which one or more Qualifying Substitute Mortgage Loans are
substituted therefor.
Delinquency
Rate:
With
respect to any calendar month, the fraction, expressed as a percentage, the
numerator of which is the aggregate outstanding principal balance of all
Mortgage Loans 60 or more days Delinquent (including all foreclosures,
bankruptcies and REO Properties) as of the close of business on the last day
of
such month, and the denominator of which is the Aggregate Collateral Balance
as
of the close of business on the last day of such month.
Delinquent:
For
reporting purposes, a Mortgage Loan is “delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefor. Such Mortgage Loan is “30 days Delinquent” if such payment has
not been received by the close of business on the corresponding day of the
month
immediately succeeding the month in which such payment was first due, or, if
there is no such corresponding day (e.g.,
as when
a 30-day month follows a 31-day month in which a payment was due on the 31st
day
of such month), then on the last day of such immediately succeeding month.
Similarly for “60 days Delinquent” and the second immediately succeeding month
and “90 days Delinquent” and the third immediately succeeding
month.
Depositor:
IndyMac
ABS, Inc., a Delaware corporation or its successors in interest.
Depository
Agreement:
The
agreement dated _______, 200_, among the Issuer and The Depository Trust
Company, as the initial Clearing Agency, relating to the Book-Entry
Notes.
Determination
Date:
With
respect to each Payment Date, the 15th day of the month in which such Payment
Date occurs, or, if such 15th day is not a Business Day, the next succeeding
Business Day.
Due
Date:
The day
of the calendar month on which the Scheduled Payment is due on a Mortgage Loan,
exclusive of any days of grace. Pursuant to Section 4.09(q), with respect to
any
Mortgage Loans for which payment from the Mortgagor is due on a day other than
the first day of the month, such Mortgage Loans will be treated as if the
Scheduled Payment is due on the first day of the immediately succeeding month
(other than with respect to the calculation of the repurchase
price).
Due
Period:
[With
respect to any Payment Date, the period beginning on the second day of the
calendar month preceding the calendar month in which such Payment Date occurs
and ending on the first day of the month in which such Payment Date
occurs].
XXXXX:
The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Eligible
Account:
Either
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company that complies with the definition of
Eligible Institution or (ii) an account or accounts the deposits in which are
insured by the FDIC to the limits established by such corporation, provided
that
any such deposits not so insured shall be maintained in an account at a
depository institution or trust company whose commercial paper or other short
term debt obligations (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the commercial
paper or other short term debt or deposit obligations of such holding company
or
depository institution, as the case may be) have been rated by each Rating
Agency in its highest short-term rating category, or (iii) a segregated trust
account or accounts (which shall be a “special deposit account”) maintained with
the Trust Administrator or any other federal or state chartered depository
institution or trust company, acting in its fiduciary capacity, in a manner
acceptable to the Rating Agencies. Eligible Accounts may bear
interest.
Eligible
Institution:
Any of
the following:
|
(i)
|
An
institution whose:
|
|
(A)
|
commercial
paper, short-term debt obligations, or other short-term deposits
are rated
at least “A-1+” or long-term unsecured debt obligations are rated at least
“AA-” by S&P (or assigned comparable ratings by the other Rating
Agencies), if the amounts on deposit are to be held in the account
for no
more than 365 days; or
|
|
(B)
|
commercial
paper, short-term debt obligations, demand deposits, or other short-term
deposits are rated at least “A-2” by S&P (or assigned comparable
ratings by the other Rating Agencies), if the amounts on deposit
are to be
held in the account for no more than 30 days and are not intended
to be
used as credit enhancement. Upon the loss of the required rating
set forth
in this clause (ii), the accounts shall be transferred immediately
to
accounts which have the required rating. Furthermore, commingling
by the
Servicer is acceptable at the A-2 rating level if the Servicer is
a bank,
thrift or depository and provided the Servicer has the capability
to
immediately segregate funds and commence remittance to an Eligible
Account
upon a downgrade; or
|
|
(ii)
|
the
corporate trust department of a federal depositor institution or
state-chartered depositor institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of
Federal
Regulation Section 9.10(b), which, in either case, has corporate
trust
powers and is acting in its fiduciary
capacity.
|
Eligible
Investments:
Any one
or more of the following obligations or securities:
|
(i)
|
direct
obligations of, and obligations fully guaranteed as to timely payment
of
principal and interest by, the United States of America or any agency
or
instrumentality of the United States of America the obligations of
which
are backed by the full faith and credit of the United States of America
(“Direct Obligations”);
|
|
(ii)
|
federal
funds, or demand and time deposits in, certificates of deposits of,
or
bankers’ acceptances issued by, any depository institution or trust
company (including U.S. subsidiaries of foreign depositories and
the
Indenture Trustee or the Trust Administrator or any agent of the
Indenture
Trustee or the Trust Administrator, acting in its respective commercial
capacity) incorporated or organized under the laws of the United
States of
America or any state thereof and subject to supervision and examination
by
federal or state banking authorities, so long as at the time of investment
or the contractual commitment providing for such investment the commercial
paper or other short term debt obligations of such depository institution
or trust company (or, in the case of a depository institution or
trust
company which is the principal subsidiary of a holding company, the
commercial paper or other short term debt or deposit obligations
of such
holding company or deposit institution, as the case may be) have
been
rated by each Rating Agency in its highest short-term rating category
or
one of its two highest long-term rating
categories;
|
|
(iii)
|
repurchase
agreements collateralized by Direct Obligations or securities guaranteed
by GNMA, Xxxxxx Xxx or FHLMC with any registered broker/dealer subject
to
Securities Investors’ Protection Corporation jurisdiction or any
commercial bank insured by the FDIC, if such broker/dealer or bank
has an
uninsured, unsecured and unguaranteed obligation rated by each Rating
Agency in its highest short-term rating
category;
|
|
(iv)
|
securities
bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any
state
thereof which have a credit rating from each Rating Agency, at the
time of
investment or the contractual commitment providing for such investment,
at
least equal to one of the two highest long term credit rating categories
of each Rating Agency; provided,
however,
that securities issued by any particular corporation will not be
Eligible
Investments to the extent that investment therein will cause the
then
outstanding principal amount of securities issued by such corporation
and
held as part of the Trust Estate to exceed [20]% of the sum of the
Aggregate Loan Balance and the aggregate principal amount of all
Eligible
Investments in the Collection Account; provided,
further,
that such securities will not be Eligible Investments if they are
published as being under review with negative implications from any
Rating
Agency;
|
|
(v)
|
commercial
paper (including both non-interest-bearing discount obligations and
interest bearing obligations payable on demand or on a specified
date not
more than 180 days after the date of issuance thereof) rated by each
Rating Agency in its highest short-term rating
category;
|
|
(vi)
|
a
Qualified GIC;
|
|
(vii)
|
certificates
or receipts representing direct ownership interests in future interest
or
principal payments on obligations of the United States of America
or its
agencies or instrumentalities (which obligations are backed by the
full
faith and credit of the United States of America) held by a custodian
in
safekeeping on behalf of the holders of such receipts;
and
|
|
(viii)
|
any
other demand, money market, common trust fund or time deposit or
obligation, or interest bearing or other security or investment (including
those managed or advised by the Indenture Trustee, the Servicer,
the Trust
Administrator, or any Affiliate thereof), (A) rated in the highest
rating
category by each Rating Agency or (B) that would not adversely affect
the
then current rating assigned by each Rating Agency to any of the
Notes.
Such investments in this subsection (viii) may include money market
mutual
funds or common trust estates, including any fund for which
____________________ (the “Bank”) in its capacity other than as the
Servicer, the Trust Administrator or an affiliate thereof serves
as an
investment advisor, administrator, shareholder servicing agent, and/or
custodian or subcustodian, notwithstanding that (x) the Bank, the
Indenture Trustee, the Servicer or any affiliate thereof charges
and
collects fees and expenses from such funds for services rendered,
(y) the
Bank, the Indenture Trustee, the Trust Administrator, the Servicer
or any
affiliate thereof charges and collects fees and expenses for services
rendered pursuant to this Agreement, and (z) services performed for
such
funds and pursuant to this Agreement may converge at any time. The
Bank or
an affiliate thereof is specifically authorized to charge and collect
from
the Issuer such fees as are collected from all investors in such
funds for
services rendered to such funds (but not to exceed investment earnings
thereon);
|
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than [120]% of the yield to maturity at par of such
underlying obligations, provided that any such investment will be a “permitted
investment” within the meaning of Section 860G(a)(5) of the Code.
Entitlement
Order:
The
meaning specified in Section 8-102(a)(8) of the New York UCC (i.e.,
generally, orders directing the transfer or redemption of any Financial
Asset).
Environmental
Problem Property:
A
Mortgaged Property or REO Property that is in violation of any environmental
law, rule or regulation.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
Errors
and Omissions Insurance:
Errors
and Omissions Insurance to be maintained by the Servicer in accordance with
Section 4.03.
Errors
and Omission Insurance Policy:
Any
Errors and Omission Insurance policy required to be obtained by the Servicer
satisfying the requirements of this Agreement.
Escrow
Account:
The
separate escrow account established and maintained by the Servicer pursuant
to
Section 4.09(a) of this Agreement.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Excess
[Class AF-1A] Cap Amount:
As
defined in Section 5.06(c).
Excess
[Class 2AV] Cap Amount:
As
defined in Section 5.06(d).
Excess
[Class 3AV] Cap Amount:
As
defined in Section 5.06(e).
Excess
Subordinate Cap Amount:
As
defined in Section 5.06(f).
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Exchange
Act Reports:
Any
reports on Form 10-D, Form 8-K and Form 10-K required to be filed by the
Depositor with respect to the Trust Fund under the Exchange Act.
Extra
Principal Distribution Amount:
With
respect to any Payment Date and (A) [Pool 1], the lesser of (1) the Fixed Rate
Overcollateralization Deficiency Amount and (2) the sum of the Fixed Rate Pool
Excess Cashflow and the Credit Comeback Excess Amount available for payment
thereof and (B) each of [Pool 2] and [Pool 3], the lesser of (1) the Adjustable
Rate Overcollateralization Deficiency Amount and (2) the Adjustable Rate Pool
Excess Cashflow available for payment thereof, to be allocated between [Pool
2]
and [Pool 3], pro rata, based on the Principal Remittance Amount for each such
Pool for such Payment Date.
Xxxxxx
Mae or FNMA:
Xxxxxx
Xxx, a federally chartered and privately owned corporation organized and
existing under the Federal National Mortgage Association Charter Act, or any
successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation or any successor thereto.
FHA:
The
Federal Housing Administration, an agency within HUD.
FHA
Approved Mortgagee:
Those
institutions which are approved by FHA to act as servicer and mortgagee of
record pursuant to FHA Regulations.
FHA
Regulations:
Regulations promulgated by HUD under the National Housing Act, codified in
Title
24 of the Code of Federal Regulations, and other HUD issuances relating to
FHA
Loans, including the related handbooks, circulars, notices and mortgagee
letters.
Fidelity
Bond:
Any
fidelity bond to be maintained by the Servicer in accordance with Section
4.03.
Financial
Asset:
The
meaning specified in Section 8-102(a) of the New York UCC.
Fixed
Rate Cap:
With
respect to any Payment Date, a per annum rate equal to ___%.
Fixed
Rate Notes:
The
[Class AF-1B], [Class AF-2], [Class AF-3], [Class AF-4], [Class AF-5A], [Class
AF-5B], [Class AF-6] and [Class BF] Notes.
Fixed
Rate Cumulative Loss Trigger Event:
With
respect to a Payment Date on or after the Fixed Rate Stepdown Date, a Fixed
Rate
Cumulative Loss Trigger Event occurs if (x) the aggregate amount of Realized
Losses on the Mortgage Loans in [Pool 1] from the Cut-off Date for each such
Mortgage Loan to (and including) the last day of the related Due Period (reduced
by the aggregate amount of any Recoveries related to [Pool 1] received through
the last day of that Due Period) exceeds (y) the applicable percentage, for
such
Payment Date, of the sum of the aggregate Cut-off Date Principal Balance of
the
Initial Mortgage Loans in [Pool 1] and the [Pool 1] Pre-Funded Amount, as set
forth below:
|
Payment
Date
|
Percentage
|
|
_____
200_ — _____ 200_
|
_____%
with respect to ______ 200_, plus an additional 1/12th of ____% for
each
month thereafter through ______ 200_
|
|
_____
200_ — _____ 200_
|
_____%
with respect to ______ 200_, plus an additional 1/12th of ____% for
each
month thereafter through ______ 200_
|
|
_____
200_ — _____ 200_
|
_____%
with respect to ______ 200_, plus an additional 1/12th of ____% for
each
month thereafter through ______ 200_
|
|
_____
200_ and thereafter
|
____%
|
Fixed
Rate Delinquency Trigger Event:
With
respect to any Payment Date on or after the Fixed Rate Stepdown Date, a Fixed
Rate Delinquency Trigger Event exists if the Rolling [Sixty-Day] Delinquency
Rate for outstanding Mortgage Loans in [Pool 1] equals or exceeds the product
of
(x) the Fixed Rate Senior Enhancement Percentage for such Payment Date and
(y)
the applicable percentage listed below for the most senior class of outstanding
[Group AF] Notes and Fixed Rate Subordinate Notes:
|
Class
|
Percentage
|
|
[Group
AF]
|
_______%
|
|
[Class
MF-1]
|
_______%
|
|
[Class
MF-2]
|
_______%
|
|
[Class
MF-3]
|
_______%
|
|
[Class
MF-4]
|
_______%
|
|
[Class
MF-5]
|
_______%
|
|
[Class
MF-6]
|
_______%
|
|
[Class
MF-7]
|
_______%
|
|
[Class
MF-8]
|
_______%
|
|
[Class
BF]
|
_______%
|
Fixed
Rate Excess Overcollateralization Amount:
With
respect to any Payment Date, an amount equal to the excess, if any, of the
Fixed
Rate Overcollateralized Amount for such Payment Date over the Fixed Rate
Overcollateralization Target Amount for such Payment Date.
Fixed
Rate Pool Excess Cashflow:
With
respect to any Payment Date the sum of (i) the amount remaining after the
distribution of interest to Noteholders and the payment of the Class [AF 5B]
Premium and any Class [AF 5B] Reimbursement Amount to the [Class AF-5B] Insurer,
in each case for such Payment Date pursuant to Section 5.02(b), and (ii) the
amount remaining after the distribution of principal to Noteholders and the
payment of any unpaid Class [AF 5B] Premium and any unpaid Class [AF 5B]
Reimbursement Amount to the [Class AF-5B] Insurer, in each case for such Payment
Date pursuant to Section 5.02(d) and (iii) the Fixed Rate Overcollateralization
Reduction Amount for such Payment Date, if any.
Fixed
Rate OC Floor:
An
amount equal to ____% of the aggregate Cut-off Date Principal Balance of the
Initial Mortgage Loans in [Pool 1] and the [Pool 1] Pre-Funded
Amount.
Fixed
Rate Overcollateralization Deficiency Amount:
With
respect to any Payment Date, the amount, if any, by which the Fixed Rate
Overcollateralization Target Amount exceeds the Fixed Rate Overcollateralized
Amount on such Payment Date (after giving effect to distributions in respect
of
the Principal Remittance Amount for [Pool 1] on such Payment Date).
Fixed
Rate Overcollateralization Reduction Amount:
With
respect to any Payment Date, an amount equal to the lesser of (i) the Fixed
Rate
Excess Overcollateralization Amount for such Payment Date and (ii) the Principal
Remittance Amount for [Pool 1] for such Payment Date.
Fixed
Rate Overcollateralization Target Amount:
With
respect to any Payment Date (a) prior to the Fixed Rate Stepdown Date, an amount
equal to ___% of the sum of the aggregate Cut-off Date Principal Balance of
the
Initial Mortgage Loans in [Pool 1] and the [Pool 1] Pre-Funded Amount (b) on
or
after the Fixed Rate Stepdown Date, the greater of (i) an amount equal to ____%
of the aggregate Stated Principal Balance of the Mortgage Loans in [Pool 1]
for
the current Payment Date and (ii) the Fixed Rate OC Floor; provided, however,
that if a Fixed Rate Trigger Event is in effect on any Payment Date, the Fixed
Rate Overcollateralization Target Amount will be the Fixed Rate
Overcollateralization Target Amount as in effect for the prior Payment
Date.
Fixed
Rate Overcollateralized Amount:
With
respect to any Payment Date, the amount, if any, by which (x) the aggregate
Stated Principal Balance of the Initial Mortgage Loans in [Pool 1] for such
Payment Date and any amount on deposit in the Pre-Funding Account in respect
of
[Pool 1] exceeds (y) the aggregate Note Principal Amount of the [Group AF]
Notes
and the Fixed Rate Subordinate Notes as of such Payment Date (after giving
effect to distributions of the Principal Remittance Amount for [Pool 1] to
be
made on such Payment Date and, in the case of the Payment Date immediately
following the end of the Funding Period, any amounts to be released from the
Pre-Funding Account in respect of [Pool 1]).
Fixed
Rate Senior Enhancement Percentage:
With
respect to a Payment Date on or after the Fixed Rate Stepdown Date, the fraction
(expressed as a percentage) (1) the numerator of which is the excess of (a)
the
aggregate Stated Principal Balance of the Mortgage Loans in [Pool 1] for the
preceding Payment Date over (b) (i) before the Note Principal Amounts of the
[Group AF] Notes have been reduced to zero, the sum of the Note Principal
Amounts of the [Group AF] Notes, or (ii) after such time, the Note Principal
Amount of the most senior Class of Fixed Rate Subordinate Notes outstanding,
as
of the related Servicer Advance Date, and (2) the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans in [Pool 1] for the
preceding Payment Date.
Fixed
Rate Subordinate Class Principal Distribution Amount:
With
respect to any Payment Date and any Class of Fixed Rate Subordinate Notes the
excess of (1) the sum of (a) the aggregate Note Principal Amount of the [Group
AF] Notes (after taking into account distribution of the [Group AF] Principal
Distribution Amount for such Payment Date), (b) the aggregate Note Principal
Amount of any Class(es) of Fixed Rate Subordinate Notes that are senior to
the
subject Class (in each case, after taking into account distribution of the
Fixed
Rate Subordinate Class Principal Distribution Amount(s) for such senior
Class(es) of Notes for such Payment Date), and (c) the Note Principal Amount
of
such Class of Fixed Rate Subordinate Notes immediately prior to the subject
Payment Date over (2) the lesser of (a) the product of (x) 100% minus the
Stepdown Target Subordination Percentage for the subject Class of Notes and
(y)
the aggregate Stated Principal Balance of the Mortgage Loans in [Pool 1] for
such Payment Date and (b) the aggregate Stated Principal Balance of the Mortgage
Loans in [Pool 1] for such Payment Date minus the Fixed Rate OC Floor; provided,
however, that if such Class of Fixed Rate Subordinate Notes is the only Class
of
Fixed Rate Subordinate Notes outstanding on such Payment Date, that Class will
be entitled to receive the entire remaining Principal Distribution Amount for
[Pool 1] until the Note Principal Amount thereof is reduced to
zero.
Fixed
Rate Stepdown Date:
The
later to occur of (x) the Payment Date in ______ 200_ and (y) the first Payment
Date on which the aggregate Note Principal Amount of the [Group AF] Notes (after
calculating anticipated distributions on such Payment Date) is less than or
equal to ______% of the aggregate Stated Principal Balance of the Mortgage
Loans
in [Pool 1] for such Payment Date.
Fixed
Rate Subordinate Notes:
The
[Class MF-1], [Class MF-2], [Class MF-3], [Class MF-4], [Class MF-5], [Class
MF-6], [Class MF-7], [Class MF-8] and [Class BF] Notes.
Fixed
Rate Trigger Event:
With
respect to any Payment Date on or after the Fixed Rate Stepdown Date, consists
of either a Fixed Rate Delinquency Trigger Event with respect to that Payment
Date or a Fixed Rate Cumulative Loss Trigger Event with respect to that Payment
Date.
Form
10-D Disclosure Item:
With
respect to any Person, any material litigation or governmental proceedings
pending against such Person, or against any of the Trust Fund, the Depositor,
the Trust Administrator, the Indenture Trustee, the Owner Trustee and the
Servicer, if such Person has actual knowledge thereof.
Form
10-K Disclosure Item:
With
respect to any Person, (a) any Form 10-D Disclosure Item and (b) any
affiliations or relationships between such Person and any Item 1119
Party.
Xxxxxxx
Mac or FHLMC:
The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor thereto.
Funding
Period:
The
period from the Closing Date to and including the earlier to occur of (x) the
date the amount in the Pre-Funding Account is less than $[25,000] and (y)
________ ___, 200_.
Xxxxxx
Xxx or GNMA:
The
Government National Mortgage Association, a wholly owned corporate
instrumentality of the United States within HUD.
[Group
2-AV] Cap Agreement:
The
interest rate cap agreement transaction evidenced by the related Confirmation
(as assigned to the Trust pursuant to the Cap Agreement Assignment Agreement),
with respect to the [Class 2-AV-1] and [Class 2-AV-2] Notes.
[Group
2-AV] Cap Agreement Payment Date:
With
respect to the [Group AV] Cap Agreement, the Business Day immediately preceding
the related Payment Date, beginning with the Payment Date in __________ 200_
and
ending with the Payment Date in _______200_.
[Group
2-AV] Notes:
The
[Class 2-AV-1] and [Class 2-AV-2] Notes.
[Group
2-AV] Principal Distribution Amount:
With
respect to any Payment Date, the product of (x) the [Group AV] Principal
Distribution Target Amount and (y) a fraction, the numerator of which is the
[Group 2-AV] Principal Distribution Target Amount and the denominator of which
is the sum of the [Group 2-AV] Principal Distribution Target Amount and [Group
3-AV] Principal Distribution Target Amount.
[Group
2-AV] Principal Distribution Target Amount:
With
respect to any Payment Date, the excess of (1) the aggregate Note Principal
Amount of the [Group 2-AV] Notes immediately prior to such Payment Date, over
(2) the lesser of (x) _____% of the aggregate Stated Principal Balance of the
Mortgage Loans in [Pool 2] for such Payment Date and (y) the aggregate Stated
Principal Balance of the Mortgage Loans in [Pool 2] for such Payment Date minus
___% of the aggregate Stated Principal Balance of the Mortgage Loans in [Pool
2]
and the original [Pool 2] Pre-Funded Amount as of the Cut-off Date.
[Group
3-AV] Cap Agreement:
The
interest rate cap agreement transaction evidenced by the related Confirmation
(as assigned to the Trust pursuant to the Cap Agreement Assignment Agreement),
with respect to the [Class 3-AV-1], [Class 3-AV-2], [Class 3-AV-3] and [Class
3-AV-4] Notes.
[Group
3-AV] Cap Agreement Payment Date:
With
respect to the [Group AV] Cap Agreement, the Business Day immediately preceding
the related Payment Date, beginning with the Payment Date in __________ 200_
and
ending with the Payment Date in _______200_.
[Group
3-AV] Notes:
The
[Class 3-AV-1], [Class 3-AV-2], [Class 3-AV-3] and [Class 3-AV-4]
Notes.
[Group
3-AV] Principal Distribution Amount:
With
respect to any Payment Date, the product of (x) the [Group AV] Principal
Distribution Target Amount and (y) a fraction, the numerator of which is the
[Group 3-AV] Principal Distribution Target Amount and the denominator of which
is the sum of the [Group 2-AV] Principal Distribution Target Amount and the
[Group 3-AV] Principal Distribution Target Amount.
[Group
3-AV] Principal Distribution Target Amount:
With
respect to any Payment Date, the excess of (1) the aggregate Note Principal
Amount of the [Group 3-AV] Notes immediately prior to such Payment Date, over
(2) the lesser of (x) ____% of the aggregate Stated Principal Balance of the
Mortgage Loans in [Pool 3] for such Payment Date and (y) the aggregate Stated
Principal Balance of the Mortgage Loans in [Pool 3] for such Payment Date minus
___% of the sum of the aggregate Stated Principal Balance of the Mortgage Loans
in [Pool 3] and the original [Pool 3] Pre-Funded Amount as of the Cut-off
Date.
[Group
AF] Notes:
The
[Class AF-1A], [Class AF-1B], [Class AF-2], [Class AF-3], [Class AF-4], [Class
AF-5A], [Class AF-5B] and [Class AF-6] Notes.
[Group
AF] Principal Distribution Amount:
With
respect to any Payment Date, the excess of (1) the aggregate Note Principal
Amount of the [Group AF] Notes immediately prior to such Payment Date, over
(2)
the lesser of (x) ____% of the aggregate Stated Principal Balance of the
Mortgage Loans in [Pool 1] for such Payment Date and (y) the aggregate Stated
Principal Balance of the Mortgage Loans in [Pool 1] and the original [Pool
1]
Pre-Funded Amount as of the Cut-off Date for such Payment Date minus the Fixed
Rate OC Floor.
[Group
AV] Notes:
The
[Group 2-AV] and [Group 3-AV] Notes
Guidelines:
As
defined in Section 4.09(n).
Holder
or
Noteholder:
The
registered holder of any Note or Ownership Certificate as recorded on the books
of the Note Registrar or the Certificate Registrar except that, solely for
the
purposes of taking any action or giving any consent pursuant to this Agreement,
any Note registered in the name of the Depositor, the Servicer, the Seller,
the
Trust Administrator or the Indenture Trustee or any Affiliate thereof (unless
any such Person owns [100]% of a Class) shall be deemed not to be outstanding
in
determining whether the requisite percentage necessary to effect any such
consent has been obtained, except that, in determining whether the Indenture
Trustee and Trust Administrator shall be protected in relying upon any such
consent, only Notes and an Ownership Certificate which a Responsible Officer
thereof has actual knowledge to be so held shall be disregarded. The Indenture
Trustee and Trust Administrator may request and conclusively rely on
certifications by the Depositor in determining whether any Note or Ownership
Certificate is registered to an Affiliate of the Depositor.
HUD:
The
United States Department of Housing and Urban Development, or any successor
thereto and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA
Regulations.
Indenture:
The
Indenture dated as of _______, 200_, among the Issuer, the Trust Administrator
and the Indenture Trustee, as such may be amended or supplemented from time
to
time.
Indenture
Event of Default:
As
defined in Section 5.01 of the Indenture.
Indenture
Trustee:
____________________________________, not in its individual capacity but solely
as Indenture Trustee, or any successor in interest.
Independent:
When
used with respect to any Accountants, a Person who is “independent” within the
meaning of Rule 2-01(b) of the Securities and Exchange Commission’s Regulation
S-X. When used with respect to any other Person, a Person who (a) is in fact
independent of another specified Person and any Affiliate of such other Person,
(b) does not have any material direct financial interest in such other Person
or
any Affiliate of such other Person, and (c) is not connected with such other
Person or any Affiliate of such other Person as an officer, employee, promoter,
trustee, partner, director or Person performing similar functions.
Index:
The
index specified in the related Mortgage Note for calculation of the Mortgage
Rate thereof.
Insurance
Policy:
Any
primary mortgage insurance policy, any standard hazard insurance policy, flood
insurance policy, earthquake insurance policy or title insurance policy relating
to the Mortgage Loans or the Mortgaged Properties, to be in effect as of the
Closing Date or thereafter during the term of this Agreement.
Insurance
Proceeds:
With
respect to each Mortgage Loan (other than by the [Class AF-5B] Insurer under
the
[Class AF-5B] Policy), proceeds of insurance policies insuring the Mortgage
Loan
or the related Mortgaged Property, if applicable, including the proceeds of
any
hazard or flood insurance policy reduced by expenses incurred by the Servicer
in
connection with procuring such proceeds, applied to the restoration and repair
of the related mortgaged property or to be paid to the borrower pursuant to
the
mortgage note or state law.
Insured
Payments:
With
respect to any Payment Date, the aggregate amount actually paid by the [Class
AF-5B] Insurer to the Trust Administrator in respect of (i) Insured Amounts
for
a Payment Date and (ii) Preference Amounts for any given Business
Day.
Interest
Carry Forward Amount:
With
respect to each Class of interest-bearing Notes and each Payment Date, the
excess of (i) the Current Interest for such Class with respect to prior Payment
Dates over (ii) the amount actually distributed to such Class with respect
to
interest on such prior Payment Dates.
Interest
Margin:
For
each Class of Notes and any Payment Date, the applicable percentage set forth
for such class in the following table:
|
Class
|
Interest
Margin
(1)
|
Interest
Margin
(2)
|
|
[AF-1A]
|
____%
|
____%
|
|
[AF-1B]
|
____%
|
____%
|
|
[AF-2]
|
____%
|
____%
|
|
[AF-3]
|
____%
|
____%
|
|
[AF-4]
|
____%
|
____%
|
|
[AF-5A]
|
____%
|
____%
|
|
[AF-5B]
|
____%
|
____%
|
|
[AF-6]
|
____%
|
____%
|
|
[MF-1]
|
____%
|
____%
|
|
[MF-2]
|
____%
|
____%
|
|
[MF-3]
|
____%
|
____%
|
|
[MF-4]
|
____%
|
____%
|
|
[MF-5]
|
____%
|
____%
|
|
[MF-6]
|
____%
|
____%
|
|
[MF-7]
|
____%
|
____%
|
|
[MF-8]
|
____%
|
____%
|
|
[BF]
|
____%
|
____%
|
|
[2-AV-1]
|
____%
|
____%
|
|
[2-AV-2]
|
____%
|
____%
|
|
[3-AV-1]
|
____%
|
____%
|
|
[3-AV-2]
|
____%
|
____%
|
|
[3-AV-3]
|
____%
|
____%
|
|
[3-AV-4]
|
____%
|
____%
|
|
[MV-1]
|
____%
|
____%
|
|
[MV-2]
|
____%
|
____%
|
|
[MV-3]
|
____%
|
____%
|
|
[MV-4]
|
____%
|
____%
|
|
[MV-5]
|
____%
|
____%
|
|
[MV-6]
|
____%
|
____%
|
|
[MV-7]
|
____%
|
____%
|
|
[MV-8]
|
____%
|
____%
|
|
[BV]
|
____%
|
____%
|
(1)
For
any Payment Date occurring prior to the Stepup Date.
(2)
For
any Payment Date occurring on or after the Stepup Date.
Interest
Rate Cap Account:
A
separate account established and maintained by the Trust Administrator for
the
benefit of the Noteholders pursuant to Section 5.06.
Interest
Rate Cap Agreement:
The
[Class AF-1A] Cap Agreement, the [Group 2-AV] Cap Agreement, the [Group 3-AV]
Cap Agreement or the Subordinate Cap Agreement, as applicable.
Interest
Rate Cap Agreement Payment Date:
A
[Class AF-1A] Cap Agreement Payment Date, [Group 2-AV] Cap Agreement Payment
Date, [Group 3-AV] Cap Agreement Payment Date or Subordinate Cap Agreement
Payment Date, as the case may be.
Interest
Rate Cap Receipt:
With
respect to any Interest Rate Cap Agreement Payment Date, any amount received
by
the Trust Administrator from the Cap Counterparty under any Interest Rate Cap
Agreement.
Interest
Remittance Amount:
With
respect to each Pool and any Payment Date, (a) the sum of, without duplication,
(1) all interest collected (other than the interest portion of Payaheads) or
advanced in respect of Scheduled Payments on the Mortgage Loans in such Pool
during the related Collection Period by the Servicer or the Indenture Trustee
(solely in its capacity as successor Servicer), minus, (x) to the extent
provided under Section 4.08(ii) and (iii) herein, previously unreimbursed
Advances due to the Servicer or the Indenture Trustee (solely in its capacity
as
successor Servicer), to the extent allocable to interest and the allocable
portion of previously unreimbursed Servicing Advances with respect to the
Mortgage Loans in such Pool during the related Prepayment Period, (y) the
related Servicing Fee with respect to such Mortgage Loans in such Pool and
(z)
all Prepayment Premiums received with respect to such Mortgage Loans during
the
related Prepayment Period, (2) any Compensating Interest Payments or payments
in
respect of Prepayment Interest Shortfalls paid by the Servicer pursuant to
Section 4.23 with respect to the related Prepayment Period with respect to
the
Mortgage Loans in such Pool, (3) the portion of any Purchase Price or
Substitution Amount paid with respect to the Mortgage Loans in such Pool during
the related Prepayment Period allocable to interest, and (4) all Net
Liquidation Proceeds, Insurance Proceeds and any other recoveries collected
with
respect to the Mortgage Loans in such Pool during the related Prepayment Period,
to the extent allocable to interest, as
reduced by
(b) such
Pool’s pro
rata
share of
any costs, expenses, fees or liabilities due to the Servicer, the Indenture
Trustee, the Owner Trustee or the Trust Administrator to the extent provided
in
this Agreement, the Trust Agreement and the Indenture.
Intervening
Assignments:
The
original intervening assignments of the Mortgage, notices of transfer or
equivalent instrument.
Issuer:
The
Delaware statutory trust known as the “______ Mortgage Investment Trust
200_-__.”
Issuer
Order
or
Issuer
Request:
A
written order or request signed in the name of the Issuer by any one of its
Authorized Officers and delivered to the Indenture Trustee and the Trust
Administrator.
Item
1119 Party:
The
Depositor, the Seller, the Servicer, the Indenture Trustee, the Trust
Administrator, the Owner Trustee, any originator identified in the Prospectus
Supplement, the Cap Counterparty and any other material transaction party,
as
identified in Exhibit H hereto, as updated pursuant to Section
10.04.
Last
Scheduled Payment Date:
With
respect to the [Class AF-5B] Notes, the Payment Date occurring in __________
20__.
LIBOR:
(a)
With respect to the first Accrual Period, the per annum rate of ____%. With
respect to each subsequent Accrual Period, a per annum rate determined on the
LIBOR Determination Date in the following manner by the Trust Administrator on
the basis of the “Interest Settlement Rate” set by the British Bankers’
Association (the “BBA”) for one-month United States dollar deposits, as such
rates appear on the Telerate Page 3750, as of 11:00 a.m. (London time) on such
LIBOR Determination Date.
(b) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Trust Administrator will
determine such rate on the basis of the offered rates of the Reference Banks
for
one-month United States dollar deposits, as such rates appear on the Reuters
Screen LIBO Page or the Bloomberg Screen LIBO Page, in either case as of 11:00
a.m. (London time) on such LIBOR Determination Date.
(c) If
LIBOR
is determined under clause (b) above, on each LIBOR Determination Date, LIBOR
for the related Accrual Period for the Notes will be established by the Trust
Administrator as follows:
(1) If
on
such LIBOR Determination Date two or more Reference Banks provide such offered
quotations, LIBOR for the related Accrual Period for the Notes shall be the
arithmetic mean of such offered quotations (rounded upwards if necessary to
the
nearest whole multiple of [0.03125]%).
(2) If
on
such LIBOR Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(x) LIBOR as determined on the previous LIBOR Determination Date and (y) the
Reserve Interest Rate.
(d) The
establishment of LIBOR by the Trust Administrator and the Trust Administrator’s
subsequent calculation of the Note Interest Rate applicable to each Class of
Notes for the relevant Accrual Period, in the absence of manifest error, will
be
final and binding.
LIBOR
Business Day:
Any day
on which banks in London, England and The City of New York are open for
conducting transactions in foreign currency and exchange.
LIBOR
Determination Date:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for any Notes.
Limited
Exchange Act Reporting Obligations:
The
obligations of the Servicer under Section 4.14 and Section 4.26 with respect
to
notice and information to be provided to the Depositor and Article X (except
Section 10.07(a)(1) and (2)).
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the Servicer has determined that all amounts
that it expects to recover from or on account of such Mortgage Loan have been
recovered (exclusive of any possibility of a deficiency judgment).
Liquidation
Expenses:
Expenses that are incurred by the Servicer in connection with the liquidation
of
any defaulted Mortgage Loan and are not recoverable under the applicable primary
mortgage insurance policy, if any, including, without limitation, foreclosure
and rehabilitation expenses, legal expenses and unreimbursed amounts, if any,
expended pursuant to Section 4.05(e), 4.09(f) or 4.09(j).
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale, payment in full, discounted payoff or otherwise, or the sale
of the related REO Property, if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan
Number and Borrower Identification Mortgage Loan Schedule:
With
respect to any Subsequent Transfer Date, the Loan Number and Borrower
Identification Mortgage Loan Schedule delivered in connection with such
Subsequent Transfer Date pursuant to Section 2.01(f). Each Loan Number and
Borrower Identification Mortgage Loan Schedule shall contain the information
specified in the definition of “Mortgage Loan Schedule” with respect to the
Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date, and each
Loan Number and Borrower Identification Mortgage Loan Schedule shall be deemed
to be included in the Mortgage Loan Schedule.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the ratio of the principal balance of such
Mortgage Loan at origination, or such other date as is specified, to the
Original Value of the related Mortgaged Property.
Majority
Noteholders:
Until
such time as the sum of the Class Principal Amounts of all Classes of Notes
has
been reduced to zero, the holder or holders of in excess of [50]% of the
aggregate Class Principal Amount of all Classes of Notes (accordingly, the
holder of the Ownership Certificate shall be excluded from any rights or actions
of the Majority Noteholders during such period); and thereafter, the holder
of
the Ownership Certificate.
Material
Defect:
With
respect to any Mortgage Loan, as defined in Section 2.02(c) hereof.
Maturity
Date:
With
respect to any Class of Notes, the Payment Date in ____ 20__.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the Mortgage Note.
Moody’s:
Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage:
A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note.
Mortgage
File:
The
mortgage documents listed in Section 2.01(g) pertaining to a particular Mortgage
Loan required to be delivered to the Indenture Trustee pursuant to this
Agreement.
Mortgage
Loan:
A
mortgage loan that is conveyed to the Issuer pursuant to this Agreement on
the
Closing Date (an “Initial Mortgage Loan”) or a mortgage loan that is conveyed to
the Issuer pursuant to a Subsequent Transfer Agreement on a Subsequent Transfer
Date (a “Subsequent Mortgage Loan”), which mortgage loan includes, without
limitation, the mortgage loan documents, the Scheduled Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
any related REO Property, REO Disposition Proceeds, and all other rights,
benefits, proceeds and obligations arising from or in connection with such
mortgage loan. The Initial Mortgage Loans subject to this Agreement are
identified on the Mortgage Loan Schedule annexed hereto as Schedule A and have
an aggregate Stated Principal Balance as of the Cut-off Date of
$_________________. Any Subsequent Mortgage Loan conveyed pursuant to a
Subsequent Transfer Agreement shall be added to the Mortgage Loan Schedule
as of
the Subsequent Transfer Date.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the Mortgage Rate minus the Servicing Fee
Rate.
Mortgage
Loan Schedule:
The
schedule attached hereto as Schedule A, which shall identify each Mortgage
Loan,
as such schedule may be amended from time to time to reflect the addition of
Mortgage Loans to, or the deletion of Mortgage Loans from, the Trust Estate.
Such schedule shall set forth, among other things, the following information
with respect to each Mortgage Loan: (i) the Mortgage Loan identifying number;
(ii) the Mortgagor’s name; (iii) the street address of the Mortgaged Property
including the city, state and zip code; (iv) the original principal amount
of
the Mortgage Loan; (v) the Mortgage Rate at origination; (vi) the Index; (vii)
the first Mortgage Rate adjustment date; (viii) the monthly payment of principal
and interest at origination; (ix) the Servicing Fee Rate; and (x) whether
such Mortgage Loan is subject to a Prepayment Premium for voluntary prepayments
by the Mortgagor, the term during which such Prepayment Premiums are imposed
and
the method of calculation of the Prepayment Premium. The Servicer shall be
responsible for providing the Indenture Trustee and the Servicer with all
amendments to the Mortgage Loan Schedule.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage
under a Mortgage Loan.
