STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., DEPOSITOR U.S. BANK NATIONAL ASSOCIATION, TRUSTEE and EMC MORTGAGE CORPORATION SELLER AND MASTER SERVICER POOLING AND SERVICING AGREEMENT Dated as of November 1, 2006 Structured Asset Mortgage Investments...
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.,
DEPOSITOR
U.S.
BANK
NATIONAL ASSOCIATION,
TRUSTEE
and
EMC
MORTGAGE CORPORATION
SELLER
AND MASTER SERVICER
Dated
as
of November 1, 2006
Structured
Asset Mortgage Investments II Inc.
Prime
Mortgage Trust, Certificates
Series
2006-2
TABLE
OF
CONTENTS
|
ARTICLE
I
|
Definitions
|
|
Section
1.01
|
Definitions.
|
|
Section
1.02
|
Calculation
of LIBOR.
|
|
ARTICLE
II
|
Conveyance
of Mortgage Loans; Original Issuance of Certificates
|
|
Section
2.01
|
Conveyance
of Mortgage Loans to Trustee.
|
|
Section
2.02
|
Acceptance
of Mortgage Loans and Underlying Certificates by
Trustee.
|
|
Section
2.03
|
Assignment
of Interest in the Mortgage Loan Purchase Agreement.
|
|
Section
2.04
|
Substitution
of Mortgage Loans.
|
|
Section
2.05
|
Issuance
of Certificates.
|
|
Section
2.06
|
Representations
and Warranties Concerning the Depositor.
|
|
Section
2.07
|
Representations
and Warranties of EMC.
|
|
Section
2.08
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
|
ARTICLE
III
|
Administration
of the Trust Fund and Servicing of Mortgage Loans
|
|
Section
3.01
|
Master
Servicer.
|
|
Section
3.02
|
REMIC-Related
Covenants.
|
|
Section
3.03
|
Monitoring
of Servicers.
|
|
Section
3.04
|
Fidelity
Bond.
|
|
Section
3.05
|
Power
to Act; Procedures.
|
|
Section
3.06
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
Section
3.07
|
Release
of Mortgage Files.
|
|
Section
3.08
|
Documents,
Records and Funds in Possession of Master Servicer to Be Held for
Trustee.
|
|
Section
3.09
|
Standard
Hazard Insurance and Flood Insurance Policies.
|
|
Section
3.10
|
Presentment
of Claims and Collection of Proceeds.
|
|
Section
3.11
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
|
Section
3.12
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
|
Section
3.13
|
Realization
Upon Defaulted Mortgage Loans.
|
|
Section
3.14
|
Compensation
for the Master Servicer.
|
|
Section
3.15
|
REO
Property.
|
|
Section
3.16
|
Annual
Statement as to Compliance.
|
|
Section
3.17
|
Assessments
of Compliance and Attestation Reports.
|
|
Section
3.18
|
Reports
Filed with Securities and Exchange Commission.
|
|
Section
3.19
|
Intention
of the Parties and Interpretation.
|
|
Section
3.20
|
UCC.
|
|
Section
3.21
|
Optional
Purchase of Defaulted Mortgage Loans.
|
|
ARTICLE
IV
|
Accounts
|
|
Section
4.01
|
Protected
Accounts.
|
|
Section
4.02
|
Master
Servicer Collection Account.
|
|
Section
4.03
|
Permitted
Withdrawals and Transfers from the Master Servicer Collection
Account.
|
|
Section
4.04
|
Distribution
Account.
|
|
Section
4.05
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
|
ARTICLE
V
|
Certificates
|
|
Section
5.01
|
Certificates.
|
|
Section
5.02
|
Registration
of Transfer and Exchange of Certificates.
|
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
Section
5.04
|
Persons
Deemed Owners.
|
|
Section
5.05
|
Transfer
Restrictions on Residual Certificates.
|
|
Section
5.06
|
Restrictions
on Transferability of Non-Offered Certificates.
|
|
Section
5.07
|
ERISA
Restrictions.
|
|
Section
5.08
|
Rule
144A Information.
|
|
ARTICLE
VI
|
Payments
to Certificateholders
|
|
Section
6.01
|
Distributions
on the Certificates.
|
|
Section
6.02
|
[Reserved.]
|
|
Section
6.03
|
Allocation
of Losses.
|
|
Section
6.04
|
Payments.
|
|
Section
6.05
|
Statements
to Certificateholders.
|
|
Section
6.06
|
Monthly
Advances.
|
|
Section
6.07
|
Compensating
Interest Payments.
|
|
ARTICLE
VII
|
The
Master Servicer
|
|
Section
7.01
|
Liabilities
of the Master Servicer.
|
|
Section
7.02
|
Merger
or Consolidation of the Master Servicer.
|
|
Section
7.03
|
Indemnification
of the Trustee and the Master Servicer
|
|
Section
7.04
|
Limitations
on Liability of the Master Servicer and Others.
|
|
Section
7.05
|
Master
Servicer Not to Resign.
|
|
Section
7.06
|
Successor
Master Servicer.
|
|
Section
7.07
|
Sale
and Assignment of Master Servicing.
|
|
ARTICLE
VIII
|
Default
|
|
Section
8.01
|
Events
of Default.
|
|
Section
8.02
|
Trustee
to Act; Appointment of Successor.
|
|
Section
8.03
|
Notification
to Certificateholders.
|
|
Section
8.04
|
Waiver
of Defaults.
|
|
Section
8.05
|
List
of Certificateholders.
|
|
ARTICLE
IX
|
Concerning
the Trustee
|
|
Section
9.01
|
Duties
of Trustee.
|
|
Section
9.02
|
Certain
Matters Affecting the Trustee.
|
|
Section
9.03
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
|
Section
9.04
|
Trustee
May Own Certificates.
|
|
Section
9.05
|
Trustee’s
Fees and Expenses.
|
|
Section
9.06
|
Eligibility
Requirements for Trustee.
|
|
Section
9.07
|
Insurance.
|
|
Section
9.08
|
Resignation
and Removal of the Trustee.
|
|
Section
9.09
|
Successor
Trustee.
|
|
Section
9.10
|
Merger
or Consolidation of Trustee.
|
|
Section
9.11
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
Section
9.12
|
Federal
Information Returns and Reports to Certificateholders; REMIC
Administration.
|
|
ARTICLE
X
|
Termination
|
|
Section
10.01
|
Termination
Upon Repurchase by the Depositor or its Designee or Liquidation
of the
Mortgage Loans.
|
|
Section
10.02
|
[Reserved].
|
|
Section
10.03
|
Additional
Termination Requirements with respect to the
Certificates.
|
|
ARTICLE
XI
|
Miscellaneous
Provisions
|
|
Section
11.01
|
Intent
of Parties.
|
|
Section
11.02
|
Amendment.
|
|
Section
11.03
|
Recordation
of Agreement.
|
|
Section
11.04
|
Limitation
on Rights of Certificateholders.
|
|
Section
11.05
|
Acts
of Certificateholders.
|
|
Section
11.06
|
Governing
Law.
|
|
Section
11.07
|
Notices.
|
|
Section
11.08
|
Severability
of Provisions.
|
|
Section
11.09
|
Successors
and Assigns.
|
|
Section
11.10
|
Article
and Section Headings.
|
|
Section
11.11
|
Counterparts.
|
|
Section
11.12
|
Notice
to Rating Agencies.
|
EXHIBITS
|
Exhibit
A-1
|
-
|
Form
of Class A Certificates
|
|
Exhibit
A-2
|
-
|
Form
of Class B Certificates
|
|
Exhibit
A-3
|
-
|
Form
of Class PO Certificates
|
|
Exhibit
A-4
|
-
|
Form
of Class R Certificates
|
|
Exhibit
A-5
|
-
|
Form
of Class X Certificates
|
|
Exhibit
B
|
-
|
Mortgage
Loan Schedule
|
|
Exhibit
C
|
-
|
Reserved
|
|
Exhibit
D
|
-
|
Request
for Release of Documents
|
|
Exhibit
E
|
-
|
Form
of Affidavit pursuant to Section 860E(e)(4)
|
|
Exhibit
F-1
|
-
|
Form
of Investment Letter
|
|
Exhibit
F-2
|
-
|
Form
of Rule 144A and Related Matters Certificate
|
|
Exhibit
F-3
|
-
|
Form
of Rule 144A Global Certificate to Regulation S Global
Certificate
|
|
Exhibit
F-4
|
-
|
Form
of Regulation S Global Certificate to Rule 144A Global
Certificate
|
|
Exhibit
G
|
-
|
Form
of Custodial Agreement
|
|
Exhibit
H
|
-
|
Form
of Mortgage Loan Purchase Agreement
|
|
Exhibit
I-1
|
-
|
Chevy
Chase Servicing Agreement
|
|
Exhibit
I-2
|
-
|
EMC
Servicing Agreement
|
|
Exhibit
I-3
|
-
|
▇▇▇▇▇
Fargo Servicing Agreement
|
|
Exhibit
J-1
|
-
|
Chevy
Chase Assignment Agreement
|
|
Exhibit
J-2
|
-
|
EMC
Assignment Agreement
|
|
Exhibit
J-3
|
-
|
▇▇▇▇▇
Fargo Assignment Agreement
|
|
Exhibit
K
|
-
|
Form
of Back-Up Certification
|
|
Exhibit
L
|
-
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
M
|
-
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
N
|
-
|
Additional
Disclosure Notification
|
|
Exhibit
O
|
-
|
Aggregate
Planned Principal Schedules
|
|
Exhibit
P
|
-
|
Form
of Trustee Limited Power of Attorney
|
|
Exhibit
Q
|
-
|
Form
of Certification to be provided by the Trustee to the
Depositor
|
|
Exhibit
R
|
-
|
Form
of the Master Servicer’s Data Layout
Report
|
Pooling
and Servicing Agreement dated as of November 1, 2006, among Structured Asset
Mortgage Investments II Inc., a Delaware corporation, as depositor (the
“Depositor”), U.S. Bank National Association, as trustee (the “Trustee”) and EMC
Mortgage Corporation, as seller (in such capacity, the “Seller”) and as master
servicer (in such capacity, the “Master Servicer”).
PRELIMINARY
STATEMENT
On
or
prior to the Closing Date, the Depositor acquired the Mortgage Loans from the
Seller. On the Closing Date, the Depositor will sell the Mortgage Loans and
certain other property to the Trust Fund and receive in consideration therefor
the Certificates, together evidencing the entire beneficial ownership interest
in the Trust Fund.
The
Trustee on behalf of the Trust shall make an election for the assets
constituting REMIC I to be treated for federal income tax purposes as a REMIC.
On the Startup Day, the REMIC I Regular Interests will be designated the
“regular interests” in such REMIC, and the Class R-1 Certificates will be
designated the sole class of “residual interests” in such REMIC.
The
Trustee on behalf of the Trust shall make an election for the assets
constituting REMIC II to be treated for federal income tax purposes as a REMIC.
On the Startup Day, the REMIC II Regular Interests will be designated the
“regular interests” in such REMIC, and the Class R-2 Certificates will be
designated the sole class of “residual interests” in such REMIC.
The
Trustee on behalf of the Trust shall make an election for the assets
constituting REMIC III to be treated for federal income tax purposes as a REMIC.
On the Startup Day, the Regular Certificates will be designated the “regular
interests” in such REMIC, and the Class R-3 Certificates will be designated the
sole class of “residual interests” in such REMIC.
The
Mortgage Loans will have an Outstanding Principal Balance as of the Cut-off
Date, after deducting all Scheduled Principal due on or before the Cut-off
Date,
of $281,849,595,74. The initial principal amount of the Certificates will not
exceed such Outstanding Principal Balance.
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Seller and the Trustee agree as follows:
ARTICLE
I
Definitions
Section
1.01 Definitions.
Whenever
used in this Agreement, the following words and phrases, unless otherwise
expressly provided or unless the context otherwise requires, shall have the
meanings specified in this Article.
Accepted
Master Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that master
service mortgage loans of the same type and quality as such Mortgage Loan in
the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Trustee or the Master Servicer (except in its capacity as
successor to a Servicer), or (y) as provided in the applicable Servicing
Agreement, to the extent applicable to any Servicer, but in no event below
the
standard set forth in clause (x).
Account:
The
Master Servicer Collection Account, the Distribution Account and the Protected
Accounts as the context may require.
Accrued
Certificate Interest:
For any
Certificate (other than the Class PO Certificates) or any Component (other
than
the Class PO Components) for any Distribution Date, the interest accrued during
the related Interest Accrual Period at the applicable Pass-Through Rate on
the
Current Principal Amount, or Notional Amount in the case of any Interest Only
Certificate or any Class X Components, of such Certificate or Component
immediately prior to such Distribution Date, less (i) in the case of a Senior
Certificate (other than the Class PO Certificates or Class X Certificates)
and
the Class X Components, such Certificate’s share of any Net Interest Shortfall
from the Mortgage Loans in the related Loan Group and, after the Cross-Over
Date, the interest portion of any Realized Losses on the Mortgage Loans in
the
related Loan Group allocated thereto in accordance with Section 6.03(e) and
(ii)
in the case of a Subordinate Certificate, such Certificate’s share of any Net
Interest Shortfall from the Mortgage Loans and the interest portion of any
Realized Losses on the Mortgage Loans allocated thereto in accordance with
Section 6.03(e). All calculations of interest on the Certificates will be made
on the basis of a 360-day year consisting of twelve 30-day months.
Additional
Disclosure:
As
defined in Section 3.18.
Additional
Form 10-D Disclosure:
As
defined in Section 3.18.
Additional
Form 10-K Disclosure:
As
defined in Section 3.18.
Affiliate:
As to
any Person, any other Person controlling, controlled by or under common control
with such Person. “Control” means the power to direct the management and
policies of a Person, directly or indirectly, whether through ownership of
voting securities, by contract or otherwise. “Controlled” and “Controlling” have
meanings correlative to the foregoing. The Trustee may conclusively presume
that
a Person is not an Affiliate of another Person unless a Responsible Officer
of
the Trustee has actual knowledge to the contrary.
Aggregate
Planned Principal Amount: With
respect to the Class I-A1-1 Certificates and Class I-A1-3 Certificates and
any
Distribution Date, the
amount set forth in Exhibit O attached hereto opposite that Distribution
Date.
Agreement:
This
Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
Annual
Statement of Compliance:
As
defined in Section 3.16.
Allocable
Share:
With
respect to any Class of Subordinate Certificates on any Distribution Date will
generally equal such Class’s pro rata share (based on the Current Principal
Amount of each Class entitled thereto) of the sum of each of the components
of
the definition of Subordinate Optimal Principal Amount; provided, that except
as
described in the succeeding sentence, no Class of Subordinate Certificates
(other than the Class of Subordinate Certificates outstanding with the lowest
numerical designation) shall be entitled on any Distribution Date to receive
distributions pursuant to clauses (2), (3) and (5) of the definition of
Subordinate Optimal Principal Amount unless the Class Prepayment Distribution
Trigger for the related Class is satisfied for such Distribution Date. If on
any
Distribution Date the Current Principal Amount of any Class of Subordinate
Certificates for which the Class Prepayment Distribution Trigger was satisfied
on such Distribution Date is reduced to zero, any amounts distributable to
such
Class pursuant to clauses (2), (3) and (5) of the definition of Subordinate
Optimal Principal Amount, to the extent of such Class’s remaining Allocable
Share, shall be distributed to the remaining Classes of Subordinate Certificates
in reduction of their respective Current Principal Amounts, sequentially, in
the
order of their numerical Class designations.
Applicable
Credit Rating:
For any
long-term deposit or security, a credit rating of AAA in the case of each of
S&P and Fitch or Aaa in the case of ▇▇▇▇▇’▇. For any short-term deposit or
security, a rating of A-l+ in the case of S&P, F-1+ in the case of Fitch or
P-1 in the case of ▇▇▇▇▇’▇.
Applicable
State Law:
For
purposes of Section 9.12(d), the Applicable State Law shall be (a) the law
of
the State of New York and (b) such other state law whose applicability shall
have been brought to the attention of the Trustee by either (i) an Opinion
of
Counsel reasonably acceptable to the Trustee delivered to it by the Master
Servicer or the Depositor, or (ii) written notice from the appropriate taxing
authority as to the applicability of such state law.
Appraised
Value:
For any
Mortgaged Property related to a Mortgage Loan, the amount set forth as the
appraised value of such Mortgaged Property in an appraisal made for the mortgage
originator in connection with its origination of the related Mortgage
Loan.
Assessment
of Compliance:
As
defined in Section 3.17.
Attesting
Party:
As
defined in Section 3.17.
Attestation
Report:
As
defined in Section 3.17.
Assignment
Agreements:
The
agreements attached hereto as Exhibit J, whereby the Servicing Agreements were
assigned to the Trustee for the benefit of the Holders of the
Certificateholders.
Assumed
Final Distribution Date:
With
respect to the Certificates, the Distribution Date occurring in November
2036.
Available
Funds:
For any
Distribution Date and each Loan Group, an amount which generally includes,
(1)
all previously undistributed payments on account of principal (including the
principal portion of Monthly Payments, Principal Prepayments and the principal
amount of Net Liquidation Proceeds) with regard to the Mortgage Loans and all
previously undistributed payments on account of interest received after the
Cut-Off Date and on or prior to the related Determination Date, in each case,
from the Mortgage Loans in the related Loan Group, (2) any Monthly Advances
made
by the Master Servicer or a Servicer for such Distribution Date in respect
of
the Mortgage Loans in the related Loan Group, (3) any Compensating Interest
made
by a Servicer for such Distribution Date in respect of the Mortgage Loans in
the
related Loan Group and (4) any amounts reimbursed by the Master Servicer or
the
Trustee in connection with losses on certain eligible investments, net of all
fees payable to, and amounts reimbursable to, the Servicers, the Master
Servicer, the Trustee and the Custodian as provided in this Agreement and the
Custodial Agreement and investment earnings on amounts on deposit in the Master
Servicer Collection Account and the Distribution Account.
Average
Loss Severity Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the sum of the Loss Severity Percentages for each Mortgage
Loan which had a Realized Loss and the denominator of which is the number of
Mortgage Loans which had Realized Losses.
Bankruptcy
Code:
The
United States Bankruptcy Code, as amended as codified in 11 U.S.C. §§
101-1330.
Bankruptcy
Loss:
With
respect to any Mortgage Loan, any Deficient Valuation or Debt Service Reduction
related to such Mortgage Loan as reported by the applicable Servicer to the
Master Servicer.
Book-Entry
Certificates:
Initially, all Classes of the Senior Certificates and the Offered Subordinate
Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which the New York
Stock
Exchange or Federal Reserve is closed or on which banking institutions in the
jurisdiction in which the Trustee, the Master Servicer or any Servicer is
located are authorized or obligated by law or executive order to be
closed.
Certificate:
Any one
of the Certificates executed and countersigned by the Trustee substantially
in
the form of Exhibits A-1 through A-5 attached hereto.
Certificates
Distribution Report:
The
report prepared by the Trustee with respect to the Certificates and the Mortgage
Loans pursuant to Section 6.05(a).
Certificateholder:
A
Holder of a Certificate.
Certificate
Owner:
Any
Person who is the beneficial owner of a Certificate registered in the name
of
the Depository or its nominee.
Certificate
Register:
The
register maintained pursuant to Section 5.02.
Chevy
Chase:
Chevy
Chase Bank, F.S.B., or its successor in interest.
Chevy
Chase Servicing Agreement:
The
Purchase,
Warranties and Servicing Agreement, dated as of July 1, 2001, between the Seller
and Chevy Chase, as amended by Amendment No. 1, dated as of January 13, 2003
and
by Amendment No. 2, dated as of January 31, 2006, attached hereto as Exhibit
I-1, and as modified by the related Assignment Agreement.
Class:
With
respect to the Certificates, I-A1-1, I-A1-2, I-A1-3, I-A1-4, I-A1-5, I-A2-1,
I-A2-2, II-A1-1, II-A2-1, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, X, BX, PO, R-1, R-2
and
R-3, and with respect to the Components, I-PO, II-PO, I-X and II-X.
Class
A Certificates:
Any of
the Class I-A1-1, Class I-A1-2, Class I-A1-3, Class I-A1-4, Class I-A1-5, Class
I-A2-1, Class I-A2-2, Class II-A1-1 and Class II-A2-1 Certificates.
Class
B Certificates:
Any of
the Class BX, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class
B-6 Certificates.
Class
PO Certificate Cash Shortfall:
For any
Distribution Date and the Class PO Components, the difference between (i)
principal distributable to the Class PO Components in accordance with priority
fourth
of
clause (i) under subsection 6.01(a), and (ii) principal actually distributed
to
the Class PO Components after giving effect to clause (iii) under subsection
6.01(a).
Class
PO Certificate Deferred Amount:
As to
the Class PO Components and each Distribution Date through the Cross-Over Date,
the aggregate of all amounts allocable on such dates to the Class PO Components
in respect of the principal portion of Realized Losses in respect of Discount
Mortgage Loans in Subgroup I-1 and Subgroup II-1 and the Class PO Certificate
Cash Shortfall and all amounts previously allocated in respect of such losses
and such shortfalls to the Class PO Components, and not distributed on prior
Distribution Dates.
Class
PO Certificate:
Any Certificate designated as a “Class PO Certificate” on the face thereof,
evidencing the ownership of the Class I-PO Component and the Class II-PO
Component.
Class
PO Certificate Principal Distribution Amount:
The
Class PO Components shall be entitled to distributions from Subgroup I-1 and
Subgroup II-1. For each of the Class PO Components with respect to each
Distribution Date, an amount equal to the sum of:
(i) the
PO
Percentage of all scheduled payments of principal due on each Discount Mortgage
Loan in the related Subgroup on the related Due Date as specified in the
amortization schedule at the time applicable thereto (after adjustment for
previous principal prepayments but before any adjustment to such amortization
schedule by reason of any bankruptcy or similar proceeding or any moratorium
or
similar waiver or grace period);
(ii) the
PO
Percentage of the Scheduled Principal Balance of each Discount Mortgage Loan
in
the related Subgroup which was the subject of a prepayment in full received
by
the related Servicer during the applicable Prepayment Period;
(iii) the
PO
Percentage of all partial prepayments of principal of each Discount Mortgage
Loan in the related Subgroup received during the applicable Prepayment
Period;
(iv) the
lesser of (a) the PO Percentage of the sum of (A) all Net Liquidation Proceeds
and Subsequent Recoveries allocable to principal on each Discount Mortgage
Loan
in the related Subgroup which became a Liquidated Mortgage Loan during the
related calendar month (other than a Discount Mortgage Loan described in clause
(B)) and (B) the Scheduled Principal Balance of each such Discount Mortgage
Loan
in the related Subgroup purchased by an insurer from the Trustee during the
related Prepayment Period pursuant to the related Primary Mortgage Insurance
Policy, if any, or otherwise; and (b) the PO Percentage of the sum of (A) the
Scheduled Principal Balance of each Discount Mortgage Loan in the related
Subgroup which became a Liquidated Mortgage Loan during the related calendar
month (other than a Discount Mortgage Loan described in clause (B)) and (B)
the
Scheduled Principal Balance of each such Discount Mortgage Loan in the related
Subgroup that was purchased by an insurer from the Trustee during the related
Prepayment Period pursuant to the related Primary Mortgage Insurance Policy,
if
any, or otherwise; and
(v) the
PO
Percentage of the sum of (a) the Scheduled Principal Balance of each Discount
Mortgage Loan which was repurchased by the Seller in connection with such
Distribution Date and (b) the difference, if any, between the Scheduled
Principal Balance of a Discount Mortgage Loan that has been replaced by the
Seller with a substitute Discount Mortgage Loan pursuant to the Agreement in
connection with such Distribution Date and the Scheduled Principal Balance
of
such substitute Discount Mortgage Loan.
Class
PO Component:
The
Class I-PO Component or the Class II-PO Component.
Class
Prepayment Distribution Trigger:
For a
Class of Subordinate Certificates for any Distribution Date, the Class
Prepayment Distribution Trigger is satisfied if the fraction (expressed as
a
percentage), the numerator of which is the aggregate Current Principal Amount
of
such Class and each Class of Subordinate Certificates subordinate thereto,
if
any, and the denominator of which is the Scheduled Principal Balance of all
of
the Mortgage Loans as of the beginning of the related Due Period, equals or
exceeds such percentage calculated as of the Closing Date.
Class
R Certificates:
The
Class R-1, Class R-2 and Class R-3 Certificates.
Class
X Certificate:
Any
Certificate designated as a “Class X Certificate” on the face thereof,
evidencing the ownership of the Class I-X Component and the Class II-X
Component.
Class
X Component:
The
Class I-X Component or the Class II-X Component.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Securities and Exchange Act of 1934, as amended, which initially shall be DTC,
Clearstream, Luxembourg and Euroclear.
Clearstream,
Luxembourg:
Clearstream Banking, a société anonyme, a limited liability company organized
under the laws of Luxembourg.
Closing
Date:
November 30, 2006.
Code:
The
Internal Revenue Code of 1986, as amended.
Company:
EMC
Mortgage Corporation, in its capacity as servicer.
Compensating
Interest Payment:
As
defined in Section 6.07.
Component:
Any of
the Class I-X, Class II-X, Class I-PO or Class II-PO Components.
Corporate
Trust Office:
The
office of the Trustee at which at any particular time its corporate trust
business is administered, which office, at the date of the execution of this
Agreement, is located at US Bank Corporate Trust Services, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services/PRIME 2006-2,
or such other address as the Trustee may designate from time to time.
Corresponding
Interests:
With
respect to each REMIC II Regular Interest, the Class with the same
designation.
Credit
Support Depletion Date:
The
first Distribution Date on which the related Subgroup Senior Percentage equals
100%.
Cross-Over
Date:
The
Distribution Date on which the Current Principal Amounts of the Subordinate
Certificates are reduced to zero.
Current
Principal Amount:
With
respect to any Certificate (other than an Interest Only Certificate and the
Class PO Certificates) or any Class PO Component as of any Distribution Date,
the initial principal amount of such Certificate or Component plus any
Subsequent Recoveries added to the Current Principal Amount of such Certificate
or Component pursuant to Section 6.01(g), and reduced by (i) all amounts
distributed on previous Distribution Dates on such Certificate or Component
with
respect to principal, (ii) the principal portion of all Realized Losses
allocated prior to such Distribution Date to such Certificates or Components,
taking account of the Loss Allocation Limitation and (iii) in the case of a
Subordinate Certificate, such Certificate’s pro rata share, if any, of the
applicable Subordinate Certificate Writedown Amount for previous Distribution
Dates. With respect to any Class of Certificates (other than an Interest Only
Certificate and Class PO Components), the Current Principal Amount thereof
will
equal the sum of the Current Principal Amounts of all Certificates or Components
in such Class. Notwithstanding the foregoing, solely for purposes of giving
consents, directions, waivers, approvals, requests and notices, each of the
Residual Certificates after the Distribution Date on which they each receive
the
distribution of the last dollar of their respective original principal amount
shall be deemed to have Current Principal Amounts equal to their respective
Current Principal Amounts on the day immediately preceding such Distribution
Date.
Current
Report:
The
Current Report pursuant to Section 13 or 15(d) of the Exchange Act.
Custodial
Agreement:
An
agreement, dated as of the Closing Date among the Depositor, the Master
Servicer, the Trustee and the Custodian in substantially the form of Exhibit
G
hereto.
Custodian:
▇▇▇▇▇
Fargo Bank, National Association, or any successor custodian appointed pursuant
to the provisions hereof and of the Custodial Agreement.
Cut-off
Date:
November 1, 2006.
Cut-off
Date Balance:
An
amount equal to $281,849,595,74.
Debt
Service Reduction:
Any
reduction of the Scheduled Payments which a Mortgagor is obligated to pay with
respect to a Mortgage Loan as a result of any proceeding under the Bankruptcy
Code or any other similar state law or other proceeding.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation of the Mortgaged Property by a court
of competent jurisdiction in an amount less than the then outstanding
indebtedness under the Mortgage Loan, which valuation results from a proceeding
initiated under the Bankruptcy Code or any other similar state law or other
proceeding.
Delinquent:
A
Mortgage Loan is “delinquent” if any payment due thereon is not made pursuant to
the terms of such Mortgage Loan by the close of business on the day such payment
is scheduled to be due. A Mortgage Loan is “30 days delinquent” if such payment
has not been received by the close of business on the last day of the month
in
which such payment was due. For example, a Mortgage Loan with a payment due
on
December 1 that remained unpaid as of the close of business on December 31
would
then be considered to be 30 to 59 days delinquent. Similarly for “60 days
delinquent,” “90 days delinquent” and so on.
The
determination as to whether a Mortgage Loan falls into these categories is
made
as of the close of business on the last Business Day of each month. This
method of determining delinquencies is also referred to as the MBA
method.
Depositor:
Structured Asset Mortgage Investments II Inc., a Delaware corporation, or its
successors in interest.
Depositor
Information:
As
defined in Section 3.18(c).
Depository:
The
Depository Trust Company, the nominee of which is Cede & Co., or any
successor thereto.
Depository
Agreement:
The
meaning specified in Subsection 5.01(a) hereof.
Depository
Participant:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time the Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Designated
Depository Institution:
A
depository institution (commercial bank, federal savings bank, mutual savings
bank or savings and loan association) or trust company (which may include the
Trustee), the deposits of which are fully insured by the FDIC to the extent
provided by law.
Determination
Date:
With
respect to each Mortgage Loan, the Determination Date as defined in the related
Servicing Agreement.
Discount
Mortgage Loan:
Any
Group I Mortgage Loan with a Net Mortgage Rate less than 6.250% per annum.
Any
Group II Mortgage Loan with a Net Mortgage Rate less than 5.500% per
annum.
Disqualified
Organization:
Any of
the following: (i) the United States, any State or political subdivision
thereof, any possession of the United States, or any agency or instrumentality
of any of the foregoing (other than an instrumentality which is a corporation
if
all of its activities are subject to tax and, except for the ▇▇▇▇▇▇▇ Mac or
any
successor thereto, a majority of its board of directors is not selected by
such
governmental unit), (ii) any foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers’ cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the
tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C)
of
the Code or (v) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any REMIC contained in the Trust or any
Person having an Ownership Interest in the Residual Certificate (other than
such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the transfer of an Ownership Interest
in
a Residual Certificate to such Person. The terms “United States,” “State” and
“international organization” shall have the meanings set forth in Section 7701
of the Code or successor provisions.
Distribution
Account:
The
trust account or accounts created and maintained pursuant to Section 4.04,
which
shall be denominated “U.S. Bank National Association, as Trustee, f/b/o holders
of Structured Asset Mortgage Investments II Inc., Prime Mortgage Trust,
Certificates, Series 2006-2 - Distribution Account.” The Distribution Account
shall be an Eligible Account.
Distribution
Account Deposit Date:
The
Business Day prior to each Distribution Date.
Distribution
Date:
The
25th day of any month, beginning in December 2006, or, if such 25th day is
not a
Business Day, the immediately following Business Day.
Distribution
Report:
The
Asset-Backed Issuer Distribution Report pursuant to Section 13 or 15(d) of
the
Exchange Act.
DTC
Custodian:
U.S.
Bank National Association, or its successors in interest as custodian for the
Depository.
Due
Date:
With
respect to each Mortgage Loan, the date in each month on which its Scheduled
Payment is due if such due date is the first day of a month and otherwise is
deemed to be the first day of the following month or such other date specified
in the related Servicing Agreement.
Due
Period:
With
respect to any Distribution Date and each Mortgage Loan, the period commencing
on the second day of the month preceding the month in which the Distribution
Date occurs and ending at the close of business on the first day of the month
in
which the Distribution Date occurs.
▇▇▇▇▇:
As
defined in Section 3.18.
Eligible
Account:
Any
of (i) a segregated account or accounts maintained with a federal or state
chartered depository institution or trust company, the long-term unsecured
debt
obligations and short-term unsecured debt obligations of which (or, in the
case
of a depository institution or trust company that is the principal subsidiary
of
a holding company, the debt obligations of such holding company, so long as
▇▇▇▇▇’▇ is not a Rating Agency) are rated by each Rating Agency in one of its
two highest
long-term and its highest short-term rating categories, respectively, at the
time any amounts are held on deposit therein, or (ii) a segregated account
or accounts in a depository institution or trust company in which such accounts
are insured by the FDIC (to the limits established by the FDIC) and the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel (obtained by the Person requesting that
the
account be held pursuant to this clause (ii)) delivered to the Trustee and
to
each Rating Agency, the Certificateholders have a claim with respect to the
funds in such account or a perfected first priority security interest against
any collateral (which shall be limited to Permitted Investments, each of which
shall mature not later than the Business Day immediately preceding the
Distribution Date next following the date of investment in such collateral
or
the Distribution Date if such Permitted Investment is an obligation of the
institution that maintains the Distribution Account) securing such funds that
is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii)
a
segregated trust account or accounts maintained with the corporate trust
department of a federal or state chartered depository institution or trust
company having capital and surplus of not less than $50,000,000, acting in
its
fiduciary capacity or (iv) any other segregated account acceptable to the
Rating Agencies, as evidenced in writing. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
EMC:
EMC
Mortgage Corporation.
EMC
Flow Loans:
The
Mortgage Loans purchased by EMC pursuant to a flow loan purchase
agreement.
EMC
Servicing Agreement:
With
respect to the Mortgage Loans serviced by the Company, the Servicing Agreement
dated as of November 1, 2006, between the Depositor and the Company, attached
hereto as Exhibit I-2 and as modified by the related Assignment
Agreement.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
Euroclear:
Euroclear Clearance System, Société Cooperative, a Belgium cooperative
cooperation.
Euroclear
Operator:
Euroclear Bank S.A./N.V., as operator of the Euroclear system.
Event
of Default:
An
event of default described in Section 8.01.
Excess
Liquidation Proceeds:
To the
extent that such amount is not required by law to be paid to the related
Mortgagor, the amount, if any, by which Liquidation Proceeds with respect to
a
Liquidated Mortgage Loan exceed the sum of (i) the Outstanding Principal Balance
of such Mortgage Loan and accrued but unpaid interest at the related Mortgage
Interest Rate through the last day of the month in which the related Liquidation
Date occurs, plus (ii) related Liquidation Expenses.
Exchange
Act:
Securities Exchange Act of 1934, as amended.
Exchange
Act Reports:
Any
reports required to be filed pursuant to Section 3.18 of this
Agreement.
▇▇▇▇▇▇
▇▇▇:
Federal
National Mortgage Association or any successor thereto.
FDIC:
Federal
Deposit Insurance Corporation or any successor thereto.
Final
Certification:
The
certification substantially in the form of Exhibit Three to the Custodial
Agreement.
Fiscal
Quarter:
December 1 to February 29 (or the last day in such month), March 1 to May 31,
June 1 to August 31, or September 1 to November 30, as applicable.
Fitch:
Fitch,
Inc. or its successor in interest.
Form
8-K Disclosure Information:
As
defined in Section 3.18(a)(ii)(A).
Form
10-K Filing Deadline:
As
defined in Section 3.18.
Fractional
Undivided Interest:
With
respect to any Class of Certificates, the fractional undivided interest
evidenced by any Certificate of such Class, the numerator of which is the
Current Principal Amount, or Notional Amount in the case of the Interest Only
Certificates, of such Certificate and the denominator of which is the Current
Principal Amount, or Notional Amount in the case of the Interest Only
Certificates, of such Class. With respect to the Certificates in the aggregate,
the fractional undivided interest evidenced by (i) the Residual Certificates
will be deemed to equal 0.25%, (ii) each Class of Interest Only Certificates
will be deemed to equal 1.0% multiplied by a fraction, the numerator of which
is
the Notional Amount of such Certificate and the denominator of which is the
aggregate Notional Amount of its respective Class and (iii) a
Certificate of any other Class will be deemed to equal the fractional undivided
interest remaining after taking into account clauses (i) and (ii) multiplied
by
a fraction,
the
numerator of which is the Current Principal Amount of such Certificate and
the
denominator of which is the aggregate Current Principal Amount of all the
Certificates; provided, however, the percentage in clause (iii) above shall
be
increased by 1.0% upon the retirement of each Class of Interest Only
Certificates.
▇▇▇▇▇▇▇
Mac:
▇▇▇▇▇▇▇
Mac, formerly the Federal Home Loan Mortgage Corporation, or any successor
thereto.
Global
Certificate:
Any
Non-Offered Certificate registered in the name of the Depository or its nominee,
beneficial interests in which are reflected on the books of the Depository
or on
the books of a Person maintaining an account with such Depository (directly
or
as an indirect participant in accordance with the rules of such
depository).
Holder:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that, subject to Subsections 11.02(b) and 11.05(e), solely for the
purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Depositor, the Master Servicer or the Trustee
or
any Affiliate thereof shall be deemed not to be outstanding and the Fractional
Undivided Interest evidenced thereby shall not be taken into account in
determining whether the requisite percentage of Fractional Undivided Interests
necessary to effect any such consent has been obtained.
Indemnified
Persons:
The
Trustee, the Master Servicer and the Custodian and their officers, directors,
agents and employees and, with respect to the Trustee, any separate co-trustee
and its officers, directors, agents and employees.
Independent:
When
used with respect to any specified Person, this term means that such Person
(a)
is in fact independent of the Depositor or the Master Servicer and of any
Affiliate of the Depositor or the Master Servicer, (b) does not have any direct
financial interest or any material indirect financial interest in the Depositor
or the Master Servicer or any Affiliate of the Depositor or the Master Servicer
and (c) is not connected with the Depositor or the Master Servicer or any
Affiliate as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Individual
Certificate:
Any
Non-Offered Certificate registered in the name of the Holder other than the
Depository or its nominee.
Initial
Certification:
The
certification substantially in the form of Exhibit One to the Custodial
Agreement.
Institutional
Accredited Investor:
Any
Person meeting the requirements of Rule 501(a)(l), (2), (3) or (7) of Regulation
D under the Securities Act or any entity all of the equity holders in which
come
within such paragraphs.
Insurance
Policy:
With
respect to any Mortgage Loan, any standard hazard insurance policy, flood
insurance policy or title insurance policy.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy covering any Mortgage Loan or
Mortgaged Property other than amounts required to be paid over to the Mortgagor
pursuant to law or the related Mortgage Note or Security Instrument and other
than amounts used to repair or restore the Mortgaged Property or to reimburse
insured expenses.
Interest
Accrual Period:
For
each Class of Certificates (other than the Class
I-A1-1, Class I-A1-2, Class I-A2-1, Class I-A2-2 Certificates)
and the
Class X Components and for any Distribution Date, the calendar month preceding
the month in which such Distribution Date occurs. For the Class I-A1-1, Class
I-A1-2, Class I-A2-1, Class I-A2-2 Certificates, the period from and including
the preceding Distribution Date (or from the Closing Date, in the case of the
first Distribution Date) to and including the day prior to the current
Distribution Date. All calculations of interest on the Certificates will be
made
on the basis of a 360-day year consisting of twelve 30-day months.
Interest
Determination Date:
With
respect to each Distribution Date, the second LIBOR Business Day immediately
preceding the commencement of the related Interest Accrual Period.
Interest
Only Certificates:
The
Class I-A1-2, Class I-A2-2, Class X and Class BX Certificates.
Interest
Shortfall:
With
respect to any Distribution Date and each Mortgage Loan that during the related
Prepayment Period was the subject of a Principal Prepayment or constitutes
a
Relief Act Mortgage Loan, an amount determined as follows:
(A) Partial
principal prepayments received during the relevant Prepayment Period: The
difference between (i) one month’s interest at the applicable Net Mortgage Rate
on the amount of such prepayment and (ii) the amount of interest for the
calendar month of such prepayment (adjusted to the applicable Net Mortgage
Rate)
received at the time of such prepayment;
(B) Principal
prepayments in full received during the relevant Prepayment Period: The
difference between (i) one month’s interest at the applicable Net Mortgage Rate
on the Scheduled Principal Balance of such Mortgage Loan immediately prior
to
such prepayment and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Mortgage Rate) received at the time
of such prepayment; and
(C) As
to any
Relief Act Mortgage Loan, the excess of (i) 30 days’ interest (or, in the case
of a principal prepayment in full, interest to the date of prepayment) on the
Scheduled Principal Balance thereof (or, in the case of a principal prepayment
in part, on the amount so prepaid) at the related Net Mortgage Rate over (ii)
30
days’ interest (or, in the case of a principal prepayment in full, interest to
the date of prepayment) on such Scheduled Principal Balance (or, in the case
of
a Principal Prepayment in part, on the amount so prepaid) at the Net Mortgage
Rate required to be paid by the Mortgagor as limited by application of the
Relief Act.
Interim
Certification:
The
certification substantially in the form of Exhibit Two to the Custodial
Agreement.
Investment
Letter:
The
letter to be furnished by each Institutional Accredited Investor which purchases
any of the Class B-4, Class B-5 or Class B-6 Certificates in connection with
such purchase, substantially in the form set forth as Exhibit F-1
hereto.
Issuing
Entity:
Prime
Mortgage Trust 2006-2.
Lender-Paid
PMI Rate:
With
respect to each Mortgage Loan covered by a lender-paid primary mortgage
insurance policy, the amount payable to the related insurer, as stated in the
Mortgage Loan Schedule.
LIBOR:
With
respect to any Distribution Date, the arithmetic mean of the London interbank
offered rate quotations for one-month U.S. Dollar deposits, expressed on a
per
annum basis, determined in accordance with Section 1.02.
LIBOR
Business Day:
Any day
other than (i) a Saturday or Sunday or (ii) a day on which banking institutions
in London, England and New York City are required or authorized to by law to
be
closed.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the related Servicer or the Master Servicer
has determined that all amounts it expects to recover from or on account of
such
Mortgage Loan have been recovered.
Liquidation
Date:
With
respect to any Liquidated Mortgage Loan, the date on which the Master Servicer
or the related Servicer has certified that such Mortgage Loan has become a
Liquidated Mortgage Loan.
Liquidation
Expenses:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Master Servicer or the related Servicer
in
connection with the liquidation of such Mortgage Loan and the related Mortgage
Property, such expenses including (a) property protection expenses, (b) property
sales expenses, (c) foreclosure and sale costs, including court costs and
reasonable attorneys’ fees, and (d) similar expenses reasonably paid or incurred
in connection with liquidation.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds, received in connection with the partial
or complete liquidation of a Mortgage Loan, whether through trustee’s sale,
foreclosure sale or otherwise, or in connection with any condemnation or partial
release of a Mortgaged Property and any other proceeds received with respect
to
an REO Property.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Mortgage
Loan and the denominator of which is the Original Value of the related Mortgaged
Property.
Loss
Allocation Limit:
The
meaning specified in Subsection 6.03(a)(v) hereof.
Loss
Severity Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the amount of Realized Losses incurred on a Mortgage
Loan
and the denominator of which is the Scheduled Principal Balance of such Mortgage
Loan immediately prior to the liquidation of such Mortgage Loan.
Lost
Notes:
The
original Mortgage Notes that have been lost, as indicated on the Mortgage Loan
Schedule.
Master
Servicer:
As of
the Closing Date, EMC Mortgage Corporation and, thereafter, its respective
successors in interest who meet the qualifications of the Servicing Agreements
and this Agreement.
Master
Servicing Compensation:
For any
Distribution Date, any amounts earned on permitted investments in the Master
Servicer Collection Account.
Master
Servicer Collection Account:
The
trust
account or accounts created and maintained pursuant to Section 4.02, which
shall
be denominated “EMC Mortgage Corporation, as Master Servicer for the benefit of
the Trustee on behalf of holders of Structured Asset Mortgage Investments II
Inc., Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2006-2
-
Master Servicer Collection Account.” The Master Servicer Collection Account
shall be an Eligible Account.
Master
Servicer Information:
As
defined in Section 3.18(c).
Material
Defect:
The
meaning specified in Section 2.02(a).
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
MOM
Loan:
With
respect to any Mortgage Loan, MERS acting as the mortgagee of such Mortgage
Loan, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns, at the origination thereof, or as nominee for any
subsequent assignee of the originator pursuant to an assignment of mortgage
to
MERS.
Monthly
Advance:
An
advance of principal or interest required to be made by the applicable Servicer
pursuant to the related Servicing Agreement or the Master Servicer pursuant
to
Section 6.06.
Moody’s:
▇▇▇▇▇’▇
Investors Service, Inc. or its successor in interest.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan and any additional documents required to be added to the Mortgage File
pursuant to this Agreement.
Mortgage
Interest Rate:
The
annual rate at which interest accrues from time to time on any Mortgage Loan
pursuant to the related Mortgage Note, which rate is initially equal to the
“Mortgage Interest Rate” set forth with respect thereto on the Mortgage Loan
Schedule.
Mortgage
Loan:
A
mortgage loan transferred and assigned to the Trustee pursuant to Section 2.01
or Section 2.04 and held as a part of the Trust Fund, as identified in the
Mortgage Loan Schedule (which shall include, without limitation, each related
Mortgage Note, Mortgage and Mortgage File and all rights appertaining thereto),
including a mortgage loan the property securing which has become an REO
Property. Notwithstanding any provision in this Agreement to the contrary,
in no
event shall the term “Mortgage Loan” include any Underlying Mortgage
Loan.
Mortgage
Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of November 30, 2006, between EMC
Mortgage Corporation, as seller, and Structured Asset Mortgage Investments
II
Inc., as purchaser, and all amendments thereof and supplements thereto, attached
as Exhibit H.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as
from
time to time amended to reflect the repurchase or substitute of Mortgage Loans
pursuant to the provisions of this Agreement)
transferred to the Trustee as part of the Trust Fund and from time to time
subject to this Agreement, the initial Mortgage Loan Schedule being attached
hereto as Exhibit B setting forth the following information with respect to
each
Mortgage Loan:
(a) the
city,
state and zip code of the Mortgaged Property;
(b) the
property type;
(c) the
Mortgage Interest Rate;
(d) the
Servicing Fee Rate;
(e) the
LPMI
Fee, if applicable;
(f) [reserved];
(g) the
Net
Rate;
(h) the
maturity date;
(i) the
stated original term to maturity;
(j) the
stated remaining term to maturity;
(k) the
original Principal Balance;
(l) the
first
payment date;
(m) the
principal and interest payment in effect as of the Cut-off Date;
(n) the
unpaid Principal Balance as of the Cut-off Date;
(o) the
Loan-to-Value Ratio at origination;
(p) the
insurer of any Primary Mortgage Insurance Policy;
(q) the
MIN
with respect to each MOM Loan;
(r) the
Gross
Margin, if applicable;
(s) the
next
Adjustment Date, if applicable;
(t) the
Maximum Mortgage Rate, if applicable;
(u) the
Minimum Mortgage Rate, if applicable;
(v) the
Periodic Rate Cap, if applicable;
(w) the
Loan
Group, if applicable;
(x) a
code
indicating whether the Mortgage Loan is negatively amortizing;
(y) which
Mortgage Loans adjust after an initial fixed-rate period of one, two, three,
five, seven or ten years or any other period;
(z) the
Prepayment Charge, if any;
(aa) lien
position (e.g., first lien or second lien);
(bb) a
code
indicating whether the Mortgage Loan has a balloon payment;
(cc) a
code
indicating whether the Mortgage Loan is an interest-only loan;
(dd) the
interest-only term, if applicable;
(ee) the
Mortgage Loan Seller; and
(ff) the
original amortization term.
Such
schedule also shall set forth for all of the Mortgage Loans, the total number
of
Mortgage Loans, the total of each of the amounts described under (n) and (o)
above, the weighted average by principal balance as of the Cut-off Date of
each
of the rates described under (c) through (h) above, and the weighted average
remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
Mortgage
Note:
The
originally executed note or other evidence of the indebtedness of a Mortgagor
under the related Mortgage Loan.
Mortgaged
Property:
Land
and improvements securing the indebtedness of a Mortgagor under the related
Mortgage Loan or, in the case of REO Property, such REO Property. In no event,
however, shall the term “Mortgaged Property” include any mortgaged property or
real estate owned property relating to an Underlying Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Interest Shortfall:
With
respect to any Distribution Date, the Interest Shortfall, if any, for such
Distribution Date net of Compensating Interest Payments made with respect to
such Distribution Date.
Net
Liquidation Proceeds:
As to
any Liquidated Mortgage Loan, Liquidation Proceeds net of (i) Liquidation
Expenses which are payable therefrom to the related Servicer or the Master
Servicer in accordance with the related Servicing Agreement or this Agreement
and (ii) unreimbursed advances by the related Servicer or the Master Servicer
and Monthly Advances.
Net
Mortgage Rate:
With
respect to each Mortgage Loan, the Mortgage Interest Rate in effect from time
to
time less the sum of (i) the Servicing Fee Rate and (ii) the Trustee Fee
Rate.
Non-Offered
Subordinate Certificates:
The
Class B-4, Class B-5 and Class B-6 Certificates.
Non-PO
Percentage:
With
respect to any Group I Mortgage Loan with a Net Mortgage Rate less than 6.250%
per annum, a fraction, expressed as a percentage, (x) the numerator of which
is
equal to the related Net Mortgage Rate, and (y) the denominator of which is
equal to 6.250% per annum. With respect to any Group II Mortgage Loan with
a Net
Mortgage Rate less than 5.500% per annum, a fraction, expressed as a percentage,
(x) the numerator of which is equal to the related Net Mortgage Rate, and (y)
the denominator of which is equal to 5.500% per annum. With respect to all
other
Mortgage Loans, 100%.
Nonrecoverable
Advance:
With
respect to any Mortgage Loan, any advance or Monthly Advance (i) which was
previously made or is proposed to be made by the Master Servicer, the Trustee
(as successor Master Servicer) or the applicable Servicer and (ii) which, in
the
good faith judgment of the Master Servicer, the Trustee or the applicable
Servicer, will not or, in the case of a proposed advance or Monthly Advance,
would not, be ultimately recoverable by the Master Servicer, the Trustee (as
successor Master Servicer) or the applicable Servicer from Liquidation Proceeds,
Insurance Proceeds or future payments on the Mortgage Loan for which such
advance or Monthly Advance was made or is proposed to be made.
Notional
Amount:
The
Notional Amount of the Class I-A1-2 Certificates, as of any date of
determination, is equal to the Current Principal Amount of the Class I-A1-1
Certificates. For federal income tax purposes, however, the Notional Amount
of
the Class I-A1-2 Certificates is an amount equal to the Uncertificated Principal
Balance of REMIC II Regular Interest I-A1-1. The Notional Amount of the Class
I-A2-2 Certificates, as of any date of determination, is equal to the Current
Principal Amount of the Class I-A2-1 Certificates. For federal income tax
purposes, however, the Notional Amount of the Class I-A2-2 Certificates is
an
amount equal to the Uncertificated Principal Balance of REMIC II Regular
Interest I-A2-1. The Notional Amount of the Class I-X Component, as of any
date
of determination, is equal to the aggregate Scheduled Principal Balance of
the
Group I Mortgage Loans with a Net Mortgage Rate greater than 7.500% per annum.
For federal income tax purposes, however, the Notional Amount of the Class
I-X
Component is an amount equal to the Uncertificated Notional Amount of REMIC
II
Regular Interest I-X. The Notional Amount of the Class II-X Component, as of
any
date of determination, is equal to the aggregate Scheduled Principal Balance
of
the Group II Mortgage Loans with a Net Mortgage Rate greater than 6.000% per
annum. For federal income tax purposes, however, the Notional Amount of the
Class II-X Component is an amount equal to the Uncertificated Notional Amount
of
REMIC II Regular Interest II-X. The
Notional Amount of the Class BX Certificates, as of any date of determination,
is equal to the sum of the aggregate Current Principal Amounts of the Class
B-1,
Class B-2 and Class B-3 Certificates. For federal income tax purposes, however,
the Notional Amount of the Class BX Certificates is an amount equal to the
aggregate Uncertificated Principal Balance of REMIC II Regular Interests B-1,
B-2 and B-3.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a Vice President or Assistant Vice President or other
authorized officer of the Master Servicer, the Depositor, the Seller or the
Servicer, as applicable, and delivered to the Trustee, as required by this
Agreement.
Offered
Certificates: The
Senior Certificates and Offered Subordinate Certificates.
Offered
Subordinate Certificates:
The
Class BX, Class B-1, Class B-2 and Class B-3 Certificates.
Opinion
of Counsel:
A
written opinion of counsel who is or are acceptable to the Trustee or the Master
Servicer, as applicable, and who, unless required to be Independent (an “Opinion
of Independent Counsel”), may be internal counsel for the Master Servicer or the
Depositor.
Original
Subordinate Principal Balance:
The
aggregate Current Principal Amount of the Subordinate Certificates as of the
Closing Date.
Original
Value:
The
lesser of (i) the Appraised Value or (ii) the sales price of a Mortgaged
Property at the time of origination of a Mortgage Loan, except in instances
where either clauses (i) or (ii) is unavailable, the other may be used to
determine the Original Value, or if both clauses (i) and (ii) are unavailable,
Original Value may be determined from other sources reasonably acceptable to
the
Depositor.
Outstanding
Mortgage Loan:
With
respect to any Due Date, a Mortgage Loan which, prior to such Due Date, was
not
the subject of a Principal Prepayment in full, did not become a Liquidated
Mortgage Loan and was not purchased or replaced.
Outstanding
Principal Balance:
As of
the time of any determination, the principal balance of a Mortgage Loan
remaining to be paid by the Mortgagor, or, in the case of an REO Property,
the
principal balance of the related Mortgage Loan remaining to be paid by the
Mortgagor at the time such property was acquired by the Trust Fund less any
Net
Liquidation Proceeds with respect thereto to the extent applied to
principal.
Pass-Through
Rate:
As to
each Class of Certificates (other than the Class PO Certificates), the Class
X
Components, the REMIC I Regular Interests and the REMIC II Regular Interests,
the rate of interest determined as provided with respect thereto in Section
5.01(c). Any monthly calculation of interest at a stated rate shall be based
upon annual interest at such rate divided by twelve.
Pass-Through
Transfer:
Any
transaction involving either (1) a sale or other transfer of mortgage loans
directly or indirectly to an issuing entity in connection with an issuance
of
publicly offered or privately placed, rated or unrated mortgage-backed
securities or (2) an issuance of publicly offered or privately placed, rated
or
unrated securities, the payments on which are determined primarily by reference
to one or more portfolios of residential mortgage loans.
Permitted
Investments:
At any
time, any one or more of the following obligations and securities:
(i) direct
obligations of, and obligations the timely payment of which are fully guaranteed
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;
(ii) (a)
demand or time deposits, federal funds or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof (including the Trustee or the
Master Servicer or its Affiliates acting in its commercial banking capacity)
and
subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or the short-term debt
rating and/or the long-term unsecured debt obligations of such depository
institution or trust company at the time of such investment or contractual
commitment providing for such investment have the Applicable Credit Rating
or
better from each Rating Agency and (b) any other demand or time deposit or
certificate of deposit that is fully insured by the Federal Deposit Insurance
Corporation;
(iii) repurchase
obligations with respect to (a) any security described in clause (i) above
or
(b) any other security issued or guaranteed by an 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, in either case entered into
with a depository institution or trust company (acting as principal) described
in clause (ii)(a) above where the Trustee or the Master Servicer or its
Affiliates hold the security therefor;
(iv) securities
bearing interest or sold at a discount issued by any corporation (including
the
Trustee or the Master Servicer or its Affiliates) incorporated under the laws
of
the United States of America or any state thereof that have the Applicable
Credit Rating or better from each Rating Agency at the time of such investment
or contractual commitment providing for such investment; provided, however,
that
securities issued by any particular corporation will not be Permitted
Investments to the extent that investments therein will cause the then
outstanding principal amount of securities issued by such corporation and held
as part of the Trust to exceed 10% of the aggregate Outstanding Principal
Balances of all the Mortgage Loans and Permitted Investments held as part of
the
Trust;
(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 one year after the date of issuance thereof) having the Applicable Credit
Rating or better from each Rating Agency at the time of such
investment;
(vi) a
Reinvestment Agreement issued by any bank, insurance company or other
corporation or entity;
(vii) any
other
demand, money market or time deposit, obligation, security or investment as
may
be acceptable to each Rating Agency as evidenced in writing by each Rating
Agency to the Trustee or the Master Servicer or its Affiliates; and
(viii) any
money
market or common trust fund having the Applicable Credit Rating or better from
each Rating Agency rating such fund, including any such fund for which the
Trustee or Master Servicer or any affiliate of the Trustee or Master Servicer
acts as a manager or an advisor; provided, however, that no instrument or
security shall be a Permitted Investment if such instrument or security
evidences a right to receive only interest payments with respect to the
obligations underlying such instrument or if such security provides for payment
of both principal and interest with a yield to maturity in excess of 120% of
the
yield to maturity at par or if such instrument or security is purchased at
a
price greater than par.
Permitted
Transferee:
Any
Person other than a Disqualified Organization or an “electing large partnership”
(as defined by Section 775 of the Code).
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Physical
Certificates:
The
Residual Certificates and the Non-Offered Subordinate Certificates.
PO
Percentage:
With
respect to any Discount Mortgage Loan in Group I, a fraction expressed as a
percentage, (x) the numerator of which is equal to 6.250%
minus
the related Net Mortgage Rate, and (y) the denominator of which is equal to
6.250% per annum. With respect to any Discount Mortgage Loan in Group II, a
fraction expressed as a percentage, (x) the numerator of which is equal to
5.500% minus the related Net Mortgage Rate, and (y) the denominator of which
is
equal to 5.500% per annum.
Prepayment
Charge:
With
respect to any Mortgage Loan, the charges or premiums, if any, due in connection
with a full or partial prepayment of such Mortgage Loan in accordance with
the
terms thereof.
Prepayment
Interest Shortfall:
With
respect to any Distribution Date, the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rates) on Mortgage
Loans resulting from (a) prepayments in full received during the related
Prepayment Period and (b) the partial prepayments received during the related
Prepayment Period to the extent applied prior to the Due Date in the month
of
the Distribution Date.
Prepayment
Period:
With
respect to any Distribution Date and the related Servicer, such period as is
provided in the related Servicing Agreement.
Primary
Mortgage Insurance Policy:
Any
primary mortgage guaranty insurance policy issued in connection with a Mortgage
Loan which provides compensation to a Mortgage Note holder in the event of
default by the obligor under such Mortgage Note or the related Security
Instrument, if any or any replacement policy therefor through the related
Interest Accrual Period for such Class relating to a Distribution
Date.
Principal
Prepayment:
Any
payment (whether partial or full) or other recovery of principal on a Mortgage
Loan which is received in advance of its scheduled Due Date to the extent that
it is not accompanied by an amount as to interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month
of prepayment, including Insurance Proceeds and Repurchase Proceeds, but
excluding the principal portion of Net Liquidation Proceeds received at the
time
a Mortgage Loan becomes a Liquidated Mortgage Loan.
Protected
Account:
An
account established and maintained for the benefit of Holders of the
Certificates by each Servicer with respect to the Mortgage Loans and with
respect to REO Property pursuant to the applicable Servicing
Agreement.
Purchase
Price:
With
respect to any Mortgage Loan (or any property acquired with respect thereto)
(x)
required to be repurchased by the Seller pursuant to the Mortgage Loan Purchase
Agreement or Article II of this Agreement or (y) that the Seller has a right
to
purchase pursuant to Section 3.21 hereof, an amount equal to the sum of (i)(a)
100% of the Outstanding Principal Balance of such Mortgage Loan as of the date
of repurchase (or if the related Mortgaged Property was acquired with respect
thereto, 100% of the Outstanding Principal Balance at the date of the
acquisition), plus (b) accrued but unpaid interest on the Outstanding Principal
Balance at the related Mortgage Interest Rate, through and including the last
day of the month of repurchase, plus (c) any unreimbursed Monthly Advances
and
servicing advances payable to the related Servicer of the Mortgage Loan or
to
the Master Servicer and (ii) any costs and damages (if any) incurred by the
Trust in connection with any violation of such Mortgage Loan of any predatory
lending laws.
QIB:
A
Qualified Institutional Buyer as defined in Rule 144A promulgated under the
Securities Act.
Qualified
Insurer:
Any
insurance company duly qualified as such under the laws of the state or states
in which the related Mortgaged Property or Mortgaged Properties is or are
located, duly authorized and licensed in such state or states to transact the
type of insurance business in which it is engaged and approved as an insurer
by
the Master Servicer, so long as the claims paying ability of which is acceptable
to the Rating Agencies for pass-through certificates having the same rating
as
the related Certificates rated by the Rating Agencies as of the Closing
Date.
Rating
Agencies:
With
respect to the Certificates, ▇▇▇▇▇’▇ and S&P.
Realized
Loss:
Any (i)
Bankruptcy Loss or (ii) as to any Liquidated Mortgage Loan, (x) the Outstanding
Principal Balance of such Liquidated Mortgage Loan plus accrued and unpaid
interest thereon at the Mortgage Interest Rate through the last day of the
month
of such liquidation, less (y) the related Net Liquidation Proceeds with respect
to such Mortgage Loan and the related Mortgage Property. With respect to each
Mortgage Loan which is the subject of a servicing modification, (a) (1) the
amount by which the interest portion of a monthly payment or the principal
balance of such Mortgage Loan was reduced or (2) the sum of any other amounts
owing under the Mortgage Loan that were forgiven and that constitute Monthly
Advances that are reimbursable to the related Servicer, and (b) any such amount
with respect to a monthly payment that was or would have been due in the month
immediately following the month in which a Principal Prepayment or the Purchase
Price of such Mortgage Loan is received or is deemed to have been received
and
not paid due to a servicing modification. In addition, to the extent the
Trustee receives Subsequent Recoveries with respect to any Mortgage Loan, the
amount of the Realized Loss with respect to that Mortgage Loan will be reduced
to the extent such recoveries are applied to reduce the Current Principal Amount
of any Class of Certificates on any Distribution Date.
Record
Date:
With
respect to any Distribution Date and each Class of Certificates, other
than the Class
I-A1-1, Class I-A1-2, Class I-A2-1 and Class I-A2-2 Certificates, the close
of
business on the last Business Day of the month immediately preceding the month
of such Distribution Date. With respect to any Distribution Date and
for
the Class
I-A1-1, Class I-A1-2, Class I-A2-1 and Class I-A2-2 Certificates,
the Business Day preceding such Distribution Date so long as such Certificates
remain in book-entry form; and otherwise, the last Business Day of the month
preceding the month in which such Distribution Date occurs.
Regular
Certificates:
Any of
the Certificates other than the Residual Certificates.
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.
Regulation
S:
Regulation S promulgated under the Securities Act.
Regulation
S Global Certificates:
The
Regulation S Temporary Global Certificates and the Regulation S Permanent Global
Certificates.
Relief
Act:
The
Servicemembers Civil Relief Act, formerly known as the Soldiers’ and Sailors’
Civil Relief Act of 1940, as amended, or similar state law.
Relief
Act Mortgage Loan:
Any
Mortgage Loan as to which the Scheduled Payment thereof has been reduced due
to
the application of the Relief Act.
REMIC:
A real
estate mortgage investment conduit, as defined in the Code.
REMIC
I:
That
group of assets contained in the Trust Fund designated as a REMIC consisting
of
(i) the Mortgage Loans, (ii) the Distribution Account, (iii) any REO Property
relating to the Mortgage Loans, (iv) the rights with respect to the related
Servicing Agreement, (v) the rights with respect to the Assignment Agreement
and
(vi) any proceeds of the foregoing.
REMIC
I Interests:
The
REMIC I Regular Interests and the Class R-1 Certificates.
REMIC
I Regular Interests:
REMIC I
Regular Interests I-1-Sub, I-2-Sub, I-1-ZZZ, I-2-ZZZ, I-PO, I-X, II-1-Sub,
II-2-Sub, II-1-ZZZ, II-2-ZZZ, II-PO and II-X.
REMIC
I Subordinated Balance Ratio:
The
ratio among the Uncertificated Principal Balances of each of the REMIC I Regular
Interests ending with the designation “Sub,” equal to the ratio among, with
respect to each such REMIC I Regular Interest, the excess of (x) the aggregate
Scheduled Principal Balance of the Mortgage Loans in the related Subgroup (other
than the related PO Percentage of the Scheduled Principal Balance of any such
Mortgage Loans) over (y) the aggregate Current Principal Amount of the Senior
Certificates in the related Subgroup (other than the portion of such Current
Principal Amount attributable to the related Class PO Components of the Class
PO
Certificates).
REMIC
II:
That
group of assets contained in the Trust Fund designated as a REMIC consisting
of
the REMIC I Regular Interests.
REMIC
II Regular Interests:
REMIC
II Regular Interests ▇-▇▇-▇, ▇-▇▇-▇, ▇-▇▇-▇, ▇-▇▇-▇, ▇-▇▇-▇, ▇▇-▇▇-▇, ▇▇-▇▇-▇,
▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, I-X, II-X, I-PO, II-PO and R-3.
REMIC
II Interests:
The
REMIC II Regular Interests and the Class R-2 Certificates.
REMIC
III:
That
group of assets contained in the Trust Fund designated as a REMIC consisting
of
the REMIC II Regular Interests.
REMIC
Opinion:
An
Opinion of Independent Counsel to the effect that the proposed action described
therein would not, under the REMIC Provisions, (i) cause any REMIC to fail
to
qualify as a REMIC while any regular interest in such REMIC is outstanding,
(ii)
result in a tax on prohibited transactions with respect to any REMIC or (iii)
constitute a taxable contribution to any REMIC after the Startup
Day.
REMIC
Provisions:
The
provisions of the federal income tax law relating to REMICs, which appear at
Sections 860A through 860G of the Code, and related provisions and regulations
promulgated thereunder, as the foregoing may be in effect from time to
time.
REO
Property:
A
Mortgaged Property acquired in the name of the Trustee, for the benefit of
Certificateholders, by foreclosure or deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Reportable
Event:
As
defined in Section 3.18.
Repurchase
Proceeds:
The
Purchase Price in connection with any repurchase of a Mortgage Loan by the
Seller and any cash deposit in connection with the substitution of a Mortgage
Loan.
Request
for Release:
A
request for release in the form attached hereto as Exhibit D.
Required
Insurance Policy:
With
respect to any Mortgage Loan, any insurance policy which is required to be
maintained from time to time under this Agreement with respect to such Mortgage
Loan.
Residual
Certificates:
Any of
the Class R-1, Class R-2 and Class R-3 Certificates.
Responsible
Officer:
Any
officer assigned to the Corporate Trust Office (or any successor thereto),
including any Vice President, Assistant Vice President, Trust Officer, any
Assistant Secretary, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration
of
this Agreement, and any other officer of the Trustee to whom a matter arising
hereunder may be referred.
Rule
144A Certificate:
The
certificate to be furnished by each purchaser of a Non-Offered Certificate
(which is also a Physical Certificate) which is a Qualified Institutional Buyer
as defined under Rule 144A promulgated under the Securities Act, substantially
in the form set forth as Exhibit F-2 hereto.
S&P:
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its
successors in interest.
Scheduled
Payment:
With
respect to any Mortgage Loan and any month, the scheduled payment or payments
of
principal and interest due during such month on such Mortgage Loan which either
is payable by a Mortgagor in such month under the related Mortgage Note or,
in
the case of REO Property, would otherwise have been payable under the related
Mortgage Note.
Scheduled
Principal:
The
principal portion of any Scheduled Payment.
Scheduled
Principal Balance:
With
respect to any Mortgage Loan on any Distribution Date, (i) the unpaid principal
balance of such Mortgage Loan as of the close of business on the related Due
Date (taking account of the principal payment to be made on such Due Date and
irrespective of any delinquency in its payment), as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any bankruptcy or similar proceeding
occurring after the Cut-off Date (other than a Deficient Valuation) or any
moratorium or similar waiver or grace period), less (ii) any Principal
Prepayments received during or prior to the immediately preceding Prepayment
Period and less (iii) the principal portion of any Net Liquidation Proceeds
received during or prior to the immediately preceding calendar month; provided
that the Scheduled Principal Balance of a Liquidated Mortgage Loan is
zero.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Legend:
“THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE
FORM
PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES
AND
ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY
OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED [in the case of a Residual Certificate or a Class
B-4,
Class B-5 and Class B-6 Certificate]
UNLESS
THE OPINION OF COUNSEL REQUIRED BY SECTION 5.07 OF THE POOLING AND SERVICING
AGREEMENT IS PROVIDED [in the case of a Class B-4, Class B-5 and Class B-6
Certificate] UNLESS THE TRANSFEREE CERTIFIES OR REPRESENTS THAT THE PROPOSED
TRANSFER AND HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED
TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED
TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION
EXEMPTION (“PTE”) 84-14, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 OR PTE 96-23 AND (II)
WILL NOT GIVE RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE
DEPOSITOR, THE MASTER SERVICER, ANY SERVICER OR THE TRUSTEE, WHICH WILL BE
DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION OR AN OPINION OF COUNSEL
TO SUCH EFFECT BY OR ON BEHALF OF AN INSTITUTIONAL ACCREDITED
INVESTOR.”
Security
Instrument:
A
written instrument creating a valid first lien on a Mortgaged Property securing
a Mortgage Note, which may be any applicable form of mortgage, deed of trust,
deed to secure debt or security deed, including any riders or addenda
thereto.
Seller:
EMC
Mortgage Corporation, in its capacity as seller of the Mortgage Loans to the
Depositor.
Senior
Certificates:
The
Class I-A1-1, Class I-A1-2, Class I-A1-3, Class I-A1-4, Class I-A1-5, Class
I-A2-1, Class I-A2-2, Class II-A1-1, Class II-A2-1, Class X, Class PO, Class
R-1, Class R-2 and Class R-3 Certificates.
Servicer:
Any of
Chevy Chase, EMC and ▇▇▇▇▇ Fargo.
Servicer
Remittance Date:
With
respect to each Mortgage Loan, the date set forth in the related Servicing
Agreement.
Servicing
Agreements:
The
Chevy Chase Servicing Agreement, EMC Servicing Agreement and ▇▇▇▇▇ Fargo
Servicing Agreement.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time, or those Servicing Criteria otherwise mutually agreed
to by the Seller, the Master Servicer, the Trustee and the applicable Servicer
in response to evolving interpretations of Regulation AB and incorporated into
a
revised Exhibit L.
Servicing
Fee:
As to
any Mortgage Loan and Distribution Date, an amount equal to the product of
(i)
the Scheduled Principal Balance of such Mortgage Loan as of the Due Date in
the
month preceding the month in which such Distribution Date occurs and (ii)
1/12th
of the
Servicing Fee Rate.
Servicing
Fee Rate:
0.25%
per annum.
Servicing
Officer:
Any
officer of the related Servicer or Master Servicer involved in or responsible
for the administration and servicing or master servicing, as applicable, of
the
Mortgage Loans as to which officer evidence, reasonably acceptable to the
Trustee, of due authorization of such officer, by such Servicer or Master
Servicer has been furnished from time to time to the Trustee.
Sponsor:
EMC Mortgage Corporation, in its capacity as sponsor hereunder.
Startup
Day:
November 30, 2006.
Subgroup:
Any
of Subgroup I-1, Subgroup I-2, Subgroup II-1 and Subgroup II-2.
Subgroup
I-1:
All of
the Group I Mortgage Loans with a Net Mortgage Rate of less than 6.250% per
annum plus the Subgroup I-1 Fraction of the principal balance of any Group
I
Mortgage Loan with a Net Mortgage Rate of greater than or equal to 6.250% per
annum and less than 7.500% per annum.
Subgroup
I-1 Certificates:
The
Class I-A1-1, Class I-A1-2, Class I-A1-3, Class I-A1-4, Class I-A1-5 and Class
PO Certificates.
Subgroup
I-1 Fraction:
With
respect to any Group I Mortgage Loan with a Net Mortgage Rate of greater than
or
equal to 6.250% per annum and less than 7.500% per annum, a fraction, (x) the
numerator of which is equal to 7.500% minus the Net Mortgage Rate of such
Mortgage Loan, and (y) the denominator of which is equal to 1.250%.
Subgroup
I-1 Principal Distribution Amount:
The
Subgroup Principal Distribution Amount with respect to Subgroup
I-1.
Subgroup
I-2:
All of
the Group I Mortgage Loans with a Net Mortgage Rate of greater than or equal
to
7.500% per annum, plus the Subgroup I-2 Fraction of the principal balance of
any
Group I Mortgage Loan with a Net Mortgage Rate of greater than or equal to
6.250% per annum and less than 7.500% per annum.
Subgroup
I-2 Certificates:
The
Class I-A2-1, Class I-A2-2 and Class X Certificates.
Subgroup
I-2 Fraction:
With
respect to any Group II Mortgage Loan with a Net Mortgage Rate of greater than
or equal to 6.250% per annum and less than 7.500% per annum, a fraction, (x)
the
numerator of which is equal to the Net Mortgage Rate of such Mortgage Loans
minus 6.250%, and (y) the denominator of which is equal to 1.250%.
Subgroup
I-2 Principal Distribution Amount:
The
Subgroup Principal Distribution Amount with respect to Subgroup
I-2.
Subgroup
II-1:
All of
the Group II Mortgage Loans with a Net Mortgage Rate of less than 5.500% per
annum plus the Subgroup II-1 Fraction of the principal balance of any Group
II
Mortgage Loan with a Net Mortgage Rate of greater than or equal to 5.500% per
annum and less than 6.000% per annum.
Subgroup
II-1 Certificates:
The
Class II-A1-1, Class PO, Class R-1, Class R-2 and Class R-3
Certificates.
Subgroup
II-1 Fraction:
With
respect to any Group II Mortgage Loan with a Net Mortgage Rate of greater than
or equal to 5.500% per annum and less than 6.000% per annum, a fraction, (x)
the
numerator of which is equal to 6.000% minus the Net Mortgage Rate of such
Mortgage Loan, and (y) the denominator of which is equal to 0.500%.
Subgroup
II-1 Principal Distribution Amount:
The
Subgroup Principal Distribution Amount with respect to Subgroup
II-1.
Subgroup
II-2:
All of
the Group II Mortgage Loans with a Net Mortgage Rate of greater than or equal
to
6.000% per annum, plus the Subgroup II-2 Fraction of the principal balance
of
any Group II Mortgage Loan with a Net Mortgage Rate of greater than or equal
to
5.500% per annum and less than 6.000% per annum.
Subgroup
II-2 Certificates:
The
Class II-A2-1 Certificates and Class X Certificates.
Subgroup
II-2 Fraction:
With
respect to any Group II Mortgage Loan with a Net Mortgage Rate of greater than
or equal to 5.500% per annum and less than 6.000% per annum, a fraction, (x)
the
numerator of which is equal to the Net Mortgage Rate of such Mortgage Loans
minus 5.500%, and (y) the denominator of which is equal to 0.500%.
Subgroup
II-2 Principal Distribution Amount:
The
Subgroup Principal Distribution Amount with respect to Subgroup
II-2.
Subgroup
Principal Distribution Amount:
With
respect to each of Subgroup
I-1, Subgroup I-2, Subgroup II-1 and Subgroup II-2 Certificates (other than
the
Class PO Certificates and Class X Certificates) and
each
Distribution Date will be an amount equal to the sum of the following (but
in no
event greater than the aggregate Current Principal Amounts of each of the
Subgroup
I-1, Subgroup I-2, Subgroup II-1 and Subgroup II-2 Certificates,
as
applicable, immediately prior to such Distribution Date):
(1) the
applicable Subgroup Senior Percentage of the Non-PO Percentage of the principal
portion of all Scheduled Payments due on the Mortgage Loans in the related
Subgroup on the related Due Date, as specified in the amortization schedule
at
the time applicable thereto (after adjustment for previous Principal Prepayments
but before any adjustments to such amortization schedule by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver or grace
period);
(2) the
applicable Subgroup Senior Prepayment Percentage of the Non-PO Percentage of
the
Scheduled Principal Balance of each Mortgage Loan in the related Subgroup which
was the subject of a Principal Prepayment in full received by the Servicers
during the applicable Prepayment Period;
(3) the
applicable Subgroup Senior Prepayment Percentage of the Non-PO Percentage of
all
Principal Prepayments in part received by the Servicers during the applicable
Prepayment Period with respect to each Mortgage Loan in the related
Subgroup;
(4) the
lesser of (a) the applicable Subgroup Senior Prepayment Percentage of the Non-PO
Percentage of the sum of (i) all Net Liquidation Proceeds allocable to principal
received in respect of each Mortgage Loan in the related Subgroup which became
a
Liquidated Mortgage Loan during the prior calendar month (other than Mortgage
Loans described in the immediately following clause (ii)) and all Subsequent
Recoveries received in respect of each Liquidated Mortgage Loan in the related
Subgroup during the prior calendar month and (ii) the Scheduled Principal
Balance of each such Mortgage Loan in the related Subgroup purchased by an
insurer from the Trustee during the related Prepayment Period pursuant to the
related Primary Mortgage Insurance Policy, if any, or otherwise; and (b) the
applicable Subgroup Senior Percentage of the Non-PO Percentage of the sum of
(i)
the Scheduled Principal Balance of each Mortgage Loan in the related Subgroup
which became a Liquidated Mortgage Loan during the prior calendar month (other
than the Mortgage Loans described in the immediately following clause (ii))
and
all Subsequent Recoveries received in respect of each Liquidated Mortgage Loan
in the related Subgroup during the prior calendar month and (ii) the Scheduled
Principal Balance of each such Mortgage Loan in the related Subgroup that was
purchased by an insurer from the Trustee during the related Prepayment Period
pursuant to the related Primary Mortgage Insurance Policy, if any or otherwise;
and
(5) the
applicable Subgroup Senior Prepayment Percentage of the Non-PO Percentage of
the
sum of (a) the Scheduled Principal Balance of each Mortgage Loan in the related
Subgroup which was repurchased by the Issuing Entity in connection with such
Distribution Date and (b) the excess, if any, of the Scheduled Principal Balance
of each Mortgage Loan in the related Subgroup that has been replaced by the
Issuing Entity with a substitute Mortgage Loan pursuant to the Mortgage Loan
Purchase Agreement in connection with such Distribution Date over the Scheduled
Principal Balance of each such substitute Mortgage Loan.
Subgroup
Senior Percentage:
With
respect to each Subgroup, the lesser of (a) 100% and (b) the percentage (carried
to six places rounded up) obtained by dividing the Current Principal Amount
of
the Senior Certificates of such Subgroup (other than any Class PO Certificates),
immediately prior to such Distribution Date, by the aggregate Scheduled
Principal Balance of the Mortgage Loans in the related Subgroup (other than
the
PO Percentage thereof with respect to the related Discount Mortgage Loans)
as of
the beginning of the related Due Period. The initial Subgroup Senior Percentage
for the Senior Certificates of each Subgroup in Loan Group I will be
approximately 95.95%. The initial Subgroup Senior Percentage for the Senior
Certificates of each Subgroup in Loan Group II will be approximately
95.99%.
Subgroup
Senior Prepayment Percentage:
The
Subgroup Senior Prepayment Percentage for the Subgroup
I-1, Subgroup I-2, Subgroup II-1 and Subgroup II-2 Certificates,
on any
Distribution Date occurring during the periods set forth below will be as
follows:
|
Period
(dates inclusive)
|
Subgroup
Senior Prepayment Percentage
|
|
December
25, 2006 - November
25, 2011
|
100%
|
|
December
25, 2011 - November 25, 2012
|
Subgroup
Senior Percentage for the related Subgroup Certificates plus 70%
of the
related Subordinate Percentage
|
|
December
25, 2012 - November 25, 2013
|
Subgroup
Senior Percentage for the related Subgroup Certificates plus 60%
of the
related Subordinate Percentage
|
|
December
25, 2013 - November 25, 2014
|
Subgroup
Senior Percentage for the related Subgroup Certificates plus 40%
of the
related Subordinate Percentage
|
|
December
25, 2014 - November 25, 2015
|
Subgroup
Senior Percentage for the related Subgroup Certificates plus 20%
of the
related Subordinate Percentage
|
|
December
25, 2015 and thereafter
|
Subgroup
Senior Percentage for the related Subgroup
Certificates
|
Any
scheduled reduction to the Subgroup Senior Prepayment Percentage for the
Subgroup
I-1, Subgroup I-2, Subgroup II-1 and Subgroup II-2 Certificates
shall
not be made as of any Distribution Date unless, as of the last day of the month
preceding such Distribution Date (1) the aggregate Scheduled Principal Balance
of the Mortgage Loans delinquent 60 days or more (including for this purpose
any
such Mortgage Loans in foreclosure and such Mortgage Loans with respect to
which
the related Mortgaged Property has been acquired by the Trust) averaged over
the
last six months, as a percentage of the aggregate Current Principal Amount
of
the Subordinate Certificates does not exceed 50% and (2) cumulative Realized
Losses on the Mortgage Loans do not exceed (a) 30% of the aggregate Current
Principal Amount of the Original Subordinate Principal Balance if such
Distribution Date occurs between and including December 2011 and November 2012,
(b) 35% of the Original Subordinate Principal Balance if such Distribution
Date
occurs between and including December 2012 and November 2013, (c) 40% of the
Original Subordinate Principal Balance if such Distribution Date occurs between
and including December 2013 and November 2014, (d) 45% of the Original
Subordinate Principal Balance if such Distribution Date occurs between and
including December 2014 and November 2015, and (e) 50% of the Original
Subordinate Principal Balance if such Distribution Date occurs during or after
December 2015.
Notwithstanding
the foregoing, if on any Distribution Date, the percentage for Subgroup
I-1, Subgroup I-2, Subgroup II-1 and Subgroup II-2,
the
numerator of which is the aggregate Current Principal Amount of the Senior
Certificates of such Subgroup (other than the Class PO Certificates) immediately
preceding such Distribution Date, and the denominator of which is the Scheduled
Principal Balance of the Mortgage Loans in such Subgroup (other than the PO
Percentage thereof with respect to the related Discount Mortgage Loans) as
of
the beginning of the related Due Period, exceeds such percentage as of the
Cut-off Date, then the Subgroup Senior Prepayment Percentage with respect to
the
Senior Certificates of each Subgroup (other than the Class PO Certificates)
for
such Distribution Date will equal 100%.
Subordinate
Certificates:
The
Offered Subordinate Certificates and Non-Offered Subordinate
Certificates.
Subordinate
Certificate Writedown Amount:
With
respect to the Subordinate Certificates, the amount by which (x) the sum of
the
Current Principal Amounts of the Certificates (after giving effect to the
distribution of principal and the allocation of Realized Losses in reduction
of
the Current Principal Amounts of the Certificates on such Distribution Date)
exceeds (y) the Scheduled Principal Balances of the Mortgage Loans on the Due
Date related to such Distribution Date.
Subordinate
Optimal Principal Amount:
With
respect to the Subordinate Certificates and each Distribution Date, an amount
equal to the sum of the following from each Subgroup (but in no event greater
than the aggregate Current Principal Amount of the Subordinate Certificates
immediately prior to such Distribution Date):
(i) the
Subordinate Percentage of the Non-PO Percentage of the principal portion of
all
Monthly Payments due on each Mortgage Loan in the related Subgroup on the
related Due Date, as specified in the amortization schedule at the time
applicable thereto (after adjustment for previous principal prepayments but
before any adjustment to such amortization schedule by reason of any bankruptcy
or similar proceeding or any moratorium or similar waiver or grace
period);
(ii) the
Subordinate Prepayment Percentage of the Non-PO Percentage of the Scheduled
Principal Balance of each Mortgage Loan in the related Subgroup which was the
subject of a prepayment in full received by the Master Servicer during the
applicable Prepayment Period;
(iii) the
Subordinate Prepayment Percentage of the Non-PO Percentage of all partial
prepayments of principal received during the applicable Prepayment Period for
each Mortgage Loan in the related Subgroup;
(iv) the
excess, if any, of (a) the Net Liquidation Proceeds allocable to principal
received during the prior calendar month in respect of each Liquidated Mortgage
Loan in the related Subgroup over (b) the sum of the amounts distributable
to
the holders of the Senior Certificates pursuant to clause (4) of the definition
of “Subgroup Principal Distribution Amount” and “Class PO Certificate Principal
Distribution Amount” on such Distribution Date;
(v) the
Subordinate Prepayment Percentage of the Non-PO Percentage of the sum of (a)
the
Scheduled Principal Balance of each Mortgage Loan in the related Subgroup which
was repurchased by the Seller in connection with such Distribution Date and
(b)
the difference, if any, between the Scheduled Principal Balance of a Mortgage
Loan in the related Subgroup that has been replaced by the Seller with a
substitute Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement in
connection with such Distribution Date and the Scheduled Principal Balance
of
such substitute Mortgage Loan; and
(vi) on
the
Distribution Date on which the Current Principal Amounts of the Senior
Certificates (other than the Class
I-A1-2, Class I-A2-2, Class X and Class PO Certificates)
have
all been reduced to zero, 100% of any Subgroup Principal Distribution
Amount.
Subordinate
Percentage:
As of
any Distribution Date and with respect to any Subgroup, 100% minus the related
Subgroup Senior Percentage for the Senior Certificates related to such Subgroup.
The initial Subordinate Percentage for each Subgroup will be equal to
4.04%.
Subordinate
Prepayment Percentage:
As of
any Distribution Date and with respect to any Subgroup, 100% minus the related
Subgroup Senior Prepayment Percentage for such Subgroup, except that on any
Distribution Date after the Current Principal Amount of each Class of related
Senior Certificates has each been reduced to zero, the Subordinate Prepayment
Percentage for the Subordinate Certificates with respect to such Subgroup will
equal 100%.
Subsequent
Recoveries:
As of
any Distribution Date, amounts received by the related Servicer during the
preceding calendar month or surplus amounts held by the related Servicer to
cover estimated expenses (including, but not limited to, recoveries in respect
of the representations and warranties made by the Seller pursuant to the
Mortgage Loan Purchase Agreement) specifically related to a Liquidated Mortgage
Loan or disposition of an REO Property prior to the preceding calendar month
that resulted in a Realized Loss, after the liquidation or disposition of such
Mortgage Loan.
Substitute
Mortgage Loan:
A
mortgage loan tendered to the Trustee pursuant to the related Servicing
Agreement, the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, in each case, (i) which has an Outstanding Principal
Balance not greater nor materially less than the Mortgage Loan for which it
is
to be substituted; (ii) which has a Mortgage Interest Rate and Net Mortgage
Rate
not less than, and not materially greater than, such Mortgage Loan; (iii) which
has a maturity date not materially earlier or later than such Mortgage Loan
and
not later than the latest maturity date of any Mortgage Loan; (iv) which is
of
the same property type and occupancy type as such Mortgage Loan; (v) which
has a
Loan-to-Value Ratio not greater than the Loan-to-Value Ratio of such Mortgage
Loan; (vi) which is current in payment of principal and interest as of the
date
of substitution; and (vii) as to which the payment terms do not vary in any
material respect from the payment terms of the Mortgage Loan for which it is
to
be substituted.
Tax
Administration and Tax Matters Person:
The
Trustee or any successor thereto or assignee thereof shall serve as tax
administrator hereunder and as agent for the Tax Matters Person. The Holder
of
each Class of Residual Certificates shall be the Tax Matters Person for the
related REMIC, as more particularly set forth in Section 9.12
hereof.
Termination
Purchase Price:
The
price, calculated as set forth in Section 10.01, to be paid in connection with
the repurchase of the Mortgage Loans pursuant to Section 10.01.
Trust
Fund:
The
corpus of the trust created by this Agreement, consisting of the Mortgage Loans
and the other assets described in Section 2.01(a).
Trustee:
U.S.
Bank National Association or its successor in interest, or any successor trustee
appointed as herein provided.
Trustee
Fee:
As to each Mortgage Loan and any Distribution Date, an amount equal to the
product of (i) the Scheduled Principal Balance of such Mortgage Loan as of
the
Due Date in the month preceding the month in which such Distribution Date occurs
and (ii) 1/12th
of the Trustee Fee Rate.
Trustee
Fee Rate:
0.013% per annum
Trustee
Information:
As
defined in Section 3.18(c).
Uncertificated
Notional Amount:
With
respect to REMIC I Regular Interest I-X, the aggregate Scheduled Principal
Balance of the Group I Mortgage Loans with Net Mortgage Rates greater than
7.500% per annum. With respect to REMIC II Regular Interest I-X, an amount
equal
to the Uncertificated Notional Amount for REMIC I Regular Interest I-X. With
respect to REMIC I Regular Interest II-X, the aggregate Scheduled Principal
Balance of the Group II Mortgage Loans with Net Mortgage Rates greater than
6.000% per annum. With respect to REMIC II Regular Interest II-X, an amount
equal to the Uncertificated Notional Amount for REMIC I Regular Interest
II-X.
Uncertificated
Principal Balance:
With
respect to any REMIC I Regular Interest or REMIC II Regular Interest as of
any
Distribution Date, the initial principal amount of such regular interest as
set
forth in Sections 5.01(c)(i) and (c)(ii), reduced by (i) all amounts distributed
on previous Distribution Dates on such regular interest with respect to
principal and (ii) the principal portion of all Realized Losses allocated prior
to such Distribution Date to such regular interest, taking account of the Loss
Allocation Limit.
Uninsured
Cause:
Any
cause of damage to a Mortgaged Property or related REO Property such that the
complete restoration of such Mortgaged Property or related REO Property is
not
fully reimbursable by the hazard insurance policies required to be maintained
pursuant the related Servicing Agreement, without regard to whether or not
such
policy is maintained.
United
States Person:
A
citizen or resident of the United States, a corporation or partnership
(including an entity treated as a corporation or partnership for federal income
tax purposes) created or organized in, or under the laws of, the United States
or any state thereof or the District of Columbia (except, in the case of a
partnership, to the extent provided in Treasury regulations), provided that,
for
purposes solely of the Residual Certificates, no partnership or other entity
treated as a partnership for United States federal income tax purposes shall
be
treated as a United States Person unless all Persons that own an interest in
such partnership either directly or through any entity that is not a corporation
for United States federal income tax purposes are United States Persons, or
an
estate whose income is subject to United States federal income tax regardless
of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more such
United States Persons have the authority to control all substantial decisions
of
the trust. To the extent prescribed in regulations by the Secretary of the
Treasury, which have not yet been issued, a trust which was in existence on
August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code) and which was
treated as a United States Person on August 20, 1996 may elect to continue
to be
treated as a United States Person notwithstanding the previous
sentence.
▇▇▇▇▇
Fargo:
▇▇▇▇▇
Fargo Bank, N.A., or its successor in interest.
▇▇▇▇▇
Fargo Servicing Agreement:
The
Master Seller’s Warranties and Servicing Agreement, dated as of November 1,
2005, between the Seller and ▇▇▇▇▇ Fargo, attached hereto as Exhibit I-3, and
as
modified by the related Assignment Agreement.
Section
1.02 Calculation
of LIBOR.
LIBOR
applicable to the calculation of the Pass-Through Rate on the Adjustable Rate
Certificates for any Interest Accrual Period will be determined on each Interest
Determination Date. On each Interest Determination Date, LIBOR shall be
established by the Trustee and, as to any Interest Accrual Period, will equal
the rate for one month United States dollar deposits that appears on the
Telerate Screen Page 3750 as of 11:00 a.m., London” time, on such Interest
Determination Date. “Telerate Screen Page 3750” means the display designated as
page 3750 on the Telerate Service (or such other page as may replace page 3750
on that service for the purpose of displaying London interbank offered rates
of
major banks). If such rate does not appear on such page (or such other page
as
may replace that page on that service, or if such service is no longer offered,
LIBOR shall be so established by use of such other service for displaying LIBOR
or comparable rates as may be reasonably selected by the Trustee), the rate
will
be the Reference Bank Rate. The “Reference Bank Rate” will be determined on the
basis of the rates at which deposits in U.S. Dollars are offered by the
reference banks (which shall be any three major banks that are engaged in
transactions in the London interbank market, selected by the Trustee) as of
11:00 a.m., London time, on the Interest Determination Date to prime banks
in
the London interbank market for a period of one month in amounts approximately
equal to the aggregate Current Principal Amount of the Adjustable Rate
Certificates then outstanding. The Trustee will request the principal London
office of each of the reference banks to provide a quotation of its rate. If
at
least two such quotations are provided, the rate will be the arithmetic mean
of
the quotations rounded up to the nearest whole multiple of 0.03125%. If on
such
date fewer than two quotations are provided as requested, the rate will be
the
arithmetic mean of the rates quoted by one or more major banks in New York
City,
selected by the Trustee, as of 11:00 a.m., New York City time, on such date
for
loans in U.S. Dollars to leading European banks for a period of one month in
amounts approximately equal to the aggregate Current Principal Amount of the
Adjustable Rate Certificates then outstanding. If no such quotations can be
obtained, the rate will be LIBOR for the prior Distribution Date; provided
however,
if,
under the priorities described above, LIBOR for a Distribution Date would be
based on LIBOR for the previous Distribution Date for the third consecutive
Distribution Date, the Trustee shall select an alternative comparable index
(over which the Trustee has no control), used for determining one-month
Eurodollar lending rates that is calculated and published (or otherwise made
available) by an independent party. The establishment of LIBOR by the Trustee
on
any Interest Determination Date and the Trustee’s subsequent calculation of the
Pass-Through Rate applicable to the Adjustable Rate Certificates for the
relevant Interest Accrual Period, in the absence of manifest error, will be
final and binding. Promptly following each Interest Determination Date the
Trustee shall supply the Master Servicer with the results of its determination
of LIBOR on such date.
ARTICLE
II
Conveyance
of Mortgage Loans;
Original
Issuance of Certificates
Section
2.01 Conveyance
of Mortgage Loans to Trustee.
(a) The
Depositor concurrently with the execution and delivery of this Agreement, sells,
transfers and assigns to the Trust without recourse all its right, title and
interest in and to (i) the Mortgage Loans identified in the Mortgage Loan
Schedule, including all interest and principal due with respect to the Mortgage
Loans after the Cut-off Date, but excluding any payments of principal and
interest due on or prior to the Cut-off Date; (ii) such assets as shall from
time to time be credited or are required by the terms of this Agreement to
be
credited to the Master Servicer Collection Account and the Distribution Account,
(iii) such assets relating to the Mortgage Loans as from time to time may be
held by the Servicers in the Protected Accounts, the Master Servicer in the
Master Servicer Collection Account and the Trustee in the Distribution Account,
(iv) any REO Property, (v) the Required Insurance Policies and any amounts
paid
or payable by the insurer under any Insurance Policy (to the extent the
mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to
the
extent provided in Subsection 2.03(a), (vii) the rights with respect to the
Servicing Agreements as assigned to the Trustee on behalf of the
Certificateholders by the Assignment Agreement and (viii) all proceeds of the
foregoing. Although it is the intent of the parties to this Agreement that
the
conveyance of the Depositor’s right, title and interest in and to the Mortgage
Loans and other assets in the Trust Fund pursuant to this Agreement shall
constitute a purchase and sale and not a loan, in the event that such conveyance
is deemed to be a loan, it is the intent of the parties to this Agreement that
the Depositor shall be deemed to have granted to the Trustee a first priority
perfected security interest in all of the Depositor’s right, title and interest
in, to and under the Mortgage Loans and other assets in the Trust Fund, and
that
this Agreement shall constitute a security agreement under applicable law.
Moreover, if for any other reason this Agreement is held or deemed to create
a
security interest in the Mortgage Loans and the other assets constituting the
Trust Fund, then it is intended as follows: (a) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of
the
Uniform Commercial Code; (b) the conveyance provided for in this Section shall
be deemed to be a grant by the Depositor to the Trustee of a security interest
in all of the Depositor’s right, title and interest in and to the Mortgage Loans
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property, including without
limitation all amounts from time to time held or invested in the Distribution
Account, whether in the form of cash, instruments, securities or other property;
(c) the possession by the Trustee or its agent of the Mortgage Loans 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” for
purposes of perfecting the security interest pursuant to Section 9-305 of the
Uniform Commercial Code; (d) the Trustee shall be deemed to be the “securities
intermediary,” as such term is defined in Section 8-102(a)(14)(ii) of the New
York Uniform Commercial Code, that in the ordinary course of its business
maintains “securities accounts” for others, as such term is used in Section
8-501 of the New York Uniform Commercial Code; (e) the “securities
intermediary’s jurisdiction” as defined in the New York Uniform Commercial Code
shall be the State of New York; (f) the Trustee is not a “clearing corporation”,
as such term is defined in Section 8-102(a)(5) of the New York Uniform
Commercial Code and (g) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed to be notifications to or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law.
(b) In
connection with the above transfer and assignment, the Depositor hereby
delivers, or hereby causes to be delivered, to the Custodian, as agent for
the
Trustee, with respect to each Mortgage Loan:
(i) the
original Mortgage Note, endorsed without recourse (a) to the order of the
Trustee or (b) in the case of a Mortgage Loan registered on the MERS system,
endorsed in blank, in either case showing an unbroken chain of endorsements
from
the originator thereof to the Person endorsing it to the Trustee, or lost note
affidavit together with a copy of the related Mortgage Note;
(ii) the
original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the
presence of the MIN and language indicating that such Mortgage Loan is a MOM
Loan, which shall have been recorded (or, for Mortgage Loans other than the
EMC
Flow Loans, if the original is not available, a copy), with evidence of such
recording indicated thereon (or if clause (w) in the proviso below applies,
shall be in recordable form);
(iii) unless
the Mortgage Loan is either a MOM Loan or has been assigned in the name of
MERS,
a certified copy of the assignment (which may be in the form of a blanket
assignment if permitted in the jurisdiction in which the Mortgaged Property
is
located) to “U.S. Bank National Association, as Trustee”, with evidence of
recording with respect to each Mortgage Loan in the name of the Trustee thereon
(or if clause (w) in the proviso below applies or for Mortgage Loans with
respect to which the related Mortgaged Property is located in a state other
than
Maryland or an Opinion of Counsel has been provided as set forth in this Section
2.01(b), shall be in recordable form);
(iv) all
intervening assignments of the Security Instrument, if applicable and only
to
the extent available to the Depositor with evidence of recording
thereon;
(v) the
original or a copy of the policy or certificate of primary mortgage guaranty
insurance, to the extent available, if any;
(vi) the
original policy of title insurance or mortgagee’s certificate of title insurance
or commitment or binder for title insurance or, in the event such original
title
policy has not been received from the title insurer, such original title policy
will be delivered within one year of the Closing Date or, in the event such
original title policy is unavailable, a photocopy of such title policy or,
in
lieu thereof, a current lien search on the related Mortgaged Property;
and
(viii) originals
of all modification agreements, if applicable and available.
provided,
however,
that in
lieu of the foregoing, the Depositor may deliver to the Custodian, as agent
of
the Trustee, the following documents, under the circumstances set forth below:
(w) in lieu of the original Security Instrument (other than the Mortgages
related to the EMC Flow Loans), assignments to the Trustee or intervening
assignments thereof which have been delivered, are being delivered or will,
upon
receipt of recording information relating to the Security Instrument required
to
be included thereon, be delivered to recording offices for recording and have
not been returned to the Depositor in time to permit their delivery as specified
above, the Depositor may deliver, or cause to be delivered, a true copy thereof
with a certification by the Depositor, on the face of such copy, substantially
as follows: “Certified to be a true and correct copy of the original, which has
been transmitted for recording”; (x) in lieu of the Security Instrument,
assignment to the Trustee or intervening assignments thereof, if the applicable
jurisdiction retains the originals of such documents (as evidenced by a
certification from the Depositor to such effect) the Depositor may deliver
photocopies of such documents containing an original certification by the
judicial or other governmental authority of the jurisdiction where such
documents were recorded; (y) in lieu of the Mortgages (other
than the Mortgages related to the EMC Flow Loans), assignment to the Trustee
or
in blank or intervening assignments thereof, if the applicable jurisdiction
retains the originals of such documents (as evidenced by a certification from
the Depositor to such effect) the Depositor may deliver, or cause to be
delivered, photocopies of such documents containing an original certification
by
the judicial or other governmental authority of the jurisdiction where such
documents were recorded; and
(z)
in lieu of the Mortgage Notes relating to the Mortgage Loans identified on
Exhibit 5 to the Mortgage Loan Purchase Agreement, the Depositor may deliver,
or
cause to be delivered, a lost note affidavit from the Seller; and (z) the
Depositor shall not be required to deliver intervening assignments or Mortgage
Note endorsements between the related underlying originator or underlying Seller
and the Seller, between the Seller and the Depositor, and between the Depositor
and the Trustee; and provided, further, however, that in the case of Mortgage
Loans which have been prepaid in full after the Cut-off Date and prior to the
Closing Date, the Depositor, in lieu of delivering the above documents, may
deliver, or cause to be delivered, to the Trustee or the Custodian, as its
agent, a certification to such effect and shall deposit all amounts paid in
respect of such Mortgage Loans in the Master Servicer Collection Account on
the
Closing Date. The Depositor shall deliver, or cause to be delivered, such
original documents (including any original documents as to which certified
copies had previously been delivered) to the Trustee or the Custodian, as its
agent, promptly after they are received. The Depositor shall cause the Seller,
at its expense, to cause each assignment of the Security Instrument to the
Trustee to be recorded not later than 180 days after the Closing Date, unless
(a) such recordation is not required by the Rating Agencies or an Opinion of
Counsel addressed to the Trustee has been provided to the Trustee (with a copy
to the Custodian) which states that recordation of such Security Instrument
is
not required to protect the interests of the Certificateholders in the related
Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly
recorded assignment of the Mortgage as the mortgagee of record solely as nominee
for the Seller and its successor and assigns; provided, however, notwithstanding
the foregoing, each assignment shall be submitted for recording by the Seller
in
the manner described above, at no expense to the Trust or the Trustee or the
Custodian, as its agent, upon the earliest to occur of: (i) reasonable direction
by the Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than 25% of the Trust Fund, (ii) the occurrence of an
Event
of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Seller and (iv) the occurrence of a servicing transfer as
described in Section 8.02 hereof. Notwithstanding the foregoing, if the Seller
fails to pay the cost of recording the assignments, such expense will be paid
by
the Trustee and the Trustee shall be reimbursed for such expenses by the Trust
in accordance with Section 9.05.
Section
2.02 Acceptance
of Mortgage Loans and Underlying Certificates by Trustee.
(a) The
Trustee acknowledges the sale, transfer and assignment of the Trust Fund to
it
by the Depositor and receipt of, subject to further review and the exceptions
which may be noted pursuant to the procedures described below, and declares
that
it holds, the documents (or certified copies thereof) delivered to the
Custodian, as its agent, pursuant to Section 2.01(b), and declares that it
will
continue to hold those documents and any amendments, replacements or supplements
thereto and all other assets of the Trust Fund delivered to it as Trustee in
trust for the use and benefit of all present and future Holders of the related
Certificates. On the Closing Date, the Custodian, with respect to the Mortgage
Loans, shall acknowledge with respect to each Mortgage Loan by delivery to
the
Depositor, the Seller, the Master Servicer and the Trustee of an Initial
Certification receipt of the Mortgage File, but without review of such Mortgage
File, except to the extent necessary to confirm that such Mortgage File contains
the related Mortgage Note or lost note affidavit. No later than 90 days after
the Closing Date (or, with respect to any Substitute Mortgage Loan, within
five
Business Days after the receipt by the Trustee or Custodian thereof), the
Trustee agrees, for the benefit of the related Certificateholders, to review
or
cause to be reviewed by the Custodian on its behalf (under the Custodial
Agreement), each Mortgage File delivered to it and to execute and deliver,
or
cause to be executed and delivered, to the Depositor, the Seller, the Master
Servicer and the Trustee an Interim Certification. In conducting such review,
the Trustee or Custodian will ascertain whether all required documents have
been
executed and received, and based on the Mortgage Loan Schedule, whether those
documents relate, determined on the basis of the Mortgagor name, original
principal balance and loan number, to the Mortgage Loans it has received, as
identified in the Mortgage Loan Schedule. In performing any such review, the
Trustee or the Custodian, as its agent, may conclusively rely on the purported
due execution and genuineness of any such document and on the purported
genuineness of any signature thereon. If the Trustee or the Custodian, as its
agent, finds any document constituting part of the Mortgage File has not been
executed or received, or to be unrelated, determined on the basis of the
Mortgagor name, original principal balance and loan number, to the Mortgage
Loans identified in Exhibit B or to appear defective on its face (a “Material
Defect”), the Trustee or the Custodian, as its agent, shall promptly notify the
Seller. In accordance with the Mortgage Loan Purchase Agreement, the Seller
shall correct or cure any such defect within ninety (90) days from the date
of
notice from the Trustee or the Custodian, as its agent, of the defect and if
the
Seller fails to correct or cure the defect within such period, and such defect
materially and adversely affects the interests of the related Certificateholders
in the related Mortgage Loan, the Trustee shall enforce the Seller’s obligation
under the Mortgage Loan Purchase Agreement to, within 90 days from the Trustee’s
or the Custodian’s notification, provide a Substitute Mortgage Loan (if within
two years of the Closing Date) or purchase such Mortgage Loan at the Purchase
Price; provided that, if such defect would cause the Mortgage Loan to be other
than a “qualified mortgage” as defined in Section 860G(a)(3) of the Code, any
such cure or repurchase must occur within 90 days from the date such breach
was
discovered; provided, however, that if such defect relates solely to the
inability of the Seller to deliver the original Security Instrument or
intervening assignments thereof, or a certified copy because the originals
of
such documents, or a certified copy have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan
if
the Seller delivers such original documents or certified copy promptly upon
receipt, but in no event later than 360 days after the Closing Date. The
foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver such original or copy of any document submitted for recording
to
the appropriate recording office in the applicable jurisdiction because such
document has not been returned by such office; provided that the Seller shall
instead deliver a recording receipt of such recording office or, if such receipt
is not available, a certificate confirming that such documents have been
accepted for recording, and delivery to the Trustee or the Custodian, as its
agent, shall be effected by the Seller within thirty days of its receipt of
the
original recorded document.
(b) No
later
than 180 days after the Closing Date, the Trustee or the Custodian, as its
agent, will review, for the benefit of the Certificateholders, the Mortgage
Files delivered to it and will execute and deliver or cause to be executed
and
delivered to the Depositor, the Seller, the Master Servicer and the Trustee
a
Final Certification. In conducting such review, the Trustee or the Custodian,
as
its agent, will ascertain whether an original of each document required to
be
recorded has been returned from the recording office with evidence of recording
thereon or a certified copy has been obtained from the recording office. If
the
Trustee or the Custodian, as its agent, finds a Material Defect, the Trustee
or
the Custodian, as its agent, shall promptly notify the Seller (provided,
however, that with respect to those documents described in subsections (b)(iv)
and (viii) of Section 2.01, the Trustee’s and Custodian’s obligations shall
extend only to the documents actually delivered to the Custodian pursuant to
such subsections). In accordance with the Mortgage Loan Purchase Agreement,
the
Seller shall correct or cure any such defect within 90 days from the date of
notice from the Trustee or the Custodian, as its agent, of the Material Defect
and if the Seller is unable to cure such defect within such period, and if
such
defect materially and adversely affects the interests of the related
Certificateholders in the related Mortgage Loan, the Trustee shall enforce
the
Seller’s obligation under the Mortgage Loan Purchase Agreement to, within 90
days from the Trustee’s or Custodian’s notification, provide a Substitute
Mortgage Loan (if within two years of the Closing Date) or purchase such
Mortgage Loan at the Purchase Price, provided that, if such defect would cause
the Mortgage Loan to be other than a “qualified mortgage” as defined in Section
860G(a)(3) of the Code, any such cure, repurchase or substitution must occur
within 90 days from the date such breach was discovered, provided, however,
that
if such defect relates solely to the inability of the Seller to deliver the
original Security Instrument or intervening assignments thereof, or a certified
copy, because the originals of such documents or a certified copy, have not
been
returned by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan, if the Seller delivers such original documents
or
certified copy promptly upon receipt, but in no event later than 360 days after
the Closing Date. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver such original or copy of any document
submitted for recording to the appropriate recording office in the applicable
jurisdiction because such document has not been returned by such office;
provided that the Seller shall instead deliver a recording receipt of such
recording office or, if such receipt is not available, a certificate confirming
that such documents have been accepted for recording, and delivery to the
Trustee or the Custodian, as its agent, shall be effected by the Seller within
thirty days of its receipt of the original recorded document.
(c) In
the
event that a Mortgage Loan is purchased by the Seller in accordance with
Subsections 2.02(a) or (b) above, the Seller shall remit to the Master Servicer
the Purchase Price for deposit in the Master
Servicer Collection Account
and the
Seller shall provide to the Trustee written notification detailing the
components of the Purchase Price. Upon deposit of the Purchase Price in the
Master Servicer Collection Account, the Depositor shall notify the Trustee
and
the Custodian, as agent of the Trustee (upon receipt of a Request for Release
in
the form of Exhibit D attached hereto with respect to such Mortgage Loan),
shall
release to the Seller the related Mortgage File and the Trustee shall execute
and deliver all instruments of transfer or assignment, without recourse,
representation or warranty, furnished to it by the Seller, as are necessary
to
vest in the Seller title to and rights under the Mortgage Loan. Such purchase
shall be deemed to have occurred on the date on which the Purchase Price in
immediately available funds is received by the Trustee. The Master Servicer
shall amend the Mortgage Loan Schedule to reflect such repurchase and shall
promptly notify the Rating Agencies, the Seller and the Trustee of such
amendment. The obligation of the Seller to repurchase or substitute for any
Mortgage Loan a Substitute Mortgage Loan as to which such a defect in a
constituent document exists shall be the sole remedy respecting such defect
available to the related Certificateholders or to the Trustee on their
behalf.
Section
2.03 Assignment
of Interest in the Mortgage Loan Purchase Agreement.
(a) The
Depositor hereby assigns to the Trustee, on behalf of the Certificateholders
of
the Certificates, all of its right, title and interest in the Mortgage Loan
Purchase Agreement, including but not limited to the Depositor’s rights and
obligations pursuant to the Servicing Agreements (noting that the Seller has
retained the right in the event of breach of the representations, warranties
and
covenants, if any, with respect to the related Mortgage Loans of the
related
Servicer
under the related Servicing Agreement to enforce the provisions thereof and
to
seek all or any available remedies). The obligations of the Seller to substitute
or repurchase, as applicable, a Mortgage Loan shall be the Trustee’s and the
related Certificateholders’ sole remedy for any breach thereof. At the request
of the Trustee, the Depositor shall take such actions as may be necessary to
enforce the above right, title and interest on behalf of the Trustee and the
Certificateholders or shall execute such further documents as the Trustee may
reasonably require in order to enable the Trustee to carry out such
enforcement.
(b) If
the
Depositor or the Trustee discovers a breach of any of the representations and
warranties set forth in the Mortgage Loan Purchase Agreement, which breach
materially and adversely affects the value of the interests of related
Certificateholders or the Trustee in the related Mortgage Loan, the party
discovering the breach shall give prompt written notice of the breach to the
other parties to this Agreement. The Seller, within 90 days of its discovery
or
receipt of notice that such breach has occurred (whichever occurs earlier),
shall cure the breach in all material respects or, subject to the Mortgage
Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable, shall
purchase the Mortgage Loan or any property acquired with respect thereto from
the Trustee; provided, however, that if there is a breach of any representation
set forth in the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, and the Mortgage Loan or the related property acquired
with respect thereto has been sold, then the Seller shall pay, in lieu of the
Purchase Price, any excess of the Purchase Price over the Net Liquidation
Proceeds received upon such sale. If the Net Liquidation Proceeds exceed the
Purchase Price, any excess shall be paid to the Seller to the extent not
required by law to be paid to the borrower. Any such purchase by the Seller
shall be made by providing an amount equal to the Purchase Price to the Master
Servicer for deposit in the Master Servicer Collection Account and written
notification detailing the components of such Purchase Price to the Master
Servicer. The Depositor shall notify the Trustee and submit to the Custodian,
as
agent for the Trustee, a Request for Release, and the Custodian shall release,
or the Trustee shall cause the Custodian to release, to the Seller the related
Mortgage File and the Trustee shall execute and deliver all instruments of
transfer or assignment furnished to it by the Seller, without recourse,
representation or warranty as are necessary to vest in the Seller title to
and
rights under the Mortgage Loan or any property acquired with respect thereto.
Such purchase shall be deemed to have occurred on the date on which the Purchase
Price in available funds is received by the Trustee. The Master Servicer shall
amend the Mortgage Loan Schedule to reflect such repurchase and shall promptly
notify the Seller, the Trustee and the Rating Agencies of such amendment.
Enforcement of the obligation of the Seller to purchase (or substitute a
Substitute Mortgage Loan for) any Mortgage Loan or any property acquired with
respect thereto (or pay the Purchase Price as set forth in the above proviso)
as
to which a breach has occurred and is continuing shall constitute the sole
remedy respecting such breach available to the Certificateholders or the Trustee
on their behalf.
In
connection with any repurchase of a Mortgage Loan or the cure of a breach of
a
representation or warranty set forth in Section 7 of the Mortgage Loan Purchase
Agreement pursuant to this Section 2.03, the Seller shall, or cause the related
Servicer to, furnish to
the Trustee an officer’s certificate,
signed by a duly authorized officer of the Seller or the related Servicer,
as
the case may be, to the effect that such repurchase or cure has been made in
accordance with the terms and conditions of this Agreement and that all
conditions precedent to such repurchase or cure have been satisfied, including,
in the case of a repurchase, the delivery to the Trustee of the Purchase Price
or the excess of the Purchase Price over the Net Liquidation Proceeds, if
applicable, for deposit into the Distribution Account, together with copies
of
the Opinion of Counsel, if any, required to be delivered pursuant to Section
2.08 and the related Request for Release, on which the Trustee may rely. Solely
for purposes of the Trustee providing an Assessment of Compliance, upon receipt
of the documentation specified in the preceding sentence, the Trustee shall
approve such repurchase or cure, as applicable, and which approval shall be
based solely on the Trustee’s receipt of such documentation and deposits, if
applicable. It
is
understood and agreed that the obligation under this Agreement of the Seller
to
cure the breach of a representation or warranty set forth in Section 7 of the
Mortgage Loan Purchase Agreement or to repurchase or substitute any Mortgage
Loan as to which a breach has occurred and is continuing shall constitute the
sole remedies against the Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee.
Section
2.04 Substitution
of Mortgage Loans.
Notwithstanding
anything to the contrary in this Agreement, in lieu of purchasing a Mortgage
Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03
of this Agreement, the Seller may, no later than the date by which such purchase
by the Seller would otherwise be required, tender to the Trustee a Substitute
Mortgage Loan accompanied by a certificate of an authorized officer of the
Seller that such Substitute Mortgage Loan conforms to the requirements set
forth
in the definition of “Substitute Mortgage Loan” in this Agreement; provided,
however, that substitution pursuant to the Mortgage Loan Purchase Agreement
or
Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not
be
permitted after the termination of the two-year period beginning on the Startup
Day; provided, further, that if the breach would cause the Mortgage Loan to
be
other than a “qualified mortgage” as defined in Section 860G(a)(3) of the Code,
any such cure or substitution must occur within 90 days from the date the breach
was discovered. The Custodian, as agent for the Trustee, shall examine the
Mortgage File for any Substitute Mortgage Loan in the manner set forth in
Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify
the
Seller, in writing, within five Business Days after receipt, whether or not
the
documents relating to the Substitute Mortgage Loan satisfy the requirements
of
the fourth sentence of Subsection 2.02(a). Within two Business Days after such
notification, the Seller shall provide to the Trustee for deposit in the
Distribution Account the amount, if any, by which the Outstanding Principal
Balance as of the next preceding Due Date of the Mortgage Loan for which
substitution is being made, after giving effect to the Scheduled Principal
due
on such date, exceeds the Outstanding Principal Balance as of such date of
the
Substitute Mortgage Loan, after giving effect to Scheduled Principal due on
such
date, which amount shall be treated for the purposes of this Agreement as if
it
were the payment by the Seller of the Purchase Price for the purchase of a
Mortgage Loan by the Seller. After such notification to the Seller and, if
any
such excess exists, upon receipt of such deposit, the Trustee shall accept
such
Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage
Loan
hereunder. In the event of such a substitution, accrued interest on the
Substitute Mortgage Loan for the month in which the substitution occurs and
any
Principal Prepayments made thereon during such month shall be the property
of
the Trust Fund and accrued interest for such month on the Mortgage Loan for
which the substitution is made and any Principal Prepayments made thereon during
such month shall be the property of the Seller. The Scheduled Principal on
a
Substitute Mortgage Loan due on the Due Date in the month of substitution shall
be the property of the Seller and the Scheduled Principal on the Mortgage Loan
for which the substitution is made due on such Due Date shall be the property
of
the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery
to
the Custodian of a Request for Release for such Mortgage Loan), the Custodian,
as agent for the Trustee, shall release to the Seller the related Mortgage
File
related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and shall execute
and deliver all instruments of transfer or assignment, without recourse,
representation or warranty in form as provided to it as are necessary to vest
in
the Seller title to and rights under any Mortgage Loan released pursuant to
the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable. The Seller shall deliver to the Custodian the documents related
to
the Substitute Mortgage Loan in accordance with the provisions of the Mortgage
Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement,
as
applicable, with the date of acceptance of the Substitute Mortgage Loan deemed
to be the Closing Date for purposes of the time periods set forth in those
Subsections. The representations and warranties set forth in the Mortgage Loan
Purchase Agreement shall be deemed to have been made by the Seller with respect
to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage
Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule
to reflect such substitution and shall provide a copy of such amended Mortgage
Loan Schedule to the Seller, the Trustee and the Rating Agencies.
In
connection with any substitution of a Mortgage Loan pursuant to this Section
2.04, the Seller shall, or cause the related Servicer to, furnish to the Trustee
an officer’s certificate, signed by a duly authorized officer of the Seller or
the related Servicer, as the case may be, to the effect that such substitution
has been made in accordance with the terms and conditions of this Agreement
and
that all conditions precedent to such substitution have been satisfied, together
with copies of the Opinion of Counsel, if any, required to be delivered pursuant
to Section 2.08 and the related Request for Release, on which the Trustee may
rely. Solely for purposes of the Trustee providing an Assessment of Compliance,
upon receipt of the deposit specified in the preceding paragraph, if applicable,
and the documentation specified in the preceding sentence, the Trustee shall
approve such substitution and which approval shall be based solely on the
Trustee’s receipt of such documentation and deposits. It is understood and
agreed that the obligation under this Agreement of the Seller to substitute
any
Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedies against the Seller respecting such breach available
to Certificateholders, the Depositor or the Trustee.
Section
2.05 Issuance
of Certificates.
(a) The
Trustee acknowledges the assignment to it of the Mortgage Loans and the other
assets comprising the Trust Fund and, concurrently therewith, the Trustee has
signed, and countersigned and delivered to the Depositor, in exchange therefor,
the Certificates in such authorized denominations representing such Fractional
Undivided Interests as the Depositor has requested. The Trustee agrees that
it
will hold the Mortgage Loans and such other assets as may from time to time
be
delivered to it segregated on the books of the Trustee in trust for the benefit
of the related Certificateholders.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests and the other assets of REMIC II for the benefit of the
holders of the REMIC II Interests. The Trustee acknowledges receipt of the
REMIC
I Regular Interests (which are uncertificated) and the other assets of REMIC
II
and declares that it holds and will hold the same in trust for the exclusive
use
and benefit of the holders of the REMIC II Interests.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
II Regular Interests and the other assets of REMIC III for the benefit of the
Holders of the Regular Certificates and the Class R-3 Certificates. The Trustee
acknowledges receipt of the REMIC II Regular Interests (which are
uncertificated) and the other assets of REMIC III and declares that it holds
and
will hold the same in trust for the exclusive use and benefit of the Holders
of
the Regular Certificates and the Class R-3 Certificates.
Section
2.06 Representations
and Warranties Concerning the Depositor.
The
Depositor hereby represents and warrants to the Trustee and the Master Servicer
as follows:
(a) the
Depositor (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and (ii) is qualified and
in
good standing as a foreign corporation to do business in each jurisdiction
where
such qualification is necessary, except where the failure so to qualify would
not reasonably be expected to have a material adverse effect on the Depositor’s
business as presently conducted or on the Depositor’s ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(b) the
Depositor has full corporate power to own its property, to carry on its business
as presently conducted and to enter into and perform its obligations under
this
Agreement;
(c) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
and
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the articles of
incorporation or by-laws of the Depositor, except those conflicts, breaches
or
defaults which would not reasonably be expected to have a material adverse
effect on the Depositor’s ability to enter into this Agreement and to consummate
the transactions contemplated hereby;
(d) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made;
(e) this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the other parties hereto,
constitutes a valid and binding obligation of the Depositor enforceable against
it in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally);
(f) there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened against the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter which
in
the judgment of the Depositor will be determined adversely to the Depositor
and
will if determined adversely to the Depositor materially and adversely affect
the Depositor’s ability to enter into this Agreement or perform its obligations
under this Agreement; and the Depositor is not in default with respect to any
order of any court, administrative agency, arbitrator or governmental body
so as
to materially and adversely affect the transactions contemplated by this
Agreement;
(g) The
Depositor has filed all reports required to be filed by Section 13 or Section
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the Depositor was required to file such reports) and it has been
subject to such filing requirements for the past 90 days; and
(h) immediately
prior to the transfer and assignment to the Trustee, each Mortgage Note and
each
Mortgage were not subject to an assignment or pledge, and the Depositor had
good
and marketable title to and was the sole owner thereof and had full right to
transfer and sell such Mortgage Loan to the Trustee free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest.
Section
2.07 Representations
and Warranties of EMC.
EMC,
in
its capacity as Seller and Master Servicer, hereby represents and warrants
to
the Depositor and the Trustee as follows, as of the Closing Date:
(a) EMC
is
duly organized as a Delaware corporation and is validly existing and in good
standing under the laws of the State of Delaware and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by EMC in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification and,
in
any event, is in compliance with the doing business laws of any such state,
to
the extent necessary to ensure its ability to enforce each Mortgage Loan, to
sell the Mortgage Loans in accordance with the terms of the Mortgage Loan
Purchase Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(b) EMC
has
the full corporate power and authority to sell each Mortgage Loan, and to
execute, deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
corporate action on the part of EMC the execution, delivery and performance
of
this Agreement, assuming the due authorization, execution and delivery hereof
by
the other parties hereto or thereto, as applicable, constitutes a legal, valid
and binding obligation of EMC, enforceable against EMC in accordance with its
terms, except that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) The
execution and delivery of this Agreement by EMC, the sale of the Mortgage Loans
by EMC under the Mortgage Loan Purchase Agreement, the consummation of any
other
of the transactions contemplated by this Agreement, and the fulfillment of
or
compliance with the terms hereof and thereof are in the ordinary course of
business of EMC and will not (A) result in a material breach of any term or
provision of the charter or by-laws of EMC or (B) conflict with, result in
a
breach, violation or acceleration of, or result in a default under, the terms
of
any other material agreement or instrument to which EMC is a party or by which
it may be bound, or (C) constitute a violation of any statute, order or
regulation applicable to EMC of any court, regulatory body, administrative
agency or governmental body having jurisdiction over EMC; and EMC is not in
breach or violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair EMC’s ability to perform
or meet any of its obligations under this Agreement.
(d) EMC
is an
approved Seller of conventional mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac
and is a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act.
(e) No
litigation is pending or, to the best of EMC’s knowledge, threatened, against
EMC that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of EMC to sell the Mortgage
Loans or to perform any of its other obligations under this Agreement in
accordance with the terms hereof or thereof.
(f) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by EMC of, or
compliance by EMC with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval, authorization or order
is
required, EMC has obtained the same.
(g) With
respect to each Mortgage Loan as of the Closing Date (or such other date as
may
be specified in Section 7 of the Mortgage Loan Purchase Agreement), EMC, as
Seller, hereby remakes and restates each of the representations and warranties
set forth in Section 7 of the Mortgage Loan Purchase Agreement to the Depositor
and the Trustee to the same extent as if fully set forth herein.
Upon
discovery by any of the parties hereto of a breach of a representation or
warranty set forth in the Mortgage Loan Purchase Agreement with respect to
the
Mortgage Loans that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach
shall
give prompt written notice thereof to the other parties. EMC, in its capacity
as
Seller, hereby covenants with respect to the representations and warranties
set
forth in the Mortgage Loan Purchase Agreement with respect to the Mortgage
Loans, that within 90 days of the discovery of a breach of any representation
or
warranty set forth therein that materially and adversely affects the interests
of the Certificateholders in any Mortgage Loan, it shall cure such breach in
all
material respects and, if such breach is not so cured, (i) if such 90 day period
expires prior to the second anniversary of the Closing Date, remove such
Mortgage Loan (a “Deleted Mortgage Loan”) from the Trust Fund and substitute in
its place a Replacement Mortgage Loan, in the manner and subject to the
conditions set forth in this Section; or (ii) repurchase the affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner
set
forth below; provided that any such substitution pursuant to (i) above or
repurchase pursuant to (ii) above shall not be effected prior to the delivery
to
the Trustee of an Opinion of Counsel if required by Section 2.04 hereof and
any
such substitution pursuant to (i) above shall not be effected prior to the
additional delivery to the applicable Custodian of a Request for Release. The
Trustee shall give prompt written notice to the parties hereto of EMC’s failure
to cure such breach as set forth in the preceding sentence. EMC shall promptly
reimburse the Master Servicer and the Trustee for any expenses reasonably
incurred by the Master Servicer or the Trustee in respect of enforcing the
remedies for such breach. To enable the Master Servicer to amend the Mortgage
Loan Schedule, EMC shall, unless it cures such breach in a timely fashion
pursuant to this Section 2.07, promptly notify the Master Servicer whether
it
intends either to repurchase, or to substitute for, the Mortgage Loan affected
by such breach. With respect to the representations and warranties with respect
to the Mortgage Loans that are made to the best of EMC’s knowledge, if it is
discovered by any of the Depositor, the Master Servicer, EMC or the Trustee
that
the substance of such representation and warranty is inaccurate and such
inaccuracy materially and adversely affects the value of the related Mortgage
Loan, notwithstanding EMC’s lack of knowledge with respect to the substance of
such representation or warranty, EMC (in its capacity as Seller) shall
nevertheless be required to cure, substitute for or repurchase the affected
Mortgage Loan in accordance with the foregoing.
With
respect to any Replacement Mortgage Loan or Loans, EMC (in its capacity as
Seller) shall deliver to the Trustee or the related Custodian on its behalf
for
the benefit of the Certificateholders such documents and agreements as are
required by Section 2.01. No substitution will be made in any calendar month
after the Determination Date for such month. Notwithstanding the foregoing,
such
substitution must be done within two years of the Closing Date. Scheduled
Payments due with respect to Replacement Mortgage Loans in the Due Period
related to the Distribution Date on which such proceeds are to be distributed
shall not be part of the Trust Fund and will be retained by EMC (in its capacity
as Seller). For the month of substitution, distributions to Certificateholders
will include the Scheduled Payment due on any Deleted Mortgage Loan for the
related Due Period and thereafter EMC (in its capacity as Seller) shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit
of the Certificateholders to reflect the removal of each such Deleted Mortgage
Loan and the substitution of the Replacement Mortgage Loan or Loans and the
Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee
and the related Custodian. Upon such substitution, the Replacement Mortgage
Loan
or Loans shall be subject to the terms of this Agreement in all respects, and
EMC shall be deemed to have made with respect to such Replacement Mortgage
Loan
or Loans, as of the date of substitution, the representations and warranties
set
forth in Section 7 or Section 8 of the Mortgage Loan Purchase Agreement with
respect to such Mortgage Loan. Upon any such substitution and the deposit into
the Master Servicer Collection Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph and receipt by the related Custodian of a Request for Release for
such
Mortgage Loan, the related Custodian shall release to EMC the Mortgage File
relating to such Deleted Mortgage Loan and held for the benefit of the
Certificateholders and the Trustee shall execute and deliver at EMC’s direction
such instruments of transfer or assignment as have been prepared by EMC, in
each
case without recourse, representation or warranty as shall be necessary to
vest
in EMC, or its respective designee, title to the Trustee’s interest in any
Deleted Mortgage Loan substituted for pursuant to this Section
2.07.
For
any
month in which EMC substitutes one or more Replacement Mortgage Loans for a
Deleted Mortgage Loan, the Master Servicer will determine the amount (if any)
by
which the aggregate principal balance of all the Replacement Mortgage Loans
as
of the date of substitution is less than the Stated Principal Balance (after
application of the principal portion of the Scheduled Payment due in the month
of substitution) of such Deleted Mortgage Loan. An amount equal to the aggregate
of such deficiencies, described in the preceding sentence for any Distribution
Date (such amount, the “Substitution Adjustment Amount”) shall be deposited into
the Master Servicer Collection Account, by EMC upon its delivering such
Replacement Mortgage Loan on the Determination Date for the Distribution Date
relating to the Prepayment Period during which the related Mortgage Loan became
required to be purchased or replaced hereunder.
In
the
event that EMC (in its capacity as Seller) shall have repurchased a Mortgage
Loan, the Purchase Price therefor shall be deposited into the Master Servicer
Collection Account maintained by the Master Servicer, on the Determination
Date
for the Distribution Date in the month following the month during which EMC
became obligated to repurchase or replace such Mortgage Loan and upon such
deposit of the Purchase Price, the delivery of an Opinion of Counsel if required
by Section 2.04 and the receipt of a Request for Release, the related Custodian
shall release the related Mortgage File held for the benefit of the
Certificateholders to EMC, and the Trustee shall execute and deliver at such
Person’s direction the related instruments of transfer or assignment prepared by
EMC, in each case without recourse, representation or warranty, as shall be
necessary to transfer title from the Trustee for the benefit of the
Certificateholders and transfer the Trustee’s interest to EMC to any Mortgage
Loan purchased pursuant to this Section 2.07. It is understood and agreed that
the obligation under this Agreement of EMC to cure, repurchase or replace any
Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedies against EMC (in its capacity as Seller) respecting
such breach available to the Certificateholders, the Depositor or the
Trustee.
The
representations and warranties set forth in this Section 2.07 hereof shall
survive delivery of the respective Mortgage Loans and Mortgage Files to the
Trustee or the related Custodian for the benefit of the
Certificateholders.
Section
2.08 Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
Notwithstanding
any contrary provision of this Agreement, with respect to any Mortgage Loan
that
is not in default or as to which default is not imminent, no repurchase or
substitution pursuant to Sections 2.02, 2.03, 2.04 or 2.07 shall be made unless
the Seller delivers to the Trustee an Opinion of Counsel, addressed to the
Trustee, to the effect that such repurchase or substitution would not (i) result
in the imposition of the tax on “prohibited transactions” of any REMIC or
contributions after the Closing Date, as defined in Sections 860F(a)(2) and
860G(d) of the Code, respectively, or (ii) cause any REMIC to fail to qualify
as
a REMIC at any time that any Certificates are outstanding. Any Mortgage Loan
as
to which repurchase or substitution was delayed pursuant to this paragraph
shall
be repurchased or the substitution therefor shall occur (subject to compliance
with Sections 2.02, 2.03, 2.04 or 2.07) upon the earlier of (a) the occurrence
of a default or imminent default with respect to such Mortgage Loan and (b)
receipt by the Trustee of an Opinion of Counsel addressed to the Trustee to
the
effect that such repurchase or substitution, as applicable, will not result
in
the events described in clause (i) or clause (ii) of the preceding
sentence.
ARTICLE
III
Administration
of the Trust Fund and Servicing of Mortgage Loans
Section
3.01 Master
Servicer.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicers to service and administer the Mortgage Loans in accordance with the
terms of the applicable Servicing Agreement and shall have full power and
authority to do any and all things which it may deem necessary or desirable
in
connection with such master servicing and administration. In performing its
obligations hereunder, the Master Servicer shall act in a manner consistent
with
Accepted Master Servicing Practices. Furthermore, the Master Servicer shall
oversee and consult with each Servicer as necessary from time-to-time to carry
out the Master Servicer’s obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master Servicer
by each Servicer and shall cause each Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by such
Servicer under its applicable Servicing Agreement. The Master Servicer shall
independently and separately monitor the Servicer’s servicing activities with
respect to each Mortgage Loan, reconcile the results of such monitoring with
such information provided in the previous sentence on a monthly basis and
coordinate corrective adjustments to the Servicers’ and Master Servicer’s
records, and based on such reconciled and corrected information, the Master
Servicer shall provide such information to the Trustee, in
the
form of Exhibit R attached hereto and as
shall
be necessary in order for it to prepare the statements specified in Section
6.05(a) by
12:00
p.m. CST on the 5th Business Day prior to each Distribution Date,
and
prepare any other information and statements required to be forwarded by the
Master Servicer hereunder; provided, however, in no event shall the Master
Servicer be required to provide such information to the Trustee earlier than
12:00 p.m. CST on the 19th
calendar
day of the month. The Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the Servicers pursuant
to the applicable Servicing Agreement. The Master Servicer shall be entitled
to
conclusively rely on the Mortgage Loan data provided by the related Servicer
and
shall have no liability for any errors in such Mortgage Loan data.
In
addition to the foregoing, in connection with a modification of any Mortgage
Loan by a Servicer, if the Master Servicer is unable to enforce the obligations
of the Servicer with respect to such modification, the Master Servicer shall
notify the Depositor of such Servicer’s failure to comply with the terms of the
Servicing Agreement or this Agreement. If the Servicing Agreement requires
the
approval of the Master Servicer for a modification to a Mortgage Loan, the
Master Servicer shall approve such modification if, based upon its receipt
of
written notification from the related Servicer outlining the terms of such
modification and appropriate supporting documentation, the Master Servicer
determines that the modification is permitted under the terms of the Servicing
Agreement and that any conditions to such modification set forth in the
Servicing Agreement have been satisfied. Furthermore, if the Servicing Agreement
requires the oversight and monitoring of loss mitigation measures with respect
to the related Mortgage Loans, the Master Servicer will monitor any loss
mitigation procedure or recovery action related to a defaulted Mortgage Loan
(to
the extent it receives notice of such from the related Servicer) and confirm
that such loss mitigation procedure or recovery action is initiated, conducted
and concluded in accordance with any timeframes and any other requirements
set
forth in the Servicing Agreement, and the Master Servicer shall notify the
Depositor in any case in which the Master Servicer believes that the related
Servicer is not complying with such timeframes and/or other
requirements.
The
Trustee shall furnish the Servicers and the Master Servicer with any powers
of
attorney substantially in the form of Exhibit P hereto and upon written request
from a Servicing Officer other documents in form as provided to it necessary
or
appropriate to enable the Servicers and the Master Servicer to service and
administer the Mortgage Loans and REO Property. The Trustee shall be indemnified
by the Master Servicer for any costs, liabilities or expenses incurred by it
in
connection with such powers of attorney.
The
Trustee or the Custodian shall provide access to the records and documentation
in possession of the Trustee regarding the Mortgage Loans and REO Property
and
the servicing thereof to the related Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon reasonable prior written request and during normal business hours at the
office of the Trustee; provided, however, that, unless otherwise required by
law, the Trustee shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee shall allow representatives of the above entities
to photocopy any of the records and documentation and shall provide equipment
for that purpose at a charge that covers the Trustee’s actual
costs.
The
Trustee shall execute upon the related Servicer’s written instruction (which
includes the documents to be signed) and deliver to the related Servicer and
the
Master Servicer any court pleadings, requests for trustee’s sale or other
appropriate documents necessary or desirable to (i) the foreclosure or trustee’s
sale with respect to a Mortgaged Property; (ii) any legal action brought to
obtain judgment against any Mortgagor on the Mortgage Note or Security
Instrument; (iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any other rights or remedies provided by the Mortgage Note or Security
Instrument or otherwise available at law or equity.
Section
3.02 REMIC-Related
Covenants.
For
as
long as each REMIC shall exist, the Trustee shall act in accordance herewith
to
assure continuing treatment of such REMIC as a REMIC, and the Trustee shall
comply with any directions of the Depositor, the related Servicer or the Master
Servicer to ensure such continuing treatment. In particular, the Trustee shall
not (unless expressly permitted under the terms of this Agreement) (a) sell
or
permit the sale of all or any portion of the Mortgage Loans or of any investment
of deposits in an Account unless such sale is as a result of a repurchase of
the
Mortgage Loans pursuant to this Agreement or the Trustee has received a REMIC
Opinion addressed to the Trustee prepared at the expense of the Trust Fund;
(b)
other than with respect to a substitution pursuant to the Mortgage Loan Purchase
Agreement, Section 2.04 or Section 2.07 of this Agreement, as applicable, accept
any contribution to any REMIC after the Startup Day without receipt of a REMIC
Opinion addressed to the Trustee; or (c) acquire any assets for any REMIC other
than any REO Property after the Startup Day without receipt of a REMIC
Opinion.
Section
3.03 Monitoring
of Servicers.
(a) The
Master Servicer shall be responsible for reporting to the Trustee and the
Depositor the non-compliance by each Servicer with its duties under the related
Servicing Agreement. In the review of each Servicer’s activities, the Master
Servicer may rely upon an officer’s certificate of the Servicer (or similar
document signed by an officer of the Servicer) with regard to the Servicer’s
compliance with the terms of its Servicing Agreement. In the event that the
Master Servicer, in its judgment, determines that a Servicer (other than the
Company) should be terminated in accordance with its Servicing Agreement, or
that a notice should be sent pursuant to such Servicing Agreement with respect
to the occurrence of an event that, unless cured, would constitute grounds
for
such termination, the Master Servicer shall notify the Depositor and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate. In the event that the Master Servicer, in its
judgment, determines that the Company should be terminated in accordance with
the EMC Servicing Agreement, or that a notice should be sent pursuant to the
EMC
Servicing Agreement with respect to the occurrence of an event that, unless
cured, would constitute grounds for such termination, the Master Servicer shall
notify the Depositor and the Trustee thereof in writing. Pursuant to its receipt
of such written notification from the Master Servicer, the Trustee shall issue
such notice of termination to the Company or take such other action as it deems
appropriate.
(b) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of each Servicer under the related Servicing
Agreement, and shall, in the event that a Servicer, other than the Company,
fails to perform its obligations in accordance with the related
Servicing Agreement, subject to the preceding paragraph, terminate the rights
and obligations of such Servicer thereunder and act as servicer of the related
Mortgage Loans or to cause the Trustee to enter into a new Servicing Agreement
with a successor Servicer selected by the Master Servicer; provided, however,
it
is understood and acknowledged by the parties hereto that there will be a period
of transition (not to exceed 90 days) before the actual servicing functions
can
be fully transferred to such successor Servicer. In the event that the Company
fails to perform its obligations in accordance with the EMC Servicing Agreement,
subject to the preceding paragraph,
the Master Servicer shall notify the Trustee in writing of such failure.
Pursuant to its receipt of such notification from the Master Servicer, the
Trustee shall terminate the rights and obligations of the Company under the
EMC
Servicing Agreement and enter in to a new Servicing Agreement with a successor
Servicer selected by the Trustee; provided, however, it is understood and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor Servicer. In either event, such enforcement,
including, without limitation, the legal prosecution of claims, termination
of
the Servicing Agreements and the pursuit of other appropriate remedies, shall
be
in such form and carried out to such an extent and at such time as the Master
Servicer (or in the case the Company is terminated as the Servicer, the
successor servicer or the Trustee, as applicable) in its good faith business
judgment, would require were it the owner of the Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, provided
that the Master Servicer shall not be required to prosecute or defend any legal
action except to the extent that the Master Servicer shall have received
reasonable indemnity for its costs and expenses in pursuing such action. In
the
event that the Company is terminated as the Servicer, the Trustee shall pay
the
costs of such enforcement at its own expense, subject to its right to be
reimbursed for such costs from the Distribution Account pursuant to Section
3.03(c); provided that the Trustee shall not be required to prosecute or defend
any legal action except to the extent that the Trustee shall have received
reasonable indemnity for its costs and expenses in pursuing such action. Nothing
herein shall impose any obligation on the part of the Trustee to assume or
succeed to the duties or obligations of the Company or the Master Servicer
unless the Trustee has not been able to find a successor servicer or a successor
master servicer.
(c) In
the
event that the Company is terminated as Servicer, to the extent that the costs
and expenses of the Trustee related to any termination of the Company, or the
enforcement or prosecution of related claims, rights or remedies, or the
appointment of a successor Servicer (including, without limitation, (i) all
legal costs and expenses and all due diligence costs and expenses associated
with an evaluation of the potential termination of the Company as a result
of an
event of default by the Company as a Servicer and (ii) all costs and expenses
associated with the complete transfer of servicing, including all servicing
files and all servicing data and the completion, correction or manipulation
of
such servicing data as may be required by the successor Servicer to correct
any
errors or insufficiencies in the servicing data or otherwise to enable the
successor Servicer to service the Mortgage Loans in accordance with the related
Servicing Agreement) are not fully and timely reimbursed by the Company after
such termination, the Trustee shall be entitled to reimbursement of such costs
and expenses from the Distribution Account. In
all other cases, to the extent that the costs and expenses of the Master
Servicer related to any termination of a Servicer (other than the
Company),
appointment of a successor Servicer or the transfer and assumption of servicing
by the Master Servicer with respect to any Servicing Agreement (including,
without limitation, (i) all legal costs and expenses and all due diligence
costs
and expenses associated with an evaluation of the potential termination of
the
Servicer as a result of an event of default by such Servicer and (ii) all costs
and expenses associated with the complete transfer of servicing, including
all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the successor servicer to service the Mortgage Loans in accordance with
the related Servicing Agreement) are not fully and timely reimbursed by the
terminated Servicer, the Master Servicer shall be entitled to reimbursement
of
such costs and expenses from the Master
Servicer Collection Account.