Mortgaged
Property:
The
underlying real property securing a Mortgage Loan.
Mortgage
Rate:
As to
any Mortgage Loan, the per annum rate at which interest accrues on such Mortgage
Loan, as determined under the related Mortgage Note as reduced by the
applications of the Civil Relief Act.
Mortgagor:
The
obligor on a Mortgage Note.
NAS
Factor:
For any
Payment Date set forth below, the percentage set forth in the following
table:
|
Payment
Date
|
Percentage
|
|
_____
200_ - _______ 200_
|
__%
|
|
_____
200_ - _______ 200_
|
__%
|
|
_____
200_ - _______ 200_
|
__%
|
|
_____
200_ - _______ 200_
|
__%
|
|
_____
200_ and thereafter
|
__%
|
NAS
Principal Distribution Amount:
For any
Payment Date, an amount equal to the product of (i) the [Class AF-6] Portion
for
such Payment Date, (ii) any amounts distributed to the [Group AF] Notes pursuant
to Section 5.02 for such Payment Date and (iii) the NAS Factor for such Payment
Date.
Net
Funds Cap:
With
respect to any Payment Date, an annual rate equal to:
(i)
in
the case of the [Group AF] Notes, the weighted average of the Net Mortgage
Rates
of the Mortgage Loans in [Pool 1] as of the first day of the related Collection
Period, adjusted to reflect the accrual of interest on an actual/360
basis;
(ii)
in
the case of the [Group 2-AV] Notes, the weighted average of the Net Mortgage
Rates of the Mortgage Loans in [Pool 2] as of the first day of the related
Collection Period, adjusted to reflect the accrual of interest on an actual/360
basis;
(iii)
in
the case of the [Group 3-AV] Notes, the weighted average of the Net Mortgage
Rates of the Mortgage Loans in [Pool 3] as of the first day of the related
Collection Period, adjusted to reflect the accrual of interest on an actual/360
basis;
(iv)
in
the case of each class of Fixed Rate Subordinate Notes, the weighted average
of
the Net Mortgage Rates of the Mortgage Loans in [Pool 1] as of the first day
of
the related Collection Period, weighted on the basis of the excess of the Pool
Balance for [Pool 1] as of the first day of the related Collection Period over
the aggregate of the Class Principal Amounts of the [Group AF] Notes immediately
prior to that Payment Date, and adjusted to reflect the accrual of interest
on
an actual/360 basis; and
(v)
in
the case of each class of Adjustable Rate Subordinate Notes, the weighted
average of (a) the weighted average of the Net Mortgage Rates of the Mortgage
Loans in [Pool 2] as of the first day of the related Collection Period and
(b)
the weighted average of the Net Mortgage Rates of the Mortgage Loans in [Pool
3]
as of the first day of the related Collection Period, weighted on the basis
of
the excess of (x) in the case of clause (iii)(a), the excess of the Pool Balance
for [Pool 2] as of the first day of the related Collection Period over the
aggregate of the Class Principal Amounts of the [Group 2-AV] Notes immediately
prior to that Payment Date and (y) in the case of clause (iii)(b), the excess
of
the Pool Balance for [Pool 3] as of the first day of the related Collection
Period over the Class Principal Amount of the [Group 3-AV] Notes immediately
prior to that Payment Date, and adjusted to reflect the accrual of interest
on
an actual/360 basis.
Net
Liquidation Proceeds:
With
respect to any Liquidated Mortgage Loan, the related Liquidation Proceeds,
Insurance Proceeds and Condemnation Proceeds received and retained in connection
with the liquidation of such Mortgage Loan net of (i) Liquidation Expenses
and
(ii) any related unreimbursed Advances and Servicing Advances, if
any.
Net
Mortgage Rate:
With
respect to any Mortgage Loan, the Mortgage Rate thereof reduced by the Servicing
Fee Rate.
Net
Rate Carryover:
With
respect to any Class of interest bearing Notes and any Payment Date, the sum
of
(A) the excess of (i) the amount of interest that such Class would otherwise
have accrued for such Payment Date had the Note Interest Rate for such Class
and
the related Accrual Period not been determined based on the applicable Net
Funds
Cap, over (ii) the amount of interest accrued on such Class at the applicable
Net Funds Cap for such Payment Date and (B) the Net Rate Carryover for such
Class for all previous Payment Dates not previously paid pursuant to Section
5.02, together with interest thereon at the then-applicable Note Interest Rate
for such Class, without giving effect to the applicable Net Funds
Cap.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Nonrecoverable
Advance:
Any
Servicing Advance or Advance previously made or proposed to be made in respect
of a Mortgage Loan by the Servicer which, in the reasonable discretion of the
Servicer will not or, in the case of a proposed Servicing Advance or Advance,
would not, ultimately be recoverable by the Servicer from the related Mortgagor,
related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds or otherwise.
Note:
Any
[Class AF-1A], [Class AF-1B], [Class AF-2], [Class AF-3], [Class AF-4], [Class
AF-5A], [Class AF-5B], [Class AF-6], [Class MF-1], [Class MF-2], [Class MF-3],
[Class MF-4], [Class MF-5], [Class MF-6], [Class MF-7], [Class MF-8], [Class
BF], [Class 2-AV-1], [Class 2-AV-2], [Class 3-AV-1], [Class 3-AV-2], [Class
3-AV-3], [Class 3-AV-4], [Class MV-1], [Class MV-2], [Class MV-3], [Class MV-4],
[Class MV-5], [Class MV-6], [Class MV-7], [Class MV-8], [Class BV], [Class
PF],
[Class PV], [Class CF] or [Class CV] Note.
Note
Interest Rate:
With
respect to each Class of Notes on any Payment Date, the least of (1) LIBOR
plus
the Interest Margin for such Class and such Payment Date, (2) the applicable
Net
Funds Cap for such Payment Date and (3) the Fixed Rate Cap.
Note
Principal Amount:
With
respect to any Note, the initial principal amount thereof on the Closing Date,
less the amount of all principal payments previously paid with respect to such
Note.
Note
Register and Note Registrar:
As
defined in the Indenture.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, any Vice Chairman, the
President, any Senior Vice President, any Vice President or any Assistant Vice
President of a Person.
Operative
Agreements:
The
Trust Agreement, the Certificate of Trust of the Issuer, this Agreement, the
Indenture, the Depository Agreement, each Interest Rate Cap Agreement, the
Cap
Agreement Assignment Agreement and each other document contemplated by any
of
the foregoing to which the Depositor, the Seller, the Servicer, the Owner
Trustee, the Trust Administrator, the Indenture Trustee or the Issuer is a
party.
Opinion
of Counsel:
A
written opinion of counsel, reasonably acceptable in form and substance to
the
Seller, the Trust Administrator, the Indenture Trustee and/or the Servicer,
as
applicable, and who may be in house or outside counsel to the Seller, the
Servicer, the Depositor, the Servicer, the Trust Administrator or the Indenture
Trustee but which must be Independent outside counsel with respect to any such
opinion of counsel concerning federal income tax or ERISA matters.
Original
Value:
The
lesser of (a) the Appraised Value of a Mortgaged Property at the time the
related Mortgage Loan was originated and (b) if the Mortgage Loan was made
to
finance the acquisition of the related Mortgaged Property, the purchase price
paid for the Mortgaged Property by the Mortgagor at the time the related
Mortgage Loan was originated.
Overcollateralization
Amount:
With
respect to any Payment Date will be equal to the amount, if any, by which (x)
the Aggregate Collateral Balance for such Payment Date exceeds (y) the aggregate
Class Principal Amount of the Notes, in each case after giving effect to
payments on such Payment Date.
Overcollateralization
Deficiency Amount:
With
respect to any Payment Date, the excess, if any, of the Targeted
Overcollateralization Amount for that Payment Date over the
Overcollateralization Amount for that Payment Date.
Ownership
Certificate:
An
equity certificate representing a 100% undivided beneficial ownership interest
in the Trust, substantially in the form attached as part of Exhibit A to the
Trust Agreement.
Owner
Trustee:
_____________________, a ____________________, and any successor in interest,
not in its individual capacity, but solely as owner trustee under the Trust
Agreement.
Owner
Trustee Fee:
The
annual fee payable to the Owner Trustee by the Trust Administrator pursuant
to
the Fee Letter Agreement specified in Section 7.03 of the Trust Agreement during
the term of this Agreement.
Payahead:
With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the Servicer during any Collection Period in addition to the
Scheduled Payment due on such Due Date, intended by the related Mortgagor to
be
applied on a subsequent Due Date or Due Dates.
Paying
Agent:
As
defined in the Indenture. The initial Paying Agent shall be the Trust
Administrator.
Payment
Date:
The
[25th]
day of
each month or, if such [25th]
day is
not a Business Day, the next succeeding Business Day, commencing in ________
200_.
Percentage
Interest:
The
Percentage Interest evidenced thereby shall equal (i) with respect to the
Ownership Certificate, the Percentage Interest on the face of such certificate;
or (ii) with respect to any Note, the initial Note Principal Amount thereof,
divided by the initial Class Principal Amount of all Notes of the same
Class.
Performance
Certification:
As
defined in Section 10.05.
Person:
Any
individual, corporation, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan:
An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
Plan
Asset Regulations:
The
Department of Labor regulations set forth in 29 C.F.R. 2510.3 101.
Pool:
[Pool
1], [Pool 2] or [Pool 3] as applicable.
[Pool
1]:
The
portion of the Mortgage Pool identified as [Pool 1].
[Pool
1] Pre-Funded Amount:
The
portion of the Pre-Funded Amount allocable for purchase of Subsequent Mortgage
Loans as [Pool 1] Mortgage Loans on the Closing Date, which shall equal
$_________________.
[Pool
1] Senior Notes:
The
[Class AF-1A], [Class AF-1B], [Class AF-2], [Class AF-3], [Class AF-4], [Class
AF-5A], [Class AF-5B] and [Class AF-6] Notes.
[Pool
2]:
The
portion of the Mortgage Pool identified as [Pool 2].
[Pool
2] Pre-Funded Amount:
The
portion of the Pre-Funded Amount allocable for purchase of Subsequent Mortgage
Loans as [Pool 2] Mortgage Loans on the Closing Date, which shall equal
$___________________.
[Pool
2] Senior Notes:
The
[Class 2-AV-1] and [Class 2-AV-2] Notes.
[Pool
2] Sequential Trigger Event:
With
respect to any Payment Date (i) prior to the Payment Date in ______ 200_, if
(x)
the aggregate amount of Realized Losses on the Mortgage Loans in [Pool 2] from
the Cut-off Date for each such Mortgage Loan to (and including) the last day
of
the related Due Period (reduced by the aggregate amount of any Recoveries
related to the Mortgage Loans in [Pool 2] received through the last day of
that
Due Period) exceeds (y) ______% of the sum of the aggregate Cut-off Date
Principal Balance of the Initial Mortgage Loans in [Pool 2] and the [Pool 2]
Pre-Funded Amount or (ii) on or after the Payment Date in ______ 200_, if an
Adjustable Rate Trigger Event is in effect.
[Pool
3]:
The
portion of the Mortgage Pool identified as [Pool 3].
[Pool
3] Pre-Funded Amount:
The
portion of the Pre-Funded Amount allocable for purchase of Subsequent Mortgage
Loans as [Pool 3] Mortgage Loans on the Closing Date, which shall equal
$__________________.
[Pool
3] Senior Notes:
The
[Class 3-AV-1], [Class 3-AV-2], [Class 3-AV-3] and [Class 3-AV-4]
Notes.
Pool
Balance:
With
respect to each Pool and any Payment Date, the aggregate of the Stated Principal
Balances of the Mortgage Loans in such Pool.
Prepayment
Interest Excess Amount:
For any
Servicer Remittance Date and any Principal Prepayment received during the
portion of the related Prepayment Period occurring from and including the first
day through the fifteenth day of the calendar month in which such Servicer
Remittance Date occurs, an amount equal to interest (to the extent received)
due
in connection with such Principal Prepayment.
Preference
Amount:
Any
payment of principal or interest on a [Class AF-5B] Note which has become Due
for Payment and which was made to a Holder by or on behalf of the Trust Fund,
which has been deemed a preferential transfer and was previously recovered
from
the Holder pursuant to the United States Bankruptcy Code in accordance with
a
final, non-appealable order of a court of competent jurisdiction.
Preference
Claim:
As
defined in Section 5.07(h).
Pre-Funded
Amount:
The
amount deposited in the Pre-Funding Account on the Closing Date, which shall
equal $________________.
Pre-Funding
Account:
The
separate Eligible Account created and maintained by the Trust Administrator
pursuant to this Agreement in the name of the Trust Administrator for the
benefit of the Noteholders and designated “_______________________, in trust for
registered holders of
[ ]
200__-[ ].” Funds in the Pre-Funding Account shall be held in
trust for the Noteholders for the uses and purposes set forth in this
Agreement.
Prepayment
Interest Shortfall Amount:
With
respect to any voluntary Principal Prepayment in full or in part by the
Mortgagor on any Mortgage Loan that is received during the period from the
first
day of the Prepayment Period through the last day of the calendar month
preceding the related Payment Date, the amount, if any, by which one month’s
interest at the Mortgage Rate minus the Servicing Fee for such Mortgage Loan
on
the amount of such Principal Prepayment exceeds the amount of interest received
from such Mortgagor in respect of such Principal Prepayment.
Prepayment
Period:
With
respect to any Payment Date, the period beginning from and including the
sixteenth day of the month preceding the month in which such Payment Date occurs
(or, in the case of the initial prepayment period, beginning on the Cut-off
Date) to and including the fifteenth day of the month in which such Payment
Date
occurs.
Prepayment
Premiums:
Any
prepayment fees and penalties to be paid by the Mortgagor on a Mortgage Loan
in
the case of a full or partial voluntary prepayment of such Mortgage Loan during
the related Prepayment Period.
Prime
Rate:
The
prime rate of the United States money center commercial banks as published
in
The Wall Street Journal, Northeast Edition.
Principal
Deficiency Amount:
With
respect to any class of Subordinate Notes and any Payment Date, the lesser
of
(a) the excess, if any, of (1) the Total Principal Deficiency Amount over (2)
the aggregate of the Principal Deficiency Amounts for the classes of Subordinate
Notes, if any, that have a lower priority of payment than the subject class
and
(b) the Class Principal Amount of the subject class of Notes immediately prior
to such Payment Date.
Principal
Distribution Amount:
With
respect to each Payment Date and a Pool, the sum of (i) the Principal Remittance
Amount for such Pool for such Payment Date, (ii) the Extra Principal
Distribution Amount for such Pool for such Payment Date and (iii) with respect
to the Payment Date immediately following the end of the Funding Period, the
amount, if any, remaining in the Pre-Funding Account at the end of the Funding
Period (net of any investment income therefrom) allocable to such
Pool.
Principal
Payment Amount:
With
respect to each Pool for any Payment Date, an amount equal to the Principal
Remittance Amount for such Pool for such date minus
the
Aggregate Overcollateralization Release Amount attributable to such Pool for
such Payment Date.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan, including any payment
or other recovery of principal in connection with the repurchase of a Mortgage
Loan by the Seller, the Servicer or any other Person received in advance of
such
Mortgage Loan’s scheduled Due Date.
Principal
Remittance Amount:
With
respect to any Payment Date and for each Pool, (a) the sum of (i) all
principal collected (other than the principal portion of Payaheads) or advanced
in respect of Scheduled Payments on the Mortgage Loans in such Pool during
the
related Collection Period by the Servicer (less unreimbursed Advances due to
the
Servicer or the Indenture Trustee as successor Servicer, or any other successor
Servicer, with respect to such Pool, and any unreimbursed Servicing Advances,
in
each case, to the extent allocable to principal and to the extent provided
under
Sections 4.08(i) and (ii)), (ii) all Principal Prepayments in full or in part
received during the related Prepayment Period on the Mortgage Loans in such
Pool, (iii) the Stated Principal Balance of each Mortgage Loan in such Pool
that
was purchased from the Trust Estate during the related Prepayment Period, (iv)
the portion of any Substitution Amount paid with respect to any Deleted Mortgage
Loan relating to a Mortgage Loan in such Pool during the related Prepayment
Period allocable to principal, (v) all Net Liquidation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and other Recoveries collected with respect
to such Mortgage Loans in such Pool during the related Prepayment Period, to
the
extent allocable to principal and (vi) all other unscheduled collections and
recoveries in respect of principal during the related Prepayment Period,
as
reduced by
(b) such
Pool’s pro
rata
share
of: other costs, expenses, fees or liabilities reimbursable to the Indenture
Trustee, the Owner Trustee, the Trust Administrator and the Servicer to the
extent provided in this Agreement, the Trust Agreement and the Indenture and
to
the extent not reimbursed from the Interest Remittance Amount, or
otherwise.
Proceeding:
Any
suit in equity, action at law or other judicial or administrative
proceeding.
Property
Charges:
As
defined in Section 4.09(d).
Prospectus:
The
Prospectus Supplement, together with the accompanying prospectus dated
_________, 200_.
Prospectus
Supplement:
The
prospectus supplement dated _____, 200_ relating to the Notes.
Purchase
Price:
With
respect to the purchase of a Mortgage Loan or related REO Property pursuant
to
this Agreement, an amount equal to the sum of (a) 100% of the unpaid principal
balance of such Mortgage Loan, (b) accrued interest thereon at the applicable
Mortgage Rate, from the date as to which interest was last paid to (but not
including) the Due Date in the Collection Period during which such Mortgage
Loan
or REO Property is being so purchased; (c) if applicable, the fair market value
of the REO Property and all other property being purchased; (d) any unreimbursed
Servicing Advances with respect to such Mortgage Loan; and (e) any costs and
damages incurred by the Trust Estate associated with any violation of applicable
federal, state or local anti-predatory or anti-abusive lending laws with respect
to the related Mortgage Loan. The Servicer shall be reimbursed from the Purchase
Price for any Mortgage Loan or related REO Property for any Advances made or
other amounts advanced with respect to such Mortgage Loan that are reimbursable
to the Servicer under this Agreement, together with any accrued and unpaid
Servicing Fee with respect to such Mortgage Loan.
Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Collection Account and insuring a minimum, fixed or floating rate
of return on investments of such funds, which contract or surety bond
shall:
(i) be
an
obligation of an insurance company or other corporation whose long term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide
that the Trust Administrator on behalf of the Indenture Trustee may exercise
all
of the rights under such contract or surety bond without the necessity of taking
any action by any other Person;
(iii) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the Notes,
the Trust Administrator shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Trust Administrator;
(iv) provide
that the Indenture Trustee’s interest therein shall be transferable to any
successor trustee hereunder; and
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account not later than the Business Day prior to any Payment
Date.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the related Mortgaged Properties are located, duly authorized and licensed
in
such states to transact the applicable insurance business and to write the
insurance provided and whose claims paying ability is rated by each Rating
Agency in its highest rating category or whose selection as an insurer will
not
adversely affect the rating of the Notes.
[Qualified
REIT Subsidiary:
A
direct or indirect 100% owned subsidiary of a REIT that satisfies the
requirements of Section 856(i) of the Code.]
Qualifying
Substitute Mortgage Loan:
In the
case of a Mortgage Loan substituted for a Deleted Mortgage Loan pursuant to
the
terms of this Agreement, a Mortgage Loan that, on the date of such substitution,
(i) has an outstanding Stated Principal Balance (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate Stated Principal Balance), after application of all Scheduled Payments
due during or prior to the month of substitution, not in excess of, and not
more
than [5]% less than, the outstanding Stated Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) has a Mortgage Rate not less than, and not more than
[0.50]% higher than, the Mortgage Rate on the Deleted Mortgage Loan, (iii)
if
applicable, has a maximum Mortgage Rate not less than the maximum Mortgage
Rate
on the Deleted Mortgage Loan, (iv) has a minimum Mortgage Rate not less than
the
minimum Mortgage Rate of the Deleted Mortgage Loan, (v) has a gross margin
equal
to or greater than the gross margin of the Deleted Mortgage Loan, (vi) (a)
has a
next adjustment date not later than the next adjustment date on the Deleted
Mortgage Loan, (b) has an initial periodic rate cap not less than the Deleted
Mortgage Loan and (c) has a subsequent periodic rate cap not less than the
Deleted Mortgage Loan, (vii) has the same Due Date as the Deleted Mortgage
Loan,
(viii) has a remaining stated term to maturity not longer than 18 months and
not
more than 18 months shorter than the remaining stated term to maturity of the
related Deleted Mortgage Loan, (ix) is current as of the date of substitution,
(x) has a Loan-to-Value Ratio as of the date of substitution equal to or lower
than the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date,
(xi)
has been underwritten by the Seller in accordance with the same underwriting
criteria and guidelines as the Deleted Mortgage Loan, (xii) has a risk grading
determined by the Seller at least equal to the risk grading assigned on the
Deleted Mortgage Loan, (xiii) is secured by the same property type as the
Deleted Mortgage Loan, (xiv) conforms to each representation and warranty
applicable to the Deleted Mortgage Loan made in the Mortgage Loan Purchase
Agreement, (xv) has the same first lien position as the Deleted Mortgage Loan,
(xvi) is covered by a primary mortgage insurance policy if the Deleted Mortgage
Loan was so covered, (xvii) contains provisions covering the payment of
Prepayment Premium by the Mortgagor for early prepayment of the Mortgage Loan
at
least as favorable to the Trust as the Deleted Mortgage Loan, (xviii) has a
maturity date not later than the maturity date of the latest maturing Mortgage
Loan in the Mortgage Pool as of the Closing Date, (xix) has the same Index
as
the Deleted Mortgage Loan, (xx) if originated on or after November 27, 2003,
is
not a “high cost” loan subject to the New Jersey Home Ownership Security Act of
2003 and (xxi) if originated on or after January 1, 2004 is not a “high-cost”
loan subject to the New Mexico Home Loan Protection Act. In the event that
one
or more mortgage loans are substituted for one or more Deleted Mortgage Loans,
the amounts described in clause (i) hereof shall be determined on the basis
of
aggregate Stated Principal Balances, the Mortgage Rates described in clause
(ii)
hereof shall be determined on the basis of weighted average Mortgage Rates,
the
risk gradings described in clause (xii) hereof shall be satisfied as to each
such mortgage loan, the terms described in clause (viii) hereof shall be
determined on the basis of weighted average remaining term to maturity, the
Loan-to-Value Ratios described in clause (x) hereof shall be satisfied as to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (xiv) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be.
Rating
Agency:
Each of
Xxxxx’x and S&P.
Realized
Loss:
With
respect to each Liquidated Mortgage Loan, an amount equal to (i) the unpaid
principal balance of such Mortgage Loan as of the date of liquidation, minus
(ii) Liquidation Proceeds received, to the extent allocable to principal, net
of
amounts that are reimbursable therefrom to the Servicer with respect to such
Mortgage Loan (other than Advances of principal) including Liquidation Expenses.
In determining whether a Realized Loss is a Realized Loss of principal,
Liquidation Proceeds shall be allocated, first, to payment of Liquidation
Expenses, then to accrued unpaid interest and finally to reduce the principal
balance of the Mortgage Loan.
Record
Date:
With
respect to each Payment Date and each Class of Notes, the Business Day prior
to
the related Payment Date, and with respect to any Class of Definitive Notes,
the
last Business Day of the month immediately preceding the month in which the
Payment Date occurs (or, in the case of the first Payment Date, the Closing
Date).
Recovery:
With
respect to any Liquidated Mortgage Loan, an amount received in respect of
principal on such Mortgage Loan which has previously been allocated as a
Realized Loss to a Class or Classes of Notes net of reimbursable
expenses.
Redemption
Date:
The
first Payment Date on which _____________________ is permitted to exercise
its
right to purchase the assets of the Trust pursuant to Section 8.02
hereof.
Reference
Banks:
Leading
banks selected by the Trust Administrator and engaged in transactions in
Eurodollar deposits in the international Eurocurrency market (1) with an
established place of business in London, (2) whose quotations appear on the
Reuters Screen LIBO Page or the Bloomberg Screen LIBO Page on the Determination
Date in question, (3) which have been designated as such by the Trust
Administrator and (4) not controlling, controlled by, or under common control
with, the Depositor, the Indenture Trustee, the Trust Administrator, the
Servicer, the Seller or any successor servicer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REIT:
A real
estate investment trust within the meaning of section 856 of the
Code.
Relevant
UCC:
The
Uniform Commercial Code as in effect in the applicable
jurisdiction.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
4.09(j).
REO
Property:
A
Mortgaged Property acquired by the Servicer through foreclosure or deed in
lieu
of foreclosure in connection with a defaulted Mortgage Loan.
Reportable
Event:
Any
event required to be reported on Form 8-K, and in any event, the
following:
(a) entry
into a definitive agreement related to the Trust Fund, the Notes or the Mortgage
Loans, or an amendment to an Operative Agreement, even if the Depositor is
not a
party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination
of an Operative Agreement (other than by expiration of the agreement on its
stated termination date or as a result of all parties completing their
obligations under such agreement), even if the Depositor is not a party to
such
agreement (e.g., a servicing agreement with a servicer contemplated by Item
1108(a)(3) of Regulation AB);
(c) with
respect to the Servicer only, if the Servicer becomes aware of any bankruptcy
or
receivership with respect to the Seller, the Depositor, the Servicer, the Trust
Administrator, the Indenture Trustee, the Cap Counterparty, any enhancement
or
support provider contemplated by Items 1114(b) or 1115 of Regulation AB, or
any
other material party contemplated by Item 1101(d)(1) of Regulation
AB;
(d) with
respect to the Trust Administrator, the Servicer and the Depositor only, the
occurrence of an early amortization, performance trigger or other event,
including an event of default under this Agreement;
(e)
any
amendment to this Agreement;
(f) the
resignation, removal, replacement, substitution of the Servicer, the Trust
Administrator or the Indenture Trustee;
(g) with
respect to the Servicer only, if the Servicer becomes aware that (i) any
material enhancement or support specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more classes of the Notes has terminated other than by
expiration of the contract on its stated termination date or as a result of
all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or Item
1115 of Regulation AB has been added with respect to one or more classes of
the
Notes; or (iii) any existing material enhancement or support specified in Item
1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB with
respect to one or more classes of the Notes has been materially amended or
modified; and
(h) with
respect to the Trust Administrator, the Servicer and the Depositor only, a
required distribution to Holders of the Notes is not made as of the required
Payment Date under this Agreement.
Reporting
Subcontractor:
With
respect to the Servicer, the [Indenture Trustee], or the Trust Administrator,
any Subcontractor determined by such Person pursuant to Section 10.08(a) to
be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to
the
Subcontractor of such Person and shall not refer to Subcontractors
generally.
Reserve
Interest Rate:
The
rate per annum that the Trust Administrator determines to be either (1) the
arithmetic mean (rounded upwards if necessary to the nearest whole multiple
of
[0.03125]%) of the one-month United States dollar lending rates which New York
City banks selected by the Trust Administrator are quoting on the relevant
LIBOR
Determination Date to the principal London offices of leading banks in the
London interbank market or, (2) in the event that the Trust Administrator can
determine no such arithmetic mean, the lowest one-month United States dollar
lending rate which New York City banks selected by the Trust Administrator
are
quoting on such LIBOR Determination Date to leading European banks.
Responsible
Officer:
Any
vice president, any assistant vice president, any assistant secretary, any
associate, any assistant treasurer, or any other officer of the Indenture
Trustee or the Trust Administrator, as applicable, customarily performing
functions similar to those performed by any of the above-designated officers
and, in each case, having direct responsibility for the administration of the
Operative Agreements and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.
Reuters
Screen LIBO Page:
The
display designated as page “LIBOR01” on the Reuters Monitor Money Rates Service
(or such other page as may replace the LIBOR01 page on that service for the
purpose of displaying London interbank offered rates of major
banks).
Rolling
[Sixty-Day] Delinquency Rate:
With
respect to any Payment Date on or after the Stepdown Date and any Pool or Pools,
the average of the [Sixty-Day] Delinquency Rates for such Pool or Pools and
such
Payment Date and the two immediately preceding Payment Dates.
Rolling
Three Month Delinquency Rate:
With
respect to any Payment Date, the average of the Delinquency Rates for each
of
the three (or one and two, in the case of the first and second Payment Dates,
respectively) immediately preceding calendar months.
S&P:
Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies,
Inc., or any successor in interest.
Xxxxxxxx-Xxxxx
Certification:
As
defined in Section 10.05.
Scheduled
Payment:
Each
scheduled payment of principal and interest (or of interest only, if applicable)
to be paid by the Mortgagor on a Mortgage Loan, as reduced (except where
otherwise specified herein) by the amount of any related Debt Service Reduction
or pursuant to the Civil Relief Act (excluding all amounts of principal and
interest that were due on or before the Cut-off Date whenever received) and,
in
the case of an REO Property, an amount equivalent to the Scheduled Payment
that
would have been due on the related Mortgage Loan if such Mortgage Loan had
remained in existence.
Securities
Act:
The
Securities Act of 1933, as amended
Securities
Intermediary:
The
Person acting as Securities Intermediary under this Agreement (which is
____________________), its successor in interest, and any successor Securities
Intermediary appointed pursuant to Section 5.04.
Security
Entitlement:
The
meaning specified in Section 8-102(a)(17) of the New York UCC.
Seller:
____________________________.
[Seller
Shortfall Interest Requirement:
With
respect to the Business Day immediately preceding the Payment Date in each
of
________ 200_, ________ 200_ and ________ 200_, is the sum of:
(a) the
product of: (1) the excess of the aggregate Stated Principal Balances for such
Payment Date of the Mortgage Loans (including the Subsequent Mortgage Loans,
if
any) owned by the Trust Fund at the beginning of the related Due Period, over
the aggregate Stated Principal Balance for such Payment Date have a scheduled
payment of interest due in the related Due Period, and (2) a fraction, the
numerator of which is the weighted average Net Mortgage Rate of such Mortgage
Loans (including such Subsequent Mortgage Loans, if any) (weighted on the basis
of the Stated Principal Balances thereof for such Payment Date) and the
denominator of which is 12; and
(b) the
lesser of:
(i)
the
product of: (1) the amount on deposit in the Pre-Funding Account at the
beginning of the related Due Period, and (2) a fraction, the numerator of which
is the weighted average Net Mortgage Rate of the Mortgage Loans (including
Subsequent Mortgage Loans, if any) owned by the Trust Fund at the beginning
of
the related Due Period (weighted on the basis of the Stated Principal Balances
thereof for such Payment Date) and the denominator of which is 12;
and
(ii) the
excess of (x) the sum of the amount of Current Interest and Interest Carry
Forward Amount due and payable on the interest-bearing Notes and the [Class
AF-5B] Premium, in each case for such Payment Date, over (y) Interest Remittance
Amount otherwise available to pay Current Interest and the Interest Carry
Forward Amount on the interest-bearing Notes for such Payment Date (after giving
effect to the addition of any amounts in clause (a) of this definition of Seller
Shortfall Interest Requirement to Interest Remittance Amount for such Payment
Date).
Senior
Enhancement Percentage:
For any
Payment Date, the fraction, expressed as a percentage, the numerator of which
is
the sum of the aggregate Class Principal Amounts of the Subordinate Notes and
the Overcollateralization Amount (which, for purposes of this definition only,
shall not be less than zero) in each case after giving effect to payments on
such Payment Date and the denominator of which is the Aggregate Collateral
Balance for such Payment Date.
Senior
Note:
Any
[Class AF-1A], [Class AF-1B], [Class AF-2], [Class AF-3], [Class AF-4], [Class
AF-5A], [Class AF-5B], [Class AF-6], [Class 2-AV-1], [Class 2-AV-2], [Class
3-AV-1], [Class 3-AV-2], [Class 3-AV-3] or [Class 3-AV-4] Note.
Servicer:
_________________________, or its successor in interest or assigns or any
successor to the Servicer under this Agreement as herein provided.
Servicer
Event of Default:
Any one
of the conditions or circumstances enumerated in Section 4.13 with respect
to
the Servicer.
Servicer
Remittance Date:
The
Business Day prior to each Payment Date, commencing in _________
200_.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Advances (including reasonable attorneys’ fees and disbursements) incurred
in the performance by the Servicer of its servicing obligations, including,
but
not limited to, the cost of (a) the preservation, inspection, restoration and
protection of the Mortgaged Property, (b) any enforcement or administrative
or
judicial proceedings, including foreclosures, (c) the management and liquidation
of the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage, (d) taxes, assessments, water rates, sewer rents and other
charges which are or may become a lien upon the Mortgaged Property and fire
and
hazard insurance coverage and (e) any losses sustained by the Servicer with
respect to the liquidation of the Mortgaged Property. Notwithstanding anything
to the contrary herein, in the event the Servicer determines in its reasonable
judgment that a Servicing Advance is a Nonrecoverable Advance, the Servicer
shall be under no obligation to make such Servicing Advance.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB.
Servicing
Fee:
As to
any Payment Date and each Mortgage Loan, an amount equal to the product of
(a)
one-twelfth of the Servicing Fee Rate and (b) the Stated Principal Balance
of
such Mortgage Loan as of the first day of the related Collection
Period.
Servicing
Fee Rate:
With
respect to each Mortgage Loan, ___% per annum.
Servicing
File:
The
items pertaining to a particular Mortgage Loan including, but not limited to,
the computer files, data disks, books, records, data tapes, notes, and all
additional documents generated as a result of or utilized in originating and/or
servicing each Mortgage Loan, which are held in trust for the Indenture Trustee
by the Servicer.
Servicing
Standard:
The
servicing and administration of the Mortgage Loans for which the Servicer is
responsible hereunder (a) in the same manner in which, and with the same care,
skill, prudence and diligence with which, the Servicer generally services and
administers similar mortgage loans with similar mortgagors (i) for other third
parties, giving due consideration to customary and usual standards of practice
of prudent institutional residential mortgage lenders servicing their own loans
or (ii) held in the Servicer’s own portfolio, (b) with a view to the
maximization of the recovery on such Mortgage Loans on a net present value
basis
and the best interests of the Trust or any Person to which the Mortgage Loans
may be transferred by the Trust, (c) without regard to (i) any relationship
that
the Servicer or any affiliate thereof may have with the related Mortgagor or
any
other party to the transactions, (ii) the right of the Servicer to receive
compensation or other fees for its services rendered pursuant to this Agreement,
(iii) the obligation of the Servicer to make Servicing Advances, (iv) the
ownership, servicing or management by the Servicer or any affiliate thereof
for
others of any other mortgage loans or mortgaged properties, and (v) any debt
the
Servicer or any affiliate of the Servicer has extended to any mortgagor or
any
affiliate of such mortgagor and (d) in accordance with the applicable state,
local and federal laws, rules and regulations.
Stated
Principal Balance:
With
respect to any Payment Date, either (a) in the case of any Mortgage Loan, the
principal balance of such Mortgage Loan at the close of business on the Cut-off
Date after giving effect to principal payments due on or before the Cut-off
Date, whether or not received, less an amount equal to principal payments due
after the Cut-off Date and on or before the Due Date in the related Collection
Period, whether or not received from the Mortgagor or advanced by the Servicer,
and all amounts allocable to unscheduled principal payments (including Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds and condemnation proceeds,
in each case to the extent identified and applied prior to or during the related
Prepayment Period), provided that the Stated Principal Balance of any Liquidated
Mortgage Loan shall be zero and (b) in the case of any REO Property, the Stated
Principal Balance of the related Mortgage Loan on the Due Date immediately
preceding the date of acquisition of such REO Property by or on behalf of the
Indenture Trustee (reduced by any amount applied as a reduction of principal
on
the related Mortgage Loan).
Stepdown
Date:
The
later to occur of (1) the Payment Date in ________ 200_ and (2) the first
Payment Date on which on which the Senior Enhancement Percentage (calculated
for
this purpose after giving effect to payments or other recoveries in respect
of
the Mortgage Loans during the related Collection Period, but before giving
effect to payments on any Notes on such Payment Date) is greater than or equal
to _____%.
Stepdown
Target Subordination Percentage:
For any
Class of Subordinate Notes, the respective percentage indicated in the following
table:
|
Stepdown
Target Subordination Percentage
|
|
|
[MF-1]
|
____%
|
|
[MF-2]
|
____%
|
|
[MF-3]
|
____%
|
|
[MF-4]
|
____%
|
|
[MF-5]
|
____%
|
|
[MF-6]
|
____%
|
|
[MF-7]
|
____%
|
|
[MF-8]
|
____%
|
|
[BF]
|
____%
|
|
[MV-1]
|
____%
|
|
[MV-2]
|
____%
|
|
[MV-3]
|
____%
|
|
[MV-4]
|
____%
|
|
[MV-5]
|
____%
|
|
[MV-6]
|
____%
|
|
[MV-7]
|
____%
|
|
[MV-8]
|
____%
|
|
[BV]
|
____%
|
Stepup
Date:
The
first Payment Date after the Payment Date on which the Aggregate Collateral
Balance is less than or equal to _____% of the sum of the Aggregate Collateral
Balance as of the Cut-off Date.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
the Mortgage Loans under the direction or authority of the Servicer, the Trust
Administrator or the Indenture Trustee, as the case may be.
Subordinate
Cap Agreement:
The
interest rate cap agreement transaction evidenced by the related Confirmation
(as assigned to the Trust pursuant to the Cap Agreement Assignment Agreement),
with respect to the Subordinate Notes.
Subordinate
Cap Agreement Payment Date:
With
respect to the Subordinate Cap Agreement, the Business Day immediately preceding
the related Payment Date, beginning with the Payment Date in _________ 200_
and
ending with the Payment Date in __________ 200_.
Subordinate
Note:
Any
[Class MF-1], [Class MF-2], [Class MF-3], [Class MF-4], [Class MF-5], [Class
MF-6], [Class MF-7], [Class MF-8], [Class BF], [Class MV-1], [Class MV-2],
[Class MV-3], [Class MV-4], [Class MV-5], [Class MV-6], [Class MV-7], [Class
MV-8] or [Class BV] Note.
Subordinate
Priority:
As
defined in clause 6.02(d)(i).
Subsequent
Cut-off Date:
As
defined in the definition of Cut-off Date.
Subsequent
Deposit:
With
respect to any Subsequent Transfer Date, an amount equal to the aggregate of
all
amounts in respect of (i) principal of the related Subsequent Mortgage Loans
due
after the related Subsequent Cut-off Date and received by the Servicer on or
before such Subsequent Transfer Date and not applied in computing the Cut-off
Date Principal Balance thereof and (ii) interest on the such Subsequent Mortgage
Loans due after such Subsequent Cut-off Date and received by the Servicer on
or
before the Subsequent Transfer Date.
Subsequent
Mortgage Loan:
Any
Mortgage Loan conveyed to the Trustee on a Subsequent Transfer Date, and listed
on the related Loan Number and Borrower Identification Mortgage Loan Schedule
delivered pursuant to Section 2.01(f). When used with respect to a single
Subsequent Transfer Date, “Subsequent Mortgage Loan” shall mean a Subsequent
Mortgage Loan conveyed to the Trust Administrator on such Subsequent Transfer
Date.
Subsequent
Transfer Agreement:
A
Subsequent Transfer Agreement substantially in the form of Exhibit J hereto,
executed and delivered by the Issuer, the Depositor, the Servicer and the Trust
Administrator as provided in Section 2.01(d).
[Subsequent
Transfer Date:
For any
Subsequent Transfer Agreement, the “Subsequent Transfer Date” identified in such
Subsequent Transfer Agreement; provided, however, the Subsequent Transfer Date
for any Subsequent Transfer Agreement must be a Business Day and may not be
a
date earlier than the date on which the Subsequent Transfer Agreement is
executed and delivered by the parties thereto pursuant to Section
2.01(d).]