(d) The
Master Servicer shall require each Servicer to comply with the remittance
requirements and other obligations set forth in the related Servicing
Agreement.
(e) If
the
Master Servicer acts as a servicer, it shall not be liable for losses of the
predecessor Servicer or any acts or omissions of the predecessor Servicer,
or
deemed to have made any representations and warranties of the related Servicer,
if any, that it replaces.
Section
3.04 Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees.
Section
3.05 Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Holders of the Certificates and the
Trustee, customary consents or waivers and other instruments and documents,
(ii)
to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds,
Liquidation Proceeds and Subsequent Recoveries, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions
of
this Agreement and the related Servicing Agreement, as applicable; provided,
however, that the Master Servicer shall not (and, consistent with its
responsibilities under Section 3.03, shall not authorize any Servicer to)
knowingly or intentionally take any action, or fail to take (or fail to cause
to
be taken) any action reasonably within its control and the scope of duties
more
specifically set forth herein, that, under the REMIC Provisions, if taken or
not
taken, as the case may be, may cause any REMIC to fail to qualify as a REMIC
or
result in the imposition of a tax upon the Trust Fund (including but not limited
to the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax on contributions to a REMIC set forth in Section 860G(d) of
the
Code) unless the Master Servicer has received an Opinion of Counsel (but not
at
the expense of the Master Servicer) to the effect that the contemplated action
would not cause any REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any REMIC. The Trustee shall furnish the Master
Servicer, upon written request from a Servicing Officer, with any powers of
attorney empowering the Master Servicer or any Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property,
and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the related Servicing
Agreement and this Agreement, and the Trustee shall execute and deliver such
other documents, as the Master Servicer may request, to enable the Master
Servicer to master service and administer the Mortgage Loans and carry out
its
duties hereunder, in each case in accordance with Accepted Master Servicing
Practices (and the Trustee shall have no liability for misuse of any such powers
of attorney by the Master Servicer or any Servicer). If the Master Servicer
or
the 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
Trustee or that the Trustee would be adversely affected under the “doing
business” or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.11 hereof. In the performance of its duties hereunder,
the
Master Servicer shall be an independent contractor and shall, except in those
instances where it is taking action in the name of the Trust, not be deemed
to
be the agent of the Trust.
Section
3.06 Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section
3.07 Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
any Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will, if required under the applicable Servicing
Agreement (or if the applicable Servicer does not, the Master Servicer may),
promptly furnish to the Custodian, on behalf of the Trustee, two copies of
a
certification substantially in the form of Exhibit D (or as otherwise provided
in the Custodial Agreement) hereto signed by a Servicing Officer or in a
mutually agreeable electronic format which will, in lieu of a signature on
its
face, originate from a Servicing Officer (which certification shall include
a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Protected Account maintained
by
the applicable Servicer pursuant to Section 4.01 or by the applicable Servicer
pursuant to the applicable Servicing Agreement have been or will be so
deposited) and shall request that the Custodian, on behalf of the Trustee,
deliver to the applicable Servicer the related Mortgage File. Upon receipt
of
such certification and request, the Custodian, on behalf of the Trustee, shall
promptly release the related Mortgage File to the applicable Servicer and the
Trustee and Custodian shall have no further responsibility with regard to such
Mortgage File. Upon any such payment in full, each Servicer is authorized,
to
give, as agent for the 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 applicable Protected Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the applicable Servicing Agreement, upon written
instruction from such Servicer or the Master Servicer, the Trustee shall execute
such documents as shall be prepared and furnished to the Trustee by a Servicer
or the Master Servicer (in form reasonably acceptable to the Trustee) and as
are
necessary to the prosecution of any such proceedings. The Custodian, on behalf
of the Trustee, shall, upon the request of a Servicer or the Master Servicer,
and delivery to the Custodian, on behalf of the Trustee, of two copies of a
request for release signed by a Servicing Officer substantially in the form
of
Exhibit D (or in a mutually agreeable electronic format which will, in lieu
of a
signature on its face, originate from a Servicing Officer), release the related
Mortgage File held in its possession or control to the Servicer or the Master
Servicer. Such trust receipt shall obligate the Servicer or the Master Servicer
to return the Mortgage File to the Custodian on behalf of the Trustee, when
the
need therefor by the Servicer or the Master 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 Mortgage
File
shall be released by the Custodian, on behalf of the Trustee, to the Servicer
or
the Master Servicer.
Section
3.08 Documents,
Records and Funds in Possession of Master Servicer to Be Held for
Trustee.
(a) The
Master Servicer shall transmit and each Servicer (to the extent required by
the
related Servicing Agreement) shall transmit to the Trustee or Custodian such
documents and instruments coming into the possession of the Master Servicer
or
such Servicer from time to time as are required by the terms hereof, or in
the
case of the Servicers, the applicable Servicing Agreement, to be delivered
to
the Trustee or Custodian. Any funds received by the Master Servicer or by a
Servicer in respect of any Mortgage Loan or which otherwise are collected by
the
Master Servicer or by a Servicer as Liquidation Proceeds, Insurance Proceeds
or
Subsequent Recoveries in respect of any Mortgage Loan shall be held for the
benefit of the Trustee and the Certificateholders subject to the right of the
Master Servicer to retain or withdraw from the Master Servicer Collection
Account the Master Servicing Compensation and other amounts provided in this
Agreement, and to the right of each Servicer to retain or withdraw its Servicing
Fee and other amounts as provided in the applicable Servicing Agreement. The
Master Servicer and each Servicer shall provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, to Certificateholders that are savings and loan associations, banks
or
insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or other
regulatory authority, such access to be afforded without charge but only upon
reasonable request in writing and during normal business hours at the offices
of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, Insurance
Proceeds or Subsequent Recoveries, shall be held by the Master Servicer for
and
on behalf of the Trustee and the Certificateholders and shall be and remain
the
sole and exclusive property of the Trustee; provided, however, that the Master
Servicer and each Servicer shall be entitled to setoff against, and deduct
from,
any such funds any amounts that are properly due and payable to the Master
Servicer or such Servicer to the extent provided under this Agreement or the
applicable Servicing Agreement.
Section
3.09 Standard
Hazard Insurance and Flood Insurance Policies.
(a) For
each
Mortgage Loan, the Master Servicer shall enforce any obligation of the Servicers
under the related Servicing Agreement to maintain or cause to be maintained
standard fire and casualty insurance and, where applicable, flood insurance,
all
in accordance with the provisions of the related Servicing Agreement. It is
understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the applicable Servicing Agreement and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on property acquired in respect of a defaulted
loan, other than pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional
insurance.
(b) Pursuant
to Section 4.01 and 4.02, any amounts collected by the Servicers or the Master
Servicer, or by any Servicer, under any insurance policies (other than amounts
to be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the Master Servicer Collection
Account, subject to withdrawal pursuant to Section 4.02 and 4.03. Any cost
incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added
to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan
so
permit; provided, however, that the addition of any such cost shall not be
taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 4.02 and 4.03.
Section
3.10 Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies
and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured’s claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to a Servicer and remitted to the Master Servicer) in respect of such policies,
bonds or contracts shall be promptly deposited in the Master Servicer Collection
Account for deposit in the Distribution Account upon receipt, except that any
amounts realized that are to be applied to the repair or restoration of the
related Mortgaged Property, which repair or restoration the owner of such
Mortgaged Property or EMC, as applicable, has agreed to make as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable Insurance Policy need not be so deposited (or
remitted).
Section
3.11 Maintenance
of the Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall not take, or authorize any Servicer (to the extent such
action is prohibited under the applicable Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Master Servicer
or such Servicer, would have been covered thereunder. The Master Servicer shall
use its best reasonable efforts to cause each Servicer (to the extent required
under the related Servicing Agreement) to keep in force and effect (to the
extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not authorize
any Servicer (to the extent required under the related Servicing Agreement)
to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is
in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The
Master Servicer agrees to present, or to cause each Servicer (to the extent
required under the related Servicing Agreement) to present, on behalf of the
Trustee and the Certificateholders, claims to the insurer under any Primary
Mortgage Insurance Policies and, in this regard, to take such reasonable action
as shall be necessary to permit recovery under any Primary Mortgage Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Section 4.01 and
4.02,
any amounts collected by the Master Servicer or any Servicer under any Primary
Mortgage Insurance Policies shall be deposited in the Master Servicer Collection
Account, subject to withdrawal pursuant to Sections 4.02 and 4.03.
Section
3.12 Trustee
to Retain Possession of Certain Insurance Policies and Documents.
The
Trustee (or the Custodian, as directed by the Trustee), shall retain possession
and custody of the originals (to the extent available) of any Primary Mortgage
Insurance Policies, or certificate of insurance if applicable, and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect
of
the Certificates have been distributed in full and the Master Servicer otherwise
has fulfilled its obligations under this Agreement, the Trustee (or its
Custodian, if any, as directed by the 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 Master Servicer shall promptly deliver or
cause to be delivered to the Trustee (or the Custodian, as directed by the
Trustee), upon the execution or receipt thereof the originals of any Primary
Mortgage Insurance Policies, any certificates of renewal, and such other
documents or instruments that constitute portions of the Mortgage File that
come
into the possession of the Master Servicer from time to time.
Section
3.13 Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall cause each Servicer (to the extent required under the
related Servicing Agreement) to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with the applicable Servicing Agreement.
Section
3.14 Compensation
for the Master Servicer.
The
Master Servicer will be entitled to all income and gain realized from any
investment of funds in the Master Servicer Collection Account, pursuant to
Article IV, for the performance of its activities hereunder. Servicing
compensation in the form of assumption fees, if any, late payment charges,
as
collected, if any, or otherwise (including any prepayment premium or penalty)
shall be retained by the applicable Servicer and shall not be deposited in
the
related Protected Account. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder and shall
not be entitled to reimbursement therefor except as provided in this
Agreement.
Section
3.15 REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
related Mortgage Loan, the deed or certificate of sale shall be issued to the
Trustee, or to its nominee, on behalf of the related Certificateholders. The
Master Servicer shall, to the extent provided in the applicable Servicing
Agreement, cause the applicable Servicer to sell any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable. Pursuant to its
efforts to sell such REO Property, the Master Servicer shall cause the
applicable Servicer to protect and conserve, such REO Property in the manner
and
to the extent required by the applicable Servicing Agreement, in accordance
with
the REMIC Provisions and in a manner that does not result in a tax on “net
income from foreclosure property” or cause such REO Property to fail to qualify
as “foreclosure property” within the meaning of Section 860G(a)(8) of the
Code.
(b) The
Master Servicer shall, to the extent required by the related Servicing
Agreement, cause the applicable Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the related
Protected Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Monthly Advances and other unreimbursed advances as well as any unpaid Servicing
Fees from Liquidation Proceeds received in connection with the final disposition
of such REO Property; provided
that, any such unreimbursed Monthly Advances as well as any unpaid Servicing
Fees may be reimbursed or paid, as the case may be, prior to final disposition,
out of any net rental income or other net amounts derived from such REO
Property.
(d) To
the
extent provided in the related Servicing Agreement, the Liquidation Proceeds
from the final disposition of the REO Property, net of any payment to the Master
Servicer and the applicable Servicer as provided above, subject to approval
by
the Master Servicer, shall be deposited in the related Protected Account on
or
prior to the Determination Date in the month following receipt thereof and
be
remitted by wire transfer in immediately available funds to the Master Servicer
for deposit into the Master Servicer Collection Account on the next succeeding
Servicer Remittance Date.
Section
3.16 Annual
Statement as to Compliance.
The
Master Servicer shall deliver (or otherwise make available) to the Depositor
and
the Trustee not later than March 15th
of each
calendar year beginning in 2007, an Officer’s Certificate (an “Annual Statement
of Compliance”) stating that (i) a review of the activities of the Master
Servicer during the preceding calendar year and of its performance under this
Agreement has been made under such officer’s supervision and (ii) to the best of
such officer’s knowledge, based on such review, the Master Servicer has
fulfilled all of 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
officer and the nature and status of the cure provisions thereof. Such Annual
Statement of Compliance shall contain no restrictions or limitations on its
use.
The Master Servicer shall enforce the obligations of each Servicer, to the
extent set forth in the related Servicing Agreement, to deliver a similar Annual
Statement of Compliance by that Servicer to the Depositor and the Trustee as
described above as and when required with respect to the Master Servicer. In
the
event that certain servicing responsibilities with respect to any Mortgage
Loan
have been delegated by the Master Servicer or a Servicer to a subservicer or
subcontractor, each such entity shall cause such subservicer or subcontractor
(and with respect to each Servicer, the Master Servicer shall enforce the
obligation of such Servicer to the extent required under the related Servicing
Agreement) to deliver a similar Annual Statement of Compliance by such
subservicer or subcontractor to the Depositor, the Master Servicer and the
Trustee as described above as and when required with respect to the Master
Servicer or the related Servicer (as the case may be).
Failure
of the Master Servicer to comply with this Section 3.16 (including with respect
to the timeframes required herein) shall be deemed an Event of Default, and
at
the written direction of the Depositor the Trustee shall, in addition to
whatever rights the Trustee may have under this Agreement and at law or equity
or to damages, including injunctive relief and specific performance, upon notice
immediately terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Master Servicer for the same (but
subject to the Master Servicer’s rights to payment of any Master Servicing
Compensation and reimbursement of all amounts for which it is entitled to be
reimbursed prior to the date of termination).
This
paragraph shall supersede any other provision in this Agreement or any other
agreement to the contrary.
In
the event the Master Servicer, any Servicer or
any subservicer or subcontractor engaged by either such party is terminated
or
resigns pursuant to the terms of this Agreement, or any other applicable
agreement in the case of a Servicer, a subservicer or subcontractor, as the
case
may be, such party shall provide an Annual Statement of Compliance pursuant
to
this Section 3.16 or to the related section of such other applicable agreement,
as the case may be, as to the performance of its obligations with respect to
the
period of time it was subject to this Agreement or any other applicable
agreement, as the case may be notwithstanding any such termination or
resignation.
Section
3.17 Assessments
of Compliance and Attestation Reports.
Pursuant
to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB,
each of the Master Servicer, the Trustee and the Custodian (to the extent set
forth in this Section) (each, an “Attesting Party”), each at its own expense,
shall deliver (or otherwise make available) to the Master Servicer, the Trustee
and the Depositor on or before March 15th
of each
calendar year beginning in 2007, a report regarding such Attesting Party’s
assessment of compliance (an “Assessment of Compliance”) with the Servicing
Criteria during the preceding calendar year. The Assessment of Compliance,
as
set forth in Regulation AB, must contain the following:
(a) A
statement by an authorized officer of such Attesting Party of its authority
and
responsibility for assessing compliance with the Servicing Criteria applicable
to the related Attesting Party;
(b) A
statement by an authorized officer that such Attesting Party used the Servicing
Criteria attached as Exhibit L hereto, and which will also be attached to the
Assessment of Compliance, to assess compliance with the Servicing Criteria
applicable to the related Attesting Party;
(c) An
assessment by such officer of the related Attesting Party’s compliance with the
applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on
the
activities such Attesting Party performs with respect to asset-backed securities
transactions taken as a whole involving the related Attesting Party, that are
backed by the same asset type as the Mortgage Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the related Attesting Party’s Assessment of Compliance for the period
consisting of the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the
related Attesting
Party, which statement shall be based on the activities such Attesting Party
performs with respect to asset-backed securities transactions taken as a whole
involving such Attesting Party, that are backed by the same asset type as the
Mortgage Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit L hereto which are indicated as applicable to the related Attesting
Party.
On
or
before March 15th
of each
calendar year beginning in 2007, each Attesting Party shall furnish to the
Master Servicer, the Depositor and the Trustee a report (an “Attestation
Report”) by a registered public accounting firm that attests to, and reports on,
the Assessment of Compliance made by the related Attesting Party, as required
by
Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation
AB,
which Attestation Report must be made in accordance with standards for
attestation reports issued or adopted by the Public Company Accounting Oversight
Board.
The
Master Servicer shall enforce the obligation of each Servicer to deliver to
the
Trustee, the Master Servicer and the Depositor an Assessment of Compliance
and
Attestation Report as and when provided in the related Servicing Agreement.
Each
of the Master Servicer and the Trustee shall cause, and the Master Servicer
shall enforce the obligation (as and when provided in the related Servicing
Agreement) of each Servicer to cause, any subservicer and each subcontractor
(to
the extent such subcontractor is determined by the Master Servicer or the
Trustee, as applicable, to be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB) that is engaged by such Servicer,
the
Master Servicer or the Trustee, as applicable, to deliver to the Trustee, the
Master Servicer and the Depositor an Assessment of Compliance and Attestation
Report as and when provided above. Such Assessment of Compliance, as to any
subservicer or subcontractor, shall at a minimum address the applicable
Servicing Criteria specified on Exhibit L hereto which are indicated as
applicable to any “primary servicer” to the extent such subservicer or
subcontractor is performing any servicing function for the party who engages
it
and to the extent such party is not itself addressing the Servicing Criteria
related to such servicing function in its own Assessment of Compliance. The
Master Servicer shall confirm that each of the Assessments of Compliance
delivered to it, taken as a whole, address all of the Servicing Criteria and
taken individually address the Servicing Criteria for each party as set forth
in
Exhibit L and notify the Depositor of any exceptions. Notwithstanding
the foregoing, as to any subcontractor, an Assessment of Compliance is not
required to be delivered unless it is required as part of a Form 10-K with
respect to the Trust Fund.
The
Custodian shall deliver to the Master Servicer, the Trustee and the Depositor
an
Assessment of Compliance and Attestation Report, as and when provided above,
which shall at a minimum address each of the Servicing Criteria specified on
Exhibit L hereto which are indicated as applicable to a “custodian”.
Notwithstanding the foregoing, an Assessment of Compliance or Attestation Report
is not required to be delivered by any Custodian unless it is required as part
of a Form 10-K with respect to the Trust Fund.
Failure
of the Master Servicer to comply with this Section 3.17 (including with respect
to the timeframes required herein) shall
constitute an
Event
of Default, and at the written direction of the Depositor the Trustee shall,
in
addition to whatever rights the Trustee may have under this Agreement and at
law
or equity or to damages, including injunctive relief and specific performance,
upon notice immediately terminate all of the rights and obligations of the
Master Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof without compensating the Master Servicer for the same (but
subject to the Master Servicer’s rights to payment of any Master Servicing
Compensation and reimbursement of all amounts for which it is entitled to be
reimbursed prior to the date of termination). Failure of the Trustee to comply
with this Section 3.17 (including with respect to the timeframes required in
this Section) which failure results in a failure to timely file the related
Form
10-K, shall be deemed a default which may result in the termination of the
Trustee pursuant to Section 9.08 of this Agreement and the Depositor may, in
addition to whatever rights the Depositor may have under this Agreement and
at
law or equity or to damages, including injunctive relief and specific
performance, upon notice immediately terminate all of the rights and obligations
of the Trustee under this Agreement and in and to the Mortgage Loans and the
proceeds thereof without compensating the Trustee for the same (but subject
to
the Trustee’s right to reimbursement of all amounts for which it is entitled to
be reimbursed prior to the date of termination). This paragraph shall supersede
any other provision in this Agreement or any other agreement to the
contrary.
In
the event the Master Servicer, the Custodian, the Trustee
or any
subservicer or subcontractor engaged by any such party is terminated, assigns
its rights and obligations under, or resigns pursuant to, the terms of the
Agreement, the related Custodial Agreement, or any other applicable agreement
in
the case of a subservicer or subcontractor, as the case may be, such party
shall
provide an Assessment of Compliance and cause to be provided an Attestation
Report pursuant to this Section 3.17 or to the related section of such other
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
Section
3.18 Reports
Filed with Securities and Exchange Commission.
(a) (i)
(A)
Within 15 days after each Distribution Date, the Trustee shall, in accordance
with industry standards, prepare and file with the Commission via the Electronic
Data Gathering and Retrieval System (“▇▇▇▇▇”), a Distribution Report on Form
10-D, signed by the Master Servicer, with a copy of the Monthly Statement to
be
furnished by the Trustee to the Certificateholders for such Distribution Date;
provided that, the Trustee shall have received no later than five (5) calendar
days after the related Distribution Date, all information required to be
provided to the Trustee as described in clause (a)(iv) below. Any disclosure
that is in addition to the Monthly Statement and that is required to be included
on Form 10-D (“Additional Form 10-D Disclosure”) shall
be,
pursuant to the paragraph immediately below, reported by the parties set forth
on Exhibit M to the Trustee and the Depositor and approved for inclusion by
the
Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure absent
such reporting (other than with respect to when it is the reporting party as
set
forth in Exhibit M) and approval.
(B)
Within five (5) calendar days after the related Distribution Date, (i) the
parties set forth in Exhibit M shall be required to provide, and the Master
Servicer shall enforce the obligations of each Servicer (to the extent provided
in the related Servicing Agreement) to provide, pursuant to Section 3.18(a)(iv)
below, to the Trustee (via email to ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇) and the Depositor,
to the extent known by a responsible officer thereof, in ▇▇▇▇▇-compatible
format, or in such other form as otherwise agreed upon by the Trustee
and the
Depositor and such party, the form and substance of any Additional Form 10-D
Disclosure, if applicable, and (ii) the Depositor will approve, as to form
and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. Subject to the foregoing, the Trustee has
no
duty under this Agreement to monitor or enforce the performance by the other
parties listed on Exhibit M of their duties under this paragraph or to
proactively solicit or procure from such parties any Additional Form 10-D
Disclosure information. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
Section.
(C)
After
preparing the Form 10-D, the Trustee shall forward electronically a copy of
the
Form 10-D to the Depositor (in the case of any Additional 10-D Disclosure and
otherwise if requested by the Depositor) and the Master Servicer for review.
Within
two Business Days after receipt of such copy, but no later than the 12th
calendar day after the Distribution Date (provided that, the Trustee forwards
a
copy of the Form 10-D no later than the 10th
calendar
after the Distribution Date), the Depositor shall notify the Trustee in writing
(via email to ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇) of any changes to or approval of such
Form
10-D. In the absence of receipt of any written changes or approval, the Trustee
shall be entitled to assume that such Form 10-D is in final form and the Trustee
may proceed with the execution and filing of the Form 10-D. No later than two
(2) Business Days prior to the 15th calendar day after the related Distribution
Date, a duly authorized officer of the Master Servicer shall sign the Form
10-D
and return an electronic or fax copy of such signed Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Trustee. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Trustee shall follow the procedures set forth in Section 3.18(a)(v)(B).
Promptly (but no later than one (1) Business Day) after filing with the
Commission, the Trustee shall make available on its internet website identified
in Section 6.05 a final executed copy of each Form 10-D filed by the Trustee.
The signing party at the Master Servicer can be contacted as set forth in
Section 11.07. Form 10-D requires the registrant to indicate (by checking “yes”
or “no”) that it (1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been
subject to such filing requirements for the past 90 days. The Depositor shall
notify the Trustee in writing, no later than the fifth calendar day after the
related Distribution Date with respect to the filing of a report on Form 10-D,
if the answer to the questions should be “no”. The Trustee shall be entitled to
rely on the representations in Section 2.06(g) or any such notice in preparing,
executing and/or filing any such report. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Trustee of
their
respective duties under Sections 3.18(a)(i) and (v) related to the timely
preparation, execution and filing of Form 10-D is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under such Sections. Neither the Master Servicer nor the Trustee shall have
any
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare, execute and/or timely file such Form 10-D,
where such failure results from a party’s failure to deliver on a timely basis,
any information from such party needed to prepare, arrange for execution or
file
such Form 10-D, not resulting from its own negligence, bad faith or willful
misconduct.
(ii)
(A)
Within four (4) Business Days after the occurrence of an event requiring
disclosure on Form 8-K (each such event, a “Reportable Event”), the Trustee
shall prepare and file, at the direction of the Depositor, on behalf of the
Trust, any Form 8-K, as required by the Exchange Act; provided that, the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be, pursuant to the paragraph immediately below, reported by
the parties set forth on Exhibit M to the Trustee and the Depositor and approved
for inclusion by the Depositor, and the Trustee will have no duty or liability
for any failure hereunder to determine or prepare any Form 8-K Disclosure
Information absent such reporting (other than with respect to when it is the
reporting party as set forth in Exhibit M) and approval.
(B)
For
so long as the Trust is subject to the Exchange Act reporting requirements,
no
later than the close of business on the 2nd Business Day after the occurrence
of
a Reportable Event (i) the parties set forth in Exhibit M shall be required
pursuant to Section 3.18(a)(iv) below to provide, and the Master Servicer will
enforce the obligations of each Servicer (to the extent provided in the related
Servicing Agreement) to provide to the Trustee and the Depositor, to the extent
known by a responsible officer thereof, in ▇▇▇▇▇-compatible format, or in such
other form as otherwise agreed upon by the Trustee and the Depositor and such
party, the form and substance of any Form 8-K Disclosure Information, if
applicable, and (ii) the Depositor shall approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Form 8-K Disclosure Information on Form 8-K pursuant to this
Section.
(C)
After
preparing the Form 8-K, the Trustee shall forward electronically a copy of
the
Form 8-K to the Depositor and the Master Servicer for review. No later than
the
close of business New York City time on the 3rd Business Day after the
Reportable Event, a duly authorized officer of the Master Servicer shall sign
the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with
an original executed hard copy to follow by overnight mail) to the Trustee.
Promptly, but no later than the close of business on the 3rd Business Day after
the Reportable Event (provided that, the Trustee forwards a copy of the Form
8-K
no later than noon New York time on the third Business Day after the Reportable
Event), the Depositor shall notify the Trustee in writing via email to
▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ of any changes to or approval of such Form 8-K. In the
absence of receipt of any written changes or approval, the Trustee shall be
entitled to assume that such Form 8-K is in final form and the Trustee may
proceed with the execution and filing of the Form 8-K. If a Form 8-K cannot
be
filed on time or if a previously filed Form 8-K needs to be amended, the Trustee
shall follow the procedures set forth in Section 3.18(a)(v)(B). Promptly (but
no
later than one (1) Business Day) after filing with the Commission, the Trustee
shall, make available on its internet website a final executed copy of each
Form
8-K filed by the Trustee. The signing party at the Master Servicer can be
contacted as set forth in Section 11.07. The parties to this Agreement
acknowledge that the performance by Master Servicer and the Trustee of their
respective duties under this Section 3.18(a)(ii) related to the timely
preparation, execution and filing of Form 8-K is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section 3.18(a)(ii). Neither the Master Servicer nor the Trustee
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 8-K, where such failure results from a party’s failure to deliver on a
timely basis, any information from such party needed to prepare, arrange for
execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
(iii)
(A)
Within 90 days after the end of each fiscal year of the Trust or such earlier
date as may be required by the Exchange Act (the “Form 10-K Filing Deadline”)
(it being understood that the fiscal year for the Trust ends on December 31st
of
each year), commencing in March 2007, the Trustee shall prepare and file on
behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each
such
Form 10-K shall include the following items, in each case to the extent they
have been delivered to the Trustee within the applicable time frames set forth
in this Agreement, (I) an annual compliance statement for each
Servicer, the Master
Servicer, the Trustee and any subservicer or subcontractor, as applicable,
as
described under Section 3.16, (II)(A) the annual reports on assessment of
compliance with Servicing Criteria for each Servicer, the Master Servicer,
each
subservicer and subcontractor participating in the servicing function, the
Trustee and the Custodian, as described under Section 3.17, and (B) if any
such
report on assessment of compliance with Servicing Criteria described under
Section 3.17 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such report on assessment
of compliance with Servicing Criteria described under Section 3.17 is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, (III)(A) the
registered public accounting firm attestation report for each Servicer, the
Master Servicer, the Trustee, each subservicer, each subcontractor, as
applicable, and the Custodian, as described under Section 3.17, and (B) if
any
registered public accounting firm attestation report described under Section
3.17 identifies any material instance of noncompliance, disclosure identifying
such instance of noncompliance, or if any such registered public accounting
firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (IV) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as described in Section 3.18
(a)(iii)(D) below (provided, however, that the Trustee may omit from the Form
10-K any annual compliance statement, assessment of compliance or attestation
report that is not required to be filed with such Form 10-K pursuant to
Regulation AB). Any
disclosure or information in addition to (I) through (IV) above that is required
to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be,
pursuant to the paragraph immediately below, reported by the parties set forth
on Exhibit M to the Trustee and the Depositor and approved for inclusion by
the
Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure absent
such reporting (other than in the case where the Trustee is the reporting party
as set forth in Exhibit M) and approval.
(B)
No
later than March 15th
of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007, (i) the parties set forth in Exhibit M shall be required
to
provide, and the Master Servicer shall enforce the obligations of each Servicer
(to the extent provided in the related Servicing Agreement) to provide, pursuant
to Section 3.18(a)(iv) below to the Trustee and the Depositor, to the extent
known by a responsible officer thereof, in ▇▇▇▇▇-compatible format, or in such
other form as otherwise agreed upon by the Trustee and the Depositor and such
party, the form and substance of any Additional Form 10-K Disclosure, if
applicable, and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
Section.
(C)
After
preparing the Form 10-K, the Trustee shall forward electronically a copy of
the
Form 10-K to the Depositor (only in the case where such Form 10-K includes
Additional Form 10-K Disclosure and otherwise if requested by the Depositor)
and
the Master Servicer for review. Within three Business Days after receipt of
such
copy, but no later than March 25th
(provided that, the Trustee forwards a copy of the Form 10-K no later than
four
Business Days after March 15th), the Depositor shall notify the Trustee in
writing (which may be furnished electronically) of any changes to or approval
of
such Form 10-K. In the absence of receipt of any written changes or approval,
the Trustee shall be entitled to assume that such Form 10-K is in final form
and
the Trustee may proceed with the execution and filing of the Form 10-K. No later
than the close of business Eastern Standard time on the 4th Business Day prior
to the Form 10-K Filing Deadline, an officer of the Master Servicer in charge
of
the master servicing function shall sign the Form 10-K and return an electronic
or fax copy of such signed Form 10-K (with an original executed hard copy to
follow by overnight mail) to the Trustee. If a Form 10-K cannot be filed on
time
or if a previously filed Form 10-K needs to be amended, the Trustee will follow
the procedures set forth in Section 3.18(a)(v)(B). Promptly (but no later than
one (1) Business Day) after filing with the Commission, the Trustee shall make
available on its internet website a final executed copy of each Form 10-K filed
by the Trustee. The signing party at the Master Servicer can be contacted
as
set forth in Section 11.07.
Form
10-K requires the registrant to indicate (by checking “yes ” or “no”) that it
(1) has filed all reports required to be filed by Section 13 or 15(d) of the
Exchange Act during the preceding 12 months (or for such shorter period that
the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days. The Depositor shall notify the Trustee
in writing, no later than the 15th calendar day in March of each year in which
the Trust is subject to the reporting requirements of the Exchange Act with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no”. The Trustee shall be entitled to rely on the representations in
Section 2.06(g) or any such notice in preparing, executing and/or filing any
such report. The parties to this Agreement acknowledge that the performance
by
the Master Servicer and the Trustee of their respective duties under Sections
3.18(a)(iii) and (iv) related to the timely preparation, execution and filing
of
Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under such Sections and Sections
3.16 and Section 3.17. Neither the Master Servicer nor the Trustee shall have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-K, where such failure results from the Master Servicer’s or the Trustee’s
inability or failure to receive, on a timely basis, any information from any
other party hereto needed to prepare, arrange for execution or file such Form
10-K, not resulting from its own negligence, bad faith or willful misconduct.
(D)
Each
Form 10-K shall include a certification (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification”)
required to be included therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act which
shall
be signed by the Certifying Person and delivered to the Trustee no later than
March 15th
of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act. The Master Servicer shall cause any Servicer, and any subservicer or
subcontractor engaged by it to, provide to the Person who signs the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the “Certifying Person”), by March 15th of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act (or such other date specified in the related Servicing Agreement) and
otherwise within a reasonable period of time upon request, a certification
(each, a “Back-Up Certification”), in the form attached hereto as Exhibit K,
upon 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. An officer of the Master Servicer in charge of the master
servicing function shall serve as the Certifying Person on behalf of the Trust.
Such officer of the Certifying Person can be contacted as set forth in Section
11.07. In
connection with the filing of any Form 10-K hereunder, the Trustee shall sign
a
Back-Up Certification substantially in the form of Exhibit Q; provided, however,
that the Trustee shall not be required to undertake an analysis of any
accountant’s report attached as an exhibit to the Form 10-K. In
the
event the Trustee is terminated or resigns pursuant to the terms of this
Agreement or any subcontractor or subservicer is terminated pursuant to the
related servicing agreement, the Trustee, subcontractor or subservicer, as
applicable, shall provide a Back-Up Certification to the Certifying Person
pursuant to this Section 3.18(b) with respect to the period of time it was
subject to this Agreement or the related servicing agreement, as
applicable.
(iv)
With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trustee’s obligation to include
such Additional Information in the applicable Exchange Act report is subject
to
receipt from the entity that is indicated in Exhibit M as the responsible party
for providing that information, if other than the Trustee, as and when required
as described in Section 3.18(a)(i) through (iii) above. Such Additional
Disclosure shall be accompanied by a notice substantially in the form of Exhibit
N. Each of the Master Servicer, the Seller, the Trustee, the Custodian and
the
Depositor hereby agrees to notify and provide, and the Master Servicer agrees
to
enforce the obligations (to the extent provided in the related Servicing
Agreement) of each Servicer to notify and provide, to the extent known to the
Trustee and the Depositor all Additional Disclosure relating to the Trust Fund,
with respect to which such party is indicated in Exhibit M as the responsible
party for providing that information. The Depositor shall be responsible for
any
reasonable fees and expenses assessed or incurred by the Trustee in connection
with including any Additional Disclosure information pursuant to this
Section.
(v)
(A)
On or prior to January 30th of the first year in which the Trustee is able
to do
so under applicable law, the Trustee shall prepare and file a Form 15 relating
to the automatic suspension of reporting in respect of the Trust under the
Exchange Act.
(B)
In
the event that the Trustee is unable to timely file with the Commission all
or
any required portion of any Form 8-K, 10-D or 10-K required to be filed by
this
Agreement because required disclosure information was either not delivered
to it
or delivered to it after the delivery deadlines set forth in this Agreement
or
for any other reason, the Trustee shall promptly notify the Depositor and the
Master Servicer. In the case of Form 10-D and Form 10-K, the Depositor, the
Master Servicer and the Trustee shall cooperate to prepare and file a Form
12b-25 and a 10-DA and 10-KA as applicable, pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Trustee will, upon receipt of all
required Form 8-K Disclosure Information and upon the approval and direction
of
the Depositor, include such disclosure information on the next Form 10-D. In
the
event that any previously filed Form 8-K, 10-D or 10-K needs to be amended,
and
such amendment relates to any Additional Disclosure, the Trustee shall notify
the Depositor and the parties affected thereby and such parties will cooperate
to prepare any necessary Form 8-K, 10-DA or 10-KA. Any Form 15, Form 12b-25
or
any amendment to Form 8-K, 10-D or 10-K shall be signed by an appropriate
officer of the Master Servicer. The parties hereto acknowledge that the
performance by the Master Servicer and the Trustee of their respective duties
under this Section 3.18(a)(v) related to the timely preparation, execution
and
filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
is
contingent upon the Master Servicer and the Depositor timely performing their
duties under this Section. Neither the Master Servicer nor the Trustee shall
have any liability for any loss, expense, damage or claim arising out of or
with
respect to any failure to properly prepare, execute and/or timely file any
such
Form 15, Form 12b-25 or any amendments to Form 8-K, 10-D or 10-K, where such
failure results from a party’s failure to deliver on a timely basis, any
information from such party needed to prepare, arrange for execution or file
such Form 15, Form 12b-25 or any amendments to Form 8-K, 10-D or 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trustee, from time to time upon
request, such further information, reports and financial statements within
its
control related to this Agreement, the Mortgage Loans as the Trustee reasonably
deems appropriate to prepare and file all necessary reports with the Commission.
The Trustee shall have no responsibility to file any items other than those
specified in this Section 3.18; provided, however, the Trustee shall cooperate
with the Depositor in connection with any additional filings with respect to
the
Trust Fund as the Depositor deems necessary under the Exchange Act. Copies
of
all reports filed by the Trustee under the Exchange Act shall be available
on
the Trustee’s website initially located at ▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇. Fees and expenses
incurred by the Trustee in connection with this Section 3.18 shall not be
reimbursable from the Trust Fund.
(b) The
Trustee shall indemnify and hold harmless the Depositor and the Master Servicer
and each of its officers, directors and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Trustee’s obligations under Sections 3.16, 3.17 and 3.18 or
the Trustee’s negligence, bad faith or willful misconduct in connection
therewith. In addition, the Trustee shall indemnify and hold harmless the
Depositor and the Master Servicer and each of their respective officers,
directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other reasonable costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in
any Back-Up Certification, any Annual Statement of Compliance, any Assessment
of
Compliance or any Additional Disclosure provided by the Trustee on its behalf
or
on behalf of any subservicer or subcontractor engaged by the Trustee pursuant
to
Section 3.16, 3.17 or 3.18 (the
“Trustee Information”), or (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstances in which they were made,
not
misleading; provided, by way of clarification, that this paragraph shall be
construed solely by reference to the Trustee Information and not to any other
information communicated in connection with the Certificates, without regard
to
whether the Trustee Information or any portion thereof is presented together
with or separately from such other information.
The
Depositor shall indemnify and hold harmless the Trustee and the Master Servicer
and each of its officers, directors and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the obligations of the Depositor under Sections 3.16, 3.17
and
3.18 or the Depositor’s negligence, bad faith or willful misconduct in
connection therewith. In addition, the Depositor shall indemnify and hold
harmless the Master Servicer, the Trustee and each of their respective officers,
directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other reasonable costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in
any Additional Disclosure provided by the Depositor that is required to be
filed
pursuant to this Section 3.18 (the
“Depositor Information”),
or
(ii)
any omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, by way of
clarification, that this paragraph shall be construed solely by reference to
the
Depositor Information that is required to be filed and not to any other
information communicated in connection with the Certificates, without regard
to
whether the Depositor Information or any portion thereof is presented together
with or separately from such other information.
The
Master Servicer shall indemnify and hold harmless the Trustee and the Depositor
and each of its respective officers, directors and affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other reasonable costs and expenses
arising out of or based upon a breach of the obligations of the Master Servicer
under Sections 3.16, 3.17 and 3.18 or the Master Servicer’s negligence, bad
faith or willful misconduct in connection therewith. In addition, the Master
Servicer shall indemnify and hold harmless the Depositor and each of its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
(i)
any untrue statement or alleged untrue statement of any material fact contained
in any Annual Statement of Compliance, any Assessment of Compliance, any
Attestation Report or any Additional Disclosure or other information provided
by
the Master Servicer on its behalf or on behalf of any subservicer or
subcontractor engaged by the Master Servicer pursuant to Section 3.16, 3.17
or
3.18 (the
“Master Servicer Information”), or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make
the statements therein, in light of the circumstances in which they were made,
not misleading; provided, by way of clarification, that this paragraph shall
be
construed solely by reference to the Master Servicer Information and not to
any
other information communicated in connection with the Certificates, without
regard to whether the Master Servicer Information or any portion thereof is
presented together with or separately from such other information.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, the Trustee or the Master Servicer, as applicable,
then
the defaulting party, in connection with any conduct for which it is providing
indemnification under this Section 3.18(c), agrees that it shall contribute
to
the amount paid or payable by the other parties as a result of the losses,
claims, damages or liabilities of the other party in such proportion as is
appropriate to reflect the relative fault and the relative benefit of the
respective parties.
The
indemnification provisions set forth in this Section 3.18(c) shall survive
the
termination of this Agreement or the termination of any party to this
Agreement.
(c) Failure
of the Master Servicer to comply with this Section 3.18 (including with respect
to the timeframes required herein) shall, constitute an Event of Default, and
at
the written direction of the Depositor the Trustee shall, in addition to
whatever rights the Trustee may have under this Agreement and at law or equity
or to damages, including injunctive relief and specific performance, upon notice
immediately terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Master Servicer for the same (but subject to the Master
Servicer’s rights to payment of any Master Servicing Compensation and
reimbursement of all amounts for which it is entitled to be reimbursed prior
to
the date of termination). Failure of the Trustee to comply with this Section
3.18 (including with respect to the timeframes required in this Section) which
failure results in a failure to timely file the related Form 10-K, shall be
deemed a default which may result in the termination of the Trustee pursuant
to
Section 9.08 of this Agreement and the Depositor may, in addition to whatever
rights the Depositor may have under this Agreement and at law or equity or
to
damages, including injunctive relief and specific performance, upon notice
immediately terminate all of the rights and obligations of the Trustee under
this Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Trustee for the same (but subject to the Trustee’s right to
reimbursement of all amounts for which it is entitled to be reimbursed prior
to
the date of termination). This paragraph shall supersede any other provision
in
this Agreement or any other agreement to the contrary. In connection with the
termination of the Master Servicer pursuant to this Section 3.18(d), the Trustee
shall be entitled to reimbursement of all costs and expenses associated with
such termination to the extent set forth in Section 9.05. Notwithstanding
anything to the contrary in this Agreement, no Event of Default by the Master
Servicer or default by the Trustee shall have occurred with respect to any
failure to properly prepare, execute and/or timely file any report on Form
8-K,
Form 10-D or Form 10-K, any Form 15 or Form 12b-25 or any amendments to Form
8-K, 10-D or 10-K, where such failure results from any party’s failure to
deliver on a timely basis, any information from such party needed to prepare,
arrange for execution or file any such report, Form or amendment, and does
not
result from its own negligence, bad faith or willful misconduct.
(d) Notwithstanding
the provisions of Section 11.02, this Section 3.18 may be amended without the
consent of the Certificateholders.
(e) Any
report, notice or notification to be delivered by the Master Servicer or the
Trustee to the Depositor pursuant to this Section 3.18, may be delivered via
email to or,
in
the case of a notification, telephonically by calling Reg AB Compliance Manager
at (▇▇▇) ▇▇▇-▇▇▇▇.
Section
3.19 Intention
of the Parties and Interpretation.
Each
of the parties acknowledges and agrees that the purpose of Sections 3.16, 3.17
and 3.18 of this Agreement is to facilitate compliance by the Seller, the
Depositor and the Master Servicer with the provisions of Regulation AB.
Therefore, each of the parties agrees that (a) the obligations of the parties
hereunder shall be interpreted in such a manner as to accomplish that purpose,
(b) the parties’ obligations hereunder will be supplemented and modified as
necessary to be consistent with any such amendments, interpretive advice or
guidance, convention or consensus among active participants in the asset-backed
securities markets, advice of counsel, or otherwise in respect of the
requirements of Regulation AB, (c) the parties shall comply with reasonable
requests made by the Seller, the Depositor, the Master Servicer or the Trustee
for delivery of additional or different information as the Seller, the
Depositor, the Master Servicer or the Trustee may determine in good faith is
necessary to comply with the provisions of Regulation AB and (d) no amendment
of
this Agreement shall be required to effect any such changes in the obligations
of the parties to this transaction as are necessary to accommodate evolving
interpretations of the provisions of Regulation AB.
Section
3.20 UCC.
The
Depositor shall inform the Trustee in writing of any Uniform Commercial Code
financing statements that were filed on the Closing Date in connection with
the
Trust with stamped recorded copies of such financing statements to be delivered
to the Trustee promptly upon receipt by the Depositor. If directed by the
Depositor in writing, the Trustee will file any continuation statements solely
at the expense of the Depositor. The Depositor shall file any financing
statements or amendments thereto required by any change in the Uniform
Commercial Code.
Section
3.21 Optional
Purchase of Defaulted Mortgage Loans.
(a) With
respect to any Mortgage Loan which as of the first day of a Fiscal Quarter
is
delinquent in payment by 90 days or more or is an REO Property, the Seller
shall
have the right to purchase such Mortgage Loan from the Trust at a price equal
to
the Purchase Price; provided however (i) that such Mortgage Loan is still 90
days or more delinquent or is an REO Property as of the date of such purchase
and (ii) this purchase option, if not theretofore exercised, shall terminate
on
the date prior to the last day of the related Fiscal Quarter. This purchase
option, if not exercised, shall not be thereafter reinstated unless the
delinquency is cured and the Mortgage Loan thereafter again becomes 90 days
or
more delinquent or becomes an REO Property, in which case the option shall
again
become exercisable as of the first day of the related Fiscal Quarter. This
right
may be assigned by the Seller to a third party, including a holder of a Class
of
Certificates.
(b) If
at any
time the Seller remits to the Master Servicer a payment for deposit in the
Master
Servicer Collection Account covering
the amount of the Purchase Price for such a Mortgage Loan, and the Seller
provides to the Trustee a certification signed by a Servicing Officer stating
that the amount of such payment has been deposited in the Master
Servicer Collection Account,
then
the Trustee shall execute the assignment of such Mortgage Loan prepared and
delivered to the Trustee, at the request of the Seller, without recourse,
representation or warranty, to the Seller which shall succeed to all of the
Trustee’s right, title and interest in and to such Mortgage Loan, and all
security and documents relative thereto. Such assignment shall be an assignment
outright and not for security. The Seller will thereupon own such Mortgage,
and
all such security and documents, free of any further obligation to the Trustee
or the Certificateholders with respect thereto.
ARTICLE
IV
Accounts
Section
4.01 Protected
Accounts.
(a) The
Master Servicer shall enforce the obligation of each Servicer to establish
and
maintain a Protected Account in accordance with the applicable Servicing
Agreement, with records to be kept with respect thereto on a Mortgage Loan
by
Mortgage Loan basis, into which accounts shall be deposited within two Business
Days (or as of such other time specified in the related Servicing Agreement)
of
receipt and identification, all collections of principal and interest on any
Mortgage Loan and any REO Property received by a Servicer, including Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries
and
advances made from the Servicer’s own funds (less servicing compensation as
permitted by the applicable Servicing Agreement in the case of any Servicer)
and
all other amounts to be deposited in the applicable Protected Account. Each
Servicer is hereby authorized to make withdrawals from and deposits to the
applicable Protected Account for purposes required or permitted by this
Agreement. Reconciliations will be prepared for the Protected Accounts within
45
calendar days after the bank statement cut-off date. To the extent provided
in
the related Servicing Agreement, the related Protected Account shall be held
by
a Designated Depository Institution and segregated on the books of such
institution in the name of the Trustee for the benefit of Holders of the
Certificates.
(b) To
the
extent provided in the related Servicing Agreement, amounts on deposit in a
Protected Account may be invested in Permitted Investments in the name of the
Trustee for the benefit of Holders of the Certificates and, except as provided
in the preceding paragraph, not commingled with any other funds. Such Permitted
Investments shall mature, or shall be subject to redemption or withdrawal,
no
later than the date on which such funds are required to be withdrawn for deposit
in the Master Servicer Collection Account, and shall be held until required
for
such deposit. The income earned from Permitted Investments made pursuant to
this
Section 4.01 shall be paid to the related Servicer under the applicable
Servicing Agreement, and the risk of loss of moneys required to be distributed
to the Holders of the Certificates resulting from such investments shall be
borne by and be the risk of the related Servicer. The related Servicer (to
the
extent provided in the applicable Servicing Agreement) shall deposit the amount
of any such loss in the related Protected Account within two Business Days
of
receipt of notification of such loss but not later than the second Business
Day
prior to the Distribution Date on which the moneys so invested are required
to
be distributed to the Holders of the Certificates.
(c) To
the
extent provided in the related Servicing Agreement and subject to this Article
IV, on or before each Servicer Remittance Date, the related Servicer shall
withdraw or shall cause to be withdrawn from its Protected Account and shall
immediately deposit or cause to be deposited in the Master Servicer Collection
Account amounts representing the following collections and payments (other
than
with respect to principal of or interest on the Mortgage Loans due on or before
the Cut-off Date):
(i) Scheduled
Payments on the Mortgage Loans received or any related portion thereof advanced
by such Servicer pursuant to its Servicing Agreement which were due on or before
the related Due Date, net of the amount thereof comprising its Servicing Fee
or
any fees with respect to any lender-paid primary mortgage insurance
policy;
(ii) Full
Principal Prepayments received by such Servicer with respect to the Mortgage
Loans in the related Prepayment Period, with interest to the date of prepayment,
net of the amount thereof comprising its Servicing Fee;
(iii) Liquidation
Proceeds or Subsequent Recoveries received by such Servicer with respect to
the
Mortgage Loans during the related calendar month;
(iv) Partial
Principal Prepayments received by such Servicer for the Mortgage Loans in the
related Prepayment Period; and
(v) Any
amount to be used as a Monthly Advance and any Compensating Interest
Payments.
(d) Withdrawals
may be made from an Account only to make remittances as provided in Sections
4.01(c), 4.02 and 4.03; to reimburse the Master Servicer or a Servicer for
Monthly Advances which have been recovered by subsequent collections from the
related Mortgagor; to remove amounts deposited in error; to remove fees, charges
or other such amounts deposited on a temporary basis; or to clear and terminate
the account at the termination of the Trust Fund in accordance with Section
10.01. As provided in Sections 4.01(a) and 4.02(b) certain amounts otherwise
due
to the Servicers may be retained by them and need not be deposited in the Master
Servicer Collection Account.
Section
4.02 Master
Servicer Collection Account.
(a) The
Master Servicer shall establish and maintain in the name of the Trustee, for
the
benefit of the Holders of the Certificates, the Master Servicer Collection
Account as a segregated trust account or accounts. The Master Servicer
Collection Account shall be an Eligible Account. The Master Servicer will
deposit in the Master Servicer Collection Account as identified by the Master
Servicer and as received by the Master Servicer, the following
amounts:
(i) Any
amounts withdrawn from a Protected Account for deposit into the Master Servicer
Collection Account in accordance with the related Servicing
Agreement;
(ii) Any
Monthly Advance and any Compensating Interest Payments;
(iii) Any
Insurance Proceeds or Net Liquidation Proceeds or Subsequent Recoveries received
by or on behalf of the Master Servicer or which were not deposited in a
Protected Account;
(iv) The
Purchase Price with respect to any Mortgage Loans purchased by the Seller
pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03
hereof, any amounts which are to be treated pursuant to Section 2.04 of this
Agreement as the payment of a Purchase Price in connection with the tender
of a
Substitute Mortgage Loan by the Seller, the Purchase Price with respect to
any
Mortgage Loans purchased by the Company pursuant to Section 3.21, and all
proceeds of any Mortgage Loans or property acquired with respect thereto
repurchased by the Depositor or its designee pursuant to Section
10.01;
(v) Any
amounts required to be deposited with respect to losses on investments of
deposits in an Account; and
(vi) Any
other
amounts received by or on behalf of the Master Servicer and required to be
deposited in the Master Servicer Collection Account pursuant to this
Agreement.
(b) All
amounts deposited to the Master Servicer Collection Account shall be held by
the
Master Servicer in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Master Servicer Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of (i) prepayment or late
payment charges or assumption, tax service, statement account or payoff,
substitution, satisfaction, release and other like fees and charges and (ii)
the
items enumerated in Subsections 4.05(a)(i), (ii), (iii), (iv), (vi), (vii),
(viii), (ix), (x), (xi), (xii) and (xiii), need not be credited by the Master
Servicer or the related Servicer to the Distribution Account or the Master
Servicer Collection Account, as applicable. Reconciliations will be prepared
for
the Master Servicing Collection Account within 45 calendar days after the bank
statement cut-off date. In the event that the Master Servicer shall deposit
or
cause to be deposited to the Distribution Account any amount not required to
be
credited thereto, the Trustee, upon receipt of a written request therefor signed
by a Servicing Officer of the Master Servicer, shall promptly transfer such
amount to the Master Servicer, any provision herein to the contrary
notwithstanding.
(c) The
amount at any time credited to the Master Servicer Collection Account may be
invested, in the name of the Trustee, or its nominee, for the benefit of the
Certificateholders, in Permitted Investments as directed by Master Servicer.
All
Permitted Investments shall mature or be subject to redemption or withdrawal
on
or before, and shall be held until, the next succeeding Distribution Account
Deposit Date. Any and all investment earnings on amounts on deposit in the
Master
Servicer Collection Account
from
time to time shall be for the account of the Master Servicer. The Master
Servicer from time to time shall be permitted to withdraw or receive
distribution of any and all investment earnings from the Master Servicer
Collection Account. The risk of loss of moneys required to be distributed to
the
Certificateholders resulting from such investments shall be borne by and be
the
risk of the Master Servicer. The Master Servicer shall deposit the amount of
any
such loss in the Master Servicer Collection Account within two Business Days
of
receipt of notification of such loss but not later than the second Business
Day
prior to the Distribution Date on which the moneys so invested are required
to
be distributed to the Certificateholders.
Section
4.03 Permitted
Withdrawals and Transfers from the Master Servicer Collection
Account.
(a) The
Master Servicer will, from time to time on demand of a Servicer or the Trustee,
make or cause to be made such withdrawals or transfers from the Master Servicer
Collection Account as the Master Servicer has designated for such transfer
or
withdrawal pursuant to this Agreement and the related Servicing Agreement.
The
Master Servicer may clear and terminate the Master Servicer Collection Account
pursuant to Section 10.01 and remove amounts from time to time deposited in
error.
(b) On
an
ongoing basis, the Master Servicer shall withdraw from the Master Servicer
Collection Account (i) any expenses, costs and liabilities recoverable by the
Trustee, the Master Servicer or the Custodian pursuant to Sections 3.03, 7.03
and 9.05 and (ii) any amounts payable to the Master Servicer as set forth in
Section 3.14; provided however, that the Master Servicer shall be obligated
to
pay from its own funds any amounts which it is required to pay under Section
7.03(a).
(c) In
addition, on or before each Distribution Account Deposit Date, the Master
Servicer shall deposit in the Distribution Account (or remit to the Trustee
for
deposit therein) any Monthly Advances required to be made by the Master Servicer
with respect to the Mortgage Loans.
(d) No
later
than noon New York time on each Distribution Account Deposit Date, the Master
Servicer will transfer all Available Funds on deposit in the Master Servicer
Collection Account with respect to the related Distribution Date to the Trustee
for deposit in the Distribution Account.
Section
4.04 Distribution
Account.
(a) The
Trustee shall establish and maintain in the name of the Trustee, for the benefit
of the Certificateholders, the Distribution Account as a segregated trust
account or accounts.
(b) The
Distribution Account shall be an Eligible Account. The Trustee shall deposit
in
the Distribution Account the following amounts:
(i) Any
amounts withdrawn from the Master Servicer Collection Account and remitted
by
the Master Servicer for deposit into the Distribution
Account;
(ii) Any
Monthly Advance;
(iii) Any
Compensating Interest Payments paid by the applicable Servicer;
(iv) Any
Insurance Proceeds or Net Liquidation Proceeds or Subsequent Recoveries received
by or on behalf of the Master Servicer;
(v) The
Purchase Price with respect to any Mortgage Loans purchased by the Seller
pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03
hereof, any amounts which are to be treated pursuant to Section 2.04 of this
Agreement as the payment of a Purchase Price in connection with the tender
of a
Substitute Mortgage Loan by the Seller, the Purchase Price with respect to
any
Mortgage Loans purchased by the Seller pursuant to Section 3.21, and all
proceeds of any Mortgage Loans or property acquired with respect thereto
repurchased by the Depositor or its designee pursuant to Section
10.01;
(vi) Any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(vii) Any
other
amounts received by or on behalf of the Trustee and required to be deposited
in
the Distribution Account pursuant to this Agreement.
(c) All
amounts deposited to the Distribution Account shall be held by the Trustee
in
the name of the Trustee in trust for the benefit of the Certificateholders
in
accordance with the terms and provisions of this Agreement. In the event that
the Master Servicer shall deposit or remit for deposit to the Distribution
Account any amount not required to be credited thereto, the Trustee, upon
receipt of a written request therefor signed by a Servicing Officer of the
Master Servicer, shall promptly transfer such amount to the Master Servicer,
any
provision herein to the contrary notwithstanding.
(d) The
Distribution Account shall constitute a trust account of the Trust Fund
segregated on the books of the Trustee and held by the Trustee in trust in
its
Corporate Trust Office, and the Distribution Account and the funds deposited
therein shall not be subject to, and shall be protected from, all claims, liens,
and encumbrances of any creditors or depositors of the Trustee or the Master
Servicer (whether made directly, or indirectly through a liquidator or receiver
of the Trustee or the Master Servicer). The Distribution Account shall be an
Eligible Account. The amount at any time credited to the Distribution Account
shall be
(i) held in cash and fully insured by the FDIC to the maximum coverage provided
thereby or (ii) invested in the name of the Trustee, in such Permitted
Investments as may be selected by the Trustee or deposited in demand deposits
with such depository institutions as may be selected by the Trustee, provided
that time deposits of such depository institutions would be a Permitted
Investment. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Date if the obligor for such Permitted Investment is the Trustee
or, if such obligor is any other Person, the Business Day preceding such
Distribution Date. All investment earnings on amounts on deposit in the
Distribution Account or benefit from funds uninvested therein from time to
time
shall be for the account of the Trustee. The Trustee shall be permitted to
withdraw or receive distribution of any and all investment earnings from the
Distribution Account on each Distribution Date. If there is any loss on a
Permitted Investment or demand deposit, the Trustee shall deposit such amount
in
the Distribution Account.
With
respect to the Distribution Account and the funds deposited therein, the Master
Servicer shall take such action as may be necessary to ensure that the related
Certificateholders shall be entitled to the priorities afforded to such a trust
account (in addition to a claim against the estate of the Trustee) as provided
by 12 U.S.C. § 92a(e), and applicable regulations pursuant thereto, if
applicable, or any applicable comparable state statute applicable to state
chartered banking corporations.
Section
4.05 Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Trustee will, from time to time on written demand of the Master Servicer, make
or cause to be made such withdrawals or transfers from the Distribution Account
as the Master Servicer has designated for such transfer or withdrawal pursuant
to this Agreement and the Servicing Agreements or as the Trustee has instructed
hereunder for the following purposes (limited in the case of amounts due the
Master Servicer to those not withdrawn from the Master Servicer Collection
Account in accordance with the terms of this Agreement);
(i) to
reimburse the Master Servicer or any Servicer for any Monthly Advance of its
own
funds, the right of the Master Servicer or a Servicer to reimbursement pursuant
to this subclause (i) being limited to amounts received on a particular Mortgage
Loan (including, for this purpose, the Purchase Price therefor, Insurance
Proceeds, Liquidation Proceeds and Subsequent Recoveries) which represent late
payments or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Monthly Advance was made;
(ii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds or
Liquidation Proceeds relating to a particular Mortgage Loan for amounts expended
by the Master Servicer or such Servicer in good faith in connection with the
restoration of the related Mortgaged Property which was damaged by an Uninsured
Cause or in connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds relating
to a particular Mortgage Loan for insured expenses incurred with respect to
such
Mortgage Loan and to reimburse the Master Servicer or such Servicer from
Liquidation Proceeds from a particular Mortgage Loan for Liquidation Expenses
incurred with respect to such Mortgage Loan; provided that the Master Servicer
shall not be entitled to reimbursement for Liquidation Expenses with respect
to
a Mortgage Loan to the extent that (i) any amounts with respect to such Mortgage
Loan were paid as Excess Liquidation Proceeds pursuant to clause (viii) of
this
Subsection 4.05(a) to the Master Servicer; and (ii) such Liquidation Expenses
were not included in the computation of such Excess Liquidation
Proceeds;
(iv) to
reimburse the Master Servicer or any Servicer for advances of funds (other
than
Monthly Advances) made with respect to the Mortgage Loans, and the right to
reimbursement pursuant to this subclause being limited to amounts received
on
the related Mortgage Loan (including, for this purpose, the Purchase Price
therefor, Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries)
which represent late recoveries of the payments for which such advances were
made;
(v) to
reimburse the Master Servicer or any Servicer for any Monthly Advance or
advance, after a Realized Loss has been allocated with respect to the related
Mortgage Loan if the Monthly Advance or advance has not been reimbursed pursuant
to clauses (i) and (iv);
(vi) to
pay
the Master Servicer as set forth in Section 3.14;
(vii) to
reimburse the Master Servicer for expenses, costs and liabilities incurred
by
and reimbursable to it pursuant to Sections 3.03, 7.04(c) and (d);
(viii) to
pay to
the Master Servicer, as additional servicing compensation, any Excess
Liquidation Proceeds to the extent not retained by the related
Servicer;
(ix) to
reimburse or pay any Servicer any such amounts as are due thereto under the
applicable Servicing Agreement and have not been retained by or paid to the
Servicer, to the extent provided in the related Servicing
Agreement;
(x) to
reimburse the Trustee or the Custodian for expenses, costs and liabilities
incurred by or reimbursable to it pursuant to this Agreement and the Custodial
Agreement;
(xi)
to
pay the Trustee as set forth in Section 9.05;
(xii) to
remove
amounts deposited in error; and
(xiii) to
clear
and terminate the Distribution Account pursuant to Section 10.01.
(b) The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of accounting for any reimbursement
from
the Distribution Account pursuant to subclauses (i) through (iv) or with respect
to any such amounts which would have been covered by such subclauses had the
amounts not been retained by the Master Servicer without being deposited in
the
Distribution Account under Section 4.04(c).
(c) On
each
Distribution Date, the Trustee shall distribute the Available Funds to the
extent on deposit in the Distribution Account to the Holders of the Certificates
in accordance with Section 6.01.
ARTICLE
V
Certificates
Section
5.01 Certificates.
(a) The
Depository and the Depositor signing on behalf of the Issuing Entity have
entered into a Depository Agreement dated as of the Closing Date (the
“Depository Agreement”). The Non-Offered Certificates (which are also Physical
Certificates) and the Individual Certificates and as provided in Subsection
5.01(b), the Certificates shall at all times remain registered in the name
of
the Depository or its nominee and at all times: (i) registration of such
Certificates may not be transferred by the Trustee except to a successor to
the
Depository; (ii) ownership and transfers of registration of such Certificates
on
the books of the Depository shall be governed by applicable rules established
by
the Depository; (iii) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (iv) the Trustee shall
deal with the Depository as representative of such Certificate Owners of the
respective Class of Certificates for purposes of exercising the rights of the
related Certificateholders under this Agreement, and requests and directions
for
and votes of such representative shall not be deemed to be inconsistent if
they
are made with respect to different Certificate Owners; and (v) the Trustee
may
rely and shall be fully protected in relying upon information furnished by
the
Depository with respect to its Depository Participants.
The
Residual Certificates and the Non-Offered Subordinate Certificates are initially
Physical Certificates. If at any time the Holders of all of the Certificates
of
one or more such Classes request that the Trustee cause such Class to become
Global Certificates, the Trustee and the Depositor will take such action as
may
be reasonably required to cause the Depository to accept such Class or Classes
for trading if it may legally be so traded.
All
transfers by Certificate Owners of such respective Classes of Book-Entry
Certificates and any Global Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing such Certificate Owners. Each Depository Participant shall only
transfer Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository’s
normal procedures.
(b) If
(i)(A)
the Depositor advises the Trustee in writing that the Depository is no longer
willing or able to properly discharge its responsibilities as Depository and
(B)
the Depositor is unable to locate a qualified successor within 30 days or (ii)
the Depositor at its option advises the Trustee in writing that it elects to
terminate the book-entry system through the Depository, the Trustee shall
request that the Depository notify all Certificate Owners of the occurrence
of
any such event and of the availability of definitive, fully registered
Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of the Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall issue
the
definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be protected in relying on, such instructions.
(c) (i) REMIC
I
will be evidenced by (x) the REMIC I Regular Interests, which will be
uncertificated and non-transferable and are hereby designated as the “regular
interests” in REMIC I and have the initial principal amounts and accrue interest
at the Pass-Through Rates equal to those set forth in this Section 5.01(c)(i),
and (y) the Class R-1 Certificates, which are hereby designated as the sole
class of “residual interests” in REMIC I.
The
REMIC
I Regular Interests and the Class R-1 Certificates will have the following
designations, initial principal amounts and Pass-Through Rates:
|
REMIC
I Interest
|
Initial
Principal Amount
|
Pass-Through
Rate
|
Related
Subgroup
|
||||
|
I-1-Sub
|
$
|
6,829.96
|
6.250%
|
Subgroup
I-1
|
|||
|
I-2-Sub
|
$
|
2,039.41
|
7.500%
|
Subgroup
I-2
|
|||
|
I-1-ZZZ
|
$
|
168,826,473.76
|
6.250%
|
Subgroup
I-1
|
|||
|
I-2-ZZZ
|
$
|
50,402,365.62
|
7.500%
|
Subgroup
I-2
|
|||
|
I-PO
|
$
|
2,487,674.90
|
0.000%
|
Subgroup
I-1
|
|||
|
II-PO
|
$
|
122,805.52
|
0.000%
|
Subgroup
II-1
|
|||
|
II-1-Sub
|
$
|
535.20
|
5.500%
|
Subgroup
II-1
|
|||
|
II-2-Sub
|
$
|
1,869.81
|
6.000%
|
Subgroup
II-2
|
|||
|
II-1-ZZZ
|
$
|
13,352,010.52
|
5.500%
|
Subgroup
II-1
|
|||
|
II-2-ZZZ
|
$
|
46,646,941.04
|
6.000%
|
Subgroup
II-2
|
|||
|
I-X
|
(1)
|
(2)
|
Subgroup
I-2
|
||||
|
II-X
|
(1)
|
(3)
|
Subgroup
II-2
|
||||
|
Class
R-1
|
$
|
50.00
|
5.500%
|
Subgroup
II-1
|
|||
|
(1)
|
REMIC
I Regular Interests I-X and II-X will not have initial principal
amounts
but will accrue interest on their respective uncertificated notional
amounts calculated in accordance with the related definition of
“Uncertificated Notional Amount”
herein.
|
|
(2)
|
A
variable pass-through rate equal to the excess, if any, of (a) the
weighted average of the Net Mortgage Rates on the Group I Mortgage
Loans
with Net Mortgage Rates greater than 7.500% per annum over (b) 7.500%
per
annum.
|
|
(3)
|
A
variable pass-through rate equal to the excess, if any, of (a) the
weighted average of the Net Mortgage Rates on the Group II Mortgage
Loans
with Net Mortgage Rates greater than 6.000% per annum over (b) 6.000%
per
annum.
|
Interest
shall be payable to the REMIC I Regular Interests at the applicable Pass-Through
Rates on the related Uncertificated Principal Balances from distributions of
interest collected from the related Subgroup. On the first Distribution Date,
REMIC I Regular Interest II-1-ZZZ shall be paid $100 in reduction of its
Uncertificated Principal Balance from distributions of principal collected
from
Subgroup II-1. Following the distribution in the preceding sentence,
distributions of principal shall be deemed to be made to the REMIC I Regular
Interests, in each case from the related Subgroup, in the following manner:
first, to the related REMIC I Regular Interest ending with the designation
“Sub,” so that the Uncertificated Principal Balance of each such REMIC I Regular
Interest is equal to 0.1% of the excess of (x) the aggregate Scheduled Principal
Balance of the Mortgage Loans in the related Subgroup other than the related
PO
Percentage of the Scheduled Principal Balance of any such Mortgage Loans over
(y) the aggregate Current Principal Amount of the Senior Certificates related
to
such Subgroup (other than the portion of such Current Principal Amount
attributable to the related Class PO Component of the Class PO Certificates)
(except that if any such excess is a larger number than in the preceding
distribution period, the least amount of principal shall be distributed to
such
REMIC I Regular Interests such that the REMIC I Subordinated Balance Ratio
is
maintained); and second, to the related REMIC I Regular Interest ending with
the
designation “ZZZ,” (provided that a portion of the remaining principal equal to
the Class PO Certificate Principal Distribution Amount attributable to the
related Discount Mortgage Loans shall be distributed to REMIC I Regular Interest
I-PO or REMIC I Regular Interest II-PO, as applicable). Realized Losses from
each Subgroup shall be applied after all distributions have been made on each
Distribution Date, first, to the related REMIC I Regular Interest ending with
the designation “Sub,” so that the Uncertificated Principal Balance of each such
REMIC I Regular Interest is equal to 0.1% of the excess of (x) the aggregate
Scheduled Principal Balance of the Mortgage Loans in the related Subgroup other
than the related PO Percentage of the Scheduled Principal Balance of any such
Mortgage Loans over (y) the aggregate Current Principal Amount of the Senior
Certificates related to such Subgroup (other than the portion of such Current
Principal Amount attributable to the related Class PO Component of the Class
PO
Certificates) (except that if any such excess is a larger number than in the
preceding distribution period, the least amount of Realized Losses shall be
applied to such REMIC I Regular Interests such that the REMIC I Subordinated
Balance Ratio is maintained); and second, to the related REMIC I Regular
Interests ending with the designation “ZZZ” (except that if a Realized Loss is
recognized with respect to a Discount Mortgage Loan, the related PO Percentage
of such Realized Loss shall be allocated to the related REMIC I Regular Interest
I-PO or REMIC I Regular Interest II-PO, as applicable).
The
aggregate amount of any Net Interest Shortfalls and interest portion of Realized
Losses for any Distribution Date shall be allocated to accrued interest payable
to the REMIC I Regular Interests (other than REMIC I Regular Interests I-PO
and
II-PO), pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
Pass-Through Rates on the respective Uncertificated Principal Balances of each
such REMIC I Regular Interest.
(ii) REMIC
II
shall be evidenced by (x) the REMIC II Regular Interests, which will be
uncertificated and non-transferable and are hereby designated as the “regular
interests” in REMIC II and have the initial principal amounts and accrue
interest at the Pass-Through Rates equal to those set forth in this Section
5.01(c)(ii), and (y) the Class R-2 Certificates, which are hereby designated
as
the sole class of “residual interests” in REMIC II. The REMIC II Regular
Interests and the Class R-2 Certificates will have the following designations,
initial principal amounts and Pass-Through Rates:
|
Designation
|
Initial
Principal Amount
|
Pass-Through
Rate
|
||||
|
I-A1-1
|
$
|
29,183,200.00
|
7.000%
|
|||
|
I-A1-3
|
$
|
43,774,800.00
|
5.750%
|
|||
|
I-A1-4
|
$
|
84,045,341.99
|
6.250%
|
|||
|
I-A1-5
|
$
|
5,000,000.00
|
6.250%
|
|||
|
I-A2-1
|
$
|
48,365,000.00
|
7.500%
|
|||
|
II-A1-1
|
$
|
12,817,248.74
|
5.500%
|
|||
|
II-A2-1
|
$
|
44,779,000.00
|
6.000%
|
|||
|
I-X
|
(1)
|
(2)
|
||||
|
II-X
|
(1)
|
(2)
|
||||
|
I-PO
|
$
|
2,487,674.90
|
0.000%
|
|||
|
II-PO
|
$
|
122,805.52
|
0.000%
|
|||
|
B-1
|
$
|
4,509,000.00
|
(3)
|
|||
|
B-2
|
$
|
2,537,000.00
|
(3)
|
|||
|
B-3
|
$
|
1,127,000.00
|
(3)
|
|||
|
B-4
|
$
|
1,410,000.00
|
(3)
|
|||
|
B-5
|
$
|
986,000.00
|
(3)
|
|||
|
B-6
|
$
|
705,374.59
|
(3)
|
|||
|
Class
R-2
|
$
|
50.00
|
5.500%
|
|||
|
R-3
|
$
|
50.00
|
5.500%
|
|||
|
(1)
|
REMIC
II Regular Interests I-X and II-X will not have initial principal
amounts
but will accrue interest on their respective uncertificated notional
amounts calculated in accordance with the related definition of
“Uncertificated Notional Amount”
herein.
|
|
(2)
|
REMIC
II Regular Interests I-X and II-X will not have Pass-Through Rates
but
will be entitled to receive 100% of the amounts payable with respect
to
REMIC I Regular Interests I-X and II-X,
respectively.
|
|
(3)
|
REMIC
II Regular Interests ▇-▇, ▇-▇, ▇-▇, ▇-▇, B-5 and B-6 will each bear
interest at a per annum rate equal to the weighted average of the
Pass-Through Rates on REMIC I Regular Interests I-1-Sub, I-2-Sub,
II-1-Sub
and II-2-Sub, weighted on the basis of the Uncertificated Principal
Balances of each such REMIC I Regular Interest immediately preceding
the
related Distribution Date.
|
Principal
shall be payable to, and shortfalls, losses and prepayments are allocable to,
the REMIC II Regular Interests as such amounts are payable and allocable to
the
Corresponding Interests; provided that, solely for purposes of the foregoing,
any shortfalls or losses allocable to the Class I-1A-2 Certificates and the
Class I-2A-2 Certificates shall be deemed to be allocated entirely to the Class
I-1A-1 Certificates and the Class I-2A-1 Certificates, respectively. Interest
shall be payable to each REMIC II Regular Interest at the Pass-Through Rate
for
such REMIC II Regular Interest on its Uncertificated Principal
Balance.
(iii) The
Classes of the Certificates (other than the Class PO Certificates and Class
X
Certificates), and Components of the Class PO Certificates and Class X
Certificates, shall have the following designations, initial principal amounts
and Pass-Through Rates:
|
Designation
|
Initial
Principal Amount
|
Pass-Through
Rate
|
|||
|
I-A1-1
|
$
|
29,183,200.00
|
(2)
|
||
|
I-A1-2
|
(1)
|
(3)
|
|||
|
I-A1-3
|
$
|
43,774,800.00
|
5.75%
|
||
|
I-A1-4
|
$
|
84,045,341.99
|
6.25%
|
||
|
I-A1-5
|
$
|
5,000,000.00
|
6.25%
|
||
|
I-A2-1
|
$
|
48,365,000.00
|
(4)
|
||
|
I-A2-2
|
$
|
(1)
|
(5)
|
||
|
II-A1-1
|
$
|
12,817,248.74
|
5.50%
|
||
|
II-A2-1
|
$
|
44,779,000.00
|
6.00%
|
||
|
I-X
Component
|
$
|
(1)
|
(6)
|
||
|
II-X
Component
|
$
|
(1)
|
(7)
|
||
|
I-PO
Component
|
$
|
2,487,674.90
|
0.00%
|
||
|
II-PO
Component
|
$
|
122,805.52
|
0.00%
|
||
|
BX
|
$
|
(1)
|
(8)
|
||
|
B-1
|
$
|
4,509,000.00
|
6.00%
|
||
|
B-2
|
$
|
2,537,000.00
|
6.00%
|
||
|
B-3
|
$
|
1,127,000.00
|
6.00%
|
||
|
B-4
|
$
|
1,410,000.00
|
(9)
|
||
|
B-5
|
$
|
986,000.00
|
(9)
|
||
|
B-6
|
$
|
705,374.59
|
(9)
|
||
|
R-1
|
$
|
50.00
|
5.50%
|
||
|
R-2
|
$
|
50.00
|
5.50%
|
||
|
R-3
|
$
|
50.00
|
5.50%
|
||
|
(1)
|
As
described in the definition of Notional Amount
herein.
|
|
(2)
|
The
Class I-A1-1 Certificates will bear interest at a Pass-Through Rate
equal
to 5.77%
per annum for the first Distribution Date, and thereafter at an adjustable
Pass-Through Rate equal to LIBOR plus 0.45% per annum, subject to
a
minimum rate of 0.45% per annum and a maximum rate equal to 7.00%
per
annum.
|
|
(3)
|
The
Class I-A1-2 Certificates will bear interest at a Pass-Through Rate
equal
to 1.23% per annum for the first Distribution Date, and thereafter
at an
adjustable Pass-Through Rate equal to 6.55% per annum minus LIBOR,
subject
to a minimum rate of 0.00% per annum and a maximum rate equal to
6.55% per
annum.
|
|
(4)
|
The
Class I-A2-1 Certificates will bear interest at a Pass-Through Rate
equal
to 5.65% per annum for the first Distribution Date, and thereafter
at an
adjustable Pass-Through Rate equal to LIBOR plus 0.33% per annum,
subject
to a minimum rate of 0.33% per annum and a maximum rate equal to
7.50% per
annum.
|
|
(5)
|
The
Class I-A2-2 Certificates will bear interest at a Pass-Through Rate
equal
to 1.85% per annum for the first Distribution Date, and thereafter
at an
adjustable Pass-Through Rate equal to 7.17% per annum minus LIBOR,
subject
to a minimum rate of 0.00% per annum and a maximum rate equal to
7.17% per
annum.
|
|
(6)
|
The
Class I-X Component will bear interest at a Pass-Through Rate equal
to the
excess, if any, of (a) the weighted average of the Net Mortgage Rates
on
the Group I Mortgage Loans with Net Mortgage Rates greater than 7.500%
per
annum over (b) 7.500% per annum; provided that, for federal income
tax
purposes, the Class I-X Component will not have a Pass-Through Rate
but
will be entitled to receive 100% of the amounts payable with respect
to
REMIC II Regular Interest I-X.
|
|
(7)
|
The
Class II-X Component will bear interest at a Pass-Through Rate equal
to
the excess, if any, of (a) the weighted average of the Net Mortgage
Rates
on the Group II Mortgage Loans with Net Mortgage Rates greater than
6.000%
per annum over (b) 6.000% per annum; provided that, for federal income
tax
purposes, the Class II-X Component will not have a Pass-Through Rate
but
will be entitled to receive 100% of the amounts payable with respect
to
REMIC II Regular Interest II-X.
|
|
(8)
|
The
Class BX Certificates will bear interest at a Pass-Through Rate equal
to
the excess, if any, of (a) the weighted average of 6.250%, 7.500%,
5.500%
and 6.000% per annum, weighted in proportion to the results of subtracting
from each of the respective aggregate principal balances of the Mortgage
Loans in Subgroup I-1 (other than the portion of the Mortgage Loans
in
Subgroup I-1 attributable to the Class I-PO Component of the Class
PO
Certificates), Subgroup I-2, Subgroup II-1 (other than the portion
of the
Mortgage Loans in Subgroup II-1 attributable to the Class II-PO Component
of the Class PO Certificates) and Subgroup II-2 the aggregate Current
Principal Amount of the related Class or Classes of Senior Certificates,
other than the related Interest Only Certificates and other than
the
portion of such Current Principal Amount attributable to the related
Class
PO Component of the Class PO Certificates, over (b) 6.000% per annum;
provided that, for federal income tax purposes, the Class BX Certificates
will bear interest at a rate equivalent to the foregoing, expressed
as the
excess, if any, of (i) the weighted average of the Pass-Through Rates
on
REMIC II Regular Interests B-1, B-2 and B-3, weighted on the basis
of the
Uncertificated Principal Balances of each such REMIC II Regular Interest
immediately preceding the related Distribution Date, over (ii) 6.000%
per
annum.
|
|
(9)
|
The
Class B-4, Class B-5 and Class B-6 Certificates will each bear interest
at
a Pass-Through Rate equal to the weighted average of 6.250%, 7.500%,
5.500% and 6.000% per annum, weighted in proportion to the results
of
subtracting from each of the respective aggregate principal balances
of
the Mortgage Loans in Subgroup I-1 (other than the portion of the
Mortgage
Loans in Subgroup I-1 attributable to the Class I-PO Component of
the
Class PO Certificates), Subgroup I-2, Subgroup II-1 (other than the
portion of the Mortgage Loans in Subgroup II-1 attributable to the
Class
II-PO Component of the Class PO Certificates) and Subgroup II-2 the
aggregate Current Principal Amount of the related Class or Classes
of
Senior Certificates, other than the related Interest Only Certificates
and
other than the portion of such Current Principal Amount attributable
to
the related Class PO Component of the Class PO Certificates; provided
that, for federal income tax purposes, the Class BX Certificates
will bear
interest at a rate equivalent to the foregoing, expressed as the
weighted
average of the Pass-Through Rates on REMIC II Regular Interests B-4,
B-5
and B-6, weighted on the basis of the Uncertificated Principal Balances
of
each such REMIC II Regular Interest immediately preceding the related
Distribution Date.
|
(d) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date immediately following the maturity date for the Mortgage
Loan
with the latest maturity date in the Trust Fund has been designated as the
“latest possible maturity date” for the REMIC I Regular Interests, the REMIC II
Regular Interests, the Components and the Regular Certificates.
(e) With
respect to each Distribution Date, each Class of Certificates and Class X
Components shall accrue interest during the related Interest Accrual Period.
With respect to each Distribution Date and each such Class of Certificates
and
Class X Components, interest shall be calculated on the basis of a 360-day
year
comprised of twelve 30-day months, based upon the respective Pass-Through Rate
set forth, or determined as provided, above and the Current Principal Amount
(or
Notional Amount in the case of the Interest Only Certificates or Class X
Components) of such Class applicable to such Distribution Date.
(f) The
Certificates shall be substantially in the forms set forth in Exhibits ▇-▇,
▇-▇,
▇-▇, ▇-▇ or A-5, as applicable. On original issuance, the Trustee shall sign,
countersign and shall deliver them at the direction of the Depositor. Pending
the preparation of Definitive Certificates of any Class, the Trustee may sign
and countersign temporary Certificates that are printed, lithographed or
typewritten, in authorized denominations for Certificates of such Class,
substantially of the tenor of the Definitive Certificates in lieu of which
they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers or authorized signatories executing such
Certificates may determine, as evidenced by their execution of such
Certificates. If temporary Certificates are issued, the Depositor will cause
Definitive Certificates to be prepared without unreasonable delay. After the
preparation of Definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office of the Trustee, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall sign and countersign and deliver in exchange therefor a like
aggregate principal amount, in authorized denominations for such Class, of
Definitive Certificates of the same Class. Until so exchanged, such temporary
Certificates shall in all respects be entitled to the same benefits as
Definitive Certificates.
(g) Each
Class of Book-Entry Certificates will be registered as a single Certificate
of
such Class held by a nominee of the Depository or the DTC Custodian, and
beneficial interests will be held by investors through the book-entry facilities
of the Depository in minimum denominations of (i) in the case of the Senior
Certificates (other than the Residual Certificates), $100,000 and in each case
increments of $1.00 in excess thereof, (ii) in the case of the Class I-A1-5
Certificates, $1,000 and increments of $1.00 in excess thereof, and (iii) in
the
case of the Subordinate Certificates, $100,000 and increments of $1.00 in excess
thereof, except that one Certificate of each such Class may be issued in a
different amount so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Current Principal Amount of such
Class on the Closing Date. On the Closing Date, the Trustee shall execute and
countersign Physical Certificates all in an aggregate principal amount that
shall equal the Current Principal Amount of such Class on the Closing Date.
The
Non-Offered Certificates shall be issued in certificated fully-registered form
in minimum dollar denominations of $100,000 and integral multiples of $1.00
in
excess thereof, except that one of each of the Non-Offered Certificates of
each
Class may be issued in a different amount so that the sum of the denominations
of all outstanding related Non-Offered Certificates of such Class shall equal
the Current Principal Amount of such Class on the Closing Date. The Class R-1,
Class R-2 and Class R-3 Certificates shall each be issued in certificated
fully-registered form, in the denomination of $50. Each Class of Global
Certificates, if any, shall be issued in fully registered form in minimum dollar
denominations of $100,000 and integral multiples of $1.00 in excess thereof,
except that one Certificate of each Class may be in a different denomination
so
that the sum of the denominations of all outstanding Certificates of such Class
shall equal the Current Principal Amount of such Class on the Closing Date.
On
the Closing Date, the Trustee shall execute and countersign (i) in the case
of
each Class of the Offered Certificates, the Certificate in the entire Current
Principal Amount of the respective Class and (ii) in the case of each Class
of
the Non-Offered Certificates, Individual Certificates all in an aggregate
principal amount that shall equal the Current Principal Amount of each such
respective Class on the Closing Date. The Certificates referred to in clauses
(i) and (ii) and if at any time there are to be Global Certificates, the Global
Certificates shall be delivered by the Depositor to the Depository or pursuant
to the Depository’s instructions, shall be delivered by the Depositor on behalf
of the Depository to and deposited with the DTC Custodian. The Trustee shall
sign the Certificates by facsimile or manual signature and countersign them
by
manual signature on behalf of the Trustee by one or more authorized signatories,
each of whom shall be Responsible Officers of the Trustee or its agent. A
Certificate bearing the manual and facsimile signatures of individuals who
were
the authorized signatories of the Trustee or its agent at the time of issuance
shall bind the Trustee, notwithstanding that such individuals or any of them
have ceased to hold such positions prior to the delivery of such Certificate.
(h) No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate the manually executed
countersignature of the Trustee or its agent, and such countersignature upon
any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
issued on the Closing Date shall be dated the Closing Date. All Certificates
issued thereafter shall be dated the date of their
countersignature.
(i) The
Closing Date is hereby designated as the “startup” day of each REMIC within the
meaning of Section 860G(a)(9) of the Code.
(j) For
federal income tax purposes, each REMIC shall have a tax year that is a calendar
year and shall report income on an accrual basis.
(k) The
Trustee on behalf of the Trust shall cause each REMIC to timely elect to be
treated as a REMIC under Section 860D of the Code. Any inconsistencies or
ambiguities in this Agreement or in the administration of any trust established
hereby shall be resolved in a manner that preserves the validity of such
elections.
(l) The
following legend shall be placed on the Residual Certificates, whether upon
original issuance or upon issuance of any other Certificate of any such Class
in
exchange therefor or upon transfer thereof:
THIS
CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF,
AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE PROPOSED
TRANSFEREE PROVIDES THE TRUSTEE WITH AN OPINION OF COUNSEL ADDRESSED TO THE
DEPOSITOR, TRUSTEE AND MASTER SERVICER AND ON WHICH THEY MAY RELY THAT IS
SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OF CERTIFICATES ON BEHALF OF
SUCH
PERSON WILL NOT RESULT IN OR CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION,
IS
PERMISSIBLE UNDER APPLICABLE LAW AND WILL NOT GIVE RISE TO ANY ADDITIONAL
OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE MASTER SERVICER OR THE
TRUSTEE.
The
following legend shall be placed upon the Class B-4, Class B-5 and Class B-6
Certificates, whether upon original issuance or upon issuance of any other
Certificate of any such Class in exchange therefor or upon transfer
thereof:
THIS
CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF,
AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE TRANSFEREE
CERTIFIES OR REPRESENTS THAT THE PROPOSED TRANSFER AND HOLDING OF A CERTIFICATE
AND THE SERVICING, MANAGEMENT AND OPERATION OF THE TRUST AND ITS ASSETS: (I)
WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN
INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED
TO, PROHIBITED TRANSACTION EXEMPTION (“PTE”) 84-14, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇
95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY ADDITIONAL OBLIGATIONS
ON
THE PART OF THE DEPOSITOR, THE MASTER SERVICER OR THE TRUSTEE, WHICH WILL BE
DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE OR UNLESS THE OPINION SPECIFIED IN SECTION 5.07 OF THE AGREEMENT
IS
PROVIDED.
Section
5.02 Registration
of Transfer and Exchange of Certificates.
(a) The
Trustee shall maintain at its Corporate Trust Office a separate Certificate
Register for Certificates in which, subject to such reasonable regulations
as it
may prescribe, the Trustee shall provide for the registration of the
Certificates and of transfers and exchanges of the Certificates as herein
provided.
(b) Subject
to Subsection 5.01(a) and, in the case of any Global Certificate or Physical
Certificate upon the satisfaction of the conditions set forth below, upon
surrender for registration of transfer of any Certificate at any office or
agency of the Trustee maintained for such purpose, the Trustee shall sign,
countersign and shall deliver, in the name of the designated transferee or
transferees, a new Certificate of a like Class and aggregate Fractional
Undivided Interest, but bearing a different number.
(c) By
acceptance of an Individual Certificate, whether upon original issuance or
subsequent transfer, each holder of such a Certificate acknowledges the
restrictions on the transfer of such Certificate set forth in the Securities
Legend and agrees that it will transfer such a Certificate only as provided
herein. In addition to the provisions of Subsection 5.02(h), the following
restrictions shall apply with respect to the transfer and registration of
transfer of an Individual Certificate to a transferee that takes delivery in
the
form of an Individual Certificate:
(i) The
Trustee shall register the transfer of an Individual Certificate if the
requested transfer is being made to a transferee who has provided the Trustee
with a Rule 144A Certificate or comparable evidence as to its QIB
status.
(ii) The
Trustee shall register the transfer of any Individual Certificate if (x) the
transferor has advised the Trustee in writing that the Certificate is being
transferred to an Institutional Accredited Investor; and (y) prior to the
transfer the transferee furnishes to the Trustee an Investment Letter (and
the
Trustee shall be fully protected in so doing), provided that, if based upon
an
Opinion of Counsel addressed to the Trustee to the effect that the delivery
of
(x) and (y) above are not sufficient to confirm that the proposed transfer
is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act and other applicable laws,
the Trustee shall as a condition of the registration of any such transfer
require the transferor to furnish such other certifications, legal opinions
or
other information prior to registering the transfer of an Individual Certificate
as shall be set forth in such Opinion of Counsel.
(d) Subject
to Subsection 5.02(h), so long as a Global Certificate of such Class is
outstanding and is held by or on behalf of the Depository, transfers of
beneficial interests in such Global Certificate, or transfers by holders of
Individual Certificates of such Class to transferees that take delivery in
the
form of beneficial interests in the Global Certificate, may be made only in
accordance with this Subsection 5.02(d) and in accordance with the rules of
the
Depository:
(i) In
the
case of a beneficial interest in the Global Certificate being transferred to
an
Institutional Accredited Investor, such transferee shall be required to take
delivery in the form of an Individual Certificate or Certificates and the
Trustee shall register such transfer only upon compliance with the provisions
of
Subsection 5.02(c)(ii).
(ii) In
the
case of a beneficial interest in a Class of Global Certificates being
transferred to a transferee that takes delivery in the form of an Individual
Certificate or Certificates of such Class, except as set forth in clause (i)
above, the Trustee shall register such transfer only upon compliance with the
provisions of Subsection 5.02(c)(i).
(iii) In
the
case of an Individual Certificate of a Class being transferred to a transferee
that takes delivery in the form of a beneficial interest in a Global Certificate
of such Class, the Trustee shall register such transfer if the transferee has
provided the Trustee with a Rule 144A Certificate or comparable evidence as
to
its QIB status.
(iv) No
restrictions shall apply with respect to the transfer or registration of
transfer of a beneficial interest in the Global Certificate of a Class to a
transferee that takes delivery in the form of a beneficial interest in the
Global Certificate of such Class; provided that each such transferee shall
be
deemed to have made such representations and warranties contained in the Rule
144A Certificate as are sufficient to establish that it is a QIB.
(e) Subject
to Subsection 5.02(h), an exchange of a beneficial interest in a Global
Certificate of a Class for an Individual Certificate or Certificates of such
Class, an exchange of an Individual Certificate or Certificates of a Class
for a
beneficial interest in the Global Certificate of such Class and an exchange
of
an Individual Certificate or Certificates of a Class for another Individual
Certificate or Certificates of such Class (in each case, whether or not such
exchange is made in anticipation of subsequent transfer, and, in the case of
the
Global Certificate of such Class, so long as such Certificate is outstanding
and
is held by or on behalf of the Depository) may be made only in accordance with
this Subsection 5.02(e) and in accordance with the rules of the
Depository:
(i) A
holder
of a beneficial interest in a Global Certificate of a Class may at any time
exchange such beneficial interest for an Individual Certificate or Certificates
of such Class.
(ii) A
holder
of an Individual Certificate or Certificates of a Class may exchange such
Certificate or Certificates for a beneficial interest in the Global Certificate
of such Class if such holder furnishes to the Trustee a Rule 144A Certificate
or
comparable evidence as to its QIB status.
(iii) A
holder
of an Individual Certificate of a Class may exchange such Certificate for an
equal aggregate principal amount of Individual Certificates of such Class in
different authorized denominations without any certification.
(f) (i) Upon
acceptance for exchange or transfer of an Individual Certificate of a Class
for
a beneficial interest in a Global Certificate of such Class as provided herein,
the Trustee shall cancel such Individual Certificate and shall (or shall request
the Depository to) endorse on the schedule affixed to the applicable Global
Certificate (or on a continuation of such schedule affixed to the Global
Certificate and made a part thereof) or otherwise make in its books and records
an appropriate notation evidencing the date of such exchange or transfer and
an
increase in the certificate balance of the Global Certificate equal to the
certificate balance of such Individual Certificate exchanged or transferred
therefor.
(ii) Upon
acceptance for exchange or transfer of a beneficial interest in a Global
Certificate of a Class for an Individual Certificate of such Class as provided
herein, the Trustee shall (or shall request the Depository to) endorse on the
schedule affixed to such Global Certificate (or on a continuation of such
schedule affixed to such Global Certificate and made a part thereof) or
otherwise make in its books and records an appropriate notation evidencing
the
date of such exchange or transfer and a decrease in the certificate balance
of
such Global Certificate equal to the certificate balance of such Individual
Certificate issued in exchange therefor or upon transfer thereof.
(g) The
Securities Legend shall be placed on any Individual Certificate issued in
exchange for or upon transfer of another Individual Certificate or of a
beneficial interest in a Global Certificate.
(h) Subject
to the restrictions on transfer and exchange set forth in this Section 5.02,
the
holder of any Individual Certificate may transfer or exchange the same in whole
or in part (in an initial certificate balance equal to the minimum authorized
denomination set forth in Section 5.01(g) above or any integral multiple of
$1.00 in excess thereof) by surrendering such Certificate at the Corporate
Trust
Office, or at the office of any transfer agent, together with an executed
instrument of assignment and transfer satisfactory in form and substance to
the
Trustee in the case of transfer and a written request for exchange in the case
of exchange. The holder of a beneficial interest in a Global Certificate may,
subject to the rules and procedures of the Depository, cause the Depository
(or
its nominee) to notify the Trustee in writing of a request for transfer or
exchange of such beneficial interest for an Individual Certificate or
Certificates. Following a proper request for transfer or exchange, the Trustee
shall, within five Business Days of such request made at the Corporate Trust
Office, sign, countersign and deliver at the Corporate Trust Office, to the
transferee (in the case of transfer) or holder (in the case of exchange) or
send
by first class mail at the risk of the transferee (in the case of transfer)
or
holder (in the case of exchange) to such address as the transferee or holder,
as
applicable, may request, an Individual Certificate or Certificates, as the
case
may require, for a like aggregate Fractional Undivided Interest and in such
authorized denomination or denominations as may be requested. The presentation
for transfer or exchange of any Individual Certificate shall not be valid unless
made at the Corporate Trust Office by the registered holder in person, or by
a
duly authorized attorney-in-fact.
(i) At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates of authorized denominations of a like Class and aggregate
Fractional Undivided Interest, upon surrender of the Certificates to be
exchanged at the Corporate Trust Office; provided, however, that no Certificate
may be exchanged for new Certificates unless the original Fractional Undivided
Interest represented by each such new Certificate (i) is at least equal to
the
minimum authorized denomination or (ii) is acceptable to the Depositor as
indicated to the Trustee in writing. Whenever any Certificates are so
surrendered for exchange, the Trustee shall sign and countersign and the Trustee
shall deliver the Certificates which the Certificateholder making the exchange
is entitled to receive.
(j) If
the
Trustee so requires, every Certificate presented or surrendered for transfer
or
exchange shall be duly endorsed by, or be accompanied by a written instrument
of
transfer, with a signature guarantee, in form satisfactory to the Trustee,
duly
executed by the holder thereof or his or her attorney duly authorized in
writing.
(k) No
service charge shall be made for any transfer or exchange of Certificates,
but
the Trustee may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(l) The
Trustee shall cancel all Certificates surrendered for transfer or exchange
but
shall retain such Certificates in accordance with its standard retention policy
or for such further time as is required by the record retention requirements
of
the Securities Exchange Act of 1934, as amended, and thereafter may destroy
such
Certificates.
Section
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
(a) If
(i)
any mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee such security or
indemnity as it may require to save it harmless, and (iii) the Trustee has
not
received notice that such Certificate has been acquired by a third Person,
the
Trustee shall sign, countersign and deliver, in exchange for or in lieu of
any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like
tenor and Fractional Undivided Interest but in each case bearing a different
number. The mutilated, destroyed, lost or stolen Certificate shall thereupon
be
canceled of record by the Trustee and shall be of no further effect and evidence
no rights.
(b) Upon
the
issuance of any new Certificate under this Section 5.03, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. Any duplicate Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or
not
the lost, stolen or destroyed Certificate shall be found at any
time.
Section
5.04 Persons
Deemed Owners.
Prior
to
due presentation of a Certificate for registration of transfer, the Depositor,
the Trustee and any agent of the Depositor or the Trustee may treat the Person
in whose name any Certificate is registered as the owner of such Certificate
for
the purpose of receiving distributions pursuant to Section 6.01 and for all
other purposes whatsoever. Neither the Depositor nor the Trustee or any agent
of
the Depositor or the Trustee shall be affected by notice to the contrary. No
Certificate shall be deemed duly presented for a transfer effective on any
Record Date unless the Certificate to be transferred is presented no later
than
the close of business on the third Business Day preceding such Record
Date.
Section
5.05 Transfer
Restrictions on Residual Certificates.
(a) Residual
Certificates, or interests therein, may not be transferred without the prior
express written consent of the Tax Matters Person and the Depositor. As a
prerequisite to such consent, (1) the proposed transferee must provide the
Tax
Matters Person, the Depositor and the Trustee with an affidavit that the
proposed transferee is a Permitted Transferee (and an affidavit that it is
a
United States Person), and (2) the proposed transferor must provide the Tax
Matters Person, the Depositor and the Trustee with a certificate to the effect
that it has no knowledge that the statements made by the proposed transferee
in
any such affidavit are false, each as provided in Subsection
5.05(b).
(b) No
transfer, sale or other disposition of a Residual Certificate (including a
beneficial interest therein) may be made unless, prior to the transfer, sale
or
other disposition of a Residual Certificate, (1) the proposed transferee
(including the initial purchasers thereof) delivers to the Tax Matters Person,
the Trustee and the Depositor an affidavit in the form attached hereto as
Exhibit E stating, among other things, that as of the date of such transfer
(i)
such transferee is a Permitted Transferee and a United States person and that
(ii) such transferee is not acquiring such Residual Certificate for the account
of any Person who is not a Permitted Transferee or not a United States person,
and (2) the proposed transferor delivers to the Tax Matters Person, the Trustee
and the Depositor a certificate to the effect that it has no knowledge that
the
statements made by
the
proposed transferee in
any
such affidavit are false. The Tax Matters Person shall not consent to a transfer
of a Residual Certificate if it has actual knowledge that any statement made
in
the affidavit issued pursuant to the preceding sentence is not true.
Notwithstanding any transfer, sale or other disposition of a Residual
Certificate to any Person who is not a Permitted Transferee or a United States
Person, such transfer, sale or other disposition shall be deemed to be of no
legal force or effect whatsoever and such Person shall not be deemed to be
a
Holder of a Residual Certificate for any purpose hereunder, including, but
not
limited to, the receipt of distributions thereon. If any purported transfer
shall be in violation of the provisions of this Subsection 5.05(b), then the
prior Holder thereof shall, upon discovery that the transfer of such Residual
Certificate was not in fact permitted by this Subsection 5.05(b), be restored
to
all rights and obligations as a Holder thereof retroactive to the date of the
purported transfer. None of the Trustee, the Tax Matters Person or the Depositor
shall be under any liability to any Person for any registration or transfer
of a
Residual Certificate that is not permitted by this Subsection 5.05(b) or for
making payments due on such Residual Certificate to the purported Holder thereof
or taking any other action with respect to such purported Holder under the
provisions of this Agreement so long as the written affidavit referred to above
was received with respect to such transfer, and the Tax Matters Person, the
Trustee and the Depositor, as applicable, had no knowledge that it was untrue.
The prior Holder shall be entitled to recover from any purported Holder of
a
Residual Certificate that was in fact not a Permitted Transferee or a United
States Person under this Subsection 5.05(b) at the time it became a Holder
all
payments made on such Residual Certificate. Each Holder of a Residual
Certificate, by acceptance thereof, shall be deemed for all purposes to have
consented to the provisions of this Subsection 5.05(b) and to any amendment
of
this Agreement deemed necessary (whether as a result of new legislation or
otherwise) by counsel of the Tax Matters Person or the Depositor to ensure
that
the Residual Certificates are not transferred to any Person who is not a
Permitted Transferee or a United States Person and that any transfer of such
Residual Certificates will not cause the imposition of a tax upon the Trust
or
cause any REMIC to fail to qualify as a REMIC.
(c) The
Residual Certificates (including a beneficial interest therein) may not be
purchased by or transferred to any Person who is not a United States
Person.
(d) By
accepting a Residual Certificate, the purchaser thereof agrees to be a Tax
Matters Person, and appoints the Trustee to act as its agent with respect to
all
matters concerning the tax obligations of the Trust.
Section
5.06 Restrictions
on Transferability of Non-Offered Certificates.
(a) No
offer,
sale, transfer or other disposition (including pledge) of any Non-Offered
Certificate shall be made by any Holder thereof unless registered under the
Securities Act, or an exemption from the registration requirements of the
Securities Act and any applicable state securities or “Blue Sky” laws is
available and the prospective transferee (other than the Depositor) of such
Certificate signs and delivers to the Trustee an Investment Letter, if the
transferee is an Institutional Accredited Investor, in the form set forth as
Exhibit F-l hereto, or a Rule 144A Certificate, if the transferee is a QIB,
in
the form set forth as Exhibit F-2 hereto. Notwithstanding the provisions of
the
immediately preceding sentence, no restrictions shall apply with respect to
the
transfer or registration of transfer of a beneficial interest in any Non-Offered
Certificate that is a Global Certificate of a Class to a transferee that takes
delivery in the form of a beneficial interest in the Global Certificate of
such
Class provided that each such transferee shall be deemed to have made such
representations and warranties contained in the Rule 144A Certificate as are
sufficient to establish that it is a QIB. In the case of a proposed transfer
of
any Certificate to a transferee other than a QIB, the Trustee may require an
Opinion of Counsel addressed to the Trustee that such transaction is exempt
from
the registration requirements of the Securities Act. The cost of such opinion
shall not be an expense of the Trustee or the Trust Fund.
(b) The
Non-Offered Certificates shall each bear a Securities Legend.
Section
5.07 ERISA
Restrictions.
(a) Subject
to the provisions of subsection (b), no Residual Certificates or Non-Offered
Subordinate
Certificates may be acquired directly or indirectly by, or on behalf of, an
employee benefit plan or other retirement arrangement which is subject to Title
I of ERISA or Section 4975 of the Code, unless the proposed transferee provides
either (i) the Trustee, with an Opinion of Counsel addressed to the Depositor,
the Trustee and the Master Servicer (upon which they may rely) which is
satisfactory to the Trustee, which opinion will not be at the expense of the
Depositor, the Trustee or the Master Servicer, that the purchase of such
Certificates by or on behalf of such Plan is permissible under applicable law,
will not constitute or result in a nonexempt prohibited transaction under ERISA
or Section 4975 of the Code and will not subject the Depositor, the Master
Servicer or the Trustee to any obligation in addition to those undertaken in
the
Agreement or (ii) in the case of the Non-Offered Subordinate Certificates,
a
representation or certification to the Trustee (upon which the Trustee and
the
other parties hereto are authorized to rely) to the effect that the proposed
transfer and holding of such a Certificate and the servicing, management and
operation of the Trust: (I) will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code which is not covered under
an
individual or class prohibited transaction exemption including but not limited
to Department of Labor Prohibited Transaction Exemption (“PTE”) 84-14 (Class
Exemption for Plan Asset Transactions Determined by Independent Qualified
Professional Asset Managers); PTE 91-38 (Class Exemption for Certain
Transactions Involving Bank Collective Investment Funds); PTE 90-1 (Class
Exemption for Certain Transactions Involving Insurance Company Pooled Separate
Accounts), PTE 95-60 (Class Exemption for Certain Transactions Involving
Insurance Company General Accounts), and PTCE 96-23 (Class Exemption for Plan
Asset Transactions Determined by In-House Asset Managers and (II) will not
subject the Depositor, the Master Servicer or the Trustee to any obligation
in
addition to those undertaken in the Agreement.
(b) Any
Person acquiring an interest in a Global Certificate which is a Non-Offered
Subordinate Certificate, by acquisition of such Certificate, shall be deemed
to
have represented to the Trustee that in the case of the Non-Offered Subordinate
Certificates, either: (i) it is not acquiring an interest in such Certificate
directly or indirectly by, or on behalf of, an employee benefit plan or other
retirement arrangement which is subject to Title I of ERISA or Section 4975
of
the Code, or (ii) the transfer and holding of an interest in such Certificate
to
that Person and the subsequent servicing, management and operation of the Trust
and its assets: (I) will not result in any prohibited transaction which is
not
covered under an individual or class prohibited transaction exemption,
including, but not limited to, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 or
PTE
96-23 and (II) will not subject the Depositor, the Master Servicer or the
Trustee to any obligation in addition to those undertaken in the
Agreement.
(c) Each
beneficial owner of a Class BX, Class B-1, Class B-2 or Class B-3 Certificate
or
any interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of that certificate or interest therein, that either
(i)
it is not a Plan or investing with “Plan Assets”, (ii) it has acquired and is
holding such certificate in reliance on Prohibited Transaction Exemption 90-30,
as amended from time to time (the “Exemption”), and that it understands that
there are certain conditions to the availability of the Exemption, including
that the certificate must be rated, at the time of purchase, not lower than
“BBB-” (or its equivalent) by S&P, Fitch or ▇▇▇▇▇’▇ Investors Service, Inc.,
and the certificate is so rated or (iii) (1) it is an insurance company, (2)
the
source of funds used to acquire or hold the certificate or interest therein
is
an “insurance company general account,” as such term is defined in Prohibited
Transaction Class Exemption (“PTCE”) 95-60, and (3) the conditions in Sections I
and III of PTCE 95-60 have been satisfied.
(d) Neither
the Trustee nor the Master Servicer will be required to monitor, determine
or
inquire as to compliance with the transfer restrictions in this Agreement with
respect to the Book-Entry Certificates. Any attempted or purported transfer
of
any Certificate in violation of the provisions of this Agreement shall be void
ab initio and such Certificate shall be considered to have been held
continuously by the prior permitted Certificateholder. Any transferor of any
Certificate in violation of such provisions, shall indemnify and hold harmless
the Trustee and the Master Servicer from and against any and all liabilities,
claims, costs or expenses incurred by the Trustee or the Master Servicer as
a
result of such attempted or purported transfer. The Trustee shall not be liable
for transfer of any such Book-Entry Certificates in or through book-entry
facilities of any Depository or between or among Depository Participants or
Certificate Owners made in violation of the transfer restrictions set forth
herein.
Section
5.08 Rule
144A Information.
For
so
long as any Non-Offered Certificates are outstanding and are “restricted
securities” within the meaning of Rule 144(a)(3) of the Securities Act, (1) the
Depositor will provide or cause to be provided to any holder of such Non-Offered
Certificates and any prospective purchaser thereof designated by such a holder,
upon the request of such holder or prospective purchaser, the information
required to be provided to such holder or prospective purchaser by Rule
144A(d)(4) under the Securities Act; and (2) the Depositor shall update such
information from time to time in order to prevent such information from becoming
false and misleading and will take such other actions as are necessary to ensure
that the safe harbor exemption from the registration requirements of the
Securities Act under Rule 144A is and will be available for resales of such
Certificates conducted in accordance with Rule 144A.
ARTICLE
VI
Payments
to Certificateholders
Section
6.01 Distributions
on the Certificates.
(a) Interest
and principal (as applicable) on the Certificates will be distributed by the
Trustee monthly on each Distribution Date based on the Certificates Distribution
Report for such Distribution Date furnished by the Trustee pursuant to 6.05
hereof, commencing in December 2006, in an amount equal to the related Available
Funds on deposit in the Distribution Account for such Distribution Date. On
each
Distribution Date, the related Available Funds on deposit in the Distribution
Account shall be distributed as follows:
(I) Distributions
on the Group I Certificates, Class X Certificates and Class PO
Certificates
On
each
Distribution Date, the Group I Available Funds will be distributed as
follows:
(i) on
each
Distribution Date, the Group I Available Funds will be distributed to the
related Senior Certificates as follows:
first,
to the
Class I-A1-1, Class I-A1-2, Class I-A1-3, Class I-A1-4, Class I-A1-5, Class
I-A2-1, Class I-A2-2 and the Class I-X Component, on a pro rata basis, the
Accrued Certificate Interest on such Classes for such Distribution
Date;
second,
to the
Class I-A1-1, Class I-A1-2, Class I-A1-3, Class I-A1-4, Class I-A1-5, Class
I-A2-1, Class I-A2-2 and the Class I-X Component, on a pro rata basis, any
Accrued Certificate Interest thereon remaining undistributed from previous
Distribution Dates, to the extent of remaining Group I Available
Funds;
third,
concurrently as follows:
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(I)
|
to
the extent of the remaining Group I Available Funds related to Subgroup
I-1, to the Class I-A1-1, Class I-A1-3, Class I-A1-4 and Class I-A1-5
Certificates, as principal, the Subgroup I-1 Principal Distribution
Amount, in the order described in this Agreement, in reduction of
the
Current Principal Amounts thereof, until the Current Principal Amounts
thereof have been reduced to zero;
and
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|
(II)
|
to
the extent of the remaining Group I Available Funds related to Subgroup
I-2, to the Class I-A2-1 Certificates, as principal, the Subgroup
I-2
Principal Distribution Amount, in reduction of the Current Principal
Amount thereof, until the Current Principal Amount thereof has been
reduced to zero;
|
fourth,
to the
Class I-PO Component of the Class PO Certificates, the portion of the Class
PO
Certificate Principal Distribution Amount for such Distribution Date
attributable to Loan Group I to the extent of the remaining Group I Available
Funds, until the Current Principal Amount thereof has been reduced to zero;
and
fifth,
to the
Class I-PO Component of the Class PO Certificates, the portion of the Class
PO
Certificate Deferred Amount attributable to Loan Group I, provided that (i)
on
any Distribution Date, distributions pursuant to this priority fifth
shall
not exceed the excess, if any, of (x) Group I Available Funds remaining after
giving effect to distributions pursuant to priority first
through
fourth
above
over (y) the sum of the amount of Accrued Certificate Interest for such
Distribution Date and Accrued Certificate Interest remaining undistributed
from
previous Distribution Dates on all Classes of Subordinate Certificates then
outstanding, (ii) such distributions shall not reduce the Current Principal
Amount of the Class I-PO Component of the Class PO Certificates, and (iii)
no
distribution will be made in respect of the Class PO Certificate Deferred Amount
on or after the Cross-Over Date.
On
each
Distribution Date, an amount, up to the amount of the Subgroup I-1 Principal
Distribution Amount for that Distribution Date, will be distributed as principal
as follows in each case to the extent of the remaining Subgroup I-1 Principal
Distribution Amount:
(1) to
the
Class I-A1-4 Certificates, an amount up to $1,000.00, in reduction of the
Current Principal Amount thereof;
(2) to
the
Class I-A1-1 Certificates and Class I-A1-3 Certificates, concurrently on a
pro
rata basis, in reduction of the Current Principal Amounts thereof until the
aggregate Current Principal Amount thereof has been reduced to the Aggregate
Planned Principal Amount for such Distribution Date;
(2) to
the
Class I-A1-4, in reduction of the Current Principal Amount thereof until the
Current Principal Amount thereof has been reduced to zero;
(3) to
the
Class I-A1-1 Certificates and Class I-A1-3 Certificates, concurrently on a
pro
rata basis, in
reduction of the Current Principal Amounts thereof without regard to the
Aggregate Planned Principal Amount, until the Current Principal Amounts thereof
have been reduced
to zero; and
(4) to
Class
I-A1-5 Certificates,
in
reduction of the Current Principal Amount thereof until the Current Principal
Amount thereof has been reduced to zero.
On
each
Distribution Date, an amount, up to the amount of the Subgroup I-2 Principal
Distribution Amount for that Distribution Date, will be distributed as principal
to the Class I-A2-1 Certificates, in reduction of the Current Principal Amount
thereof, until the Current Principal Amount thereof has been reduced to
zero.
(II) Distributions
on the Group II Certificates, Class X Certificates and Class PO
Certificates
On
each
Distribution Date, the Group II Available Funds will be distributed as
follows:
(i) on
each
Distribution Date, the Group II Available Funds will be distributed to the
related Senior Certificates as follows:
first,
to the
Class II-A1-1, Class II-A2-1, Class R-1, Class R-2 and Class R-3 Certificates
and the Class II-X Component, on a pro rata basis, the Accrued Certificate
Interest on such Classes for such Distribution Date;
second,
to the
Class II-A1-1, Class II-A2-1, Class R-1, Class R-2 and Class R-3 Certificates
and the Class II-X Component, on a pro rata basis, any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution Dates,
to
the extent of remaining Group II Available Funds;
third,
concurrently as follows:
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(I)
|
to
the extent of the remaining Group II Available Funds related to Subgroup
II-1, to the Class II-A1-1, Class R-1, Class R-2 and Class R-3
Certificates, as principal, the Subgroup II-1 Principal Distribution
Amount, in reduction of the Current Principal Amount thereof, until
the
Current Principal Amounts thereof have been reduced to zero;
and
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|
(II)
|
to
the extent of the remaining Group II Available Funds related to Subgroup
II-2, to the Class II-A2-1 Certificates, as principal, the Subgroup
II-2
Principal Distribution Amount, in the order described in this Agreement,
in reduction of the Current Principal Amount thereof, until the Current
Principal Amount thereof has been reduced to zero;
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fourth,
to the
Class II-PO Component of the Class PO Certificates, the portion of the Class
PO
Certificate Principal Distribution Amount for such Distribution Date
attributable to Loan Group II to the extent of the remaining Group II Available
Funds, until the Current Principal Amount thereof has been reduced to zero;
and
fifth,
to the
Class II-PO Component of the Class PO Certificates, the portion of the Class
PO
Certificate Deferred Amount attributable to Loan Group II, provided that (i)
on
any Distribution Date, distributions pursuant to this priority fifth
shall
not exceed the excess, if any, of (x) Group II Available Funds remaining after
giving effect to distributions pursuant to priority first
through
fourth
above
over (y) the sum of the amount of Accrued Certificate Interest for such
Distribution Date and Accrued Certificate Interest remaining undistributed
from
previous Distribution Dates on all Classes of Subordinate Certificates then
outstanding, (ii) such distributions shall not reduce the Current Principal
Amount of the Class II-PO Component of the Class PO Certificates, and (iii)
no
distribution will be made in respect of the Class PO Certificate Deferred Amount
on or after the Cross-Over Date.
On
each
Distribution Date, an amount, up to the amount of the Subgroup II-1 Principal
Distribution Amount for that Distribution Date, will be distributed as principal
as follows in each case to the extent of the remaining Subgroup II-1 Principal
Distribution Amount:
(1)
to
the Class R-1, Class R-2 and Class R-3 Certificates, pro rata, in reduction
of
the Current Principal Amounts thereof, until the Certificate Principal Amounts
thereof have been reduced to zero; and
(2)
to
the Class II-A1-1 Certificates, in reduction of the Current Principal Amount
thereof, until the Current Principal Amount thereof has been reduced to
zero.
On
each
Distribution Date, an amount, up to the amount of the Subgroup II-2 Principal
Distribution Amount for that Distribution Date, will be distributed as principal
to the Class II-A2-1 Certificates, in reduction of the Current Principal Amount
thereof, until the Current Principal Amount thereof has been reduced to
zero.
(ii) Except
as
set forth in clauses (iii) and (iv) below, on each Distribution Date on or
prior
to the Cross-Over Date, an amount equal to the remaining Group I Available
Funds
and Group II Available Funds after the distributions in clause (i) above shall
be distributed sequentially in the following order, to the Class BX, Class
B-1,
Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificates, in each
case up to an amount equal to and in the following order: (a) the Accrued
Certificate Interest thereon for such Distribution Date, (b) any Accrued
Certificate Interest thereon remaining undistributed from previous Distribution
Dates and (c) other than the Class BX Certificates, such Class’s Allocable Share
for such Distribution Date, in each case, to the extent of the remaining Group
I
Available Funds and Group II Available Funds.
(iii) On
each
Distribution Date prior to the Cross-Over Date but after the reduction of the
Current Principal Amount of all of the Senior Certificates (other than the
Class
PO Certificates) related to a Subgroup or Loan Group to zero, the remaining
Class or Classes of Senior Certificates in the remaining Subgroups or Loan
Group
(other than the Class I-A1-2,
Class I-A2-2, Class X and
Class
PO Certificates) will be entitled to receive in reduction of their Current
Principal Amounts, pro rata based upon their Current Principal Amounts
immediately prior to such Distribution Date, in addition to any Principal
Prepayments related to such remaining Senior Certificates’ respective Subgroup
or Loan Group allocated to such Senior Certificates, 100% of the Principal
Prepayments on any Mortgage Loan in the Subgroup or Loan Group relating to
the
class or classes of Senior Certificates of the fully repaid Subgroup or Loan
Group; provided, however, if (A) the weighted average of the Subgroup
Subordinate Percentages on such Distribution Date equals or exceeds two times
the initial weighted average of the Subgroup Subordinate Percentages and (B)
the
aggregate Scheduled Principal Balance of the Mortgage Loans delinquent 60 days
or more (including for this purpose any such Mortgage Loans in foreclosure
and
bankruptcy and Mortgage Loans with respect to which the related Mortgaged
Property has been acquired by the Trust), averaged over the last six months,
as
a percentage of the aggregate Current Principal Amount of the Subordinate
Certificates does not exceed 50%, then the additional allocation of Principal
Prepayments to such remaining Class or Classes of Senior Certificates in
accordance with this clause (iii) will not be made and 100% of the Principal
Prepayments on any Mortgage Loan in the Loan Group relating to the fully repaid
class or classes of Senior Certificates will be allocated to the Subordinate
Certificates.
(iv) If,
after
distributions have been made pursuant to priorities first
and
second
of
clause (I)(i) above on any Distribution Date, the remaining Group I Available
Funds is less than the sum of the Subgroup I-1, Subgroup I-2 and Class PO
Principal Distribution Amount related to Subgroup I-1, such amounts shall be
reduced, and such remaining funds will be distributed to the Group I Senior
Certificates (other than the I-A1-2, Class I-A2-2 and Class X Certificates)
on
the basis of such reduced amounts. Notwithstanding any reduction in principal
distributable to the Class PO Certificates pursuant to this paragraph, the
principal balance of the Class PO Certificates shall be reduced not only by
principal so distributed but also by the difference between (i) principal
distributable to the Class PO Certificates in accordance with priority
fourth
of
clause
(I)(i) above, and (ii) principal actually distributed to the Class PO
Certificates after giving effect to this paragraph (such difference for the
Class PO Certificates, the “Group I Class PO Certificate Cash Shortfall”). The
Class PO Certificate Cash Shortfall for the Class PO Certificates with respect
to any Distribution Date will be added to the Class PO Certificate Deferred
Amount.
(v) If,
after
distributions have been made pursuant to priorities first
and
second
of
clause (II)(i) above on any Distribution Date, the remaining Group I Available
Funds is less than the sum of the Subgroup II-1, Subgroup II-2 and Class PO
Principal Distribution Amount related to Subgroup II-1, such amounts shall
be
reduced, and such remaining funds will be distributed to the Group II Senior
Certificates (other than the Class X Certificates) on the basis of such reduced
amounts. Notwithstanding any reduction in principal distributable to the Class
PO Certificates pursuant to this paragraph, the principal balance of the Class
PO Certificates shall be reduced not only by principal so distributed but also
by the difference between (i) principal distributable to the Class PO
Certificates in accordance with priority fourth
of
clause (II)(i) above, and (ii) principal actually distributed to the Class
PO
Certificates after giving effect to this paragraph (such difference for the
Class PO Certificates, the “Group II Class PO Certificate Cash Shortfall”). The
Class PO Certificate Cash Shortfall for the Class PO Certificates with respect
to any Distribution Date will be added to the Class PO Certificate Deferred
Amount.
(vi) On
each
Distribution Date, any Available Funds remaining after payment of interest
and
principal to the Classes of Certificates entitled thereto, in each case as
described above, will be distributed to the Class R Certificates on a pro rata
basis; provided, that if on any Distribution Date there are any Available Funds
remaining after payment of interest and principal to a Class or Classes of
Certificates entitled thereto, such amounts will be distributed to the other
Class or Classes of Senior Certificates, pro rata, based upon their Current
Principal Amounts, until all amounts due to all Classes of Senior Certificates
have been paid in full, before any amounts are distributed to the Class R
Certificates.
(b) “Pro
rata” distributions among Classes of Certificates will be made in proportion to
the then Current Principal Amount of such Classes.
(c) No
Accrued Certificate Interest will be payable with respect to any Class of
Certificates after the Distribution Date on which the Current Principal Amount
or Notional Amount of such Certificate has been reduced to zero.
(d) If
on any
Distribution Date the Available Funds for the related Senior Certificates is
less than the Accrued Certificate Interest on the related Senior Certificates
for such Distribution Date prior to reduction for Net Interest Shortfalls and
the interest portion of Realized Losses, the shortfall will be allocated among
the Holders of each Class of the related Senior Certificates (other than the
Class PO Certificates) in proportion to the respective amounts of Accrued
Certificate Interest that would have been allocated thereto in the absence
of
such Net Interest Shortfalls and/or Realized Losses for such Distribution Date.
In addition, the amount of any interest shortfalls will constitute unpaid
Accrued Certificate Interest and will be distributable to Holders of the
Certificates of the related Classes entitled to such amounts on subsequent
Distribution Dates, to the extent of the applicable Available Funds after
current interest distributions as required herein. Any such amounts so carried
forward will not bear interest. Shortfalls in interest payments will not be
offset by a reduction in the servicing compensation of the Master Servicer
or
otherwise.
(e) The
expenses and fees of the Trust shall be paid by each of the REMICs, to the
extent that such expenses relate to the assets of each of such respective
REMICs, and all other expenses and fees of the Trust shall be paid pro rata
by
each of the REMICs.
(f) [Reserved].
(g) In
addition, in the event that the Master Servicer receives any Subsequent
Recoveries from a Servicer, the Master Servicer shall deposit such funds into
the Master Servicer Collection Account pursuant to Section 4.02. If, after
taking into account such Subsequent Recoveries, the amount of a Realized Loss
is
reduced, the amount of such Subsequent Recoveries will be applied to increase
the Current Principal Amount of the related Class of Subordinate Certificates
with the highest payment priority to which Realized Losses have been allocated,
but not by more than the amount of Realized Losses previously allocated to
that
Class of Subordinate Certificates pursuant to Section 6.03. The amount of any
remaining Subsequent Recoveries will be applied to sequentially increase the
Current Principal Amount of the related Subordinate Certificates, beginning
with
the Class of such Subordinate Certificates with the next highest payment
priority, up to the amount of such Realized Losses previously allocated to
such
Class of Certificates pursuant to Section 6.03. Holders of such Certificates
will not be entitled to any payment in respect of current interest on the amount
of such increases for any Interest Accrual Period preceding the Distribution
Date on which such increase occurs. Any such increases shall be applied to
the
Current Principal Amount of each Subordinate Certificate of such Class in
accordance with its respective Fractional Undivided Interest.
Section
6.02 [Reserved.]
Section
6.03 Allocation
of Losses.
On
or
prior to each Determination Date, the Master Servicer shall determine the amount
of any Realized Loss in respect of each Mortgage Loan that occurred during
the
immediately preceding calendar month, based on information provided by the
Servicer.
(a) (i) Realized
Losses with respect to a Mortgage Loan will be allocated on a pro rata basis
between the PO Percentage of the Scheduled Principal Balance of such Mortgage
Loan and the Non-PO Percentage of such Scheduled Principal Balance.
(ii) On
each
Distribution Date, the PO Percentage of the principal portion of any Realized
Loss on a Discount Mortgage Loan and any Class PO Certificate Cash Shortfall
will be allocated to the Class PO Certificates and Components thereof until
the
Current Principal Amount of the Components of the Class PO Certificates is
reduced to zero. With
respect to any Distribution Date through the Cross-Over Date, the aggregate
of
all amounts so allocable to the Components of the Class PO Certificates on
such
date in respect of any Realized Losses and any Class PO Certificate Cash
Shortfalls and all amounts previously allocated in respect of such Realized
Losses or Class PO Certificate Cash Shortfalls and not distributed on prior
Distribution Dates will be the “Class PO Certificate Deferred Amount.”
To
the
extent funds are available therefor on any Distribution Date through the
Cross-Over Date, distributions in respect of the Group I Class PO Certificate
Deferred Amount for the Class I-PO Component of the Class PO Certificates from
the Group I Available Funds will be made in accordance with priority
fifth
of
clause (I)(i) above and distributions in respect of the Group II Class PO
Certificate Deferred Amount for the Class II-PO Component of the Class PO
Certificates from the Group II Available Funds will be made in accordance with
priority
fifth
of
clause (II)(i) above. No interest shall accrue on the Class PO Certificate
Deferred Amount. On each Distribution Date through the Cross-Over Date, the
Current Principal Amount of the lowest ranking Class of Subordinate Certificates
then outstanding will be reduced by the amount of any distributions in respect
of any Class PO Certificate Deferred Amount on such Distribution Date in
accordance with the priorities set forth above, through the operation of the
Subordinate Certificate Writedown Amount. After the Cross-Over Date, no more
distributions will be made in respect of, and applicable Realized Losses and
Class PO Certificate Cash Shortfalls allocable to the Components of the Class
PO
Certificates will not be added to, the Class PO Certificate Deferred Amount.
(iii) The
Non-PO Percentage of the principal portion of Realized Losses on the Mortgage
Loans will be allocated on any Distribution Date as follows: first, to the
Class
B-6 Certificates; second, to the Class B-5 Certificates; third, to the Class
B-4
Certificates; fourth, to the Class B-3 Certificates; fifth, to the Class B-2
Certificates; and sixth, to the Class B-1 Certificates, in each case until
the
Current Principal Amount of such Class has been reduced to zero.
(iv) Thereafter,
the principal portion of Realized Losses on the Mortgage Loans will be allocated
on any Distribution Date to the outstanding Class or Classes of Senior
Certificates (other than the Class I-A1-2, Class I-A2-2, Class BX and Class
X
Certificates), pro rata, based upon their respective Current Principal
Amounts.
(v) Notwithstanding
the foregoing, no such allocation of any Realized Loss shall be made on a
Distribution Date to any Class of Certificates (other than the Class I-A1-2,
Class I-A2-2, Class BX and Class X Certificates) to the extent that such
allocation would result in the reduction of the aggregate Current Principal
Amounts of all the Certificates (other than the Class I-A1-2, Class I-A2-2,
Class BX and Class X Certificates) as of such Distribution Date, after giving
effect to all distributions and prior allocations of Realized Losses on the
Mortgage Loans in the related Loan Group on such date, to an amount less than
the aggregate Scheduled Principal Balance of all of the Mortgage Loans as of
the
first day of the month of such Distribution Date (such limitation, the “Loss
Allocation Limit”).
(b) Any
Realized Losses allocated to a Class of Certificates shall be allocated among
the related Certificates of such Class (other than the Interest Only
Certificates) in proportion to their respective Current Principal Amounts.
Any
allocation of Realized Losses shall be accomplished by reducing the Current
Principal Amount of the related Certificates on the related Distribution
Date.
(c) Realized
Losses shall be allocated on the Distribution Date in the month following the
month in which such loss was incurred and, in the case of the principal portion
thereof, after giving effect to distributions made on such Distribution
Date.
(d) Any
Subordinate Certificate Writedown Amount shall effect a corresponding reduction
in the Current Principal Amount of (i) if prior to the Cross-Over Date, the
Current Principal Amounts of the Subordinate Certificates, in the reverse order
of their numerical Class designations and (ii) from and after the Cross-Over
Date, the Senior Certificates, in accordance with priorities set forth in clause
(b) above, which reduction shall occur on such Distribution Date after giving
effect to distributions made on such Distribution Date.
(e) Any
Net
Interest Shortfall will be allocated among the Classes of Certificates in
proportion to the respective amounts of Accrued Certificate Interest that would
have been allocated thereto in the absence of such Net Interest Shortfall for
such Distribution Date. The interest portion of any Realized Losses with respect
to the Mortgage Loans occurring on or prior to the Cross-Over Date will not
be
allocated among any Certificates, but will reduce the amount of Available Funds
on the related Distribution Date. As a result of the subordination of the
Subordinate Certificates in right of distribution, such Realized Losses on
the
Mortgage Loans will be borne by the Subordinate Certificates, in inverse order
of their numerical Class designations. Following the Cross-Over Date, the
interest portion of Realized Losses on the Mortgage Loans will be allocated
to
the Senior Certificates.
Section
6.04 Payments.
(a) On
each
Distribution Date, other than the final Distribution Date, the Trustee shall
distribute to each Certificateholder of record as of the immediately preceding
Record Date the Certificateholder’s pro rata share of its Class (based on the
aggregate Fractional Undivided Interest represented by such Holder’s
Certificates) of all amounts required to be distributed on such Distribution
Date to such Class. The Trustee shall calculate the amount to be distributed
to
each Class and, based on such amounts, the Trustee shall determine the amount
to
be distributed to each Certificateholder. All of the Trustee’s calculations of
payments shall be based solely on information provided to the Trustee by the
Master Servicer. The Trustee shall not be required to confirm, verify or
recompute any such information but shall be entitled to rely conclusively on
such information.
(b) Payment
of the above amounts to each Certificateholder shall be made (i) by check mailed
to each Certificateholder entitled thereto at the address appearing in the
Certificate Register or (ii) upon receipt by the Trustee on or before the fifth
Business Day preceding the Record Date of written instructions from a
Certificateholder by wire transfer to a United States dollar account maintained
by the payee at any United States depository institution with appropriate
facilities for receiving such a wire transfer; provided, however, that the
final
payment in respect of each Class of Certificates will be made only upon
presentation and surrender of such respective Certificates at the office or
agency of the Trustee specified in the notice to Certificateholders of such
final payment.
Section
6.05 Statements
to Certificateholders.
(a) Concurrently
with each distribution to Holders of the Certificates, the Trustee shall make
available to the parties hereto, each Rating Agency and each such Holder via
the
Trustee’s internet website as set forth below, a Certificates Distribution
Report containing the following information with respect to the Certificates
and
the Mortgage Loans, expressed with respect to clauses (i) through (vii) in
the
aggregate and as a Fractional Undivided Interest representing an initial Current
Principal Amount of $1,000, or in the case of the Residual Certificates, an
initial Current Principal Amount of $50 each:
(i) the
Current Principal Amount (or Notional Amount) of each Class of Certificates
immediately prior to such Distribution Date;
(ii) the
amount of the distribution allocable to principal on each applicable Class
of
Certificates;
(iii) the
aggregate amount of interest accrued at the related Pass-Through Rate with
respect to each Class during the related Interest Accrual Period;
(iv) the
Net
Interest Shortfall and any other adjustments to interest at the related
Pass-Through Rate necessary to account for any difference between interest
accrued and aggregate interest distributed with respect to each Class of
Certificates;
(v) the
amount of the distribution allocable to interest on each Class of
Certificates;
(vi) the
Pass-Through Rates for each Class of Certificates with respect to such
Distribution Date;
(vii) the
Current Principal Amount (or Notional Amount) of each Class of Certificates
after such Distribution Date;
(viii) the
amount of any Monthly Advances, Compensating Interest Payments and outstanding
unreimbursed advances by the Master Servicer or the Servicers included in such
distribution;
(ix) the
aggregate amount of any Realized Losses (listed separately for each category
of
Realized Loss) during the preceding calendar month and cumulatively since the
Cut-off Date and the amount and source (separately identified) of any
distribution in respect thereof included in such distribution;
(x) with
respect to each Mortgage Loan which incurred a Realized Loss during the
preceding calendar month, (i) the loan number, (ii) the Scheduled Principal
Balance of such Mortgage Loan as of the Cut-off Date, (ii) the Scheduled
Principal Balance of such Mortgage Loan as of the beginning of the related
Due
Period, (iii) the Net Liquidation Proceeds with respect to such Mortgage Loan
and (iv) the amount of the Realized Loss with respect to such Mortgage
Loan;
(xi) the
amount of Scheduled Principal and Principal Prepayments, (including but
separately identifying the principal amount of Principal Prepayments, Insurance
Proceeds, the purchase price in connection with the purchase of Mortgage Loans,
cash deposits in connection with substitutions of Mortgage Loans and Net
Liquidation Proceeds) and the number and principal balance of Mortgage Loans
purchased or substituted for during the relevant period and cumulatively since
the Cut-off Date;
(xii) the
number of Mortgage Loans (excluding REO Property) remaining in the Trust Fund
as
of the end of the preceding calendar month;
(xiii) information
regarding any Mortgage Loan delinquencies as of the end of the previous calendar
month, including the aggregate number and aggregate Outstanding Principal
Balance of Mortgage Loans using the MBA method of calculation (a) Delinquent
30
to 59 days on a contractual basis, (b) Delinquent 60 to 89 days on a contractual
basis, and (c) Delinquent 90 or more days on a contractual basis, in each case
as of the close of business on the last Business Day of the immediately
preceding month;
(xiv) the
number of Mortgage Loans in the foreclosure process as of the end of the related
Due Period and the aggregate Outstanding Principal Balance of such Mortgage
Loans;
(xv) the
number and aggregate Outstanding Principal Balance of all Mortgage Loans as
to
which the Mortgaged Property was REO Property as of the end of the preceding
calendar month;
(xvi) the
book
value (the sum of (A) the Outstanding Principal Balance of the Mortgage Loan,
(B) accrued interest through the date of foreclosure and (C) foreclosure
expenses) of any REO Property; provided that, in the event that such information
is not available to the Trustee on the Distribution Date, such information
shall
be furnished promptly after it becomes available;
(xvii) the
amount of Realized Losses allocated to each Class of Certificates since the
prior Distribution Date and in the aggregate for all prior Distribution Dates;
and
(xviii) the
Average Loss Severity Percentage;
(xix) [Reserved]
(xx) the
then
applicable Subgroup Senior Percentage, Subgroup Senior Prepayment Percentage,
Subordinate Percentage and Subordinate Prepayment Percentage for each
Subgroup.
The
information set forth above shall be calculated or reported, as the case may
be,
by the Trustee, based solely on, and to the extent of, information provided
to
the Trustee by the Master Servicer. The Trustee may conclusively rely on such
information and shall not be required to confirm, verify or recalculate any
such
information.
The
Trustee may make available each month, to any interested party, the Certificates
Distribution Report to Holders of the Certificates via the Trustee’s website
initially located at “▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇.” Assistance in using the website can
be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇.
Parties that are unable to use the above distribution option are entitled to
have a paper copy mailed to them via first class mail by calling the Trustee’s
customer service desk and indicating such. The Trustee shall have the right
to
change the way such reports are distributed in order to make such distribution
more convenient and/or more accessible to the parties, and the Trustee shall
provide timely and adequate notification to all parties regarding any such
change.
(b) By
April
30 of each year beginning in 2007, the Trustee will furnish such report to
each
Holder of the Certificates of record at any time during the prior calendar
year
as to the aggregate of amounts reported pursuant to subclauses (a)(ii) and
(a)(v) above with respect to the Certificates, plus information with respect
to
the amount of servicing compensation and such other customary information as
the
Trustee may determine to be necessary and/or to be required by the Internal
Revenue Service or by a federal or state law or rules or regulations to enable
such Holders to prepare their tax returns for such calendar year. Such
obligations shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to the requirements of the Code.
Section
6.06 Monthly
Advances.
The
Master Servicer shall cause the related Servicer to remit any Advance required
pursuant to the terms of the related Servicing Agreement. The related Servicer
shall be obligated to make any such Advance only to the extent that such advance
would not be a Nonrecoverable Advance. If the related Servicer shall have
determined that it has made a Nonrecoverable Advance or that a proposed Advance
or a lesser portion of such Advance would constitute a Nonrecoverable Advance,
the related Servicer shall deliver (i) to the Trustee for the benefit of the
Certificateholders funds constituting the remaining portion of such Advance,
if
applicable, and (ii) to the Master Servicer an Officer’s Certificate setting
forth the basis for such determination. Subject
to the Master Servicer’s recoverability determination, in the event that a
Servicer (other than the Company) fails to make a required Advance, the Master
Servicer, as successor servicer, shall be required to remit the amount of such
Advance to the Master Servicer Collection Account.
If EMC
or the Master Servicer were required to make an Advance but failed to do so,
the
Trustee upon receiving notice or becoming aware of such failure, and pursuant
to
the applicable terms of this Agreement, shall appoint a successor servicer
or
Master Servicer, as applicable, who will make such Advance, or the Trustee
as
successor master servicer shall be
required to remit the amount of such Advance to the Master Servicer Collection
Account, unless
the Trustee shall have determined that such Advance is a Nonrecoverable Advance.
If the Trustee cannot find a successor servicer to replace the Company as
Servicer the Trustee shall become the successor servicer and shall be required
to remit the amount of such Advance to the Master Servicer Collection Account,
unless the Trustee shall have determined that such Advance is a Nonrecoverable
Advance.
Section
6.07 Compensating
Interest Payments.
The
Master Servicer shall deliver to the Trustee for deposit in the Distribution
Account not later than each Business Day preceding the related Distribution
Date
an amount equal to the sum of the aggregate amounts paid by the Servicers under
the related Servicing Agreement with respect to subclauses (a) and (b) of the
definition of Interest Shortfall with respect to the Mortgage Loans for the
related Distribution Date.
ARTICLE
VII
The
Master Servicer
Section
7.01 Liabilities
of the Master Servicer.
The
Master Servicer shall be liable in accordance herewith only to the extent of
the
obligations specifically imposed upon and undertaken by it herein.
Section
7.02 Merger
or Consolidation of the Master Servicer.
(a) The
Master Servicer will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation,
and will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its duties under this
Agreement.
(b) Any
Person into which the Master Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
Section
7.03 Indemnification
of the Trustee and the Master Servicer
(a) The
Master Servicer agrees to indemnify the Indemnified Persons for, and to hold
them harmless against, any loss, liability or expense (including reasonable
legal fees and disbursements of counsel) incurred on their part that may be
sustained in connection with, arising out of, or relating to, any claim or
legal
action (including any pending or threatened claim or legal action) relating
to
this Agreement with respect to the Mortgage Loans and the Certificates, the
Servicing Agreements, the Assignment Agreement or the Certificates or the powers
of attorney delivered by the Trustee hereunder (i) related to the Master
Servicer’s failure to perform its duties in compliance with this Agreement
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) or (ii) incurred by reason of the Master Servicer’s
willful misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided, in each case, that with respect to any such claim or legal
action (or pending or threatened claim or legal action), the Indemnified
Person shall
have given the Master Servicer and the Depositor written notice thereof promptly
after a Responsible Officer of the Indemnified Person shall have with respect
to
such claim or legal action and actual knowledge thereof. The Master Servicer’s
failure to receive any such notice shall not affect the Indemnified Person’s
right to indemnification hereunder, except to the extent the Master Servicer
is
materially prejudiced by such failure to give notice. This indemnity shall
survive the resignation or removal of the Trustee or the Master Servicer and
the
termination of this Agreement.
(b) [Reserved].
(c) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise covered by the Master Servicer’s
indemnification pursuant to Subsection (a) above.
Section
7.04 Limitations
on Liability of the Master Servicer and Others.
Subject
to the obligation of the Master Servicer to indemnify the Indemnified Persons
pursuant to Section 7.03:
(a) Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Indemnified Persons,
the
Depositor, the Trust Fund or the Holders of the Certificates for taking any
action or for refraining from taking any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such Person against any breach
of
warranties or representations made herein or any liability which would otherwise
be imposed by reason of such Person’s willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard
of
obligations and duties hereunder.
(b) The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
(c) The
Master Servicer, the Custodian and any director, officer, employee or agent
of
the Master Servicer or the Custodian, and the Trustee, to the extent it becomes
a party to the EMC Servicing Agreement pursuant to Section 3.03, and any
officer, director, employee or agent of the Trustee, shall be indemnified by
the
Trust and held harmless thereby against any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on
their
part that may be sustained in connection with, arising out of, or related to,
any claim or legal action (including any pending or threatened claim or legal
action) relating to this Agreement, the Certificates or any Servicing Agreement
(except to the extent that the Master Servicer or the Trustee, as the case
may
be, is indemnified by the Servicer thereunder), other than (i) any such loss,
liability or expense related to the Master Servicer’s failure to perform its
duties in compliance with this Agreement (except as any such loss, liability
or
expense shall be otherwise reimbursable pursuant to this Agreement), or to
the
Custodian’s failure to perform its duties under the Custodial Agreement,
respectively, or (ii) any such loss, liability or expense incurred by reason
of
the Master Servicer’s or the Custodian’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or under the Custodial
Agreement, as applicable, or by reason of reckless disregard of obligations
and
duties hereunder or under the Custodial Agreement, as applicable.