[Subsequent
Transfer Date Purchase Amount:
With
respect to any Subsequent Transfer Date, the “Subsequent Transfer Date Purchase
Amount” identified in the related Subsequent Transfer Agreement which shall be
an estimate of the aggregate Stated Principal Balances of the Subsequent
Mortgage Loans identified in such Subsequent Transfer Agreement.]
[Subsequent
Transfer Date Transfer Amount:
With
respect to any Subsequent Transfer Date, an amount equal to the lesser of (i)
the aggregate Stated Principal Balances as of the related Subsequent Cut-off
Dates of the Subsequent Mortgage Loans conveyed on such Subsequent Transfer
Date, as listed on the related Loan Number and Borrower Identification Mortgage
Loan Schedule delivered pursuant to Section 2.01(f) and (ii) the amount on
deposit in the Pre-Funding Account.]
Substitution
Amount:
The
amount, if any, by which the Stated Principal Balance of a Deleted Mortgage
Loan
exceeds the Stated Principal Balance of the related Qualifying Substitute
Mortgage Loan, or aggregate Stated Principal Balance, if applicable,
plus
unpaid
interest thereon, any related unpaid Advances or Servicing Advances (including
any interest on such unpaid Advances or Servicing Advances), unpaid Servicing
Fees and unpaid Servicing Fees and the amount of any costs and damages incurred
by the Trust Fund associated with a violation of any applicable federal, state
or local predatory or abusive lending law in connection with the origination
of
such Deleted Mortgage Loan.
Target
Amount:
With
respect to any Payment Date, an amount equal to the Aggregate Collateral Balance
as of such Payment Date minus
the
Targeted Overcollateralization Amount for such Payment Date.
Telerate
Page 3750:
The
display currently so designated as “Page 3750” on the Moneyline Telerate Service
(or such other page selected by the Servicer as may replace Page 3750 on that
service for the purpose of displaying daily comparable rates on
prices).
Termination
Price:
The
sum, as calculated by the Servicer, of (a) 100% of the aggregate outstanding
principal balance of the Mortgage Loans, plus accrued interest thereon at the
applicable Mortgage Rate, (b) any costs and damages incurred by the Trust
associated with a violation of any applicable federal, state or local predatory
or abusive lending law, (c) the fair market value of the REO Property and all
other property being purchased, (d) any unreimbursed Servicing Advances, (e)
any
Basis Risk Shortfall and Unpaid Basis Risk Shortfall amounts and (f) all other
amounts to be paid or reimbursed to the Servicer, the Trust Administrator,
the
Indenture Trustee and the Owner Trustee.
Title
Insurance Policy:
A title
insurance policy maintained with respect to a Mortgage Loan.
Total
Remittance Amount:
With
respect to any Payment Date, the sum of (i) the Interest Remittance Amount
for
all Pools for such Payment Date and (ii) Principal Remittance Amount for all
Pools for such Payment Date.
Total
Principal Deficiency Amount:
With
respect to any Payment Date, the excess, if any, of the aggregate Class
Principal Amount of the Notes after giving effect to payments on such Payment
Date over the Aggregate Collateral Balance as of the last day of the related
Collection Period.
Trust
or Trust Fund:
The
Issuer.
Trust
Account Property:
The
Trust Account, all amounts and investments held from time to time in the Trust
Account (whether in the form of deposit accounts, physical property, book-entry
securities, uncertificated securities, securities entitlements, investment
property or otherwise) and all proceeds of the foregoing.
Trust
Account:
The
Collection Account.
Trust
Agreement:
The
trust agreement dated _______, 200_, between the Depositor and the Owner
Trustee, as amended and restated on _______, 200_, among the Depositor, the
Trust Administrator and the Owner Trustee, as such may be amended or
supplemented from time to time.
Trust
Estate:
The
assets of the Issuer and pledged by the Issuer to the Indenture Trustee under
the Indenture, which assets consist of all accounts, accounts receivable,
contract rights, general intangibles, chattel paper, instruments, documents,
money, deposit accounts, certificates of deposit, goods, notes, drafts, letters
of credit, advices of credit, investment property, uncertificated securities
and
rights to payment of any and every kind consisting of, arising from or relating
to any of the following: (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, and principal due and payable after the Cut-off Date, but not
including interest and principal due and payable on any Mortgage Loans on or
before the Cut-off Date, together with the Mortgage Files relating to such
Mortgage Loans; (b) any Insurance Proceeds, REO Property, Liquidation Proceeds,
REO Disposition Proceeds and other recoveries (in each case, subject to clause
(a) above), (c) the Collection Account, any Escrow Account, the Interest Rate
Cap Account and all amounts deposited therein pursuant to the applicable
provisions of this Agreement, (d) any Insurance Policies, (e) the rights of
the
Depositor under the Mortgage Loan Purchase Agreement, (f) the rights of the
Trust under each Interest Rate Cap Agreement and (g) all income, revenues,
issues, products, revisions, substitutions, replacements, profits, rents and
all
cash and non-cash proceeds of the foregoing.
UCC:
The
Uniform Commercial Code as enacted in the relevant jurisdiction.
Unpaid
Basis Risk Shortfall:
With
respect to any Payment Date and any Class of Notes, the aggregate of all Basis
Risk Shortfalls with respect to such Class remaining unpaid from all previous
Payment Dates, plus
interest
accrued thereon at the applicable Note Interest Rate (calculated without giving
effect to the applicable Net Funds Cap).
Unpaid
Realized Loss Amount:
For the
[Class 2-AV-2] Notes and any Class of Subordinate Certificates and any Payment
Date, (x) the portion of the aggregate Applied Realized Loss Amount previously
allocated to that Class remaining unpaid from prior Payment Dates minus
(y) any
increase in the Note Principal Amount of that Class due to the allocation of
Recoveries to the Note Principal Amount of that Class [P]ursuant to Section
5.02.
Voting
Interests:
The
portion of the voting rights of all the Notes that is allocated to any Note
for
purposes of the voting provisions of this Agreement. At all times during the
term of this Agreement, [99]% of all voting rights will be allocated among
the
holders of the Notes as provided below. The portion of such voting rights
allocated to any Class of Notes will be based on the fraction, expressed as
a
percentage, the numerator of which is the Class Principal Amount of such Class
as of the date of determination and the denominator of which is the aggregate
Class Principal Amount of the Notes as of such date. At all times during the
term of the Indenture and this Agreement, the holders of the Ownership
Certificate will be allocated [1]% of the voting rights for so long as the
Class
remains outstanding. The voting rights allocation to any Class of Notes or
the
Ownership Certificate will be allocated among all holders of each such Class
or
Ownership Certificate in proportion to their respective Note Principal Amounts
of such Notes or Percentage Interests of the Ownership Certificate.
Section
1.02. Calculations
With Respect to the Mortgage Loans.
Calculations required to be made pursuant to this Agreement with respect to
any
Mortgage Loan in the Trust Estate shall be made based upon current information
as to the terms of the Mortgage Loans and reports of payments received from
the
Mortgagor on such Mortgage Loans. Payments to be made by the Trust Administrator
shall be based on information provided by the Servicer. The Trust Administrator
shall not be required to recompute, verify or recalculate the information
supplied to it by the Servicer.
Section
1.03. Calculations
With Respect to Accrued Interest.
Accrued
interest, if any, on any Note shall be calculated based upon a 360-day year
and
the actual number of days in each Accrual Period.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS
Section
2.01. Creation
and Declaration of Trust Estate; Conveyance of Mortgage Loans.
(a) Mortgage
Loans.
As of
the Closing Date, in consideration of the Issuer’s delivery of the Notes and the
Ownership Certificate to the Depositor or its designee, and concurrently with
the execution and delivery of this Agreement, the Depositor does hereby
transfer, assign, set over, deposit with and otherwise convey to the Issuer,
without recourse, subject to Section 3.01, in trust, all the right, title and
interest of the Depositor in and to the Mortgage Loans. Such conveyance
includes, without limitation, the right to all payments of principal and
interest received on or with respect to the Mortgage Loans on and after the
Cut-off Date (other than payments of principal and interest due on or before
such date), and all such payments due after such date but received prior to
such
date and intended by the related Mortgagors to be applied after such date
together with all of the Depositor’s right, title and interest in any REO
Property and the proceeds thereof, the Depositor’s rights under any Insurance
Policies related to the Mortgage Loans, the Depositor’s security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties and any proceeds of the foregoing, to have and to hold, in trust;
and
the Indenture Trustee declares that, subject to the review provided for in
Section 2.02, it has received and shall hold the Trust Estate, as Indenture
Trustee, in trust, for the benefit and use of the Noteholders and for the
purposes and subject to the terms and conditions set forth in this Agreement,
and, concurrently with such receipt, the Issuer has issued and delivered the
Notes and the Ownership Certificate to or upon the order of the Depositor,
in
exchange for the Mortgage Loans and the other property of the Trust
Estate.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Issuer all of its rights and interest under the Mortgage Loan
Purchase Agreement but without delegation of any of its obligations thereunder.
The Issuer hereby accepts such assignment, and shall be entitled to exercise
all
the rights of the Depositor under the Mortgage Loan Purchase Agreement as if,
for such purpose, it were the Depositor. Upon the issuance of the Notes,
ownership in the Trust Estate shall be vested in the Issuer, subject to the
lien
created by the Indenture in favor of the Indenture Trustee, for the benefit
of
the Noteholders. The foregoing sale, transfer, assignment, set-over, deposit
and
conveyance does not and is not intended to result in creation or assumption
by
the Indenture Trustee of any obligation of the Depositor, the Seller, or any
other Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto except as specifically set forth
herein.
The
Depositor further agrees to cause ________________________ to assign all of
its
right, title and interest in and to the interest rate corridor transaction
evidenced by each Confirmation to the Issuer, and all such right, title and
interest shall be deemed to have been assigned by ________________________
to
the Depositor and by the Depositor to the Issuer.
(b) Subject
to the execution and delivery of the related Subsequent Transfer Agreement
as
provided by Section 2.01(d) and the terms and conditions of this Agreement,
the
Depositor sells, transfers, assigns, sets over and otherwise conveys to the
Issuer, without recourse, on each Subsequent Transfer Date, all the right,
title
and interest of the Depositor in and to the related Subsequent Mortgage Loans,
including all interest and principal received and receivable by the Depositor
on
or with respect to such Subsequent Mortgage Loans after the related Subsequent
Cut-off Date (to the extent not applied in computing the Cut-off Date Principal
Balance thereof) or deposited into the Collection Account by the Servicer on
behalf of such Seller as part of any related Subsequent Deposit as provided
in
this Agreement, other than principal due on such Subsequent Mortgage Loans
on or
prior to the related Subsequent Cut-off Date and interest accruing prior to
the
related Subsequent Cut-off Date.
Immediately
upon the conveyance of the Subsequent Mortgage Loans referred to in the
preceding paragraph, the Depositor sells, transfers, assigns, sets over and
otherwise conveys to the Trustee for benefit of the Noteholders and the [Class
AF-5B] Insurer, without recourse, all right title and interest in the Subsequent
Mortgage Loans.
(c) The
Depositor has entered into this Agreement in consideration for the purchase
of
the Mortgage Loans by the Issuer and has agreed to take the actions specified
herein.
(d) On
any
Business Day during the Funding Period designated by the [Depositor] to the
Issuer, the Depositor and trust Administrator shall complete, execute and
deliver a Subsequent Transfer Agreement. After the execution and delivery of
such Subsequent Transfer Agreement, on the Subsequent Transfer Date, the Trust
Administrator shall set aside in the Pre-Funding Account an amount equal to
the
related Subsequent Transfer Date Purchase Amount.
(e) The
transfer of Subsequent Mortgage Loans on the Subsequent Transfer Date is subject
to the satisfaction of each of the following conditions:
(1) the
Trust
Administrator will be provided Opinions of Counsel addressed to the Rating
Agencies as with respect to the sale of the Subsequent Mortgage Loans conveyed
on such Subsequent Transfer Date (such opinions being substantially similar
to
the opinions delivered on the Closing Date to the Rating Agencies with respect
to the sale of the Initial Mortgage Loans on the Closing Date), to be delivered
as provided in Section 2.01(f);
(2) the
execution and delivery of such Subsequent Transfer Agreement or conveyance
of
the related Subsequent Mortgage Loans does not result in a reduction or
withdrawal of the any ratings assigned to the Notes by the Ratings Agencies
(without regard to the [Class AF-5B] Policy, in the case of the [Class AF-5B]
Notes);
(3) the
Depositor shall deliver to the Trust Administrator an Officer’s Certificate
confirming the satisfaction of each of the conditions set forth in this Section
2.01(e) required to be satisfied by such Subsequent Transfer Date;
(4) each
Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date satisfies
the
representations and warranties applicable to it under this Agreement, provided,
however, that with respect to a breach of a representation and warranty with
respect to a Subsequent Mortgage Loan set forth in this clause (4), the
obligation under this Agreement of the applicable Seller, to cure, repurchase
or
replace such Subsequent Mortgage Loan shall constitute the sole remedy against
such Seller respecting such breach available to Noteholders, the Depositor
or
the Trust Administrator;
(5) the
Subsequent Mortgage Loans conveyed on such Subsequent Transfer Date were
selected in a manner reasonably believed not to be adverse to the interests
of
the Noteholders;
(6) no
Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date was [30]
or
more days delinquent;
(7) following
the conveyance of the Subsequent Mortgage Loans on such Subsequent Transfer
Date, the characteristics of each Pool will not vary by more than the amount
specified below (other than the percentage of Mortgage Loans secured by
Mortgaged Properties located in the State of California, which will not exceed
[50]% of the Mortgage Pool and the percentage of mortgage loans in the Credit
Grade Categories of “C” or below, which will not exceed [10]% of the Mortgage
Loans in each Pool) from the characteristics listed below; provided that for
the
purpose of making such calculations, the characteristics for any Initial
Mortgage Loan made will be taken as of the Initial Cut-off Date and the
characteristics for any Subsequent Mortgage Loans will be taken as of the
Subsequent Cut-off Date; and
|
[Pool
1]
|
|||
|
Characteristic
|
Value
|
Permitted
Variance or Range
|
|
|
Average
Stated Principal Balance
|
$______
|
__%
|
|
|
Weighted
Average Mortgage Rate
|
_____%
|
____%
|
|
|
Weighted
Average Original Loan-to-Value Ratio
|
_____%
|
_%
|
|
|
Weighted
Average Remaining Term to Maturity
|
___
months
|
_
months
|
|
|
Weighted
Average Credit Bureau Risk Score
|
___
points
|
_
points
|
|
|
[Pool
2]
|
|||
|
Characteristic
|
Value
|
Permitted
Variance or Range
|
|
|
Average
Stated Principal Balance
|
$______
|
____%
|
|
|
Weighted
Average Mortgage Rate
|
_____%
|
____%
|
|
|
Weighted
Average Original Loan-to-Value Ratio
|
_____%
|
____%
|
|
|
Weighted
Average Remaining Term to Maturity
|
___
months
|
_
months
|
|
|
Weighted
Average Credit Bureau Risk Score
|
___
points
|
_
points
|
|
|
[Pool
3]
|
|||
|
Characteristic
|
Value
|
Permitted
Variance or Range
|
|
|
Average
Stated Principal Balance
|
$______
|
____%
|
|
|
Weighted
Average Mortgage Rate
|
_____%
|
____%
|
|
|
Weighted
Average Original Loan-to-Value Ratio
|
_____%
|
____%
|
|
|
Weighted
Average Remaining Term to Maturity
|
___
months
|
_
months
|
|
|
Weighted
Average Credit Bureau Risk Score
|
___
points
|
_
points
|
|
(8)
none of
the Sellers or the Depositor is insolvent and neither of the Sellers nor the
Depositor will be rendered insolvent by the conveyance of Subsequent Mortgage
Loans on such Subsequent Transfer Date.
The
Trustee shall not be required to investigate or otherwise verify compliance with
these conditions, except for its own receipt of documents specified above,
and
shall be entitled to rely on the required Officer’s Certificate.
(f) Within
[six] Business Days after each Subsequent Transfer Date, upon (1) delivery
to
the Trustee by the Depositor of the Opinions of Counsel referred to in Section
2.01(e)(1) and (e)(8), (2) delivery to the Trustee by the [Depositor] (on behalf
of each Seller) of a Loan Number and Borrower Identification Mortgage Loan
Schedule reflecting the Subsequent Mortgage Loans conveyed on such Subsequent
Transfer Date and the Mortgage Pool into which each Subsequent Mortgage Loan
was
conveyed, (3) deposit in the Collection Account by the Servicer on behalf of
the
Sellers of the applicable Subsequent Deposit, and (4) delivery to the Trust
Administrator by the Depositor of an Officer’s Certificate confirming the
satisfaction of each of the conditions precedent set forth in this Section
2.01(f), the Trustee shall pay the Depositor the Subsequent Transfer Date
Transfer Amount from such funds that were set aside in the Pre-Funding Account
pursuant to Section 2.01(d). The positive difference, if any, between the
Subsequent Transfer Date Transfer Amount and the Subsequent Transfer Date
Purchase Amount shall be re-invested by the Trust Administrator in the
Pre-Funding Account.
The
Trustee shall not be required to investigate or otherwise verify compliance
with
the conditions set forth in the preceding paragraph, except for its own receipt
of documents specified above, and shall be entitled to rely on the required
Officer’s Certificate.
Within
[thirty] days after each Subsequent Transfer Date, the Depositor shall deliver
to the Trustee a letter of a nationally recognized firm of independent public
accountants stating whether or not the Subsequent Mortgage Loans conveyed on
such Subsequent Transfer Date conform to the characteristics described in
Section 2.01(e)(6) and (7).
(g) In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Indenture Trustee the following documents or instruments with respect to each
Mortgage Loan (each a “Mortgage File”) so transferred and assigned:
(i) the
original Mortgage Note, endorsed either (A) in blank or (B) in the form of
the
Form of Endorsement set forth in Exhibit A-4 hereto, or with respect to any
lost
Mortgage Note, an original Lost Note Affidavit, in the form set forth in Exhibit
C hereto, stating that the original Mortgage Note was lost, misplaced or
destroyed, together with a copy of the related Mortgage Note;
(ii) the
original of any guarantee executed in connection with the Mortgage Note,
assigned to the Indenture Trustee;
(iii) the
original Mortgage with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon or, if such Mortgage or power of attorney
has
been submitted for recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise available, a copy
of
such Mortgage or power of attorney, as the case may be, certified by an
Officer’s Certificate of the Depositor to be a true and complete copy of the
original submitted for recording;
(iv) with
respect to each Non-MERS Mortgage Loan, an original Assignment of Mortgage,
in
form and substance acceptable for recording. The Mortgage shall be assigned
either (A) in blank, without recourse, or (B) so long as
____________________________________ is the Indenture Trustee, to
“____________________________________, as Indenture Trustee of the ______
Mortgage Investment Trust 200_-__”, without recourse or (C) to the order of the
Indenture Trustee;
(v) an
original copy of any intervening assignment of Mortgage showing a complete
chain
of assignments or, in the case of an intervening assignment that has been lost,
a written Opinion of Counsel for the Seller that such original intervening
assignment is not required to enforce the Indenture Trustee’s interest in the
Mortgage Loans;
(vi) the
original or a certified copy of lender’s title insurance policy (or, in lieu
thereof, a commitment to issue such title insurance policy, with an original
or
a certified copy of such title insurance policy to follow as soon after the
Closing Date as reasonably practicable) or attorney’s opinion of title and
abstract of title;
(vii) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any, or as to any such agreement which cannot be
delivered prior to the Closing Date because of a delay caused by the public
recording office where such assumption, modification or substitution agreement
has been delivered for recordation, a photocopy of such assumption, modification
or substitution agreement, pending delivery of the original thereof, together
with an Officer’s Certificate of the Depositor certifying that the copy of such
assumption, modification or substitution agreement delivered to the Indenture
Trustee is a true copy and that the original of such agreement has been
forwarded to the public recording office; and
(viii) the
original of any security agreement or equivalent instrument executed in
connection with the Mortgage or as to any security agreement or equivalent
instrument that cannot be delivered on or prior to the Closing Date because
of a
delay caused by the public recording office where such document has been
delivered for recordation, a photocopy of such document, pending delivery of
the
original thereof, together with an Officer’s Certificate of the Depositor
certifying that the copy of such security agreement, chattel mortgage or their
equivalent delivered to the Indenture Trustee is a true copy and that the
original of such document has been forwarded to the public recording
office.
The
Depositor and the Seller acknowledge and agree that the form of endorsement
attached hereto as Exhibit A-4 is intended to effect the transfer to the
Indenture Trustee, for the benefit of the Noteholders, of the Mortgage Notes
and
the Mortgages.
(h) Assignments
of Mortgage with respect to each Non-MERS Mortgage Loan shall be recorded;
provided,
however,
that
such Assignments need not be recorded if, on or prior to the Closing Date,
the
Seller delivers an Opinion of Counsel (which must be Independent counsel)
acceptable to the Rating Agencies, to the effect that recording in such states
is not required to protect the Indenture Trustee’s interest in the related
Non-MERS Mortgage Loans.
(i) In
instances where a Title Insurance Policy is required to be delivered to the
Indenture Trustee under clause (b)(vi) above and is not so delivered, the Seller
will provide a copy of such Title Insurance Policy to the Indenture Trustee
as
promptly as practicable after the execution and delivery hereof, but in any
case
within [180] days of the Closing Date.
(j) For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, herewith delivers to the Indenture Trustee an Officer’s Certificate
which shall include a statement to the effect that all amounts received in
connection with such prepayment that are required to be deposited in the
Collection Account pursuant to Section 4.07 have been so deposited. All original
documents that are not delivered to the Indenture Trustee shall be held by
the
Servicer in trust for the benefit of the Indenture Trustee and the
Noteholders.
Section
2.02. Acceptance
of Trust Estate; Review of Documentation.
(a) Subject
to the provisions of Section 2.01, the Issuer acknowledges receipt of the assets
transferred by the Depositor of the assets included in the Trust Estate and
has
directed that the documents referred to in Section 2.01 and all other assets
included in the definition of “Trust Estate” be delivered to the Indenture
Trustee on its behalf.
The
Indenture Trustee, by execution and delivery hereof, acknowledges receipt by
it
of the Mortgage Files pertaining to the Mortgage Loans listed on the Mortgage
Loan Schedule, subject to review thereof by the Indenture Trustee under this
Section 2.02. The Indenture Trustee will execute and deliver to the Depositor
and the Servicer on the Closing Date an Initial Certification in the form
annexed hereto as Exhibit A-1.
(b) Within
[45] days after the Closing Date with respect to the Initial Mortgage Loans
and
within [90] days after the Subsequent Transfer Date with respect to the
Subsequent Mortgage Loans, the Indenture Trustee will, for the benefit of
Noteholders, review each Mortgage File to ascertain that all required documents
set forth in Section 2.01 have been received and appear on their face to contain
the requisite signatures by or on behalf of the respective parties thereto,
and
shall deliver to the Depositor and the Servicer an Interim Certification in
the
form annexed hereto as Exhibit A-2 to the effect that, as to each Mortgage
Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan prepaid
in
full or any specifically identified in such certification as not covered by
such
certification), (i) all of the applicable documents specified in Section 2.01(b)
are in its possession and (ii) such documents have been reviewed by it and
appear to relate to such Mortgage Loan. The Indenture Trustee shall determine
whether such documents are executed and endorsed, but shall be under no duty
or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that the same are valid, binding,
legally effective, properly endorsed, genuine, enforceable or appropriate for
the represented purpose or that they have actually been recorded or are in
recordable form or that they are other than what they purport to be on their
face. The Indenture Trustee shall not have any responsibility for verifying
the
genuineness or the legal effectiveness of or authority for any signatures of
or
on behalf of any party or endorser or for the perfection or priority of any
document.
(c) If
in the
course of the review described in paragraph (b) above the Indenture Trustee
discovers any document or documents constituting a part of a Mortgage File
that
is missing, does not appear regular on its face (i.e.,
is
mutilated, damaged, defaced, torn or otherwise physically altered) or appears
to
be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule,
as
applicable (each, a “Material Defect”), the Indenture Trustee discovering such
Material Defect shall identify the Mortgage Loan to which such Material Defect
relates in the Interim Certification delivered to the Depositor and the
Servicer. Within [90] days of its receipt of such notice, the Seller shall
be
required to cure such Material Defect (and, in such event, the Seller shall
provide the Indenture Trustee with an Officer’s Certificate confirming that such
cure has been effected). If the Seller does not so cure such Material Defect,
if
a loss has been incurred with respect to such Mortgage Loan that would, if
such
Mortgage Loan were not purchased from the Trust Estate, constitute a Realized
Loss, and such loss is attributable to the failure of the Seller to cure such
Material Defect, the Seller shall repurchase the related Mortgage Loan from
the
Trust Estate at the Purchase Price. A loss shall be deemed to be attributable
to
the failure of the Seller to cure a Material Defect if, as determined by the
Seller acting in good faith, absent such Material Defect, such loss would not
have been incurred. The Seller may, in lieu of repurchasing a Mortgage Loan
pursuant to this Section 2.02, substitute for such Mortgage Loan a Qualifying
Substitute Mortgage Loan subject to the provisions of Section 3.03. The failure
of the Indenture Trustee to deliver the Interim Certification within [45] days
after the Closing Date or [90] days after the Subsequent transfer Date shall
not
affect or relieve the Seller of its obligation to repurchase any Mortgage Loan
pursuant to this Section 2.02 or any other Section of this Agreement requiring
the repurchase of Mortgage Loans from the Trust Estate.
(d) Within
[180] days following the Closing Date with respect to the Initial Mortgage
Loans
and within [180] days following the Subsequent Transfer Date with respect to
the
Subsequent Mortgage Loans, the Indenture Trustee shall deliver to the Depositor
and the Servicer a Final Certification substantially in the form attached as
Exhibit A-3 evidencing the completeness of the Mortgage Files in its possession
or control, with any exceptions noted thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Estate, the Indenture Trustee or the Noteholders of any unsatisfied duty, claim
or other liability on any Mortgage Loan or to any Mortgagor.
(f) For
purposes of the determinations required to be made by the Indenture Trustee
pursuant to paragraphs (a) through (d) of this Section 2.02, the Indenture
Trustee shall be entitled to conclusively rely upon the diskette, tape or other
electronic media provided by or on behalf of the Seller with respect to the
Mortgage Loans as to whether (i) any guarantee was executed in connection with
any Mortgage Loan, (ii) any assumption, modification or substitution agreement
was executed in connection with any Mortgage Loan, (iii) primary mortgage
guaranty insurance is required with respect to any Mortgage Loan or (iv) any
security agreement or equivalent instrument was executed in connection with
any
Mortgage Loan.
Section
2.03. Grant
Clause.
(a) It
is
intended that the conveyance by the Depositor to the Issuer of the Mortgage
Loans, as provided for in Section 2.01, be construed as a sale by the Depositor
to the Issuer of the Mortgage Loans and other assets in the Trust Estate for
the
benefit of the Noteholders. Further, it is not intended that any such conveyance
be deemed to be a pledge of the Mortgage Loans by the Depositor to the Issuer
to
secure a debt or other obligation of the Depositor. However,
in the
event that the Mortgage Loans are held to be property of the Depositor or if
for
any reason this Agreement is held or deemed to create a security interest in
the
Mortgage Loans and other assets in the Trust Estate, then it is intended that
(a) this Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the New York UCC (or the Relevant UCC if not
the
New York UCC); (b) the conveyances provided for in Section 2.01 shall be deemed
to be (1) a grant by the Depositor to the Issuer of a security interest in
all
of the Depositor’s right (including the power to convey title thereto), title
and interest, whether now owned or hereafter acquired, in and to (A) the
Mortgage Loans, including the Mortgage Notes, the Mortgages, any related
insurance policies and all other documents in the related Mortgage Files, (B)
all amounts payable pursuant to the Mortgage Loans in accordance with the terms
thereof and (C) any and all general intangibles consisting of, arising from
or
relating to any of the foregoing, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all Liquidation Proceeds, all Insurance
Proceeds, all amounts from time to time held or invested in the Collection
Account, whether in the form of cash, instruments, securities or other property
and (2) an assignment by the Depositor to the Issuer of any security interest
in
any and all of the Depositor’s right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and
to
the property described in the foregoing clauses (1)(A) through (C); (c) the
possession by the Indenture Trustee or any other agent of the Issuer of Mortgage
Notes, and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be “possession by the
secured party,” or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to
the
New York UCC and any other Relevant UCC (including, without limitation, Section
9-313, 8-313 or 8-321 thereof); and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts
or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Issuer for the purpose of perfecting such security interest under
applicable law.
(b) The
Depositor and, at the Depositor’s direction, the Issuer shall, to the extent
consistent with this Agreement, take such reasonable actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest
in
the Mortgage Loans and the other property of the Trust Estate, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of
this
Agreement. Without limiting the generality of the foregoing, the Depositor
shall
prepare and file any UCC financing statements that are necessary to perfect
the
Indenture Trustee’s security interest in or lien on the Mortgage Loans, as
evidenced by an Officer’s Certificate of the Depositor, and furnish a copy of
each such filed financing statement to the Trust Administrator. The Trust
Administrator shall prepare and file, at the expense of the Issuer, all filings
necessary to maintain the effectiveness of any original filings necessary under
the Relevant UCC to perfect the Indenture Trustee’s security interest in or lien
on the Mortgage Loans, including without limitation (x) continuation statements,
and (y) to the extent that a Responsible Officer of the Trust Administrator
has
received written notice of such change or transfer, such other statements as
may
be occasioned by (1) any change of name of the Seller, the Depositor or the
Issuer, (2) any change of location of the place of business or the chief
executive office of the Seller or the Depositor or (3) any transfer of any
interest of the Seller or the Depositor in any Mortgage Loan.
Neither
the Depositor nor the Issuer shall organize under the law of any jurisdiction
other than the State under which each is organized as of the Closing Date
(whether changing its jurisdiction of organization or organizing under an
additional jurisdiction) without giving [30] days’ prior written notice of such
action to its immediate and mediate transferee, including the Indenture Trustee.
Before effecting such change, each of the Depositor or the Issuer proposing
to
change its jurisdiction of organization shall prepare and file in the
appropriate filing office any financing statements or other statements necessary
to continue the perfection of the interests of its immediate and mediate
transferees, including the Indenture Trustee, in the Mortgage Loans. In
connection with the transactions contemplated by this Agreement and the
Indenture, each of the Depositor and the Issuer authorizes its immediate or
mediate transferee to file in any filing office any initial financing
statements, any amendments to financing statements, any continuation statements,
or any other statements or filings described in this Section
2.03(b).
(c) The
Depositor shall not take any action inconsistent with the sale by the Depositor
of all of its right, title and interest in and to the Trust Estate and shall
indicate or shall cause to be indicated in its records and records held on
its
behalf that ownership of each Mortgage Loan and the other property of the Issuer
is held by the Issuer. In addition, the Depositor shall respond to any inquiries
from third parties with respect to ownership of a Mortgage Loan or any other
property of the Trust Estate by stating that it is not the owner of such
Mortgage Loan and that ownership of such Mortgage Loan or other property of
the
Trust Estate is held by the Issuer on behalf of the Noteholders.
Section
2.04. Option
to Contribute Derivative Instrument.
At
any
time on or after the Closing Date, the Seller shall have the right to contribute
to, and deposit into, the Trust a derivative contract or comparable instrument
(a “Derivative Instrument”). The Derivative Instrument may have a notional
amount in excess of the sum of the beneficial interests in the Trust. Any such
instrument shall constitute a fully prepaid agreement. The Trust Administrator
shall have no tax reporting duties with respect to any such Derivative
Instrument.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.01. Representations
and Warranties of the Depositor and the Seller.
(a) The
Depositor hereby represents and warrants to the Issuer, the Indenture Trustee
for the benefit of Noteholders, the Trust Administrator, the Servicer and the
Seller as of the Closing Date or such other date as is specified,
that:
(i) This
Agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) Immediately
prior to the transfer by the Depositor to the Trust Estate of each Mortgage
Loan, the Depositor had good and equitable title to each Mortgage Loan (insofar
as such title was conveyed to it by the Seller) subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge or other
encumbrance or other interest of any nature;
(iii) As
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Initial Mortgage Loans to the Trust Estate;
(iv) As
of the
Subsequent Transfer Date, the Depositor has transferred all right, title and
interest in the Subsequent Mortgage Loans to the Trust Estate
(v) The
Depositor has not transferred the Mortgage Loans to the Trust Estate with any
intent to hinder, delay or defraud any of its creditors;
(vi) The
Depositor has been duly organized and is validly existing as a corporation
in
good standing under the laws of the State of Delaware, with full power and
authority to own its assets and conduct its business as presently being
conducted; and
(b) The
Seller hereby represents and warrants to the Issuer, the Indenture Trustee
for
the benefit of Noteholders, the Trust Administrator, the Servicer and the
Depositor as of the Closing Date or such other date as is specified,
that:
(i) the
Seller is a ______________, duly organized validly existing and in good standing
under the laws of the _____________, and has the corporate power to own its
assets and to transact the business in which it is currently engaged. The Seller
is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the business transacted
by it or any properties owned or leased by it requires such qualification and
in
which the failure so to qualify would have a material adverse effect on the
business, properties, assets, or condition (financial or other) of the
Seller;
(ii) the
Seller has the corporate power and authority to make, execute, deliver and
perform this Agreement and all of the transactions contemplated under the
Agreement, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of the Seller enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights generally and by the
availability of equitable remedies;
(iii) the
Seller is not required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement, except
for
such consent, license, approval or authorization, or registration or
declaration, as shall have been obtained or filed, as the case may be, prior
to
the Closing Date;
(iv) the
execution, delivery and performance of this Agreement by the Seller will not
violate any provision of any existing law or regulation or any order or decree
of any court applicable to the Seller or any provision of the articles of
incorporation or bylaws of the Seller, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Seller is a party
or by which the Seller may be bound;
(v) no
litigation or administrative proceeding of or before any court, tribunal or
governmental body is currently pending, or to the knowledge of the Seller
threatened, against the Seller or any of its properties or with respect to
this
Agreement which in the opinion of the Seller has a reasonable likelihood of
resulting in a material adverse effect on the transactions contemplated by
this
Agreement; and
(vi) [the
Seller has been organized in conformity with the requirements for qualification
as a REIT; the Seller has filed an election to be treated as a REIT for federal
income tax purposes; and the Seller currently qualifies as, and it proposes
to
operate in a manner that will enable it to continue to qualify as, a
REIT.]
(c) The
Seller hereby represents and warrants to the Issuer, the Indenture Trustee
for
the benefit of Noteholders, the Trust Administrator, the Servicer and the
Depositor as of the Closing Date with respect to the Initial Mortgage Loans
and
the Subsequent Transfer Date with respect to the Subsequent Transfer Date or
such other date as is specified, with respect to the Mortgage Loans, the
representations and warranties set forth in Schedule II of the Mortgage Loan
Purchase Agreement.
(d) To
the
extent that any fact, condition or event with respect to a Mortgage Loan
constitutes a breach of a representation or warranty of the Seller under
subsection (c) above or the Mortgage Loan Purchase Agreement, the only right
or
remedy of the Indenture Trustee or any Certificateholder hereunder shall be
their rights to enforce the obligations of the Seller under any applicable
representation or warranty made by it. The Indenture Trustee on behalf of the
Issuer acknowledges that the Depositor shall have no obligation or liability
with respect to any breach of any representation or warranty with respect to
the
Mortgage Loans (except as set forth in Section 3.01(a)(ii)) under any
circumstances.
Section
3.02. Discovery
of Breach.
It is
understood and agreed that the representations and warranties (i) of the
Depositor set forth in Section 3.01(a), (ii) of the Seller set forth in Section
3.01(b) and (c) and (iii) of the Servicer pursuant to Section 4.02 of this
Agreement, shall each survive delivery of the Mortgage Files and the Assignment
of Mortgage of each Mortgage Loan to the Indenture Trustee and shall continue
throughout the term of this Agreement. With respect to the representations
and
warranties which are made to the best of the Seller’s knowledge, if it is
discovered by the Depositor, the Seller, the Trust Administrator, the Indenture
Trustee or the Servicer that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of
the Mortgage Loans or the interests of the Noteholders or the Indenture Trustee
therein, notwithstanding such Seller’s lack of knowledge with respect to the
substance of such representation or warranty, remedies for breach will apply
to
such inaccuracy. Any breach of the representation and warranty set forth in
clauses (g), (ss), (tt) and (vv) of Schedule II of the Mortgage Loan Purchase
Agreement shall be deemed to materially and adversely affect the interest of
the
Trust in that Mortgage Loan, notwithstanding the Seller’s lack of knowledge with
respect to the substance of such representation and warranty. Upon discovery
by
any of the Depositor, the Servicer, the Trust Administrator or the Indenture
Trustee of a breach of any of such representations and warranties made by the
Seller that adversely and materially affects the value of the related Mortgage
Loan, the party discovering such breach shall give prompt written notice to
the
other parties. Within [60] days of the discovery by the Seller of a breach
of
any representation or warranty given to the Indenture Trustee by the Seller
or
the Seller’s receipt of written notice of such a breach, the Seller shall either
(a) cure such breach in all material respects, (b) repurchase such Mortgage
Loan
or any property acquired in respect thereof from the Indenture Trustee at the
Purchase Price or (c) substitute a Qualifying Substitute Mortgage Loan for
the
affected Mortgage Loan.
Section
3.03. Repurchase,
Purchase or Substitution of Mortgage Loans.
(a) With
respect to any Mortgage Loan repurchased by the Seller pursuant to Section
3.02(b) of this Agreement, the principal portion of the funds in respect of
such
repurchase of a Mortgage Loan will be considered a Principal Prepayment and
the
Purchase Price shall be deposited in the Collection Account. Upon receipt by
the
Trust Administrator of the full amount of the Purchase Price for a Deleted
Mortgage Loan and notification thereof has been made to the Indenture Trustee
the Indenture Trustee shall release or cause to be released and reassign to
the
Depositor or the Seller, as applicable, the related Mortgage File for the
Deleted Mortgage Loan and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, representation or warranty, as
shall be necessary to vest in such party or its designee or assignee title
to
any Deleted Mortgage Loan released pursuant hereto, free and clear of all
security interests, liens and other encumbrances created by this Agreement
and
the Indenture, which instruments shall be prepared by the Servicer and the
Indenture Trustee shall have no further responsibility with respect to the
Mortgage File relating to such Deleted Mortgage Loan.
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Indenture Trustee (or its custodian) in exchange for a Deleted Mortgage Loan:
(i) the Depositor or the Seller, as applicable, must deliver to the Indenture
Trustee the Mortgage File for the Qualifying Substitute Mortgage Loan containing
the documents set forth in Section 2.01(b) along with a written certification
certifying as to the delivery of such Mortgage File and containing the granting
language set forth in Section 2.01(a); and (ii) the Seller and the Depositor
will be deemed to have made, with respect to such Qualifying Substitute Mortgage
Loan, each of the representations and warranties made by it with respect to
the
related Deleted Mortgage Loan. As soon as practicable after the delivery of
any
Qualifying Substitute Mortgage Loan hereunder, the Indenture Trustee, at the
expense of the Depositor and at the direction and with the cooperation of the
Servicer shall (i) with respect to a Qualifying Substitute Mortgage Loan that
is
a Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be recorded by
the
Servicer if required pursuant to Section 2.01(c), or (ii) with respect to a
Qualifying Substitute Mortgage Loan that is a MERS Mortgage Loan, cause to
be
taken such actions as are necessary to cause the Indenture Trustee (on behalf
of
the Issuer) to be clearly identified as the owner of each such Mortgage Loan
on
the records of MERS if required pursuant to Section 2.01(c).
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
BY
THE
SERVICER AND THE TRUST ADMINISTRATOR
Section
4.01. Servicer
to Perform Servicing Responsibilities.