(d) The
Master Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided, however, the Master Servicer may in its discretion, with the consent
of the Trustee (which consent shall not be unreasonably withheld), undertake
any
such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests
of
the Holders of the Certificates hereunder. In such event, the legal expenses
and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund and the Master Servicer shall be
entitled to be reimbursed therefor out of the Master Servicer Collection Account
as provided by Section 4.03. Nothing in this Subsection 7.04(d) shall affect
the
Master Servicer’s obligation to supervise, or to take such actions as are
necessary to ensure, the servicing and administration of the Mortgage Loans
pursuant to Section 3.01.
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Master Servicer
shall not be required to investigate or make recommendations concerning
potential liabilities which the Trust might incur as a result of such course
of
action by reason of the condition of the Mortgaged Properties but shall give
notice to the Trustee if it has notice of such potential
liabilities.
(f) The
Master Servicer shall not be liable for any acts or omissions of the related
Servicers.
(g) The
Master Servicer may perform any of its duties hereunder or exercise its rights
hereunder either directly or through Affiliates, agents or
attorneys.
Section
7.05 Master
Servicer Not to Resign.
Except
as
provided in Section 7.07, the Master Servicer shall not resign from the
obligations and duties hereby imposed on it except (i) with the prior consent
of
the Trustee (which
consent shall not be unreasonably withheld or delayed)
or (ii)
upon a determination that any such duties hereunder are no longer permissible
under applicable law and such impermissibility cannot be cured; provided,
however, in the event that the Trustee resigns or is terminated or removed
in
accordance with the provisions hereof, the Master Servicer shall resign. Any
such determination permitting the resignation of the Master Servicer shall
be
evidenced by an Opinion of Independent Counsel addressed to the Trustee to
such
effect delivered to the Trustee. No such resignation by the Master Servicer
shall become effective until the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section 8.02 hereof.
The Trustee shall notify the Rating Agencies of the resignation of the Master
Servicer.
Section
7.06 Successor
Master Servicer.
In
connection with the appointment of any successor master servicer or the
assumption of the duties of the Master Servicer, the Seller or the Trustee
may
make such arrangements for the compensation of such successor master servicer
out of payments on the Mortgage Loans as the Seller or the Trustee and such
successor master servicer shall agree. If the successor master servicer does
not
agree that such market value is a fair price, such successor master servicer
shall obtain two quotations of market value from third parties actively engaged
in the servicing of single-family mortgage loans. Notwithstanding the foregoing,
in no event shall the compensation of any Successor Master Servicer exceed
that
permitted the Master Servicer hereunder without the consent of all of the
Certificateholders..
Section
7.07 Sale
and Assignment of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in its entirety as Master Servicer under this Agreement; provided,
however, that: (i) the purchaser or transferee accepting such assignment and
delegation (a) shall be a Person which shall be qualified to service mortgage
loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b) shall have a net worth of not less
than
$10,000,000 (unless otherwise approved by each Rating Agency pursuant to clause
(ii) below); (c) shall be reasonably satisfactory to the Trustee (as evidenced
in a writing signed by the Trustee); and (d) shall execute and deliver to the
Trustee an agreement, in form and substance reasonably satisfactory to the
Trustee, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by it as master servicer under this Agreement, any custodial agreement
from and after the effective date of such agreement; (ii) each Rating Agency
shall be given prior written notice of the identity of the proposed successor
to
the Master Servicer and each Rating Agency’s rating of the Certificates in
effect immediately prior to such assignment, sale and delegation will not be
downgraded, qualified or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to the Master
Servicer and the Trustee; and (iii) the Master Servicer assigning and selling
the master servicing shall deliver to the Trustee an Officer’s Certificate and
an Opinion of Independent Counsel addressed to the Trustee, each stating that
all conditions precedent to such action under this Agreement have been completed
and such action is permitted by and complies with the terms of this Agreement.
No such assignment or delegation shall affect any liability of the Master
Servicer arising prior to the effective date thereof.
ARTICLE
VIII
Default
Section
8.01 Events
of Default.
“Event
of
Default,” wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) and only with respect to the defaulting
Master Servicer:
(i) Any
failure by the Master Servicer to remit to the Trustee any amounts received
or
collected by the Master Servicer in respect of the Mortgage Loans and required
to be remitted by it (other than any Advance) pursuant to this Agreement, which
failure shall continue unremedied for one Business Day after the date on which
written notice of such failure shall have been given to the Master Servicer
by
the Trustee or the Depositor, or to the Trustee and the Master Servicer by
the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates; or
(ii) any
failure by the Master Servicer to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Master Servicer
contained in this Agreement or any breach of a representation or warranty by
the
Master Servicer, which failure or breach shall continue unremedied for a period
of 60 days after the date on which written notice of such failure, properly
requiring the same to be remedied, shall have been given to the Master Servicer
by the Trustee or to the Master Servicer and the Trustee by the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less
than
25% of the Trust Fund; or
(iii) There
is
entered against the Master Servicer a decree or order by a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the winding
up or liquidation of its affairs, and the continuance of any such decree or
order is unstayed and in effect for a period of 60 consecutive days, or an
involuntary case is commenced against the Master Servicer under any applicable
insolvency or reorganization statute and the petition is not dismissed within
60
days after the commencement of the case; or
(iv) The
Master Servicer consents to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or
substantially all of its property; or the Master Servicer admits in writing
its
inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes
an
assignment for the benefit of its creditors, or voluntarily suspends payment
of
its obligations;
(v) The
Master Servicer assigns or delegates its duties or rights under this Agreement
in contravention of the provisions permitting such assignment or delegation
under Sections 7.05 or 7.07; or
(vi) The
Master Servicer fails to deposit or cause to be deposited, in the Distribution
Account any Monthly Advance required to be made by the Master Servicer (other
than a Nonrecoverable Advance) by the close of business on the Business Day
prior to the related Distribution Date.
In
each
and every such case, so long as such Event of Default with respect to the Master
Servicer shall not have been remedied, either the Trustee or the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less
than
51% of the principal of the Trust Fund, by notice in writing to the Master
Servicer (and to the Trustee if given by such Holders of the Certificates),
with
a copy to the Rating Agencies, may terminate all of the rights and obligations
(but not the liabilities) of the Master Servicer under this Agreement and in
and
to the Mortgage Loans and/or the REO Property serviced by the Master Servicer
and the proceeds thereof. Upon the receipt by the Master Servicer of the written
notice, all authority and power of the Master Servicer under this Agreement,
whether with respect to the Certificates, the Mortgage Loans, REO Property
or
under any other related agreements (but only to the extent that such other
agreements relate to the Mortgage Loans or related REO Property) shall, subject
to Section 8.02, automatically and without further action pass to and be vested
in the Trustee pursuant to this Section 8.01; and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of
the Master Servicer as attorney-in-fact or otherwise, any and all documents
and
other instruments and to do or accomplish all other acts or things necessary
or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer’s rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the property and amounts which are then or should be part of
the
Trust or which thereafter become part of the Trust; and (ii) originals or copies
of all documents of the Master Servicer reasonably requested by the Trustee
to
enable it to assume the Master Servicer’s duties thereunder. All reasonable and
properly documented costs and expenses incurred by the Trustee in connection
with such transfer shall be reimbursed to the Trustee by the Master Servicer
within 30 days of request therefor or, if the Master Servicer fails to pay
any
such amount, reimbursed from amounts on deposit in the Distribution Amount.
In
addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled
to
receive, out of any amount received on account of a Mortgage Loan or related
REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall
not
affect any obligations incurred by the Master Servicer prior to such
termination.
Notwithstanding
the foregoing, if an Event of Default described in clause (vi) of this Section
8.01 shall occur, the Trustee upon receiving notice or becoming aware of such
failure, and pursuant to the applicable terms of this Agreement, shall, by
notice in writing to the Master Servicer, which may be delivered by telecopy,
immediately terminate all of the rights and obligations of the Master Servicer
thereafter arising under this Agreement, but without prejudice to any rights
it
may have as a Holder of the Certificates or to reimbursement of Monthly Advances
and other advances of its own funds, and the Trustee shall act as provided
in
Section 8.02 to carry out the duties of the Master Servicer, including the
obligation to make any Monthly Advance the nonpayment of which was an Event
of
Default described in clause (vi) of this Section 8.01. Any such action taken
by
the Trustee must be prior to the distribution on the relevant Distribution
Date.
Section
8.02 Trustee
to Act; Appointment of Successor.
(a) Upon
the
receipt by the Master Servicer of a notice of termination pursuant to Section
8.01 or an Opinion of Independent Counsel pursuant to Section 7.05 to the effect
that the Master Servicer is legally unable to act or to delegate its duties
to a
Person which is legally able to act, the Trustee shall automatically become
the
successor in all respects to the Master Servicer in its capacity under this
Agreement and the transactions set forth or provided for herein and shall
thereafter have all the rights and powers of, and be subject to all the
responsibilities, duties, liabilities and limitations on liabilities relating
thereto placed on the Master Servicer by the terms and provisions hereof
(including the requirement to make Monthly Advances pursuant to Section 6.06);
provided, however, that the Trustee shall have no obligation whatsoever with
respect to any liability (other than advances deemed recoverable and not
previously made) incurred by the Master Servicer at or prior to the time of
termination. As compensation therefor, the Trustee shall be entitled to
compensation which the Master Servicer would have been entitled to retain if
the
Master Servicer had continued to act hereunder, except for those amounts due
the
Master Servicer as reimbursement permitted under this Agreement for advances
previously made or expenses previously incurred. Notwithstanding the above,
the
Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint or petition a court of competent jurisdiction to
appoint, any established housing and home finance institution which is a ▇▇▇▇▇▇
▇▇▇- or ▇▇▇▇▇▇▇ Mac-approved servicer, and with respect to a successor to the
Master Servicer only, having a net worth of not less than $10,000,000, as the
successor to the Master Servicer hereunder in the assumption of all or any
part
of the responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the Trustee shall obtain a letter from each Rating Agency that
the ratings, if any, on each of the Certificates will not be lowered as a result
of the selection of the successor to the Master Servicer. Pending appointment
of
a successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that the provisions of Section 7.06 shall apply,
the
compensation shall not be in excess of that which the Master Servicer would
have
been entitled to if the Master Servicer had continued to act hereunder, and
that
such successor shall undertake and assume the obligations of the Master Servicer
to pay compensation to any third Person acting as an agent or independent
contractor in the performance of master servicing responsibilities hereunder.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
(b) If
the
Trustee shall succeed to any duties of the Master Servicer respecting the
Mortgage Loans as provided herein, it shall do so in a separate capacity and
not
in its capacity as Trustee and, accordingly, the provisions of Article IX shall
be inapplicable to the Trustee in its duties as the successor to the Master
Servicer in the servicing of the Mortgage Loans (although such provisions shall
continue to apply to the Trustee in its capacity as Trustee); the provisions
of
Article VII, however, shall apply to it in its capacity as successor master
servicer.
Section
8.03 Notification
to Certificateholders.
Upon
any
termination or appointment of a successor to the Master Servicer, the Trustee
shall give prompt written notice thereof to Holders of the Certificates at
their
respective addresses appearing in the Certificate Register and to the Rating
Agencies.
Section
8.04 Waiver
of Defaults.
The
Trustee shall transmit by mail to all Holders of the Certificates, within 60
days after the occurrence of any Event of Default actually known to a
Responsible Officer of the Trustee, unless such Event of Default shall have
been
cured, notice of each such Event of Default. The Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of
the
Trust Fund may, on behalf of all Holders of the Certificates, waive any default
by the Master Servicer in the performance of its obligations hereunder and
the
consequences thereof, except a default in the making of or the causing to be
made any required distribution on the Certificates, which default may only
be
waived by Holders of Certificates evidencing Fractional Undivided Interests
aggregating 100% of the Trust Fund. Upon any such waiver of a past default,
such
default shall be deemed to cease to exist, and any Event of Default arising
therefrom shall be deemed to have been timely remedied for every purpose of
this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
The Trustee shall give notice of any such waiver to the Rating
Agencies.
Section
8.05 List
of Certificateholders.
Upon
written request of three or more Holders of Certificates of record, for purposes
of communicating with other Holders of Certificates with respect to their rights
under this Agreement, the Trustee will afford such Certificateholders access
during business hours to the most recent list of related Certificateholders
held
by the Trustee.
ARTICLE
IX
Concerning
the Trustee
Section
9.01 Duties
of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiver of all Events of Default which may have occurred undertakes to perform
such duties and only such duties as are specifically set forth in this Agreement
as duties of the Trustee. If an Event of Default has occurred and has not been
cured or waived, the Trustee shall exercise such of the rights and powers vested
in it by this Agreement use the same degree of care and skill in their exercise,
as a prudent person would exercise under the circumstances in the conduct of
his
own affairs.
(b) Upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments which are specifically required to be
furnished to the Trustee pursuant to any provision of this Agreement, the
Trustee shall examine them to determine whether they are on their face in the
form required by this Agreement; provided, however, that the Trustee shall
not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished
hereunder; provided, further, that the Trustee shall not be responsible for
the
accuracy or verification of any calculation provided to it pursuant to this
Agreement.
(c) On
each
Distribution Date, the Trustee shall make monthly distributions and the final
distribution to the related Certificateholders from funds in the Distribution
Account, as provided in Sections 6.01 and 10.01 herein based solely on the
report of the Trustee.
(d) No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct; provided, however, that:
(i) Prior
to
the occurrence of an Event of Default, and after the curing or waiver of all
such Events of Default which may have occurred, the duties and obligations
of
the Trustee shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the performance of their
respective duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of the Trustee,
the Trustee 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 Trustee, and conforming to the requirements of this
Agreement;
(ii) The
Trustee shall not be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the directions of
the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 25% of the portion of the Trust Fund related to such Certificates,
if such action or non-action relates to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or other power conferred upon the Trustee under this Agreement;
(iv) The
Trustee shall not be required to take notice or be deemed to have notice or
knowledge of any default or Event of Default unless a Responsible Officer of
the
Trustee’s Corporate Trust Office shall have actual knowledge thereof. In the
absence of such notice, the Trustee may conclusively assume there is no such
default or Event of Default;
(v) The
Trustee shall not in any way be liable by reason of any insufficiency in any
Account held by or in the name of Trustee unless it is determined by a court
of
competent jurisdiction that the Trustee’s gross negligence or willful misconduct
was the primary cause of such insufficiency (except to the extent that the
Trustee is obligor and has defaulted thereon);
(vi) Anything
in this Agreement to the contrary notwithstanding, in no event shall the Trustee
be liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee
has
been advised of the likelihood of such loss or damage and regardless of the
form
of action;
(vii) None
of
the Depositor or the Trustee shall be responsible for the acts or omissions
of
the other, it being understood that this Agreement shall not be construed to
render them partners, joint venturers or agents of one another and
(viii) The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial liability in the performance of any of its duties hereunder, or in
the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations
of
the Master Servicer under the Servicing Agreements, except during such time,
if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Master Servicer in accordance with the
terms of this Agreement.
(e) All
funds
received by the Master Servicer and the Trustee and required to be deposited
in
the Master Servicer Collection Account pursuant to this Agreement will be
promptly so deposited by the Master Servicer or the Trustee, as
applicable.
(f) Except
for those actions that the Trustee is required to take hereunder, the Trustee
shall not have any obligation or liability to take any action or to refrain
from
taking any action hereunder in the absence of written direction as provided
hereunder.
Section
9.02 Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 9.01:
(i) The
Trustee may rely and shall be protected in acting or refraining from acting
in
reliance on any resolution, certificate of the Depositor, the Master Servicer
or
a Servicer, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or
other paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties;
(ii) The
Trustee may consult with counsel and any advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection with respect
to any action taken or suffered or omitted by it hereunder in good faith and
in
accordance with such advice or Opinion of Counsel;
(iii) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement, other than its obligation to give notices
pursuant to this Agreement, or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of
the
Certificateholders pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby. Nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge (which has not been
cured or waived), to exercise such of the rights and powers vested in it by
this
Agreement, and to use the same degree of care and skill in their exercise,
as a
prudent person would exercise under the circumstances in the conduct of his
own
affairs;
(iv) Prior
to
the occurrence of an Event of Default hereunder and after the curing or waiver
of all Events of Default which may have occurred, the Trustee shall not be
liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the portion
of
the Trust Fund related to such Certificates, and provided that the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement. The Trustee may require
reasonable indemnity against such expense or liability as a condition to taking
any such action. The reasonable expense of every such examination shall be
paid
by the related Certificateholders requesting the investigation;
(vi) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or through Affiliates, agents or attorneys; provided,
however, that the Trustee may not appoint any agent to perform its custodial
functions with respect to the Mortgage Files or paying agent functions under
this Agreement without the express written consent of the Master Servicer,
which
consent will not be unreasonably withheld. The Trustee shall not be liable
or
responsible for the misconduct or negligence of any of the Trustee’s agents or
attorneys or a custodian or paying agent appointed hereunder by the Trustee
with
due care and, when required, with the consent of the Master
Servicer;
(vii) Should
the Trustee deem the nature of any action required on its part, to be unclear,
the Trustee may require prior to such action that it be provided by the
Depositor with reasonable further instructions;
(viii) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be accountable
for
other than its negligence or willful misconduct in the performance of any such
act;
(ix) The
Trustee shall not be required to give any bond or surety with respect to the
execution of the trust created hereby or the powers granted hereunder, except
as
provided in Section 9.07; and
(x) The
Trustee shall not have any duty to conduct any affirmative investigation as
to
the occurrence of any condition requiring the repurchase of any Mortgage Loan
by
the Seller pursuant to this Agreement or the Mortgage Loan Purchase Agreement,
as applicable, or the eligibility of any Mortgage Loan for purposes of this
Agreement.
Section
9.03 Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates (other than the signature
and
countersignature of the Trustee on such Certificates) shall be taken as the
statements of the Depositor, and neither the Trustee, nor the Custodian on
its
behalf, shall have any responsibility for their correctness. The Trustee does
not make any representation as to the validity or sufficiency of the
Certificates (other than the signature and countersignature of the Trustee
on
the such Certificates) or of any Mortgage Loan; provided, however, that the
foregoing shall not relieve the Trustee, or the Custodian on its behalf, of
the
obligation to review the Mortgage Files pursuant to Sections 2.02 and 2.04.
The
Trustee’s signature and countersignature (or countersignature of its agent) on
the Certificates shall be solely in its capacity as Trustee and shall not
constitute the Certificates an obligation of the Trustee in any other capacity.
The Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for
the
use or application of any funds paid to the Depositor with respect to the
Mortgage Loans. The Trustee shall not be responsible for the legality or
validity of this Agreement or any document or instrument relating to this
Agreement, the validity of the execution of this Agreement or of any supplement
hereto or instrument of further assurance, or the validity, priority, perfection
or sufficiency of the security for the Certificates issued hereunder or intended
to be issued hereunder. The Trustee shall not at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of either Trust Fund, or any portion
of either Trust Fund or its ability to make the payments to be distributed
to
Certificateholders, under this Agreement. The Trustee shall not have any
responsibility for filing any financing statement or continuation statement
in
any public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement.
Section
9.04 Trustee
May Own Certificates.
The
Trustee in its individual capacity or in any capacity other than as Trustee
hereunder may become the owner or pledgee of any Certificates with the same
rights it would have if it were not Trustee and may otherwise deal with the
parties hereto.
Section
9.05 Trustee’s
Fees and Expenses.
The
Trustee will be entitled to recover, from the Distribution Account pursuant
to
Section 4.05, the Trustee Fee, all reasonable out-of-pocket expenses,
disbursements and advances and the expenses of the Trustee in connection with
any Event of Default, any breach of this Agreement or any claim or legal action
(including any pending or threatened claim or legal action) or incurred or
made
by the Trustee in the administration of the trusts hereunder (including the
reasonable compensation, expenses and disbursements of its counsel) except
any
such expense, disbursement or advance as may arise from its negligence or
intentional misconduct or which is the responsibility of the Certificateholders.
If funds in the Distribution Account are insufficient therefor, the Trustee
shall recover such expenses from the Depositor and the Depositor hereby agrees
to pay such expenses, disbursements or advances upon demand. Such compensation
and reimbursement obligation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust.
Section
9.06 Eligibility
Requirements for Trustee.
The
Trustee and any successor Trustee shall during the entire duration of this
Agreement be a state bank or trust company or a national banking association
organized and doing business under the laws of such state or the United States
of America, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Trustee, $50,000,000, subject to
supervision or examination by federal or state authority and, in the case of
the
Trustee, rated “BBB” or higher by S&P or Fitch and “Baa2” or higher by
▇▇▇▇▇’▇ with respect to their long-term rating and rated “BBB” or higher by
S&P or Fitch and “Baa2” or higher by ▇▇▇▇▇’▇ with respect to any outstanding
long-term unsecured unsubordinated debt, and, in the case of a successor Trustee
other than pursuant to Section 9.10, rated in one of the two highest long-term
debt categories of, or otherwise acceptable to, each of the Rating Agencies.
If
the Trustee publishes reports of condition at least annually, pursuant to law
or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 9.06 the combined capital and surplus of such
corporation shall be deemed to be its total equity capital (combined capital
and
surplus) as set forth in its most recent report of condition so published.
In
case at any time the Trustee shall cease to be eligible in accordance with
the
provisions of this Section 9.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.08.
The
Trustee may not be the Seller, an originator of any of the Mortgage Loans,
the
Master Servicer, a Servicer, the Depositor or an affiliate of the Depositor
unless the Trustee is in an institutional trust department of U.S. Bank National
Association.
Section
9.07 Insurance.
The
Trustee at its own expense, shall at all times maintain and keep in full force
and effect: (i) fidelity insurance, (ii) theft of documents insurance and (iii)
forgery insurance (which may be collectively satisfied by a “Financial
Institution Bond” and/or a “Bankers’ Blanket Bond”). All such insurance shall be
in amounts, with standard coverage and subject to deductibles, as are customary
for insurance typically maintained by banks or their affiliates which act as
custodians for investor-owned mortgage pools. A certificate of an officer of
the
Trustee as to the Trustee’s compliance with this Section 9.07 shall be furnished
to any Certificateholder upon reasonable written request.
Section
9.08 Resignation
and Removal of the Trustee.
(a) The
Trustee may at any time resign and be discharged from the Trust hereby created
by giving written notice thereof to the Depositor, the Seller and the Master
Servicer, with a copy to the Rating Agencies. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered
to
each of the resigning trustee and the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any
court of competent jurisdiction for the appointment of a successor
trustee.
(b) If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 9.06 and shall fail to resign after written request therefor by the
Depositor or if at any time the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee, or
of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee, or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Depositor shall promptly
remove the Trustee, and appoint a successor Trustee, by written instrument,
in
triplicate, one copy of which instrument shall be delivered to the Trustee,
so
removed, the successor Trustee.
(c) The
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 51% of the portion of the Trust Fund related to such Certificates,
may at any time remove the Trustee and appoint a successor Trustee for the
related Trust Fund by written instrument or instruments, in quadruplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Depositor, and the Trustee
so
removed and the successor so appointed. In the event that the Trustee is removed
by the Holders of Certificates in accordance with this Section 9.08(c), the
Holders of such Certificates shall be responsible for paying any compensation
payable to a successor Trustee, in excess of the amount paid to the predecessor
Trustee.
(d) No
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 9.08 shall become effective
except upon appointment of and acceptance of such appointment by the successor
Trustee as provided in Section 9.09.
Section
9.09 Successor
Trustee.
(a) Any
successor Trustee appointed as provided in Section 9.08 shall execute,
acknowledge and deliver to the Depositor and to its predecessor Trustee an
instrument accepting such appointment hereunder. The resignation or removal
of
the predecessor Trustee shall then become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with
all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee herein. The predecessor Trustee
shall after payment of its outstanding fees and expenses promptly deliver to
the
successor Trustee all assets and records of the Trust held by it hereunder,
and
the Depositor and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee, all such
rights, powers, duties and obligations.
(b) No
successor Trustee shall accept appointment as provided in this Section 9.09
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 9.06.
(c) Upon
acceptance of appointment by a successor trustee as provided in this Section
9.09, the successor trustee shall mail notice of the succession of such trustee
hereunder to all Certificateholders at their addresses as shown in the
Certificate Register and to the Rating Agencies. The Depositor shall cause
such
notice to be mailed at the expense of the Trust Fund.
Section
9.10 Merger
or Consolidation of Trustee.
Any
state
bank or trust company or national banking association into which the Trustee
may
be merged or converted or with which it may be consolidated or any state bank
or
trust company or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any state
bank or trust company or national banking association succeeding to all or
substantially all of the corporate trust business of the Trustee shall be the
successor of the Trustee hereunder, provided such state bank or trust company
or
national banking association shall be eligible under the provisions of Section
9.06. Such succession shall be valid 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.
Section
9.11 Appointment
of Co-Trustee or Separate Trustee.
(a) Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust or property
constituting the same may at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee and the
Depositor to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust, and
to
vest in such Person or Persons, in such capacity, such title to the Trust,
or
any part thereof, and, subject to the other provisions of this Section 9.11,
such powers, duties, obligations, rights and trusts as the Depositor and the
Trustee may consider necessary or desirable.
(b) If
the
Depositor shall not have joined in such appointment within 15 days after the
receipt by it of a written request so to do, the Trustee shall have the power
to
make such appointment without the Depositor.
(c) No
co-trustee or separate trustee hereunder shall be required to meet the terms
of
eligibility as a successor Trustee under Section 9.06 hereunder and no notice
to
Certificateholders of the appointment of co-trustee(s) or separate trustee(s)
shall be required under Section 9.08 hereof.
(d) In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 9.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee and required to be conferred on such co-trustee shall be
conferred or imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly, except to the extent that under any
law
of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts,
in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust or any portion thereof in any such jurisdiction) shall
be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
(e) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
IX.
Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(f) To
the
extent not prohibited by law, any separate trustee or co-trustee may, at any
time, request the Trustee, its agent or attorney-in-fact, with full power and
authority, to do any lawful act under or with respect to this Agreement on
its
behalf and in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties
rights, remedies and trusts shall vest in and be exercised by the Trustee,
to
the extent permitted by law, without the appointment of a new or successor
Trustee.
(g) No
trustee under this Agreement shall be personally liable by reason of any act
or
omission of another trustee under this Agreement. The Depositor and the Trustee
acting jointly may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Section
9.12 Federal
Information Returns and Reports to Certificateholders; REMIC
Administration.
(a) For
federal income tax purposes, the taxable year of each REMIC shall be a calendar
year and the Trustee shall maintain or cause the maintenance of the books of
each such REMIC on the accrual method of accounting.
(b) The
Trustee shall prepare, sign and file or cause to be filed with the Internal
Revenue Service federal tax information returns or elections required to be
made
hereunder with respect to each REMIC, each Trust Fund, if applicable, and the
Certificates containing such information and at the times and in the manner
as
may be required by the Code or applicable Treasury regulations, and shall
furnish to each Holder of Certificates at any time during the calendar year
for
which such returns or reports are made such statements or information at the
times and in the manner as may be required thereby, including, without
limitation, reports relating to interest, original issue discount and market
discount or premium (using a constant prepayment assumption of 300% PSA as
described in the prospectus supplement relating to the Offered Certificates).
The Trustee will apply for an Employee Identification Number from the Internal
Revenue Service under Form SS-4 or any other acceptable method for all tax
entities. In connection with the foregoing, the Trustee shall timely prepare,
file and sign, Internal Revenue Service Form 8811, which shall provide the
name
and address of the person who can be contacted to obtain information required
to
be reported to the holders of regular interests in each REMIC (the “REMIC
Reporting Agent”). The Trustee shall make elections to treat each REMIC as a
REMIC (which elections shall apply to the taxable period ending December 31,
2006 and each calendar year thereafter) in such manner as the Code or applicable
Treasury regulations may prescribe, and as described by the Trustee. The Trustee
shall sign all tax information returns filed pursuant to this Section and any
other returns as may be required by the Code. The Holder of the Class R-1
Certificate is hereby designated as the “Tax Matters Person” (within the meaning
of Treasury Regulation Section 1.860F-4(d)) for REMIC I, the Holder of the
Class
R-2 Certificate is hereby designated as the “Tax Matters Person” for REMIC II,
and the Holder of the Class R-3 Certificate is hereby designated as the “Tax
Matters Person” for REMIC III. The Trustee is hereby designated and appointed as
the agent of each such Tax Matters Person. Any Holder of a Residual Certificate
will by acceptance thereof appoint the Trustee as agent and attorney-in-fact
for
the purpose of acting as Tax Matters Person for each REMIC during such time
as
the Trustee does not own any such Residual Certificate. In the event that the
Code or applicable Treasury regulations prohibit the Trustee from signing tax
or
information returns or other statements, or the Trustee from acting as agent
for
the Tax Matters Person, the Trustee shall take whatever action that in their
sole good faith judgment is necessary for the proper filing of such information
returns or for the provision of a Tax Matters Person, including designation
of
the Holder of a Residual Certificate to sign such returns or act as Tax Matters
Person. Each Holder of a Residual Certificate shall be bound by this
Section.
(c) The
Trustee shall provide upon request and receipt of reasonable compensation such
information as required in Section 860D(a)(6)(B) of the Code to the Internal
Revenue Service, to any Person purporting to transfer a Residual Certificate
to
a Person other than a transferee permitted by Section 5.05(b), and to any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate, organization described in Section 1381 of the Code,
or nominee holding an interest in a pass-through entity described in Section
860E(e)(6) of the Code, any record holder of which is not a transferee permitted
by Section 5.05(b) (or which is deemed by statute to be an entity with a
disqualified member).
(d) The
Trustee shall prepare, sign and file or cause to be filed any state income
tax
returns required under Applicable State Law with respect to each REMIC or the
Trust Fund.
(e) Notwithstanding
any other provision of this Agreement, the Trustee shall comply with all federal
withholding requirements respecting payments to Certificateholders of interest,
original issue discount or principal on the Certificates that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event
the
Trustee withholds any amount from payments of interest, original issue discount
or principal or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall, together with its monthly report
to
such Certificateholders, indicate such amount withheld.
(f) The
Trustee agrees to indemnify the Trust Fund and the Depositor for any taxes
and
costs including, without limitation, any reasonable attorneys fees imposed
on or
incurred by such Trust Fund, the Depositor or the Master Servicer, as a result
of a breach of the Trustee’s covenants set forth in this Section 9.12; provided,
however, such liability and obligation to indemnify in this paragraph shall
not
be joint and several, and the Trustee shall not be liable or be obligated to
indemnify the Trust Fund for the failure by the other to perform any duty under
this Agreement or the breach by the other of any covenant in this
Agreement.
ARTICLE
X
Termination
Section
10.01 Termination
Upon Repurchase by the Depositor or its Designee or Liquidation of the Mortgage
Loans.
(a) Subject
to Section 10.03, the respective obligations and responsibilities of the
Depositor, the Trustee and the Master Servicer created hereby with respect
to
the Trust Fund and the related Certificates, other than the obligation of the
Trustee to make payments to related Certificateholders as hereinafter set forth
and the indemnification obligations under Section 7.03 hereof, shall terminate
upon:
(i) the
repurchase by or at the direction of the Depositor or its designee of all of
the
Mortgage Loans and all related REO Property remaining at a price (in each case,
the “Termination Purchase Price”) equal to the sum of (a) 100% of the
Outstanding Principal Balance of each such Mortgage Loan (other than a Mortgage
Loan related to REO Property) as of the date of repurchase, net of the principal
portion of any unreimbursed Monthly Advances made by the purchaser, together
with interest at the applicable Mortgage Interest Rate accrued but unpaid to,
but not including, the first day of the month of repurchase, (b) the appraised
value of any related REO Property, less the good faith estimate of the Depositor
of liquidation expenses to be incurred in connection with its disposal thereof
(but not more than the Outstanding Principal Balance of the related Mortgage
Loan, together with interest at the applicable Mortgage Interest Rate accrued
on
that balance but unpaid to, but not including, the first day of the month of
repurchase), such appraisal to be calculated by an appraiser mutually agreed
upon by the Depositor and the Trustee at the expense of the Depositor, (c)
unreimbursed out-of pocket costs of the Master Servicer, including unreimbursed
servicing advances and the principal portion of any unreimbursed Monthly
Advances, made on the Mortgage Loans prior to the exercise of such repurchase
right and (d) any unreimbursed costs and expenses of the Trustee payable
pursuant to Section 9.05 and to the Custodian pursuant to the Custodial
Agreement; or
(ii) the
later
of the making of the final payment or other liquidation, or any advance with
respect thereto, of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property acquired with respect to any Mortgage Loan;
provided, however, that in the event that an advance has been made, but not
yet
recovered, at the time of such termination, the Person having made such advance
shall be entitled to receive, notwithstanding such termination, any payments
received subsequent thereto with respect to which such advance was made;
or
(iii) the
payment to the Certificateholders of all amounts required to be paid to them
pursuant to this Agreement.
(b) In
no
event, however, shall the portion of the Trust Fund created hereby continue
beyond the earlier of (i) the “latest possible maturity date” specified in
Section 5.01(d) or (ii) the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the
United States to the Court of St. James’s, living on the date of this
Agreement.
(c) The
right
of the Depositor or its designee to repurchase all the assets of the Trust
Fund
as described in Subsection 10.01(a)(i) above shall be exercisable only if (i)
the aggregate Scheduled Principal Balance of the Mortgage Loans in Loan at
the
time of any such repurchase is less than 10% of the Cut-Off Date Balance, and
the or (ii) the Depositor, based upon an Opinion of Counsel addressed to the
Depositor and the Trustee, has determined that the REMIC status of REMIC I,
REMIC II or REMIC III has been lost or that a substantial risk exists that
such
REMIC status will be lost for the then-current taxable year. At any time
thereafter, in the case of (i) or (ii) above, the Depositor may elect to
terminate REMIC I, REMIC II or REMIC III at any time, and upon such election,
the Depositor or its designee, shall repurchase all the assets of the Trust
Fund
described in Subsection 10.01(a)(i) above.
(d) The
Trustee shall give notice of any termination to the Certificateholders, with
a
copy to the Master Servicer and the Rating Agencies, upon which the
Certificateholders shall surrender their Certificates to the Trustee for payment
of the final distribution and cancellation. Such notice shall be given by
letter, mailed not earlier than the l5th day and not later than the 25th day
of
the month next preceding the month of such final distribution, and shall specify
(i) the Distribution Date upon which final payment of the related Certificates
will be made upon presentation and surrender of the related Certificates at
the
office of the Trustee therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the related Certificates at the office of the Trustee therein
specified.
(e) If
the
option of the Depositor to repurchase or cause the repurchase of all the assets
in the Trust Fund as described in Subsection 10.01(a)(i) above, is exercised,
the Depositor and/or its designee shall deliver to the Trustee for deposit
in
the Distribution Account, by the Business Day prior to the applicable
Distribution Date, an amount equal to the related Termination Purchase Price.
Upon presentation and surrender of the related Certificates by the related
Certificateholders, the Trustee shall distribute to such Certificateholders
an
amount determined as follows: with respect to each related Certificate (other
than the Interest Only Certificates), the outstanding Current Principal Amount,
plus with respect to each such Certificate, one month’s interest thereon at the
applicable Pass-Through Rate; and with respect to the Class R Certificates,
the
percentage interest evidenced thereby multiplied by the difference, if any,
between the above described repurchase price and the aggregate amount to be
distributed to the Holders of the Certificates (other than the Class R
Certificates). If the proceeds with respect to the related Mortgage Loans are
not sufficient to pay all of the related Senior Certificates in full, any such
deficiency shall be allocated first, to the related Subordinate Certificates,
in
inverse order of their numerical designations and then to the related Senior
Certificates on a pro rata basis. Upon deposit of the related Termination
Purchase Price and following such final Distribution Date, the Trustee shall
release promptly to the Depositor and/or its designee the related Mortgage
Files
for the remaining Mortgage Loans, and the related portions of the Accounts
with
respect thereto shall terminate, subject to the Trustee’s obligation to hold any
amounts payable to the related Certificateholders in trust without interest
pending final distributions pursuant to Subsection 10.01(g). Any other amounts
remaining in the Accounts will belong to the Depositor.
(f) In
the
event that this Agreement is terminated by reason of the payment or liquidation
of all Mortgage Loans or the disposition of all property acquired with respect
to all Mortgage Loans under Subsection 10.01(a)(ii) above, the Master Servicer
shall deliver to the Trustee for deposit in the Distribution Account all
distributable amounts remaining in the Master Servicer Collection Account.
Upon
the presentation and surrender of the related Certificates, the Trustee shall
distribute to the remaining related Certificateholders, pursuant to the written
direction of the Trustee and in accordance with their respective interests,
all
related distributable amounts remaining in the Distribution Account. Upon
deposit by the Master Servicer of such distributable amounts, and following
such
final Distribution Date, the Paying Agent shall release promptly to the
Depositor or its designee the related Mortgage Files for the remaining Mortgage
Loans, and the In the event that this Agreement is terminated by reason of
the
payment or liquidation of all Mortgage Loans or the disposition of all property
acquired with respect to all Mortgage Loans under Subsection 10.01(a)(ii) above,
the Master Servicer shall deliver to the Trustee for deposit in the Distribution
Account all distributable amounts remaining in the Master Servicer Collection
Account and the Distribution Account shall terminate, subject to the Paying
Agent’s obligation to hold any amounts payable to the related Certificateholders
in trust without interest pending final distributions pursuant to this
Subsection 10.01(f).
(g) If
not
all of the Certificateholders shall surrender their Certificates for
cancellation within six months after the time specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice, not all the related Certificates shall have been surrendered
for
cancellation, the Trustee may take appropriate steps, or appoint any agent
to
take appropriate steps, to contact the related remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets which remain subject to this
Agreement.
Section
10.02 [Reserved].
Section
10.03 Additional
Termination Requirements with respect to the Certificates.
(a) If
the
option of the Depositor to repurchase all of the Mortgage Loans and related
properties under Subsection 10.01(a)(i) above is exercised, the Trust Fund
and
each REMIC shall be terminated in accordance with the following additional
requirements, unless the Trustee has been furnished with an Opinion of Counsel
addressed to the Trustee to the effect that the failure of the Trust to comply
with the requirements of this Section 10.03 will not (i) result in the
imposition of taxes on “prohibited transactions” as defined in Section 860F of
the Code on any REMIC or (ii) cause any REMIC to fail to qualify as a REMIC
at
any time that any Certificates are outstanding:
(i) The
Depositor shall establish a 90-day liquidation period and notify the Trustee
thereof, and the Trustee shall in turn specify the first day of such period
in a
statement attached to the tax return for each of REMIC I, REMIC II and REMIC
III
pursuant to Treasury Regulation Section 1.860F-1. The Depositor shall satisfy
all the requirements of a qualified liquidation under Section 860F of the Code
and any regulations thereunder, as evidenced by an Opinion of Counsel addressed
to the Trustee obtained at the expense of the Depositor;
(ii) During
such 90-day liquidation period, and at or prior to the time of making the final
payment on the Certificates, the Trustee shall sell all of the assets of REMIC
I
for cash; and
(iii) At
the
time of the making of the final payment on the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the Holders
of
the Residual Certificates all cash on hand (other than cash retained to meet
claims), and REMIC I shall terminate at that time.
(b) By
their
acceptance of the Certificates, the Holders thereof hereby authorize the
adoption of a 90-day liquidation period and the adoption of a plan of complete
liquidation for REMIC I, REMIC II and REMIC III, which authorization shall
be
binding upon all successor Certificateholders.
(c) The
Trustee as agent for each REMIC hereby agrees to adopt and sign such a plan
of
complete liquidation meeting the requirements for a qualified liquidation under
Section 860F of the Code and any regulations thereunder upon the written request
of the Depositor and the receipt of the Opinion of Counsel referred to in clause
(a)(i) above and to take such other action in connection therewith as may be
reasonably requested by the Depositor.
ARTICLE
XI
Miscellaneous
Provisions
Section
11.01 Intent
of Parties.
The
parties intend that each of REMIC I, REMIC II and REMIC III shall be treated
as
a REMIC for federal income tax purposes and that the provisions of this
Agreement should be construed in furtherance of this intent.
Section
11.02 Amendment.
(a) This
Agreement may be amended from time to time by the Depositor, the Master Servicer
and the Trustee, but without notice to or the consent of any of the related
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions herein or therein that may be defective or inconsistent with any
other provisions herein or therein, to comply with any changes in the Code,
to
revise any provision to reflect the obligations of the parties to this Agreement
as they relate to Regulation AB or to make any other provisions with respect
to
matters or questions arising under this Agreement which shall not be
inconsistent with the provisions of this Agreement; provided, however, that
such
action shall not, as evidenced by an Opinion of Counsel, addressed to the
Trustee, adversely affect in any material respect the interests of any related
Certificateholder or cause any REMIC to fail to qualify as a REMIC for federal
income tax purposes as evidenced by an Opinion of Counsel addressed to the
Trustee but not at the Trustee’s expense.
(b) With
respect to the Certificates, this Agreement may also be amended from time to
time by the Master Servicer, the Depositor and the Trustee, and the Holders
of
Certificates evidencing Fractional Undivided Interests aggregating not less
than
51% of the applicable Class or Classes, if such amendment affects only such
Class or Classes, for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of this Agreement or of modifying
in
any manner the rights of the related Certificateholders; provided, however,
that
no such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders
of
which are required to consent to any such amendment, without the consent of
the
Holders of all Certificates then outstanding, or (iii) cause any related REMIC
to fail to qualify as a REMIC for federal income tax purposes, as evidenced
by
an Opinion of Counsel addressed to the Trustee which shall be provided to the
Trustee other than at the Trustee’s expense. Notwithstanding any other provision
of this Agreement, for purposes of giving or withholding of consents pursuant
to
this first paragraph of Section 11.02(b), Certificates registered in the name
of
or held for the benefit of the Depositor, the Master Servicer, or the Trustee
or
any Affiliate thereof shall be entitled to vote their Fractional Undivided
Interests with respect to matters affecting such Certificates.
(c) Promptly
after the execution of any such amendment, the Trustee shall furnish a copy
of
such amendment or written notification of the substance of such amendment to
each related Certificateholder, with a copy to the Rating Agencies.
(d) In
the
case of an amendment under Subsection 11.02(b) above, it shall not be necessary
for the related Certificateholders to approve the particular form of such an
amendment. Rather, it shall be sufficient if the related Certificateholders
approve the substance of the amendment. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by related
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(e) Prior
to
the execution of any amendment to this Agreement, the Trustee shall be entitled
to receive and rely upon an Opinion of Counsel addressed to the Trustee stating
that the execution of such amendment is authorized or permitted by this
Agreement. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee’s own rights, duties or immunities under
this Agreement.
Section
11.03 Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere.
The Depositor shall effect such recordation, at the expense of the Trust upon
the request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
Section
11.04 Limitation
on Rights of Certificateholders.
(a) The
death
or incapacity of any Certificateholder shall not terminate this Agreement or
the
Trust, nor entitle such Certificateholder’s legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
(b) Except
as
expressly provided in this Agreement, no Certificateholders shall have any
right
to vote or in any manner otherwise control the operation and management of
the
Trust, or the obligations of the parties hereto, nor shall anything herein
set
forth, or contained in the terms of the Certificates, be construed so as to
establish the Certificateholders from time to time as partners or members of
an
association; nor shall any Certificateholders be under any liability to any
third Person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(c) No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon,
under or with respect to this Agreement against the Depositor, the Trustee,
the
Master Servicer or any successor to any such parties unless (i) such
Certificateholder previously shall have given to the Trustee a written notice
of
a continuing default, as herein provided, (ii) the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of
the
Trust Fund shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against
the
costs and expenses and liabilities to be incurred therein or thereby, and (iii)
the Trustee, for 60 days after its receipt of such notice, request and offer
of
indemnity, shall have neglected or refused to institute any such action, suit
or
proceeding.
(d) No
one or
more Certificateholders shall have any right by virtue of any provision of
this
Agreement to affect the rights of any other Certificateholders or to obtain
or
seek to obtain priority or preference over any other such Certificateholder,
or
to enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all Certificateholders. For
the
protection and enforcement of the provisions of this Section 11.04, each and
every Certificateholder and the Trustee shall be entitled to such relief as
can
be given either at law or in equity.
Section
11.05 Acts
of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Certificateholders
may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent duly appointed
in writing. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is expressly required, to the Depositor. Proof of
execution of any such instrument or of a writing appointing any such agent
shall
be sufficient for any purpose of this Agreement and conclusive in favor of
the
Trustee and the Depositor, if made in the manner provided in this Section
11.05.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by a certificate
of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his or her individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his or her authority.
The
fact and date of the execution of any such instrument or writing, or the
authority of the individual executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The
ownership of Certificates (notwithstanding any notation of ownership or other
writing on such Certificates, except an endorsement in accordance with Section
5.02 made on a Certificate presented in accordance with Section 5.04) shall
be
proved by the Certificate Register, and neither the Trustee, the Depositor,
the
Master Servicer nor any successor to any such parties shall be affected by
any
notice to the contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action of the holder of any Certificate shall bind every future holder of the
same Certificate and the holder of every Certificate issued upon the
registration of transfer or exchange thereof, if applicable, or in lieu thereof
with respect to anything done, omitted or suffered to be done by the Trustee,
the Depositor, the Master Servicer or any successor to any such party in
reliance thereon, whether or not notation of such action is made upon such
Certificates.
(e) In
determining whether the Holders of the requisite percentage of Certificates
evidencing Fractional Undivided Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Trustee, the Depositor, the Master Servicer or any Affiliate
thereof shall be disregarded, except as otherwise provided in Section 11.02(b)
and except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Certificates which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Certificates which have been
pledged in good faith to the Trustee, the Depositor, the Master Servicer or
any
Affiliate thereof may be regarded as outstanding if the pledgor establishes
to
the satisfaction of the Trustee the pledgor’s right to act with respect to such
Certificates and that the pledgor is not an Affiliate of the Trustee, the
Depositor, or the Master Servicer, as the case may be.
Section
11.06 Governing
Law.
THIS
AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS RULES (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, WHICH THE PARTIES HERETO
EXPRESSLY RELY UPON IN THE CHOICE OF SUCH LAW AS THE GOVERNING LAW HEREUNDER)
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
11.07 Notices.
All
demands and notices hereunder shall be in writing and shall be deemed given
when
delivered at (including delivery by facsimile) or mailed by registered mail,
return receipt requested, postage prepaid, or by recognized overnight courier,
to (i) in the case of the Depositor, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Vice President-Servicing, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇,
or to such other address as may hereafter be furnished to the other parties
hereto in writing; (ii) in the case of the Trustee, at its Corporate Trust
Office, or such other address as may hereafter be furnished to the other parties
hereto in writing; (iii) in the case of the Seller, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: President or General Counsel, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as may hereafter be furnished
to the other parties hereto in writing; (iv) in the case of the Master Servicer,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, or to
such
other address as may hereafter be furnished to the other parties hereto in
writing, and (v) in the case of the Rating Agencies, ▇▇▇▇▇’▇ Investors Service,
Inc, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, , and Standard & Poor’s, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇
▇▇▇▇▇, or such other address as may be hereafter furnished to the Depositor,
Trustee and Master Servicer in writing by Fitch or Standard & Poor’s. Any
notice delivered to the Depositor, the Master Servicer or the Trustee under
this
Agreement shall be effective only upon receipt. Any notice required or permitted
to be mailed to a Certificateholder, unless otherwise provided herein, shall
be
given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed
to
have been duly given when mailed, whether or not the Certificateholder receives
such notice.
Section
11.08 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 severed from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the holders thereof.
Section
11.09 Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto.
Section
11.10 Article
and Section Headings.
The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
Section
11.11 Counterparts.
This
Agreement may be executed in two or more counterparts each of which when so
executed and delivered shall be an original but all of which together shall
constitute one and the same instrument.
Section
11.12 Notice
to Rating Agencies.
The
article and section headings herein are for convenience of reference only,
and
shall not limited or otherwise affect the meaning hereof. The Trustee shall
promptly provide notice to each Rating Agency with respect to each of the
following of which a Responsible Officer of the Trustee has actual
knowledge:
1. Any
material change or amendment to this Agreement or the Servicing
Agreements;
2. The
occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of the Master Servicer or the Trustee;
4. The
repurchase or substitution of Mortgage Loans;
5. The
final
payment to Certificateholders; and
6. Any
change in the location of the In the event that this Agreement is terminated
by
reason of the payment or liquidation of all Mortgage Loans or the disposition
of
all property acquired with respect to all Mortgage Loans under Subsection
10.01(a)(ii) above, the Master Servicer shall deliver to the Trustee for deposit
in the Distribution Account all distributable amounts remaining in the Master
Servicer Collection Account or the Distribution Account.
IN
WITNESS WHEREOF, the Depositor, the Trustee and the Master Servicer have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC., as Depositor
|
||||||
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
|||||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
|||||
|
Title:
|
Vice
President
|
|||||
|
U.S.
BANK NATIONAL ASSOCIATION, as Trustee
|
||||||
|
By:
|
/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|||||
|
Name:
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
|||||
|
Title:
|
Assistant
Vice President
|
|||||
|
EMC
MORTGAGE CORPORATION, as Master Servicer and Seller
|
||||||
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||||
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
|||||
|
Title:
|
Assistant
Secretary
|
|||||
Accepted
and Agreed as to
Sections
2.01, 2.02, 2.03, 2.04 and 9.09(c)
in
its
capacity as Seller
EMC
MORTGAGE CORPORATION
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇▇▇▇
|
|
Title:
|
Senior
Vice President
|
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
the
30th day of November, 2006 before me, a notary public in and for said State,
personally appeared ___________________, known to me to be a
_______________________ of Structured Asset Mortgage Investments II Inc., the
corporation that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
30th day of November, 2006 before me, a notary public in and for said State,
personally appeared ____________, known to me to be a ____________ of U.S.
Bank
National Association, the entity that executed the within instrument, and also
known to me to be the person who executed it on behalf of said entity, and
acknowledged to me that such entity executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF TEXAS
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF DALLAS
|
)
|
On
the
30th day of November, 2006 before me, a notary public in and for said State,
personally appeared _______________, known to me to be a __________________
of
EMC Mortgage Corporation, the corporation that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF TEXAS
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF DALLAS
|
)
|
On
the
30th day of November, 2006 before me, a notary public in and for said State,
personally appeared ____________, known to me to be ____________ of EMC Mortgage
Corporation, the corporation that executed the within instrument, and also
known
to me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
EXHIBIT
A-1
FORM
OF CLASS [_]-A[_]-[_] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
[THE
CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL
PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY, FOLLOWING
THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT WILL BE MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No.1
|
[Adjustable
Pass-Through Rate][Pass-Through Rate: [___]%]
|
|
Class
[_]-[A][_]-[_] Senior
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date:
November
1, 2006
|
Aggregate
Initial [Current Principal][Notional] Amount of this Senior Certificate
as
of the Cut-off Date:
$[_____________]
|
|
First
Distribution Date:
December
26, 2006
|
Initial
[Current Principal][Notional] Amount of this Senior Certificate as
of the
Cut-off Date: $[_____________]
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[____________]
|
|
Assumed
Final Distribution Date:
[_________]
|
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-2
evidencing
a fractional undivided interest in the distributions allocable to the Class
[_]-[A][_]-[_] Certificates with respect to a portion of a Trust Fund consisting
primarily of a pool of fixed rate mortgage loans secured by first liens on
one-to-four family residential properties sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured
Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This
certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a portion of a trust
(the
“Trust Fund”) primarily consisting of fixed rate mortgage loans secured by first
liens on one- to four- family residential properties (collectively, the
“Mortgage Loans”) sold by Structured Asset Mortgage Investments II Inc. (“▇▇▇▇
▇▇”). The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇
▇▇. EMC will act as master servicer of the Mortgage Loans (the “Master
Servicer”, which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”), among EMC Mortgage Corporation, as seller (the “Seller”) and
master servicer, ▇▇▇▇ ▇▇, as depositor (the “Depositor”) and U.S. Bank National
Association as trustee (the “Trustee”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
[Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Current Principal
Amount hereof at a per annum rate equal to the Pass-Through Rate set forth
above
and as further described in the Agreement. The Trustee will distribute on the
25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a “Distribution Date”), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of
the calendar month preceding the month of such Distribution Date, an amount
equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to
be
distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date in
the
month immediately following the month of the latest scheduled maturity date
of
any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to
zero.]
[Interest
on this Certificate will accrue from and including the 25th day of the calendar
month preceding the month in which a Distribution Date (as hereinafter defined)
occurs to and including the 24th day of the calendar month in which that
Distribution Date occurs on the [Current Principal][Notional] Amount hereof
at a
per annum rate equal to the Pass-Through Rate set forth above and as further
described in the Agreement. The Trustee will distribute on the 25th day of
each
month, or, if such 25th day is not a Business Day, the immediately following
Business Day (each, a “Distribution Date”), commencing on the First Distribution
Date specified above, to the Person in whose name this Certificate is registered
at the close of business on the Business Day immediately preceding such
Distribution Date, an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest [and
principal], if any) required to be distributed to the Holders of Certificates
of
the same Class as this Certificate. The Assumed Final Distribution Date is
the
Distribution Date in the month immediately following the month of the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date
on
which the [Current Principal][Notional] Amount of this Class of Certificates
will be reduced to zero. [The Class [_]-A[_]-[_] Certificates have no Current
Principal Amount.]]
Distributions
on this Certificate will be made by the Trustee by check mailed to the address
of the Person entitled thereto as such name and address shall appear on the
Certificate Register or, if such Person so requests by notifying the Trustee
in
writing as specified in the Agreement by wire transfer. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Trustee for that purpose and designated in such notice. The Initial [Current
Principal][Notional] Amount of this Certificate is set forth above. [The Current
Principal Amount hereof will be reduced to the extent of distributions allocable
to principal hereon and any Realized Losses allocable hereto.]
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, and with the consent of the Insurer with respect to
amendments related to the Mortgage Pass-Through Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion
of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Trustee upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee for such purposes, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued
to
the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
November 30,
2006
U.S.
BANK
NATIONAL ASSOCIATION,
Not
in
its individual capacity but solely as Trustee
By:
________________________________
Authorized
Signatory
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [_]-A[_]-[_] Certificates referred to in the within-mentioned
Agreement.
U.S.
BANK
NATIONAL ASSOCIATION,
Authorized
signatory of U.S. Bank National Association,
not
in
its individual capacity but solely as Trustee
By:
________________________________
Authorized
Signatory
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address
|
Dated:
|
__________________________________________
|
Signature
by or on behalf of assignor
__________________________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_________________________________ for the account of _________________________
account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This
information is provided by __________________,
the assignee named above, or ________________________, as its
agent.
EXHIBIT
A-2
FORM
OF CLASS B-[_] CERTIFICATE
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
[AND
THE CLASS B-[_] CERTIFICATES], AS DESCRIBED IN THE AGREEMENT (AS DEFINED
BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
THE
CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL
PAYMENTS HEREON AND ANY REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY, FOLLOWING
THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL BE MADE TO CEDE & CO. ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[For
the Class B-1, Class B-2, Class B-3 and Class BX Certificates] [EACH BENEFICIAL
OWNER OF THIS CERTIFICATE OR ANY INTEREST HEREIN SHALL BE DEEMED TO HAVE
REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF THIS CERTIFICATE OR
INTEREST HEREIN, THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT
TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED OR SECTION
4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (“PLAN”), OR INVESTING WITH
ASSETS OF A PLAN OR (II) IT HAS ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN
RELIANCE ON PROHIBITED TRANSACTION EXEMPTION 90-30, AS AMENDED FROM TIME TO
TIME
(“EXEMPTION”), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE
AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THE CERTIFICATE MUST BE RATED,
AT
THE TIME OF PURCHASE, NOT LOWER THAN “BBB-“ (OR ITS EQUIVALENT) BY STANDARD
& POOR’S, FITCH, INC. OR ▇▇▇▇▇’▇ INVESTORS SERVICE, INC., AND THE
CERTIFICATE IS SO RATED OR (III) (1) IT IS AN INSURANCE COMPANY, (2) THE SOURCE
OF FUNDS USED TO ACQUIRE OR HOLD THE CERTIFICATE OR INTEREST HEREIN IS AN
“INSURANCE COMPANY GENERAL ACCOUNT”, AS SUCH TERM IS DEFINED IN PROHIBITED
TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60, AND (3) THE CONDITIONS IN SECTIONS I
AND III OF PTCE 95-60 HAVE BEEN SATISFIED.]
[THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE
FORM
PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES
AND
ANY OTHER APPLICABLE JURISDICTION.]
[For
the Class B-4, Class B-5 and Class B-6 Certificates] [THIS CERTIFICATE MAY
NOT
BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT
PLAN
OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE TRANSFEREE CERTIFIES
OR
REPRESENTS THAT THE PROPOSED TRANSFER AND HOLDING OF A CERTIFICATE AND THE
SERVICING, MANAGEMENT AND OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT
RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL
OR
CLASS PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO,
PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇,
▇▇▇▇ 95-60 OR PTCE 96-23 AND (II) WILL NOT GIVE RISE TO ANY ADDITIONAL
OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE MASTER SERVICER OR THE TRUSTEE,
WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR
A
GLOBAL CERTIFICATE OR UNLESS THE OPINION SPECIFIED IN SECTION 5.07 OF THE
AGREEMENT IS PROVIDED.]
|
Certificate
No.1
|
Variable
Pass-Through Rate
|
|
Class
B-[_]
Subordinate
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date: November 1,
2006
|
Aggregate
Initial Current Principal Amount of this Subordinate Certificate
as of the
Cut-off Date: $[_________]
|
|
First
Distribution Date:
December
26, 2006
|
Initial
Current Principal Amount of this Subordinate Certificate as of the
Cut-off
Date: $[_________]
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[____________]
|
|
Assumed
Final Distribution Date:
[____________]
|
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-2
evidencing
a fractional undivided interest in the distributions allocable to the Class
B-[_] Certificates with respect to a portion of a Trust Fund consisting
primarily of a pool of fixed rate mortgage loans secured by first liens on
one-to-four family residential properties sold by STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured
Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This
certifies that [_______] is the registered owner of the Fractional Undivided
Interest evidenced hereby in the beneficial ownership interest of Certificates
of the same Class as this Certificate in a portion of a trust (the “Trust Fund”)
primarily consisting of fixed rate mortgage loans secured by first liens on
one-
to four- family residential properties (collectively, the “Mortgage Loans”) sold
by Structured Asset Mortgage Investments II Inc. (“▇▇▇▇ ▇▇”). The Mortgage Loans
were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as master
servicer of the Mortgage Loans (the “Master Servicer”, which term includes any
successors thereto under the Agreement referred to below). The Trust Fund was
created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement”), among EMC as seller (the “Seller”) and
master servicer, ▇▇▇▇ ▇▇, as depositor (the “Depositor”) and U.S. Bank National
Association as trustee (the “Trustee”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Current Principal
Amount hereof at a per annum rate equal to the Pass-Through Rate set forth
above
and as further described in the Agreement. The Trustee will distribute on the
25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a “Distribution Date”), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of
the calendar month preceding the month of such Distribution Date, an amount
equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to
be
distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date in
the
month immediately following the month of the latest scheduled maturity date
of
any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to
zero.
Distributions
on this Certificate will be made by the Trustee by check mailed to the address
of the Person entitled thereto as such name and address shall appear on the
Certificate Register or, if such Person so requests by notifying the Trustee
in
writing as specified in the Agreement by wire transfer. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Trustee for that purpose and designated in such notice. The Initial Current
Principal Amount of this Certificate is set forth above. The Current Principal
Amount hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
[No
transfer of this Class B-[_] Certificate will be made unless such transfer
is
(i) exempt from the registration requirements of the Securities act of 1933,
as
amended, and any applicable state securities laws or is made in accordance
with
said Act and laws and (ii) made in accordance with Section 5.02 of the
Agreement. In the event that such transfer is to be made the Trustee shall
register such transfer if, (i) made to a transferee who has provided the Trustee
with evidence as to its QIB status; or (ii) (A) the transferor has advised
the
Trustee in writing that the Certificate is being transferred to an Institutional
Accredited Investor and (B) prior to such transfer the transferee furnishes
to
the Trustee an Investment Letter; provided that if based upon an Opinion of
Counsel to the effect that (A) and (B) above are met sufficient to confirm
that
such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act and other
applicable laws.]
[For
the
Class B-1, Class B-2, Class B-3 and Class BX Certificates] [Each beneficial
owner of this Certificate or any interest herein shall be deemed to have
represented, by virtue of its acquisition or holding of this certificate or
interest herein, that either (i) it is not an employee benefit plan subject
to
the Employee Retirement Income Security Act of 1974, as amended or section
4975
of the Internal Revenue Code of 1986, as amended (“Plan”), or investing with
assets of a Plan or (ii) it has acquired and is holding such certificate in
reliance on Prohibited Transaction Exemption 90-30, as amended from time to
time
(“Exemption”), and that it understands that there are certain conditions to the
availability of the Exemption, including that the certificate must be rated,
at
the time of purchase, not lower than “BBB-“ (or its equivalent) by Standard
& Poor’s, Fitch, Inc. or ▇▇▇▇▇’▇ Investors Service, Inc., and the
certificate is so rated or (iii) (1) it is an insurance company, (2) the source
of funds used to acquire or hold the certificate or interest therein is an
“insurance company general account”, as such term is defined in Prohibited
Transaction Class Exemption (“PTCE”) 95-60, and (3) the conditions in Sections I
and III of PTCE 95-60 have been satisfied.]
[For
the
Class B-4, Class B-5 and Class B-6 Certificates] [This Certificate may not
be
acquired directly or indirectly by, or on behalf of, an employee benefit plan
or
other retirement arrangement which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended, unless the transferee certifies
or
represents that the proposed transfer and holding of a Certificate and the
servicing, management and operation of the trust and its assets: (i) will not
result in any prohibited transaction which is not covered under an individual
or
class prohibited transaction exemption, including, but not limited to,
Prohibited Transaction Class Exemption (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇,
▇▇▇▇ 95-60 or PTCE 96-23 and (ii) will not give rise to any additional
obligations on the part of the Depositor, the Master Servicer or the Trustee,
which will be deemed represented by an owner of a Book-Entry Certificate or
a
Global Certificate or unless the opinion specified in section 5.07 of the
Agreement is provided.]
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, and with the consent of the Insurer with respect to
amendments related to the Mortgage Pass-Through Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion
of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Trustee upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee for such purposes, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued
to
the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
November 30,
2006
U.S.
BANK
NATIONAL ASSOCIATION,
Not
in
its individual capacity but solely as Trustee
By:
_________________________________
Authorized
Signatory
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class B-[_] Certificates referred to in the within-mentioned
Agreement.
U.S.
BANK
NATIONAL ASSOCIATION,
Authorized
signatory of U.S. Bank National Association,
not
in
its individual capacity but solely as Trustee
By:
_________________________________
Authorized
Signatory
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address
|
Dated:
|
__________________________________________
|
Signature
by or on behalf of assignor
__________________________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_________________________________ for the account of _________________________
account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
______________________________________________.
This
information is provided by __________________,
the assignee named above, or ________________________, as its
agent.
EXHIBIT
A-3
FORM
OF CLASS PO CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
THE
CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL
PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY, FOLLOWING
THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT WILL BE MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No.1
|
Pass-Through
Rate: 0.000%
|
|
Class
PO Senior
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date:
November
1, 2006
|
Aggregate
Initial Current Principal Amount of this Senior Certificate as of
the
Cut-off Date:
$[_____________]
|
|
First
Distribution Date:
December
26, 2006
|
Initial
Current Principal Amount of this Senior Certificate as of the Cut-off
Date: $[_____________]
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[____________]
|
|
Assumed
Final Distribution Date:
[____________]
|
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-2
evidencing
a fractional undivided interest in the distributions allocable to the Class
PO
Certificates with respect to a portion of a Trust Fund consisting primarily
of a
pool of fixed rate mortgage loans secured by first liens on one-to-four family
residential properties sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II
INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured
Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This
certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a portion of a trust
(the
“Trust Fund”) primarily consisting of fixed rate mortgage loans secured by first
liens on one- to four- family residential properties (collectively, the
“Mortgage Loans”) sold by Structured Asset Mortgage Investments II Inc. (“▇▇▇▇
▇▇”). The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇
▇▇. EMC will act as master servicer of the Mortgage Loans (the “Master
Servicer”, which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”), among EMC Mortgage Corporation, as seller (the “Seller”) and
master servicer, ▇▇▇▇ ▇▇, as depositor (the “Depositor”) and U.S. Bank National
Association as trustee (the “Trustee”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
The
Trustee will distribute on the 25th day of each month, or, if such 25th day
is
not a Business Day, the immediately following Business Day (each, a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month
of
such Distribution Date, an amount equal to the product of the Fractional
Undivided Interest evidenced by this Certificate and the amount of principal
required to be distributed to the Holders of Certificates of the same Class
as
this Certificate. The Assumed Final Distribution Date is the Distribution Date
in the month immediately following the month of the latest scheduled maturity
date of any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to
zero.
Distributions
on this Certificate will be made by the Trustee by check mailed to the address
of the Person entitled thereto as such name and address shall appear on the
Certificate Register or, if such Person so requests by notifying the Trustee
in
writing as specified in the Agreement by wire transfer. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Trustee for that purpose and designated in such notice. The Initial Current
Principal Amount of this Certificate is set forth above. The Current Principal
Amount hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, and with the consent of the Insurer with respect to
amendments related to the Mortgage Pass-Through Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion
of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Trustee upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee for such purposes, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued
to
the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
November 30, 2006
U.S.
BANK
NATIONAL ASSOCIATION,
Not
in
its individual capacity but solely as Trustee
By:
_________________________________
Authorized
Signatory
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class PO Certificates referred to in the within-mentioned
Agreement.
U.S.
BANK
NATIONAL ASSOCIATION,
Authorized
signatory of U.S. Bank National Association,
not
in
its individual capacity but solely as Trustee
By:
_________________________________
Authorized
Signatory
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address
|
Dated:
|
__________________________________________
|
Signature
by or on behalf of assignor
__________________________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_________________________________ for the account of _________________________
account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This
information is provided by __________________,
the assignee named above, or ________________________, as its
agent.
EXHIBIT
A-4
FORM
OF CLASS R-[__] CERTIFICATE
THIS
CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON,
A
PUBLICLY TRADED PARTNERSHIP OR A DISQUALIFIED ORGANIZATION (AS DEFINED
BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “RESIDUAL
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
THIS
CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF,
AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE
PROPOSED TRANSFEREE PROVIDES THE TRUSTEE WITH AN OPINION OF COUNSEL ADDRESSED
TO
THE TRUSTEE, DEPOSITOR AND MASTER SERVICER AND ON WHICH THEY MAY RELY THAT
IS
SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OF CERTIFICATES ON BEHALF OF
SUCH
PERSON WILL NOT RESULT IN OR CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION,
IS
PERMISSIBLE UNDER APPLICABLE LAW AND WILL NOT GIVE RISE TO ANY ADDITIONAL
OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE MASTER SERVICER OR THE
TRUSTEE.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE THAT (1)
SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION
THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY
OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION
IF
ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE ▇▇▇▇▇▇▇ MAC, A
MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT),
(B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN
CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION
IS
SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED
BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL
ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE
CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING
HEREIN REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), OR (F) AN AGENT OF A
DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, (3) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE AND (4) SUCH TRANSFEREE IS A UNITED STATES PERSON. NOTWITHSTANDING
THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT
OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, SUCH REGISTRATION
SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL
NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER
OF
THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
|
Certificate
No.1
|
Pass-Through
Rate: _____%
|
|
Class
R-[__]
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date: November 1,
2006
|
Aggregate
Initial Current Principal Amount of this Certificate as of the Cut-off
Date:
$___________
|
|
First
Distribution Date:
December
26, 2006
|
Initial
Current Principal Amount of this Certificate as of the Cut-off Date:
$_________
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[_____________]
|
|
Assumed
Final Distribution Date:
[____________]
|
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-2
evidencing
a fractional undivided interest in the distributions allocable to the Class
R-[__] Certificates with respect to a portion of a Trust Fund (as defined below)
consisting primarily of a pool of fixed rate mortgage loans secured by first
liens on one-to-four family residential properties sold by STRUCTURED ASSET
MORTGAGE INVESTMENTS II INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured
Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This
certifies that Bear, ▇▇▇▇▇▇▇ Securities Corp. is the registered owner of the
Fractional Undivided Interest evidenced hereby in the beneficial ownership
interest of Certificates of the same Class as this Certificate in a portion
of a
trust (the “Trust Fund”) primarily consisting of fixed rate mortgage loans
secured by first liens on one- to four- family residential properties
(collectively, the “Mortgage Loans”) sold by Structured Asset Mortgage
Investments II Inc. (“▇▇▇▇ ▇▇”). The Mortgage Loans were sold by EMC Mortgage
Corporation (“EMC”) to ▇▇▇▇ ▇▇. EMC will act as master servicer of the Mortgage
Loans (the “Master Servicer”, which term includes any successors thereto under
the Agreement referred to below). The Trust Fund was created pursuant to the
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the “Agreement’), among ▇▇▇▇ ▇▇, as depositor (the “Depositor”), EMC, as seller
and master servicer and U.S. Bank National Association, as trustee (the
“Trustee”), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Current Principal
Amount hereof at a per annum rate equal to the Pass-Through Rate set forth
above
and as further described in the Agreement. The Trustee will distribute on the
25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a “Distribution Date”), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of
the calendar month preceding the month of such Distribution Date, an amount
equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to
be
distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date in
the
month immediately following the month of the latest scheduled maturity date
of
any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to
zero.
Distributions
on this Certificate will be made by the Trustee by check mailed to the address
of the Person entitled thereto as such name and address shall appear on the
Certificate Register or, if such Person so requests by notifying the Trustee
in
writing as specified in the Agreement by wire transfer. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Trustee for that purpose and designated in such notice. The Initial Current
Principal Amount of this Certificate is set forth above. The Current Principal
Amount hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions set forth in the Agreement to the effect that (i) each person
holding or acquiring any Ownership Interest in this Certificate must be a United
States Person and a Permitted Transferee, (ii) the transfer of any Ownership
Interest in this Certificate will be conditioned upon the delivery to ▇▇▇▇
▇▇
and the Trustee of, among other things, an affidavit to the effect that it
is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Depositor will have the right,
in
its sole discretion and without notice to the Holder of this Certificate, to
sell this Certificate to a purchaser selected by the Depositor, which purchaser
may be the Depositor, or any affiliate of the Depositor, on such terms and
conditions as the Depositor may choose.