(a) Possession
of Servicing Files.
The
Servicer shall maintain a Servicing File with respect to each Mortgage Loan
in
order to service such Mortgage Loans pursuant to this Agreement and each
Servicing File delivered to the Servicer shall be held in trust by the Servicer
for the benefit of the Issuer and the Indenture Trustee. The Servicer’s
possession of any portion of the Mortgage Loan documents shall be at the will
of
the Indenture Trustee for the sole purpose of facilitating servicing of the
related Mortgage Loan pursuant to this Agreement, and such retention and
possession by the Servicer shall be in a custodial capacity only. The ownership
of each Mortgage Note, Mortgage, and the contents of the Servicing File shall
be
vested in the Indenture Trustee and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Servicer shall immediately vest in the Indenture Trustee
and
shall be retained and maintained, in trust, by the Servicer at the will of
the
Indenture Trustee in such custodial capacity only. The Servicing File retained
by the Servicer pursuant to this Agreement shall be identified in accordance
with the Servicer’s file tracking system to reflect the ownership of the related
Mortgage Loan by the Indenture Trustee. The Servicer shall release from its
custody the contents of any Servicing File retained by it only in accordance
with this Agreement.
(b) Books
and Records.
All
rights arising out of the Mortgage Loans shall be vested in the Indenture
Trustee, subject to the Servicer’s rights to service and administer the Mortgage
Loans hereunder in accordance with the terms of this Agreement. All funds
received on or in connection with a Mortgage Loan, other than the Servicing
Fee
and other compensation and reimbursement to which the Servicer is entitled
as
set forth herein, including but not limited to Section 4.07(d) and
Section 4.23 shall be received and held by them in trust for the benefit of
the Indenture Trustee pursuant to the terms of this Agreement.
Section
4.02. Duties
of the Servicer; Representations and Warranties.
(a) For
and
on behalf of the Issuer, the Indenture Trustee and the Noteholders, the Servicer
shall service the Mortgage Loans from and after the Closing Date in accordance
with the provisions of this Article IV. The Servicer hereby represents and
warrants to the Depositor, the Issuer, the Indenture Trustee and the Trust
Administrator, as of the Closing Date, that:
(i) it
is
validly existing and in good standing as a _____________________ and as Servicer
has full power and authority to transact any and all business contemplated
by
this Agreement and to execute, deliver and comply with its obligations under
the
terms of this Agreement, the execution, delivery and performance of which have
been duly authorized by all necessary corporate action on the part of the
Servicer;
(ii) the
execution and delivery of this Agreement by the Servicer and its performance
and
compliance with the terms of this Agreement will not (A) violate the Servicer’s
charter or bylaws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other instrument
to which the Servicer is a party or by which it is bound or to which any of
its
assets are subject, which violation, default or breach would materially and
adversely affect the Servicer’s ability to perform its obligations under this
Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Servicer, enforceable against it in accordance with the terms hereof, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors’ rights in
general, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) the
Servicer is not in default with respect to any order or decree of any court
or
any order or regulation of any federal, state, municipal or governmental agency
to the extent that any such default would materially and adversely affect its
performance hereunder;
(v) the
Servicer is not a party to or bound by any agreement or instrument or subject
to
any charter provision, bylaw or any other corporate restriction or any judgment,
order, writ, injunction, decree, law or regulation that may materially and
adversely affect its ability as Servicer to perform its obligations under this
Agreement or that requires the consent of any third person to the execution
of
this Agreement or the performance by the Servicer of its obligations under
this
Agreement;
(vi) no
litigation is pending or, to the best of the Servicer’s knowledge, threatened
against the Servicer which would prohibit its entering into this Agreement
or
performing its obligations under this Agreement;
(vii) the
Servicer, or an affiliate thereof the primary business of which is the servicing
of conventional residential mortgage loans, is a Xxxxxx Xxx- or FHLMC-approved
seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of
or compliance by the Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer;
(x) the
Servicer has obtained an Errors and Omissions Insurance Policy and a Fidelity
Bond in accordance with Section 4.03 each of which is in full force and effect,
and each of which provides at least such coverage as is required hereunder;
and
(xi) the
information about the Servicer under the heading “The Servicer” in the
Prospectus Supplement does not include an untrue statement of a material fact
and does not omit to state a material fact, with respect to the statements
made,
necessary in order to make the statements in light of the circumstances under
which they were made not misleading.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 4.02 shall survive the execution and delivery of this Agreement.
The Servicer shall indemnify the Depositor, the Issuer, the Indenture Trustee,
the Owner Trustee and the Trust Administrator and hold them harmless against
any
loss, damages, penalties, fines, forfeitures, legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Servicer’s representations and warranties contained in this Section 4.02. It
is understood and agreed that the enforcement of the obligation of the Servicer
set forth in this Section to indemnify the foregoing parties as provided in
this
Section constitutes the sole remedy (other than as set forth in Section 7.01)
of
such parties respecting a breach of the foregoing representations and
warranties. Such indemnification shall survive any termination of the Servicer
as Servicer hereunder, and any termination of this Agreement.
Any
cause
of action against the Servicer relating to or arising out of the breach of
any
representations and warranties made in this Section shall accrue upon discovery
of such breach by the Depositor, the Issuer, the Indenture Trustee or the Trust
Administrator or notice thereof by any one of such parties to the other parties.
Notwithstanding anything in this Agreement to the contrary, the Servicer shall
not be liable for special, indirect or consequential losses or damages of any
kind whatsoever (including, but not limited to, lost profits).
Section
4.03. Servicer
Fidelity Bond and Servicer Errors and Omissions Insurance Policy.
(a) The
Servicer, at its expense, shall maintain in effect a Fidelity Bond and a Errors
and Omissions Insurance Policy, affording coverage with respect to all
directors, officers, employees and other Persons acting on the Servicer’s
behalf, and covering errors and omissions in the performance of the Servicer’s
obligations hereunder. The Servicer’s Errors and Omissions Insurance Policy and
the Servicer Fidelity Bond shall be in such form and amount that would be
consistent with coverage customarily maintained by servicers of mortgage loans
similar to the Mortgage Loans and shall by its terms not be cancelable without
[thirty] days’ prior written notice to the Indenture Trustee. The Servicer shall
provide the Depositor and the Indenture Trustee, upon request, with a copy
of
such policy and fidelity bond. The Servicer shall (i) require the Servicer
to maintain an Errors and Omissions Insurance Policy and a Fidelity Bond in
accordance with the provisions of this Section 4.03 of this Agreement, (ii)
cause the Servicer to provide to the Servicer certificates evidencing that
such
policy and bond is in effect and to furnish to the Servicer any notice of
cancellation, non-renewal or modification of the policy or bond received by
it,
as and to the extent provided in this Section 4.03 of the Agreement, and (iii)
furnish copies of such policies and of the certificates and notices referred
to
in clause (ii) to the Indenture Trustee upon request.
(b) The
Servicer shall promptly report to the Indenture Trustee and the Trust
Administrator any material changes that may occur in the Servicer’s Fidelity
Bond or the Servicer’s Errors and Omissions Insurance Policy and shall furnish
either such party, on request, with certificates evidencing that such bond
and
insurance policy are in full force and effect. The Servicer shall promptly
report to the Indenture Trustee and the Trust Administrator all cases of
embezzlement or fraud, if such events involve funds relating to the Mortgage
Loans. The total losses, regardless of whether claims are filed with the
applicable insurer or surety, shall be disclosed in such reports together with
the amount of such losses covered by insurance. If a bond or insurance claim
report is filed with any of such bonding companies or insurers, the Servicer
shall promptly furnish a copy of such report to the Indenture Trustee and the
Trust Administrator. Any amounts relating to the Mortgage Loans collected by
the
Servicer under any such bond or policy shall be promptly remitted by the
Servicer to the Trust Administrator for deposit into the Collection
Account.
Section
4.04. Servicer’s
Financial Statements and Related Information.
For
each year this Agreement is in effect, the Servicer shall deliver to the Trust
Administrator, the Indenture Trustee, each Rating Agency and the Depositor
a
copy of its annual unaudited financial statements on or prior to May 31 of
each
year, beginning May 31, 200_. Such financial statements shall include a balance
sheet, income statement, statement of retained earnings, statement of additional
paid in capital, statement of changes in financial position and all related
notes and schedules and shall be in comparative form, certified by a nationally
recognized firm of Independent Accountants to the effect that such statements
were examined and prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that of the preceding
year.
Section
4.05. Power
to Act; Procedures.
(a) Servicer
to Service.
The
Servicer, acting directly or through one or more sub-servicers as provided
in
this Section 4.05 shall service and administer the Mortgage Loans from and
after
the Closing Date 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, consistent with the terms of
this
Agreement and with the Servicing Standard.
(b) The
Servicer shall not take any action that is inconsistent with or prejudices
the
interests of the Issuer, the Indenture Trustee or the Noteholders in any
Mortgage Loan or the rights and interests of the Depositor, the Issuer, the
Indenture Trustee and the Noteholders under this Agreement and the Indenture.
The Servicer shall represent and protect the interests of the Issuer, the
Indenture Trustee and the Noteholders in the same manner as it protects its
own
interests in mortgage loans in its own portfolio in any claim, proceeding or
litigation regarding a Mortgage Loan. Without limiting the generality of the
foregoing, the Servicer in its own name is hereby authorized and empowered
by
the Indenture Trustee when the Servicer believes it appropriate in its best
judgment and in accordance with the Servicing Standard, to execute and deliver,
on behalf of itself and the Noteholders, the Trust Administrator, the Indenture
Trustee or any of them, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge and all other comparable instruments,
with respect to the Mortgage Loans and with respect to the Mortgaged Properties.
The Indenture Trustee shall furnish the Servicer, upon request, with any powers
of attorney (on the standard form used by the Indenture Trustee) empowering
the
Servicer to execute and deliver instruments of satisfaction or cancellation,
or
of partial or full release or discharge, and to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in any court
action relating to the Mortgage Loans or the Mortgaged Property, in accordance
with this Agreement, and the Indenture Trustee shall execute and deliver such
other documents as the Servicer may request, necessary or appropriate to enable
the Servicer to service the Mortgage Loans and carry out its duties hereunder,
and to allow the Servicer to service the Mortgage Loans in each case in
accordance with the Servicing Standard (and the Indenture Trustee or the Trust
Administrator shall have no liability for misuse of any such powers of attorney
by the Servicer). If the Servicer or the Indenture Trustee has been advised
that
it is likely that the laws of the state in which action is to be taken prohibit
such action if taken in the name of the Indenture Trustee or that the Indenture
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, then upon request of the
Indenture Trustee, the Servicer shall join with the Indenture Trustee in the
appointment of a co-trustee pursuant to Section 6.10 of the Indenture. In no
event shall the Servicer, without the Indenture Trustee’s written consent: (i)
initiate any action, suit or proceeding solely under the Indenture Trustee’s
name without indicating the Servicer’s representative capacity or (ii) take any
action with the intent to cause, and which actually does cause, the Indenture
Trustee to be registered to do business in any state. The Servicer shall
indemnify the Indenture Trustee for any and all costs, liabilities and expenses
incurred by the Indenture Trustee in connection with the negligent or willful
misuse of such powers of attorney by the Servicer. In the performance of its
duties hereunder, the Servicer shall be an independent contractor and shall
not,
except in those instances where it is taking action in the name of the Indenture
Trustee, be deemed to be the agent of the Indenture Trustee.
(c) In
servicing and administering the Mortgage Loans, the Servicer shall employ
procedures and exercise the same care that it customarily employs and exercises
in servicing and administering loans for its own account, giving due
consideration to the Servicing Standard where such practices do not conflict
with this Agreement. Consistent with the foregoing, the Servicer may in its
discretion (i) waive any late payment charge and (ii) extend the due dates
for
payments due on a Mortgage Note for a period not greater than [120] days;
provided, however,
that the
maturity of any Mortgage Loan shall not be extended past the date on which
the
final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date. In the event of any extension described in clause (ii) above, the Servicer
shall make Advances on the related Mortgage Loan in accordance with the
provisions of Section 5.05 on the basis of the amortization schedule of
such Mortgage Loan without modification thereof by reason of such extension.
Such waiver, modification, postponement or indulgence may be made if in the
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the interests of the
Issuer, the Indenture Trustee and the Noteholders. In the event of any such
modification which permits the deferral of interest or principal payments on
any
Mortgage Loan, the Servicer shall, on the Business Day immediately preceding
the
Servicer Remittance Date in any month in which any such principal or interest
payment has been deferred, make an Advance in accordance with Section 5.05
in an amount equal to the difference between (a) such month’s principal and one
month’s interest at the Mortgage Loan Remittance Rate on the unpaid principal
balance of such Mortgage Loan and (b) the amount paid by the Mortgagor. The
Servicer shall be entitled to reimbursement for such advances to the same extent
as for all other Advances made pursuant to Section 4.35. Without limiting the
generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered, to execute and deliver on behalf of itself, the Issuer
and the Indenture Trustee, all instruments of satisfaction or cancellation,
or
of partial or full release, discharge and all other comparable instruments,
with
respect to the Mortgage Loans and with respect to the Mortgaged Properties.
The
Indenture Trustee shall execute and deliver to the Servicer powers of attorney
(on the standard form used by the Indenture Trustee) and other documents,
furnished to it by the Servicer and reasonably satisfactory to the Indenture
Trustee, necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Agreement; provided
that the
Indenture Trustee shall not be liable for the actions of the Servicer under
any
such powers of attorney.
In
servicing and administering the Mortgage Loans, the Servicer shall adhere to
the
Servicing Standard. Notwithstanding the appointment of any sub-servicer pursuant
to Section 4.05, the Servicer shall remain liable for the performance of all
of
the servicing obligations and responsibilities under this
Agreement.
(d) Servicer
Discretion.
In
managing the liquidation of defaulted Mortgage Loans, the Servicer will have
sole discretion, subject to the terms of this Agreement, to sell defaulted
Mortgage Loans; provided,
however,
that
the Servicer shall not take any action that is inconsistent with or prejudices
the interests of the Noteholders in any Mortgage Loan or the rights and
interests of the Depositor, the Indenture Trustee and the Noteholders under
this
Agreement.
(e) Collection
and Liquidation of Mortgage Loans.
Continuously from the Closing Date, until the date each Mortgage Loan ceases
to
be subject to this Agreement, the Servicer shall proceed diligently to collect
all payments due under each of the Mortgage Loans when the same shall become
due
and payable and shall take special care in ascertaining and estimating Escrow
Payments and all other charges that will become due and payable with respect
to
the Mortgage Loans and each related Mortgaged Property, to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges
as
and when they become due and payable.
The
Servicer shall use its best efforts, consistent with the Servicing Standard
to
foreclose upon or otherwise comparably convert the ownership of such Mortgaged
Properties as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 4.05(a). The Servicer shall use its best efforts to realize upon
defaulted Mortgage Loans in such a manner as will maximize the receipt of
principal and interest by the Trust, taking into account, among other things,
the timing of foreclosure proceedings. The foregoing is subject to the
provisions that, in any case in which Mortgaged Property shall have suffered
damage, the Servicer shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its discretion (i)
that such restoration will increase the proceeds of liquidation of the related
Mortgage Loan to the Issuer after reimbursement to itself for such expenses,
and
(ii) that such expenses will be recoverable by the Servicer through Insurance
Proceeds or Liquidation Proceeds from the related Mortgaged Property. In the
event that any payment due under any Mortgage Loan and not otherwise postponed,
deferred or waived pursuant to Section 4.09 is not paid when the same
becomes due and payable, or in the event the Mortgagor fails to perform any
other covenant or obligation under the Mortgage Loan and such failure continues
beyond any applicable grace period, the Servicer shall take such action as
(1)
shall be consistent with the Servicing Standard and (2) the Servicer shall
determine prudently to be in the best interest of the Issuer, the Indenture
Trustee and the Noteholders. In the event that any payment due under any
Mortgage Loan is not otherwise postponed, deferred or waived pursuant to
Section 4.05(a) and remains delinquent for a period of [105] days or any
other default continues for a period of [105] days beyond the expiration of
any
grace or cure period, the Servicer shall commence foreclosure proceedings.
The
Servicer shall be responsible for all costs and expenses incurred by it in
any
such proceedings; provided,
however,
that it
shall be entitled to reimbursement thereof from the related Mortgaged Property,
as contemplated in Sections 4.08(i) and 4.09(j) or as otherwise provided in
Section 4.08(iii).
Notwithstanding
the generality of the preceding paragraph, the Servicer shall take such actions
generally in accordance with the Servicer’s established default timeline and in
accordance with the Servicing Standard with respect to each Mortgage Loan and
Mortgagor for which there is a delinquency until such time as the related
Mortgagor is current with all payments due under the Mortgage Loan.
Section
4.06. [Reserved]
Section
4.07. Establishment
of and Deposits to Collection Account.
(a) On
the
Closing Date, the Trust Administrator shall open and shall thereafter maintain
a
segregated account held in trust in the name of the Securities Intermediary
(the
“Collection Account”), entitled “Collection Account,
_________________________________, as Indenture Trustee, in trust for Holders
of
the
[ ]
200__-[ ], Mortgage Backed Notes, Series 200_-__.” The
Collection Account shall relate solely to the Notes issued by the Issuer, and
funds deposited in the Collection Account shall not be commingled with any
other
monies.
(b) The
Collection Account shall be an Eligible Account. If an existing Collection
Account ceases to be an Eligible Account, the Trust Administrator shall
establish a new Collection Account that is an Eligible Account within [10]
days
and transfer all funds and investment property on deposit in such existing
Collection Account into such new Collection Account.
(c) The
Trust
Administrator shall give to the Servicer and the Indenture Trustee prior written
notice of the name and address of the depository institution at which the
Collection Account is maintained and the account number of such Collection
Account. The Trust Administrator shall take such actions as are necessary to
cause the depository institution holding the Collection Account to hold such
account in the name of the Indenture Trustee. On each Payment Date, the entire
amount on deposit in the Collection Account relating to the Mortgage Loans
(subject to permitted withdrawals set forth in Section 4.08), other than
amounts not included in Interest Remittance Amount or Principal Remittance
Amount to be paid to Noteholders for such Payment Date, shall be applied to
make
the requested payment of principal and/or interest on each class of
Notes.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and shall
deposit in the Collection Account on a daily basis, but not more than [two]
Business Days after receipt by the Servicer and retain therein, the following
collections received by the Servicer and payments made by the Servicer after
the
related Cut-off Date (other than scheduled payments of principal and interest
due on or before the related Cut-off Date), as applicable:
(1) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments and all Prepayment Premiums;
(2) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(3) all
Liquidation Proceeds (net of Liquidation Expenses);
(4) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 4.09(f) (other than proceeds to be held in the Escrow Account and
applied to the restoration and repair of the Mortgaged Property or released
to
the Mortgagor in accordance with Section 4.09(f));
(5) all
Condemnation Proceeds that are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with Section
4.09(i);
(6) with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of payment. Such deposit shall be made
from the Servicer’s own funds, without reimbursement therefor, up to a maximum
amount per month in the aggregate of the Servicing Fee, actually received for
such month for the Mortgage Loans;
(7) all
Advances made by the Servicer pursuant to Section 5.05;
(8) any
amounts received from the Seller, the Depositor or any other person giving
representations and warranties with respect to the Mortgage Loans, in connection
with the repurchase of any Mortgage Loan;
(9) any
amounts required to be deposited by the Servicer pursuant to Section 4.09(f)
in
connection with the deductible clause in any blanket hazard insurance
policy;
(10) any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds pursuant to Section 4.09(j); and
(11) any
other
amounts required to be deposited in the Collection Account pursuant to this
Agreement.
The
foregoing requirements for deposit into the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of the Servicing Fee, Prepayment
Interest Excess Amounts and Ancillary Income need not be deposited by the
Servicer into the Collection Account.
The
Servicer agrees that it shall not create, incur or subject any Mortgage Loans,
or any funds that are deposited in any Collection Account or Escrow Account,
or
any funds that otherwise are or may become due or payable to or for the benefit
of the Indenture Trustee, to any claim, lien, security interest, judgment,
levy,
writ of attachment or other encumbrance, nor assert by legal action or otherwise
any claim or right of setoff against any Mortgage Loan or any funds collected
on, or in connection with, a Mortgage Loan.
(d) Funds
in
the Collection Account may be invested by the Trust Administrator in Eligible
Investments selected by and at the written direction of the Trust Administrator,
which shall mature not later than [one] Business Day prior to the next Payment
Date (or on the Payment Date with respect to any Eligible Investment of the
Trust Administrator or any other fund managed or advised by it or any Affiliate)
and any such Eligible Investment shall not be sold or disposed of prior to
its
maturity. All such Eligible Investments shall be made in the name of the
Servicer in trust for the benefit of the Indenture Trustee and the Noteholders.
All income and gain realized from any Eligible Investment shall be for the
benefit of the Servicer and shall be subject to its withdrawal or order from
time to time, subject to Section 4.08 and shall not be part of the Trust Estate.
The amount of any losses incurred in respect of any such investments shall
be
deposited in such Collection Account by the Servicer out of its own funds,
without any right of reimbursement therefor, immediately as realized. The
foregoing requirements for deposit in the Collection Account are exclusive,
it
being understood and agreed that, without limiting the generality of the
foregoing, payments of interest on funds in the Collection Account and payments
in the nature of late payment charges, assumption fees and other incidental
fees
and charges relating to the Mortgage Loans need not be deposited by the Servicer
in the Collection Account and may be retained by the Servicer as additional
servicing compensation. If the Servicer deposits in the Collection Account
any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Collection Account.
Section
4.08. Application
of Funds in the Collection Account.
The
Trust Administrator may, from time to time, make, or cause to be made,
withdrawals from the Collection Account for the following purposes:
(i) to
reimburse the Servicer for any previously unreimbursed Advances or Servicing
Advances, such right to reimbursement pursuant to this subclause (i) being
limited to amounts received on or in respect of a particular Mortgage Loan
(including, for this purpose, Liquidation Proceeds, Condemnation Proceeds,
REO
Disposition Proceeds and amounts representing Insurance Proceeds with respect
to
the property subject to the related Mortgage) which represent late recoveries
(net of the applicable Servicing Fee) of payments of principal or interest
respecting which any such Advance was made, it being understood, in the case
of
any such reimbursement, that the Servicer’s right thereto shall be prior to the
rights of the Noteholders;
(ii) to
reimburse the Servicer following a final liquidation of a Mortgage Loan for
any
previously unreimbursed Advances made by any such party (A) that such party
determines in good faith will not be recoverable from amounts representing
late
recoveries of payments of principal or interest respecting the particular
Mortgage Loan as to which such Advance was made or from Liquidation Proceeds,
Condemnation Proceeds, REO Disposition Proceeds or Insurance Proceeds with
respect to such Mortgage Loan and/or (B) to the extent that such unreimbursed
Advances exceed the related Liquidation Proceeds or Insurance Proceeds, it
being
understood, in the case of each such reimbursement, that the Servicer’s right
thereto shall be prior to the rights of the Noteholders;
(iii) to
reimburse the Servicer from Liquidation Proceeds for Liquidation Expenses and
for amounts expended by it pursuant to Section 4.09(i) in good faith in
connection with the restoration of damaged property and, to the extent that
Liquidation Proceeds after such reimbursement exceed the unpaid principal
balance of the related Mortgage Loan, together with accrued and unpaid interest
thereon at the applicable Mortgage Rate less the applicable Servicing Fee Rate
for such Mortgage Loan to the Due Date next succeeding the date of its receipt
of such Liquidation Proceeds, to pay to the Servicer out of such excess the
amount of any unpaid assumption fees, late payment charges or other Mortgagor
charges on the related Mortgage Loan and to retain any excess remaining
thereafter as additional servicing compensation, it being understood, in the
case of any such reimbursement or payment, that such Servicer’s right thereto
shall be prior to the rights of the Noteholders;
(iv) to
pay to
the Depositor or the Seller or any other Person, as applicable, with respect
to
each Mortgage Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon and not
paid
on the date on which the related repurchase was effected, and to pay to the
applicable party any Advances and Servicing Advances to the extent specified
in
the definition of Purchase Price;
(v) to
the
extent not paid by the Servicer, to pay any Insurance Premium with respect
to a
Mortgage Loan;
(vi) to
pay to
the Servicer income earned on the investment of funds on deposit in the
Collection Account;
(vii) on
each
Payment Date, to make payment to the Noteholders in the amounts and in the
manner provided for in Section 5.02 for the related Payment Date (to the extent
collected by the Servicer);
(viii) on
each
Payment Date, to make payment to the Ownership Certificate, all Prepayment
Premiums received during the immediately preceding Prepayment
Period;
(ix) to
make
payment to itself, the Servicer, the Indenture Trustee, the Owner Trustee and
others pursuant to any provision of this Agreement, the Trust Agreement or
the
Indenture;
(x) to
withdraw funds deposited in error in the Collection Account;
(xi) to
clear
and terminate the Collection Account pursuant to Article VIII; and
(xii) to
reimburse a successor servicer (solely in its capacity as successor servicer),
for any fee or advance occasioned by a termination of the Servicer, and the
assumption of such duties by the Indenture Trustee as successor servicer or
a
successor servicer appointed by the Indenture Trustee pursuant to Section 7.01,
in each case to the extent not reimbursed by the terminated Servicer, it being
understood, in the case of any such reimbursement or payment, that the right
of
the Servicer or the Indenture Trustee thereto shall be prior to the rights
of
the Noteholders.
In
connection with withdrawals pursuant to subclauses (i) and (iv) above, the
Servicer’s or such other Person’s entitlement thereto is limited to collections
or other recoveries on the related Mortgage Loan. The Trust Administrator shall
therefore keep and maintain a separate accounting for each Mortgage Loan for
the
purpose of justifying any withdrawal from the Collection Account it maintains
pursuant to such subclauses.
Section
4.09. Servicing
of the Mortgage Loans.
(a) Establishment
of and Deposits to Escrow Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled
“_________________________ in trust for ____________________________________,
as
Indenture Trustee, for
[ ]
200__-[ ].” The Escrow Accounts shall be established with an
Eligible Institution. Nothing herein shall require the Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law. Funds
deposited in the Escrow Account may be drawn on by the Servicer in accordance
with Section 4.09(b). The creation of any Escrow Account shall be evidenced
by a letter agreement in the form of Exhibit D hereto. A copy of such
certification or letter agreement shall be furnished to the
Servicer.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 4.09(b).
The Servicer shall be entitled to retain any interest earnings paid on funds
deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To
the
extent required by law, the Servicer shall pay interest on escrowed funds to
the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing
or
the interest earnings paid thereon are insufficient for such
purposes.
(b) Permitted
Withdrawals from Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the Servicer
only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii) to
reimburse the Servicer for any Servicing Advance of an Escrow Payment made
by
the Servicer with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required to
be
escrowed under the terms of the related Mortgage Loan;
(iv) to
the
extent permitted by applicable law, for transfer to the Collection Account
and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with Section 4.09(i);
(vi) to
pay to
the Servicer, or any Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account; and
(vii) to
clear
and terminate the Escrow Account on the termination of this
Agreement.
The
Servicer will be responsible for the administration of the Escrow Accounts
and
will be obligated to make Servicing Advances to the Escrow Account in respect
of
its obligations under this 4.02(g), reimbursable from the Escrow Accounts or
Collection Account to the extent not collected from the related Mortgagor,
anything to the contrary notwithstanding, when and as necessary to avoid the
lapse of insurance coverage on the Mortgaged Property, or which the Servicer
knows, or in servicing the Mortgage Loans in accordance with the Servicing
Standard should know, is necessary to avoid the loss of the Mortgaged Property
due to a tax sale or the foreclosure as a result of a tax lien. If any such
payment has not been made and the Servicer receives notice of a tax lien with
respect to the Mortgage being imposed, the Servicer will advance or cause to
be
advanced funds (which will constitute a Servicing Advance) necessary to
discharge such lien on the Mortgaged Property in order to prevent loss of title
to the Mortgaged Property.
(c) Notification
of Adjustments.
On each
Adjustment Date, the Servicer shall make interest rate adjustments for each
Mortgage Loan in compliance with the requirements of the related Mortgage and
Mortgage Note and applicable regulations. The Servicer shall execute and deliver
the notices required by each Mortgage and Mortgage Note and applicable
regulations regarding interest rate adjustments. The Servicer also shall provide
timely notification to the Trustee of all applicable data and information
regarding such interest rate adjustments and the Servicer’s methods of
implementing such interest rate adjustments. Upon the discovery by the Servicer
or the Trustee that the Servicer has failed to adjust or has incorrectly
adjusted a Mortgage Rate or a monthly payment pursuant to the terms of the
related Mortgage Note and Mortgage, the Servicer shall immediately deposit
in
the Collection Account from its own funds the amount of any loss caused thereby
without reimbursement therefor; provided, however, the Servicer shall not be
liable with respect to any interest rate adjustments made by any servicer prior
to the Servicer.
(d) Payment
of Taxes, Insurance and Other Charges.
(i) With
respect to each Mortgage Loan which provides for Escrow Payments, the Servicer
shall maintain accurate records reflecting the status of ground rents, taxes,
assessments, water rates, sewer rents, and other charges which are or may become
a lien upon the Mortgaged Property and the status of fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) (“Property Charges”) and shall effect
payment thereof prior to the applicable penalty or termination date, employing
for such purpose deposits of the Mortgagor in the Escrow Account which shall
have been estimated and accumulated by the Servicer in amounts sufficient for
such purposes, as allowed under the terms of the Mortgage. The Servicer shall
effect timely payment of all such charges (which will constitute Servicing
Advances) irrespective of each Mortgagor’s faithful performance in the payment
of the same or the making of the Escrow Payments if necessary to avoid a lien
or
loss on the Mortgaged Property.
(ii) To
the
extent that a Mortgage does not provide for Escrow Payments, the Servicer shall
make Servicing Advances from its own funds to effect payment of all Property
Charges upon receipt of notice of any failure to pay on the part of the
Mortgagor, or at such other time as the Servicer determines to be in the best
interest of the Trust; provided,
that in
any event the Servicer shall pay such charges on or before any date by which
payment is necessary to preserve the lien status of the Mortgage. The Servicer
shall pay any late fee or penalty (which will constitute Servicing Advances)
which is payable due to any delay in payment of any Property Charge and
necessary to avoid a lien on or loss on Mortgage Property.
(e) Protection
of Accounts.
The
Servicer may transfer the Escrow Account to a different Eligible Institution
from time to time. Such transfer shall be made only upon obtaining the consent
of the Servicer, which consent shall not be unreasonably withheld.
The
Servicer shall bear any expenses, losses or damages sustained by the Indenture
Trustee if the Escrow Account is not an Eligible Accounts.
(f) Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the related Mortgaged Property are insured by
a
generally acceptable insurer acceptable under the Servicing Standard against
loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, in an amount
which is at least equal to the lesser of (i) the replacement value of the
improvements securing such Mortgage Loan and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan plus accrued interest thereon
and the good faith estimate of the Servicer of the related Liquidation Expenses
to be incurred in connection therewith and (b) an amount such that the proceeds
thereof shall be sufficient to prevent the Mortgagor or the loss payee from
becoming a co-insurer. The Servicer shall be under no obligation to require
any
Mortgagor to obtain earthquake or other additional insurance and shall be under
no obligation itself to maintain any such additional insurance on property
acquired in respect of a Mortgage Loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require
such
additional insurance.
If
upon
origination of the Mortgage Loan the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available), a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration shall be in effect with
a
generally acceptable insurance carrier acceptable under the Servicing Standard
in an amount representing coverage equal to the lesser of (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss
on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Servicer determines in accordance with applicable law and
pursuant to the Servicing Standard that a Mortgaged Property is located in
a
special flood hazard area and is not covered by flood insurance or is covered
in
an amount less than the amount required by the Flood Disaster Protection Act
of
1973, as amended, the Servicer shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails
to obtain the required flood insurance coverage within [thirty] days after
such
notification, the Servicer shall immediately force place the required flood
insurance on the Mortgagor’s behalf.
The
Servicer shall cause to be maintained on each Mortgaged Property such other
or
additional insurance as may be required pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance, or pursuant to the requirements of any private mortgage
guaranty insurer, or as may be required to conform with the Servicing
Standard.
In
the
event that the Servicer shall determine that the Mortgaged Property should
be
insured against loss or damage by hazards and risks not covered by the insurance
required to be maintained by the Mortgagor pursuant to the terms of the
Mortgage, the Servicer shall communicate and consult with the Mortgagor with
respect to the need for such insurance and bring to the Mortgagor’s attention
the desirability of protection of the Mortgaged Property.
All
policies required hereunder shall name the Servicer as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution, which
shall provide for at least [30] days’ prior written notice of any cancellation,
reduction in amount or material change in coverage.
The
Servicer shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent; provided, however,
that the
Servicer shall not accept any such insurance policies from insurance companies
unless such companies are generally acceptable under the Servicing Standard.
The
Servicer shall determine that such policies provide sufficient risk coverage
and
amounts, that they insure the property owner, and that they properly describe
the property address. The Servicer shall notify the Mortgagor of the expiration
of any such insurance and, prior to force placing any insurance, will permit
the
Mortgagor a grace period (not to exceed [60] days) to obtain renewal
coverage.
Pursuant
to Section 4.07, any amounts collected by the Servicer under any such policies
(other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Servicer’s normal servicing procedures) shall be deposited
in the Collection Account subject to withdrawal pursuant to Section
4.08.
(g) Maintenance
of Mortgage Impairment Insurance.
In the
event that the Servicer shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 4.09(f) and otherwise
complies with all other requirements of Section 4.09(f), it shall conclusively
be deemed to have satisfied its obligations as set forth in Section 4.09(f).
Any
amounts collected by the Servicer under any such policy relating to a Mortgage
Loan shall be deposited in the Collection Account subject to withdrawal pursuant
to Section 4.08. Such policy may contain a deductible clause, in which case,
in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 4.09(f), and there shall have been
a
loss which would have been covered by such policy, the Servicer shall deposit
in
the Collection Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to
deposited from the Servicer’s funds, without reimbursement therefor. Upon
request of the Indenture Trustee, the Servicer shall cause to be delivered
to
such person a certified true copy of such policy and a statement from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without [30] days’ prior written notice to the Indenture
Trustee.
(h) Inspections.
The
Servicer shall inspect the Mortgaged Property as often as deemed necessary
by
the Servicer to assure itself that the value of the Mortgaged Property is being
preserved. In addition, the Servicer shall inspect the Mortgaged Property and/or
take such other actions as may be necessary or appropriate in accordance with
the Servicing Standard or as may be required by the primary mortgage guaranty
insurer. The Servicer shall keep a written report of each such
inspection.
(i) Restoration
of Mortgaged Property.
The
Servicer need not obtain the approval of the Indenture Trustee prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor
to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with the Servicing Standard. At a minimum, the Servicer shall
comply with the following conditions in connection with any such release of
Insurance Proceeds or Condemnation Proceeds:
(i) the
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii) the
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens; and
(iii) pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
(j) Title,
Management and Disposition of REO Property.
In the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Indenture Trustee or its nominee (which shall include the Servicer)
in trust for the benefit of the Noteholders, or in the event the Indenture
Trustee is not authorized or permitted to hold title to real property in the
state where the REO Property is located, or would be adversely affected under
the “doing business” or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons as
shall be consistent with an Opinion of Counsel obtained by the Servicer (with
a
copy delivered to the Indenture Trustee) from any attorney duly licensed to
practice law in the state where the REO Property is located. The Person or
Persons holding such title other than the Indenture Trustee shall acknowledge
in
writing that such title is being held as nominee for the Indenture
Trustee.
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
Indenture Trustee solely for the purpose of its prompt disposition and sale.
The
Servicer, either itself or through an agent selected by the Servicer, shall
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Servicer shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Servicer deems
to
be in the best interest of the Issuer, the Indenture Trustee and the
Noteholders.
The
Servicer shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property and, to the extent
required and available under the Flood Disaster Protection Act of 1973, as
amended, flood insurance in the amount required above, which may be in the
form
of a blanket policy. Any amounts collected by the Servicer under any such policy
relating to a Mortgage Loan shall be deposited in the Collection Account subject
to withdrawal pursuant to Section 4.08. Such policy may contain a deductible
clause, in which case, in the event that there shall not have been maintained
on
the related Mortgaged Property a policy complying with Section 4.09(f), and
there shall have been a loss which would have been covered by such policy,
the
Servicer shall deposit in the Collection Account at the time of such loss the
amount not otherwise payable under the blanket policy because of such deductible
clause, such amount to deposited from the Servicer’s funds, without
reimbursement therefor.
The
proceeds of sale of the REO Property shall be promptly deposited in the
Collection Account. As soon as practical thereafter the expenses of such sale
shall be paid and the Servicer shall reimburse itself pursuant to Section 4.08
for any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to this Section or Section
5.05.
The
Servicer shall make Servicing Advances of all funds necessary for the proper
operation, management and maintenance of the REO Property, including the cost
of
maintaining any hazard insurance pursuant to Section 4.09(f), such advances
to
be reimbursed from the disposition or liquidation proceeds of the REO Property
or pursuant to Section 4.08(iii). The Servicer shall make monthly remittances
on
each Servicer Remittance Date of the net cash flow from the REO Property (which
shall equal the revenues from such REO Property net of the expenses described
in
this Section 4.09(j) and of any reserves reasonably required from time to time
to be maintained to satisfy anticipated liabilities for such
expenses).
(k) Liquidation
Reports.
Upon
the foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Indenture Trustee pursuant to a deed in lieu of foreclosure, the Servicer shall
submit to the Indenture Trustee a monthly liquidation report with respect to
such Mortgaged Property.
(l) Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following the foreclosure sale or abandonment of any Mortgaged Property, the
Servicer shall report such foreclosure or abandonment as required pursuant
to
Section 6050J of the Code.
(m) Prepayment
Premiums.
The
Servicer or any designee of the Servicer shall not waive any Prepayment Premium
with respect to any Mortgage Loan that contains a Prepayment Premium and that
prepays during the term of the premium. If the Servicer or its designee fails
to
collect the Prepayment Premium upon any prepayment of any Mortgage Loan that
contains a Prepayment Premium, the Servicer shall pay to the Trust Administrator
at such time (by deposit to the Collection Account) an amount equal to amount
of
the Prepayment Premium that was not collected. Notwithstanding the above, the
Servicer or its designee may waive a Prepayment Premium without paying the
Issuer the amount of the Prepayment Premium if (i) the Mortgage Loan is in
default (defined as [61] days or more delinquent) and such waiver would maximize
recovery of total proceeds taking into account the value of such Prepayment
Premium and the related Mortgage Loan or (ii) if the prepayment is not a result
of a refinancing by the Servicer or any of its affiliates and the Mortgage
Loan
is foreseen to be in default and such waiver would maximize recovery of total
proceeds taking into account the value of such Prepayment Premium and the
related Mortgage Loan or (iii) the collection of the Prepayment Premium would
be
in violation of applicable federal, state or local laws or would be deemed
“predatory” thereunder.
(n) Compliance
with Safeguarding Customer Information Requirements.
The
Servicer has implemented and will maintain security measures designed to meet
the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information published in final form on February 1, 2001,
66 Fed. Reg. 8616, and the rules promulgated thereunder, as amended from time
to
time (the “Guidelines”).
(o) Presentment
of Claims and Collection of Proceeds.
The
Servicer shall prepare and present on behalf of the Indenture Trustee and the
Noteholders all claims under the Insurance Policies with respect to the Mortgage
Loans, and take such actions (including the negotiation, settlement, compromise
or enforcement of the insured’s claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Servicer in respect of such
policies or bonds shall be promptly deposited in the Collection Account upon
receipt, except that any amounts realized that are to be applied to the repair
or restoration of the related Mortgaged Property as a condition requisite to
the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
(p) [Reserved].