This
certificate may not be acquired directly or indirectly by, or on behalf of,
an
employee benefit plan or other retirement arrangement which is subject to title
I of the Employee Retirement Income Security Act of 1974, as amended, and/or
section 4975 of the Internal Revenue Code of 1986, as amended, unless the
proposed transferee provides the Trustee with an opinion of counsel addressed
to
the Trustee and Master Servicer and on which they may rely (which shall not
be
at the expense of the Trustee or Master Servicer) which is acceptable to the
Trustee, that the purchase of this Certificate will not result in or constitute
a nonexempt prohibited transaction, is permissible under applicable law and
will
not give rise to any additional fiduciary obligations on the part of the
Depositor, the Master Servicer or the Trustee.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, and with the consent of the Insurer with respect to
amendments related to the Mortgage Pass-Through Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion
of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Trustee upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee for such purposes, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued
to
the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
November 30,
2006
U.S.
BANK
NATIONAL ASSOCIATION,
Not
in
its individual capacity but solely as Trustee
By:
_________________________________
Authorized
Signatory
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class R-[_] Certificates referred to in the within-mentioned
Agreement.
U.S.
BANK
NATIONAL ASSOCIATION,
Authorized
signatory of U.S. Bank National Association,
not
in
its individual capacity but solely as Trustee
By:
_________________________________
Authorized
Signatory
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address
|
Dated:
|
__________________________________________
|
Signature
by or on behalf of assignor
__________________________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_________________________________ for the account of _________________________
account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This
information is provided by __________________,
the assignee named above, or ________________________, as its
agent.
EXHIBIT
A-5
FORM
OF CLASS
X CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL BE MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No.1
|
Variable
Pass-Through Rate
|
|
Class
X Senior
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date:
November
30, 2006
|
Aggregate
Initial Notional Amount of this Senior Certificate as of the Cut-off
Date:
$[________]
|
|
First
Distribution Date:
December
26, 2006
|
Initial
Notional Amount of this Senior Certificate as of the Cut-off
Date:
$[________]
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[________]
|
|
Assumed
Final Distribution Date:
[________]
|
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-2
evidencing
a fractional undivided interest in the distributions allocable to the Class
X
Certificates with respect to a portion of a Trust Fund consisting primarily
of a
pool of fixed rate mortgage loans secured by first liens on one-to-four family
residential properties sold by STRUCTURED ASSET MORTGAGE INVESTMENTS II
INC.
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of the Structured
Asset Mortgage Investments II Inc., the Master Servicer or any of their
affiliates will have any obligation with respect to any certificate or other
obligation secured by or payable from payments on the Certificates.
This
certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a portion of a trust
(the
“Trust Fund”) primarily consisting of fixed rate mortgage loans secured by first
liens on one- to four- family residential properties (collectively, the
“Mortgage Loans”) sold by Structured Asset Mortgage Investments II Inc. (“▇▇▇▇
▇▇”). The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) to ▇▇▇▇
▇▇. EMC will act as master servicer of the Mortgage Loans (the “Master
Servicer”, which term includes any successors thereto under the Agreement
referred to below). The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
“Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Depositor”), EMC Mortgage
Corporation, as seller and master servicer, and U.S. Bank National Association,
as trustee (the “Trustee”), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein shall have the meaning ascribed to them in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is
bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Notional Amount hereof
at a per annum rate equal to the Pass-Through Rate set forth above and as
further described in the Agreement. The Trustee will distribute on the 25th
day
of each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a “Distribution Date”), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the calendar
month preceding the month of such Distribution Date, an amount equal to the
product of the Fractional Undivided Interest evidenced by this Certificate
and
the amount (of interest and principal, if any) required to be distributed to
the
Holders of Certificates of the same Class as this Certificate. The Assumed
Final
Distribution Date is the Distribution Date in the month immediately following
the month of the latest scheduled maturity date of any Mortgage Loan and is
not
likely to be the date on which the Notional Amount of this Class of Certificates
will be reduced to zero.
Distributions
on this Certificate will be made by the Paying Agent by check mailed to the
address of the Person entitled thereto as such name and address shall appear
on
the Certificate Register or, if such Person so requests by notifying the Trustee
in writing as specified in the Agreement by wire transfer. Notwithstanding
the
above, the final distribution on this Certificate will be made after due notice
by the Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose and designated in such notice. The Initial
Notional Amount of this Certificate is set forth above. The Notional Amount
hereof will be reduced to the extent of distributions allocable to principal
hereon and any Realized Losses allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, evidencing Fractional Undivided Interests aggregating
not less than 51% of the portion of the Trust Fund related to such Certificates
(or in certain cases, Holders of Certificates of affected Classes evidencing
such percentage of the Fractional Undivided Interests thereof). Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the certificate registrar
upon surrender of this Certificate for registration of transfer at the offices
or agencies maintained by the Trustee for such purposes, duly endorsed by,
or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Fractional Undivided Interest will
be issued to the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
November 30,
2006
U.S.
BANK
NATIONAL ASSOCIATION,
Not
in
its individual capacity but solely as Trustee
By:
_________________________________
Authorized
Signatory
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class X Certificates referred to in the within-mentioned
Agreement.
U.S.
BANK
NATIONAL ASSOCIATION,
Authorized
signatory of U.S. Bank National Association,
not
in
its individual capacity but solely as Trustee
By:
_________________________________
Authorized
Signatory
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address
|
Dated:
|
__________________________________________
|
Signature
by or on behalf of assignor
__________________________________________
Signature
Guaranteed
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
_________________________________ for the account of _________________________
account number _____________, or, if mailed by check, to
______________________________. Applicable statements should be mailed to
_____________________________________________.
This
information is provided by __________________, the assignee named above, or
________________________, as its agent.
EXHIBIT
B
MORTGAGE
LOAN SCHEDULE
LOAN_ID LOAN_SEQ CITY1 STATE ZIP_CODE
------------------------------------------------------------------------------------------------------------
15832932 15832932 KAILUA HI 96734
16015803 16015803 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16015807 16015807 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16015810 16015810 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16015821 16015821 WASHINGTON DC 20012
16015822 16015822 WASHINGTON DC 20016
16015833 16015833 WASHINGTON DC 20016
16015843 16015843 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16015863 16015863 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16015865 16015865 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16015870 16015870 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
15438581 15438581 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657104 16657104 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657108 16657108 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇
16657116 16657116 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657122 16657122 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657049 16657049 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657131 16657131 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657051 16657051 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657137 16657137 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657056 16657056 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657060 16657060 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658049 16658049 ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657161 16657161 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16657089 16657089 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657415 16657415 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657177 16657177 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657096 16657096 ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657500 16657500 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657423 16657423 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657425 16657425 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657506 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657427 16657427 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657428 16657428 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657187 16657187 SNOWMASS ▇▇▇ ▇▇ ▇▇▇▇▇
16657430 16657430 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657516 16657516 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657518 16657518 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657439 16657439 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657520 16657520 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657602 16657602 VISTA CA 92081
16657523 16657523 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657443 16657443 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657605 16657605 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657606 16657606 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657611 16657611 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657612 16657612 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657532 16657532 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657533 16657533 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657452 16657452 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657453 16657453 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657454 16657454 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657537 16657537 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657456 16657456 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657457 16657457 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657459 16657459 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657460 16657460 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657624 16657624 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657543 16657543 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657463 16657463 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657545 16657545 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657546 16657546 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657465 16657465 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657466 16657466 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657711 16657711 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657470 16657470 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657553 16657553 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657472 16657472 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657554 16657554 MEMPHIS TN 38108
16657555 16657555 MEMPHIS TN 38108
16657476 16657476 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657477 16657477 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657559 16657559 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657479 16657479 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657804 16657804 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657562 16657562 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657567 16657567 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657568 16657568 ▇▇▇▇▇ ME 4090
16657570 16657570 ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16657490 16657490 SILVER SPRIN MD 20904
16657491 16657491 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657492 16657492 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657494 16657494 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657657 16657657 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657497 16657497 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657659 16657659 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
16657499 16657499 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657581 16657581 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657664 16657664 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657584 16657584 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657585 16657585 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657595 16657595 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657598 16657598 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657688 16657688 AUSTIN TX 78730
16657693 16657693 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657788 16657788 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657995 16657995 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657999 16657999 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
16657041 16657041 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657044 16657044 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657045 16657045 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657065 16657065 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657078 16657078 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657085 16657085 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657086 16657086 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657087 16657087 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657090 16657090 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657106 16657106 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657112 16657112 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657117 16657117 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657119 16657119 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657120 16657120 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657121 16657121 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657125 16657125 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657132 16657132 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657134 16657134 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657149 16657149 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657154 16657154 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657158 16657158 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657163 16657163 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657166 16657166 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657171 16657171 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657173 16657173 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657180 16657180 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657181 16657181 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657182 16657182 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657183 16657183 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657189 16657189 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657191 16657191 WEST ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
16657192 16657192 COLORADO ▇▇▇ ▇▇ ▇▇▇▇▇
16657197 16657197 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
16657203 16657203 ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657206 16657206 ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657209 16657209 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657211 16657211 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657220 16657220 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657224 16657224 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657226 16657226 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657231 16657231 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇
16657233 16657233 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657234 16657234 ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657237 16657237 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657240 16657240 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
16657241 16657241 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657246 16657246 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657248 16657248 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇
16657250 16657250 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657260 16657260 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657268 16657268 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657270 16657270 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657275 16657275 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657276 16657276 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657277 16657277 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657279 16657279 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657280 16657280 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657281 16657281 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657283 16657283 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657294 16657294 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657295 16657295 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657296 16657296 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657297 16657297 NORTH ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
16657298 16657298 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657300 16657300 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657303 16657303 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657306 16657306 BLUE HILL ME 4614
16657313 16657313 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ 8611
16657319 16657319 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657325 16657325 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657327 16657327 ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16657332 16657332 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657336 16657336 ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
16657337 16657337 CODY WY 82414
16657338 16657338 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657345 16657345 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657346 16657346 ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657348 16657348 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657349 16657349 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657352 16657352 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657361 16657361 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657363 16657363 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657368 16657368 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657369 16657369 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657371 16657371 ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657374 16657374 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657383 16657383 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657385 16657385 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657386 16657386 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657387 16657387 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657388 16657388 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657389 16657389 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657390 16657390 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657391 16657391 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657393 16657393 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657411 16657411 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657433 16657433 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657451 16657451 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657486 16657486 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657508 16657508 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657517 16657517 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657519 16657519 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657549 16657549 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657550 16657550 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657577 16657577 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657580 16657580 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657582 16657582 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657586 16657586 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657587 16657587 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657588 16657588 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
16657590 16657590 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657592 16657592 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657600 16657600 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657608 16657608 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657614 16657614 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657617 16657617 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657623 16657623 ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16657628 16657628 ▇▇▇▇▇ ME 4090
16657632 16657632 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
16657633 16657633 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657635 16657635 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657638 16657638 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657640 16657640 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657647 16657647 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657653 16657653 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16657654 16657654 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657658 16657658 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657661 16657661 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657666 16657666 ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657667 16657667 ▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇
16657669 16657669 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657671 16657671 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657677 16657677 TOLLAND CT 6084
16657678 16657678 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657679 16657679 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657681 16657681 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657685 16657685 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657687 16657687 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
16657692 16657692 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657695 16657695 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657698 16657698 SHERWOOD OR 97140
16657700 16657700 ▇▇▇ ▇▇ ▇▇▇▇▇
16657703 16657703 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657704 16657704 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657721 16657721 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657366 16657366 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657552 16657552 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657643 16657643 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657645 16657645 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657684 16657684 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657723 16657723 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657724 16657724 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657725 16657725 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657727 16657727 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657733 16657733 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657736 16657736 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657737 16657737 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657738 16657738 ▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇
16657739 16657739 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657743 16657743 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657745 16657745 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657746 16657746 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657748 16657748 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657750 16657750 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657751 16657751 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
16657753 16657753 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657754 16657754 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657755 16657755 BEACH HAVEN NJ 8008
16657756 16657756 TUSTIN CA 92780
16657759 16657759 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657761 16657761 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657764 16657764 ESCONDIDO CA 92029
16657765 16657765 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657771 16657771 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657773 16657773 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657776 16657776 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657777 16657777 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657778 16657778 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657779 16657779 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657780 16657780 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16657784 16657784 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657786 16657786 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657790 16657790 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657792 16657792 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657793 16657793 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657794 16657794 COLUMBIA MD 21045
16657797 16657797 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657798 16657798 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657805 16657805 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657807 16657807 ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657808 16657808 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657810 16657810 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657818 16657818 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657821 16657821 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657822 16657822 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657828 16657828 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657829 16657829 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657830 16657830 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657832 16657832 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657834 16657834 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657835 16657835 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657837 16657837 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657841 16657841 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657846 16657846 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657850 16657850 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657851 16657851 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657854 16657854 FOOTHILL RAN CA 92610
16657855 16657855 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657858 16657858 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657860 16657860 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657861 16657861 MILFORD DE 19963
16657870 16657870 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657871 16657871 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657876 16657876 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657878 16657878 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657879 16657879 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657880 16657880 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657885 16657885 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16657887 16657887 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657888 16657888 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657889 16657889 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657894 16657894 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657896 16657896 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
16657897 16657897 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657898 16657898 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657905 16657905 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657906 16657906 SILVER SPRIN MD 20905
16657910 16657910 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657912 16657912 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657915 16657915 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657916 16657916 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657917 16657917 PERRIS CA 92571
16657919 16657919 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657920 16657920 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657923 16657923 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657924 16657924 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657925 16657925 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657927 16657927 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657930 16657930 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657937 16657937 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657938 16657938 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657939 16657939 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657908 16657908 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657943 16657943 ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16657944 16657944 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657951 16657951 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657952 16657952 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657953 16657953 ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16657954 16657954 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657957 16657957 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657960 16657960 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657961 16657961 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657962 16657962 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657964 16657964 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657965 16657965 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657969 16657969 ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657972 16657972 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657976 16657976 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16657978 16657978 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657982 16657982 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657983 16657983 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657984 16657984 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657985 16657985 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657986 16657986 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657988 16657988 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657989 16657989 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657991 16657991 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657994 16657994 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657996 16657996 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657998 16657998 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658001 16658001 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇
16658003 16658003 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658004 16658004 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658008 16658008 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658010 16658010 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658011 16658011 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658012 16658012 PROVINCETOWN MA 2657
16658013 16658013 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
16658014 16658014 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658017 16658017 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658018 16658018 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658020 16658020 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16658025 16658025 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658033 16658033 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658039 16658039 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658046 16658046 ▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇
16658053 16658053 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658060 16658060 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658063 16658063 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658073 16658073 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658078 16658078 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658080 16658080 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658086 16658086 LODI CA 95242
16658088 16658088 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658089 16658089 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16658091 16658091 ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇
14425830 14425830 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15628322 15628322 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16243109 16243109 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15757419 15757419 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341408 16341408 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341423 16341423 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319910 16319910 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319915 16319915 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375684 16375684 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375685 16375685 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375701 16375701 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375711 16375711 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375714 16375714 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396190 16396190 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396195 16396195 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396198 16396198 ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396208 16396208 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396209 16396209 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396210 16396210 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396232 16396232 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396241 16396241 MAYLENE AL 35114
15338945 15338945 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15498288 15498288 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
15628273 15628273 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15628284 15628284 OJAI CA 93023
15628300 15628300 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15628380 15628380 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15765233 15765233 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16206035 16206035 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341407 16341407 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341410 16341410 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341412 16341412 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341413 16341413 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341414 16341414 BEND OR 97701
16341415 16341415 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341416 16341416 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341417 16341417 KEIZER OR 97303
16341418 16341418 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341419 16341419 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341420 16341420 SHERWOOD OR 97140
16341421 16341421 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341422 16341422 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341424 16341424 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319907 16319907 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319908 16319908 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319909 16319909 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319912 16319912 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319913 16319913 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319916 16319916 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319917 16319917 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319922 16319922 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319925 16319925 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319926 16319926 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16319929 16319929 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319930 16319930 APISON TN 37302
16319931 16319931 POINT CLEAR AL 36564
16319932 16319932 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319935 16319935 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319936 16319936 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319937 16319937 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319938 16319938 ALABASTER AL 35007
16375678 16375678 FRANKLIN MA 2038
16375679 16375679 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375680 16375680 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375681 16375681 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375682 16375682 ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16375683 16375683 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
16375686 16375686 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375687 16375687 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375688 16375688 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375690 16375690 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16375692 16375692 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375693 16375693 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375694 16375694 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
16375695 16375695 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375696 16375696 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375697 16375697 POTOMAC MD 20854
16375699 16375699 BENICIA CA 94510
16375700 16375700 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375702 16375702 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375703 16375703 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375704 16375704 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375705 16375705 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375706 16375706 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375707 16375707 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375708 16375708 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375709 16375709 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375710 16375710 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396193 16396193 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396194 16396194 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396196 16396196 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396197 16396197 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396200 16396200 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396201 16396201 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396202 16396202 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396205 16396205 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396206 16396206 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396207 16396207 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396211 16396211 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396214 16396214 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396215 16396215 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396217 16396217 ALABASTER AL 35007
16396218 16396218 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396219 16396219 CROPWELL AL 35054
16396221 16396221 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396222 16396222 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396223 16396223 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396226 16396226 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396227 16396227 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396230 16396230 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396231 16396231 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396234 16396234 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396235 16396235 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396237 16396237 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396239 16396239 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396240 16396240 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396242 16396242 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396243 16396243 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396246 16396246 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396247 16396247 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396248 16396248 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15498289 15498289 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15590615 15590615 ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
15628389 15628389 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇
15628411 15628411 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
15765225 15765225 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16341409 16341409 ▇▇▇▇▇▇▇▇▇▇▇ OR 97070
16341411 16341411 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319906 16319906 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319934 16319934 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375689 16375689 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375698 16375698 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16375712 16375712 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396199 16396199 HOMEWOOD AL 35209
16396204 16396204 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396213 16396213 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396216 16396216 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396220 16396220 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396225 16396225 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396233 16396233 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396236 16396236 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15765213 15765213 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396238 16396238 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
15498275 15498275 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396191 16396191 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396224 16396224 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16319911 16319911 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16396229 16396229 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657043 16657043 DECATUR AL 35601
16657053 16657053 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657063 16657063 ▇▇▇▇▇▇▇▇ ▇▇▇ VA 23464
16657102 16657102 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657138 16657138 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657222 16657222 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657236 16657236 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657255 16657255 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657284 16657284 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657317 16657317 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657334 16657334 ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
16657373 16657373 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657375 16657375 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657446 16657446 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657469 16657469 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657579 16657579 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657639 16657639 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657642 16657642 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657649 16657649 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657652 16657652 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657676 16657676 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657702 16657702 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657787 16657787 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657843 16657843 OAKLYN NJ 8107
16657872 16657872 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657940 16657940 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657950 16657950 ORANGE NJ 7050
16657971 16657971 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16658071 16658071 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657399 16657399 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657655 16657655 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16657768 16657768 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
LOAN_ID PROPTYPE CURRENT_ SERV_FEE LPMI MSERV
GROSS_COUPON
-----------------------------------------------------------------------------------------------------------------------
15832932 Single Family 5.375 0.25 0 0.013
16015803 Single Family 5.375 0.25 0 0.013
16015807 Hi-Rise Condo 5.375 0.25 0 0.013
16015810 PUD 5.375 0.25 0 0.013
16015821 Single Family 6 0.25 0 0.013
16015822 PUD 5.5 0.25 0 0.013
16015833 Condominium 5.75 0.25 0 0.013
16015843 PUD 5.875 0.25 0 0.013
16015863 Single Family 5.375 0.25 0 0.013
16015865 Single Family 5.375 0.25 0 0.013
16015870 Condominium 5.75 0.25 0 0.013
15438581 Condominium 5.75 0.25 0 0.013
16657104 2-4 Family 7.25 0.25 0 0.013
16657108 Condominium 8.25 0.25 0 0.013
16657116 Single Family 6.75 0.25 0.625 0.013
16657122 Single Family 7 0.25 0 0.013
16657049 Single Family 7.375 0.25 0 0.013
16657131 2-4 Family 8 0.25 0 0.013
16657051 2-4 Family 7.375 0.25 0 0.013
16657137 Single Family 5.875 0.25 0 0.013
16657056 2-4 Family 6.5 0.25 0 0.013
16657060 Single Family 6.125 0.25 0 0.013
16658049 Single Family 6.5 0.25 0 0.013
16657161 Single Family 6.625 0.25 0 0.013
16657089 Hi-Rise Condo 7.875 0.25 0 0.013
16657415 Single Family 6.625 0.25 0 0.013
16657177 Single Family 6.5 0.25 0 0.013
16657096 Single Family 6.625 0.25 0 0.013
16657500 Single Family 6.625 0.25 0 0.013
16657423 Condominium 6.5 0.25 0 0.013
16657425 2-4 Family 6.5 0.25 0 0.013
16657506 Single Family 6.875 0.25 0 0.013
16657427 2-4 Family 6.5 0.25 0 0.013
16657428 Single Family 7 0.25 0 0.013
16657187 Condominium 7 0.25 0 0.013
16657430 Single Family 6.875 0.25 0 0.013
16657516 Single Family 6.5 0.25 0 0.013
16657518 Single Family 8.5 0.25 0 0.013
16657439 Single Family 6.625 0.25 0 0.013
16657520 2-4 Family 7.875 0.25 0 0.013
16657602 Single Family 6.625 0.25 0 0.013
16657523 Single Family 6.625 0.25 0 0.013
16657443 Single Family 6.5 0.25 0 0.013
16657605 Single Family 6.875 0.25 0 0.013
16657606 Single Family 6.625 0.25 0 0.013
16657611 Single Family 6.75 0.25 0 0.013
16657612 Single Family 6.75 0.25 0 0.013
16657532 Single Family 6.75 0.25 0 0.013
16657533 Single Family 6.375 0.25 0 0.013
16657452 Hi-Rise Condo 6.875 0.25 0 0.013
16657453 Hi-Rise Condo 6.875 0.25 0 0.013
16657454 Single Family 6.375 0.25 0 0.013
16657537 Single Family 6.5 0.25 0 0.013
16657456 Single Family 6.75 0.25 0 0.013
16657457 Single Family 7.5 0.25 0 0.013
16657459 Single Family 8 0.25 0 0.013
16657460 Single Family 6.5 0.25 0 0.013
16657624 Single Family 6.75 0.25 0 0.013
16657543 Single Family 6.625 0.25 0 0.013
16657463 Single Family 7 0.25 0 0.013
16657545 Single Family 6.625 0.25 0 0.013
16657546 Single Family 6.625 0.25 0 0.013
16657465 Single Family 7.75 0.25 0 0.013
16657466 Single Family 8.375 0.25 0 0.013
16657711 Single Family 7.5 0.25 0 0.013
16657470 Single Family 6.75 0.25 0 0.013
16657553 Single Family 6.625 0.25 0 0.013
16657472 Condominium 6.25 0.25 0 0.013
16657554 Single Family 7.875 0.25 0 0.013
16657555 Single Family 7.875 0.25 0 0.013
16657476 Single Family 7.875 0.25 0 0.013
16657477 Condominium 6.75 0.25 0 0.013
16657559 Single Family 7.125 0.25 0 0.013
16657479 Single Family 7.875 0.25 0 0.013
16657804 Single Family 6.625 0.25 0 0.013
16657562 Single Family 6.75 0.25 0 0.013
16657567 Single Family 6.5 0.25 0 0.013
16657568 Single Family 6 0.25 0 0.013
16657570 Single Family 6.875 0.25 0 0.013
16657490 Single Family 6.75 0.25 0 0.013
16657491 Single Family 6.75 0.25 0 0.013
16657492 Single Family 6 0.25 0 0.013
16657494 Single Family 6.25 0.25 0 0.013
16657657 Single Family 6.625 0.25 0 0.013
16657497 Single Family 6.5 0.25 0 0.013
16657659 Single Family 6.75 0.25 0 0.013
16657499 2-4 Family 6.625 0.25 0 0.013
16657581 Single Family 6.75 0.25 0 0.013
16657664 Single Family 6.125 0.25 0 0.013
16657584 Single Family 6.25 0.25 0 0.013
16657585 Single Family 6.75 0.25 0 0.013
16657595 2-4 Family 6.875 0.25 0 0.013
16657598 Single Family 6.5 0.25 0 0.013
16657688 Single Family 6.375 0.25 0 0.013
16657693 Single Family 6.375 0.25 0 0.013
16657788 Single Family 6.625 0.25 0 0.013
16657995 Single Family 6.75 0.25 0 0.013
16657999 Hi-Rise Condo 7.375 0.25 0 0.013
16657041 Single Family 6.625 0.25 0 0.013
16657044 Single Family 7 0.25 0 0.013
16657045 Single Family 6.875 0.25 0 0.013
16657065 Single Family 7.75 0.25 0 0.013
16657078 2-4 Family 6.75 0.25 0 0.013
16657085 Single Family 6.25 0.25 0 0.013
16657086 2-4 Family 7.625 0.25 0 0.013
16657087 2-4 Family 7.625 0.25 0 0.013
16657090 2-4 Family 7.625 0.25 0 0.013
16657106 Condominium 8.375 0.25 0 0.013
16657112 Single Family 6.875 0.25 0 0.013
16657117 PUD 6.875 0.25 0 0.013
16657119 Condominium 7.625 0.25 0 0.013
16657120 2-4 Family 8.375 0.25 0 0.013
16657121 Single Family 6.5 0.25 0 0.013
16657125 2-4 Family 7.875 0.25 0 0.013
16657132 Single Family 7.5 0.25 0 0.013
16657134 Single Family 6.625 0.25 0 0.013
16657149 2-4 Family 8.375 0.25 0 0.013
16657154 Single Family 7.75 0.25 0 0.013
16657158 2-4 Family 6.625 0.25 0 0.013
16657163 Single Family 6.875 0.25 0 0.013
16657166 Single Family 7.875 0.25 0 0.013
16657171 Single Family 6.375 0.25 0 0.013
16657173 Single Family 6.875 0.25 0 0.013
16657180 Single Family 7.875 0.25 0 0.013
16657181 Single Family 8.125 0.25 0 0.013
16657182 Single Family 7.875 0.25 0 0.013
16657183 Single Family 6.5 0.25 0 0.013
16657189 Condominium 6.875 0.25 0 0.013
16657191 Condominium 7.25 0.25 0 0.013
16657192 2-4 Family 7 0.25 0 0.013
16657197 Condominium 7.125 0.25 0 0.013
16657203 PUD 6.75 0.25 0 0.013
16657206 Single Family 6.75 0.25 0 0.013
16657209 Single Family 6.625 0.25 0 0.013
16657211 Single Family 6.375 0.25 0 0.013
16657220 Single Family 6.875 0.25 0 0.013
16657224 2-4 Family 6.75 0.25 0 0.013
16657226 Single Family 6.875 0.25 0 0.013
16657231 Single Family 6.5 0.25 0 0.013
16657233 Single Family 7.375 0.25 0 0.013
16657234 Single Family 6.5 0.25 0 0.013
16657237 Single Family 6.875 0.25 0 0.013
16657240 2-4 Family 8.375 0.25 0 0.013
16657241 Single Family 6.625 0.25 0 0.013
16657246 Condominium 7 0.25 0 0.013
16657248 Single Family 7.25 0.25 0 0.013
16657250 Single Family 6.875 0.25 0 0.013
16657260 Hi-Rise Condo 6.375 0.25 0 0.013
16657268 Single Family 6.625 0.25 0 0.013
16657270 Single Family 7.875 0.25 0 0.013
16657275 Condominium 8.5 0.25 0 0.013
16657276 Hi-Rise Condo 8.625 0.25 0 0.013
16657277 2-4 Family 8.75 0.25 0 0.013
16657279 Single Family 8 0.25 0 0.013
16657280 Single Family 8.5 0.25 0 0.013
16657281 2-4 Family 8.75 0.25 0 0.013
16657283 Single Family 8.75 0.25 0 0.013
16657294 Single Family 8.625 0.25 0 0.013
16657295 Single Family 8.375 0.25 0 0.013
16657296 2-4 Family 7.625 0.25 0 0.013
16657297 Single Family 8.375 0.25 0 0.013
16657298 Single Family 8.5 0.25 0 0.013
16657300 Hi-Rise Condo 6.625 0.25 0 0.013
16657303 2-4 Family 8.625 0.25 0 0.013
16657306 Single Family 8.25 0.25 0 0.013
16657313 Single Family 7.625 0.25 0 0.013
16657316 Single Family 8.25 0.25 0 0.013
16657319 Single Family 8.375 0.25 0 0.013
16657325 Single Family 6.875 0.25 0 0.013
16657327 Single Family 8.5 0.25 0 0.013
16657332 Condominium 8.625 0.25 0 0.013
16657336 Single Family 8.25 0.25 0 0.013
16657337 Single Family 7.625 0.25 0 0.013
16657338 Single Family 7.375 0.25 0 0.013
16657345 2-4 Family 8.25 0.25 0 0.013
16657346 PUD 7 0.25 0 0.013
16657348 Single Family 6.75 0.25 0 0.013
16657349 Condominium 6.75 0.25 0 0.013
16657352 Single Family 8.5 0.25 0 0.013
16657361 2-4 Family 7.875 0.25 0 0.013
16657363 Single Family 8.125 0.25 0 0.013
16657368 Single Family 6.75 0.25 0 0.013
16657369 Single Family 6.875 0.25 0 0.013
16657371 Single Family 8.25 0.25 0 0.013
16657374 Single Family 8.125 0.25 0 0.013
16657383 Single Family 7.875 0.25 0 0.013
16657385 Single Family 8.125 0.25 0 0.013
16657386 Single Family 8.375 0.25 0 0.013
16657387 Single Family 8.5 0.25 0 0.013
16657388 Single Family 8.625 0.25 0 0.013
16657389 Single Family 8.625 0.25 0 0.013
16657390 Single Family 8.125 0.25 0 0.013
16657391 Single Family 8.5 0.25 0 0.013
16657393 Single Family 8 0.25 0 0.013
16657411 Single Family 6.75 0.25 0 0.013
16657433 Single Family 6.625 0.25 0 0.013
16657451 2-4 Family 7.25 0.25 0 0.013
16657486 Single Family 6.5 0.25 0 0.013
16657508 Single Family 6.5 0.25 0 0.013
16657517 Single Family 6.5 0.25 0 0.013
16657519 Single Family 6.75 0.25 0 0.013
16657549 Single Family 6.5 0.25 0 0.013
16657550 Single Family 5.875 0.25 0 0.013
16657577 Single Family 6.875 0.25 0 0.013
16657580 Single Family 6.75 0.25 0 0.013
16657582 Single Family 6.625 0.25 0 0.013
16657586 2-4 Family 6.875 0.25 0 0.013
16657587 2-4 Family 6.875 0.25 0 0.013
16657588 Single Family 6.75 0.25 0 0.013
16657590 Single Family 6.625 0.25 0 0.013
16657592 Single Family 6.5 0.25 0 0.013
16657600 Condominium 8 0.25 0 0.013
16657608 Single Family 8.125 0.25 0 0.013
16657614 Condominium 6.5 0.25 0 0.013
16657617 PUD 6.375 0.25 0 0.013
16657623 Single Family 6.5 0.25 0 0.013
16657628 Single Family 6.25 0.25 0 0.013
16657632 Single Family 6.5 0.25 0 0.013
16657633 Single Family 6.5 0.25 0 0.013
16657635 Single Family 8.5 0.25 0 0.013
16657638 Single Family 6.625 0.25 0 0.013
16657640 Single Family 6.625 0.25 0 0.013
16657647 Single Family 6.375 0.25 0 0.013
16657653 Single Family 6.625 0.25 0 0.013
16657654 Single Family 6.875 0.25 0 0.013
16657658 2-4 Family 6.625 0.25 0 0.013
16657661 Single Family 8.625 0.25 0 0.013
16657666 Single Family 6.75 0.25 0 0.013
16657667 Single Family 6.75 0.25 0 0.013
16657669 Single Family 6.625 0.25 0 0.013
16657671 Single Family 6.75 0.25 0 0.013
16657677 Single Family 6.625 0.25 0 0.013
16657678 Single Family 7.375 0.25 0 0.013
16657679 Single Family 6.5 0.25 0 0.013
16657681 Single Family 6.625 0.25 0 0.013
16657685 Single Family 6.875 0.25 0 0.013
16657687 2-4 Family 8.25 0.25 0 0.013
16657692 Single Family 6.375 0.25 0 0.013
16657695 Single Family 8.5 0.25 0 0.013
16657698 Single Family 6.5 0.25 0 0.013
16657700 Single Family 6.75 0.25 0 0.013
16657703 Single Family 6.625 0.25 0 0.013
16657704 Single Family 6.75 0.25 0 0.013
16657721 2-4 Family 8.5 0.25 0 0.013
16657366 Single Family 6.875 0.25 0 0.013
16657552 Single Family 6.75 0.25 0 0.013
16657643 Single Family 6.75 0.25 0 0.013
16657645 Single Family 6.75 0.25 0 0.013
16657684 Single Family 8.25 0.25 0 0.013
16657723 Single Family 6.625 0.25 0 0.013
16657724 Single Family 6.75 0.25 0 0.013
16657725 Single Family 6.625 0.25 0 0.013
16657727 2-4 Family 6.875 0.25 0 0.013
16657733 Single Family 6.375 0.25 0 0.013
16657736 Single Family 6.75 0.25 0 0.013
16657737 Single Family 7.875 0.25 0 0.013
16657738 Single Family 6.75 0.25 0 0.013
16657739 Single Family 6.625 0.25 0 0.013
16657743 Single Family 6.75 0.25 0 0.013
16657745 Single Family 7 0.25 0 0.013
16657746 Single Family 6.625 0.25 0 0.013
16657748 Condominium 7 0.25 0 0.013
16657750 Single Family 6.625 0.25 0 0.013
16657751 Single Family 6.875 0.25 0 0.013
16657753 Single Family 6.125 0.25 0 0.013
16657754 Single Family 8.5 0.25 0 0.013
16657755 2-4 Family 6.5 0.25 0 0.013
16657756 Single Family 6.625 0.25 0 0.013
16657759 Single Family 8.125 0.25 0 0.013
16657761 Single Family 6.75 0.25 0 0.013
16657764 Single Family 6.75 0.25 0 0.013
16657765 Single Family 6.75 0.25 0 0.013
16657771 2-4 Family 8.5 0.25 0 0.013
16657773 Single Family 6.875 0.25 0 0.013
16657776 Single Family 6.625 0.25 0 0.013
16657777 Single Family 8.75 0.25 0 0.013
16657778 Single Family 6.5 0.25 0 0.013
16657779 2-4 Family 8.375 0.25 0 0.013
16657780 Single Family 6.875 0.25 0 0.013
16657784 Single Family 6.875 0.25 0 0.013
16657786 Single Family 8.25 0.25 0 0.013
16657790 Single Family 6.625 0.25 0 0.013
16657792 Single Family 8 0.25 0 0.013
16657793 Single Family 8.375 0.25 0 0.013
16657794 Single Family 6.75 0.25 0 0.013
16657797 Single Family 8.25 0.25 0 0.013
16657798 Single Family 6.625 0.25 0 0.013
16657805 Single Family 6.75 0.25 0 0.013
16657807 Single Family 6.875 0.25 0 0.013
16657808 Single Family 6.75 0.25 0 0.013
16657810 Single Family 6.875 0.25 0 0.013
16657818 Single Family 6.625 0.25 0 0.013
16657821 Single Family 6.75 0.25 0 0.013
16657822 Single Family 7 0.25 0 0.013
16657828 Single Family 6.875 0.25 0 0.013
16657829 Single Family 7.75 0.25 0 0.013
16657830 Single Family 6.75 0.25 0 0.013
16657832 Single Family 6.625 0.25 0 0.013
16657834 Single Family 7.875 0.25 0 0.013
16657835 2-4 Family 7 0.25 0 0.013
16657837 Single Family 8.625 0.25 0 0.013
16657841 2-4 Family 8.875 0.25 0 0.013
16657846 Hi-Rise Condo 6.625 0.25 0 0.013
16657850 Single Family 6.625 0.25 0 0.013
16657851 Single Family 6.75 0.25 0 0.013
16657854 Single Family 7 0.25 0 0.013
16657855 Single Family 7.625 0.25 0 0.013
16657858 Condominium 8.375 0.25 0 0.013
16657860 Single Family 6.75 0.25 0 0.013
16657861 Single Family 8.625 0.25 0 0.013
16657870 Condominium 7.25 0.25 0 0.013
16657871 Hi-Rise Condo 7 0.25 0 0.013
16657876 PUD 7 0.25 0 0.013
16657878 Hi-Rise Condo 6.625 0.25 0 0.013
16657879 Single Family 6.75 0.25 0 0.013
16657880 2-4 Family 6.75 0.25 0 0.013
16657885 Single Family 8.5 0.25 0 0.013
16657887 Single Family 6.75 0.25 0 0.013
16657888 Single Family 6.875 0.25 0 0.013
16657889 Single Family 6.625 0.25 0 0.013
16657894 Single Family 8.25 0.25 0 0.013
16657896 Single Family 7 0.25 0 0.013
16657897 Single Family 6.625 0.25 0 0.013
16657898 Single Family 6.625 0.25 0 0.013
16657905 Single Family 6.875 0.25 0 0.013
16657906 Single Family 6.75 0.25 0 0.013
16657910 Single Family 6.875 0.25 0 0.013
16657912 Condominium 7 0.25 0 0.013
16657915 Single Family 6.5 0.25 0 0.013
16657916 Single Family 6.25 0.25 0 0.013
16657917 Single Family 6.875 0.25 0 0.013
16657919 Single Family 7.25 0.25 0 0.013
16657920 Single Family 7.5 0.25 0 0.013
16657923 Single Family 6.875 0.25 0 0.013
16657924 2-4 Family 6.875 0.25 0 0.013
16657925 Single Family 7 0.25 0 0.013
16657927 2-4 Family 7.875 0.25 0 0.013
16657930 Single Family 6.875 0.25 0 0.013
16657937 Single Family 6.875 0.25 0 0.013
16657938 2-4 Family 7.375 0.25 0 0.013
16657939 2-4 Family 8.625 0.25 0 0.013
16657908 Single Family 6.75 0.25 0 0.013
16657943 PUD 6.5 0.25 0 0.013
16657944 Single Family 6.625 0.25 0 0.013
16657951 Single Family 7 0.25 0 0.013
16657952 Single Family 6.875 0.25 0 0.013
16657953 Single Family 6.75 0.25 0 0.013
16657954 Single Family 6.75 0.25 0 0.013
16657957 2-4 Family 6.625 0.25 0 0.013
16657960 Single Family 6.75 0.25 0 0.013
16657961 Single Family 7 0.25 0 0.013
16657962 Single Family 6.75 0.25 0 0.013
16657964 Single Family 6.875 0.25 0 0.013
16657965 Single Family 6.5 0.25 0 0.013
16657969 Single Family 6.625 0.25 0 0.013
16657972 Condominium 7.25 0.25 0 0.013
16657976 Single Family 6.5 0.25 0 0.013
16657978 Single Family 6.75 0.25 0 0.013
16657982 Single Family 7.5 0.25 0 0.013
16657983 2-4 Family 8.75 0.25 0 0.013
16657984 2-4 Family 8.75 0.25 0 0.013
16657985 2-4 Family 8.75 0.25 0 0.013
16657986 2-4 Family 8.75 0.25 0 0.013
16657988 2-4 Family 8.75 0.25 0 0.013
16657989 2-4 Family 8.75 0.25 0 0.013
16657991 Single Family 7.625 0.25 0 0.013
16657994 Condominium 6.625 0.25 0 0.013
16657996 Single Family 6.625 0.25 0 0.013
16657998 Single Family 8.125 0.25 0 0.013
16658001 Condominium 6.875 0.25 0 0.013
16658003 Single Family 6.75 0.25 0 0.013
16658004 Single Family 6.875 0.25 0 0.013
16658008 Single Family 8.125 0.25 0 0.013
16658010 2-4 Family 8.25 0.25 0 0.013
16658011 Hi-Rise Condo 7.25 0.25 0 0.013
16658012 Single Family 6.375 0.25 0 0.013
16658013 Single Family 6.875 0.25 0 0.013
16658014 Single Family 6.75 0.25 0 0.013
16658017 Single Family 6.875 0.25 0 0.013
16658018 Single Family 8.125 0.25 0 0.013
16658020 Single Family 6.75 0.25 0 0.013
16658025 Single Family 6.75 0.25 0 0.013
16658033 Single Family 7.25 0.25 0 0.013
16658039 Single Family 6.875 0.25 0 0.013
16658046 Single Family 6.875 0.25 0 0.013
16658053 Single Family 7.125 0.25 0 0.013
16658060 Single Family 6.5 0.25 0 0.013
16658063 Hi-Rise Condo 7.125 0.25 0 0.013
16658073 Single Family 6.625 0.25 0 0.013
16658078 Single Family 7.5 0.25 0 0.013
16658080 2-4 Family 7 0.25 0 0.013
16658086 2-4 Family 7.125 0.25 0 0.013
16658088 2-4 Family 6.875 0.25 0 0.013
16658089 Single Family 6.875 0.25 0 0.013
16658091 Single Family 6.875 0.25 0 0.013
14425830 Condominium 5.375 0.25 0 0.013
15628322 Single Family 5.5 0.25 0 0.013
16243109 Single Family 7.125 0.25 0 0.013
15757419 Single Family 5.875 0.25 0 0.013
16341408 Single Family 6.125 0.25 0 0.013
16341423 2-4 Family 7 0.25 0 0.013
16319910 Single Family 6.5 0.25 0 0.013
16319915 PUD 6.5 0.25 0 0.013
16375684 PUD 6.375 0.25 0 0.013
16375685 Single Family 6.875 0.25 0 0.013
16375701 Single Family 6.375 0.25 0 0.013
16375711 Single Family 6.25 0.25 0 0.013
16375714 Single Family 6.625 0.25 0 0.013
16396190 Single Family 6.875 0.25 0 0.013
16396195 PUD 6 0.25 0 0.013
16396198 Single Family 6.5 0.25 0 0.013
16396208 PUD 6.5 0.25 0 0.013
16396209 PUD 6.25 0.25 0 0.013
16396210 PUD 6.75 0.25 0 0.013
16396232 PUD 6.625 0.25 0 0.013
16396241 PUD 6.5 0.25 0 0.013
15338945 Single Family 5.625 0.25 0 0.013
15498288 PUD 5.75 0.25 0 0.013
15628273 Single Family 5.25 0.25 0 0.013
15628284 Single Family 5.375 0.25 0 0.013
15628300 PUD 5.5 0.25 0 0.013
15628380 Single Family 5.5 0.25 0 0.013
15765233 Single Family 5.75 0.25 0 0.013
16206035 Single Family 6.375 0.25 0 0.013
16341407 PUD 6.625 0.25 0 0.013
16341410 Single Family 6.375 0.25 0 0.013
16341412 Single Family 6.625 0.25 0 0.013
16341413 2-4 Family 6.875 0.25 0 0.013
16341414 Single Family 6.5 0.25 0 0.013
16341415 Single Family 6.875 0.25 0 0.013
16341416 PUD 6.5 0.25 0 0.013
16341417 Single Family 6.5 0.25 0 0.013
16341418 Single Family 6.5 0.25 0 0.013
16341419 Single Family 6.5 0.25 0 0.013
16341420 Condominium 6.5 0.25 0 0.013
16341421 Single Family 6.75 0.25 0 0.013
16341422 Single Family 6.625 0.25 0 0.013
16341424 Single Family 6.625 0.25 0 0.013
16319907 Hi-Rise Condo 6.375 0.25 0 0.013
16319908 Single Family 5.875 0.25 0 0.013
16319909 Single Family 5.875 0.25 0 0.013
16319912 PUD 6 0.25 0 0.013
16319913 Single Family 6.75 0.25 0 0.013
16319916 PUD 6.5 0.25 0 0.013
16319917 Single Family 6.375 0.25 0 0.013
16319922 Single Family 5.875 0.25 0 0.013
16319925 Single Family 6.25 0.25 0 0.013
16319926 PUD 5.875 0.25 0 0.013
16319929 PUD 5.875 0.25 0 0.013
16319930 Single Family 6 0.25 0 0.013
16319931 PUD 6.125 0.25 0 0.013
16319932 PUD 6.25 0.25 0 0.013
16319935 Single Family 6.25 0.25 0 0.013
16319936 PUD 6 0.25 0 0.013
16319937 Single Family 6.375 0.25 0 0.013
16319938 PUD 5.875 0.25 0 0.013
16375678 Single Family 6.5 0.25 0 0.013
16375679 PUD 5.75 0.25 0 0.013
16375680 Single Family 6.125 0.25 0 0.013
16375681 Single Family 6.25 0.25 0 0.013
16375682 Single Family 6.5 0.25 0 0.013
16375683 Single Family 6.625 0.25 0 0.013
16375686 Single Family 6.375 0.25 0 0.013
16375687 Hi-Rise Condo 6.375 0.25 0 0.013
16375688 PUD 6.375 0.25 0 0.013
16375690 Single Family 6.375 0.25 0 0.013
16375692 PUD 6.5 0.25 0 0.013
16375693 PUD 6.5 0.25 0 0.013
16375694 Single Family 6.5 0.25 0 0.013
16375695 Single Family 6.375 0.25 0 0.013
16375696 Single Family 6.25 0.25 0 0.013
16375697 Single Family 6.5 0.25 0 0.013
16375699 Single Family 6.625 0.25 0 0.013
16375700 PUD 6.5 0.25 0 0.013
16375702 Single Family 6.5 0.25 0 0.013
16375703 Single Family 6.625 0.25 0 0.013
16375704 PUD 6.5 0.25 0 0.013
16375705 PUD 6.5 0.25 0 0.013
16375706 Single Family 6.5 0.25 0 0.013
16375707 PUD 6.5 0.25 0 0.013
16375708 Single Family 6.5 0.25 0 0.013
16375709 Single Family 6.5 0.25 0 0.013
16375710 Single Family 6.5 0.25 0 0.013
16396193 Single Family 5.875 0.25 0 0.013
16396194 Single Family 6.25 0.25 0 0.013
16396196 PUD 6.375 0.25 0 0.013
16396197 Single Family 6.25 0.25 0 0.013
16396200 PUD 6.125 0.25 0 0.013
16396201 PUD 6.125 0.25 0 0.013
16396202 Townhouse 6.25 0.25 0 0.013
16396205 Hi-Rise Condo 6.625 0.25 0 0.013
16396206 PUD 6.25 0.25 0 0.013
16396207 PUD 6.5 0.25 0 0.013
16396211 Single Family 6.5 0.25 0 0.013
16396214 Single Family 6.25 0.25 0 0.013
16396215 Townhouse 6.375 0.25 0 0.013
16396217 PUD 6.25 0.25 0 0.013
16396218 Single Family 6 0.25 0 0.013
16396219 PUD 6.5 0.25 0 0.013
16396221 PUD 6.625 0.25 0 0.013
16396222 PUD 6.375 0.25 0 0.013
16396223 Condominium 6.5 0.25 0 0.013
16396226 Single Family 6 0.25 0 0.013
16396227 Single Family 6.375 0.25 0 0.013
16396230 Single Family 6.5 0.25 0 0.013
16396231 Single Family 6.25 0.25 0 0.013
16396234 PUD 6.25 0.25 0 0.013
16396235 Condominium 6.5 0.25 0 0.013
16396237 PUD 6.75 0.25 0 0.013
16396239 Single Family 6.375 0.25 0 0.013
16396240 Hi-Rise Condo 6.375 0.25 0 0.013
16396242 PUD 6.375 0.25 0 0.013
16396243 PUD 6.5 0.25 0 0.013
16396246 Hi-Rise Condo 6.125 0.25 0 0.013
16396247 PUD 6.375 0.25 0 0.013
16396248 PUD 6.625 0.25 0 0.013
15498289 PUD 6 0.25 0 0.013
15590615 Single Family 5.875 0.25 0 0.013
15628389 Single Family 5.5 0.25 0 0.013
15628411 Single Family 5.5 0.25 0 0.013
15765225 Single Family 5.875 0.25 0 0.013
16341409 PUD 6.375 0.25 0 0.013
16341411 Single Family 6.5 0.25 0 0.013
16319906 PUD 6 0.25 0 0.013
16319934 PUD 6.625 0.25 0 0.013
16375689 Single Family 5.75 0.25 0 0.013
16375698 PUD 6.5 0.25 0 0.013
16375712 PUD 6.75 0.25 0 0.013
16396199 Single Family 6.25 0.25 0 0.013
16396204 Hi-Rise Condo 6.5 0.25 0 0.013
16396213 PUD 6.625 0.25 0 0.013
16396216 PUD 6.375 0.25 0 0.013
16396220 PUD 6.5 0.25 0 0.013
16396225 PUD 6.625 0.25 0 0.013
16396233 PUD 6.5 0.25 0 0.013
16396236 Condominium 6.375 0.25 0 0.013
15765213 Single Family 6.25 0.25 0 0.013
16396238 Condominium 6.625 0.25 0 0.013
15498275 PUD 6.125 0.25 0 0.013
16396191 Condominium 6.625 0.25 0 0.013
16396224 Single Family 6.625 0.25 0 0.013
16319911 Hi-Rise Condo 6.875 0.25 0 0.013
16396229 Single Family 6.375 0.25 0 0.013
16657043 Single Family 7.5 0.25 0.625 0.013
16657053 Single Family 6.75 0.25 0.625 0.013
16657063 Single Family 6.625 0.25 0.625 0.013
16657102 Single Family 7.125 0.25 0.625 0.013
16657138 Single Family 7.5 0.25 0.625 0.013
16657222 Single Family 7.375 0.25 0.625 0.013
16657236 Single Family 7.25 0.25 0.625 0.013
16657255 Single Family 7.625 0.25 0.625 0.013
16657284 Single Family 6.875 0.25 0 0.013
16657317 Single Family 8.75 0.25 0 0.013
16657334 Hi-Rise Condo 7.375 0.25 0 0.013
16657373 Single Family 7.25 0.25 0 0.013
16657375 Condominium 8 0.25 0 0.013
16657446 Single Family 7.375 0.25 0.625 0.013
16657469 Single Family 7.875 0.25 0.625 0.013
16657579 Single Family 7.5 0.25 0.625 0.013
16657639 Single Family 7.5 0.25 0.625 0.013
16657642 Single Family 7.125 0.25 0.625 0.013
16657649 Single Family 7.625 0.25 0.625 0.013
16657652 Single Family 7.375 0.25 0.625 0.013
16657676 Single Family 7.5 0.25 0.625 0.013
16657702 Single Family 7.625 0.25 0.625 0.013
16657787 Single Family 6.875 0.25 0 0.013
16657843 Single Family 6.5 0.25 0 0.013
16657872 Single Family 7.875 0.25 0.625 0.013
16657940 2-4 Family 6.875 0.25 0 0.013
16657950 2-4 Family 6.5 0.25 0 0.013
16657971 Single Family 6.75 0.25 0 0.013
16658071 Single Family 7.75 0.25 0 0.013
16657399 Single Family 6 0.25 0 0.013
16657655 Single Family 5.375 0.25 0 0.013
16657768 Single Family 6.125 0.25 0 0.013
LOAN_ID CURRENT_ MATURITY_ STATED_ STATED_REM AMORT
NET_COUPON DATE ORIGINAL_TERM _TERM _TERM1
---------------------------------------------------------------------------------------------------------------------------
15832932 5.112 20351001 360 347 360
16015803 5.112 20201101 180 168 180
16015807 5.112 20351001 360 347 360
16015810 5.112 20351101 360 348 360
16015821 5.737 20201201 180 169 180
16015822 5.237 20351201 360 349 360
16015833 5.487 20210101 180 170 180
16015843 5.612 20201201 180 169 180
16015863 5.112 20351001 360 347 360
16015865 5.112 20201001 180 167 180
16015870 5.487 20201001 180 167 180
15438581 5.487 20200501 180 162 180
16657104 6.987 20360701 360 356 360
16657108 7.987 20360701 360 356 360
16657116 5.862 20360701 360 356 360
16657122 6.737 20360801 360 357 360
16657049 7.112 20360401 360 353 360
16657131 7.737 20360701 360 356 360
16657051 7.112 20360701 360 356 360
16657137 5.612 20210701 180 176 180
16657056 6.237 20360401 360 353 360
16657060 5.862 20210601 180 175 180
16658049 6.237 20360701 360 356 360
16657161 6.362 20210701 180 176 180
16657089 7.612 20360701 360 356 360
16657415 6.362 20360701 360 356 360
16657177 6.237 20210701 180 176 180
16657096 6.362 20360601 360 355 360
16657500 6.362 20360701 360 356 360
16657423 6.237 20360701 360 356 360
16657425 6.237 20360701 360 356 360
16657506 6.612 20360701 360 356 360
16657427 6.237 20360601 360 355 360
16657428 6.737 20360701 360 356 360
16657187 6.737 20360701 360 356 360
16657430 6.612 20360701 360 356 360
16657516 6.237 20360701 360 356 360
16657518 8.237 20360701 360 356 360
16657439 6.362 20360701 360 356 360
16657520 7.612 20360701 360 356 360
16657602 6.362 20360701 360 356 360
16657523 6.362 20360701 360 356 360
16657443 6.237 20360701 360 356 360
16657605 6.612 20360701 360 356 360
16657606 6.362 20360601 360 355 360
16657611 6.487 20360701 360 356 360
16657612 6.487 20360701 360 356 360
16657532 6.487 20360701 360 356 360
16657533 6.112 20360701 360 356 360
16657452 6.612 20360701 360 356 360
16657453 6.612 20360701 360 356 360
16657454 6.112 20360701 360 356 360
16657537 6.237 20360701 360 356 360
16657456 6.487 20210601 180 175 180
16657457 7.237 20360701 360 356 360
16657459 7.737 20210701 180 176 180
16657460 6.237 20360601 360 355 360
16657624 6.487 20360701 360 356 360
16657543 6.362 20360701 360 356 360
16657463 6.737 20360701 360 356 360
16657545 6.362 20360701 360 356 360
16657546 6.362 20360701 360 356 360
16657465 7.487 20360601 360 355 360
16657466 8.112 20360701 360 356 360
16657711 7.237 20360901 360 358 360
16657470 6.487 20360601 360 355 360
16657553 6.362 20360701 360 356 360
16657472 5.987 20360701 360 356 360
16657554 7.612 20360701 360 356 360
16657555 7.612 20360701 360 356 360
16657476 7.612 20360601 360 355 360
16657477 6.487 20360701 360 356 360
16657559 6.862 20360701 360 356 360
16657479 7.612 20360601 360 355 360
16657804 6.362 20360701 360 356 360
16657562 6.487 20360701 360 356 360
16657567 6.237 20360601 360 355 360
16657568 5.737 20210701 180 176 180
16657570 6.612 20360701 360 356 360
16657490 6.487 20360601 360 355 360
16657491 6.487 20360701 360 356 360
16657492 5.737 20210601 180 175 180
16657494 5.987 20210801 180 177 180
16657657 6.362 20360701 360 356 360
16657497 6.237 20360701 360 356 360
16657659 6.487 20360501 360 354 360
16657499 6.362 20360701 360 356 360
16657581 6.487 20360701 360 356 360
16657664 5.862 20210701 180 176 180
16657584 5.987 20360701 360 356 360
16657585 6.487 20210701 180 176 180
16657595 6.612 20360701 360 356 360
16657598 6.237 20360701 360 356 360
16657688 6.112 20360701 360 356 360
16657693 6.112 20360701 360 356 360
16657788 6.362 20360701 360 356 360
16657995 6.487 20360701 360 356 360
16657999 7.112 20360701 360 356 360
16657041 6.362 20360801 360 357 360
16657044 6.737 20360801 360 357 360
16657045 6.612 20360801 360 357 360
16657065 7.487 20360901 360 358 360
16657078 6.487 20360801 360 357 360
16657085 5.987 20360801 360 357 360
16657086 7.362 20360901 360 358 360
16657087 7.362 20360901 360 358 360
16657090 7.362 20360901 360 358 360
16657106 8.112 20360801 360 357 360
16657112 6.612 20360901 360 358 360
16657117 6.612 20360801 360 357 360
16657119 7.362 20360801 360 357 360
16657120 8.112 20360801 360 357 360
16657121 6.237 20210901 180 178 180
16657125 7.612 20360801 360 357 360
16657132 7.237 20360801 360 357 360
16657134 6.362 20360701 360 356 360
16657149 8.112 20360701 360 356 360
16657154 7.487 20360901 360 358 360
16657158 6.362 20360901 360 358 360
16657163 6.612 20360901 360 358 360
16657166 7.612 20360901 360 358 360
16657171 6.112 20210801 180 177 180
16657173 6.612 20360801 360 357 360
16657180 7.612 20360901 360 358 360
16657181 7.862 20360901 360 358 360
16657182 7.612 20360901 360 358 360
16657183 6.237 20360701 360 356 360
16657189 6.612 20360801 360 357 360
16657191 6.987 20360901 360 358 360
16657192 6.737 20360801 360 357 360
16657197 6.862 20360701 360 356 360
16657203 6.487 20360901 360 358 360
16657206 6.487 20360801 360 357 360
16657209 6.362 20360901 360 358 360
16657211 6.112 20360801 360 357 360
16657220 6.612 20360801 360 357 360
16657224 6.487 20360701 360 356 360
16657226 6.612 20360801 360 357 360
16657231 6.237 20360901 360 358 360
16657233 7.112 20360801 360 357 360
16657234 6.237 20360801 360 357 360
16657237 6.612 20360901 360 358 360
16657240 8.112 20360801 360 357 360
16657241 6.362 20360801 360 357 360
16657246 6.737 20360901 360 358 360
16657248 6.987 20360801 360 357 360
16657250 6.612 20360901 360 358 360
16657260 6.112 20210801 180 177 180
16657268 6.362 20360801 360 357 360
16657270 7.612 20360901 360 358 360
16657275 8.237 20360901 360 358 360
16657276 8.362 20360801 360 357 360