(q) Due
Dates Other Than the First of the Month.
Mortgage Loans having Due Dates other than the first day of a month shall be
accounted for as described in this Section 4.09(q). Any Scheduled Payment due
on
a day other than the first day of each month shall be considered due on the
first day of the month following the month in which that payment is due as
if
such payment were due on the first day of that month. For example, a Scheduled
Payment due on August 15 shall be considered to be due on September 1. Any
Scheduled Payment due and collected on a Mortgage Loan after the Cut-off Date
shall be deposited in the Collection Account. For Mortgage Loans with Due Dates
on the first day of a month, deposits to the Collection Account begin with
the
Scheduled Payment due on the first of the month following the Cut-off
Date.
(r) Credit
Reporting.
For
each Mortgage Loan, in accordance with its current servicing practices, the
Servicer will accurately and fully report its underlying borrower credit files
to each of the following credit repositories or their successors: Equifax Credit
Information Services, Inc., Trans Union, LLC and Experian Information Solution,
Inc., on a monthly basis in a timely manner.
Section
4.10. Reports
to Trust Administrator.
Not
more
than [75] days after the end of each calendar year, commencing December 31,
200_, the Servicer shall provide (as such information becomes reasonably
available to the Servicer) to the Trust Administrator such information
concerning the Mortgage Loans as is necessary for the Trust Administrator to
prepare the reports required by Section 4.11(c). Such obligation of the Servicer
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Servicer to the Trust
Administrator pursuant to any requirements of the Code as from time to time
are
in force. The Servicer shall also provide to the Trust Administrator such
information as may be requested by it and required for the completion of any
tax
reporting responsibility of the Trust Administrator within such reasonable
time
frame as shall enable the Trust Administrator to timely file each Schedule
Q (or
other applicable tax report or return) required to be filed by it.
Section
4.11. Reports
to Indenture Trustee and Noteholders.
(a) On
each
Payment Date, the Trust Administrator shall make available to the Indenture
Trustee and each Noteholder, a report setting forth the following information
(on the basis of Mortgage Loan level information obtained from the
Servicer):
(i) the
aggregate amount of the payment to be made on such Payment Date to the Holders
of each Class of Notes, to the extent applicable, allocable to principal on
the
Mortgage Loans, including Liquidation Proceeds and Insurance Proceeds, stating
separately the amount attributable to scheduled principal payments and
unscheduled payments in the nature of principal;
(ii) the
aggregate amount of the payment to be made on such Payment Date to the Holders
of each Class of Notes allocable to interest and the calculation
thereof;
(iii) the
amount, if any, of any payment to the Holder of the Ownership
Certificate;
(iv)
(A) the
aggregate amount of any Advances required to be made by or on behalf of the
Servicer with respect to such Payment Date, (B) the aggregate amount of such
Advances actually made, and (C) the amount, if any, by which (A) above exceeds
(B) above;
(v) the
total
number of Mortgage Loans, the aggregate Stated Principal Balance of all the
Mortgage Loans as of the close of business on the last day of the related
Collection Period, after giving effect to payments allocated to principal
reported under clause (i) above;
(vi) the
Class
Principal Amount of each Class of Notes, to the extent applicable, as of such
Payment Date after giving effect to payments allocated to principal reported
under clause (i) above;
(vii) the
amount of all Prepayment Premiums distributed to the Ownership
Certificate;
(viii) the
amount of any Realized Losses incurred with respect to the Mortgage Loans (x)
in
the applicable Prepayment Period and (y) in the aggregate since the Cut-off
Date;
(ix) the
amount of the Servicing Fee paid during the Collection Period to which such
payment relates;
(x) the
number and aggregate Stated Principal Balance of Mortgage Loans, as reported
to
the Trust Administrator by the Servicer, (a) remaining outstanding, (b)
delinquent 30 to 59 days on a contractual basis, (c) delinquent 60 to 89 days
on
a contractual basis, (d) delinquent 90 or more days on a contractual basis,
(e)
as to which foreclosure proceedings have been commenced as of the close of
business on the last Business Day of the calendar month immediately preceding
the month in which such Payment Date occurs, (f) in bankruptcy and (g) that
are
REO Properties;
(xi) the
aggregate Stated Principal Balance of any Mortgage Loans with respect to which
the related Mortgaged Property became an REO Property as of the close of
business on the last Business Day of the calendar month immediately preceding
the month in which such Payment Date occurs;
(xii) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Stated Principal Balance of each Deleted Mortgage Loan and of each Qualifying
Substitute Mortgage Loan;
(xiii) the
aggregate outstanding Basis Risk Shortfalls and Unpaid Basis Risk Shortfalls,
if
any, for each Class of Notes, after giving effect to the payments made on such
Payment Date;
(xiv) the
Note
Interest Rate applicable to such Payment Date with respect to each Class of
Notes;
(xv) the
Interest Remittance Amount and the Principal Remittance Amount applicable to
such Payment Date;
(xvi) if
applicable, the amount of any shortfall (i.e.,
the
difference between the aggregate amounts of principal and interest which
Noteholders would have received if there were sufficient available amounts
in
the Collection Account and the amounts actually paid);
(xvii) any
Overcollateralization Deficiency Amount after giving effect to the payments
made
on such Payment Date; and
(xviii) LIBOR
with respect to such Payment Date.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vi) above,
the amounts shall (except in the case of the report delivered to the holder
of
the Ownership Certificate) be expressed as a dollar amount per $[1,000] of
original principal amount of Notes.
The
Trust
Administrator will make such report and additional loan level information (and,
at its option, any additional files containing the same information in an
alternative format) available each month to the Rating Agencies and Noteholders
via the Trust Administrator’s website. The Trust Administrator’s website can be
accessed at ______________. Assistance in using the website can be obtained
by
calling the Trust Administrator’s customer service desk at ________________.
Such parties that are unable to use the website are entitled to have a paper
copy mailed to them via first class mail by notifying the Trust Administrator
at
____________________, ________________________ (or for overnight deliveries
at
_________________________), and indicating such. The Trust Administrator shall
have the right to change the way such statements are distributed in order to
make such distribution more convenient and/or more accessible to the above
parties and the Trust Administrator shall provide timely and adequate
notification to all above parties regarding any such changes.
The
foregoing information and reports shall be prepared and determined by the Trust
Administrator based solely on Mortgage Loan data provided to the Trust
Administrator by the Servicer (in a format agreed to by the Trust Administrator
and the Servicer) no later than the Payment Date. In preparing or furnishing
the
foregoing information, the Trust Administrator and the Servicer shall be
entitled to rely conclusively on the accuracy of the information or data
regarding the Mortgage Loans and the related REO Property that has been provided
to the Servicer, and neither the Trust Administrator nor the Servicer shall
be
obligated to verify, recompute, reconcile or recalculate any such information
or
data. The Trust Administrator, the Indenture Trustee and the Servicer shall
be
entitled to conclusively rely on all of such data and information provided
to
the Servicer and shall have no liability for any errors in such data or
information.
(b) Upon
the
reasonable advance written request of any Noteholder that is a savings and
loan,
bank or insurance company, which request, if received by the Indenture Trustee
shall be forwarded promptly to the Trust Administrator, the Trust Administrator
shall provide, or cause to be provided (or, to the extent that such information
or documentation is not required to be provided by the Servicer, shall use
reasonable efforts to obtain such information and documentation from the
Servicer), to such Noteholder such reports and access to information and
documentation regarding the Mortgage Loans as such Noteholder may reasonably
deem necessary to comply with applicable regulations of the Office of Thrift
Supervision or its successor or other regulatory authorities with respect to
an
investment in the Notes; provided, however,
that the
Trust Administrator shall be entitled to be reimbursed by such Noteholder for
actual expenses incurred in providing such reports and access.
(c) Within
[90] days, or such shorter period as may be required by statute or regulation,
after the end of each calendar year, the Trust Administrator shall have prepared
and shall make available to each Person who at any time during the calendar
year
was a Noteholder of record, and make available to Security Owners (identified
as
such by the Clearing Agency) in accordance with applicable regulations, a report
summarizing the items provided to the Noteholders pursuant to Section 4.11(a)
on
an annual basis as may be required to enable such Holders to prepare their
federal income tax returns; provided, however,
that
this Section 4.11(c) shall not be applicable where relevant reports or summaries
are required elsewhere in this Agreement. Such information shall include the
amount of original issue discount accrued on each Class of Notes and information
regarding the expenses of the Issuer. The Trust Administrator shall be deemed
to
have satisfied such requirement if it forwards such information in any other
format permitted by the Code. The Servicer shall provide the Trust Administrator
with such information as is necessary for the Trust Administrator to prepare
such reports.
(d) The
Trust
Administrator shall furnish any other information that is required by the Code
and regulations thereunder to be made available to Noteholders. The Servicer
shall provide the Trust Administrator with such information as is necessary
for
the Trust Administrator to prepare such reports (and the Trust Administrator
may
rely solely upon such information).
Section
4.12. Transfers
of Mortgaged Property.
The
Servicer shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Servicer shall, to the extent
it has knowledge of such conveyance, exercise its rights to accelerate the
maturity of such Mortgage Loan under the “due-on-sale” clause applicable
thereto; provided,
however,
that
the Servicer shall not exercise such rights if prohibited by law from doing
so.
If
the
Servicer reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Servicer shall enter into (i) an assumption and
modification agreement with the person to whom such property has been conveyed
pursuant to which such person becomes liable under the Mortgage Note and the
original Mortgagor remains liable thereon or (ii) in the event the Servicer
is
unable under applicable law to require that the original Mortgagor remain liable
under the Mortgage Note and the Servicer has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the seller
of the Mortgaged Property pursuant to which the original Mortgagor is released
from liability and the buyer of the Mortgaged Property is substituted as
Mortgagor and becomes liable under the Mortgage Note. In connection with any
such assumption, neither the Mortgage Rate borne by the related Mortgage Note,
the timing of principal or interest payments on the Mortgage Loan, the term
of
the Mortgage Loan nor the outstanding principal amount of the Mortgage Loan
shall be changed.
To
the
extent that any Mortgage Loan is assumable, the Servicer shall inquire
diligently into the creditworthiness of the proposed transferee, and shall
use
the underwriting criteria for approving the credit of the proposed transferee
which are used by the Servicer, its affiliates or Xxxxxx Xxx with respect to
underwriting mortgage loans of the same type as the Mortgage Loans. If the
credit of the proposed transferee does not meet such underwriting criteria,
the
Servicer diligently shall, to the extent permitted by the Mortgage or the
Mortgage Note and by applicable law, accelerate the maturity of the Mortgage
Loan.
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 any assumption which the Servicer may be restricted by
law
from preventing, for any reason whatsoever.
Section
4.13. Termination
for Cause.
Any
of
the following occurrences shall constitute an event of default (each, a
“Servicer Event of Default”) on the part of the Servicer:
(1) any
failure by the Servicer to remit any payment required to be made under the
terms
of this Agreement which continues unremedied for a period of [two] Business
Days
after the date upon which written notice of such failure, requiring the same
to
be remedied, shall have been given to the Servicer by the [____];
or
(2) failure
by the Servicer duly to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Servicer set forth in this
Agreement (except with respect to a failure related to a Limited Exchange Act
Reporting Obligation) which continues unremedied for a period of [30] days
after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the [____]; provided that
the
[thirty-day] cure period shall not apply to the failure to comply with the
requirements set forth in Section 10.04, Section 4.28 (with respect to notice
to
the Depositor), Section 4.29 (with respect to notice to the Depositor) or
Article X, for which the grace period shall not exceed the lesser of 10 calendar
days or such period in which the applicable Exchange Act Report can be filed
timely (without taking into account any extensions); or
(3) failure
by the Servicer to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Properties are located
except where the failure to so maintain such license does not have a material
adverse effect on the Servicer’s ability to service the Mortgage Loans;
or
(4) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of
its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of [60]
days;
or
(5) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property; or
(6) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit of
its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for [three] Business Days; or
(7) the
Servicer ceases to be a FHA Approved Mortgagee; or
(8) the
Servicer attempts to assign the servicing of the Mortgage Loans or its right
to
servicing compensation hereunder or the Servicer or attempts to assign this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof in a manner not permitted under this Agreement;
or
(9) the
net
worth of the Servicer shall be less than $[15,000,000]; or
(10) failure
by the Servicer to duly perform, within the required time period, its
obligations under Section 10.04 which failure continues unremedied for a period
of [7] days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
[____].
In
the
event of a Servicer Event of Default related to the obligations set forth in
Section 10.04, Section 4.28 (with respect to notice to the Depositor), Section
4.29 (with respect to notice to the Depositor) and Article X, the Servicer
may
only be terminated at the direction of the Depositor.
Upon
receipt by the Servicer of such written termination notice, all authority and
power of the Servicer, under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in a successor servicer
appointed by [____], in accordance with Section [____]. Upon written
request from the [____], the Servicer shall prepare, execute and deliver to
the
successor servicer any and all documents and other instruments, place in such
successor’s possession all Servicing Files, 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, at the Servicer’s sole
expense. The Servicer shall cooperate with the Seller, the Indenture Trustee
and
such successor in effecting the termination of the Servicer’s responsibilities
and rights hereunder, including without limitation, the transfer to such
successor for administration by it of all cash amounts which shall at the time
be credited by the Servicer to the Collection Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
The
Depositor shall not be entitled to terminate the rights and obligations of
the
Servicer pursuant to subparagraph (2) if a failure of the Servicer to identify
a
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB was attributable solely to the role or functions
of
such Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
Section
4.14. Assumption
of Servicing by Indenture Trustee, Successor to Servicer.
(a) In
the
event the Servicer shall for any reason no longer be the Servicer (including
by
reason of any Servicer Event of Default under Section 7.01 of this Agreement),
the Indenture Trustee shall thereupon assume all of the rights and obligations
of such Servicer hereunder. The Indenture Trustee, its designee or any successor
servicer appointed by the Indenture Trustee shall be deemed to have assumed
all
of the Servicer’s interest herein, except that the Servicer shall not thereby be
relieved of any liability or obligations of the Servicer accruing prior to
its
replacement as Servicer, and shall be liable to the Indenture Trustee, and
hereby agrees to indemnify and hold harmless the Indenture Trustee from and
against all costs, damages, expenses and liabilities (including reasonable
attorneys’ fees) incurred by the Indenture Trustee as a result of such liability
or obligations of the Servicer and in connection with the Indenture Trustee’s
assumption (but not its performance, except to the extent that costs or
liability of the Indenture Trustee are created or increased as a result of
negligent or wrongful acts or omissions of the Servicer prior to its replacement
as Servicer) of the Servicer’s obligations, duties or responsibilities
thereunder.
(b) Any
successor servicer shall have the characteristics set forth in clauses (i)
and
(ii) of the second paragraph of Section 4.28 and shall succeed to all rights
and
assume all of the responsibilities, duties and liabilities of the Servicer
under
this Agreement simultaneously with the termination of the Servicer’s
responsibilities, duties and liabilities under this Agreement. Any successor
to
the Servicer shall be subject to the approval of the Indenture Trustee. Any
approval of a successor servicer by the Indenture Trustee, shall, if the
successor servicer is not at that time a servicer of other Mortgage Loans for
the Trust, be conditioned upon the receipt by the Seller, the Indenture Trustee
and the Trust Administrator of a letter from each Rating Agency to the effect
that such transfer of servicing will not result in a qualification, withdrawal
or downgrade of the then-current rating of any of the Notes. At least 15
calendar days prior to the effective date of any such appointment, (x) the
Indenture Trustee shall provide written notice to the Depositor of such
successor pursuant to this Section 4.14 and (y) such successor servicer
shall provide to the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02
of
Form 8-K with respect to a successor servicer. In the event that the Servicer’s
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Servicer shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement (including continuing to make Advances during such transition period
pursuant to Section 5.05) and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its successor. The
resignation or removal of the Servicer pursuant to the aforementioned sections
shall not become effective until a successor shall be appointed pursuant to
this
Section 4.14(a) and shall in no event relieve the Servicer of the
representations and warranties made pursuant to Sections 4.02 and the remedies
available to the Indenture Trustee and the Seller under Sections 4.14(b)
and 4.02(b) and (c), it being understood and agreed that the provisions of
such
Sections 4.14(b) and 4.02(b) and (c)] shall be applicable to the Servicer
notwithstanding any such resignation or termination of the Servicer, or the
termination of this Agreement. No successor servicer shall be responsible for
the lack of information and/or documents that it cannot otherwise obtain through
reasonable efforts.
Within
a
reasonable period of time, but in no event later than [30] days following the
appointment of a successor entity, the Servicer shall prepare, execute and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, 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 of any
Mortgage Notes and the related documents. The Servicer shall cooperate with
the
Indenture Trustee or the Seller, as applicable, and such successor in effecting
the termination of the Servicer’s responsibilities and rights hereunder and the
transfer of servicing responsibilities to the successor Servicer, including
without limitation, the transfer to such successor for administration by it
of
all cash amounts which shall at the time be credited by the Servicer to the
Escrow Account or thereafter received with respect to the Mortgage
Loans.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Indenture Trustee, the Servicer, the Trust Administrator and the Seller
an
instrument (i) accepting such appointment, wherein the successor shall make
the
representations and warranties set forth in Section 4.02(a) and provide for
the
same remedies set forth in such Section herein and (ii) an assumption of the
due
and punctual performance and observance of each covenant and condition to be
performed and observed by the Servicer under this Agreement, whereupon such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Servicer or termination of this Agreement pursuant to
Sections 4.02, 4.28 and 4.13 shall not affect any claims that the Seller,
the Indenture Trustee or the Trust Administrator may have against the Servicer
arising out of the Servicer’s actions or failure to act prior to any such
termination or resignation.
The
Servicer shall deliver promptly to the successor servicer the funds in the
Escrow Account(s) and all Mortgage Loan documents and related documents and
statements held by it hereunder and the Servicer shall account for all funds
and
shall execute and deliver such instruments and do such other things as may
reasonably be required to more fully and definitively vest in the successor
all
such rights, powers, duties, responsibilities, obligations and liabilities
of
the Servicer.
Upon
a
successor’s acceptance of appointment as such, it shall notify the Indenture
Trustee, the Trust Administrator, the Seller and the Depositor of such
appointment.
(c) Costs.
The
Seller shall pay the legal fees and expenses of its attorneys. Costs and
expenses incurred in connection with the transfer of the servicing
responsibilities, including fees for delivering Servicing Files, shall be paid
by (i) the terminated or resigning Servicer if such termination or resignation
is a result of an occurrence of a termination event under Section 4.02(b)
or 4.13, and (ii) to the extent not paid by such Servicer, and in all other
cases, by the Trust.
Section
4.15. [Reserved]
Section
4.16. Release
of Mortgage Files.
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the Servicer of a notification that payment in full has been or will be
escrowed in a manner customary for such purposes, the Servicer will promptly
notify the Indenture Trustee by a certification (which certification shall
include a statement to the effect that all amounts received in connection with
such payment that are required to be deposited in the Collection Account
maintained by the Trust Administrator pursuant to Section 4.07 have been or
will
be so deposited) of a Servicing Officer and shall request the Indenture Trustee
to deliver to the Servicer the related Mortgage File. Upon receipt of such
certification and request, the Indenture Trustee shall promptly release the
related Mortgage File to the Servicer and the Indenture Trustee shall have
no
further responsibility with regard to such Mortgage File. Upon any such payment
in full, the Servicer is authorized to give, as agent for the Indenture Trustee,
as the mortgagee under the Mortgage that secured the Mortgage Loan, an
instrument of satisfaction (or assignment of mortgage without recourse)
regarding the Mortgaged Property subject to the Mortgage, which instrument
of
satisfaction or assignment, as the case may be, shall be delivered to the Person
or Persons entitled thereto against receipt therefor of such payment, it being
understood and agreed that no expenses incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, the Indenture Trustee shall execute such documents as shall be prepared
and furnished to the Indenture Trustee by the Servicer (in a form reasonably
acceptable to the Indenture Trustee) and as are necessary for the prosecution
of
any such proceedings. The Indenture Trustee shall, upon request of the Servicer
and delivery to the Indenture Trustee of a trust receipt signed by a Servicing
Officer, release the related Mortgage File held in its possession or control
to
the Servicer. Such trust receipt shall obligate the Servicer to return the
Mortgage File to the Indenture Trustee when the need therefor by the Servicer
no
longer exists unless the Mortgage Loan shall be liquidated, in which case,
upon
receipt of a certificate of a Servicing Officer similar to that hereinabove
specified, the trust receipt shall be released by the Indenture Trustee to
the
Servicer.
Section
4.17. Documents,
Records and Funds in Possession of Servicer To Be Held for Indenture
Trustee.
(a) The
Servicer shall transmit to the Indenture Trustee such documents and instruments
coming into the possession of the Servicer from time to time as are required
by
the terms hereof to be delivered to the Indenture Trustee. Any funds received
by
the Servicer in respect of any Mortgage Loan or which otherwise are collected
by
the Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan shall be held for the benefit of the Indenture Trustee and the
Noteholders subject to the Servicer’s right to retain or withdraw amounts
provided in this Agreement and to retain its Servicing Fee and other amounts
as
provided herein. The Servicer shall provide access to information and
documentation regarding the Mortgage Loans to the Indenture Trustee, their
respective agents and accountants at any time upon reasonable request and during
normal business hours, and to Noteholders that are savings and loan
associations, banks or insurance companies, the Office of Thrift Supervision,
the FDIC and the supervisory agents and examiners of such Office and Corporation
or examiners of any other federal or state banking or insurance regulatory
authority if so required by applicable regulations of the Office of Thrift
Supervision or other regulatory authority, such access to be afforded without
charge but only upon reasonable request in writing and during normal business
hours at the offices of the Servicer designated by it. In fulfilling such a
request the Servicer shall not be responsible for determining the sufficiency
of
such information.
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Servicer, in respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, shall be held by the Servicer for and on behalf of the Indenture
Trustee as the Indenture Trustee’s agent and bailee for purposes of perfecting
the Indenture Trustee’s security interest therein as provided by relevant
Uniform Commercial Code or laws; provided, however,
that the
Servicer shall be entitled to setoff against, and deduct from, any such funds
any amounts that are properly due and payable to the Servicer under this
Agreement and shall be authorized to remit such funds to the Trust Administrator
in accordance with this Agreement.
(c) The
Servicer hereby acknowledges that concurrently with the execution of this
Agreement, the Indenture Trustee shall own or, to the extent that a court of
competent jurisdiction shall deem the conveyance of the Mortgage Loans from
the
Seller to the Depositor not to constitute a sale, the Indenture Trustee shall
have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds and investment property now
or
hereafter held by, or under the control of, the Servicer that are collected
by
the Servicer in connection with the Mortgage Loans, whether as scheduled
installments of principal and interest or as full or partial prepayments of
principal or interest or as Liquidation Proceeds or Insurance Proceeds or
otherwise, and in all proceeds of the foregoing and proceeds of proceeds (but
excluding any fee or other amounts to which the Servicer is entitled to
hereunder); and the Servicer agrees that so long as the Mortgage Loans are
assigned to and held by the Indenture Trustee, all documents or instruments
constituting part of the Mortgage Files, and such funds relating to the Mortgage
Loans which come into the possession or custody of, or which are subject to
the
control of, the Servicer shall be held by the Servicer for and on behalf of
the
Indenture Trustee as the Indenture Trustee’s agent and bailee for purposes of
perfecting the Indenture Trustee’s security interest therein as provided by the
applicable Uniform Commercial Code or other applicable laws.
Section
4.18. Opinion.
On or
before the Closing Date, the Servicer shall cause to be delivered to the
Depositor, the Seller, the Indenture Trustee, the Issuer and the Trust
Administrator one or more Opinions of Counsel, dated the Closing Date, in form
and substance reasonably satisfactory to the Depositor, as to the due
authorization, execution and delivery of this Agreement by the Servicer and
the
enforceability thereof.
Section
4.19. [Reserved]
Section
4.20. [Reserved]
Section
4.21. [Reserved]
Section
4.22. Indenture
Trustee To Retain Possession of Certain Insurance Policies and
Documents.
The
Indenture Trustee shall retain possession and custody of the originals of the
primary mortgage insurance policies or certificate of insurance if applicable
and any certificates of renewal as to the foregoing as may be issued from time
to time as contemplated by this Agreement. Until all amounts payable in respect
of the Notes have been paid in full and the Servicer otherwise has fulfilled
its
obligations under this Agreement, the Indenture Trustee shall also retain
possession and custody of each Mortgage File in accordance with and subject
to
the terms and conditions of this Agreement. The Servicer shall promptly deliver
or cause the Servicer to deliver to the Indenture Trustee, upon the execution
or
receipt thereof the originals of the primary mortgage insurance policies and
any
certificates of renewal thereof, and such other documents or instruments that
constitute portions of the Mortgage File that come into the possession of the
Servicer from time to time.
Section
4.23. Compensation
to the Servicer.
[Pursuant to Section 4.07(d), all income and gain realized from any investment
of funds in the Collection Account shall be for the benefit of the Servicer
as
compensation. Notwithstanding the foregoing, the Servicer shall deposit in
the
Collection Account, on or before the related Payment Date, an amount equal
to
the lesser of (i) its servicing compensation with respect to such Payment
Date and (ii) the amount of any Compensating Interest Payment required to be
paid by the Servicer with respect to such Payment Date pursuant to this
Agreement. [As consideration for servicing the Mortgage Loans subject to this
Agreement, the Servicer shall be paid in the aggregate the relevant Servicing
Fee for each Mortgage Loan remaining subject to this Agreement during any month
or part thereof. Such Servicing Fee shall be payable monthly and retained by
the
Servicer, or as otherwise provided in Section 4.08(i)]. The obligation of the
Issuer to pay the Servicing Fee is limited to, and the Servicing Fee is payable
from, the interest portion (including recoveries with respect to interest from
Liquidation Proceeds) of such Scheduled Payment collected by the Servicer,
or as
otherwise provided in Section 4.08(i). Additional servicing compensation in
the
form of Ancillary Income shall be retained by the Servicer and is not required
to be deposited in the Collection Account.
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
thereof except as specifically provided for herein.
The
Servicing Fee payable to or retained by the Servicer with respect to any
Collection Period shall be reduced by the aggregate Prepayment Interest
Shortfall Amount for the related Prepayment Period required to be deposited
in
the Collection Account on the related Servicer Remittance Date. The Servicer
shall be obligated to remit on each Servicer Remittance Date the aggregate
Prepayment Interest Shortfall Amount, only up to an amount equal to in the
aggregate the Servicing Fee the Servicer is entitled to receive for such
Collection Period.] The Servicer shall be required to pay all expenses incurred
by it in connection with its activities hereunder and shall not be entitled
to
reimbursement therefor except as provided in this Agreement.]
Section
4.24. [Reserved]
Section
4.25. Reports
to the Indenture Trustee.
(a) Not
later
than [30] days after each Payment Date, the Trust Administrator shall, upon
request, forward to the Indenture Trustee a statement, deemed to have been
certified by a officer of the Trust Administrator, setting forth the status
of
the Collection Account maintained by the Trust Administrator as of the close
of
business on the related Payment Date, indicating that all payments required
by
this Agreement to be made by the Trust Administrator have been made (or if
any
required payment has not been made by the Trust Administrator, specifying the
nature and status thereof) and showing, for the period covered by such
statement, the aggregate of deposits into and withdrawals from the Collection
Account maintained by the Trust Administrator. Copies of such statement shall
be
provided by the Trust Administrator, upon request, to the Depositor, Attention:
_______ 200_-__ and any Noteholders (or by the Indenture Trustee at the Trust
Administrator’s expense if the Trust Administrator shall fail to provide such
copies to the Noteholders (unless (i) the Trust Administrator shall have failed
to provide the Indenture Trustee with such statement or (ii) the Indenture
Trustee has no actual knowledge of the Trust Administrator’s failure to provide
such statement)).
(b) Not
later
than [two] Business Days following each Payment Date, the Trust Administrator
shall deliver to one Person designated by the Depositor, in a format consistent
with other electronic loan level reporting supplied by the Servicer in
connection with similar transactions, “loan level” information with respect to
the Mortgage Loans as of the related Determination Date, to the extent that
such
information has been provided to the Servicer or by the Depositor.
(c) All
information, reports and statements prepared by the Servicer under this
Agreement shall be based on information supplied to the Servicer without
independent verification thereof and the Servicer shall be entitled to rely
on
such information.
Section
4.26. Annual
Officer’s Certificate as to Compliance.
(a) The
Servicer shall deliver to the Indenture Trustee and the Depositor no later
than
the 15th
of March
of each calendar year, commencing in March 200_, an Officer’s Certificate,
certifying that with respect to the period ending on the immediately preceding
December 31: (i) a review of the activities of such Person during the preceding
calendar year or portion thereof has been made under such Servicing Officer’s
supervision and (ii) to the best of such Servicing Officer’s knowledge, based on
such review, such Person has fulfilled its obligations under this Agreement
in
all material respects throughout such year, or, if there has been a failure
to
fulfill any such obligation in any material respect, specifying each such
failure known to such Servicing Officer and the nature and status
thereof.
(b) Copies
of
such statements shall be provided to any Noteholder upon request, by the
Servicer or by the Indenture Trustee at the Servicer’s expense if the Servicer
failed to provide such copies (unless (i) the Servicer shall have failed to
provide the Indenture Trustee with such statement or (ii) the Indenture Trustee
has no actual knowledge of the Servicer’s failure to provide such
statement).
Section
4.27. Inspection.
The
Servicer shall provide the Indenture Trustee, upon [five] Business Days’ advance
notice, during normal business hours, access to all records maintained by the
Servicer in respect of its rights and obligations hereunder and reasonable
access to officers of the Servicer responsible for such obligations. Upon
request, the Servicer shall furnish to the Indenture Trustee its most recent
publicly available financial statements and such other information relating
to
its capacity to perform its obligations under this Agreement. Notwithstanding
anything to the contrary in this Section 4.27, nothing in this Agreement
shall limit the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of the Servicer to provide access as provided in this Section 4.27 as a
result of such obligation shall not constitute a breach of this
Section 4.27.
Section
4.28. Merger
or Consolidation.
Any
Person into which the Servicer may be merged or consolidated, or any Person
resulting from any merger, conversion, other change in form or consolidation
to
which the Servicer shall be a party, or any Person succeeding to the business
of
the Servicer, shall be the successor to the Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided, however,
that the
successor or resulting Person to the Servicer shall be a Person that shall
be
qualified and approved (or that have an Affiliate that is qualified and
approved) to service mortgage loans for Xxxxxx Xxx or FHLMC and shall have
a net
worth of not less than $[15,000,000].
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Servicer, the Servicer shall provide (x) written notice to the Depositor of
any
successor pursuant to this Section and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to the resignation of the Servicer.
Section
4.29. Resignation
of Servicer.
Except
as otherwise provided in Sections 4.28 and this Section 4.29 hereof, the
Servicer shall not resign from the obligations and duties hereby imposed on
it
unless it determines that the Servicer’s duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it and cannot be cured.
Any such determination permitting the resignation of the Servicer shall be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Indenture Trustee. No such resignation shall become effective
until (a) the Indenture Trustee shall have assumed, or a successor servicer
shall have been appointed by the Indenture Trustee and until such successor
shall have assumed, the Servicer’s responsibilities and obligations under this
Agreement and (b) the Depositor shall have received the information described
in
the following sentence. As a condition to the effectiveness of any such
resignation, at least 15 calendar days prior to the effective date of such
resignation, the Servicer shall provide (x) written notice to the Depositor
of
any successor pursuant to this Section and (y) in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
requested by the Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to a successor servicer. Notice of
such
resignation shall be given promptly by the Servicer and the Depositor to the
Indenture Trustee.
Section
4.30. Assignment
or Delegation of Duties by the Servicer.
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,
unless the Indenture Trustee and the Depositor shall have consented to such
action; provided, however,
that the
Servicer shall have the right without the prior written consent of the Indenture
Trustee or the Depositor to delegate or assign to or subcontract with or
authorize or appoint an Affiliate of the Servicer to perform and carry out
any
duties, covenants or obligations to be performed and carried out by the Servicer
hereunder. In no case, however, shall any such delegation, subcontracting or
assignment to an Affiliate of the Servicer relieve the Servicer of any liability
hereunder. Notice of such permitted assignment shall be given promptly by the
Servicer to the Depositor and the Indenture Trustee. If, pursuant to any
provision hereof, the duties of the Servicer are transferred to a successor
servicer, the entire amount of compensation payable to the Servicer pursuant
hereto, including amounts payable to or permitted to be retained or withdrawn
by
the Servicer pursuant to Section 4.23 hereof, shall thereafter be payable to
such successor servicer.
Section
4.31. Limitation
on Liability of the Servicer and Others.
(a) The
Servicer undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Servicer from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct; provided, however,
that the
duties and obligations of the Servicer shall be determined solely by the express
provisions of this Agreement, the Servicer shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this
Agreement; no implied covenants or obligations shall be read into this Agreement
against the Servicer and, in absence of bad faith on the part of the Servicer,
the Servicer may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Servicer and conforming to the requirements of this
Agreement.
(c) Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Indenture Trustee or the
Noteholders for any action taken or for refraining from the taking of any action
in good faith pursuant to this Agreement, or for errors in judgment;
provided, however,
that
this provision shall not protect the Servicer or any such person against any
liability that would otherwise be imposed by reason of willful misfeasance,
bad
faith or negligence in its performance of its duties or by reason of reckless
disregard for its obligations and duties under this Agreement. The Servicer
and
any director, officer, employee or agent of the Servicer shall be entitled
to
indemnification by the Trust Estate and will be held harmless against any loss,
liability or expense incurred in connection with any legal action relating
to
this Agreement, the Notes or any other Operative Agreement other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of his or its duties hereunder or by reason of
reckless disregard of his or its obligations and duties hereunder. The Servicer
and any director, officer, employee or agent of the Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by
any Person respecting any matters arising hereunder. The Servicer shall be
under
no obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and that in its opinion may involve it in any expenses or liability;
provided, however,
that the
Servicer may in its sole discretion undertake any such action that 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 Noteholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Issuer and the
Servicer shall be entitled to be reimbursed therefor out of the Collection
Account it maintains as provided by Section 4.14.
Section
4.32. Indemnification;
Third Party Claims.
The
Servicer agrees to indemnify the Depositor, the Issuer, the Indenture Trustee,
the Owner Trustee and the Servicer and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Issuer, the Indenture Trustee, the Owner Trustee or the Servicer may sustain
as a result of the failure of the Servicer to perform its duties and service
the
Mortgage Loans in compliance with the terms of this Agreement. The Depositor,
the Issuer, the Indenture Trustee, the Owner Trustee and the Servicer shall
immediately notify the Servicer if a claim is made by a third party with respect
to this Agreement, the Mortgage Loans entitling the Depositor, the Issuer,
the
Indenture Trustee, the Owner Trustee or the Servicer to indemnification under
this Section 4.32, whereupon the Servicer shall assume the defense of any such
claim and pay all expenses in connection therewith, including counsel fees,
and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. The failure to provide such
immediate notice shall not affect the Servicer’s obligation pursuant to this
Section 4.32 to indemnify the Depositor, the Issuer, the Indenture Trustee,
the
Owner Trustee and the Servicer, except to the extent that the Servicer is
materially prejudiced by such failure to notify.
Section
4.33. Alternative
Index.
In the
event that the Servicer notifies the Servicer in writing that the Index for
any
Mortgage Loan, as specified in the related Mortgage Note, becomes unavailable
for any reason, the Servicer shall select an alternative index in accordance
with the terms of such Mortgage Note or, if such Mortgage Note does not make
provision for the selection of an alternative index in such event, the Servicer
shall, subject to applicable law, select an alternative index based on
information comparable to that used in connection with the original Index and,
in either case, such alternative index shall thereafter be the Index for such
Mortgage Loan.
Section
4.34. Miscellaneous
Servicing Provisions.
(a) Protection
of Confidential Information.
The
Servicer shall keep confidential and shall not divulge to any party, without
the
Seller’s prior written consent, any nonpublic information pertaining to the
Mortgage Loans or any borrower thereunder, except to the extent that it is
appropriate for the Servicer to do so in working with legal counsel, special
servicers, auditors, taxing authorities or other governmental
agencies.
(b) No
Personal Solicitation.
For as
long as the Servicer services the Mortgage Loans, it covenants that it will
not,
and that it will ensure that its affiliates and agents will not, directly
solicit or provide information for any other party to solicit for prepayment
or
refinancing of any of the Mortgage Loans by the related mortgagors. It is
understood that promotions undertaken by the Servicer which are directed to
the
general public at large, or certain segments thereof, shall not constitute
solicitation as that term is used in this Section 4.34(b).
(c) Intention
of the Parties.
It is
the intention of the Seller and the Servicer that the Seller is conveying,
and
the Servicer is receiving, only a contract for servicing the Mortgage Loans.
Accordingly, the parties hereby acknowledge that the Trust remains the sole
and
absolute owner of the Mortgage Loans (other than the servicing rights) and
all
rights related thereto, subject to the lien of the Indenture.
Section
4.35. [Reserved].
ARTICLE
V
DEPOSITS
AND PAYMENTS TO HOLDERS
Section
5.01. The
Collection Account.
(a) The
Trust
Administrator shall establish and maintain in the name of the Notes Intermediary
the Collection Account as provided in Section 4.07, which account shall be
pledged to the Indenture Trustee for the benefit of the
Noteholders.
(b) The
Trust
Administrator shall make withdrawals from the Collection Account only for the
purposes set forth in Section 4.08.
Section
5.02. Payments
from the Collection Account.
(a) [On
each
Payment Date, the Trust Administrator (or the Paying Agent on behalf of the
Trust Administrator) shall withdraw from the Collection Account the Total
Remittance Amount (to the extent such amount is on deposit in the Collection
Account) and shall pay such amount as specified in this Section. All allocations
and payments made between and with respect to [Pool 1], [Pool 2] and [Pool
3] in
this Section shall be made concurrently.]
(b) [On
each
Payment Date, the Trust Administrator (or the Paying Agent on behalf of the
Trust Administrator) shall pay the Interest Remittance Amount for [Pool 1]
for
such date [in the following order of priority] in accordance with the report
of
the Trust Administrator:
(i) from
the
Interest Remittance Amount for [Pool 1], [concurrently] to the [Class AF-5B]
Insurer, the [Class AF-5B] Premium for such Payment Date and to each Class
of
[Group AF] Notes, the Current Interest and Interest Carry Forward Amount for
each such Class and such Payment Date, [pro rata], based on their respective
entitlements,
(ii) from
the
remaining Interest Remittance Amount for [Pool 1], [sequentially]:
(a) to
the
[Class AF-5B] Insurer, any [Class AF-5B] Reimbursement Amount,
(b) to
the
[Class MF-1] Notes, the Current Interest for such Class,
(c) to
the
[Class MF-2] Notes, the Current Interest for such Class,
(d) to
the
[Class MF-3] Notes, the Current Interest for such Class,
(e) to
the
[Class MF-4] Notes, the Current Interest for such Class,
(f) to
the
[Class MF-5] Notes, the Current Interest for such Class,
(g) to
the
[Class MF-6] Notes, the Current Interest for such Class,
(h) to
the
[Class MF-7] Notes, the Current Interest for such Class,
(i) to
the
[Class MF-8] Notes, the Current Interest for such Class,
(j) to
the
Class [BF] Notes, the Current Interest for such Class, and
(k) [any
remainder as part of the Fixed Rate Pool Excess Cashflow.]
(c) [On
each
Payment Date, the Trust Administrator (or the Paying Agent on behalf of the
Trust Administrator) shall pay the Interest Remittance Amount for [Pool 2]
and
[Pool 3] for such date [in the following order of priority] in accordance with
the report of the Trust Administrator:
(i) [concurrently]:
(a) from
Interest Remittance Amount for [Pool 2], [concurrently] to each Class of [Group
2-AV] Notes, the Current Interest and Interest Carry Forward Amount for each
such Class and such Payment Date, [pro rata], based on their respective
entitlements,
(b) from
Interest Remittance Amount for [Pool 3], [concurrently] to each Class of [Group
3-AV] Notes, the Current Interest and Interest Carry Forward Amount for each
such Class and such Payment Date, [pro rata], based on their respective
entitlements,
(ii) from
the
remaining Interest Remittance Amount for [Pool 2] and [Pool 3], to each Class
of
[Group AV] Notes, any remaining Current Interest and Interest Carry Forward
Amount not paid pursuant to Section 5.02(c)(i), [pro rata], based on the Note
Principal Amounts thereof, to the extent needed to pay any Current Interest
and
Interest Carry Forward Amount for each such Class; provided that Interest
Remittance Amount remaining after such allocation to pay any Current Interest
and Interest Carry Forward Amount based on the Note Principal Amounts of the
Notes will be distributed to each Class of [Group AV] Notes with respect to
which there remains any unpaid Current Interest and Interest Carry Forward
Amount (after the distribution based on Note Principal Amounts), [pro rata],
based on the amount of such remaining unpaid Current Interest and Interest
Carry
Forward Amount,
(iii) from
the
remaining Interest Remittance Amount for [Pool 2] and [Pool 3],
[sequentially]:
(a) to
the
[Class MV-1] Notes, the Current Interest for such Class,
(b) to
the
[Class MV-2] Notes, the Current Interest for such Class,
(c) to
the
[Class MV-3] Notes, the Current Interest for such Class,
(d) to
the
[Class MV-4] Notes, the Current Interest for such Class,
(e) to
the
[Class MV-5] Notes, the Current Interest for such Class,
(f) to
the
[Class MV-6] Notes, the Current Interest for such Class,
(g) to
the
[Class MV-7] Notes, the Current Interest for such Class,
(i) to
the
[Class MV-8] Notes, the Current Interest for such Class,
(j) to
the
Class [BV] Notes, the Current Interest for such Class, and
(k) [any
remainder as part of the Adjustable Rate Pool Excess Cashflow.]
(d) [On
each
Payment Date, the Trust Administrator (or the Paying Agent on behalf of the
Trust Administrator) shall pay the Principal Remittance Amount for [Pool 1]
(with the Principal Distribution Amount exclusive of the portion thereof
consisting of the Extra Principal Distribution Amount being applied first and
the Extra Principal Distribution Amount being applied thereafter) for such
date
in accordance with the report of the Trust Administrator [as
follows]:
(i) with
respect to any Payment Date prior to the Fixed Rate Stepdown Date or on which
a
Fixed Rate Trigger Event is in effect, from the Principal Distribution Amount
for [Pool 1], [sequentially]:
(A) to
the
[Class AF] Notes and to the [Class AF-5B] Insurer, in the order and priorities
set forth in clause (3)(A) below,
(B) to
the
[Class MF-1] Notes, until the Note Principal Amount thereof is reduced to
zero,
(C) to
the
[Class MF-2] Notes, until the Note Principal Amount thereof is reduced to
zero,
(D) to
the
[Class MF-3] Notes, until the Note Principal Amount thereof is reduced to
zero,
(E) to
the
[Class MF-4] Notes, until the Note Principal Amount thereof is reduced to
zero,
(F) to
the
[Class MF-5] Notes, until the Note Principal Amount thereof is reduced to
zero,
(G) to
the
[Class MF-6] Notes, until the Note Principal Amount thereof is reduced to
zero,
(H) to
the
[Class MF-7] Notes, until the Note Principal Amount thereof is reduced to
zero,
(I) to
the
[Class MF-8] Notes, until the Note Principal Amount thereof is reduced to
zero,
(J) to
the
[Class BF] Notes, until the Note Principal Amount thereof is reduced to zero,
and
(K) [any
remainder as part of the Fixed Rate Pool Excess Cashflow].
(ii) with
respect to any Payment Date on or after the Fixed Rate Stepdown Date and so
long
as a Fixed Rate Trigger Event is not in effect from the Principal Distribution
Amount for [Pool 1], [sequentially]:
(A) in
an
amount up to the [Group AF] Principal Distribution Amount, to the [Group AF]
Notes in the order and priorities set forth in clause (iii)(B) below, until
the
Note Principal Amounts thereof are reduced to zero,
(B) to
the
[Class AF-5B] Insurer, any remaining [Class AF-5B] Premium and any remaining
[Class AF-5B] Reimbursement Amount, in each case that has not been paid from
Interest Remittance Amount for [Pool 1] for such Payment Date,
(C) to
the
[Class MF-1] Notes, the Fixed Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(D) to
the
[Class MF-2] Notes, the Fixed Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(E) to
the
[Class MF-3] Notes, the Fixed Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(F) to
the
[Class MF-4] Notes, the Fixed Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(G) to
the
[Class MF-5] Notes, the Fixed Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(H) to
the
[Class MF-6] Notes, the Fixed Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(I) to
the
[Class MF-7] Notes, the Fixed Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(J) to
the
[Class MF-8] Notes, the Fixed Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(K) to
the
[Class BF] Notes, the Fixed Rate Subordinate Class Principal Distribution Amount
for such Class until the Note Principal Amount thereof is reduced to zero,
and
(L) [any
remainder as part of the Fixed Rate Pool Excess Cashflow].
(iii) On
each
Payment Date on which any principal amounts are to be distributed to the [Group
AF] Notes and the [Class AF-5B] Insurer pursuant to clause (i)(A) or to the
[Group AF] Notes pursuant to clause (ii)(A) above, such amounts shall be
distributed to the [Group AF] Notes and, if applicable, the [Class AF-5B]
Insurer, [in the following order of priority]:
(A) For
each
Payment Date prior to the Fixed Rate Stepdown Date or on which a Fixed Rate
Trigger Event is in effect,
(1) the
NAS
Principal Distribution Amount to the [Class AF-6] Notes, until the Note
Principal Amount thereof is reduced to zero,
(2) [concurrently],
to the [Class AF-1A] and [Class AF-1B] Notes, [pro rata] based on their
respective Note Principal Amounts, until their respective Note Principal Amounts
are reduced to zero,
(3) [sequentially],
to the [Class AF-2], [Class AF-3] and [Class AF-4] Notes, in that order, in
each
case until the Note Principal Amount thereof is reduced to zero,
(4) [concurrently],
to the [Class AF-5A] Notes and the [Class AF-5B] Insurer, [pro rata] (based
on,
with respect to clause (x), the Note Principal Amount of the [Class AF-5A]
Notes, and with respect to clause (y), the Note Principal Amount of the [Class
AF-5B] Notes):
(a) to
the
[Class AF-5A] Notes, until the Note Principal Amount thereof is reduced to
zero,
and
(b) [sequentially]:
(i) to
the
[Class AF-5B] Insurer, any remaining [Class AF-5B] Premium that has not been
paid from Interest Remittance Amount for [Pool 1] for such Payment Date,
and
(ii) to
the
[Class AF-5B] Notes, until the Note Principal Amount thereof is reduced to
zero,
(5) to
the
[Class AF-6] Notes without regard to the NAS Principal Distribution Amount,
until the Note Principal Amount thereof is reduced to zero, and
(6) to
the
[Class AF-5B] Insurer, any remaining [Class AF-5B] Reimbursement Amount that
has
not been paid from Interest Remittance Amount for [Pool 1] for such Payment
Date.
(B) For
each
Payment Date on or after the Fixed Rate Stepdown Date and so long as a Fixed
Rate Trigger Event is not in effect,
(1) the
NAS
Principal Distribution Amount to the [Class AF-6] Notes, until the Note
Principal Amount thereof is reduced to zero,
(2) [concurrently],
to the [Class AF-1A] and [Class AF-1B] Notes, [pro rata] based on their
respective Note Principal Amounts, until their respective Note Principal Amounts
are reduced to zero,
(3) [sequentially],
to the [Class AF-2], [Class AF-3] and [Class AF-4] Notes, in that order, in
each
case until the Note Principal Amount thereof is reduced to zero,
(4) [concurrently],
to the [Class AF-5A] Notes and the [Class AF-5B] Notes, [pro rata], based on
the
Note Principal Amounts thereof, until the Note Principal Amounts thereof are
reduced to zero, and
(5) to
the
[Class AF-6] Notes without regard to the NAS Principal Distribution Amount,
until the Note Principal Amount thereof is reduced to zero.
[Notwithstanding
the foregoing order of priority, on any Payment Date on which the aggregate
Note
Principal Amount of the [Group AF] Notes is greater than the sum of the
aggregate Stated Principal Balance of the Mortgage Loans in [Pool 1] and any
amount on deposit in the Supplemental Loan Account in respect of [Pool 1],
any
principal amounts to be distributed to the [Group AF] Notes and the [Class
AF-5B] Insurer shall be distributed first, [concurrently] to each Class of
[Group AF] Notes, [pro rata], based on the Note Principal Amounts thereof,
in
each case until the Note Principal Amount thereof is reduced to zero, and
second, to the [Class AF-5B] Insurer, any remaining [Class AF-5B] Premium and
any remaining [Class AF-5B] Reimbursement Amount].]
(e) [On
each
Payment Date, the Trust Administrator (or the Paying Agent on behalf of the
Trust Administrator) shall pay the Principal Remittance Amount for [Pool 2]
and
[Pool 3] (with the Principal Distribution Amount exclusive of the portion
thereof consisting of the Extra Principal Distribution Amount being applied
first and the Extra Principal Distribution Amount being applied thereafter)
for
such date in accordance with the report of the Trust Administrator [as
follows]:
(i) with
respect to any Payment Date prior to the Adjustable Rate Stepdown Date or on
which an Adjustable Rate Trigger Event is in effect,
[sequentially]:
(A) [concurrently]:
(1) from
the
Principal Distribution Amount for [Pool 2], [sequentially]:
(a) to
each
Class of [Group 2-AV] Notes, in the order and priorities set forth in Section
5.02(e)(iii) below, until the Note Principal Amounts thereof are reduced to
zero; and
(b) to
each
Class of [Group 3-AV] Notes (after the distribution of the Principal
Distribution Amount from [Pool 3] as provided in Section 5.02(d)(1)(A)(ii)(a)
below), in the order and priorities set forth in Section 5.02(d)(4) below,
until
the Note Principal Amounts thereof are reduced to zero;
(2) from
the
Principal Distribution Amount for [Pool 3], [sequentially]:
(a) to
each
Class of [Group 3-AV] Notes, in the order and priorities set forth in Section
5.02(d)(4) below, until the Note Principal Amounts thereof are reduced to zero;
and
(b) to
each
Class of [Group 2-AV] Notes (after the distribution of the Principal
Distribution Amount from [Pool 2] as provided in Section 5.02(e)(i)(A)(1)(a)
above), in the order and priorities set forth in Section 5.02(e)(3) below,
until
the Note Principal Amounts thereof are reduced to zero;
(B) from
the
remaining Principal Distribution Amounts for [Pool 2] and [Pool 3],
[sequentially]:
(1) to
the
[Class MV-1] Notes, until the Note Principal Amount thereof is reduced to
zero,
(2) to
the
[Class MV-2] Notes, until the Note Principal Amount thereof is reduced to
zero,
(3) to
the
[Class MV-3] Notes, until the Note Principal Amount thereof is reduced to
zero,
(4) to
the
[Class MV-4] Notes, until the Note Principal Amount thereof is reduced to
zero,
(5) to
the
[Class MV-5] Notes, until the Note Principal Amount thereof is reduced to
zero,
(6) to
the
[Class MV-6] Notes, until the Note Principal Amount thereof is reduced to
zero,
(7) to
the
[Class MV-7] Notes, until the Note Principal Amount thereof is reduced to
zero,
(8) to
the
[Class MV-8] Notes, until the Note Principal Amount thereof is reduced to
zero,
(9) to
the
[Class BV] Notes, until the Note Principal Amount thereof is reduced to zero,
and
(10) [any
remainder as part of the Adjustable Rate Pool Excess Cashflow].
(ii) with
respect to any Payment Date on or after the Adjustable Rate Stepdown Date and
so
long as an Adjustable Rate Trigger Event is not in effect, from the Principal
Distribution Amounts for [Pool 2] and [Pool 3], [sequentially]:
(A) in
an
amount up to the [Group AV] Principal Distribution Target Amount, [pro rata]
based on the related [Group AV] Principal Distribution Allocation Amount for
the
[Group 2-AV] Notes and the [Group 3-AV] Notes, respectively, [concurrently],
to
(I) each Class of [Group 2-AV] Notes, in an amount up to the [Group 2-AV]
Principal Distribution Amount in the order and priorities set forth in clause
(3) below, until the Note Principal Amounts thereof are reduced to zero and
(II)
each Class of [Group 3-AV] Notes, in an amount up to the [Group 3-AV] Principal
Distribution Amount in the order and priorities set forth in clause (4) below,
until the Note Principal Amounts thereof are reduced to zero; provided, however,
that if the aggregate Note Principal Amount of the [Group 2-AV] Notes or [Group
3-AV] Notes is reduced to zero then any remaining unpaid [Group AV] Principal
Distribution Target Amount will be distributed to the remaining [Group AV]
Notes
in the order and priorities set forth in clause (3) or clause (4) below, as
the
case may be,
(B) to
the
[Class MV-1] Notes, the Adjustable Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(C) to
the
[Class MV-2] Notes, the Adjustable Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(D) to
the
[Class MV-3] Notes, the Adjustable Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(E) to
the
[Class MV-4] Notes, the Adjustable Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(F) to
the
[Class MV-5] Notes, the Adjustable Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero,
(G) to
the
[Class MV-6] Notes, the Adjustable Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero
(H) to
the
[Class MV-7] Notes, the Adjustable Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero
(I) to
the
[Class MV-8] Notes, the Adjustable Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero
(J) to
the
[Class BV] Notes, the Adjustable Rate Subordinate Class Principal Distribution
Amount for such Class until the Note Principal Amount thereof is reduced to
zero, and
(K) [any
remainder as part of the Adjustable Rate Pool Excess Cashflow].
(iii) On
each
Payment Date on which any principal amounts are to be distributed to the [Group
2-AV] Notes, such amounts shall be distributed [concurrently], to the [Class
2-AV-1] and [Class 2-AV-2] Notes [pro rata], based on the Note Principal Amounts
thereof, in each case until the Note Principal Amount thereof is reduced to
zero; provided, however, that if a Group [2] Sequential Trigger Event is in
effect, then any principal amounts to be distributed to the [Class 2-AV] Notes
will be distributed [sequentially], to the [Class 2-AV-1] and [Class 2-AV-2]
Notes, in that order, in each case until the Note Principal Amount thereof
is
reduced to zero.
(iv) On
each
Payment Date on which any principal amounts are to be distributed to the [Group
3-AV] Notes, such amounts shall be distributed [sequentially], to the [Class
3-AV-1], [Class 3-AV-2], [Class 3-AV-3] and [Class 3-AV-4] Notes, in that order,
in each case until the Note Principal Amount thereof is reduced to zero;
provided, however, that on any Payment Date on which (x) the aggregate Note
Principal Amount of the [Group AV] Notes is greater than the sum of the
aggregate Stated Principal Balance of the Adjustable Rate Mortgage Loans and
(y)
the aggregate Note Principal Amount of the [Group 3-AV] Notes is greater than
the sum of the aggregate Stated Principal Balance of the [Pool 3] Mortgage
Loans, any principal amounts to be distributed to the [Group 3-AV] Notes will
be
distributed [pro rata], based on the Note Principal Amounts thereof, in each
case until the Note Principal Amount thereof is reduced to zero.]
(f) [On
each
Payment Date, the Trust Administrator (or the Paying Agent on behalf of the
Trust Administrator) shall pay the Fixed Rate Pool Excess Cashflow for such
date
and, in the case of clauses (1), (3), (5), (7), (9), (11), (13), (15), (17)
and
(19) below, any amounts in the Credit Comeback Excess Account available for
such
Payment Date, shall be paid to the Classes of Notes [in the following order
of
priority], in each case first to the extent of the remaining Credit Comeback
Excess Cashflow, if applicable, and second to the extent of the remaining Fixed
Rate Pool Excess Cashflow:
(i) to
the
Holders of the Class or Classes of [Group AF] Notes and Fixed Rate Subordinate
Notes then entitled to receive distributions in respect of principal, in an
amount equal to the Extra Principal Distribution Amount for [Pool 1], payable
to
such Holders as part of the Principal Distribution Amount for [Pool 1] pursuant
to Section 5.02(d) above; provided, however, that Credit Comeback Excess
Cashflow (if any) shall only be distributed pursuant to this clause, if the
Fixed Rate Overcollateralization Target Amount has at any previous time been
met;
(ii) to
the
Holders of the [Class MF-1] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(iii) to
the
Holders of the [Class MF-1] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(iv) to
the
Holders of the [Class MF-2] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(v) to
the
Holders of the [Class MF-2] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(vi) to
the
Holders of the [Class MF-3] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(vii) to
the
Holders of the [Class[MF-3] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(viii) to
the
Holders of the [Class MF-4] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(ix) to
the
Holders of the [Class MF-4] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(x) to
the
Holders of the [Class MF-5] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xi) to
the
Holders of the [Class MF-5] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(xii) to
the
Holders of the [Class MF-6] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xiii) to
the
Holders of the [Class MF-6] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(xiv) to
the
Holders of the [Class MF-7] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xv) to
the
Holders of the [Class MF-7] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(xvi) to
the
Holders of the [Class MF-8] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xvii) to
the
Holders of the [Class MF-8] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(xviii) to
the
Holders of the [Class BF] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xix) to
the
Holders of the [Class BF] Notes, in an amount equal to the Unpaid Realized
Loss
Amount for such Class;
(xx) to
each
Class of [Class AF] Notes and Fixed Rate Subordinate Notes (in the case of
the
[Class AF-1A] Notes after application of [Class AF-1A] Cap Agreement to cover
Net Rate Carryover), [pro rata] based on the Note Principal Amounts thereof,
to
the extent needed to pay any unpaid Net Rate Carryover for each such Class;
and
then any Fixed Rate Pool Excess Cashflow remaining after such allocation to
pay
Net Rate Carryover based on the Note Principal Amounts of the Notes shall be
distributed to each Class of [Class AF] Notes and Fixed Rate Subordinate Notes
with respect to which there remains any unpaid Net Rate Carryover, [pro rata],
based on the amount of such unpaid Net Rate Carryover;
(xxi) if
the
Adjustable Rate Overcollateralization Target Amount has at any previous time
been met, to the Holders of the Class or Classes of [Class AV] Notes and
Adjustable Rate Subordinate Notes then entitled to receive distributions in
respect of principal, payable to such Holders as part of the Principal
Distribution Amount as described under Section 5.02(e) above, in an amount
equal
to the Extra Principal Distribution Amount for [Pool 2] and [Pool 3] not covered
by the Adjustable Rate Pool Excess Cashflow allocated [pro rata] based on the
Extra Principal Distribution Amount for [Pool 2] and [Pool 3] not covered by
the
Adjustable Rate Pool Excess Cashflow;
(xxii) to
the
holders of the [Class 2-AV-2] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class 2-AV-2] Notes remaining undistributed after
application of the Adjustable Rate Pool Excess Cashflow;
(xxiii) to
the
Holders of the [Class MV-1] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MV-1] Notes remaining undistributed after application
of the Adjustable Rate Pool Excess Cashflow;
(xxiv) to
the
Holders of the [Class MV-2] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MV-2] Notes remaining undistributed after application
of the Adjustable Rate Pool Excess Cashflow;
(xxv) to
the
Holders of the [Class MV-3] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MV-3] Notes remaining undistributed after application
of the Adjustable Rate Pool Excess Cashflow;
(xxvi) to
the
Holders of the [Class MV-4] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MV-4] Notes remaining undistributed after application
of the Adjustable Rate Pool Excess Cashflow;
(xxvii) to
the
Holders of the [Class MV-5] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MV-5] Notes remaining undistributed after application
of the Adjustable Rate Pool Excess Cashflow;
(xxviii) to
the
Holders of the [Class MV-6] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MV-6] Notes remaining undistributed after application
of the Adjustable Rate Pool Excess Cashflow;
(xxix) to
the
Holders of the [Class MV-7] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MV-7] Notes remaining undistributed after application
of the Adjustable Rate Pool Excess Cashflow;
(xxx) to
the
Holders of the [Class MV-8] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MV-8] Notes remaining undistributed after application
of the Adjustable Rate Pool Excess Cashflow;
(xxxi) to
the
Holders of the [Class BV] Notes, in an amount equal to the Unpaid Realized
Loss
Amount for the [Class BV] Notes remaining undistributed after application of
the
Adjustable Rate Pool Excess Cashflow; and
(xxxii)
any
amounts remaining shall be paid by the Trust Administrator to the Ownership
Certificate.
(g) [On
each
Payment Date, the Trust Administrator (or the Paying Agent on behalf of the
Trust Administrator) shall pay the Adjustable Rate Pool Excess Cashflow to
the
Classes of Notes [in the following order of priority]:
(i) to
the
Holders of the Class or Classes of [Group AV]Notes and Adjustable Rate
Subordinate Notes then entitled to receive distributions in respect of
principal, in an aggregate amount equal to the Extra Principal Distribution
Amount for [Pool 2] and [Pool 3], payable to such Holders of each such Class
as
part of the Principal Distribution Amount for [Pool 2] and [Pool 3] pursuant
to
Section 5.02(e) above;
(ii) [pro
rata], to the Holders of the [Class 2-AV-2] Notes, in an amount equal to the
Unpaid Realized Loss Amount for such Class;
(iii) to
the
Holders of the [Class MV-1] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(iv) to
the
Holders of the [Class MV-1] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(v) to
the
Holders of the [Class MV-2] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(vi) to
the
Holders of the [Class MV-2] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(vii) to
the
Holders of the [Class MV-3] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(viii) to
the
Holders of the [Class MV-3] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(ix) to
the
Holders of the [Class MV-4] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(x) to
the
Holders of the [Class MV-4] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(xi) to
the
Holders of the [Class MV-5] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xii) to
the
Holders of the [Class MV-5] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(xiii) to
the
Holders of the [Class MV-6] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xiv) to
the
Holders of the [Class MV-6] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(xv) to
the
Holders of the [Class MV-7] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xvi) to
the
Holders of the [Class MV-7] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(xvii) to
the
Holders of the [Class MV-8] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xviii) to
the
Holders of the [Class MV-8] Notes, in an amount equal to the Unpaid Realized
Loss Amount for such Class;
(xix) to
the
Holders of the [Class BV] Notes, in an amount equal to any Interest Carry
Forward Amount for such Class;
(xx) to
the
Holders of the [Class BV] Notes, in an amount equal to the Unpaid Realized
Loss
Amount for such Class;
(xxi) to
each
Class of [Group AV] Notes and Adjustable Rate Subordinate Notes (in each case
after application of amounts received under the applicable Interest Rate Cap
Agreement to cover Net Rate Carryover), [pro rata] based on the Note Principal
Amounts thereof, to the extent needed to pay any Net Rate Carryover for each
such Class remaining after application of amounts under the applicable Interest
Rate Cap Agreement; provided that any Adjustable Rate Pool Excess Cashflow
remaining after such allocation to pay Net Rate Carryover based on the Note
Principal Amounts of the Notes shall be distributed to each Class of [Group
AV]Notes and Adjustable Rate Subordinate Notes with respect to which there
remains any unpaid Net Rate Carryover (after the distribution based on Note
Principal Amounts), [pro rata], based on the amount of such unpaid Net Rate
Carryover;
(xxii) if
the
Fixed Rate Overcollateralization Target Amount has at any previous time been
met, to the Holders of the Class or Classes of [Group AF] Notes and Fixed Rate
Subordinate Notes then entitled to receive distributions in respect of
principal, payable to such Holders as part of the Principal Distribution Amount
pursuant to Section 5.02(d) above, in an amount equal to the Extra Principal
Distribution Amount for [Pool 1] not covered by the Fixed Rate Pool Excess
Cashflow or Credit Comeback Excess Cashflow;
(xxiii) to
the
Holders of the [Class MF-1] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the ]Class MF-1] Notes remaining undistributed after application
of the Fixed Rate Pool Excess Cashflow and Credit Comeback Excess
Cashflow;
(xxiv) to
the
Holders of the [Class MF-2] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MF-2] Notes remaining undistributed after application
of the Fixed Rate Pool Excess Cashflow and Credit Comeback Excess
Cashflow;
(xxv) to
the
Holders of the [Class MF-3] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MF-3] Notes remaining undistributed after application
of the Fixed Rate Pool Excess Cashflow and Credit Comeback Excess
Cashflow;
(xxvi) to
the
Holders of the [Class MF-4] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MF-4] Notes remaining undistributed after application
of the Fixed Rate Pool Excess Cashflow and Credit Comeback Excess
Cashflow;
(xxvii) to
the
Holders of the [Class MF-5] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MF-5] Notes remaining undistributed after application
of the Fixed Rate Pool Excess Cashflow and Credit Comeback Excess
Cashflow;
(xxviii) to
the
Holders of the [Class MF-6] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MF-6] Notes remaining undistributed after application
of the Fixed Rate Pool Excess Cashflow and Credit Comeback Excess
Cashflow;
(xxix) to
the
Holders of the [Class MF-7] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MF-7] Notes remaining undistributed after application
of the Fixed Rate Pool Excess Cashflow and Credit Comeback Excess
Cashflow;
(xxx) to
the
Holders of the [Class MF-8] Notes, in an amount equal to the Unpaid Realized
Loss Amount for the [Class MF-8] Notes remaining undistributed after application
of the Fixed Rate Pool Excess Cashflow and Credit Comeback Excess
Cashflow;
(xxxi) to
the
Holders of the [Class BF] Notes, in an amount equal to the Unpaid Realized
Loss
Amount for the [Class BF] Notes remaining undistributed after application of
the
Fixed Rate Pool Excess Cashflow and Credit Comeback Excess Cashflow;
and
(xxxii)
any
amounts remaining shall be paid by the Trust Administrator to the Ownership
Certificate.
(h) On
the
Redemption Date, the Trust Administrator (or the Paying Agent on behalf of
the
Trust Administrator) shall pay to each Class of Notes the related Termination
Price therefor, as set forth in the Indenture.
Section
5.03. [Reserved].
Section
5.04. Control
of the Trust Account and Deferred Interest.
(a) The
Depositor and the Issuer hereby appoint ____________________ as Securities
Intermediary with respect to the Trust Account, and the Issuer has, pursuant
to
the Indenture, granted to the Indenture Trustee, for the benefit of the
Noteholders, a security interest to secure all amounts due Noteholders hereunder
in and to the Trust Account and the Security Entitlements to all Financial
Assets credited to the Trust Account, including without limitation all amounts,
securities, investments, Financial Assets, investment property and other
property from time to time deposited in or credited to the Trust Account and
all
proceeds thereof. Amounts held from time to time in the Trust Account will
continue to be held by the Securities Intermediary for the benefit of the
Indenture Trustee, as collateral agent, for the benefit of the Noteholders.
Upon
the termination of the Issuer or the discharge of the Indenture, the Indenture
Trustee shall inform the Securities Intermediary of such termination. By
acceptance of their Notes or interests therein, the Noteholders shall be deemed
to have appointed ____________________ as Securities Intermediary.
____________________ hereby accepts such appointment as Securities
Intermediary.
(b) With
respect to the Trust Account Property credited to the Trust Account, the
Securities Intermediary agrees that:
(i) with
respect to any Trust Account Property that is held in deposit accounts, each
such deposit account shall be subject to the exclusive custody and control
of
the Securities Intermediary, and the Securities Intermediary shall have sole
signature authority with respect thereto;
(ii) the
sole
assets permitted in the Trust Account shall be those as the Securities
Intermediary agrees to treat as Financial Assets; and
(iii) any
such
Trust Account Property that is, or is treated as, a Financial Asset shall be
physically delivered (accompanied by any required endorsements) to, or credited
to an account in the name of, the Securities Intermediary or other eligible
institution maintaining the Trust Account in accordance with the Securities
Intermediary’s customary procedures such that the Securities Intermediary or
such other institution establishes a Security Entitlement in favor of the
Indenture Trustee with respect thereto over which the Securities Intermediary
or
such other institution has Control;
(c) The
Securities Intermediary hereby confirms that (A) the Trust Account is an account
to which Financial Assets are or may be credited, and the Securities
Intermediary shall, subject to the terms of this Agreement, treat the Indenture
Trustee, as collateral agent, as entitled to exercise the rights that comprise
any Financial Asset credited to the Trust Account, (B) all Trust Account
Property in respect of the Trust Account will be promptly credited by the
Securities Intermediary to such account, and (C) all securities or other
property underlying any Financial Assets credited to the Trust Account shall
be
registered in the name of the Securities Intermediary, endorsed to the
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case will any
Financial Asset credited to the Trust Account be registered in the name of
the
Depositor or the Issuer, payable to the order of the Depositor or the Issuer
or
specially endorsed to the Depositor or the Issuer, except to the extent the
foregoing have been specially endorsed to the Securities Intermediary or in
blank;
(d) The
Securities Intermediary hereby agrees that each item of property (whether
investment property, Financial Asset, security, instrument or cash) credited
to
the Trust Account shall be treated as a Financial Asset;
(e) If
at any
time the Securities Intermediary shall receive an Entitlement Order from the
Indenture Trustee (or the Trust Administrator on its behalf) directing transfer
or redemption of any Financial Asset relating to the Trust Account, the
Securities Intermediary shall comply with such Entitlement Order without further
consent by the Depositor, the Issuer or any other Person. If at any time the
Indenture Trustee or the Trust Administrator notifies the Securities
Intermediary in writing that the Issuer has been terminated or the Indenture
discharged in accordance herewith and with the Trust Agreement or the Indenture,
as applicable, and the security interest granted pursuant to the Indenture
has
been released, then thereafter if the Securities Intermediary shall receive
any
order from the Depositor or the Issuer directing transfer or redemption of
any
Financial Asset relating to the Trust Account, the Securities Intermediary
shall
comply with such Entitlement Order without further consent by the Indenture
Trustee or any other Person;
(f) In
the
event that the Securities Intermediary has or subsequently obtains by agreement,
operation of law or otherwise a security interest in the Trust Account or any
Financial Asset credited thereto, the Securities Intermediary hereby agrees
that
such security interest shall be subordinate to the security interest of the
Indenture Trustee. The Financial Assets credited to the Trust Account will
not
be subject to deduction, set-off, banker’s lien, or any other right in favor of
any Person other than the Indenture Trustee (except that the Securities
Intermediary may set-off (i) all amounts due to it in respect of its customary
fees and expenses for the routine maintenance and operation of the Trust Account
and (ii) the face amount of any checks which have been credited to the Trust
Account but are subsequently returned unpaid because of uncollected or
insufficient funds);
(g) There
are
no other agreements entered into between the Securities Intermediary in such
capacity and the Depositor or the Issuer with respect to the Trust Account.
In
the event of any conflict between this Agreement (or any provision of this
Agreement) and any other agreement now existing or hereafter entered into,
the
terms of this Agreement shall prevail;
(h) The
rights and powers granted under the Indenture and herein to the Indenture
Trustee have been granted in order to perfect its security interest in the
Trust
Account and the Security Entitlements to the Financial Assets credited thereto,
and are powers coupled with an interest and will neither be affected by the
bankruptcy of the Depositor or the Issuer nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
until the security interest of the Indenture Trustee in the Trust Account,
and
in such Security Entitlements, has been terminated pursuant to the terms of
this
Agreement and the Indenture Trustee or the Issuer, as applicable, has notified
the Securities Intermediary of such termination in writing; and
(i) Notwithstanding
anything else contained herein, the Depositor and the Issuer agree that the
Trust Account will be established only with the Securities Intermediary or
another institution meeting the requirements of this Section, which by
acceptance of its appointment as Securities Intermediary agrees substantially
as
follows: (1) it will comply with Entitlement Orders related to the Trust Account
issued by the Indenture Trustee, as collateral agent, without further consent
by
the Depositor or the Issuer, without further consent by the Depositor; (2)
until
termination of the Issuer or discharge of the Indenture, it will not enter
into
any other agreement related to such accounts pursuant to which it agrees to
comply with Entitlement Orders of any Person other than the Indenture Trustee,
as collateral agent, or the Trust Administrator on its behalf; and (3) all
assets delivered or credited to it in connection with such account and all
investments thereof will be promptly credited to the applicable
account.
(j) Notwithstanding
the foregoing, the Issuer shall have the power, revocable by the Indenture
Trustee or by the Owner Trustee with the consent of the Indenture Trustee,
to
instruct the Indenture Trustee, the Trust Administrator and the Servicer to
make
withdrawals and payments from the Trust Account for the purpose of permitting
the Servicer, the Trust Administrator or the Owner Trustee to carry out its
respective duties hereunder or permitting the Indenture Trustee to carry out
its
duties under the Indenture.
(k) Each
of
the Depositor and the Issuer agrees to take or cause to be taken such further
actions, to execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments (including, without limitation,
any
financing statements under the Relevant UCC or this Agreement) as may be
necessary to perfect the interests created by this Section in favor of the
Issuer and the Indenture Trustee and otherwise fully to effectuate the purposes,
terms and conditions of this Section. The Depositor shall:
(i) promptly
execute, deliver and file any financing statements, amendments, continuation
statements, assignments, Notes and other documents with respect to such
interests and perform all such other acts as may be necessary in order to
perfect or to maintain the perfection of the Issuer’s and the Indenture
Trustee’s security interest in the Trust Account Property; and
(ii) make
the
necessary filings of financing statements or amendments thereto within [five]
days after the occurrence of any of the following: (1) any change in its
corporate name or any trade name or its jurisdiction of organization; (2) any
change in the location of its chief executive office or principal place of
business; and (3) any merger or consolidation or other change in its identity
or
corporate structure and promptly notify the Issuer and the Indenture Trustee
of
any such filings.
(iii) Neither
the Depositor nor the Issuer shall organize under the law of any jurisdiction
other than the State under which each is organized as of the Closing Date
(whether changing its jurisdiction of organization or organizing under an
additional jurisdiction) without giving [30] days prior written notice of such
action to its immediate and mediate transferee, including the Indenture Trustee.
Before effecting such change, each of the Depositor or the Issuer proposing
to
change its jurisdiction of organization shall prepare and file in the
appropriate filing office any financing statements or other statements necessary
to continue the perfection of the interests of its immediate and mediate
transferees, including the Indenture Trustee, in the Trust Account Property.
In
connection with the transactions contemplated by the Operative Agreements
relating to the Trust Account Property, each of the Depositor and the Issuer
authorizes its immediate or mediate transferee to file in any filing office
any
initial financing statements, any amendments to financing statements, any
continuation statements, or any other statements or filings described in this
Section 5.04.
None
of
the Securities Intermediary or any director, officer, employee or agent of
the
Securities Intermediary shall be under any liability to the Indenture Trustee
or
the Noteholders for any action taken, or not taken, in good faith pursuant
to
this Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Securities Intermediary against any
liability to the Indenture Trustee or the Noteholders which would otherwise
be
imposed by reason of the Securities Intermediary’s willful misconduct, bad faith
or negligence in the performance of its obligations or duties hereunder. The
Securities Intermediary and any director, officer, employee or agent of the
Securities Intermediary may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any Person respecting
any matters arising hereunder. The Securities Intermediary shall be under no
duty to inquire into or investigate the validity, accuracy or content of such
document. The Issuer shall indemnify the Securities Intermediary for and hold
it
harmless against any loss, liability or expense arising out of or in connection
with this Agreement and carrying out its duties hereunder, including the costs
and expenses of defending itself against any claim of liability, except in
those
cases where the Securities Intermediary has been guilty of bad faith, negligence
or willful misconduct. The foregoing indemnification shall survive any
termination of this Agreement or the resignation or removal of the Securities
Intermediary.
Section
5.05. Advances
by Servicer.
(a) Subject
to this Section 5.05, Advances shall be made in respect of each Servicer
Remittance Date as provided herein. If, on any Determination Date, the Servicer
determines that any Scheduled Payments due during the related Collection Period
have not been received, such Servicer shall advance such amount to the extent
provided in this Section 5.05. The Servicer shall be entitled to be reimbursed
from the Collection Account for all Advances made by it as provided in Section
4.07(d). Notwithstanding anything to the contrary herein, in the event the
Servicer determines in its reasonable judgment that an Advance is a
Nonrecoverable Advance, the Servicer shall be under no obligation to make such
Advance.
(b) In
the
event that the Servicer fails for any reason to make an Advance required to
be
made pursuant to this Section 5.05, the Indenture Trustee, as successor
Servicer, shall, on or before the related Payment Date, deposit in the
Collection Account an amount equal to the excess of (a) Advances required to
be
made by the Servicer that would have been deposited in such Collection Account
over (b) the amount of any Advance made by the Servicer with respect to such
Payment Date; provided,
however,
that
the Indenture Trustee as successor Servicer shall be required to make such
Advance only if it is not prohibited by law from doing so and it has determined
that such Advance would be recoverable from amounts to be received with respect
to such Mortgage Loan, including late payments, Liquidation Proceeds, Insurance
Proceeds, or otherwise. The Indenture Trustee shall be entitled to be reimbursed
from the Collection Account for Advances made by it pursuant to this Section
5.05 as if it were the Servicer and shall be entitled to receive all
compensation and fees of the Servicer in accordance with Section
7.01(b).
Section
5.06. The
Interest Rate Cap Agreements.
(a) The
Trust
Administrator shall establish and maintain an Eligible Account in its name,
in
trust for the benefit of the Noteholders, the Interest Rate Cap
Account.
(b) The
Trust
Administrator shall deposit any Interest Rate Cap Receipts received with respect
to any Interest Rate Cap Agreement Payment Date into the Interest Rate Cap
Account. Amounts on deposit in the Interest Rate Cap Account shall remain
uninvested.
(c) On
each
[Class AF-1A] Cap Agreement Payment Date, the Trust Administrator shall withdraw
from the Interest Rate Cap Account any Interest Rate Cap Receipts from the
[Class AF-1A] Cap Agreement to make payments in the order of priority and to
the
extent specified in Section 5.02(f)(iii)(1); provided,
that on
each Payment Date on which there is a payment received by the Trust
Administrator under the [Class AF-1A] Cap Agreement that is based on a notional
amount in excess of the aggregate Class Principal Amount of the Class [1A1]
and
Class [1A__] Notes (such amount, the “Excess [Class AF-1A] Cap Amount”), then
the Trust Administrator shall pay (i) the Excess [Class AF-1A] Cap Amount to
the
Ownership Certificate and (ii) the excess of such Interest Rate Cap Receipts
over the Excess [Class AF-1A] Cap Amount for such Payment Date in the order
of
priority and to the extent specified in Section 5.02(f)(iii)(1) of this
Agreement.
(d) On
each
[Group 2-AV] Cap Agreement Payment Date, the Trust Administrator shall withdraw
from the Interest Rate Cap Account any Interest Rate Cap Receipts from the
[Group 2-AV] Cap Agreement to make payments in the order of priority and to
the
extent specified in Section 5.02(f)(iii)(2); provided,
that on
each Payment Date on which there is a payment received by the Trust
Administrator under the [Group 2-AV] Cap Agreement that is based on a notional
amount in excess of the aggregate Class Principal Amount of the [Class 2-AV-1]
and [Class 2-AV-1] Notes (such amount, the “Excess [Class 2-AV] Cap Amount”),
then the Trust Administrator shall pay (i) the Excess [Group 2-AV] Cap Amount
to
the Ownership Certificate and (ii) the excess of such Interest Rate Cap Receipts
over the Excess [Group 2-AV] Cap Amount for such Payment Date in the order
of
priority and to the extent specified in Section 5.02(f)(iii)(2) of this
Agreement.