16657277 8.487 20360901 360 358 360
16657279 7.737 20360901 360 358 360
16657280 8.237 20360801 360 357 360
16657281 8.487 20360901 360 358 360
16657283 8.487 20360801 360 357 360
16657294 8.362 20360901 360 358 360
16657295 8.112 20360801 360 357 360
16657296 7.362 20360901 360 358 360
16657297 8.112 20360901 360 358 360
16657298 8.237 20360901 360 358 360
16657300 6.362 20360801 360 357 360
16657303 8.362 20360801 360 357 360
16657306 7.987 20360901 360 358 360
16657313 7.362 20360901 360 358 360
16657316 7.987 20360901 360 358 360
16657319 8.112 20360801 360 357 360
16657325 6.612 20360901 360 358 360
16657327 8.237 20360801 360 357 360
16657332 8.362 20360801 360 357 360
16657336 7.987 20360901 360 358 360
16657337 7.362 20360901 360 358 360
16657338 7.112 20360901 360 358 360
16657345 7.987 20360901 360 358 360
16657346 6.737 20360801 360 357 360
16657348 6.487 20360901 360 358 360
16657349 6.487 20360801 360 357 360
16657352 8.237 20360901 360 358 360
16657361 7.612 20360901 360 358 360
16657363 7.862 20360901 360 358 360
16657368 6.487 20360901 360 358 360
16657369 6.612 20360901 360 358 360
16657371 7.987 20360901 360 358 480
16657374 7.862 20360901 360 358 360
16657383 7.612 20360901 360 358 360
16657385 7.862 20360901 360 358 360
16657386 8.112 20360801 360 357 360
16657387 8.237 20360901 360 358 360
16657388 8.362 20360801 360 357 360
16657389 8.362 20360801 360 357 360
16657390 7.862 20360901 360 358 360
16657391 8.237 20360801 360 357 360
16657393 7.737 20360801 360 357 360
16657411 6.487 20360901 360 358 360
16657433 6.362 20360701 360 356 360
16657451 6.987 20360801 360 357 360
16657486 6.237 20360701 360 356 360
16657508 6.237 20210801 180 177 180
16657517 6.237 20360901 360 358 360
16657519 6.487 20360801 360 357 360
16657549 6.237 20360801 360 357 360
16657550 5.612 20210801 180 177 180
16657577 6.612 20360801 360 357 360
16657580 6.487 20360801 360 357 360
16657582 6.362 20360801 360 357 360
16657586 6.612 20360801 360 357 360
16657587 6.612 20360801 360 357 360
16657588 6.487 20360801 360 357 360
16657590 6.362 20360901 360 358 360
16657592 6.237 20360801 360 357 360
16657600 7.737 20360801 360 357 360
16657608 7.862 20360801 360 357 360
16657614 6.237 20360801 360 357 360
16657617 6.112 20360701 360 356 360
16657623 6.237 20160701 120 116 120
16657628 5.987 20210801 180 177 180
16657632 6.237 20360901 360 358 360
16657633 6.237 20360801 360 357 360
16657635 8.237 20360801 360 357 360
16657638 6.362 20360801 360 357 360
16657640 6.362 20360701 360 356 360
16657647 6.112 20360801 360 357 360
16657653 6.362 20360801 360 357 360
16657654 6.612 20360801 360 357 360
16657658 6.362 20360701 360 356 360
16657661 8.362 20360801 360 357 360
16657666 6.487 20360801 360 357 360
16657667 6.487 20360901 360 358 360
16657669 6.362 20360801 360 357 360
16657671 6.487 20360801 360 357 360
16657677 6.362 20360801 360 357 360
16657678 7.112 20360801 360 357 360
16657679 6.237 20360801 360 357 360
16657681 6.362 20360901 360 358 360
16657685 6.612 20360801 360 357 360
16657687 7.987 20360901 360 358 360
16657692 6.112 20360701 360 356 360
16657695 8.237 20360801 360 357 360
16657698 6.237 20360801 360 357 360
16657700 6.487 20360801 360 357 360
16657703 6.362 20360801 360 357 360
16657704 6.487 20360801 360 357 360
16657721 8.237 20360801 360 357 360
16657366 6.612 20360901 360 358 360
16657552 6.487 20360801 360 357 360
16657643 6.487 20360701 360 356 360
16657645 6.487 20360901 360 358 360
16657684 7.987 20360801 360 357 360
16657723 6.362 20360801 360 357 360
16657724 6.487 20360801 360 357 360
16657725 6.362 20210901 180 178 180
16657727 6.612 20360801 360 357 360
16657733 6.112 20360901 360 358 360
16657736 6.487 20360801 360 357 360
16657737 7.612 20360901 360 358 360
16657738 6.487 20360801 360 357 360
16657739 6.362 20360901 360 358 360
16657743 6.487 20360801 360 357 360
16657745 6.737 20360701 360 356 360
16657746 6.362 20360801 360 357 360
16657748 6.737 20360801 360 357 360
16657750 6.362 20360701 360 356 360
16657751 6.612 20360801 360 357 360
16657753 5.862 20360801 360 357 360
16657754 8.237 20360801 360 357 360
16657755 6.237 20360801 360 357 360
16657756 6.362 20360901 360 358 360
16657759 7.862 20360801 360 357 360
16657761 6.487 20360801 360 357 360
16657764 6.487 20360801 360 357 360
16657765 6.487 20360801 360 357 360
16657771 8.237 20360901 360 358 360
16657773 6.612 20360701 360 356 360
16657776 6.362 20360801 360 357 360
16657777 8.487 20360901 360 358 360
16657778 6.237 20360801 360 357 360
16657779 8.112 20360801 360 357 360
16657780 6.612 20360801 360 357 360
16657784 6.612 20360801 360 357 360
16657786 7.987 20360801 360 357 360
16657790 6.362 20360801 360 357 360
16657792 7.737 20360801 360 357 360
16657793 8.112 20360901 360 358 360
16657794 6.487 20360801 360 357 360
16657797 7.987 20360801 360 357 360
16657798 6.362 20360801 360 357 360
16657805 6.487 20360801 360 357 360
16657807 6.612 20360801 360 357 360
16657808 6.487 20360801 360 357 360
16657810 6.612 20360901 360 358 360
16657818 6.362 20210901 180 178 180
16657821 6.487 20360901 360 358 360
16657822 6.737 20360801 360 357 360
16657828 6.612 20360801 360 357 360
16657829 7.487 20360801 360 357 360
16657830 6.487 20360801 360 357 360
16657832 6.362 20360801 360 357 360
16657834 7.612 20360801 360 357 360
16657835 6.737 20360801 360 357 360
16657837 8.362 20360901 360 358 360
16657841 8.612 20360801 360 357 360
16657846 6.362 20360801 360 357 360
16657850 6.362 20360801 360 357 360
16657851 6.487 20360901 360 358 360
16657854 6.737 20360901 360 358 360
16657855 7.362 20360801 360 357 360
16657858 8.112 20360801 360 357 360
16657860 6.487 20360901 360 358 360
16657861 8.362 20360801 360 357 360
16657870 6.987 20360901 360 358 360
16657871 6.737 20360801 360 357 360
16657876 6.737 20360801 360 357 360
16657878 6.362 20360901 360 358 360
16657879 6.487 20360901 360 358 360
16657880 6.487 20360901 360 358 360
16657885 8.237 20360801 360 357 360
16657887 6.487 20360901 360 358 360
16657888 6.612 20360901 360 358 360
16657889 6.362 20360901 360 358 360
16657894 7.987 20360901 360 358 360
16657896 6.737 20360901 360 358 360
16657897 6.362 20360901 360 358 360
16657898 6.362 20360901 360 358 360
16657905 6.612 20360901 360 358 360
16657906 6.487 20360901 360 358 360
16657910 6.612 20360901 360 358 360
16657912 6.737 20360901 360 358 360
16657915 6.237 20360901 360 358 360
16657916 5.987 20360901 360 358 360
16657917 6.612 20360901 360 358 360
16657919 6.987 20210901 180 178 180
16657920 7.237 20360801 360 357 360
16657923 6.612 20360901 360 358 360
16657924 6.612 20360901 360 358 360
16657925 6.737 20360901 360 358 360
16657927 7.612 20360901 360 358 360
16657930 6.612 20360801 360 357 360
16657937 6.612 20360801 360 357 360
16657938 7.112 20360901 360 358 360
16657939 8.362 20360901 360 358 360
16657908 6.487 20360901 360 358 360
16657943 6.237 20360901 360 358 360
16657944 6.362 20360901 360 358 360
16657951 6.737 20360801 360 357 360
16657952 6.612 20360901 360 358 360
16657953 6.487 20360901 360 358 360
16657954 6.487 20360901 360 358 360
16657957 6.362 20360901 360 358 360
16657960 6.487 20360901 360 358 360
16657961 6.737 20360901 360 358 360
16657962 6.487 20360701 360 356 360
16657964 6.612 20360901 360 358 360
16657965 6.237 20360901 360 358 480
16657969 6.362 20360901 360 358 360
16657972 6.987 20360901 360 358 360
16657976 6.237 20360901 360 358 360
16657978 6.487 20360901 360 358 360
16657982 7.237 20360901 360 358 360
16657983 8.487 20360901 360 358 360
16657984 8.487 20360901 360 358 360
16657985 8.487 20360901 360 358 360
16657986 8.487 20360901 360 358 360
16657988 8.487 20360901 360 358 360
16657989 8.487 20360901 360 358 360
16657991 7.362 20360901 360 358 360
16657994 6.362 20360901 360 358 360
16657996 6.362 20360901 360 358 360
16657998 7.862 20360901 360 358 360
16658001 6.612 20360801 360 357 360
16658003 6.487 20360801 360 357 360
16658004 6.612 20360901 360 358 360
16658008 7.862 20360901 360 358 360
16658010 7.987 20360901 360 358 360
16658011 6.987 20360801 360 357 360
16658012 6.112 20360801 360 357 360
16658013 6.612 20360901 360 358 360
16658014 6.487 20360901 360 358 360
16658017 6.612 20360901 360 358 360
16658018 7.862 20360901 360 358 360
16658020 6.487 20360901 360 358 360
16658025 6.487 20360801 360 357 360
16658033 6.987 20360801 360 357 360
16658039 6.612 20360901 360 358 360
16658046 6.612 20360901 360 358 360
16658053 6.862 20360901 360 358 360
16658060 6.237 20360901 360 358 360
16658063 6.862 20360901 360 358 360
16658073 6.362 20360901 360 358 360
16658078 7.237 20360901 360 358 360
16658080 6.737 20360901 360 358 360
16658086 6.862 20360901 360 358 360
16658088 6.612 20360801 360 357 360
16658089 6.612 20360801 360 357 360
16658091 6.612 20360801 360 357 360
14425830 5.112 20231101 240 204 240
15628322 5.237 20350701 360 344 360
16243109 6.862 20360601 360 355 360
15757419 5.612 20181101 180 144 180
16341408 5.862 20360601 360 355 360
16341423 6.737 20360701 360 356 360
16319910 6.237 20210501 180 174 180
16319915 6.237 20210501 180 174 180
16375684 6.112 20360701 360 356 360
16375685 6.612 20360701 360 356 360
16375701 6.112 20360701 360 356 360
16375711 5.987 20360701 360 356 360
16375714 6.362 20360701 360 356 360
16396190 6.612 20210701 180 176 180
16396195 5.737 20210701 180 176 180
16396198 6.237 20210701 180 176 180
16396208 6.237 20210701 180 176 180
16396209 5.987 20210701 180 176 180
16396210 6.487 20210701 180 176 180
16396232 6.362 20210701 180 176 180
16396241 6.237 20210801 180 177 180
15338945 5.362 20350401 360 341 360
15498288 5.487 20350601 360 343 360
15628273 4.987 20350701 360 344 360
15628284 5.112 20350601 360 343 360
15628300 5.237 20350701 360 344 360
15628380 5.237 20350701 360 344 360
15765233 5.487 20350901 360 346 360
16206035 6.112 20360301 360 352 360
16341407 6.362 20360601 360 355 360
16341410 6.112 20360501 360 354 360
16341412 6.362 20360601 360 355 360
16341413 6.612 20360601 360 355 360
16341414 6.237 20360601 360 355 360
16341415 6.612 20360601 360 355 360
16341416 6.237 20360601 360 355 360
16341417 6.237 20360601 360 355 360
16341418 6.237 20360601 360 355 360
16341419 6.237 20360601 360 355 360
16341420 6.237 20360601 360 355 360
16341421 6.487 20360601 360 355 360
16341422 6.362 20360701 360 356 360
16341424 6.362 20360701 360 356 360
16319907 6.112 20210601 180 175 180
16319908 5.612 20210401 180 173 180
16319909 5.612 20210501 180 174 180
16319912 5.737 20210501 180 174 180
16319913 6.487 20210501 180 174 180
16319916 6.237 20210501 180 174 180
16319917 6.112 20210501 180 174 180
16319922 5.612 20210401 180 173 180
16319925 5.987 20210401 180 173 180
16319926 5.612 20210401 180 173 180
16319929 5.612 20210501 180 174 180
16319930 5.737 20210501 180 174 180
16319931 5.862 20210501 180 174 180
16319932 5.987 20210501 180 174 180
16319935 5.987 20210601 180 175 180
16319936 5.737 20210501 180 174 180
16319937 6.112 20210501 180 174 180
16319938 5.612 20210501 180 174 180
16375678 6.237 20360701 360 356 360
16375679 5.487 20210701 180 176 180
16375680 5.862 20360701 360 356 360
16375681 5.987 20360701 360 356 360
16375682 6.237 20360701 360 356 360
16375683 6.362 20360601 360 355 360
16375686 6.112 20360601 360 355 360
16375687 6.112 20360601 360 355 360
16375688 6.112 20360701 360 356 360
16375690 6.112 20360701 360 356 360
16375692 6.237 20360701 360 356 360
16375693 6.237 20360701 360 356 360
16375694 6.237 20360701 360 356 360
16375695 6.112 20360801 360 357 360
16375696 5.987 20210701 180 176 180
16375697 6.237 20360701 360 356 360
16375699 6.362 20360701 360 356 360
16375700 6.237 20360701 360 356 360
16375702 6.237 20360701 360 356 360
16375703 6.362 20360701 360 356 360
16375704 6.237 20360701 360 356 360
16375705 6.237 20360701 360 356 360
16375706 6.237 20360701 360 356 360
16375707 6.237 20360701 360 356 360
16375708 6.237 20360701 360 356 360
16375709 6.237 20360701 360 356 360
16375710 6.237 20360701 360 356 360
16396193 5.612 20210401 180 173 180
16396194 5.987 20210701 180 176 180
16396196 6.112 20210701 180 176 180
16396197 5.987 20210701 180 176 180
16396200 5.862 20210701 180 176 180
16396201 5.862 20210701 180 176 180
16396202 5.987 20210701 180 176 180
16396205 6.362 20210701 180 176 180
16396206 5.987 20210701 180 176 180
16396207 6.237 20210801 180 177 180
16396211 6.237 20210701 180 176 180
16396214 5.987 20210701 180 176 180
16396215 6.112 20210701 180 176 180
16396217 5.987 20210801 180 177 180
16396218 5.737 20210701 180 176 180
16396219 6.237 20210701 180 176 180
16396221 6.362 20210701 180 176 180
16396222 6.112 20210701 180 176 180
16396223 6.237 20210701 180 176 180
16396226 5.737 20210701 180 176 180
16396227 6.112 20210701 180 176 180
16396230 6.237 20210701 180 176 180
16396231 5.987 20210701 180 176 180
16396234 5.987 20210701 180 176 180
16396235 6.237 20210801 180 177 180
16396237 6.487 20210801 180 177 180
16396239 6.112 20210801 180 177 180
16396240 6.112 20210701 180 176 180
16396242 6.112 20210801 180 177 180
16396243 6.237 20210801 180 177 180
16396246 5.862 20210701 180 176 180
16396247 6.112 20210801 180 177 180
16396248 6.362 20210701 180 176 180
15498289 5.737 20350601 360 343 360
15590615 5.612 20350601 360 343 360
15628389 5.237 20350701 360 344 360
15628411 5.237 20350801 360 345 360
15765225 5.612 20350901 360 346 360
16341409 6.112 20360501 360 354 360
16341411 6.237 20360601 360 355 360
16319906 5.737 20210501 180 174 180
16319934 6.362 20210501 180 174 180
16375689 5.487 20210701 180 176 180
16375698 6.237 20360701 360 356 360
16375712 6.487 20360801 360 357 360
16396199 5.987 20210701 180 176 180
16396204 6.237 20210701 180 176 180
16396213 6.362 20210701 180 176 180
16396216 6.112 20210701 180 176 180
16396220 6.237 20210701 180 176 180
16396225 6.362 20210701 180 176 180
16396233 6.237 20210701 180 176 180
16396236 6.112 20210701 180 176 180
15765213 5.987 20350901 360 346 360
16396238 6.362 20210701 180 176 180
15498275 5.862 20350501 360 342 360
16396191 6.362 20210601 180 175 180
16396224 6.362 20210701 180 176 180
16319911 6.612 20210501 180 174 180
16396229 6.112 20210701 180 176 180
16657043 6.612 20360801 360 357 360
16657053 5.862 20360401 360 353 360
16657063 5.737 20360701 360 356 360
16657102 6.237 20360701 360 356 360
16657138 6.612 20360701 360 356 360
16657222 6.487 20360801 360 357 360
16657236 6.362 20360801 360 357 360
16657255 6.737 20360801 360 357 360
16657284 6.612 20360901 360 358 480
16657317 8.487 20360801 360 357 480
16657334 7.112 20360801 360 357 480
16657373 6.987 20360901 360 358 480
16657375 7.737 20360901 360 358 480
16657446 6.487 20360601 360 355 360
16657469 6.987 20360601 360 355 360
16657579 6.612 20360701 360 356 360
16657639 6.612 20360801 360 357 360
16657642 6.237 20360801 360 357 360
16657649 6.737 20360701 360 356 360
16657652 6.487 20360801 360 357 360
16657676 6.612 20360801 360 357 360
16657702 6.737 20360801 360 357 360
16657787 6.612 20360801 360 357 480
16657843 6.237 20360801 360 357 480
16657872 6.987 20360901 360 358 360
16657940 6.612 20360901 360 358 480
16657950 6.237 20360901 360 358 480
16657971 6.487 20360901 360 358 480
16658071 7.487 20360901 360 358 480
16657399 5.737 20351101 360 348 360
16657655 5.112 20210401 180 173 180
16657768 5.862 20360801 360 357 360
LOAN_ID ORIGINAL_ FIRST_PAY PAYMENT CURRENT_ LOAN_TO
BALANCE _DATE BALANCE _VALUE
------------------------------------------------------------------------------------------------------------
15832932 505000 20051101 2827.85 496373.3 38.84999847
16015803 708622 20051201 5743.14 677021.8 53.47999954
16015807 512000 20051101 2867.05 504337.77 80
16015810 436000 20051201 1952.92 436000 58.13000107
16015821 503852 20060101 4251.79 484310.5 64.18000031
16015822 615000 20060101 3491.9 607423.17 61.56000137
16015833 568000 20060201 4716.73 547613.64 80
16015843 450000 20060101 3767.03 432369.56 63.38000107
16015863 950000 20051101 5319.73 935576.59 79.16999817
16015865 700000 20051101 5673.26 665987.04 70
16015870 499500 20051101 4147.9 465203.64 54.34999847
15438581 1155000 20050601 9591.24 1078924.86 70
16657104 650000 20060801 4434.15 636545.85 73.86000061
16657108 186750 20060801 1402.99 186268.73 90
16657116 419000 20060801 2717.63 416985.9 100
16657122 520000 20060901 3033.33 520000 80
16657049 51375 20060501 354.83 50944.62 82.19999695
16657131 118800 20060801 871.71 118381.97 90
16657051 67995 20060801 469.62 67786.16 90
16657137 552500 20060801 4625.08 544762.89 63.13999939
16657056 46400 20060501 293.28 46086.58 80
16657060 900000 20060701 7655.62 884533.52 66.66999817
16658049 424000 20060801 2679.97 422454.27 80
16657161 1030000 20060801 9043.34 1016001.17 46.81999969
16657089 63422 20060801 459.85 63245.7 86.87999725
16657415 536250 20060801 2960.34 536212.69 69.19000244
16657177 471000 20060801 4102.92 464742.71 58.88000107
16657096 1000000 20060701 6403.11 995539.63 40
16657500 556000 20060801 3069.58 556000 80
16657423 574400 20060801 3111.33 574400 80
16657425 588000 20060801 3716.56 585848.01 79.13999939
16657506 556000 20060801 3652.52 554115.43 80
16657427 692000 20060701 4373.91 688722.09 80
16657428 550400 20060801 3661.82 548579.48 80
16657187 750000 20060801 4989.77 747519.32 58.13999939
16657430 882000 20060801 5794.11 879010.49 75.70999908
16657516 637500 20060801 4029.43 635175.99 75
16657518 93000 20060801 715.09 92772.23 75
16657439 596000 20060801 3816.25 593879.15 80
16657520 109600 20060801 719.25 109600 80
16657602 472000 20060801 3022.27 470320.4 80
16657523 528750 20060801 3385.64 526868.49 75
16657443 752000 20060801 4753.15 749258.52 80
16657605 740000 20060801 4010.42 700000 80
16657606 480000 20060701 3073.49 477859.04 80
16657611 704000 20060801 3953.13 702779.29 80
16657612 475000 20060801 2671.88 475000 52.77999878
16657532 1137500 20060801 6398.44 1137500 65
16657533 446000 20060801 2782.46 444334.45 55.40000153
16657452 588800 20060801 3868 586804.26 80
16657453 489600 20060801 3216.32 487940.49 80
16657454 637000 20060801 3974.05 634621.15 70
16657537 500000 20060801 2708.33 500000 28.01000023
16657456 460000 20060701 4070.58 392163.21 80
16657457 689600 20060801 4821.78 687533.57 80
16657459 455000 20060801 4348.22 449687.62 70
16657460 687000 20060701 4342.31 683557.62 73.87000275
16657624 460000 20060801 2983.55 458402.34 80
16657543 900000 20060801 5762.8 896797.41 56.25
16657463 148000 20060801 863.33 148000 79.56999969
16657545 667000 20060801 2200.05 398500 79.98000336
16657546 613000 20060801 3925.11 610818.65 47.15000153
16657465 49600 20060701 355.34 49422.65 80
16657466 101250 20060801 769.57 100995.6 72.31999969
16657711 95000 20061001 664.25 94858.55 79.16999817
16657470 500000 20060701 3242.99 497801.92 74.06999969
16657553 625000 20060801 4001.94 622775.96 64.08999634
16657472 450000 20060801 2770.73 448278.69 35.15999985
16657554 55200 20060801 400.24 55046.54 80
16657555 51200 20060801 371.24 51057.65 80
16657476 54400 20060701 394.44 54210.33 80
16657477 480000 20060801 3113.27 478332.93 58.54000092
16657559 520000 20060801 3087.5 520000 80
16657479 97000 20060701 703.32 96661.79 74.66999817
16657804 844000 20060801 5404.22 840996.69 80
16657562 1400000 20060801 7874.3 1399875 63.63999939
16657567 465000 20060701 2939.12 462875.25 75
16657568 825000 20060801 6961.82 813567.33 38.36999893
16657570 474950 20060801 3120.08 473340.18 70
16657490 532000 20060701 2992.5 532000 80
16657491 476000 20060801 3087.33 474156.66 74.95999908
16657492 760400 20060701 6416.69 747195.16 80
16657494 1800000 20060901 15433.61 1781729.3 51.43000031
16657657 999950 20060801 5519.03 999673.97 68.95999908
16657497 700000 20060801 4424.48 693266.01 66.66999817
16657659 503500 20060601 3265.69 500862.13 39.02999878
16657499 725000 20060801 4642.25 722058.41 53.70000076
16657581 433600 20060801 2812.32 432094.04 80
16657664 600000 20060801 5103.75 591772.27 60
16657584 536000 20060801 3300.24 533165.06 74.97000122
16657585 1920000 20060801 16990.26 1879688.9 54.86000061
16657595 604000 20060801 3967.85 601952.73 80
16657598 696000 20060801 4399.19 693462.69 80
16657688 689200 20060801 4299.71 686625.36 59.93000031
16657693 667750 20060801 4165.89 665256.34 74.94000244
16657788 438000 20060801 2804.56 436441.42 68.98000336
16657995 540000 20060801 3502.43 538124.52 80
16657999 552000 20060801 3812.53 550304.33 80
16657041 600000 20060901 3841.87 598403.11 50.84999847
16657044 742463 20060901 4939.62 740626.56 76.73999786
16657045 485000 20060901 3186.1 483770.62 67.23000336
16657065 568000 20061001 4069.22 567195.63 80
16657078 645000 20060901 4183.46 643324.61 28.67000008
16657085 2000000 20060901 12314.34 1994277.28 30.03000069
16657086 150600 20061001 1065.94 150381.3 80
16657087 150600 20061001 1065.94 150381.3 80
16657090 150600 20061001 1065.94 150381.3 80
16657106 63422 20060901 442.63 63422 86.87999725
16657112 600000 20061001 3941.57 598888.4 80
16657117 1430000 20060901 8192.71 1430000 52.95999908
16657119 65250 20060901 461.84 65107.41 90
16657120 65160 20060901 495.26 65037.15 90
16657121 660000 20061001 5749.31 655639.6 66.52999878
16657125 480000 20060901 3480.33 479002.49 80
16657132 553500 20060901 3870.15 552259.96 75
16657134 484000 20060801 3099.11 481630.76 80
16657149 128520 20060801 976.84 128197.13 90
16657154 213600 20061001 1530.26 213297.51 80
16657158 875000 20061001 5602.72 873451.76 64.80999756
16657163 47097 20061001 309.39 47017.65 84.09999847
16657166 44000 20061001 319.03 43939.24 80
16657171 627200 20060901 5420.58 620900.91 80
16657173 496080 20060901 3258.89 494756.6 80
16657180 44000 20061001 319.03 43939.24 80
16657181 50400 20061001 374.22 50333.84 80
16657182 48000 20061001 348.03 47933.72 80
16657183 581000 20060801 3672.32 578881.92 55.81000137
16657189 176800 20060901 1161.45 176350.73 80
16657191 141750 20061001 966.98 141528.19 75
16657192 202880 20060901 1349.77 202377.95 80
16657197 1000000 20060801 6737.19 996772.64 42.91999817
16657203 500000 20061001 3242.99 499136.6 77.72000122
16657206 460000 20060901 2587.5 460000 80
16657209 472000 20061001 3022.27 471164.82 76.12999725
16657211 418000 20060901 2607.78 416832.36 61.29000092
16657220 861250 20060901 4934.24 861250 65
16657224 73440 20060801 476.33 73184.94 80
16657226 458400 20060901 3011.36 457238.03 80
16657231 1250000 20061001 7900.85 1247733.84 56.81999969
16657233 64000 20060901 442.03 63853 91.43000031
16657234 717520 20060901 3886.57 717520 80
16657237 799000 20061001 5248.86 795642.18 79.91000366
16657240 284400 20060901 2161.65 283865.97 90
16657241 475000 20060901 3041.48 473668.14 50
16657246 238400 20061001 1586.08 238008.04 79.47000122
16657248 521800 20060901 3559.6 520571.43 27.11000061
16657250 563000 20061001 3698.51 562051.31 62.56000137
16657260 1210000 20060901 10457.43 1197847.76 60.5
16657268 630000 20060901 4033.96 628323.27 39.38000107
16657270 520000 20061001 3770.36 519281.93 73.76000214
16657275 263970 20061001 1869.79 263970 90
16657276 120000 20060901 933.35 119738.58 65.93000031
16657277 57420 20061001 451.72 57353.7 89.19999695
16657279 559920 20061001 4108.49 559166.12 80
16657280 35250 20060901 271.04 35185.49 75
16657281 57420 20061001 451.72 57353.7 89.19999695
16657283 21600 20060901 169.93 21562.44 90
16657294 172000 20061001 1236.25 172000 80
16657295 640000 20060901 4864.46 638798.27 80
16657296 120000 20061001 849.35 119825.75 80
16657297 265500 20061001 1852.97 265500 90
16657298 103270 20061001 794.06 103144.43 90
16657300 688000 20060901 4405.34 686168.9 80
16657303 88000 20060901 684.45 87843.03 80
16657306 152000 20061001 1141.93 151805.47 72.37999725
16657313 149953 20061001 1061.36 149735.25 74.98000336
16657316 77400 20061001 581.48 77300.96 90
16657319 76142 20060901 578.73 75999.52 95
16657325 503000 20061001 3304.35 501875.19 79.97000122
16657327 179650 20060901 1270.4 179350 80
16657332 112280 20060901 873.3 111073.92 95
16657336 165600 20061001 1244.1 165388.07 80
16657337 64000 20061001 452.99 63879.38 80
16657338 650000 20061001 4489.39 648781.91 86.66999817
16657345 160200 20061001 1203.53 159994.99 90
16657346 1350000 20060901 8981.58 1346660.85 75
16657348 1250000 20061001 8107.48 1247841.49 45.54000092
16657349 151200 20060901 850.5 151200 80
16657352 51300 20061001 394.45 51237.62 95
16657361 138400 20061001 1003.5 138208.87 80
16657363 108900 20061001 808.58 108757.04 90
16657368 720000 20061001 4050 720000 80
16657369 547200 20061001 3135 547200 80
16657371 453007 20061001 3235.1 452764.81 95
16657374 99750 20061001 740.64 99619.06 95
16657383 256500 20061001 1683.28 256500 90
16657385 219424 20061001 1485.68 219424 78.37000275
16657386 209320 20060901 1460.88 209320 77.52999878
16657387 261000 20061001 1848.75 261000 90
16657388 203500 20060901 1462.66 203500 76.79000092
16657389 203500 20060901 1462.66 203500 76.79000092
16657390 228500 20061001 1547.14 228500 88.91000366
16657391 220648 20060901 1562.92 220648 78.23999786
16657393 200000 20060901 1333.33 200000 74.62999725
16657411 560000 20061001 3147.9 559626.15 80
16657433 440000 20060801 2817.37 438320.01 80
16657451 44100 20060901 300.84 43996.17 90
16657486 477500 20060801 3018.12 475606.69 64.75
16657508 1650000 20060901 14373.27 1633604.2 44
16657517 1325000 20061001 7177.08 1325000 45.68999863
16657519 523000 20060901 2941.88 523000 58.11000061
16657549 764800 20060901 4834.06 762714.57 80
16657550 680000 20060901 5692.41 672875.51 79.06999969
16657577 440000 20060901 2890.49 438884.67 56.40999985
16657580 902400 20060901 5076 902400 79.98999786
16657582 650000 20060901 4162.02 648270.02 78.79000092
16657586 574000 20060901 3770.77 572544.99 70
16657587 574000 20060901 3770.77 572544.98 70
16657588 896000 20060901 5811.44 893672.64 80
16657590 672000 20061001 4302.89 670810.95 80
16657592 974344 20060901 6158.52 971377.6 80
16657600 63000 20060901 462.27 62872.32 64.94999695
16657608 242000 20060901 1638.54 242000 79.76999664
16657614 999999 20060901 6320.67 994204 58.81999969
16657617 920000 20060801 5739.6 916564.3 80
16657623 668000 20060801 7585 636792.86 80
16657628 800000 20060901 6859.38 791879.69 64
16657632 880000 20061001 5562.2 878404.63 80
16657633 506025 20060901 3198.42 504645.2 70.76999664
16657635 63200 20060901 485.95 63084.31 80
16657638 664000 20060901 4251.66 662232.77 80
16657640 774000 20060801 4956.01 771245.74 80
16657647 853600 20060901 5325.35 851215.58 80
16657653 880000 20060901 4858.33 880000 80
16657654 600000 20060901 3941.57 598479.08 61.54000092
16657658 708500 20060801 4536.6 705978.83 65
16657661 75600 20060901 588.01 75435.31 90
16657666 688000 20060901 3861.56 686500 80
16657667 799200 20061001 5183.6 797819.93 79.95999908
16657669 1169500 20060901 7488.44 1166387.4 58.47999954
16657671 480000 20060901 3113.27 478352.05 74.41999817
16657677 565000 20060901 3617.76 563355.6 70.19000244
16657678 780000 20060901 5387.27 777668.1 60
16657679 600000 20060901 3792.41 598363.94 73.16999817
16657681 499999 20061001 3201.55 499114.29 72.45999908
16657685 810000 20060901 5321.12 807946.78 75.34999847
16657687 204000 20061001 1532.58 203738.93 80
16657692 704000 20060801 3740 704000 80
16657695 67500 20060901 519.02 67376.44 90
16657698 999999 20060901 6320.67 997271.26 66.66999817
16657700 703200 20060901 3955.5 703200 80
16657703 790000 20060901 5058.46 787897.43 65.83000183
16657704 692500 20060901 4491.54 690701.22 75.48000336
16657721 90000 20060901 692.02 89835.25 75
16657366 894000 20061001 5872.94 892493.57 55.88000107
16657552 448000 20060901 2905.72 446836.32 77.91000366
16657643 999999 20060801 6485.97 996525.88 70.18000031
16657645 980000 20061001 5512.5 980000 80
16657684 32900 20060901 247.17 32836.62 70
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LOAN_ID MI MERS_ID1 MARGIN NEXT_RATE_
ADJ_DATE1
------------------------------------------------------------------------------------------------------------------------------
15832932 No MI 0
16015803 No MI M10001530535104996 0
16015807 No MI M10001530535107205 0
16015810 No MI M10001530535108104 0
16015821 No MI M10001530531103476 0
16015822 No MI M10001530535113898 0
16015833 No MI M10001530535119036 0
16015843 No MI M10001530535121263 0
16015863 No MI M10001530585037093 0
16015865 No MI M10001530585040512 0
16015870 No MI M10001530585049117 0
15438581 No MI 1.00E+17 0
16657104 No MI 1.00E+17 0
16657108 GE Capital MI 1.00E+17 0
16657116 United Guaranty 1.00E+17 0
16657122 No MI 1.00E+17 0
16657049 PMI 1.00E+17 0
16657131 GE Capital MI 1.00E+17 0
16657051 GE Capital MI 1.00E+17 0
16657137 No MI 1.00E+17 0
16657056 No MI 1.00E+17 0
16657060 No MI 1.00E+17 0
16658049 No MI 1.00E+17 0
16657161 No MI 1.00E+17 0
16657089 Republic MIC 1.00E+17 0
16657415 No MI 0
16657177 No MI 1.00E+17 0
16657096 No MI 1.00E+17 0
16657500 No MI 1.00E+17 0
16657423 No MI 0
16657425 No MI 0
16657506 No MI 0
16657427 No MI 0
16657428 No MI 0
16657187 No MI 1.00E+17 0
16657430 No MI 1.00E+17 0
16657516 No MI 1.00E+17 0
16657518 No MI 0
16657439 No MI 0
16657520 No MI 0
16657602 No MI 1.00E+17 0
16657523 No MI 1.00E+17 0
16657443 No MI 0
16657605 No MI 0
16657606 No MI 1.00E+17 0
16657611 No MI 0
16657612 No MI 1.00E+17 0
16657532 No MI 1.00E+17 0
16657533 No MI 0
16657452 No MI 0
16657453 No MI 0
16657454 No MI 0
16657537 No MI 0
16657456 No MI 1.00E+17 0
16657457 No MI 0
16657459 No MI 0
16657460 No MI 1.00E+17 0
16657624 No MI 0
16657543 No MI 0
16657463 No MI 0
16657545 No MI 0
16657546 No MI 0
16657465 No MI 0
16657466 No MI 0
16657711 No MI 0
16657470 No MI 0
16657553 No MI 0
16657472 No MI 0
16657554 No MI 0
16657555 No MI 0
16657476 No MI 0
16657477 No MI 1.00E+17 0
16657559 No MI 0
16657479 No MI 0
16657804 No MI 1.00E+17 0
16657562 No MI 1.00E+17 0
16657567 No MI 1.00E+17 0
16657568 No MI 0
16657570 No MI 1.00E+17 0
16657490 No MI 1.00E+17 0
16657491 No MI 0
16657492 No MI 1.00E+17 0
16657494 No MI 0
16657657 No MI 0
16657497 No MI 0
16657659 No MI 1.00E+17 0
16657499 No MI 0
16657581 No MI 0
16657664 No MI 1.00E+17 0
16657584 No MI 0
16657585 No MI 1.00E+17 0
16657595 No MI 1.00E+17 0
16657598 No MI 0
16657688 No MI 1.00E+17 0
16657693 No MI 1.00E+17 0
16657788 No MI 1.00E+17 0
16657995 No MI 1.00E+17 0
16657999 No MI 0
16657041 No MI 1.00E+17 0
16657044 No MI 1.00E+17 0
16657045 No MI 1.00E+17 0
16657065 No MI 1.00E+17 0
16657078 No MI 1.00E+17 0
16657085 No MI 1.00E+17 0
16657086 No MI 1.00E+17 0
16657087 No MI 1.00E+17 0
16657090 No MI 1.00E+17 0
16657106 Republic MIC 1.00E+17 0
16657112 No MI 1.00E+17 0
16657117 No MI 1.00E+17 0
16657119 United Guaranty 1.00E+17 0
16657120 Radian Guaranty 1.00E+17 0
16657121 No MI 1.00E+17 0
16657125 No MI 1.00E+17 0
16657132 No MI 1.00E+17 0
16657134 No MI 1.00E+17 0
16657149 Republic MIC 1.00E+17 0
16657154 No MI 1.00E+17 0
16657158 No MI 1.00E+17 0
16657163 Mortgage Guaranty In 1.00E+17 0
16657166 No MI 1.00E+17 0
16657171 No MI 1.00E+17 0
16657173 No MI 1.00E+17 0
16657180 No MI 1.00E+17 0
16657181 No MI 1.00E+17 0
16657182 No MI 1.00E+17 0
16657183 No MI 1.00E+17 0
16657189 No MI 1.00E+17 0
16657191 No MI 1.00E+17 0
16657192 No MI 1.00E+17 0
16657197 No MI 1.00E+17 0
16657203 No MI 1.00E+17 0
16657206 No MI 1.00E+17 0
16657209 No MI 1.00E+17 0
16657211 No MI 1.00E+17 0
16657220 No MI 1.00E+17 0
16657224 No MI 1.00E+17 0
16657226 No MI 1.00E+17 0
16657231 No MI 1.00E+17 0
16657233 Republic MIC 1.00E+17 0
16657234 No MI 1.00E+17 0
16657237 No MI 1.00E+17 0
16657240 GE Capital MI 1.00E+17 0
16657241 No MI 1.00E+17 0
16657246 No MI 1.00E+17 0
16657248 No MI 1.00E+17 0
16657250 No MI 1.00E+17 0
16657260 No MI 1.00E+17 0
16657268 No MI 1.00E+17 0
16657270 No MI 1.00E+17 0
16657275 PMI 1.00E+17 0
16657276 No MI 1.00E+17 0
16657277 PMI 1.00E+17 0
16657279 No MI 1.00E+17 0
16657280 No MI 1.00E+17 0
16657281 GE Capital MI 1.00E+17 0
16657283 PMI 1.00E+17 0
16657294 No MI 1.00E+17 0
16657295 No MI 1.00E+17 0
16657296 No MI 1.00E+17 0
16657297 Republic MIC 1.00E+17 0
16657298 GE Capital MI 1.00E+17 0
16657300 No MI 1.00E+17 0
16657303 No MI 1.00E+17 0
16657306 No MI 1.00E+17 0
16657313 No MI 1.00E+17 0
16657316 GE Capital MI 1.00E+17 0
16657319 Republic MIC 1.00E+17 0
16657325 No MI 1.00E+17 0
16657327 No MI 1.00E+17 0
16657332 Republic MIC 1.00E+17 0
16657336 No MI 1.00E+17 0
16657337 No MI 1.00E+17 0
16657338 Republic MIC 1.00E+17 0
16657345 GE Capital MI 1.00E+17 0
16657346 No MI 1.00E+17 0
16657348 No MI 1.00E+17 0
16657349 No MI 1.00E+17 0
16657352 GE Capital MI 1.00E+17 0
16657361 No MI 1.00E+17 0
16657363 GE Capital MI 1.00E+17 0
16657368 No MI 1.00E+17 0
16657369 No MI 1.00E+17 0
16657371 PMI 1.00E+17 0
16657374 Republic MIC 1.00E+17 0
16657383 Republic MIC 0
16657385 No MI 0
16657386 No MI 0
16657387 PMI 0
16657388 No MI 0
16657389 No MI 0
16657390 GE Capital MI 0
16657391 No MI 0
16657393 No MI 0
16657411 No MI 0
16657433 No MI 0
16657451 GE Capital MI 0
16657486 No MI 0
16657508 No MI 1.00E+17 0
16657517 No MI 0
16657519 No MI 1.00E+17 0
16657549 No MI 1.00E+17 0
16657550 No MI 0
16657577 No MI 0
16657580 No MI 1.00E+17 0
16657582 No MI 0
16657586 No MI 0
16657587 No MI 0
16657588 No MI 1.00E+17 0
16657590 No MI 0
16657592 No MI 1.00E+17 0
16657600 No MI 0
16657608 No MI 0
16657614 No MI 0
16657617 No MI 1.00E+17 0
16657623 No MI 1.00E+17 0
16657628 No MI 0
16657632 No MI 1.00E+17 0
16657633 No MI 1.00E+17 0
16657635 No MI 0
16657638 No MI 0
16657640 No MI 1.00E+17 0
16657647 No MI 1.00E+17 0
16657653 No MI 0
16657654 No MI 0
16657658 No MI 0
16657661 PMI 0
16657666 No MI 0
16657667 No MI 0
16657669 No MI 0
16657671 No MI 0
16657677 No MI 0
16657678 No MI 0
16657679 No MI 0
16657681 No MI 1.00E+17 0
16657685 No MI 1.00E+17 0
16657687 No MI 0
16657692 No MI 1.00E+17 0
16657695 GE Capital MI 0
16657698 No MI 0
16657700 No MI 0
16657703 No MI 0
16657704 No MI 1.00E+17 0
16657721 No MI 0
16657366 No MI 1.00E+17 0
16657552 No MI 1.00E+17 0
16657643 No MI 0
16657645 No MI 1.00E+17 0
16657684 No MI 0
16657723 No MI 1.00E+17 0
16657724 No MI 0
16657725 No MI 0
16657727 No MI 1.00E+17 0
16657733 No MI 0
16657736 No MI 0
16657737 No MI 0
16657738 No MI 1.00E+17 0
16657739 No MI 0
16657743 No MI 1.00E+17 0
16657745 No MI 1.00E+17 0
16657746 No MI 0
16657748 No MI 0
16657750 No MI 1.00E+17 0
16657751 No MI 0
16657753 No MI 0
16657754 PMI 0
16657755 No MI 0
16657756 No MI 0
16657759 PMI 0
16657761 No MI 1.00E+17 0
16657764 No MI 0
16657765 No MI 1.00E+17 0
16657771 No MI 0
16657773 No MI 1.00E+17 0
16657776 No MI 0
16657777 PMI 0
16657778 No MI 1.00E+17 0
16657779 GE Capital MI 0
16657780 No MI 1.00E+17 0
16657784 No MI 1.00E+17 0
16657786 No MI 0
16657790 No MI 0
16657792 No MI 0
16657793 No MI 0
16657794 No MI 0
16657797 No MI 0
16657798 No MI 0
16657805 No MI 1.00E+17 0
16657807 No MI 1.00E+17 0
16657808 No MI 0
16657810 No MI 0
16657818 No MI 0
16657821 No MI 0
16657822 No MI 0
16657828 No MI 1.00E+17 0
16657829 No MI 0
16657830 No MI 1.00E+17 0
16657832 No MI 1.00E+17 0
16657834 Republic MIC 0
16657835 No MI 0
16657837 No MI 0
16657841 Republic MIC 0
16657846 No MI 1.00E+17 0
16657850 No MI 1.00E+17 0
16657851 No MI 0
16657854 No MI 0
16657855 United Guaranty 0
16657858 Republic MIC 0
16657860 No MI 1.00E+17 0
16657861 GE Capital MI 0
16657870 No MI 0
16657871 No MI 0
16657876 No MI 1.00E+17 0
16657878 No MI 0
16657879 No MI 0
16657880 No MI 0
16657885 GE Capital MI 0
16657887 No MI 1.00E+17 0
16657888 No MI 0
16657889 No MI 0
16657894 PMI 0
16657896 No MI 0
16657897 No MI 0
16657898 No MI 0
16657905 No MI 0
16657906 No MI 0
16657910 No MI 0
16657912 No MI 0
16657915 No MI 0
16657916 No MI 0
16657917 No MI 0
16657919 No MI 0
16657920 GE Capital MI 0
16657923 No MI 0
16657924 No MI 0
16657925 No MI 1.00E+17 0
16657927 No MI 0
16657930 No MI 0
16657937 No MI 0
16657938 No MI 0
16657939 GE Capital MI 0
16657908 No MI 1.00E+17 0
16657943 No MI 0
16657944 No MI 0
16657951 No MI 0
16657952 No MI 0
16657953 No MI 0
16657954 No MI 0
16657957 No MI 0
16657960 No MI 0
16657961 No MI 0
16657962 No MI 1.00E+17 0
16657964 No MI 0
16657965 No MI 0
16657969 No MI 0
16657972 No MI 0
16657976 No MI 0
16657978 No MI 0
16657982 No MI 0
16657983 PMI 0
16657984 PMI 0
16657985 GE Capital MI 0
16657986 GE Capital MI 0
16657988 GE Capital MI 0
16657989 PMI 0
16657991 No MI 0
16657994 No MI 0
16657996 No MI 0
16657998 PMI 0
16658001 No MI 1.00E+17 0
16658003 No MI 0
16658004 No MI 0
16658008 No MI 0
16658010 Republic MIC 0
16658011 No MI 1.00E+17 0
16658012 No MI 1.00E+17 0
16658013 No MI 0
16658014 No MI 1.00E+17 0
16658017 No MI 0
16658018 Republic MIC 0
16658020 No MI 0
16658025 No MI 1.00E+17 0
16658033 No MI 1.00E+17 0
16658039 No MI 0
16658046 No MI 0
16658053 No MI 0
16658060 No MI 0
16658063 No MI 0
16658073 No MI 0
16658078 No MI 0
16658080 No MI 0
16658086 No MI 0
16658088 No MI 1.00E+17 0
16658089 No MI 1.00E+17 0
16658091 No MI 1.00E+17 0
14425830 No MI 1.00E+17 0 19000101
15628322 No MI 1.00E+17 0
16243109 No MI 1.00E+17 0
15757419 No MI 0
16341408 No MI 1.00E+17 0 19000101
16341423 No MI 1.00E+17 0 19000101
16319910 No MI 1.00E+17 0 19000101
16319915 No MI 1.00E+17 0 19000101
16375684 No MI 1.00E+17 0 19000101
16375685 No MI 1.00E+17 0 19000101
16375701 No MI 1.00E+17 0 19000101
16375711 No MI 1.00E+17 0 19000101
16375714 No MI 1.00E+17 0 19000101
16396190 No MI 0
16396195 No MI 1.00E+17 0
16396198 No MI 1.00E+17 0
16396208 No MI 1.00E+17 0
16396209 No MI 0
16396210 No MI 1.00E+17 0
16396232 No MI 1.00E+17 0
16396241 No MI 1.00E+17 0
15338945 No MI 1.00E+17 0 19000101
15498288 No MI 1.00E+17 0
15628273 No MI 1.00E+17 0
15628284 No MI 1.00E+17 0
15628300 No MI 1.00E+17 0
15628380 No MI 1.00E+17 0
15765233 No MI 1.00E+17 0
16206035 No MI 1.00E+17 0
16341407 No MI 1.00E+17 0 19000101
16341410 No MI 1.00E+17 0 19000101
16341412 No MI 1.00E+17 0 19000101
16341413 No MI 1.00E+17 0 19000101
16341414 No MI 1.00E+17 0 19000101
16341415 No MI 1.00E+17 0 19000101
16341416 No MI 1.00E+17 0 19000101
16341417 No MI 1.00E+17 0 19000101
16341418 No MI 1.00E+17 0 19000101
16341419 No MI 1.00E+17 0 19000101
16341420 No MI 1.00E+17 0 19000101
16341421 No MI 1.00E+17 0 19000101
16341422 No MI 1.00E+17 0 19000101
16341424 No MI 1.00E+17 0 19000101
16319907 No MI 1.00E+17 0 19000101
16319908 No MI 1.00E+17 0 19000101
16319909 No MI 1.00E+17 0 19000101
16319912 No MI 1.00E+17 0 19000101
16319913 No MI 1.00E+17 0 19000101
16319916 No MI 1.00E+17 0 19000101
16319917 No MI 1.00E+17 0 19000101
16319922 No MI 1.00E+17 0 19000101
16319925 No MI 1.00E+17 0 19000101
16319926 No MI 1.00E+17 0 19000101
16319929 No MI 1.00E+17 0 19000101
16319930 No MI 1.00E+17 0 19000101
16319931 No MI 1.00E+17 0 19000101
16319932 No MI 1.00E+17 0 19000101
16319935 No MI 1.00E+17 0 19000101
16319936 No MI 1.00E+17 0 19000101
16319937 No MI 1.00E+17 0 19000101
16319938 No MI 1.00E+17 0 19000101
16375678 No MI 1.00E+17 0 19000101
16375679 No MI 1.00E+17 0 19000101
16375680 No MI 1.00E+17 0 19000101
16375681 No MI 1.00E+17 0 19000101
16375682 No MI 1.00E+17 0 19000101
16375683 No MI 1.00E+17 0 19000101
16375686 No MI 1.00E+17 0 19000101
16375687 No MI 1.00E+17 0 19000101
16375688 No MI 1.00E+17 0 19000101
16375690 No MI 1.00E+17 0 19000101
16375692 No MI 1.00E+17 0 19000101
16375693 No MI 1.00E+17 0 19000101
16375694 No MI 1.00E+17 0 19000101
16375695 No MI 1.00E+17 0 19000101
16375696 No MI 1.00E+17 0 19000101
16375697 No MI 1.00E+17 0 19000101
16375699 No MI 1.00E+17 0 19000101
16375700 No MI 1.00E+17 0 19000101
16375702 No MI 1.00E+17 0 19000101
16375703 No MI 1.00E+17 0 19000101
16375704 No MI 1.00E+17 0 19000101
16375705 No MI 1.00E+17 0 19000101
16375706 No MI 1.00E+17 0 19000101
16375707 No MI 1.00E+17 0 19000101
16375708 No MI 1.00E+17 0 19000101
16375709 No MI 1.00E+17 0 19000101
16375710 No MI 1.00E+17 0 19000101
16396193 No MI 1.00E+17 0
16396194 No MI 1.00E+17 0
16396196 No MI 1.00E+17 0
16396197 No MI 1.00E+17 0
16396200 No MI 1.00E+17 0
16396201 No MI 1.00E+17 0
16396202 No MI 1.00E+17 0
16396205 No MI 1.00E+17 0
16396206 No MI 1.00E+17 0
16396207 No MI 1.00E+17 0
16396211 No MI 1.00E+17 0
16396214 No MI 1.00E+17 0
16396215 No MI 1.00E+17 0
16396217 United Guaranty 1.00E+17 0
16396218 No MI 1.00E+17 0
16396219 No MI 1.00E+17 0
16396221 No MI 1.00E+17 0
16396222 No MI 1.00E+17 0
16396223 No MI 1.00E+17 0
16396226 No MI 1.00E+17 0
16396227 No MI 1.00E+17 0
16396230 No MI 1.00E+17 0
16396231 No MI 1.00E+17 0
16396234 No MI 1.00E+17 0
16396235 No MI 1.00E+17 0
16396237 No MI 1.00E+17 0
16396239 No MI 1.00E+17 0
16396240 No MI 1.00E+17 0
16396242 No MI 1.00E+17 0
16396243 No MI 1.00E+17 0
16396246 No MI 1.00E+17 0
16396247 No MI 1.00E+17 0
16396248 No MI 1.00E+17 0
15498289 No MI 1.00E+17 0
15590615 No MI 1.00E+17 0
15628389 No MI 1.00E+17 0
15628411 No MI 1.00E+17 0
15765225 No MI 1.00E+17 0
16341409 No MI 1.00E+17 0 19000101
16341411 No MI 1.00E+17 0 19000101
16319906 No MI 1.00E+17 0 19000101
16319934 No MI 1.00E+17 0 19000101
16375689 No MI 1.00E+17 0 19000101
16375698 No MI 1.00E+17 0 19000101
16375712 No MI 1.00E+17 0 19000101
16396199 No MI 1.00E+17 0
16396204 No MI 1.00E+17 0
16396213 No MI 1.00E+17 0
16396216 No MI 1.00E+17 0
16396220 No MI 1.00E+17 0
16396225 No MI 1.00E+17 0
16396233 No MI 1.00E+17 0
16396236 No MI 1.00E+17 0
15765213 No MI 1.00E+17 0 19000101
16396238 No MI 1.00E+17 0
15498275 No MI 1.00E+17 0 19000101
16396191 No MI 0
16396224 No MI 1.00E+17 0
16319911 No MI 1.00E+17 0 19000101
16396229 No MI 1.00E+17 0
16657043 United Guaranty 1.00E+17 0
16657053 United Guaranty 1.00E+17 0
16657063 United Guaranty 1.00E+17 0
16657102 United Guaranty 1.00E+17 0
16657138 United Guaranty 1.00E+17 0
16657222 United Guaranty 1.00E+17 0
16657236 United Guaranty 1.00E+17 0
16657255 United Guaranty 1.00E+17 0
16657284 No MI 1.00E+17 0
16657317 No MI 1.00E+17 0
16657334 Triad Guaranty 1.00E+17 0
16657373 No MI 1.00E+17 0
16657375 Republic MIC 1.00E+17 0
16657446 United Guaranty 1.00E+17 0
16657469 United Guaranty 0
16657579 United Guaranty 0
16657639 United Guaranty 1.00E+17 0
16657642 United Guaranty 1.00E+17 0
16657649 United Guaranty 0
16657652 United Guaranty 1.00E+17 0
16657676 United Guaranty 0
16657702 United Guaranty 0
16657787 No MI 0
16657843 No MI 0
16657872 United Guaranty 0
16657940 No MI 0
16657950 No MI 0
16657971 No MI 0
16658071 No MI 0
16657399 No MI 1.00E+17 0
16657655 No MI 1.00E+17 0
16657768 No MI 0
LOAN_ID MAX_ MIN_RATE PER_RATE GROUP_ID LIEN BALLOON
RATE _CAP
---------------------------------------------------------------------------------------------------------------------------
15832932 5.375 0 0 GR1 First Lien No
16015803 5.375 0 0 GR2 First Lien No
16015807 5.375 0 0 GR1 First Lien No
16015810 5.375 0 0 GR1 First Lien No
16015821 6 0 0 GR2 First Lien No
16015822 5.5 0 0 GR1 First Lien No
16015833 5.75 0 0 GR2 First Lien No
16015843 5.875 0 0 GR2 First Lien No
16015863 5.375 0 0 GR1 First Lien No
16015865 5.375 0 0 GR2 First Lien No
16015870 5.75 0 0 GR2 First Lien No
15438581 5.75 0 0 GR2 First Lien No
16657104 7.25 0 0 GR1 First Lien No
16657108 8.25 0 0 GR1 First Lien No
16657116 6.75 0 0 GR1 First Lien No
16657122 7 0 0 GR1 First Lien No
16657049 7.375 0 0 GR1 First Lien No
16657131 8 0 0 GR1 First Lien No
16657051 7.375 0 0 GR1 First Lien No
16657137 5.875 0 0 GR2 First Lien No
16657056 6.5 0 0 GR1 First Lien No
16657060 6.125 0 0 GR2 First Lien No
16658049 6.5 0 0 GR1 First Lien No
16657161 6.625 0 0 GR2 First Lien No
16657089 7.875 0 0 GR1 First Lien No
16657415 6.625 0 0 GR1 First Lien No
16657177 6.5 0 0 GR2 First Lien No
16657096 6.625 0 0 GR1 First Lien No
16657500 6.625 0 0 GR1 First Lien No
16657423 6.5 0 0 GR1 First Lien No
16657425 6.5 0 0 GR1 First Lien No
16657506 6.875 0 0 GR1 First Lien No
16657427 6.5 0 0 GR1 First Lien No
16657428 7 0 0 GR1 First Lien No
16657187 7 0 0 GR1 First Lien No
16657430 6.875 0 0 GR1 First Lien No
16657516 6.5 0 0 GR1 First Lien No
16657518 8.5 0 0 GR1 First Lien No
16657439 6.625 0 0 GR1 First Lien No
16657520 7.875 0 0 GR1 First Lien No
16657602 6.625 0 0 GR1 First Lien No
16657523 6.625 0 0 GR1 First Lien No
16657443 6.5 0 0 GR1 First Lien No
16657605 6.875 0 0 GR1 First Lien No
16657606 6.625 0 0 GR1 First Lien No
16657611 6.75 0 0 GR1 First Lien No
16657612 6.75 0 0 GR1 First Lien No
16657532 6.75 0 0 GR1 First Lien No
16657533 6.375 0 0 GR1 First Lien No
16657452 6.875 0 0 GR1 First Lien No
16657453 6.875 0 0 GR1 First Lien No
16657454 6.375 0 0 GR1 First Lien No
16657537 6.5 0 0 GR1 First Lien No
16657456 6.75 0 0 GR2 First Lien No
16657457 7.5 0 0 GR1 First Lien No
16657459 8 0 0 GR2 First Lien No
16657460 6.5 0 0 GR1 First Lien No
16657624 6.75 0 0 GR1 First Lien No
16657543 6.625 0 0 GR1 First Lien No
16657463 7 0 0 GR1 First Lien No
16657545 6.625 0 0 GR1 First Lien No
16657546 6.625 0 0 GR1 First Lien No
16657465 7.75 0 0 GR1 First Lien No
16657466 8.375 0 0 GR1 First Lien No
16657711 7.5 0 0 GR1 First Lien No
16657470 6.75 0 0 GR1 First Lien No
16657553 6.625 0 0 GR1 First Lien No
16657472 6.25 0 0 GR1 First Lien No
16657554 7.875 0 0 GR1 First Lien No
16657555 7.875 0 0 GR1 First Lien No
16657476 7.875 0 0 GR1 First Lien No
16657477 6.75 0 0 GR1 First Lien No
16657559 7.125 0 0 GR1 First Lien No
16657479 7.875 0 0 GR1 First Lien No
16657804 6.625 0 0 GR1 First Lien No
16657562 6.75 0 0 GR1 First Lien No
16657567 6.5 0 0 GR1 First Lien No
16657568 6 0 0 GR2 First Lien No
16657570 6.875 0 0 GR1 First Lien No
16657490 6.75 0 0 GR1 First Lien No
16657491 6.75 0 0 GR1 First Lien No
16657492 6 0 0 GR2 First Lien No
16657494 6.25 0 0 GR2 First Lien No
16657657 6.625 0 0 GR1 First Lien No
16657497 6.5 0 0 GR1 First Lien No
16657659 6.75 0 0 GR1 First Lien No
16657499 6.625 0 0 GR1 First Lien No
16657581 6.75 0 0 GR1 First Lien No
16657664 6.125 0 0 GR2 First Lien No
16657584 6.25 0 0 GR1 First Lien No
16657585 6.75 0 0 GR2 First Lien No
16657595 6.875 0 0 GR1 First Lien No
16657598 6.5 0 0 GR1 First Lien No
16657688 6.375 0 0 GR1 First Lien No
16657693 6.375 0 0 GR1 First Lien No
16657788 6.625 0 0 GR1 First Lien No
16657995 6.75 0 0 GR1 First Lien No
16657999 7.375 0 0 GR1 First Lien No
16657041 6.625 0 0 GR1 First Lien No
16657044 7 0 0 GR1 First Lien No
16657045 6.875 0 0 GR1 First Lien No
16657065 7.75 0 0 GR1 First Lien No
16657078 6.75 0 0 GR1 First Lien No
16657085 6.25 0 0 GR1 First Lien No
16657086 7.625 0 0 GR1 First Lien No
16657087 7.625 0 0 GR1 First Lien No
16657090 7.625 0 0 GR1 First Lien No
16657106 8.375 0 0 GR1 First Lien No
16657112 6.875 0 0 GR1 First Lien No
16657117 6.875 0 0 GR1 First Lien No
16657119 7.625 0 0 GR1 First Lien No
16657120 8.375 0 0 GR1 First Lien No
16657121 6.5 0 0 GR2 First Lien No
16657125 7.875 0 0 GR1 First Lien No
16657132 7.5 0 0 GR1 First Lien No
16657134 6.625 0 0 GR1 First Lien No
16657149 8.375 0 0 GR1 First Lien No
16657154 7.75 0 0 GR1 First Lien No
16657158 6.625 0 0 GR1 First Lien No
16657163 6.875 0 0 GR1 First Lien No
16657166 7.875 0 0 GR1 First Lien No
16657171 6.375 0 0 GR2 First Lien No
16657173 6.875 0 0 GR1 First Lien No
16657180 7.875 0 0 GR1 First Lien No
16657181 8.125 0 0 GR1 First Lien No
16657182 7.875 0 0 GR1 First Lien No
16657183 6.5 0 0 GR1 First Lien No
16657189 6.875 0 0 GR1 First Lien No
16657191 7.25 0 0 GR1 First Lien No
16657192 7 0 0 GR1 First Lien No
16657197 7.125 0 0 GR1 First Lien No
16657203 6.75 0 0 GR1 First Lien No
16657206 6.75 0 0 GR1 First Lien No
16657209 6.625 0 0 GR1 First Lien No
16657211 6.375 0 0 GR1 First Lien No
16657220 6.875 0 0 GR1 First Lien No
16657224 6.75 0 0 GR1 First Lien No
16657226 6.875 0 0 GR1 First Lien No
16657231 6.5 0 0 GR1 First Lien No
16657233 7.375 0 0 GR1 First Lien No
16657234 6.5 0 0 GR1 First Lien No
16657237 6.875 0 0 GR1 First Lien No
16657240 8.375 0 0 GR1 First Lien No
16657241 6.625 0 0 GR1 First Lien No
16657246 7 0 0 GR1 First Lien No
16657248 7.25 0 0 GR1 First Lien No
16657250 6.875 0 0 GR1 First Lien No
16657260 6.375 0 0 GR2 First Lien No
16657268 6.625 0 0 GR1 First Lien No
16657270 7.875 0 0 GR1 First Lien No
16657275 8.5 0 0 GR1 First Lien No
16657276 8.625 0 0 GR1 First Lien No
16657277 8.75 0 0 GR1 First Lien No
16657279 8 0 0 GR1 First Lien No
16657280 8.5 0 0 GR1 First Lien No
16657281 8.75 0 0 GR1 First Lien No
16657283 8.75 0 0 GR1 First Lien No
16657294 8.625 0 0 GR1 First Lien No
16657295 8.375 0 0 GR1 First Lien No
16657296 7.625 0 0 GR1 First Lien No
16657297 8.375 0 0 GR1 First Lien No
16657298 8.5 0 0 GR1 First Lien No
16657300 6.625 0 0 GR1 First Lien No
16657303 8.625 0 0 GR1 First Lien No
16657306 8.25 0 0 GR1 First Lien No
16657313 7.625 0 0 GR1 First Lien No
16657316 8.25 0 0 GR1 First Lien No
16657319 8.375 0 0 GR1 First Lien No
16657325 6.875 0 0 GR1 First Lien No
16657327 8.5 0 0 GR1 First Lien No
16657332 8.625 0 0 GR1 First Lien No
16657336 8.25 0 0 GR1 First Lien No
16657337 7.625 0 0 GR1 First Lien No
16657338 7.375 0 0 GR1 First Lien No
16657345 8.25 0 0 GR1 First Lien No
16657346 7 0 0 GR1 First Lien No
16657348 6.75 0 0 GR1 First Lien No
16657349 6.75 0 0 GR1 First Lien No
16657352 8.5 0 0 GR1 First Lien No
16657361 7.875 0 0 GR1 First Lien No
16657363 8.125 0 0 GR1 First Lien No
16657368 6.75 0 0 GR1 First Lien No
16657369 6.875 0 0 GR1 First Lien No
16657371 8.25 0 0 GR1 First Lien Yes
16657374 8.125 0 0 GR1 First Lien No
16657383 7.875 0 0 GR1 First Lien No
16657385 8.125 0 0 GR1 First Lien No
16657386 8.375 0 0 GR1 First Lien No
16657387 8.5 0 0 GR1 First Lien No
16657388 8.625 0 0 GR1 First Lien No
16657389 8.625 0 0 GR1 First Lien No
16657390 8.125 0 0 GR1 First Lien No
16657391 8.5 0 0 GR1 First Lien No
16657393 8 0 0 GR1 First Lien No
16657411 6.75 0 0 GR1 First Lien No
16657433 6.625 0 0 GR1 First Lien No
16657451 7.25 0 0 GR1 First Lien No
16657486 6.5 0 0 GR1 First Lien No
16657508 6.5 0 0 GR2 First Lien No
16657517 6.5 0 0 GR1 First Lien No
16657519 6.75 0 0 GR1 First Lien No
16657549 6.5 0 0 GR1 First Lien No
16657550 5.875 0 0 GR2 First Lien No
16657577 6.875 0 0 GR1 First Lien No
16657580 6.75 0 0 GR1 First Lien No
16657582 6.625 0 0 GR1 First Lien No
16657586 6.875 0 0 GR1 First Lien No
16657587 6.875 0 0 GR1 First Lien No
16657588 6.75 0 0 GR1 First Lien No
16657590 6.625 0 0 GR1 First Lien No
16657592 6.5 0 0 GR1 First Lien No
16657600 8 0 0 GR1 First Lien No
16657608 8.125 0 0 GR1 First Lien No
16657614 6.5 0 0 GR1 First Lien No
16657617 6.375 0 0 GR1 First Lien No
16657623 6.5 0 0 GR2 First Lien No
16657628 6.25 0 0 GR2 First Lien No
16657632 6.5 0 0 GR1 First Lien No
16657633 6.5 0 0 GR1 First Lien No
16657635 8.5 0 0 GR1 First Lien No
16657638 6.625 0 0 GR1 First Lien No
16657640 6.625 0 0 GR1 First Lien No
16657647 6.375 0 0 GR1 First Lien No
16657653 6.625 0 0 GR1 First Lien No
16657654 6.875 0 0 GR1 First Lien No
16657658 6.625 0 0 GR1 First Lien No
16657661 8.625 0 0 GR1 First Lien No
16657666 6.75 0 0 GR1 First Lien No
16657667 6.75 0 0 GR1 First Lien No
16657669 6.625 0 0 GR1 First Lien No
16657671 6.75 0 0 GR1 First Lien No
16657677 6.625 0 0 GR1 First Lien No
16657678 7.375 0 0 GR1 First Lien No
16657679 6.5 0 0 GR1 First Lien No
16657681 6.625 0 0 GR1 First Lien No
16657685 6.875 0 0 GR1 First Lien No
16657687 8.25 0 0 GR1 First Lien No
16657692 6.375 0 0 GR1 First Lien No
16657695 8.5 0 0 GR1 First Lien No
16657698 6.5 0 0 GR1 First Lien No
16657700 6.75 0 0 GR1 First Lien No
16657703 6.625 0 0 GR1 First Lien No
16657704 6.75 0 0 GR1 First Lien No
16657721 8.5 0 0 GR1 First Lien No
16657366 6.875 0 0 GR1 First Lien No
16657552 6.75 0 0 GR1 First Lien No
16657643 6.75 0 0 GR1 First Lien No
16657645 6.75 0 0 GR1 First Lien No
16657684 8.25 0 0 GR1 First Lien No
16657723 6.625 0 0 GR1 First Lien No
16657724 6.75 0 0 GR1 First Lien No
16657725 6.625 0 0 GR2 First Lien No
16657727 6.875 0 0 GR1 First Lien No
16657733 6.375 0 0 GR1 First Lien No
16657736 6.75 0 0 GR1 First Lien No
16657737 7.875 0 0 GR1 First Lien No
16657738 6.75 0 0 GR1 First Lien No
16657739 6.625 0 0 GR1 First Lien No
16657743 6.75 0 0 GR1 First Lien No
16657745 7 0 0 GR1 First Lien No
16657746 6.625 0 0 GR1 First Lien No
16657748 7 0 0 GR1 First Lien No
16657750 6.625 0 0 GR1 First Lien No
16657751 6.875 0 0 GR1 First Lien No
16657753 6.125 0 0 GR1 First Lien No
16657754 8.5 0 0 GR1 First Lien No
16657755 6.5 0 0 GR1 First Lien No
16657756 6.625 0 0 GR1 First Lien No
16657759 8.125 0 0 GR1 First Lien No
16657761 6.75 0 0 GR1 First Lien No
16657764 6.75 0 0 GR1 First Lien No
16657765 6.75 0 0 GR1 First Lien No
16657771 8.5 0 0 GR1 First Lien No
16657773 6.875 0 0 GR1 First Lien No
16657776 6.625 0 0 GR1 First Lien No
16657777 8.75 0 0 GR1 First Lien No
16657778 6.5 0 0 GR1 First Lien No
16657779 8.375 0 0 GR1 First Lien No
16657780 6.875 0 0 GR1 First Lien No
16657784 6.875 0 0 GR1 First Lien No
16657786 8.25 0 0 GR1 First Lien No
16657790 6.625 0 0 GR1 First Lien No
16657792 8 0 0 GR1 First Lien No
16657793 8.375 0 0 GR1 First Lien No
16657794 6.75 0 0 GR1 First Lien No
16657797 8.25 0 0 GR1 First Lien No
16657798 6.625 0 0 GR1 First Lien No
16657805 6.75 0 0 GR1 First Lien No
16657807 6.875 0 0 GR1 First Lien No
16657808 6.75 0 0 GR1 First Lien No
16657810 6.875 0 0 GR1 First Lien No
16657818 6.625 0 0 GR2 First Lien No
16657821 6.75 0 0 GR1 First Lien No
16657822 7 0 0 GR1 First Lien No
16657828 6.875 0 0 GR1 First Lien No
16657829 7.75 0 0 GR1 First Lien No
16657830 6.75 0 0 GR1 First Lien No
16657832 6.625 0 0 GR1 First Lien No
16657834 7.875 0 0 GR1 First Lien No
16657835 7 0 0 GR1 First Lien No
16657837 8.625 0 0 GR1 First Lien No
16657841 8.875 0 0 GR1 First Lien No
16657846 6.625 0 0 GR1 First Lien No
16657850 6.625 0 0 GR1 First Lien No
16657851 6.75 0 0 GR1 First Lien No
16657854 7 0 0 GR1 First Lien No
16657855 7.625 0 0 GR1 First Lien No
16657858 8.375 0 0 GR1 First Lien No
16657860 6.75 0 0 GR1 First Lien No
16657861 8.625 0 0 GR1 First Lien No
16657870 7.25 0 0 GR1 First Lien No
16657871 7 0 0 GR1 First Lien No
16657876 7 0 0 GR1 First Lien No
16657878 6.625 0 0 GR1 First Lien No
16657879 6.75 0 0 GR1 First Lien No
16657880 6.75 0 0 GR1 First Lien No
16657885 8.5 0 0 GR1 First Lien No
16657887 6.75 0 0 GR1 First Lien No
16657888 6.875 0 0 GR1 First Lien No
16657889 6.625 0 0 GR1 First Lien No
16657894 8.25 0 0 GR1 First Lien No
16657896 7 0 0 GR1 First Lien No
16657897 6.625 0 0 GR1 First Lien No
16657898 6.625 0 0 GR1 First Lien No
16657905 6.875 0 0 GR1 First Lien No
16657906 6.75 0 0 GR1 First Lien No
16657910 6.875 0 0 GR1 First Lien No
16657912 7 0 0 GR1 First Lien No
16657915 6.5 0 0 GR1 First Lien No
16657916 6.25 0 0 GR1 First Lien No
16657917 6.875 0 0 GR1 First Lien No
16657919 7.25 0 0 GR2 First Lien No
16657920 7.5 0 0 GR1 First Lien No
16657923 6.875 0 0 GR1 First Lien No
16657924 6.875 0 0 GR1 First Lien No
16657925 7 0 0 GR1 First Lien No
16657927 7.875 0 0 GR1 First Lien No
16657930 6.875 0 0 GR1 First Lien No
16657937 6.875 0 0 GR1 First Lien No
16657938 7.375 0 0 GR1 First Lien No
16657939 8.625 0 0 GR1 First Lien No
16657908 6.75 0 0 GR1 First Lien No
16657943 6.5 0 0 GR1 First Lien No
16657944 6.625 0 0 GR1 First Lien No
16657951 7 0 0 GR1 First Lien No
16657952 6.875 0 0 GR1 First Lien No
16657953 6.75 0 0 GR1 First Lien No
16657954 6.75 0 0 GR1 First Lien No
16657957 6.625 0 0 GR1 First Lien No
16657960 6.75 0 0 GR1 First Lien No
16657961 7 0 0 GR1 First Lien No
16657962 6.75 0 0 GR1 First Lien No
16657964 6.875 0 0 GR1 First Lien No
16657965 6.5 0 0 GR1 First Lien Yes
16657969 6.625 0 0 GR1 First Lien No
16657972 7.25 0 0 GR1 First Lien No
16657976 6.5 0 0 GR1 First Lien No
16657978 6.75 0 0 GR1 First Lien No
16657982 7.5 0 0 GR1 First Lien No
16657983 8.75 0 0 GR1 First Lien No
16657984 8.75 0 0 GR1 First Lien No
16657985 8.75 0 0 GR1 First Lien No
16657986 8.75 0 0 GR1 First Lien No
16657988 8.75 0 0 GR1 First Lien No
16657989 8.75 0 0 GR1 First Lien No
16657991 7.625 0 0 GR1 First Lien No
16657994 6.625 0 0 GR1 First Lien No
16657996 6.625 0 0 GR1 First Lien No
16657998 8.125 0 0 GR1 First Lien No
16658001 6.875 0 0 GR1 First Lien No
16658003 6.75 0 0 GR1 First Lien No
16658004 6.875 0 0 GR1 First Lien No
16658008 8.125 0 0 GR1 First Lien No
16658010 8.25 0 0 GR1 First Lien No
16658011 7.25 0 0 GR1 First Lien No
16658012 6.375 0 0 GR1 First Lien No
16658013 6.875 0 0 GR1 First Lien No
16658014 6.75 0 0 GR1 First Lien No
16658017 6.875 0 0 GR1 First Lien No
16658018 8.125 0 0 GR1 First Lien No
16658020 6.75 0 0 GR1 First Lien No
16658025 6.75 0 0 GR1 First Lien No
16658033 7.25 0 0 GR1 First Lien No
16658039 6.875 0 0 GR1 First Lien No
16658046 6.875 0 0 GR1 First Lien No
16658053 7.125 0 0 GR1 First Lien No
16658060 6.5 0 0 GR1 First Lien No
16658063 7.125 0 0 GR1 First Lien No
16658073 6.625 0 0 GR1 First Lien No
16658078 7.5 0 0 GR1 First Lien No
16658080 7 0 0 GR1 First Lien No
16658086 7.125 0 0 GR1 First Lien No
16658088 6.875 0 0 GR1 First Lien No
16658089 6.875 0 0 GR1 First Lien No
16658091 6.875 0 0 GR1 First Lien No
14425830 5.375 0 0 GR1 First Lien No
15628322 5.5 0 0 GR1 First Lien No
16243109 7.125 0 0 GR1 First Lien No
15757419 5.875 0 0 GR2 First Lien No
16341408 6.125 0 0 GR1 First Lien No
16341423 7 0 0 GR1 First Lien No
16319910 6.5 0 0 GR2 First Lien No
16319915 6.5 0 0 GR2 First Lien No
16375684 6.375 0 0 GR1 First Lien No
16375685 6.875 0 0 GR1 First Lien No
16375701 6.375 0 0 GR1 First Lien No
16375711 6.25 0 0 GR1 First Lien No
16375714 6.625 0 0 GR1 First Lien No
16396190 6.875 0 0 GR2 First Lien No
16396195 6 0 0 GR2 First Lien No
16396198 6.5 0 0 GR2 First Lien No
16396208 6.5 0 0 GR2 First Lien No
16396209 6.25 0 0 GR2 First Lien No
16396210 6.75 0 0 GR2 First Lien No
16396232 6.625 0 0 GR2 First Lien No
16396241 6.5 0 0 GR2 First Lien No
15338945 5.625 0 0 GR1 First Lien No
15498288 5.75 0 0 GR1 First Lien No
15628273 5.25 0 0 GR1 First Lien No
15628284 5.375 0 0 GR1 First Lien No
15628300 5.5 0 0 GR1 First Lien No
15628380 5.5 0 0 GR1 First Lien No
15765233 5.75 0 0 GR1 First Lien No
16206035 6.375 0 0 GR1 First Lien No
16341407 6.625 0 0 GR1 First Lien No
16341410 6.375 0 0 GR1 First Lien No
16341412 6.625 0 0 GR1 First Lien No
16341413 6.875 0 0 GR1 First Lien No
16341414 6.5 0 0 GR1 First Lien No
16341415 6.875 0 0 GR1 First Lien No
16341416 6.5 0 0 GR1 First Lien No
16341417 6.5 0 0 GR1 First Lien No
16341418 6.5 0 0 GR1 First Lien No
16341419 6.5 0 0 GR1 First Lien No
16341420 6.5 0 0 GR1 First Lien No
16341421 6.75 0 0 GR1 First Lien No
16341422 6.625 0 0 GR1 First Lien No
16341424 6.625 0 0 GR1 First Lien No
16319907 6.375 0 0 GR2 First Lien No
16319908 5.875 0 0 GR2 First Lien No
16319909 5.875 0 0 GR2 First Lien No
16319912 6 0 0 GR2 First Lien No
16319913 6.75 0 0 GR2 First Lien No
16319916 6.5 0 0 GR2 First Lien No
16319917 6.375 0 0 GR2 First Lien No
16319922 5.875 0 0 GR2 First Lien No
16319925 6.25 0 0 GR2 First Lien No
16319926 5.875 0 0 GR2 First Lien No
16319929 5.875 0 0 GR2 First Lien No
16319930 6 0 0 GR2 First Lien No
16319931 6.125 0 0 GR2 First Lien No
16319932 6.25 0 0 GR2 First Lien No
16319935 6.25 0 0 GR2 First Lien No
16319936 6 0 0 GR2 First Lien No
16319937 6.375 0 0 GR2 First Lien No
16319938 5.875 0 0 GR2 First Lien No
16375678 6.5 0 0 GR1 First Lien No
16375679 5.75 0 0 GR2 First Lien No
16375680 6.125 0 0 GR1 First Lien No
16375681 6.25 0 0 GR1 First Lien No
16375682 6.5 0 0 GR1 First Lien No
16375683 6.625 0 0 GR1 First Lien No
16375686 6.375 0 0 GR1 First Lien No
16375687 6.375 0 0 GR1 First Lien No
16375688 6.375 0 0 GR1 First Lien No
16375690 6.375 0 0 GR1 First Lien No
16375692 6.5 0 0 GR1 First Lien No
16375693 6.5 0 0 GR1 First Lien No
16375694 6.5 0 0 GR1 First Lien No
16375695 6.375 0 0 GR1 First Lien No
16375696 6.25 0 0 GR2 First Lien No
16375697 6.5 0 0 GR1 First Lien No
16375699 6.625 0 0 GR1 First Lien No
16375700 6.5 0 0 GR1 First Lien No
16375702 6.5 0 0 GR1 First Lien No
16375703 6.625 0 0 GR1 First Lien No
16375704 6.5 0 0 GR1 First Lien No
16375705 6.5 0 0 GR1 First Lien No
16375706 6.5 0 0 GR1 First Lien No
16375707 6.5 0 0 GR1 First Lien No
16375708 6.5 0 0 GR1 First Lien No
16375709 6.5 0 0 GR1 First Lien No
16375710 6.5 0 0 GR1 First Lien No
16396193 5.875 0 0 GR2 First Lien No
16396194 6.25 0 0 GR2 First Lien No
16396196 6.375 0 0 GR2 First Lien No
16396197 6.25 0 0 GR2 First Lien No
16396200 6.125 0 0 GR2 First Lien No
16396201 6.125 0 0 GR2 First Lien No
16396202 6.25 0 0 GR2 First Lien No
16396205 6.625 0 0 GR2 First Lien No
16396206 6.25 0 0 GR2 First Lien No
16396207 6.5 0 0 GR2 First Lien No
16396211 6.5 0 0 GR2 First Lien No
16396214 6.25 0 0 GR2 First Lien No
16396215 6.375 0 0 GR2 First Lien No
16396217 6.25 0 0 GR2 First Lien No
16396218 6 0 0 GR2 First Lien No
16396219 6.5 0 0 GR2 First Lien No
16396221 6.625 0 0 GR2 First Lien No
16396222 6.375 0 0 GR2 First Lien No
16396223 6.5 0 0 GR2 First Lien No
16396226 6 0 0 GR2 First Lien No
16396227 6.375 0 0 GR2 First Lien No
16396230 6.5 0 0 GR2 First Lien No
16396231 6.25 0 0 GR2 First Lien No
16396234 6.25 0 0 GR2 First Lien No
16396235 6.5 0 0 GR2 First Lien No
16396237 6.75 0 0 GR2 First Lien No
16396239 6.375 0 0 GR2 First Lien No
16396240 6.375 0 0 GR2 First Lien No
16396242 6.375 0 0 GR2 First Lien No
16396243 6.5 0 0 GR2 First Lien No
16396246 6.125 0 0 GR2 First Lien No
16396247 6.375 0 0 GR2 First Lien No
16396248 6.625 0 0 GR2 First Lien No
15498289 6 0 0 GR1 First Lien No
15590615 5.875 0 0 GR1 First Lien No
15628389 5.5 0 0 GR1 First Lien No
15628411 5.5 0 0 GR1 First Lien No
15765225 5.875 0 0 GR1 First Lien No
16341409 6.375 0 0 GR1 First Lien No
16341411 6.5 0 0 GR1 First Lien No
16319906 6 0 0 GR2 First Lien No
16319934 6.625 0 0 GR2 First Lien No
16375689 5.75 0 0 GR2 First Lien No
16375698 6.5 0 0 GR1 First Lien No
16375712 6.75 0 0 GR1 First Lien No
16396199 6.25 0 0 GR2 First Lien No
16396204 6.5 0 0 GR2 First Lien No
16396213 6.625 0 0 GR2 First Lien No
16396216 6.375 0 0 GR2 First Lien No
16396220 6.5 0 0 GR2 First Lien No
16396225 6.625 0 0 GR2 First Lien No
16396233 6.5 0 0 GR2 First Lien No
16396236 6.375 0 0 GR2 First Lien No
15765213 6.25 0 0 GR1 First Lien No
16396238 6.625 0 0 GR2 First Lien No
15498275 6.125 0 0 GR1 First Lien No
16396191 6.625 0 0 GR2 First Lien No
16396224 6.625 0 0 GR2 First Lien No
16319911 6.875 0 0 GR2 First Lien No
16396229 6.375 0 0 GR2 First Lien No
16657043 7.5 0 0 GR1 First Lien No
16657053 6.75 0 0 GR1 First Lien No
16657063 6.625 0 0 GR1 First Lien No
16657102 7.125 0 0 GR1 First Lien No
16657138 7.5 0 0 GR1 First Lien No
16657222 7.375 0 0 GR1 First Lien No
16657236 7.25 0 0 GR1 First Lien No
16657255 7.625 0 0 GR1 First Lien No
16657284 6.875 0 0 GR1 First Lien Yes
16657317 8.75 0 0 GR1 First Lien Yes
16657334 7.375 0 0 GR1 First Lien Yes
16657373 7.25 0 0 GR1 First Lien Yes
16657375 8 0 0 GR1 First Lien Yes
16657446 7.375 0 0 GR1 First Lien No
16657469 7.875 0 0 GR1 First Lien No
16657579 7.5 0 0 GR1 First Lien No
16657639 7.5 0 0 GR1 First Lien No
16657642 7.125 0 0 GR1 First Lien No
16657649 7.625 0 0 GR1 First Lien No
16657652 7.375 0 0 GR1 First Lien No
16657676 7.5 0 0 GR1 First Lien No
16657702 7.625 0 0 GR1 First Lien No
16657787 6.875 0 0 GR1 First Lien Yes
16657843 6.5 0 0 GR1 First Lien Yes
16657872 7.875 0 0 GR1 First Lien No
16657940 6.875 0 0 GR1 First Lien Yes
16657950 6.5 0 0 GR1 First Lien Yes
16657971 6.75 0 0 GR1 First Lien Yes
16658071 7.75 0 0 GR1 First Lien Yes
16657399 6 0 0 GR1 First Lien No
16657655 5.375 0 0 GR2 First Lien No
16657768 6.125 0 0 GR1 First Lien No
LOAN_ID IO_ PORTFOLIO PREPAY
PERIOD
---------------------------------------------------------------------------------
15832932 0 JUMB No
16015803 0 JUMB No
16015807 0 JUMB No
16015810 120 JUMB No
16015821 0 JUMB No
16015822 0 JUMB No
16015833 0 JUMB No
16015843 0 JUMB No
16015863 0 JUMB No
16015865 0 JUMB No
16015870 0 JUMB No
15438581 0 JUMB No
16657104 0 JUMB No
16657108 0 JUMB No
16657116 0 JUMB No
16657122 120 JUMB No
16657049 0 JUMB No
16657131 0 JUMB No
16657051 0 JUMB No
16657137 0 JUMB No
16657056 0 JUMB No
16657060 0 JUMB No
16658049 0 JUMB No
16657161 0 JUMB No
16657089 0 JUMB No
16657415 180 JUMB No
16657177 0 JUMB No
16657096 0 JUMB No
16657500 120 JUMB No
16657423 120 JUMB No
16657425 0 JUMB No
16657506 0 JUMB No
16657427 0 JUMB No
16657428 0 JUMB No
16657187 0 JUMB No
16657430 0 JUMB No
16657516 0 JUMB No
16657518 0 JUMB No
16657439 0 JUMB No
16657520 120 JUMB No
16657602 0 JUMB No
16657523 0 JUMB No
16657443 0 JUMB No
16657605 120 JUMB No
16657606 0 JUMB No
16657611 120 JUMB No
16657612 120 JUMB No
16657532 120 JUMB No
16657533 0 JUMB No
16657452 0 JUMB No
16657453 0 JUMB No
16657454 0 JUMB No
16657537 120 JUMB No
16657456 0 JUMB No
16657457 0 JUMB No
16657459 0 JUMB No
16657460 0 JUMB No
16657624 0 JUMB No
16657543 0 JUMB No
16657463 120 JUMB No
16657545 120 JUMB No
16657546 0 JUMB No
16657465 0 JUMB No
16657466 0 JUMB No
16657711 0 JUMB No
16657470 0 JUMB No
16657553 0 JUMB No
16657472 0 JUMB No
16657554 0 JUMB No
16657555 0 JUMB No
16657476 0 JUMB No
16657477 0 JUMB No
16657559 120 JUMB No
16657479 0 JUMB No
16657804 0 JUMB No
16657562 180 JUMB No
16657567 0 JUMB No
16657568 0 JUMB No
16657570 0 JUMB No
16657490 120 JUMB No
16657491 0 JUMB No
16657492 0 JUMB No
16657494 0 JUMB No
16657657 120 JUMB No
16657497 0 JUMB No
16657659 0 JUMB No
16657499 0 JUMB No
16657581 0 JUMB No
16657664 0 JUMB No
16657584 0 JUMB No
16657585 0 JUMB No
16657595 0 JUMB No
16657598 0 JUMB No
16657688 0 JUMB No
16657693 0 JUMB No
16657788 0 JUMB No
16657995 0 JUMB No
16657999 0 JUMB No
16657041 0 MJUM No
16657044 0 MJUM No
16657045 0 MJUM No
16657065 0 MJUM No
16657078 0 MJUM No
16657085 0 MJUM No
16657086 0 MJUM No
16657087 0 MJUM No
16657090 0 MJUM No
16657106 120 MJUM No
16657112 0 MJUM No
16657117 120 MJUM No
16657119 0 MJUM No
16657120 0 MJUM No
16657121 0 MJUM No
16657125 0 MJUM No
16657132 0 MJUM No
16657134 0 MJUM No
16657149 0 MJUM No
16657154 0 MJUM No
16657158 0 MJUM No
16657163 0 MJUM No
16657166 0 MJUM No
16657171 0 MJUM No
16657173 0 MJUM No
16657180 0 MJUM No
16657181 0 MJUM No
16657182 0 MJUM No
16657183 0 MJUM No
16657189 0 MJUM No
16657191 0 MJUM No
16657192 0 MJUM No
16657197 0 MJUM No
16657203 0 MJUM No
16657206 180 MJUM No
16657209 0 MJUM No
16657211 0 MJUM No
16657220 180 MJUM No
16657224 0 MJUM No
16657226 0 MJUM No
16657231 0 MJUM No
16657233 0 MJUM No
16657234 180 MJUM No
16657237 0 MJUM No
16657240 0 MJUM No
16657241 0 MJUM No
16657246 0 MJUM No
16657248 0 MJUM No
16657250 0 MJUM No
16657260 0 MJUM No
16657268 0 MJUM No
16657270 0 MJUM No
16657275 60 MJUM No
16657276 0 MJUM No
16657277 0 MJUM No
16657279 0 MJUM No
16657280 0 MJUM No
16657281 0 MJUM No
16657283 0 MJUM No
16657294 60 MJUM No
16657295 0 MJUM No
16657296 0 MJUM No
16657297 60 MJUM No
16657298 0 MJUM No
16657300 0 MJUM No
16657303 0 MJUM No
16657306 0 MJUM No
16657313 0 MJUM No
16657316 0 MJUM No
16657319 0 MJUM No
16657325 0 MJUM No
16657327 60 MJUM No
16657332 0 MJUM No
16657336 0 MJUM No
16657337 0 MJUM No
16657338 0 MJUM No
16657345 0 MJUM No
16657346 0 MJUM No
16657348 0 MJUM No
16657349 60 MJUM No
16657352 0 MJUM No
16657361 0 MJUM No
16657363 0 MJUM No
16657368 180 MJUM No
16657369 180 MJUM No
16657371 0 MJUM No
16657374 0 MJUM No
16657383 60 MJUM No
16657385 60 MJUM No
16657386 60 MJUM No
16657387 60 MJUM No
16657388 60 MJUM No
16657389 60 MJUM No
16657390 60 MJUM No
16657391 60 MJUM No
16657393 60 MJUM No
16657411 120 MJUM No
16657433 0 MJUM No
16657451 0 MJUM No
16657486 0 MJUM No
16657508 0 MJUM No
16657517 180 MJUM No
16657519 120 MJUM No
16657549 0 MJUM No
16657550 0 MJUM No
16657577 0 MJUM No
16657580 120 MJUM No
16657582 0 MJUM No
16657586 0 MJUM No
16657587 0 MJUM No
16657588 0 MJUM No
16657590 0 MJUM No
16657592 0 MJUM No
16657600 0 MJUM No
16657608 120 MJUM No
16657614 0 MJUM No
16657617 0 MJUM No
16657623 0 MJUM No
16657628 0 MJUM No
16657632 0 MJUM No
16657633 0 MJUM No
16657635 0 MJUM No
16657638 0 MJUM No
16657640 0 MJUM No
16657647 0 MJUM No
16657653 180 MJUM No
16657654 0 MJUM No
16657658 0 MJUM No
16657661 0 MJUM No
16657666 120 MJUM No
16657667 0 MJUM No
16657669 0 MJUM No
16657671 0 MJUM No
16657677 0 MJUM No
16657678 0 MJUM No
16657679 0 MJUM No
16657681 0 MJUM No
16657685 0 MJUM No
16657687 0 MJUM No
16657692 120 MJUM No
16657695 0 MJUM No
16657698 0 MJUM No
16657700 120 MJUM No
16657703 0 MJUM No
16657704 0 MJUM No
16657721 0 MJUM No
16657366 0 MJUM No
16657552 0 MJUM No
16657643 0 MJUM No
16657645 120 MJUM No
16657684 0 MJUM No
16657723 0 MJUM No
16657724 180 MJUM No
16657725 0 MJUM No
16657727 120 MJUM No
16657733 0 MJUM No
16657736 0 MJUM No
16657737 0 MJUM No
16657738 120 MJUM No
16657739 180 MJUM No
16657743 120 MJUM No
16657745 0 MJUM No
16657746 180 MJUM No
16657748 0 MJUM No
16657750 0 MJUM No
16657751 0 MJUM No
16657753 0 MJUM No
16657754 0 MJUM No
16657755 0 MJUM No
16657756 180 MJUM No
16657759 0 MJUM No
16657761 0 MJUM No
16657764 0 MJUM No
16657765 180 MJUM No
16657771 0 MJUM No
16657773 120 MJUM No
16657776 0 MJUM No
16657777 0 MJUM No
16657778 0 MJUM No
16657779 0 MJUM No
16657780 0 MJUM No
16657784 0 MJUM No
16657786 0 MJUM No
16657790 120 MJUM No
16657792 0 MJUM No
16657793 0 MJUM No
16657794 0 MJUM No
16657797 0 MJUM No
16657798 180 MJUM No
16657805 120 MJUM No
16657807 0 MJUM No
16657808 0 MJUM No
16657810 0 MJUM No
16657818 0 MJUM No
16657821 0 MJUM No
16657822 120 MJUM No
16657828 0 MJUM No
16657829 0 MJUM No
16657830 0 MJUM No
16657832 0 MJUM No
16657834 0 MJUM No
16657835 180 MJUM No
16657837 120 MJUM No
16657841 0 MJUM No
16657846 0 MJUM No
16657850 0 MJUM No
16657851 0 MJUM No
16657854 120 MJUM No
16657855 60 MJUM No
16657858 0 MJUM No
16657860 0 MJUM No
16657861 0 MJUM No
16657870 0 MJUM No
16657871 0 MJUM No
16657876 120 MJUM No
16657878 0 MJUM No
16657879 120 MJUM No
16657880 0 MJUM No
16657885 120 MJUM No
16657887 120 MJUM No
16657888 0 MJUM No
16657889 180 MJUM No
16657894 0 MJUM No
16657896 0 MJUM No
16657897 0 MJUM No
16657898 120 MJUM No
16657905 0 MJUM No
16657906 0 MJUM No
16657910 0 MJUM No
16657912 0 MJUM No
16657915 60 MJUM No
16657916 0 MJUM No
16657917 0 MJUM No
16657919 0 MJUM No
16657920 0 MJUM No
16657923 0 MJUM No
16657924 180 MJUM No
16657925 0 MJUM No
16657927 0 MJUM No
16657930 0 MJUM No
16657937 120 MJUM No
16657938 120 MJUM No
16657939 0 MJUM No
16657908 120 MJUM No
16657943 0 MJUM No
16657944 0 MJUM No
16657951 0 MJUM No
16657952 0 MJUM No
16657953 0 MJUM No
16657954 180 MJUM No
16657957 60 MJUM No
16657960 0 MJUM No
16657961 60 MJUM No
16657962 120 MJUM No
16657964 120 MJUM No
16657965 0 MJUM No
16657969 0 MJUM No
16657972 120 MJUM No
16657976 0 MJUM No
16657978 0 MJUM No
16657982 0 MJUM No
16657983 0 MJUM No
16657984 0 MJUM No
16657985 0 MJUM No
16657986 0 MJUM No
16657988 0 MJUM No
16657989 0 MJUM No
16657991 0 MJUM No
16657994 0 MJUM No
16657996 0 MJUM No
16657998 0 MJUM No
16658001 0 MJUM No
16658003 180 MJUM No
16658004 0 MJUM No
16658008 180 MJUM No
16658010 0 MJUM No
16658011 120 MJUM No
16658012 0 MJUM No
16658013 0 MJUM No
16658014 120 MJUM No
16658017 0 MJUM No
16658018 0 MJUM No
16658020 120 MJUM No
16658025 0 MJUM No
16658033 120 MJUM No
16658039 0 MJUM No
16658046 0 MJUM No
16658053 0 MJUM No
16658060 0 MJUM No
16658063 60 MJUM No
16658073 60 MJUM No
16658078 60 MJUM No
16658080 120 MJUM No
16658086 60 MJUM No
16658088 0 MJUM No
16658089 0 MJUM No
16658091 0 MJUM No
14425830 0 JUMB No
15628322 60 JUMB Yes
16243109 0 EFLO No
15757419 0 REPR No
16341408 0 JUMB No
16341423 0 MJUM No
16319910 120 JUMB No
16319915 120 JUMB No
16375684 0 MJUM No
16375685 0 MJUM No
16375701 0 MJUM No
16375711 0 MJUM No
16375714 0 MJUM No
16396190 120 JUMB No
16396195 120 MJUM No
16396198 120 MJUM No
16396208 120 MJUM No
16396209 120 MJUM No
16396210 120 JUMB No
16396232 120 MJUM No
16396241 120 MJUM No
15338945 120 REPR Yes
15498288 0 REPR No
15628273 60 JUMB Yes
15628284 120 JUMB Yes
15628300 60 JUMB Yes
15628380 60 JUMB Yes
15765233 0 REPR No
16206035 120 EFLO No
16341407 0 JUMB No
16341410 0 JUMB No
16341412 0 MJUM No
16341413 120 JUMB No
16341414 120 JUMB No
16341415 0 JUMB No
16341416 0 JUMB No
16341417 120 MJUM No
16341418 0 JUMB No
16341419 0 JUMB No
16341420 120 JUMB No
16341421 120 JUMB No
16341422 120 MJUM No
16341424 0 MJUM No
16319907 120 JUMB No
16319908 120 JUMB No
16319909 120 JUMB No
16319912 120 JUMB No
16319913 120 JUMB No
16319916 120 JUMB No
16319917 120 JUMB No
16319922 120 JUMB No
16319925 120 JUMB No
16319926 120 JUMB No
16319929 120 JUMB No
16319930 120 JUMB No
16319931 120 JUMB No
16319932 120 JUMB No
16319935 120 JUMB No
16319936 120 JUMB No
16319937 120 JUMB No
16319938 120 JUMB No
16375678 0 JUMB No
16375679 0 MJUM No
16375680 0 MJUM No
16375681 0 MJUM No
16375682 0 MJUM No
16375683 0 JUMB No
16375686 0 MJUM No
16375687 120 MJUM No
16375688 0 MJUM No
16375690 0 MJUM No
16375692 0 MJUM No
16375693 120 MJUM No
16375694 0 MJUM No
16375695 120 MJUM No
16375696 0 MJUM No
16375697 0 MJUM No
16375699 120 MJUM No
16375700 120 MJUM No
16375702 0 MJUM No
16375703 120 MJUM No
16375704 0 MJUM No
16375705 0 MJUM No
16375706 0 MJUM No
16375707 0 MJUM No
16375708 0 MJUM No
16375709 0 MJUM No
16375710 0 MJUM No
16396193 120 JUMB No
16396194 0 MJUM No
16396196 120 JUMB No
16396197 120 JUMB No
16396200 120 MJUM No
16396201 120 MJUM No
16396202 120 MJUM No
16396205 120 MJUM No
16396206 120 MJUM No
16396207 120 MJUM No
16396211 120 JUMB No
16396214 120 JUMB No
16396215 120 JUMB No
16396217 120 MJUM No
16396218 0 MJUM No
16396219 120 MJUM No
16396221 120 MJUM No
16396222 120 MJUM No
16396223 120 MJUM No
16396226 120 MJUM No
16396227 120 MJUM No
16396230 120 JUMB No
16396231 120 JUMB No
16396234 120 MJUM No
16396235 120 MJUM No
16396237 120 MJUM No
16396239 120 JUMB No
16396240 120 MJUM No
16396242 120 MJUM No
16396243 120 MJUM No
16396246 120 JUMB No
16396247 120 MJUM No
16396248 120 MJUM No
15498289 0 REPR No
15590615 0 REPR No
15628389 60 JUMB No
15628411 60 JUMB Yes
15765225 0 REPR No
16341409 0 JUMB No
16341411 0 JUMB No
16319906 120 JUMB No
16319934 120 JUMB No
16375689 0 MJUM No
16375698 120 MJUM No
16375712 0 MJUM No
16396199 120 JUMB No
16396204 120 JUMB No
16396213 120 MJUM No
16396216 120 MJUM No
16396220 120 JUMB No
16396225 120 MJUM No
16396233 0 JUMB No
16396236 120 JUMB No
15765213 0 REPR No
16396238 120 JUMB No
15498275 0 REPR No
16396191 120 JUMB No
16396224 120 MJUM No
16319911 120 JUMB No
16396229 120 JUMB No
16657043 0 MJUM No
16657053 0 JUMB No
16657063 0 JUMB No
16657102 0 JUMB No
16657138 0 JUMB No
16657222 0 MJUM No
16657236 0 MJUM No
16657255 0 MJUM No
16657284 0 MJUM No
16657317 0 MJUM No
16657334 0 MJUM No
16657373 0 MJUM No
16657375 0 MJUM No
16657446 0 JUMB No
16657469 0 JUMB No
16657579 120 MJUM No
16657639 120 MJUM No
16657642 0 MJUM No
16657649 120 MJUM No
16657652 0 MJUM No
16657676 0 MJUM No
16657702 120 MJUM No
16657787 0 MJUM No
16657843 0 MJUM No
16657872 0 MJUM No
16657940 0 MJUM No
16657950 0 MJUM No
16657971 0 MJUM No
16658071 0 MJUM No
16657399 120 JUMB No
16657655 0 JUMB No
16657768 180 MJUM No
EXHIBIT
C
[Reserved]
EXHIBIT
D
REQUEST
FOR RELEASE OF DOCUMENTS
To:
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
RE:
|
Custodial
Agreement dated as of
|
November
30, 2006, among ▇▇▇▇ ▇▇,
EMC
Mortgage Corporation, as
Master
Servicer, U.S. Bank National
Association
as Trustee and ▇▇▇▇▇ Fargo
Bank,
National Association as Custodian
In
connection with the administration of the Mortgage Loans held by you pursuant
to
the above-captioned Custodial Agreement, we request the release, and hereby
acknowledge receipt, of the Mortgage File for the Mortgage Loan described below,
for the reason indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
|
_____
|
1.