(e) On
each
[Group 3-AV] Cap Agreement Payment Date, the Trust Administrator shall withdraw
from the Interest Rate Cap Account any Interest Rate Cap Receipts from the
[Group 3-AV] Cap Agreement to make payments in the order of priority and to
the
extent specified in Section 5.02(f)(iii)(2); provided,
that on
each Payment Date on which there is a payment received by the Trust
Administrator under the [Group 3-AV] Cap Agreement that is based on a notional
amount in excess of the aggregate Class Principal Amount of the [Class 3-AV-1],
[Class 3-AV-2], [Class 3-AV-3] and [Class 3-AV-4] Notes (such amount, the
“Excess [Group 3-AV] Cap Amount”), then the Trust Administrator shall pay (i)
the Excess [Group 3-AV] Cap Amount to the Ownership Certificate and (ii) the
excess of such Interest Rate Cap Receipts over the Excess [Group 3-AV] Cap
Amount for such Payment Date in the order of priority and to the extent
specified in Section 5.02(f)(iii)(2) of this Agreement.
(f) On
each
Subordinate Cap Agreement Payment Date, the Trust Administrator shall withdraw
from the Interest Rate Cap Account any Interest Rate Cap Receipts from the
Subordinate Cap Agreement to make payments in the order of priority and to
the
extent specified in Section 5.02(f)(iii)(3); provided,
that on
each Payment Date on which there is a payment received by the Trust
Administrator under the Subordinate Cap Agreement that is based on a notional
amount in excess of the aggregate Class Principal Amount of the Subordinate
Notes (such amount, the “Excess Subordinate Cap Amount”), then the Trust
Administrator shall pay (i) the Excess Subordinate Cap Amount to the Ownership
Certificate and (ii) the excess of such Interest Rate Cap Receipts over the
Excess Subordinate Cap Amount for such Payment Date in the order of priority
and
to the extent specified in Section 5.02(f)(iii)(3) of this
Agreement.
(g) On
the
Payment Date in _________ 200_, after any amounts therefrom have been paid
in
accordance with Section 5.06(c), (d) and (e) above, any amounts remaining in
the
Interest Rate Cap Account shall be paid by the Trust Administrator to the
Ownership Certificate, and the Interest Rate Cap Account shall be terminated
by
the Trust Administrator.
Section
5.07. [[Class
AF-5B] Policy; Rights of the [Class AF-5B] Insurer.
(a) If,
on
the [third] Business Day before any Payment Date, the Trust Administrator
determines that a there will be a Deficiency Amount for such Payment Date,
the
Trust Administrator shall determine the amount of any such deficiency and shall
give notice to the [Class AF-5B] Insurer by telephone or telecopy of the amount
of such deficiency, confirmed in writing by notice substantially in the form
of
Exhibit A to the [Class AF-5B] Policy, by ________, [New York time] on such
[third] Business Day. The Trust Administrator’s responsibility for delivering
the notice to the [Class AF-5B] Insurer as provided in the preceding sentence
is
limited to the availability, timeliness and accuracy of the information provided
by the Servicer.
(b) In
the
event the Trust Administrator receives a certified copy of an order of the
appropriate court that any scheduled payment of principal or interest on a
[Class AF-5B] Note has been voided in whole or in part as a preference payment
under applicable bankruptcy law, the Trust Administrator shall (i) promptly
notify the [Class AF-5B] Insurer and (ii) comply with the provisions of the
[Class AF-5B] Policy, to obtain payment by the [Class AF-5B] Insurer of such
voided scheduled payment. In addition, the Trust Administrator shall mail notice
to all Holders of the [Class AF-5B] Notes so affected that, in the event that
any such Holder’s scheduled payment is so recovered, such Holder will be
entitled to payment pursuant to the terms of the [Class AF-5B] Policy, a copy
of
which shall be made available to such Holders by the Trust Administrator. The
Trust Administrator shall furnish to the [Class AF-5B] Insurer its records
listing the payments on the affected [Class AF-5B] Notes, if any, that have
been
made by the Trust Administrator and subsequently recovered from the affected
Holders, and the dates on which such payments were made by the Trust
Administrator.
(c) At
the
time of the execution hereof, and for the purposes hereof, the Trust
Administrator shall establish a special purpose trust account in the name of
the
Trust Administrator for the benefit of Holders of the [Class AF-5B] Notes (the
“[Class AF-5B] Policy Payments Account”) over which the Trust Administrator
shall have exclusive control and sole right of withdrawal. The [Class AF-5B]
Policy Payments Account shall be an Eligible Account. The Trust Administrator
shall deposit any amount paid under the [Class AF-5B] Policy into the [Class
AF-5B] Policy Payments Account and distribute such amount only for the purposes
of making the payments to Holders of the [Class AF-5B] Notes, in respect of
the
related Deficiency Amount for which the related claim was made under the [Class
AF-5B] Policy. Such amounts shall be allocated by the Trust Administrator to
Holders of [Class AF-5B] Notes affected by such shortfalls in the same manner
as
principal and interest payments are to be allocated with respect to such
Certificates pursuant to Section 5.02. It shall not be necessary for such
payments to be made by checks or wire transfers separated from the checks or
wire transfers used to make regular payments hereunder with funds withdrawn
from
the Collection Account. However, any payments made on the [Class AF-5B] Notes
from funds in the [Class AF-5B] Policy Payments Account shall be noted as
provided in subsection (e) below. Funds held in the [Class AF-5B] Policy
Payments Account shall not be invested by the Trust Administrator.
(d) Any
funds
received from the [Class AF-5B] Insurer for deposit into the [Class AF-5B]
Policy Payments Account pursuant to the [Class AF-5B] Policy in respect of
a
Payment Date or otherwise as a result of any claim under the [Class AF-5B]
Policy shall be applied by the Trust Administrator directly to the payment
in
full (i) of the related Deficiency Amount on such Payment Date or (ii) of other
amounts payable under the [Class AF-5B] Policy. Funds received by the Trust
Administrator as a result of any claim under the [Class AF-5B] Policy shall
be
used solely for payment to the Holders of the [Class AF-5B] Notes and may not
be
applied for any other purpose, including, without limitation, satisfaction
of
any costs, expenses or liabilities of the Trust Administrator, the Servicer
or
the Trust Fund. Any funds remaining in the [Class AF-5B] Policy Payments Account
on the [first] Business Day after each Payment Date shall be remitted promptly
to the [Class AF-5B] Insurer in accordance with the instructions set forth
in
Section 5.02.
(e) The
Trust
Administrator shall keep complete and accurate records in respect of (i) all
funds remitted to it by the [Class AF-5B] Insurer and deposited into the [Class
AF-5B] Policy Payments Account and (ii) the allocation of such funds to (A)
payments of interest on and principal in respect of any [Class AF-5B] Notes
and
(B) the amount of funds available to make distributions on the [Class AF-5B]
Notes pursuant to Section 5.02. The [Class AF-5B] Insurer shall have the right
to inspect such records at reasonable times during normal business hours upon
[three] Business Days’ prior notice to the Trust Administrator.
(f) The
Trust
Administrator acknowledges, and each Holder of a [Class AF-5B] Note by its
acceptance of the [Class AF-5B] Note agrees, that, without the need for any
further action on the part of the [Class AF-5B] Insurer or the Trust
Administrator, to the extent the [Class AF-5B] Insurer makes payments, directly
or indirectly, on account of principal of or interest on any [Class AF-5B]
Notes, the [Class AF-5B] Insurer will be fully subrogated to the rights of
the
Holders of such [Class AF-5B] Notes to receive such principal and interest
from
the Trust Fund. The Holders of the [Class AF-5B] Notes, by acceptance of the
[Class AF-5B] Notes, assign their rights as Holders of the [Class AF-5B] Notes
to the extent of the [Class AF-5B] Insurer’s interest with respect to amounts
paid under the [Class AF-5B] Policy. Anything herein to the contrary
notwithstanding, solely for purposes of determining the [Class AF-5B] Insurer’s
rights, as applicable, as subrogee for payments distributable pursuant to
Section 5.02, any payment with respect to distributions to the [Class AF-5B]
Notes which is made with funds received pursuant to the terms of the [Class
AF-5B] Policy shall not be considered payment of the [Class AF-5B] Notes from
the Trust Fund and shall not result in the distribution or the provision for
the
distribution in reduction of the Note Principal Amount of the [Class AF-5B]
Notes within the meaning of Article V.
(g) Upon
its
becoming aware of the occurrence of an Event of Default, the Trust Administrator
shall promptly notify the [Class AF-5B] Insurer of such Event of
Default.
(h) The
Trust
Administrator shall promptly notify the [Class AF-5B] Insurer of either of
the
following as to which it has actual knowledge: (A) the commencement of any
proceeding by or against the Depositor commenced under the United States
bankruptcy code or any other applicable bankruptcy, insolvency, receivership,
rehabilitation or similar law (an “Insolvency Proceeding”) and (B) the making of
any claim in connection with any Insolvency Proceeding seeking the avoidance
as
a preferential transfer (a “Preference Claim”) of any distribution made with
respect to the [Class AF-5B] Notes as to which it has actual knowledge. Each
Holder of a [Class AF-5B] Note, by its purchase of [Class AF-5B] Notes, and
the
Trust Administrator hereby agrees that the [Class AF-5B] Insurer (so long as
no
[Class AF-5B] Insurer Default exists) may at any time during the continuation
of
any proceeding relating to a Preference Claim direct all matters relating to
such Preference Claim, including, without limitation, (i) the direction of
any
appeal of any order relating to any Preference Claim and (ii) the posting of
any
surety, supersedes or performance bond pending any such appeal. In addition
and
without limitation of the foregoing, the [Class AF-5B] Insurer shall be
subrogated to the rights of the Trust Administrator and each Holder of a [Class
AF-5B] Note in the conduct of any Preference Claim, including, without
limitation, all rights of any party to an adversary proceeding action with
respect to any court order issued in connection with any such Preference
Claim.
(i) The
Servicer shall designate a [Class AF-5B] Insurer Contact Person who shall be
available to the [Class AF-5B] Insurer to provide reasonable access to
information regarding the Mortgage Loans. The initial [Class AF-5B] Insurer
Contact Person is to the attention of Secondary Marketing.
(j) The
Trust
Administrator shall surrender the [Class AF-5B] Policy to the [Class AF-5B]
Insurer for cancellation upon the reduction of the Note Principal Amount of
the
[Class AF-5B] Notes to zero.
(k)
For so
long as there is no continuing default by the [Class AF-5B] Insurer under its
obligations under the [Class AF-5B] Policy (a “[Class AF-5B] Insurer Default”),
each Holder of a [Class AF-5B] Note agrees that the [Class AF-5B] Insurer shall
be treated by the Depositor, the Servicer and the Trust Administrator as if
the
[Class AF-5B] Insurer were the Holder of all of the [Class AF-5B] Notes, for
the
purpose (and solely for the purpose) of the giving of any consent, the making
of
any direction or the exercise of any voting or other control rights otherwise
given to the Holders of the [Class AF-5B] Notes hereunder.
(l) With
respect to this Section 5.07, the terms “Receipt” and “Received” shall mean
actual delivery to the [Class AF-5B] Insurer, if any, prior to _______, [New
York time], on a Business Day; delivery either on a day that is not a Business
Day or after _____, [New York time], shall be deemed to be Receipt on the next
succeeding Business Day. If any notice or certificate given under the [Class
AF-5B] Policy by the Trust Administrator is not in proper form or is not
properly completed, executed or delivered, it shall be deemed not to have been
Received. The [Class AF-5B] Insurer shall promptly so advise the Trust
Administrator and the Trust Administrator may submit an amended
notice.
(m) All
notices, statements, reports, certificates or opinions required by this
Agreement to be sent to the Rating Agencies or the [Class AF-5B] Noteholders
shall also be sent at such time to the [Class AF-5B] Insurer.
(n) The
[Class AF-5B] Insurer shall be an express third party beneficiary of this
Agreement for the purpose of enforcing the provisions hereof to the extent
of
the [Class AF-5B] Insurer’s rights explicitly specified herein as if a party
hereto.
(o) All
references herein to the ratings assigned to the Notes and to the interests
of
any Noteholders shall be without regard to the [Class AF-5B] Policy, in the
case
of the [Class AF-5B] Notes.]
ARTICLE
VI
ADMINISTRATION
OF THE AGREEMENTS
Section
6.01. Duties
of the Trust Administrator.
(a) The
Trust
Administrator agrees to perform all of the duties of the Issuer under the
Depository Agreement. In addition to its duties performed under the Depository
Agreement, the Trust Administrator shall take such action that is the duty
of
the Issuer to take with respect to the following matters under the Trust
Agreement, this Agreement and the Indenture:
(i) the
duty
to cause the Note Register to be kept if the Issuer assumes the duties of Note
Registrar, and to give the Indenture Trustee notice of any appointment of a
new
Note Registrar and the location, or change in location, of the Note Register
(Section 2.04 of the Indenture);
(ii) the
duty
to cause the Certificate Register to be kept if the Issuer assumes the duties
of
Certificate Registrar, and to give the Owner Trustee notice of any appointment
of a new Certificate Registrar and the location, or change in location, of
the
Certificate Register (Section 3.03 of the Trust Agreement);
(iii) causing
the preparation of the Notes for execution by the Owner Trustee upon the
registration of any transfer or exchange of the Notes (Sections 2.04 and 2.05
of
the Indenture);
(iv) causing
the preparation of Definitive Notes in accordance with the instructions of
any
Clearing Agency, the duty to attempt to locate a qualified successor to the
Clearing Agency, if necessary, and the preparation of written notice to the
Indenture Trustee of termination of the book-entry system through the Clearing
Agency (Section 2.12 of the Indenture);
(v) the
maintenance of an office for registration of transfer or exchange of Notes
(Section 3.02 of the Indenture);
(vi) the
maintenance of an office for registration of transfer or exchange of the
Ownership Certificate (Section 3.08 of the Trust Agreement);
(vii) the
calculation of accrual of original issue discount and the amortization of
premium on the Notes (clause (v) of the fourth paragraph of Section 3.03 of
the
Indenture);
(viii) upon
written notice or actual knowledge thereof, the notification to the Indenture
Trustee and each Rating Agency of a Servicer Event of Default or a Servicer
Event of Default under this Agreement (Section 3.07(d) of the
Indenture);
(ix) upon
written notice or actual knowledge thereof, the delivery of notice to the
Indenture Trustee and each Rating Agency of each Indenture Event of Default
under the Indenture (Section 3.19 of the Indenture);
(x) the
furnishing of the Indenture Trustee with the names and addresses of Holders
of
Notes during any period when the Indenture Trustee is not the Note Registrar
(Section 7.01 of the Indenture);
(xi) causing
the preparation of any continuation statements or amendments necessary to
protect the Collateral (Section 3.05 of the Indenture);
(xii) the
mailing to the Noteholders of notices with respect to their consent to any
supplemental indentures (Sections 9.01, 9.02, 9.03 and 9.06 of the Indenture);
and
(xiii) any
other
duties expressly required to be performed by the Trust Administrator under
the
Indenture or the Trust Agreement.
(b) The
Seller shall undertake the duties of the Issuer with respect to the following
matters under the Indenture:
(i) to
cause
the preparation of Issuer Orders (and execute the same on behalf of the Issuer)
(Sections 9.01 and 9.02 of the Indenture);
(ii) to
obtain
Opinions of Counsel with respect to the execution of supplemental indentures
and, if necessary, to mail to the Noteholders notices with respect to their
consent to such supplemental indentures (Sections 9.01, 9.02, 9.03 and 9.07
of
the Indenture);
(iii) the
preparation (but not the execution) of the annual Officer’s Certificate
regarding the Issuer’s compliance with the terms of the Indenture (Section 3.09
of the Indenture); and
(iv) causing
the preparation of an Officer’s Certificate and the obtaining of the Opinion of
Counsel (which shall not be at the expense of the Trust Administrator) with
respect to any request by the Issuer to the Indenture Trustee to take any action
under the Indenture (Sections 4.01 and 11.01 of the Indenture);
(v) the
compliance with any request of the Indenture Trustee with respect to the sale
of
the Collateral in a commercially reasonable manner if an Indenture Event of
Default shall have occurred and be continuing under the Indenture (Section
5.04
of the Indenture); and
(vi) causing
the preparation of an Issuer Request and Officer’s Certificate (and executing
the same on behalf of the Issuer) and the obtaining of an Opinion of Counsel
(which shall not be at the expense of the Trust Administrator), if necessary,
for the release of the Collateral, as defined in the Indenture (Section 8.03
of
the Indenture).
(c) The
Issuer will indemnify the Owner Trustee, the Seller and the Trust Administrator,
and their respective agents for, and hold them harmless against, any losses,
liability or expense incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of
the transactions contemplated by the Trust Agreement or this Agreement,
including the reasonable costs and expenses of defending themselves against
any
claim or liability in connection with the exercise or performance of any of
their powers or duties under the Trust Agreement, the Indenture or this
Agreement.
(d) Subject
to subsection (e) of this Section 6.01, and in accordance with the directions
of
the Owner Trustee, the Trust Administrator shall perform or supervise the
performance of such other activities in connection with the Collateral
(including the Operative Agreements) as are not covered by any of the foregoing
provisions and as are expressly requested in writing by the Owner Trustee and
are reasonably within the capability of the Trust Administrator.
(e) In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Trust Administrator may enter into transactions with or otherwise
deal with any of its Affiliates; provided,
however,
that
the terms of any such transactions or dealings shall be in accordance with
any
directions received from the Issuer and shall be, in the Trust Administrator’s
opinion, no less favorable to the Issuer than would be available from
unaffiliated parties.
In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Trust Administrator shall be subject to the same standard of
care
and have the same rights, indemnifications and immunities as the Indenture
Trustee under the Indenture, including, without limitation, the right to
reimbursement and indemnification on behalf of the Issuer from funds in the
Collection Account for all losses, costs and expenses of any kind or nature
(including without limitation attorneys’ fees and disbursements) incurred by the
Trust Administrator (including without limitation in its various capacities
as
Paying Agent, Certificate Paying Agent, Certificate Registrar and Note
Registrar) in connection with the performance of its duties hereunder or under
any other Operative Agreement.
The
Trust
Administrator in its capacity as the Certificate Registrar, and upon a request
received from the Owner Trustee, shall promptly notify the Certificateholders
of
(i) any change in the Corporate Trust Office of the Owner Trustee, (ii) any
amendment to the Trust Agreement requiring notice be given to the
Certificateholders and (iii) any other notice required to be given to the
Certificateholders by the Owner Trustee under the Trust Agreement.
Section
6.02. Duties
of the Trust Administrator With Respect to the Indenture, the Trust Agreement
and this Agreement.
(a) The
Trust
Administrator shall take all appropriate action with respect to the following
matters under the Indenture, the Trust Agreement and this
Agreement:
(i) the
duties of an authenticating agent for authentication of the Notes (Sections
2.01, 2.02, 2.05 and 2.10 of the Indenture);
(ii) the
duties of Note Registrar to be kept (Sections 2.03, 2.04 and 2.07 of the
Indenture);
(iii) to
provide notices and instructions to the Clearing Agency (Section 2.11 of the
Indenture);
(iv) the
duties of Paying Agent (Sections 3.03, 4.01, 4.02 and 5.02 of the Indenture);
and
(v) the
duties of agent or attorney-in-fact for the purposes of filing amendments and
continuation statements for the Issuer (Section 3.05 of the
Indenture).
(b) The
Issuer will indemnify the Owner Trustee and the Trust Administrator, and their
respective agents for, and hold them harmless against, any losses, liability
or
expense incurred without gross negligence or bad faith on their part, arising
out of or in connection with the acceptance or administration of the
transactions contemplated by the Trust Agreement or this Agreement, including
the reasonable costs and expenses of defending themselves against any claim
or
liability in connection with the exercise or performance of any of their powers
or duties under the Trust Agreement, the Indenture or this
Agreement.
Section
6.03. Records.
The
Trust Administrator shall maintain appropriate books of account and records
relating to services performed hereunder, which books of account and records
shall be accessible for inspection by the Issuer and the Depositor at any time
during normal business hours.
Section
6.04. Compensation.
The
Trust Administrator will perform the duties and provide the services called
for
under Sections 6.01 and 6.02 above for such compensation as shall be agreed
upon
between the Trust Administrator and the Servicer.
Section
6.05. Additional
Information to be Furnished to the Issuer.
The
Depositor shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably
request.
Section
6.06. Independence
of the Trust Administrator.
For all
purposes of this Agreement, the Trust Administrator shall be an independent
contractor and shall not be subject to the supervision of the Issuer or the
Owner Trustee with respect to the manner in which it accomplishes the
performance of its obligations hereunder. Unless expressly authorized by the
Issuer, the Trust Administrator shall have no authority to act for or represent
the Issuer or the Owner Trustee in any way and shall not otherwise be deemed
an
agent of the Issuer or the Owner Trustee.
Section
6.07. No
Joint Venture.
Nothing
contained in this Agreement (i) shall constitute the Trust Administrator or
the
Depositor, respectively, and either of the Issuer or the Owner Trustee, as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section
6.08. Other
Activities of Trust Administrator and the Depositor.
Nothing
herein shall prevent the Trust Administrator, the Depositor or their respective
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity as an Trust Administrator for any other person
or
entity even though such person or entity may engage in business activities
similar to those of the Issuer or the Owner Trustee.
Section
6.09. Resignation
and Removal of Trust Administrator.
(a) Subject
to Section 6.09(d) hereof, the Trust Administrator may resign its duties
hereunder by providing the Issuer with at least [60] days’ prior written
notice.
(b) Subject
to Section 6.09(d) hereof, the Issuer may remove the Trust Administrator without
cause by providing the Trust Administrator with at least [60] days’ prior
written notice.
(c) Subject
to Section 6.09(d) hereof, the Issuer may remove the Trust Administrator
immediately upon written notice of termination from the Issuer to the Trust
Administrator if any of the following events shall occur; provided that in
the
event of a breach related to the obligations set forth in Section 6.09(d) (with
respect to notice to the Depositor) or Article X, the Trust Administrator may
only be terminated at the direction of the Depositor:
(i) the
Trust
Administrator shall default in the performance of any of its duties under this
Agreement ((except with respect to a failure related to a Limited Exchange
Act
Reporting Obligation) and, after notice of such default, shall not cure such
default within [ten] days (or, if such default cannot be cured in such time,
shall not give within [ten] days such assurance of cure as shall be reasonably
satisfactory to the Issuer provided that the [ten-day] cure period shall not
apply to the failure to comply with the requirements set forth in Section
6.09(d) (with respect to notice to the Depositor) or Article X, for which the
grace period shall not exceed the lesser of 10 calendar days or such period
in
which the applicable Exchange Act Report can be filed timely (without taking
into account any extensions)); or
(ii) a
court
having jurisdiction in the premises shall (x) enter a decree or order for
relief, which decree or order shall not have been vacated within [60] days,
in
respect of the Trust Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
(y)
appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator
or
similar official for the Trust Administrator or any substantial part of its
property, or (z) order the winding-up or liquidation of the Trust
Administrator’s affairs; or
(iii) the
Trust
Administrator shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent to
the
entry of an order for relief in an involuntary case under any such law, or
shall
consent to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the Trust Administrator or
any
substantial part of its property, shall consent to the taking of possession
by
any such official of any substantial part of its property, shall make any
general assignment for the benefit of creditors or shall fail generally to
pay
its debts as they become due.
The
Trust
Administrator agrees that if any of the events specified in clauses (ii) or
(iii) of this Section 6.09(c) shall occur, it shall give written notice thereof
to the Issuer and the Indenture Trustee within [seven] days after the occurrence
of such event.
The
Depositor shall not be entitled to terminate the rights and obligations of
the
Trust Administrator pursuant to subparagraph (c)(i) if a failure of the Trust
Administrator to identify a Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB was attributable
solely to the role or functions of such Subcontractor with respect to mortgage
loans other than the Mortgage Loans.
(d) No
resignation or removal of the Trust Administrator pursuant to this Section
shall
be effective until (i) a successor Trust Administrator shall have been appointed
by the Issuer in accordance with the Trust Agreement, (ii) such successor Trust
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Trust Administrator is bound hereunder
and
(iii) the Depositor shall have received the information described in the
following sentence. As a condition to the effectiveness of any such resignation,
at least 15 calendar days prior to the effective date of such resignation,
the
Trust Administrator shall provide (x) written notice to the Depositor of any
successor pursuant to this Section and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a successor trust administrator. If a successor
Trust Administrator does not take office within [60] days after the retiring
Trust Administrator resigns or is removed, the resigning or removed Trust
Administrator or the Issuer may petition any court of competent jurisdiction
for
the appointment of a successor Trust Administrator.
(e) The
appointment of any successor Trust Administrator shall be effective only after
receipt of a letter from each Rating Agency to the effect that such proposed
appointment will not cause a reduction or withdrawal of the then current ratings
of the Notes.
(f) Subject
to Sections 6.09(d) and 6.09(e) above, the Trust Administrator acknowledges
that
upon the appointment of a successor Servicer pursuant to Section 7.01, the
Trust
Administrator shall immediately resign and such successor Servicer shall
automatically become the Trust Administrator under this Agreement. Any such
successor Servicer shall be required to agree to assume the duties of the Trust
Administrator under the terms and conditions of this Agreement and the other
Operative Agreements in its acceptance of appointment as successor
Servicer.
Section
6.10. Action
upon Termination, Resignation or Removal of the Trust
Administrator.
Promptly upon the effective date of termination of this Agreement or the
resignation or removal of the Trust Administrator pursuant to Section 6.09
hereof, the Trust Administrator shall be entitled to be paid all reimbursable
expenses, including any reasonable out-of-pocket attorneys’ fees, accruing to it
to the date of such termination, resignation or removal. The Trust Administrator
shall forthwith upon such termination pursuant to Section 6.09 deliver to the
successor Trust Administrator all property and documents of or relating to
the
Collateral then in the custody of the Trust Administrator, or if this Agreement
has been terminated, to the Depositor. In the event of the resignation or
removal of the Trust Administrator pursuant to Section 6.09, the Trust
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties
of
the Trust Administrator.
ARTICLE
VII
SERVICER
EVENTS OF DEFAULT
Section
7.01. Servicer
Events of Default; Indenture Trustee To Act; Appointment of
Successor.
(a) The
occurrence of any one or more of the following events shall constitute a
“Servicer Event of Default”:
(i) Any
failure by the Servicer to furnish to the Trust Administrator the Mortgage
Loan
data sufficient to prepare the reports described in Section 4.11(a) which
continues unremedied for a period of [one] Business Day after the date upon
which written notice of such failure shall have been given to the Servicer
by
the Indenture Trustee by the Holders of not less than [25]% of the Class
Principal Amount of each Class of Notes affected thereby; or
(ii) Any
failure on the part of the Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
(except with respect to a failure related to a Limited Exchange Act Reporting
Obligation) contained in this Agreement which continues unremedied for a period
of [30] days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the Indenture
Trustee or the Trust Administrator or to the Servicer and the Indenture Trustee
by the Majority Noteholders; provided that the [thirty-day] cure period shall
not apply to the failure to comply with the requirements set forth in Section
10.04, Section 4.28 (with respect to notice to the Depositor), Section 4.29
(with respect to notice to the Depositor) or Article X, for which the grace
period shall not exceed the lesser of 10 calendar days or such period in which
the applicable Exchange Act Report can be filed timely (without taking into
account any extensions); or
(iii) failure
by the Servicer to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Properties are located
except where the failure to so maintain such license does not have a material
adverse effect on the Servicer’s ability to service the Mortgage Loans;
or
(iv) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of its affairs, shall have
been entered against the Servicer, and such decree or order shall have remained
in force undischarged or unstayed for a period of [60] days or any Rating Agency
reduces or withdraws or threatens to reduce or withdraw the rating of the Notes
because of the financial condition or loan servicing capability of such
Servicer; or
(v) The
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or relating to
the
Servicer or of or relating to all or substantially all of its property;
or
(vi) The
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors
or
voluntarily suspend payment of its obligations; or
(vii) the
Servicer ceases to be a FHA Approved Mortgagee; or
(viii) the
Servicer attempts to assign the servicing of the Mortgage Loans or its right
to
servicing compensation hereunder or the Servicer or attempts to assign this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof in a manner not permitted under this Agreement;
or
(ix) The
Servicer shall be dissolved, or shall dispose of all or substantially all of
its
assets, or consolidate with or merge into another entity or shall permit another
entity to consolidate or merge into it, such that the resulting entity does
not
meet the criteria for a successor servicer as specified in Section 4.28 hereof;
or
(x) If
a
representation or warranty set forth in Section 4.02 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Noteholders, and the circumstance or condition
in
respect of which such representation or warranty was incorrect shall not have
been eliminated or cured within [30] days after the date on which written notice
of such incorrect representation or warranty shall have been given to the
Servicer by the Indenture Trustee or the Trust Administrator, or to the Servicer
and the Indenture Trustee by the Majority Noteholders; or
(xi) A
sale or
pledge of any of the rights of the Servicer hereunder or an assignment of this
Agreement by the Servicer or a delegation of the rights or duties of the
Servicer hereunder shall have occurred in any manner not otherwise permitted
hereunder and without the prior written consent of the Indenture Trustee and
the
Majority Noteholders; or
(xii) The
Servicer has notice or actual knowledge that the Servicer at any time is not
either an FHA Approved Mortgagee, and the Servicer has not terminated the rights
and obligations of such Servicer under this Agreement and replaced the Servicer
with an FHA Approved Mortgagee within [60] days of the date the Servicer
receives such notice or acquires such actual knowledge; or
(xiii) Any
failure of the Servicer to remit to the Trust Administrator any Advance required
to be made to the Trust Administrator for the benefit of Noteholders under
the
terms of this Agreement, which failure continues unremedied as of the close
of
business on the Business Day prior to a Payment Date.
If
a
Servicer Event of Default described in clauses (i) through (ix) of this Section
7.01 shall occur, then, in each and every case, subject to applicable law,
so
long as any such Servicer Event of Default shall not have been remedied within
any period of time prescribed by this Section 7.01, the Indenture Trustee,
upon
obtaining actual knowledge thereof, by notice in writing to the Servicer may,
and shall, if so directed by the Majority Noteholders, terminate all of the
rights and obligations of the Servicer hereunder and in and to the Mortgage
Loans and the proceeds thereof; provided that in the event of a Servicer Event
of Default related to the obligations set forth in Section 4.26(a), Section
4.14(b) (with respect to notice to the Depositor) or Article X, the Servicer
may
only be terminated at the direction of the Depositor. If a Servicer Event of
Default described in clause (x) of this Section 7.01 shall occur, then, in
each
and every case, subject to applicable law, so long as such Servicer Event of
Default shall not have been remedied within the time period prescribed by clause
(x) of this Section 7.01, the Indenture Trustee, by notice in writing to the
Servicer, shall promptly terminate all of the rights and obligations of the
Servicer hereunder and in and to the Mortgage Loans and the proceeds thereof.
On
or after the receipt by the Servicer of such written notice, all authority
and
power of the Servicer, and only in its capacity as Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Indenture Trustee pursuant to and under the terms of
this Agreement; and the Indenture Trustee is hereby authorized and empowered
to
execute and deliver, on behalf of the defaulting Servicer as attorney-in-fact
or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of
such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The
defaulting Servicer agrees to cooperate with the Indenture Trustee in effecting
the termination of the defaulting Servicer’s responsibilities and rights
hereunder as Servicer including, without limitation, providing the Indenture
Trustee or its designee all documents and records in electronic or other form
reasonably requested by it to enable the Indenture Trustee or its designee
to
assume the defaulting Servicer’s functions hereunder and the transfer to the
Indenture Trustee for administration by it of all amounts which shall at the
time be or should have been deposited by the defaulting Servicer in the
Collection Account maintained by such defaulting Servicer and any other account
or fund maintained with respect to the Notes or thereafter received with respect
to the Mortgage Loans. The Servicer being terminated shall bear all reasonable
out-of-pocket costs of a servicing transfer, including but not limited to those
of the Indenture Trustee, legal fees and expenses, accounting and financial
consulting fees and expenses, and costs of amending the Agreement, if necessary.
In addition, if during the period that the Depositor is required to file
Exchange Act Reports with respect to the Trust Fund, the Servicer shall fail
to
observe or perform any of the obligations that constitute a Limited Exchange
Act
Reporting Obligation or the obligations set forth in Section 4.28(a), Section
4.14(a) or Section 10.01(a)(1) and (2), and such failure continues for the
lesser of [10] calendar days or such period in which the applicable Exchange
Act
Report can be filed timely (without taking into account any extensions), so
long
as such failure shall not have been remedied, the Trust Administrator shall,
but
only at the direction of the Depositor, terminate all of the rights and
obligations of the Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof, other than its rights as a Noteholder hereunder.
The Depositor shall not be entitled to terminate the rights and obligations
of
the Servicer if a failure of the Servicer to identify a Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB was the attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
The
Indenture Trustee shall be entitled to be reimbursed from the Servicer (or
by
the Trust Estate, if the Servicer is unable to fulfill its obligations
hereunder) for all costs associated with the transfer of servicing from the
predecessor Servicer, including, without limitation, any costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
Indenture Trustee to correct any errors or insufficiencies in the servicing
data
or otherwise to enable the Indenture Trustee to service the Mortgage Loans
properly and effectively. If the terminated Servicer does not pay such
reimbursement within [thirty] days of its receipt of an invoice therefor, such
reimbursement shall be an expense of the Trust Estate and the Indenture Trustee
shall be entitled to withdraw such reimbursement from amounts on deposit in
the
Collection Account pursuant to Section 4.08(ix); provided
that the
terminated Servicer shall reimburse the Trust Estate for any such expense
incurred by the Trust Estate; and provided,
further,
that
the Indenture Trustee shall take such action, if any, as provided in the
Indenture and as directed by the Noteholders pursuant thereto with respect
to
pursuing any remedy against any party obligated to make such
reimbursement.
Notwithstanding
the termination of its activities as Servicer, each terminated Servicer shall
continue to be entitled to reimbursement to the extent provided in Section
4.08
to the extent such reimbursement relates to the period prior to such Servicer’s
termination.
If
any
Servicer Event of Default shall occur, of which a Responsible Officer of the
Indenture Trustee has actual knowledge, the Indenture Trustee shall promptly
notify each Rating Agency and the Depositor of the nature and extent of such
Servicer Event of Default. The Trust Administrator or the Servicer shall
immediately give written notice to the Indenture Trustee upon the Servicer’s
failure to remit Advances on the date specified herein.
In
the
event that the Indenture Trustee assumes the duties of the Servicer as set
forth
herein, the Indenture Trustee shall provide the Depositor in writing and in
form
and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a successor
Servicer.
(b) On
and
after the time the Servicer receives a notice of termination from the Indenture
Trustee pursuant to Section 7.01(a) or the Indenture Trustee receives the
resignation of the Servicer evidenced by an Opinion of Counsel pursuant to
Section 4.29, the Indenture Trustee, unless another Servicer shall have been
appointed, shall be the successor in all respects to the Servicer in its
capacity as such under this Agreement and the transactions set forth or provided
for herein and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto and arising thereafter
placed on the Servicer hereunder, including the obligation to make Advances;
provided, however,
that any
failure to perform such duties or responsibilities caused by the Servicer’s
failure to provide information required by this Agreement shall not be
considered a default by the Indenture Trustee hereunder. In addition, the
Indenture Trustee shall have no responsibility for any act or omission of the
Servicer prior to the issuance of any notice of termination and shall have
no
liability relating to the representations and warranties of the Servicer set
forth in Section 4.02. In the Indenture Trustee’s capacity as such successor,
the Indenture Trustee shall have the same limitations on liability herein
granted to the Servicer. As compensation therefor, the Indenture Trustee shall
be entitled to receive all compensation payable to the Servicer under this
Agreement.
(c) Notwithstanding
the above, the Indenture Trustee may, if it shall be unwilling to continue
to so
act, or shall, if it is unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution servicer, Servicer, servicing or mortgage servicing institution
having a net worth of not less than $[15,000,000] and meeting such other
standards for a successor Servicer as are set forth in this Agreement, as the
successor to such Servicer in the assumption of all of the responsibilities,
duties or liabilities of a Servicer, like the Servicer. Such successor Servicer
may be an Affiliate of the Indenture Trustee; provided, however,
that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor Servicer, the Indenture Trustee, in its individual
capacity shall agree, at the time of such designation, to be and remain liable
to the Issuer and the Indenture Trustee for such Affiliate’s actions and
omissions in performing its duties hereunder. In connection with such
appointment and assumption, the Indenture Trustee may make such arrangements
for
the compensation of such successor out of payments on the Mortgage Loans as
it
and such successor shall agree; provided, however,
that no
such compensation shall be in excess of that permitted to the Servicer
hereunder. The Indenture Trustee and such successor shall take such actions,
consistent with this Agreement, as shall be necessary to effectuate any such
succession and may make other arrangements with respect to the servicing to
be
conducted hereunder which are not inconsistent herewith. The Servicer shall
cooperate with the Indenture Trustee and any successor Servicer in effecting
the
termination of the Servicer’s responsibilities and rights hereunder including,
without limitation, notifying the Servicer of the assignment of the servicing
functions and providing the Indenture Trustee and successor Servicer, as
applicable, all documents and records in electronic or other form reasonably
requested by it to enable it to assume the Servicer’s functions hereunder and
the transfer to the Indenture Trustee or such successor Servicer, as applicable,
all amounts or investment property which shall at the time be or should have
been deposited by the Servicer in the Collection Account and any other account
or fund maintained with respect to the Notes or thereafter be received with
respect to the Mortgage Loans. Neither the Indenture Trustee nor any other
successor Servicer shall be deemed to be in default hereunder by reason of
any
failure to make, or any delay in making, any payment hereunder or any portion
thereof caused by (i) the failure of the Servicer to deliver, or any delay
in
delivering, cash, documents or records to it, (ii) the failure of the Servicer
to cooperate as required by this Agreement, (iii) the failure of the Servicer
to
deliver the Mortgage Loan data to the Indenture Trustee as required by this
Agreement or (iv) restrictions imposed by any regulatory authority having
jurisdiction over the Servicer.
As
a
condition to any such succession, such successor Servicer shall provide to
the
Depositor in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
a successor Servicer.
Section
7.02. Additional
Remedies of Indenture Trustee Upon Servicer Event of Default.
During
the continuance of any Servicer Event of Default, so long as such Servicer
Event
of Default shall not have been remedied, the Indenture Trustee, in addition
to
the rights specified in Section 7.01, shall have the right, in its own name
and
as trustee of an express trust, to take all actions now or hereafter existing
at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Noteholders
(including the institution and prosecution of all judicial, administrative
and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and
each
and every remedy shall be cumulative and in addition to any other remedy, and
no
delay or omission to exercise any right or remedy shall impair any such right
or
remedy or shall be deemed to be a waiver of any Servicer Event of
Default.
Section
7.03. Waiver
of Defaults.
The
Majority Noteholders may, on behalf of all Noteholders, waive any default or
Servicer Event of Default by the Servicer in the performance of its obligations
hereunder, except that a default in the making of any required deposit to the
Collection Account that would result in a failure of the Trust Administrator
or
the Paying Agent to make any required payment of principal of or interest on
the
Notes may only be waived with the consent of [100]% of the affected Noteholders.
Notwithstanding the foregoing, in the event of a Servicer Event of Default
related to the obligations set forth in Section 4.26, Section 4.14(b) (with
respect to notice to the Depositor) and Article X, only the Depositor may waive
such Servicer Event of Default. Upon any waiver of a past default, such default
shall cease to exist, and any Servicer Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
Section
7.04. Notification
to Holders.
Upon
termination of the Servicer or appointment of a successor to the Servicer,
in
each case as provided herein, the Indenture Trustee shall promptly mail notice
thereof by first class mail to the Noteholders at their respective addresses
appearing on the applicable Register. The Indenture Trustee shall also, within
[45] days after the occurrence of any Servicer Event of Default known to the
Indenture Trustee, give written notice thereof to Noteholders, unless such
Servicer Event of Default shall have been cured or waived prior to the issuance
of such notice and within such [45] day period.
Section
7.05. Directions
by Noteholders and Duties of Indenture Trustee During Servicer Event of
Default.
During
the continuance of any Servicer Event of Default, the Majority Noteholders
may
direct the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
upon the Indenture Trustee, under this Agreement; provided, however,
that the
Indenture Trustee shall be under no obligation to pursue any such remedy, or
to
exercise any of the trusts or powers vested in it by this Agreement (including,
without limitation, (i) the conducting or defending of any administrative action
or litigation hereunder or in relation hereto and (ii) the terminating of the
Servicer or any successor Servicer from its rights and duties as Servicer
hereunder) at the request, order or direction of any of the Noteholders, unless
such Noteholders shall have offered to the Indenture Trustee security or
indemnity reasonably satisfactory to it against the cost, expenses and
liabilities which may be incurred therein or thereby; and, provided
further,
that,
the Indenture Trustee shall have the right to decline to follow any such
direction if the Indenture Trustee, in accordance with an Opinion of Counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Indenture Trustee in good faith determines that the action or
proceeding so directed would involve it in personal liability for which it
is
not indemnified to its satisfaction or be unjustly prejudicial to the non
assenting Noteholders.
Section
7.06. Action
Upon Certain Failures of the Servicer and Upon Servicer Event of
Default.
In the
event that a Responsible Officer of the Indenture Trustee or the Trust
Administrator shall have actual knowledge of any action or inaction of the
Servicer that would become a Servicer Event of Default upon the Servicer’s
failure to remedy the same after notice, the Indenture Trustee or Trust
Administrator, as applicable, shall give notice thereof to the
Servicer.
ARTICLE
VIII
TERMINATION
Section
8.01. Termination.
The
respective obligations and responsibilities of the Servicer, the Trust
Administrator, the Depositor, the Issuer, the Servicer and the Indenture Trustee
created hereby (other than obligations expressly stated to survive the
termination of the Trust) shall terminate on the day after the day on which
the
Notes are paid in full (including payment pursuant to Section 8.02 below) (the
“Termination Date”).
Section
8.02. Termination
Prior to Maturity Date; Optional Redemption.
(a) On
the
Payment Date following the Determination Date on which the Aggregate Collateral
Balance is less than [20]% of the Aggregate Collateral Balance as of the Cut-off
Date, _____________________________ acting directly or through one or more
Affiliates, shall have the option to purchase the Mortgage Loans, any REO
Property and any other property remaining in the Trust for a price equal to
the
Termination Price. The Servicer will be reimbursed from the Termination Price
for any outstanding Advances, Servicing Advances and unpaid Servicing Fees
and
other amounts not previously reimbursed pursuant to the provisions of this
Agreement, as applicable, and the Trust Administrator, the Owner Trustee and
the
Indenture Trustee shall be reimbursed for any previously unreimbursed amounts
for which they are entitled to be reimbursed pursuant to this Agreement, the
Indenture or the Trust Agreement, as applicable. If such option is exercised,
the Trust will be terminated resulting in a mandatory redemption of the Notes.
_____________________ shall deliver written notice of its intention to exercise
such option to the Issuer, the Trust Administrator, the Indenture Trustee and
the Servicer not less than [15] days prior to the applicable Payment Date.
If
_____________________ fails to exercise such option prior to the Stepup Date,
the Note Interest Rate for each class of Notes will be increased as set forth
herein beginning on the Stepup Date and for each Payment Date thereafter.
_____________________ shall deliver written notice of its intention to exercise
such option to the Issuer, the Indenture Trustee and the Servicer not less
than
[ten] days prior to the applicable Payment Date.
(b) In
addition, if ______________________ does not exercise its purchase option
pursuant to subsection (a) of this Section 8.02, then, on the Payment Date
following the Determination Date on which the Aggregate Collateral Balance
is
less than [10]% of the Aggregate Collateral Balance as of the Cut-off Date,
the
Servicer acting directly or through one or more Affiliates, shall have the
option to purchase the Mortgage Loans, any REO Property and any other property
remaining in the Trust for a price equal to the Termination Price. All
conditions applying to _____________________’s right to purchase the Mortgage
Loans pursuant to paragraph (a) above shall also apply to the Servicer’s
right.
(c) Promptly
following any such purchase pursuant to paragraph (a) or (b) of this Section
and
receipt of an Officer’s Certificate of _____________________ or of the Servicer,
as applicable, that the purchase price has been deposited in the Collection
Account, the Indenture Trustee shall release the Mortgage Files to the purchaser
of such Mortgage Loans pursuant to this Section 8.02, or otherwise upon its
order.
Section
8.03. Certain
Notices upon Final Payment.
The
Servicer or the Trust Administrator, as applicable, shall give the Issuer,
the
Indenture Trustee, the Owner Trustee, each Rating Agency, each Noteholder and
the Depositor at least [30] days’ prior written notice of the date on which the
Trust is expected to terminate in accordance with Section 8.01, or the date
on
which the Notes will be redeemed in accordance with Section 8.02. Not later
than
the [fifth] Business Day in the Collection Period in which the final payment
in
respect to the Notes is payable to the Noteholders, the Indenture Trustee shall
mail to the Noteholders a notice specifying the procedures with respect to
such
final payment. The Trust Administrator on behalf of the Indenture Trustee shall
give a copy of such notice to each Rating Agency at the time such notice is
given to Noteholders. Following the final payment thereon, such Notes shall
become void, no longer outstanding and no longer evidence any right or interest
in the Mortgage Loans, the Mortgage Files or any proceeds of the
foregoing.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section
9.01. Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
9.02. Entire
Agreement.
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements, understandings, inducements and conditions, express or implied,
oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof.
Section
9.03. Amendment.
(a) This
Agreement may be amended from time to time by the parties hereto, without notice
to or the consent of any of the Holders of the Notes, (i) to cure any ambiguity,
(ii) to conform the provisions of this Agreement to the information contained
in
the Prospectus or to correct or supplement any provision herein, (iii) to make
any other provision with respect to matters or questions arising under this
Agreement or (iv) to add, delete, or amend any provision in order to comply
with
any requirements imposed by the Code, ERISA and their related regulations.
No
such amendment effected pursuant to the preceding sentence shall, as evidenced
by an Opinion of Counsel (which shall be an expense of the party requesting
such
amendment and shall not be an expense of the Trust or the Indenture Trustee),
(1) affect the status of the Notes as debt for federal income tax purposes
or
(2) only in the case of an amendment effected pursuant to clause (iii) of such
sentence, adversely affect in any material respect the interests of any Holder.
Prior to entering into any amendment without the consent of Holders pursuant
to
this paragraph, the Indenture Trustee may require an Opinion of Counsel (at
the
expense of the party requesting such amendment) to the effect that such
amendment is permitted under this paragraph. Any such amendment shall be deemed
not to adversely affect in any material respect any Holder, if the Indenture
Trustee receives written confirmation from each Rating Agency that such
amendment will not cause such Rating Agency to reduce the then current ratings
assigned to the Notes.
(b) This
Agreement may also be amended from time to time by the parties hereto with
the
consent of (i) the Holders of each Class of Notes affected thereby evidencing
Voting Interests aggregating not less than [66-2/3]% of each such Class and
(ii)
the Holder of the Ownership Certificate, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of
this Agreement or modifying in any manner the rights of Noteholders;
provided,
however,
that no
such amendment may (i) reduce in any manner the amount of, or delay the timing
of, payments that are required to be made in respect of any Notes without the
consent of the Holder of each such Note affected thereby or (ii) reduce the
percentage of Notes the Holders of which are required to consent to any such
amendment without the consent of the Holders of [100]% of the Class Principal
Amount of the Notes. For purposes of this paragraph, references to “Holder” or
“Holders” shall be deemed to include, in the case of Book-Entry Notes, the
related Note Owners.
(c) Promptly
after the execution of any such amendment, the Indenture Trustee shall furnish
written notification of the substance of such amendment to each Holder, the
Depositor and to each Rating Agency.
(d) It
shall
not be necessary for the consent of Holders under this Section 9.03 to approve
the particular form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by Holders
shall be subject to such reasonable regulations as the Indenture Trustee may
prescribe.
Section
9.04. Acts
of Noteholders.
Except
as otherwise specifically provided herein, whenever Noteholder action, consent
or approval is required under this Agreement, such action, consent or approval
shall be deemed to have been taken or given on behalf of, and shall be binding
upon, all Noteholders if the Majority Noteholders agree to take such action
or
give such consent or approval.
Section
9.05. Recordation
of Agreement.
To the
extent permitted by applicable law, this Agreement, or a memorandum thereof
if
permitted under applicable law, is subject to recordation in all appropriate
public offices for real property records in all of the counties or other
comparable jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Depositor on direction and
at
the expense of Holders of not less than [66-2/3]% of the Note Principal Amount
of the Notes and of the Holder of the Ownership Certificate requesting such
recordation, but only when accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of
the
Noteholders, or is necessary for the administration or servicing of the Mortgage
Loans.
Section
9.06. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
9.07. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed by overnight courier, addressed as
follows or delivered by facsimile (or such other address as may hereafter be
furnished to the other party by like notice):
(i) if
to the
Seller:
______________________________________
______________________________________
______________________________________
Attention:
_____________________________
Telephone:
____________________________
Facsimile:
_____________________________
with
a
copy to:
______________________________________
(ii) if
to the
Servicer:
______________________________________
______________________________________
______________________________________
Attention:
_____________________________
Telephone:
____________________________
Facsimile:
_____________________________
with
a
copy to:
______________________________________
(iii) if
to the
Trust Administrator:
______________________________________
______________________________________
______________________________________
Attention:
_____________________________
Telephone:
____________________________
Facsimile:
_____________________________
if
to the
Indenture Trustee:
______________________________________
______________________________________
______________________________________
Attention:
_____________________________
Telephone:
____________________________
Facsimile:
_____________________________
(iv) if
to the
Depositor:
IndyMac
ABS, Inc.
000
Xxxxx
Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention:
_______ 200_-__
(v) if
to the
Issuer:
c/o
___________________________________
______________________________________
______________________________________
______________________________________
Attention:
_____________________________
All
demands, notices and communications to a party hereunder shall be in writing
and
shall be deemed to have been duly given when delivered to such party at the
relevant address, facsimile number or electronic mail address set forth above
or
at such other address, facsimile number or electronic mail address as such
party
may designate from time to time by written notice in accordance with this
Section 9.07.
Section
9.08. Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Notes or the rights of the Holders thereof.
Section
9.09. Indulgences;
No Waivers.
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted to
have
granted such waiver.
Section
9.10. Headings
Not To Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
9.11. Benefits
of Agreement.
Nothing
in this Agreement or in the Notes, express or implied, shall give to any Person,
other than the parties to this Agreement and their successors hereunder and
the
Holders of the Notes, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement. Notwithstanding the foregoing, (i) the Owner
Trustee shall be an express third-party beneficiary of this Agreement and (ii)
_____________________ shall be an express third-party beneficiary with respect
to Section 8.02.
Section
9.12. Special
Notices to the Rating Agencies.
(a) The
Servicer shall give prompt notice to each Rating Agency of the occurrence of
any
of the following events of which it has notice:
(i) any
amendment to this Agreement pursuant to Section 9.03; and
(ii) the
making of a final payment hereunder.
(b) All
notices to the Rating Agencies provided for by this Section shall be in writing
and sent by first class mail, telecopy or overnight courier, as
follows:
if
to
[Moody’s]:
[Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
no.:
(000) 000-0000]
if
to
[S&P]:
[Standard
& Poor’s Ratings Services, a division
of
The
XxXxxx-Xxxx Companies, Inc.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
no.:
(000) 000-0000]
(c) The
Trust
Administrator shall make available to the Rating Agencies each report prepared
pursuant to Section 4.11.
Section
9.13. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one and
the
same instrument.
Section
9.14. Execution
by the Issuer.
It is
expressly understood and agreed by the parties hereto that (a) this Agreement
is
executed and delivered by __________________, not individually or personally
but
solely as Owner Trustee of the Issuer, in the exercise of the powers and
authority conferred and vested in it as trustee, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by _____________________ but is made and intended for the purpose
of
binding only the Issuer, (c) nothing herein contained shall be construed as
creating any liability on ______________________, individually or personally,
to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
person claiming by, through or under the parties hereto and (d) under no
circumstances shall ______________________ be personally liable for the payment
of any indebtedness or expenses of the Issuer or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Issuer under this Agreement or any other
document.
ARTICLE
X
EXCHANGE
ACT REPORTING
Section
10.01. Filing
Obligations.
The
Servicer, the Trust Administrator, the [Indenture Trustee], the Owner Trustee
and the Seller shall reasonably cooperate with the Depositor in connection
with
the satisfaction of the Depositor’s reporting requirements under the Exchange
Act with respect to the Trust Fund. In addition to the information specified
below, if so requested by the Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act, the Servicer, the Trust
Administrator, the [Indenture Trustee], the Owner Trustee and the Seller shall
provide the Depositor with (a) such information which is available to such
Person without unreasonable effort or expense and within such timeframe as
may
be reasonably requested by the Depositor to comply with the Depositor’s
reporting obligations under the Exchange Act and (b) to the extent such Person
is a party (and the Depositor is not a party) to any agreement or amendment
required to be filed, copies of such agreement or amendment in XXXXX-compatible
form.
Section
10.02. Form
10-D Filings.
(a) In
accordance with the Exchange Act, the Trust Administrator shall prepare for
filing and file within 15 days after each Payment Date (subject to permitted
extensions under the Exchange Act) with the Commission with respect to the
Trust
Fund, a Form 10-D with copies of the Monthly Report and, to the extent delivered
to the Trust Administrator, no later than 10 days following the Payment Date,
such other information identified by the Depositor or the Servicer, in writing,
to be filed with the Commission (such other information, the “Additional
Designated Information”). If the Depositor or Servicer directs that any
Additional Designated Information is to be filed with any Form 10-D, the
Depositor or Servicer, as the case may be, shall specify the Item on Form 10-D
to which such information is responsive and, with respect to any Exhibit to
be
filed on Form 10-D, the Exhibit number. Any information to be filed on Form
10-D
shall be delivered to the Trust Administrator in XXXXX-compatible form or as
otherwise agreed upon by the Trust Administrator and the Depositor or the
Servicer, as the case may be, at the [Servicer’s] expense, and any necessary
conversion to XXXXX-compatible format will be at the Depositor’s expense. At the
reasonable request of, and in accordance with the reasonable directions of,
the
Depositor or the Servicer, subject to the two preceding sentences, the Trust
Administrator shall prepare for filing and file an amendment to any Form 10-D
previously filed with the Commission with respect to the Trust Fund. The
[Servicer] shall sign the Form 10-D filed on behalf of the Trust
Fund.
(b) No
later
than each Payment Date, each of the Servicer, the Trust Administrator, the
Owner
Trustee and the [Indenture Trustee] shall notify the Depositor and the Servicer
of any Form 10-D Disclosure Item, together with a description of any such Form
10-D Disclosure Item in form and substance reasonably acceptable to the
Depositor. In addition to such information as the Servicer, the Trust
Administrator and the [Indenture Trustee] are obligated to provide pursuant
to
other provisions of this Agreement, if so requested by the Depositor, each
of
the Servicer, the Trust Administrator and the [Indenture Trustee] shall provide
such information which is available to the Servicer, the Trust Administrator
and
the [Indenture Trustee], as applicable, without unreasonable effort or expense
regarding the performance or servicing of the Mortgage Loans (in the case of
the
Servicer, the [Indenture Trustee] and the Trust Administrator, based on the
information provided by the Servicer) as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB. Such information shall be provided concurrently with the remittance reports
in the case of the Servicer and the reports to the noteholders in the case
of
the Trust Administrator and the [Indenture Trustee], commencing with the first
such report due not less than five Business Days following such request.
(c) The
Trust
Administrator shall not have any responsibility to file any items (other than
those generated by it) that have not been received in a format suitable (or
readily convertible into a format suitable) for electronic filing via the XXXXX
system and shall not have any responsibility to convert any such items to such
format (other than those items generated by it or that are readily convertible
to such format). The Trust Administrator shall have no liability to the
Noteholders, the Trust Fund, the Servicer, the [Indenture Trustee] or the
Depositor with respect to any failure to properly prepare or file any of Form
10-D to the extent that such failure is not the result of any negligence, bad
faith or willful misconduct on its part.
Section
10.03. Form
8-K Filings.
The
Servicer shall prepare and file on behalf of the Trust Fund any Form 8-K
required by the Exchange Act. [Each Form 8-K must be signed by the Servicer.]
Each of the Servicer, the Trust Administrator, the Owner Trustee and the
[Indenture Trustee] shall promptly notify the Depositor and the Servicer (if
the
notifying party is not the Servicer), but in no event later than one (1)
Business Day after its occurrence, of any Reportable Event of which it has
actual knowledge. Each Person shall be deemed to have actual knowledge of any
such event to the extent that it relates to such Person or any action or failure
to act by such Person.
Section
10.04. Form
10-K Filings.
Prior
to
March 30th of each year, commencing in 20[ ] (or such earlier date as may be
required by the Exchange Act), the Servicer shall prepare and file on behalf
of
the Trust Fund a Form 10-K, in form and substance as required by the Exchange
Act. A senior officer in charge of the servicing function of the Servicer shall
sign each Form 10-K filed on behalf of the Trust Fund. Such Form 10-K shall
include as exhibits each (i) annual compliance statement described under Section
4.26, (ii) annual report on assessments of compliance with servicing criteria
described under Section 10.07 and (iii) accountant’s report described under
Section 10.07. Each Form 10-K shall also include any Xxxxxxxx-Xxxxx
Certification required to be included therewith, as described in Section 10.05.
If
the
Item 1119 Parties listed on Exhibit G have changed since the Closing Date,
no
later than March 1 of each year, the [Depositor/Servicer] shall provide each
of
the Servicer, the Trust Administrator, the Owner Trustee and the [Indenture
Trustee] with an updated Exhibit G setting forth the Item 1119 Parties. No
later
than March 15 of each year, commencing in 20[ ], the Servicer, the Trust
Administrator, the Owner Trustee and the [Indenture Trustee] shall notify the
Depositor and the Servicer of any Form 10-K Disclosure Item, together with
a
description of any such Form 10-K Disclosure Item in form and substance
reasonably acceptable to the Depositor. Additionally, each of the Servicer,
the
Trust Administrator and the [Indenture Trustee] shall provide, and shall cause
each Reporting Subcontractor retained by the Servicer, the Trust Administrator
or the [Indenture Trustee], as applicable, to provide the following information
no later than March 15 of each year in which a Form 10-K is required to be
filed
on behalf of the Trust Fund: (i) if such Person’s report on assessment of
compliance with servicing criteria described under Section 10.07 or related
registered public accounting firm attestation report described under Section
10.07 identifies any material instance of noncompliance, notification of such
instance of noncompliance and (ii) if any such Person’s report on assessment of
compliance with servicing criteria or related registered public accounting
firm
attestation report is not provided to be filed as an exhibit to such Form 10-K,
information detailing the explanation why such report is not included.
Section
10.05. Xxxxxxxx-Xxxxx
Certification.
(a) Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx
Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
of
the Commission promulgated thereunder (including any interpretations thereof
by
the Commission’s staff)). No later than March 15 of each year, beginning in 20[
], the Depositor, the Servicer, the Trust Administrator and the [Indenture
Trustee] shall (unless such person is the Certifying Person) provide to the
Person who signs the Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”)
a
certification (each, a “Performance
Certification”),
in
the form attached hereto as Exhibit F-1 (in the case of the Servicer) and
Exhibit F-2 (in the case of the Trust Administrator and the [Indenture
Trustee]), on which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The senior officer in charge of the servicing function of
the
Servicer shall serve as the Certifying Person on behalf of the Trust Fund.
Neither the Servicer nor the Depositor will request delivery of a certification
under this clause unless the Depositor is required under the Exchange Act to
file an annual report on Form 10-K with respect to the Trust Fund. In the event
that prior to the filing date of the Form 10-K in March of each year, the
Servicer, the Trust Administrator, the [Indenture Trustee] or the Depositor
has
actual knowledge of information material to the Xxxxxxxx-Xxxxx Certification,
the Trust Administrator, the Servicer, the [Indenture Trustee] or the Depositor,
as the case may be, shall promptly notify the Servicer and the Depositor. The
respective parties hereto agree to cooperate with all reasonable requests made
by any Certifying Person or Certification Party in connection with such Person’s
attempt to conduct any due diligence that such Person reasonably believes to
be
appropriate in order to allow it to deliver any Xxxxxxxx-Xxxxx Certification
or
portion thereof with respect to the Trust Fund.
Section
10.06. Form
15 Filing.
Prior
to
January 30 of the first year in which the Depositor is able to do so under
applicable law, the Depositor shall file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange
Act.
Section
10.07. Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 15 of each calendar year, commencing in 20[ ]:
(1) Each
of
the Servicer, the Trust Administrator and the [Indenture Trustee] shall deliver
to the Depositor and the Servicer a report (in form and substance reasonably
satisfactory to the Depositor) regarding the Servicer’s, the Trust
Administrator’s or the [Indenture Trustee]’s, as applicable, assessment of
compliance with the Servicing Criteria during the immediately preceding calendar
year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of Regulation AB. Such report shall be signed by an authorized officer
of
such Person and shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit H hereto delivered to the
Depositor concurrently with the execution of this Agreement. To the extent
any
of the Servicing Criteria are not applicable to such Person, with respect to
asset-backed securities transactions taken as a whole involving such Person
and
that are backed by the same asset type backing the Notes, such report shall
include such a statement to that effect. The Depositor and the Servicer, and
each of their respective officers and directors shall be entitled to rely on
upon each such servicing criteria assessment.
(2) Each
of
the Servicer, the Trust Administrator and the [Indenture Trustee] shall deliver
to the Depositor and the Servicer a report of a registered public accounting
firm reasonably acceptable to the Depositor that attests to, and reports on,
the
assessment of compliance made by the Servicer, the Trust Administrator or the
[Indenture Trustee], as applicable, and delivered pursuant to the preceding
paragraphs. Such attestation shall be in accordance with Rules 1-02(a)(3) and
2-02(g) of Regulation S-X under the Securities Act and the Exchange Act,
including, without limitation that in the event that an overall opinion cannot
be expressed, such registered public accounting firm shall state in such report
why it was unable to express such an opinion. Such report must be available
for
general use and not contain restricted use language. To the extent any of the
Servicing Criteria are not applicable to such Person, with respect to
asset-backed securities transactions taken as a whole involving such Person
and
that are backed by the same asset type backing the Notes, such report shall
include such a statement to that effect.
(3) The
Servicer shall cause each Reporting Subcontractor to deliver to the Depositor
an
assessment of compliance and accountant’s attestation as and when provided in
paragraphs (a) and (b) of this Section 10.07.
(4) Each
of
the Trust Administrator and the [Indenture Trustee] shall cause each Reporting
Subcontractor to deliver to the Depositor and the Servicer an assessment of
compliance and accountant’s attestation as and when provided in paragraphs (a)
and (b) of this Section.
(5) The
Servicer, the Trust Administrator and the [Indenture Trustee] shall execute
(and
the Servicer, the Trust Administrator and the [Indenture Trustee] shall cause
each Reporting Subcontractor to execute) a reliance certificate to enable the
Certification Parties to rely upon each (i) annual compliance statement provided
pursuant to Section 4.26, (ii) annual report on assessments of compliance with
servicing criteria provided pursuant to this Section 10.07 and (iii)
accountant’s report provided pursuant to this Section 10.07 and shall include a
certification that each such annual compliance statement or report discloses
any
deficiencies or defaults described to the registered public accountants of
such
Person to enable such accountants to render the Notes provided for in this
Section 10.07. In the event the Servicer, the Trust Administrator or Reporting
Subcontractor is terminated or resigns during the term of this Agreement, such
Person shall provide a certification to the Certifying Person pursuant to this
Section 10.07 with respect to the period of time it was subject to this
Agreement or provided services with respect to the Trust Fund, the Notes or
the
Mortgage Loans.
(b) An
assessment of compliance provided by a Subcontractor pursuant to Section
10.07(a)(3) or (4) need not address any elements of the Servicing Criteria
other
than those specified by the Servicer, the Trust Administrator or the [Indenture
Trustee], as applicable, pursuant to Section 10.07(a)(1).
Section
10.08. Use
of
Subcontractors.
(a) It
shall
not be necessary for the Servicer, the Trust Administrator or the [Indenture
Trustee] to seek the consent of the Depositor or any other party hereto to
the
utilization of any Subcontractor. The Servicer, the Trust Administrator or
the
[Indenture Trustee], as applicable, shall promptly upon request provide to
the
Depositor (or any designee of the Depositor, such as the Servicer or
administrator) a written description (in form and substance satisfactory to
the
Depositor) of the role and function of each Subcontractor utilized by such
Person, specifying (i) the identity of each such Subcontractor, (ii) which
(if
any) of such Subcontractors are “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB, and (iii) which elements of the
Servicing Criteria will be addressed in assessments of compliance provided
by
each Subcontractor identified pursuant to clause (ii) of this
paragraph.
As
a
condition to the utilization of any Subcontractor determined to be a Reporting
Subcontractor, the Servicer, the Trust Administrator or the [Indenture Trustee],
as applicable, shall cause any such Subcontractor used by such Person for the
benefit of the Depositor to comply with the provisions of Sections 10.07 and
10.09 of this Agreement to the same extent as if such Subcontractor were the
Servicer, the Trust Administrator or the [Indenture Trustee], as applicable
(except with respect to the Servicer’s duties with respect to preparing and
filing any Exchange Act Reports or as the Certifying Person). The Servicer,
the
Trust Administrator or the [Indenture Trustee], as applicable, shall be
responsible for obtaining from each Subcontractor and delivering to the
Depositor and the Servicer, any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 10.07, in each
case
as and when required to be delivered.
Section
10.09. Amendments.
In
the
event the parties to this Agreement desire to further clarify or amend any
provision of this Article X this Agreement shall be amended to reflect the
new
agreement between the parties covering matters in this Article X pursuant to
Section 9.03, which amendment shall not require any Opinion of Counsel or Rating
Agency confirmations or the consent of any Noteholder.
If,
during the period that the Depositor is required to file Exchange Act Reports
with respect to the Trust Fund, the Servicer is no longer an Affiliate of the
Depositor, the Depositor shall assume the obligations and responsibilities
of
the Servicer in this Article [XI] with respect to the preparation and filing
of
the Exchange Act Reports and/or acting as the Certifying Person, if the
Depositor has received indemnity from such successor Servicer satisfactory
to
the Depositor, and such Servicer has agreed to provide a Xxxxxxxx-Xxxxx
Certification to the Depositor substantially in the form of Exhibit
K.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers hereunto duly authorized as of the day and year
first above written.
[ ]
200__-[ ],
as
Issuer
|
By:
|
________________________,
not in its individual capacity but solely as Owner
Trustee
|
By:
___________________________________
Name:
Title:
INDYMAC
ABS, INC.,
as
Depositor
By:
___________________________________
Name:
Title:
____________________________________,
not in its individual capacity but solely as Indenture Trustee
By:
___________________________________
Name:
Title:
______________________________________,
as
Trust
Administrator and Servicer
By:
___________________________________
Name:
Title:
______________________________________,
as
Servicer
By:
___________________________________
Name:
Title:
____________________________,
as Seller
By:
___________________________________
Name:
Title:
With
Respect to Article [XI] only
_________________________,
as Owner Trustee
By:
_________________________________
Name:
Title:
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
this
___ day of ___________ 200_, before me, personally appeared ____________, known
to me to be a _______ of ____________________, one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
__________________________________
Notary
Public
[NOTARIAL
SEAL]
|
STATE
OF CALIFORNIA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF LOS ANGELES
|
)
|
On
the
___ day of ___________ 200_, before me, personally appeared __________, known
to
me to be a _________________ of IndyMac ABS, Inc., one of the corporations
that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
__________________________________
Notary
Public
[NOTARIAL
SEAL]
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
____ of ___________ 200_, before me, a Notary Public in and for said State,
personally appeared ______________ known to me to be a _____________ of
____________________________________, one of the corporations that executed
the
within instrument and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
__________________________________
Notary
Public
[NOTARIAL
SEAL]
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
____ of ___________ 200_, before me, a Notary Public in and for said State,
personally appeared ______________ known to me to be a _____________ of
____________________, a national banking association that executed the within
instrument and also known to me to be the person who executed it on behalf
of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
__________________________________
Notary
Public
[NOTARIAL
SEAL]
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
____ of ___________ 200_, before me, a Notary Public in and for said State,
personally appeared ______________ known to me to be a _____________ of
_________________________, one of the corporations that executed the within
instrument and also known to me to be the person who executed it on behalf
of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
__________________________________
Notary
Public
[NOTARIAL
SEAL]
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
On
the
____ of ___________ 200_, before me, a Notary Public in and for said State,
personally appeared ______________ known to me to be a _____________ of
____________________________, one of the corporations that executed the within
instrument and also known to me to be the person who executed it on behalf
of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
__________________________________
Notary
Public
[NOTARIAL
SEAL]
EXHIBIT
A-1
FORM
OF
INITIAL CERTIFICATION
____________________________
Date
|
[Trust
Administrator]____________________
____________________________________
____________________________________
Attention:
___________________________
|
____________________________________
____________________________________
____________________________________
Attention:
___________________________
|
|
[IndyMac
ABS, Inc.
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000]
|
|
Re:
|
Sale
and Servicing Agreement (the “Sale and Servicing Agreement”) dated as of
_______, 200_ by and among [IndyMac ABS, Inc.], as Depositor,
____________________________________, as Indenture Trustee,
____________________, as Trust Administrator and Servicer, ______
[ ]
200__-[ ], as Issuer and
____________________________,
as Seller
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Sale and Servicing Agreement, subject
to
review of the contents thereof, the Indenture Trustee (or its custodian), hereby
certifies that it has received the documents listed in Section 2.01(b) of the
Sale and Servicing Agreement for each Mortgage File pertaining to each Mortgage
Loan listed on Schedule A to the Sale and Servicing Agreement, subject to any
exceptions noted on Schedule I hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have the
respective meanings assigned to them in the Sale and Servicing Agreement. This
certificate is subject in all respects to the terms of Section 2.02 of the
Sale
and Servicing Agreement and the Sale and Servicing Agreement sections
cross-referenced therein.
[Indenture
Trustee]
By:_____________________________________
Name:
Title:
EXHIBIT
A-2
FORM
OF INTERIM CERTIFICATION
_________________
Date
|
[Trust
Administrator]____________________
____________________________________
____________________________________
Attention:
___________________________
|
____________________________________
____________________________________
____________________________________
Attention:
___________________________
|
|
[IndyMac
ABS, Inc.
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000]
|
|
Re:
|
Sale
and Servicing Agreement (the “Sale and Servicing Agreement”) dated as of
_______, 200_ by and among [IndyMac ABS, Inc.], as Depositor,
____________________________________, as Indenture Trustee,
____________________, as Trust Administrator and Servicer, ______
[ ]
200__-[ ], as Issuer and ____________________________, as
Seller
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Sale and Servicing Agreement, the
undersigned, as Indenture Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in
full or listed on Schedule I hereto) it (or its custodian) has received the
applicable documents listed in Section 2.01(b) of the Sale and Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents identified above and has determined that
each such document appears regular on its face and appears to relate to the
Mortgage Loan identified in such document.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Sale and Servicing Agreement. This certificate is qualified in
all
respects by the terms of said Sale and Servicing Agreement including, but not
limited to, Section 2.02(b).
[Indenture
Trustee]
By:_____________________________________
Name:
Title:
EXHIBIT
A-3
FORM
OF FINAL CERTIFICATION
_________________
Date
|
[Trust
Administrator]____________________
____________________________________
____________________________________
Attention:
___________________________
|
____________________________________
____________________________________
____________________________________
Attention:
___________________________
|
|
[IndyMac
ABS, Inc.
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000]
|
|
Re:
|
Sale
and Servicing Agreement (the “Sale and Servicing Agreement”) dated as of
_______, 200_ by and among [IndyMac ABS, Inc.], as Depositor,
____________________________________, as Indenture Trustee,
____________________, as Trust Administrator and Servicer, ______
[ ]
200__-[ ], as Issuer and ____________________________, as
Seller
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Sale and Servicing Agreement, the
undersigned hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed
on
Schedule I hereto) it (or its custodian) has received the applicable documents
listed in Section 2.01(b) of the Sale and Servicing Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is
correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Sale and Servicing Agreement. This certificate is qualified in
all
respects by the terms of said Sale and Servicing Agreement.
[Indenture
Trustee]
By:_____________________________________
Name:
Title:
EXHIBIT
A-4
FORM
OF ENDORSEMENT
Pay
to
the order of ____________________________________, as indenture trustee (the
“Indenture Trustee”) under the Sale and Servicing Agreement dated as of _______,
200_ by and among [IndyMac ABS, Inc.], as Depositor, the Indenture Trustee,
____________________, as Trust Administrator and Servicer, ______
[ ]
200__-[ ], as Issuer, as Seller, relating to ______
[ ]
200__-[ ] Mortgage Backed Notes, Series 200_-__, without
recourse.
__________________________________
[current
signatory on note]
By:_______________________________
Name:
Title:
EXHIBIT
B
[Reserved]
EXHIBIT
C
FORM
OF
LOST NOTE AFFIDAVIT
I,
_________________________________________, being duly sworn, do hereby state
under oath that:
1. I
am a
duly elected ______________________ of ____________________________ (the
“Company”) and am duly authorized to make this affidavit.
2. This
affidavit is being delivered in connection with the transfer of the Mortgage
Loan described in Paragraph 3 hereof by the Company pursuant to the Sale and
Servicing Agreement, dated as of _______, 200_, among ______ Mortgage Investment
Trust 200_-__, as Issuer, [IndyMac ABS, Inc.], as Depositor,
____________________, as Servicer and as Trust Administrator,
_________________________, as Servicer, ____________________________, as Seller,
and ____________________________________, as Indenture Trustee, relating to
the
[ ]
200__-[ ], Mortgage Backed Notes, Series 200_-__ (the
“Agreement”).
3. The
______________ is the payee under the following described Mortgage Note
(“Mortgage Note”) which evidences the obligation of the borrower(s) to repay the
Mortgage Loan:
Loan
Number: __________________________________
Mortgage
Note Date:_____________________________
Borrower(s):
___________________________________
Original
Payee (if not the Company): _______________
Original
Amount:________________________________
Mortgage
Rate: _________________________________
Address
of Mortgaged Property: ____________________
_____________________________________________
4. The
Company is the lawful owner of the Mortgage Note and has not cancelled, altered,
assigned or hypothecated the Mortgage Note.
5. A
thorough and diligent search for the executed original Mortgage Note was
undertaken and was unsuccessful.
6. Attached
hereto is a true and correct copy of the Mortgage Note.
7. The
Mortgage Note has not been endorsed by the Company in any manner inconsistent
with its transfer of the Mortgage Loan under the Mortgage Loan Purchase
Agreement.
8. Without
limiting the generality of the rights and remedies of the Indenture Trustee
contained in the Agreement, the Company hereby confirms and agrees that in
the
event the inability to produce the executed original Mortgage Note results
in a
breach of the representations, warranties and covenants appearing in Section
2
of the Mortgage Loan Purchase Agreement and Section 3.01 of the Agreement,
the
Company shall repurchase the Mortgage Loan at the Purchase Price and otherwise
in accordance with Section 3.03 of the Agreement. In addition, the Company
covenants and agrees to indemnify the Indenture Trustee and the Trust from
and
hold them harmless against any and all losses, liabilities, damages, claims
or
expenses arising from the Company’s failure to have delivered the Mortgage Note
to the Indenture Trustee, including without limitation any such losses,
liabilities, damages, claims or expenses arising from any action to enforce
the
indebtedness evidenced by the Mortgage Note or any claim by any third party
who
is the holder of such indebtedness by virtue of possession of the Mortgage
Note.
9. In
the
event that the Company locates the executed original Mortgage Note, it shall
promptly provide the Mortgage Note to the Indenture Trustee.
10. Capitalized
terms used but not otherwise defined herein shall have the meanings given to
them in the Agreement.
Date:
_______________________
______________________________
(signature)
______________________________
(print
name)
______________________________
(print
title)
EXHIBIT
D
ESCROW
ACCOUNT LETTER AGREEMENT
______________
__,
____
To:
______________________
______________________
______________________
(the
“Depository”)
As
Servicer under the Sale and Servicing Agreement dated as of _______, 200_,
by
and among [IndyMac ABS, Inc.], as Depositor, you, as Indenture Trustee,
____________________, as Trust Administrator and Servicer,
[ ]
200__-[ ], as Issuer, _________________________, as Servicer
and ____________________________, as Seller (the “Sale and Servicing
Agreement”), we hereby authorize and request you to establish an account, as an
Escrow Account pursuant to Section 4.02(f) of the Sale and Servicing Agreement,
designated as “_________________________ in trust for _________________________,
as Indenture Trustee for
[ ]
200__-[ ].” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. This letter is submitted
to you in duplicate. Please execute and return one original to us.
____________________________________
Servicer
By:
_________________________________
Name:
___________________________
Title:
____________________________
Date:
____________________________
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
__________________________________________
Depository
By:
______________________________________
Name:
Title:
Date:
EXHIBIT
E-1
FORM
OF
MONTHLY REMITTANCE ADVICE
[On
file
with the Servicer]
EXHIBIT
E-2
STANDARD
LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
[On
file
with the Servicer]
EXHIBIT
E-3
Form
332 Realized Loss Report
____________________
[On
file
with Servicer]
EXHIBIT
F-1
FORM
OF
PERFORMANCE CERTIFICATION
(Servicer)
[On
file
with the Trust Administrator]
EXHIBIT
F-2
FORM
OF
PERFORMANCE CERTIFICATION
(Trust
Administrator/Indenture Trustee)
[On
file
with the Trust Administrator]
EXHIBIT
G
FORM
OF
SERVICING
CRITERIA TO BE ADDRESSED IN
ASSESSMENT
OF COMPLIANCE STATEMENT
The
assessment of compliance to be delivered by [the Servicer] [Indenture Trustee]
[Trust Administrator] shall address, at a minimum, the criteria identified
as
below as “Applicable Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the Trust Administrator’s records as to the total unpaid
principal balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
|
|
|
|
[NAME
OF
SERVICER] [NAME OF TRUST ADMINISTRATOR] [NAME OF INDENTURE TRUSTEE]
Date: _________________________
By:
________________________________
Name:
Title:
EXHIBIT
H
Item
1119
Parties
MORTGAGE
BACKED NOTES,
Series
200_-__
[Date]
|
Party
|
Contact
Information
|
EXHIBIT
I
[FORM
OF]
[CLASS AF-5B] INSURANCE POLICY
[On
file
with
[ ].]
EXHIBIT
J
[FORM
OF]
SUBSEQUENT TRANSFER AGREEMENT
[On
file
with the
[ ].]
EXHIBIT
K
[FORM
OF]
XXXXXXXX-XXXXX CERTIFICATION
(Replacement
of Servicer)
[On
file
with the
[ ].]
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
[On
file
with the
[ ].]