|
Mortgage
Paid in Full and proceeds have been deposited into the Custodial
Account
|
|
_____
|
2.
|
Foreclosure
|
|
_____
|
3.
|
Substitution
|
|
_____
|
4.
|
Other
Liquidation
|
_____ 5.Nonliquidation
Reason: _________________________
|
_____
|
6.
|
California
Mortgage Loan paid in full
|
By:
________________________________
(authorized
signer)
Issuer:
______________________________
Address:
____________________________
Date:
_______________________________
EXHIBIT
E
FORM
OF
AFFIDAVIT
Affidavit
pursuant to Section 860E(e)(4)
of
the
Internal Revenue Code of 1986, as
amended,
and for other purposes
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
[NAME
OF
OFFICER], being first duly sworn, deposes and says:
1. That
he
is [Title of Officer] of [Name of Investor] (the “Investor”), a [savings
institution] [corporation] duly organized and existing under the laws of [the
State of _______________] [the United States], on behalf of which he makes
this
affidavit.
2. That
(i)
the Investor is not a “disqualified organization” as defined in Section
860E(e)(5) of the Internal Revenue Code of 1986, as amended (the “Code”), and
will not be a disqualified organization as of [Closing Date] [date of purchase];
(ii) it is not acquiring the Structured Asset Mortgage Investments II Inc.,
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2006-2 [Class
R
Certificates] (the “Residual Certificates”) for the account of a disqualified
organization; (iii) it consents to any amendment of the Pooling and Servicing
Agreement that shall be deemed necessary by Structured Asset Mortgage
Investments II Inc. (upon advice of counsel) to constitute a reasonable
arrangement to ensure that the Residual Certificates will not be owned directly
or indirectly by a disqualified organization; and (iv) it will not transfer
such
Residual Certificates unless (a) it has received from the transferee an
affidavit in substantially the same form as this affidavit containing these
same
four representations and (b) as of the time of the transfer, it does not have
actual knowledge that such affidavit is false.
3. That
the
Investor is one of the following: (i) a citizen or resident of the United
States, (ii) a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or organized
in, or under the laws of, the United States or any state thereof or the District
of Columbia (except, in the case of a partnership, to the extent provided in
regulations), provided that no partnership or other entity treated as a
partnership for United States federal income tax purposes shall be treated
as a
United States Person unless all persons that own an interest in such partnership
either directly or through any entity that is not a corporation for United
States federal income tax purposes are United States Persons, (iii) an estate
whose income is subject to United States federal income tax regardless of its
source, or (iv) a trust other than a “foreign trust,” as defined in Section 7701
(a)(31) of the Code.
4.That
the
Investor’s taxpayer identification number is ________________.
5. That
no
purpose of the acquisition of the Residual Certificates is to avoid or impede
the assessment or collection of tax.
6. That
the
Investor understands that, as the holder of the Residual Certificates, the
Investor may incur tax liabilities in excess of any cash flows generated by
such
Residual Certificates.
7. That
the
Investor intends to pay taxes associated with holding the Residual Certificates
as they become due.
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [Title of
Officer] this ____ day of _________, 20__.
[NAME
OF
INVESTOR]
By:
______________________________________
[Name
of
Officer]
[Title
of
Officer]
[Address
of Investor for receipt of distributions]
Address
of Investor for receipt of tax information:
Personally
appeared before me the above-named [Name of Officer], known or proved to me
to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Investor, and acknowledged to me that he executed the same
as
his free act and deed and the free act and deed of the Investor.
Subscribed
and sworn before me this ___ day of _________, 20___.
NOTARY
PUBLIC
COUNTY
OF
STATE
OF
My
commission expires the ___ day of ___________________, 20___.
EXHIBIT
F-1
FORM
OF
INVESTMENT LETTER
[Date]
[SELLER]
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured
Asset Mortgage Investments II Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Structured
Asset Mortgage Investments II Inc., Prime Mortgage
Trust,
|
Series
2006-2 Mortgage Pass-Through Certificates (the “Certificates”),
including
the Class B-4, Class B-5 and Class B-6 Certificates (the “Privately
Offered
Certificates”)
Dear
Ladies and Gentlemen:
In
connection with our purchase of the [Privately Offered Certificates], we confirm
that:
|
(i)
|
we
understand that the Privately Offered Certificates are not being
registered under the Securities Act of 1933, as amended (the “Act”) or any
applicable state securities or “Blue Sky” laws, and are being sold to us
in a transaction that is exempt from the registration requirements
of such
laws;
|
|
(ii)
|
any
information we desired concerning the Certificates, including the
Privately Offered Certificates, the trust in which the Certificates
represent the entire beneficial ownership interest (the “Trust”) or any
other matter we deemed relevant to our decision to purchase Privately
Offered Certificates has been made available to
us;
|
|
(iii)
|
we
are able to bear the economic risk of investment in Privately Offered
Certificates; we are an institutional “accredited investor” as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under
the Act
and a sophisticated institutional
investor;
|
|
(iv)
|
we
are acquiring Privately Offered Certificates for our own account,
not as
nominee for any other person, and not with a present view to any
distribution or other disposition of the Privately Offered
Certificates;
|
|
(v)
|
we
agree the Privately Offered Certificates must be held indefinitely
by us
(and may not be sold, pledged, hypothecated or in any way disposed
of)
unless subsequently registered under the Act and any applicable state
securities or “Blue Sky” laws or an exemption from the registration
requirements of the Act and any applicable state securities or “Blue Sky”
laws is available;
|
|
(vi)
|
we
agree that in the event that at some future time we wish to dispose
of or
exchange any of the Privately Offered Certificates (such disposition
or
exchange not being currently foreseen or contemplated), we will not
transfer or exchange any of the Privately Offered Certificates
unless:
|
(A)
(1)
the sale is to an Eligible Purchaser (as defined below), (2) if required by
the
Pooling and Servicing Agreement (as defined below) a letter to substantially
the
same effect as either this letter or, if the Eligible Purchaser is a Qualified
Institutional Buyer as defined under Rule 144A of the Act, the Rule 144A and
Related Matters Certificate in the form attached to the Pooling and Servicing
Agreement (as defined below) (or such other documentation as may be acceptable
to the Trustee) is executed promptly by the purchaser and delivered to the
addressees hereof and (3) all offers or solicitations in connection with the
sale, whether directly or through any agent acting on our behalf, are limited
only to Eligible Purchasers and are not made by means of any form of general
solicitation or general advertising whatsoever; and
(B) if
the
Privately Offered Certificates is not registered under the Act (as to which
we
acknowledge you have no obligation), the Privately Offered Certificates is
sold
in a transaction that does not require registration under the Act and any
applicable state securities or “blue sky” laws and, if U.S. Bank National
Association (the “Trustee”) so requests, a satisfactory Opinion of Counsel is
furnished to such effect, which Opinion of Counsel shall be an expense of the
transferor or the transferee;
|
(vii)
|
we
agree to be bound by all of the terms (including those relating to
restrictions on transfer) of the Pooling and Servicing, pursuant
to which
the Trust was formed; we have reviewed carefully and understand the
terms
of the Pooling and Servicing
Agreement;
|
|
(viii)
|
we
either: (i) are not acquiring the Privately Offered Certificates
directly
or indirectly by, or on behalf of, an employee benefit plan or other
retirement arrangement which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, or section 4975
of the
Internal Revenue Code of 1986, as amended, or (ii) are providing
a
representation to the effect that the proposed transfer and holding
of a
Privately Offered Certificates and the servicing, management and
operation
of the Trust and its assets: (I) will not result in any prohibited
transaction which is not covered under an individual or class prohibited
transaction exemption, including, but not limited to, Prohibited
Transaction Class Exemption (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇
95-60, or PTCE 96-23 and (II) will not give rise to any additional
obligations on the part of the Depositor, the Master Servicer or
the
Trustee or (iii) have attached hereto the opinion specified in Section
5.07 of the Agreement.
|
|
(ix)
|
We
understand that each of the Privately Offered Certificates bears,
and will
continue to bear, a legend to substantiate the following effect:
“THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A
“QIB”),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT
OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE
SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
“INSTITUTIONAL ACCREDITED INVESTOR” WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY
IN
WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING
NOT
FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A)
THE
RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED
IN
THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER
IS
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR
IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY
NOT BE
ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE
BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I
OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE
PROPOSED
TRANSFER AND HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT
AND
OPERATION OF THE TRUST AND ITS ASSETS: (1) WILL NOT RESULT IN ANY
PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR
CLASS
PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO,
PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇
▇▇-▇, ▇▇▇▇ 95-60 OR PTCE 96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE MASTER SERVICER
OR THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A
BOOK-ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE OR UNLESS THE OPINION
PROVIDED IN SECTION 5.07 OF THE AGREEMENT IS
PROVIDED.”
|
“Eligible
Purchaser”
means a
corporation, partnership or other entity which we have reasonable grounds to
believe and do believe (i) can make representations with respect to itself
to
substantially the same effect as the representations set forth herein, and
(ii)
is either a Qualified Institutional Buyer as defined under Rule 144A of the
Act
or an institutional “Accredited Investor” as defined under Rule 501 of the
Act.
Terms
not
otherwise defined herein shall have the meanings assigned to them in the Pooling
and Servicing Agreement, dated as of November 1, 2006, among Structured Asset
Mortgage Investments II Inc., EMC Mortgage Corporation, as seller and master
servicer and U.S. Bank National Association as Trustee (the “Pooling and
Servicing Agreement’).
If
the
Purchaser proposes that its Certificates be registered in the name of a nominee
on its behalf, the Purchaser has identified such nominee below, and has caused
such nominee to complete the Nominee Acknowledgment at the end of this
letter.
Name
of
Nominee (if any): __________________________
IN
WITNESS WHEREOF, this document has been executed by the undersigned who is
duly
authorized to do so on behalf of the undersigned Eligible Purchaser on the
___
day of ________, 20___.
Very
truly yours,
[PURCHASER]
By:
_________________________________
(Authorized
Officer)
[By:
________________________________
Attorney-in-fact]
Nominee
Acknowledgment
The
undersigned hereby acknowledges and agrees that as to the Certificates being
registered in its name, the sole beneficial owner thereof is and shall be the
Purchaser identified above, for whom the undersigned is acting as
nominee.
[NAME
OF
NOMINEE]
By:
_________________________________
(Authorized
Officer)
[By:
________________________________
Attorney-in-fact]
EXHIBIT
F-2
FORM
OF
RULE 144A AND RELATED MATTERS CERTIFICATE
[SELLER][Date]
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured
Asset Mortgage Investments II Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Structured
Asset Mortgage Investments II Inc., Prime Mortgage
Trust,
|
Series
2006-2 Mortgage Pass-Through Certificates (the “Certificates”),
including
the Class B-4, Class B-5 and Class B-6 Certificates (the “Privately
Offered
Certificates”)
Dear
Ladies and Gentlemen:
In
connection with our purchase of Privately Offered Certificates, the undersigned
certifies to each of the parties to whom this letter is addressed that it is
a
qualified institutional buyer (as defined in Rule 144A under the Securities
Act
of 1933, as amended (the “Act”)) as follows:
|
1.
|
It
owned and/or invested on a discretionary basis eligible securities
(excluding affiliate’s securities, bank deposit notes and CD’s, loan
participations, repurchase agreements, securities owned but subject
to a
repurchase agreement and swaps), as described
below:
|
Date:
______________, 20__ (must be on or after the close of its most recent fiscal
year)
Amount:
$
_____________________; and
2. The
dollar amount set forth above is:
a.
greater
than $100 million and the undersigned is one of the following
entities:
(x)
an
insurance company as defined in Section 2(13) of the Act1 ;
or
|
(y)
|
an
investment company registered under the Investment Company Act or
any
business development company as defined in Section 2(a)(48) of the
Investment Company Act of 1940; or
|
|
(z)
|
a
Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; or
|
|
(aa)
|
a
plan (i) established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political
subdivisions, the laws of which permit the purchase of securities
of this
type, for the benefit of its employees and (ii) the governing investment
guidelines of which permit the purchase of securities of this type;
or
|
|
(bb)
|
a
business development company as defined in Section 202(a)(22) of
the
Investment Advisers Act of 1940; or
|
|
(cc)
|
a
corporation (other than a U.S. bank, savings and loan association
or
equivalent foreign institution), partnership, Massachusetts or similar
business trust, or an organization described in Section 501(c)(3)
of the
Internal Revenue Code; or
|
|
(dd)
|
a
U.S. bank, savings and loan association or equivalent foreign institution,
which has an audited net worth of at least $25 million as demonstrated
in
its latest annual financial statements;
or
|
|
(ee)
|
an
investment adviser registered under the Investment Advisers Act;
or
|
|
b.
|
greater
than $10 million, and the undersigned is a broker-dealer registered
with
the SEC; or
|
|
c.
|
less
than $10 million, and the undersigned is a broker-dealer registered
with
the SEC and will only purchase Rule 144A securities in transactions
in
which it acts as a riskless principal (as defined in Rule 144A);
or
|
|
d.
|
less
than $100 million, and the undersigned is an investment company registered
under the Investment Company Act of 1940, which, together with one
or more
registered investment companies having the same or an affiliated
investment adviser, owns at least $100 million of eligible securities;
or
|
|
e.
|
less
than $100 million, and the undersigned is an entity, all the equity
owners
of which are qualified institutional
buyers.
|
The
undersigned further certifies that it is purchasing a Privately Offered
Certificates for its own account or for the account of others that independently
qualify as “Qualified Institutional Buyers” as defined in Rule 144A. It is aware
that the sale of the Privately Offered Certificates is being made in reliance
on
its continued compliance with Rule 144A. It is aware that the transferor may
rely on the exemption from the provisions of Section 5 of the Act provided
by
Rule 144A. The undersigned understands that the Privately Offered Certificates
may be resold, pledged or transferred only to (i) a person reasonably believed
to be a Qualified Institutional Buyer that purchases for its own account or
for
the account of a Qualified Institutional Buyer to whom notice is given that
the
resale, pledge or transfer is being made in reliance in Rule 144A, or (ii)
an
institutional “accredited investor,” as such term is defined under Rule 501 of
the Act in a transaction that otherwise does not constitute a public
offering.
The
undersigned agrees that if at some future time it wishes to dispose of or
exchange any of the Privately Offered Certificates, it will not transfer or
exchange any of the Privately Offered Certificates to a Qualified Institutional
Buyer without first obtaining a Rule 144A and Related Matters Certificate in
the
form hereof from the transferee and delivering such certificate to the
addressees hereof. Prior to making any transfer of Privately Offered
Certificates, if the proposed Transferee is an institutional “accredited
investor,” the transferor shall obtain from the transferee and deliver to the
addressees hereof an Investment Letter in the form attached to the Pooling
and
Servicing Agreement, dated as of November 1, 2006, among Structured Asset
Mortgage Investments II Inc., EMC Mortgage Corporation and U.S. Bank National
Association, as Trustee, pursuant to Certificates were issued.
The
undersigned certifies that it either: (i) is not acquiring the Privately Offered
Certificates directly or indirectly by, or on behalf of, an employee benefit
plan or other retirement arrangement which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, or section 4975 of the
Internal Revenue Code of 1986, as amended, or (ii) is providing a representation
or an opinion of counsel to the effect that the proposed transfer and holding
of
a Privately Offered Certificates and the servicing, management and operation
of
the Trust and its assets: (I) will not result in any prohibited transaction
which is not covered under a prohibited transaction exemption, including, but
not limited to, Prohibited Transaction Class Exemption (“PTCE”) 84-14, ▇▇▇▇
▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ 95-60, PTCE 96-23 and (II) will not give rise to any
additional obligations on the part of the Depositor, the Master Servicer or
the
Trustee or (iii) has attached hereto the opinion specified in Section 5.07
of
the Agreement.
If
the
Purchaser proposes that its Certificates be registered in the name of a nominee
on its behalf, the Purchaser has identified such nominee below, and has caused
such nominee to complete the Nominee Acknowledgment at the end of this
letter.
1 A
purchase by an insurance company for one or more of its separate accounts,
as
defined by Section 2(a)(37) of the Investment Company Act of 1940, which
are
neither registered nor required to be registered thereunder, shall be deemed
to
be a purchase for the account of such insurance company.
Name
of
Nominee (if any):
IN
WITNESS WHEREOF, this document has been executed by the undersigned who is
duly
authorized to do so on behalf of the undersigned Eligible Purchaser on the
____
day of ___________, 20___.
Very
truly yours,
[PURCHASER]
By:
______________________________________
(Authorized
Officer)
[By:
_____________________________________
Attorney-in-fact]
NOMINEE
ACKNOWLEDGMENT
The
undersigned hereby acknowledges and agrees that as to the Certificates being
registered in its name, the sole beneficial owner thereof is and shall be the
Purchaser identified above, for whom the undersigned is acting as
nominee.
[NAME
OF
NOMINEE]
By:
______________________________________
(Authorized
Officer)
[By:
_____________________________________
Attorney-in-fact]
EXHIBIT
F-3
FORM
OF
TRANSFER CERTIFICATE FOR EXCHANGE OR
TRANSFER
FROM RULE 144A GLOBAL CERTIFICATE TO
REGULATION
S GLOBAL CERTIFICATE
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Reference
is hereby made to the Pooling and Servicing Agreement (“Pooling and Servicing
Agreement”), dated as of November 1, 2006, among Structured Asset Mortgage
Investments II Inc., as Depositor, EMC Mortgage Corporation, as Seller and
Master Servicer and U.S. Bank National Association as Trustee. Capitalized
terms
used but not defined herein are used as defined in the Pooling and Servicing
Agreement:
The
undersigned (the “Transferor”)
owns
and proposes to transfer the interests in the Rule 144A Global Certificates
specified in Annex A hereto (the “Certificates”)
to
__________ (the “Transferee”), in the principal amounts in such Rule 144A Global
Certificates (the “Transfer”)
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
|
(a)
|
the
Transfer is being effected in accordance with transfer restrictions
set
forth in the Pooling and Servicing Agreement and the
Certificates;
|
|
(b)
|
the
Transfer is being effected pursuant to and in accordance with Rule
903 or
Rule 904 under the Securities Act of 1933, as amended (the “Securities
Act”)
and, accordingly, the Transferor hereby further certifies
that:
|
|
(i)
|
the
Transfer is not being made to a person in the United States and (x)
at the
time the buy order was originated, the Transferee was outside the
United
States or the Transferor and each Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United
States or
(y) the transaction was executed in, on or through the facilities
of a
“designated offshore securities market” (as defined Rule 902 of Regulation
S under the Securities Act) and neither the Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with
a
buyer in the United States,
|
|
(ii)
|
no
directed selling efforts have been made in contravention of the
requirements of Rule 903 or Rule 904 of Regulation S under the Securities
Act, and
|
|
(iii)
|
the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
|
Upon
consummation of the proposed transfer in accordance with the terms of the
Pooling and Servicing Agreement, the transferred beneficial interest will be
subject to the restrictions on transfer enumerated in the legends printed on
the
Regulation S Global Certificates by which the Transferee shall hold its interest
and in the Pooling and Servicing Agreement and the Securities Act.
Dated: Very
truly yours,
[Name
of
Transferor]
By:______________________________
Name:
Title:
ANNEX
A
The
Transferor owns and proposes to transfer a beneficial interest in the
following:
|
(i)
|
G
|
Class
[___] Rule 144A Global Certificate, principal amount of $_____________,
|
|
(ii)
|
G
|
Class
[___] Rule 144A Global Certificate, principal amount of $_____________,
or
|
|
(iii)
|
G
|
Class
[___] Rule 144A Global Certificate, principal amount of
$_____________.
|
EXHIBIT
F-4
FORM
OF
TRANSFER CERTIFICATE FOR EXCHANGE OR
TRANSFER
FROM REGULATION S GLOBAL CERTIFICATE TO
RULE
144A
GLOBAL CERTIFICATE
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Reference
is hereby made to the Pooling and Servicing Agreement (“Pooling and Servicing
Agreement”), dated as of November 1, 2006, among Structured Asset Mortgage
Investments II Inc., as Depositor, EMC Mortgage Corporation, as Seller and
Master Servicer and U.S. Bank National Association as Trustee. Capitalized
terms
used but not defined herein are used as defined in the Pooling and Servicing
Agreement:
The
undersigned (the “Transferor”)
owns
and proposes to transfer the interests in the Regulation S Global Certificates
specified in Annex A hereto (the “Certificates”),
in
the principal amounts in such Regulation S Global Certificates (the
“Transfer”),
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
|
(a)
|
the
Transfer is being effected in accordance with transfer restrictions
set
forth in the Pooling and Servicing Agreement and the
Certificates;
|
|
(b)
|
the
Transfer is being effected pursuant to and in accordance with Rule
144A
under the Securities Act of 1933, as amended (the “Securities
Act”),
and, accordingly, the Transferor hereby further certifies
that:
|
|
(i)
|
the
Transferee is purchasing the beneficial interest for its own account,
or
for one or more accounts with respect to which the Transferee exercises
sole investment discretion,
|
|
(ii)
|
the
Transferor reasonably believes that the Transferee and each such
account
is a “qualified institutional buyer” within the meaning of Rule 144A,
and
|
|
(iii)
|
the
Transfer is in compliance with any applicable blue sky securities
laws of
any state of the United States.
|
Upon
consummation of the proposed Transfer in accordance with the terms of the
Pooling and Servicing Agreement, the transferred beneficial interest will be
subject to the restrictions on transfer enumerated in the legends printed on
the
Rule 144A Global Certificates by which the Transferee shall hold its interest
and in the Pooling and Servicing Agreement and the Securities Act.
Dated: Very
truly yours,
[Name
of
Transferor]
By:______________________________
Name:
Title:
ANNEX
A
The
Transferor owns and proposes to transfer a beneficial interest in the
following:
|
(i)
|
G
|
Class [___] Regulation S Global Certificate, principal amount of
$_____________,
|
|
(ii)
|
G
|
Class
[___] Regulation S Global Certificate, principal amount of $_____________,
or
|
|
(iii)
|
G
|
Class
[___] Regulation S Global Certificate, principal amount of
$_____________.
|
EXHIBIT
G
FORM
OF CUSTODIAL AGREEMENT
THIS
CUSTODIAL AGREEMENT (as amended and supplemented from time to time, the
“Agreement”), dated as of November 30, 2006, by and among U.S. BANK NATIONAL
ASSOCIATION, not individually but solely as trustee under the Pooling and
Servicing Agreement defined below (including its successors under the Pooling
and Servicing Agreement defined below, the “Trustee”), STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as depositor (together with any successor in interest,
the
“Depositor”), EMC MORTGAGE CORPORATION, as
master
servicer (together
with any successor in interest or successor under the Pooling and Servicing
Agreement referred to below, the “Master Servicer”) and ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as custodian (together with any successor in interest
or
any successor appointed hereunder, the “Custodian”).
WITNESSETH
THAT:
WHEREAS,
the Depositor, EMC Mortgage Corporation, as seller (in such capacity, “EMC” or
the “Seller”), the Master Servicer and the Trustee have entered into a Pooling
and Servicing Agreement, dated as of November 1, 2006, relating to the issuance
of Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2006-2
(as
in effect on the date of this agreement, and as amended and supplemented from
time to time, the “Pooling and Servicing Agreement”).
WHEREAS,
the Custodian has agreed to act as agent for the Trustee on behalf of the
Certificateholders for the purposes of receiving and holding certain documents
and other instruments delivered by the Depositor, the Seller or the Master
Servicer under the Pooling and Servicing Agreement and the Servicers under
their
respective Servicing Agreements, all upon the terms, conditions and obligations
and subject to the limitations hereinafter set forth. In the event any custodian
terms, conditions and obligations are defined in the Pooling and Servicing
Agreement, this custodial agreement shall supersede.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the Trustee, the Depositor, the Master
Servicer and the Custodian hereby agree as follows:
ARTICLE
I
DEFINITIONS
Capitalized
terms used in this Agreement and not defined herein shall have the meanings
assigned in the Pooling and Servicing Agreement, unless otherwise required
by
the context herein.
ARTICLE
II
CUSTODY
OF MORTGAGE DOCUMENTS
Section
2.1. Custodian
to Act as Agent: Acceptance of Mortgage Files.
The
Custodian, as the duly appointed custodial agent of the Trustee for these
purposes, acknowledges (subject to any exceptions noted in the Initial
Certification referred to in Section 2.3(a)) receipt of the Mortgage Files
relating to the Mortgage Loans identified on the schedule attached hereto (the
“Mortgage Files”) and declares that it holds and will hold such Mortgage Files
as agent for the Trustee, in trust, for the use and benefit of all present
and
future Certificateholders.
Section
2.2. Recordation
of Assignments.
If any
Mortgage File includes one or more assignments of Mortgage that have not been
recorded pursuant to the provisions of Section 2.01 of the Pooling and Servicing
Agreement and the related Mortgage Loan is not a MOM Loan or the related
Mortgaged Properties are located in jurisdictions specifically excluded by
the
Opinion of Counsel delivered to the Trustee pursuant to Section 2.01 of the
Pooling and Servicing Agreement, each such assignment shall be delivered by
the
Custodian to the Depositor for the purpose of recording it in the appropriate
public office for real property records, and the Depositor, at no expense to
the
Custodian, shall promptly cause to be recorded in the appropriate public office
for real property records each such assignment of Mortgage and, upon receipt
thereof from such public office, shall return each such assignment of Mortgage
to the Custodian.
Section
2.3. Review
of Mortgage Files.
(a) On
or
prior to the Closing Date, in accordance with Section 2.02 of the Pooling and
Servicing Agreement, the Custodian shall deliver to EMC, the Depositor, the
Master Servicer and the Trustee an Initial Certification in the form annexed
hereto as Exhibit One evidencing receipt (subject to any exceptions noted
therein) of a Mortgage File for each of the Mortgage Loans listed on Schedule
A
attached hereto (the “Mortgage Loan Schedule”).
(b) Within
90
days of the Closing Date, the Custodian agrees, for the benefit of
Certificateholders, to review, in accordance with the provisions of Section
2.02
of the Pooling and Servicing Agreement, each such document, and shall deliver
to
EMC, the Depositor, the Master Servicer and the Trustee an Interim Certification
in the form annexed hereto as Exhibit Two to the effect that all such documents
have been executed and received and that such documents relate to the Mortgage
Loans identified on the Mortgage Loan Schedule, except for any exceptions listed
on Schedule A attached to such Interim Certification. The Custodian shall be
under no duty or obligation to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable, or appropriate for the represented purpose or that they
have actually been recorded or that they are other than what they purport to
be
on their face.
(c) Not
later
than 180 days after the Closing Date, the Custodian shall review, for the
benefit of Certificateholders, the Mortgage Files as provided in Section 2.02
of
the Pooling and Servicing Agreement and deliver to EMC, the Depositor, the
Master Servicer and the Trustee a Final Certification in the form annexed hereto
as Exhibit Three evidencing the completeness of the Mortgage Files.
(d) In
reviewing the Mortgage Files as provided herein and in the Pooling and Servicing
Agreement, the Custodian shall make no representation as to and shall not be
responsible to verify (i) the validity, legality, enforceability, due
authorization, recordability, sufficiency or genuineness of any of the documents
included in any Mortgage File or (ii) the collectability, insurability,
effectiveness or suitability of any of the documents in any Mortgage
File.
Upon
receipt of written request from EMC, the Master Servicer or the Trustee, the
Custodian shall as soon as practicable supply such Person with a list of all
of
the documents relating to the Mortgage Loans missing from the Mortgage
Files.
Section
2.4. Notification
of Breaches of Representations and Warranties.
Upon
discovery by the Custodian of a breach of any representation or warranty made
by
the Depositor as set forth in the Pooling and Servicing Agreement with respect
to a Mortgage Loan relating to a Mortgage File, the Custodian shall give prompt
written notice to the Depositor, the Master Servicer and the
Trustee.
Section
2.5. Custodian
to Cooperate: Release of Mortgage Files.
Upon
receipt of written notice from the Depositor that EMC has repurchased one or
more Mortgage Loans pursuant to Article II of the Pooling and Servicing
Agreement, and a request for release (a “Request for Release”) confirming that
the purchase price therefor has been deposited in the Master Servicer Collection
Account or the Distribution Account, then the Custodian agrees to promptly
release to the Seller the related Mortgage Files.
Upon
the
Custodian’s receipt of a Request for Release substantially in the form of
Exhibit D to the Pooling and Servicing Agreement signed by a Servicing Officer
of the related Servicer, stating that it has received payment in full of a
Mortgage Loan or that payment in full will be escrowed in a manner customary
for
such purposes, the Custodian agrees promptly to release to the related Servicer,
the related Mortgage File. The Depositor shall deliver to the Custodian and
the
Custodian agrees to review in accordance with the provisions of this Agreement
the Mortgage Note and other documents constituting the Mortgage File with
respect to any Substitute Mortgage Loan.
From
time
to time as is appropriate for the servicing or foreclosure of any Mortgage
Loan,
including, for this purpose collection under any Primary Insurance Policy,
the
related Servicer (or if the Servicer does not, the Master Servicer) shall
deliver to the Custodian a Request for Release signed by a Servicing Officer
requesting that possession of all of the Mortgage File be released to the
related
Servicer
and
certifying as to the reason for such release and that such release will not
invalidate any insurance coverage provided in respect of the Mortgage Loan
under
any of the Insurance Policies. Upon receipt of the foregoing, the Custodian
shall deliver the Mortgage File to the related Servicer. All Mortgage Files
so
released to the related Servicer shall be held by it in trust for the Trustee
for the use and benefit of all present and future Certificateholders. The
related Servicer shall cause each Mortgage File or any document therein so
released to be returned to the Custodian when the need therefor by the related
Servicer no longer exists, unless (i) the Mortgage Loan has been liquidated
and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in
the Master Servicer Collection Account or the Distribution Account or (ii)
the
Mortgage File or such document has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the related Servicer
has delivered to the Custodian a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such
delivery.
At
any
time that the related Servicer is required to deliver to the Custodian a Request
for Release, the related Servicer shall deliver two copies of the Request for
Release if delivered in hard copy or the related Servicer may furnish such
Request for Release electronically to the Custodian, in which event the
Servicing Officer transmitting the same shall be deemed to have signed the
Request for Release. In connection with any Request for Release of a Mortgage
File because of a repurchase of a Mortgage Loan, such Request for Release shall
be followed by an assignment of mortgage, without recourse, representation
or
warranty from the Trustee to the Seller (unless such Mortgage Loan is a MOM
Loan) and the related Mortgage Note shall be endorsed without recourse,
representation or warranty by the Trustee and be returned to the Seller;
provided, however, that in the case of a Mortgage Loan that is registered on
the
MERS System, no assignment of mortgage or endorsement of the Mortgage Note
by
the Trustee shall be required. In connection with any Request for Release of
a
Mortgage File because of the payment in full of a Mortgage Loan, such Request
for Release shall be accompanied by a certificate of satisfaction or other
similar instrument to be executed by or on behalf of the Trustee and returned
to
the related Servicer.
Section
2.6. Assumption
Agreements.
In the
event that any assumption agreement, substitution of liability agreement or
sale
of servicing agreement is entered into with respect to any Mortgage Loan subject
to this Agreement in accordance with the terms and provisions of the Pooling
and
Servicing Agreement, the Master Servicer shall enforce any obligation of the
related Servicer under the related Servicing Agreement to notify the Custodian
that such assumption or substitution agreement has been completed by forwarding
to the Custodian the original of such assumption or substitution agreement,
which shall be added to the related Mortgage File and, for all purposes, shall
be considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting parts thereof.
ARTICLE
III
CONCERNING
THE CUSTODIAN
Section
3.1. Custodian
as Bailee and Agent of the Trustee.
With
respect to each Mortgage Note, Mortgage and other documents constituting each
Mortgage File which are delivered to the Custodian, the Custodian is exclusively
the bailee and custodial agent of the Trustee and has no instructions to hold
any Mortgage Note or Mortgage for the benefit of any person other than the
Trustee and the Certificateholders and undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement and in the
Pooling and Servicing Agreement. Except upon compliance with the provisions
of
Section 2.5 of this Agreement, no Mortgage Note, Mortgage or Mortgage File
shall
be delivered by the Custodian to the Depositor, the Servicers or the Master
Servicer or otherwise released from the possession of the
Custodian.
Section
3.2. Custodian
May Own Certificates.
The
Custodian in its individual or any other capacity may become the owner or
pledgee of Mortgage Pass-Through Certificates with the same rights it would
have
if it were not Custodian.
Section
3.3. Trustee
to Pay Custodian’s Fees.
The
Trustee covenants and agrees to pay to the Custodian from time to time, and
the
Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and duties
hereunder of the Custodian.
Section
3.4. Custodian
May Resign; Trustee May Remove Custodian.
The
Custodian may resign from the obligations and duties hereby imposed upon it
as
such obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such written notice of resignation, the Trustee shall
either take custody of the Mortgage Files itself and give prompt written notice
thereof to the Depositor, the Master Servicer and the Custodian, or promptly
appoint a successor Custodian by written instrument, in duplicate, one copy
of
which instrument shall be delivered to the resigning Custodian and one copy
to
the successor Custodian. If the Trustee shall not have taken custody of the
Mortgage Files and no successor Custodian shall have been so appointed and
have
accepted appointment within 30 days after the giving of such written notice
of
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The
Trustee may remove the Custodian at any time with the consent of the Master
Servicer. In such event, the Trustee shall appoint, or petition a court of
competent jurisdiction to appoint, a successor Custodian hereunder. Any
successor Custodian shall be a depository institution subject to supervision
or
examination by federal or state authority, shall be able to satisfy the other
requirements contained in Section 3.6 and shall be unaffiliated with the
Servicer, or the Depositor.
Any
resignation or removal of the Custodian and appointment of a successor Custodian
pursuant to any of the provisions of this Section 3.4 shall become effective
upon acceptance of appointment by the successor Custodian. The Trustee shall
give prompt notice to the Depositor and the Master Servicer of the appointment
of any successor Custodian. No successor Custodian shall be appointed by the
Trustee without the prior approval of the Depositor and the Master
Servicer.
Section
3.5. Merger
or Consolidation of Custodian.
Any
Person into which the Custodian may be merged or converted or with which it
may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
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 that such successor is a depository institution
subject to supervision or examination by federal or state authority and is
able
to satisfy the other requirements contained in Section 3.6 and is unaffiliated
with the Master Servicer or the Depositor.
Section
3.6. Representations
of the Custodian.
The
Custodian hereby represents that it is a depository institution subject to
supervision or examination by a federal or state authority, has a combined
capital and surplus of at least $15,000,000 and is qualified to do business
in
the jurisdictions in which it will hold any Mortgage File.
ARTICLE
IV
COMPLIANCE
WITH REGULATION AB
Section
4.1. Intent
of the Parties; Reasonableness.
The
parties hereto acknowledge and agree that the purpose of this Article IV is
to
facilitate compliance by the Depositor with the provisions of Regulation AB
and
related rules and regulations of the Commission. The Depositor shall not
exercise its right to request delivery of information or other performance
under
these provisions other than in good faith, or for purposes other than compliance
with the Securities Act, the Exchange Act and the rules and regulations of
the
Commission under the Securities Act and the Exchange Act. Each of the parties
hereto acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the mortgage-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Depositor in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation AB.
The
Custodian shall cooperate reasonably with the Depositor to deliver to the
Depositor (including any of its assignees or designees), any and all disclosure,
statements, reports, certifications, records and any other information necessary
in the reasonable, good faith determination of the Depositor to permit the
Depositor to comply with the provisions of Regulation AB.
Section
4.2. Additional
Representations and Warranties of the Custodian.
(a) The
Custodian hereby represents and warrants that the information set forth in
the
Prospectus Supplement under the caption “Description of the Certificates - The
Custodians” (the “Custodian Disclosure”) does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading.
(b) The
Custodian shall be deemed to represent to the Depositor as of the date hereof
and on each date on which information is provided to the Depositor under Section
4.3 that, except as disclosed in writing to the Depositor prior to such date:
(i) there are no aspects of its financial condition that could have a material
adverse effect on the performance by it of its Custodian obligations under
this
Agreement or any other Securitization Transaction as to which it is the
custodian; (ii) there are no material legal or governmental proceedings pending
(or known to be contemplated) against it; and (iii) there are no affiliations,
relationships or transactions relating to the Custodian with respect to the
Depositor or any sponsor, issuing entity, servicer, trustee, originator,
significant obligor, enhancement or support provider or other material
transaction party (as such terms are used in Regulation AB) relating to the
Securitization Transaction contemplated by the Agreement, as identified by
the
Depositor to the Custodian in writing as of the Closing Date (each, a
“Transaction Party”).
(c) If
so
requested by the Depositor on any date following the Closing Date, the Custodian
shall, within five Business Days following such request, confirm in writing
the
accuracy of the representations and warranties set forth in paragraph (a) of
this Section or, if any such representation and warranty is not accurate as
of
the date of such confirmation, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party. Any such request from
the
Depositor shall not be given more than once each calendar quarter, unless the
Depositor shall have a reasonable basis for a determination that any of the
representations and warranties may not be accurate.
Section
4.3. Additional
Information to Be Provided by the Custodian.
For so
long as the Certificates are outstanding, for the purpose of satisfying the
Depositor's reporting obligation under the Exchange Act with respect to any
class of Certificates, the Custodian shall (a) notify the Depositor in writing
of any material litigation or governmental proceedings pending against the
Custodian that would be material to Certificateholders, and (b) provide to
the
Depositor a written description of such proceedings. Any notices and
descriptions required under this Section 4.3 shall be given no later than five
Business Days prior to the Determination Date following the month in which
the
Custodian has knowledge of the occurrence of the relevant event. As of the
date
the Depositor, the Trustee or Master Servicer files each Report on Form 10-D
or
Form 10-K with respect to the Certificates, the Custodian will be deemed to
represent that any information previously provided under this Section 4.3,
if
any, is materially correct and does not have any material omissions unless
the
Custodian has provided an update to such information.
Section
4.4. Report
on Assessment of Compliance and Attestation.
On or
before March 15 of each calendar year, the Custodian shall:
deliver
to the Master Servicer, the Trustee and the Depositor a report regarding the
Custodian’s assessment of compliance (an “Assessment of Compliance”) with the
Servicing Criteria (as identified and marked in Exhibit Four attached hereto)
during the preceding calendar year, as required under Rules 13a-18 and 15d-18
of
the Exchange Act and Item 1122 of Regulation AB. The Assessment of Compliance,
as set forth in Regulation AB, must contain (i) a statement by such officer
of
its responsibility for assessing compliance with the Servicing Criteria
applicable to the Custodian, (ii) a statement by such officer that the Custodian
used the Servicing Criteria attached as Exhibit Four hereto, and which will
also
be attached to the Assessment of Compliance, to assess compliance with the
Servicing Criteria applicable to the Custodian, (iii) an assessment by such
officer of the Custodian’s compliance with the applicable Servicing Criteria for
the period consisting of the preceding calendar year, including disclosure
of
any material instance of noncompliance with respect thereto during such period,
which assessment shall be based on the activities the Custodian performs with
respect to asset-backed securities transactions taken as a whole involving
the
Custodian, that are backed by the same asset type as the Mortgage Loans, (iv)
a
statement that a registered public accounting firm has issued an attestation
report on the Custodian’s Assessment of Compliance for the period consisting of
the preceding calendar year, and (v) a statement as to which of the Servicing
Criteria, if any, are not applicable to the Custodian, which statement shall
be
based on the activities the Custodian performs with respect to asset-backed
securities transactions taken as a whole involving the Custodian, that are
backed by the same asset type as the Mortgage Loans. Such report at a minimum
shall address each of the Servicing Criteria identified and marked on Exhibit
Four attached hereto as being applicable to the Custodian; and
deliver
to the Master Servicer, the Trustee and the Depositor an Attestation Report
(an
“Attestation Report”) by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance made by the Custodian, as required
by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation
AB, which Attestation Report must be made in accordance with standards for
attestation reports issued or adopted by the Public Company Accounting Oversight
Board.
Notwithstanding
the foregoing, an Assessment of Compliance is not required to be delivered
by
the Custodian unless it is required as part of a Form 10-K with respect to
the
Trust Fund.
In
the
event the Custodian is terminated under, or resigns pursuant to, the terms
of
this Agreement, the Custodian shall provide an Assessment of Compliance and
cause to be provided an Attestation Report pursuant to this Section 4.4
notwithstanding any such termination or resignation.
Section
4.5. Indemnification;
Remedies.
The
Custodian shall indemnify the Depositor, each affiliate of the Depositor, the
Trustee, the Master Servicer and each broker dealer acting as underwriter,
placement agent or initial purchaser of the Certificates or each Person who
controls any of such parties (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon:
(A)
any
untrue statement of a material fact contained or alleged to be contained in
the
Custodian Disclosure and any information, report, certification, accountants’
attestation or other material provided under this Article IV by or on behalf
of
the Custodian (collectively, the “Custodian Information”), or (B) the omission
or alleged omission to state in the Custodian Information a material fact
required to be stated in the Custodian Information or necessary in order to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; or
any
failure by the Custodian to deliver any information, report, certification,
accountants’ attestation or other material when and as required under this
Article IV.
In
the
case of any failure of performance described in clause (ii) of Section 4.5(a),
the Custodian shall promptly reimburse the Depositor for all costs reasonably
incurred by the Depositor in order to obtain the information, report,
certification, accountants’ letter or other material not delivered as required
by the Custodian.
ARTICLE
V
MISCELLANEOUS
PROVISIONS
Section
5.1. Notices.
All
notices, requests, consents and demands and other communications required under
this Agreement or pursuant to any other instrument or document delivered
hereunder shall be in writing and, unless otherwise specifically provided,
may
be delivered personally, by telegram or telex, or by registered or certified
mail, postage prepaid, return receipt requested, at the addresses specified
on
the signature page hereof (unless changed by the particular party whose address
is stated herein by similar notice in writing).
Section
5.2. Amendments.
No
modification or amendment of or supplement to this Agreement shall be valid
or
effective unless the same is in writing and signed by all parties hereto, and
neither the Depositor, the Master Servicer nor the Trustee shall enter into
any
amendment hereof except as permitted by the Pooling and Servicing Agreement.
The
Trustee shall give prompt notice to the Custodian of any amendment or supplement
to the Pooling and Servicing Agreement and furnish the Custodian with written
copies thereof..
Section
5.3. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRIIPLES THEREOF OTHER THAN SECTION
5-1401 AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED
BY
THE LAWS OF THE STATE OF NEW YORK.
Section
5.4. Recordation
of Agreement.
To the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the 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 and at the
Trust’s expense, but only upon direction accompanied by an Opinion of Counsel
reasonably satisfactory to the Depositor to the effect that the failure to
effect such recordation is likely to materially and adversely affect the
interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
Section
5.5. 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 Certificates or the rights of the holders thereof.
[Signature
Page Follows]
IN
WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
|
Address:
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services, PRIME 2006-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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U.S.
BANK NATIONAL ASSOCIATION, not individually but solely as
Trustee
By:
_________________________________
Name:
Title:
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|
Address:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
By:
_________________________________
Name:
Title:
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Address:
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▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
(Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇)
Attention:
President or General Counsel
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EMC
MORTGAGE CORPORATION,
as
Master Servicer
By:
_________________________________
Name:
Title:
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|
Address:
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 0031
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
PRIME 2006-2
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▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
as
Custodian
By:
_________________________________
Name:
Title:
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STATE
OF MASSACHUSETTS
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)
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|
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)
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ss.:
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|
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COUNTY
OF___________
|
)
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On
the
30th
day of
November 2006 before me, a notary public in and for said State, personally
appeared _________________ known to me to be a(n) __________________of U.S.
Bank
National Association, one of the parties that executed the within agreement,
and
also known to me to be the person who executed the within agreement on behalf
of
said national banking association and acknowledged to me that such national
banking association executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_______________________________
Notary
Public
[SEAL]
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STATE
OF NEW YORK
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)
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|
|
)
|
ss.:
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COUNTY
OF NEW YORK
|
)
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On
the
30th
day of
November 2006 before me, a notary public in and for said State, personally
appeared ____________________,
known to
me to be a(n) ____________________ of Structured Asset Mortgage Investments
II
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
[SEAL]
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STATE
OF TEXAS
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)
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)
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ss.:
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COUNTY
OF DALLAS
|
)
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On
the
30th
day of
November 2006 before me, a notary public in and for said State, personally
appeared _______________________, known to me to be a(n) __________________
of
EMC Mortgage Corporation, one of the parties that executed the within
instrument, and also known to me to be the person who executed the within
instrument on behalf of said party, and acknowledged to me that such party
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_______________________________
Notary
Public
[SEAL]
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STATE
OF MINNESOTA
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)
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|
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)
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ss.:
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|
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COUNTY
OF HENNEPIN
|
)
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On
the
30th
day of
November 2006 before me, a notary public in and for said State, personally
appeared _________________ known to me to be a(n) __________________of ▇▇▇▇▇
Fargo Bank, N.A., one of the parties that executed the within agreement, and
also known to me to be the person who executed the within agreement on behalf
of
said national banking association and acknowledged to me that such national
banking association executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_______________________________
Notary
Public
[SEAL]
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
(Provided
upon request)
EXHIBIT
ONE
FORM
OF
CUSTODIAN INITIAL CERTIFICATION
November
30, 2006
U.S.
Bank
National Association
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services, PRIME 2006-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇)
Attention:
President or General Counsel
Structured
Asset Mortgage Investments II Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
PRIME 2006-2
Re:
Custodial
Agreement, dated as of November 30, 2006, by and among Structured Asset
Mortgage
Investments II Inc., EMC Mortgage Corporation, U.S. Bank National Association
and
▇▇▇▇▇
Fargo Bank, National Association as Custodian relating to Prime Mortgage Trust
2006-2,
Mortgage
Pass-Through Certificates, Series
2006-2
Ladies
and Gentlemen:
In
accordance with Section 2.3(a) of the above-captioned Custodial Agreement,
and
subject to Section 2.02(a) of the Pooling and Servicing Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage
File
(which contains an original Mortgage Note or lost note affidavit) to the extent
required in Section 2.01 of the Pooling and Servicing Agreement with respect
to
each Mortgage Loan listed in the Mortgage Loan Schedule, with any exceptions
listed on Schedule A attached hereto.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Custodial Agreement.
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
By:
_______________________________
Name:
Title:
SCHEDULE
A
(PLEASE
SEE TAB #40)
EXHIBIT
TWO
FORM
OF
CUSTODIAN INTERIM CERTIFICATION
[DATE]
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services, PRIME 2006-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇)
Attention:
President or General Counsel
Structured
Asset Mortgage Investments II Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
PRIME 2006-2
Re:
Custodial
Agreement, dated as of November 30, 2006, by and among Structured Asset
Mortgage
Investments II Inc., EMC Mortgage Corporation, U.S. Bank National
Association
and ▇▇▇▇▇ Fargo Bank, National Association as Custodian relating to Prime
Mortgage
Trust 2006-2,
Mortgage Pass-Through Certificates, Series
2006-2
Ladies
and Gentlemen:
In
accordance with Section 2.3(b) of the above-captioned Custodial Agreement and
subject to Section 2.02(a) of the Pooling and Servicing Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage
File
to the extent required pursuant to Section 2.01 of the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule, and it has reviewed the Mortgage File and the Mortgage Loan Schedule
and has determined that: all required documents have been executed and received
and that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Custodial Agreement.
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
By:
_________________________________
Name:
Title:
SCHEDULE
A
(PROVIDED
UPON REQUEST)
EXHIBIT
THREE
FORM
OF
CUSTODIAN FINAL CERTIFICATION
[DATE]
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services, PRIME 2006-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇)
Attention:
President or General Counsel
Structured
Asset Mortgage Investments II Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
PRIME 2006-2
Re: Custodial
Agreement, dated as of November 30, 2006, by and among Structured
Asset
Mortgage Investments II Inc., EMC Mortgage Corporation, U.S. Bank National
Association
and ▇▇▇▇▇ Fargo Bank, National Association, as Custodian relating to Prime
Mortgage
Trust 2006-2,
Mortgage Pass-Through Certificates, Series
2006-2
Ladies
and Gentlemen:
In
accordance with Section 2.3(c) of the above-captioned Custodial Agreement
and,
subject to Section 2.02(b) of the Pooling and Servicing Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage
File
to the extent required pursuant to Section 2.01 of the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule, and it has reviewed the Mortgage File and the Mortgage Loan Schedule
and has determined that: all required documents have been executed and received
and that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Custodial Agreement or in the Pooling and Servicing
Agreement, as applicable.
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
By:
________________________________
Name:
Title:
SCHEDULE
A
(PROVIDED
UPON REQUEST)
EXHIBIT
FOUR
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Custodian shall address, at
a
minimum, the criteria identified 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 pool assets 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 pool assets 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 institutions” 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 45 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
reconciliations; 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 trustee’s records as to the total unpaid principal
balance and number of pool assets 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 pool assets is maintained as required by the transaction
agreements or related asset pool documents.
|
√
|
|
1122(d)(4)(ii)
|
Pool
assets 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 pool assets, including any payoffs, made in accordance with the
related
pool asset 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 pool asset documents.
|
|
|
1122(d)(4)(v)
|
The
servicer’s records regarding the pool assets 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 pool asset (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 of recovery actions (e.g., forbearance plans, modifications
and
deed 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
documents.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.,
Such
records are maintained in at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets 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 pool assets with variable
rates
are computed based on the related pool asset 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 pool asset 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 pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 3- calendar
days of full repayment of the related pool asset, 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 ore 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 service 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 funds 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.
|
|
EXHIBIT
H
FORM
OF
MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of November 30, 2006, as amended and
supplemented by any and all amendments hereto (collectively, the “Agreement”),
by
and between EMC MORTGAGE CORPORATION, a Delaware corporation (the “Seller”)
and
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., a Delaware corporation (the
“Purchaser”).
Upon
the
terms and subject to the conditions of this Agreement, the Seller agrees to
sell, and the Purchaser agrees to purchase, certain conventional, first lien
mortgage loans secured primarily by one- to four-family residential properties
and individual condominium units (collectively, the “Mortgage
Loans”)
as
described herein. The Purchaser intends to deposit the Mortgage Loans into
a
trust fund (the “Trust
Fund”)
and
create Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2006-2
(the “Certificates”),
under
a pooling and servicing agreement, to be dated as of November 1, 2006 (the
“Pooling
and Servicing Agreement”),
among
the Purchaser, as depositor, U.S. Bank National Association, as trustee (the
“Trustee”)
and
EMC Mortgage Corporation, as seller and master servicer.
The
Purchaser has filed with the Securities and Exchange Commission (the
“Commission”)
a
registration statement on Form S-3 (Number 333-132232) relating to its
Mortgage
Pass-Through Certificates
and the
offering of certain series thereof (including certain classes of the
Certificates) from time to time in accordance with Rule 415 under the Securities
Act of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder (the “Securities
Act”).
Such
registration statement, when it became effective under the Securities Act,
and
the prospectus relating to the public offering of certain classes of the
Certificates by the Purchaser (the “Public
Offering”),
as
each may be amended or supplemented from time to time pursuant to the Securities
Act or otherwise, are referred to herein as the “Registration
Statement”
and
the
“Prospectus,”
respectively. The “Term
Sheet Supplement”
shall
mean the free writing prospectus, dated November 6, 2006. The
“Prospectus
Supplement”
shall
mean the final supplement, dated November
30,
2006,
to the Prospectus, dated October
23, 2006,
relating to certain classes of the Certificates. With
respect to the Public Offering of certain classes of the Certificates, the
Purchaser and Bear, ▇▇▇▇▇▇▇ & Co. Inc. (“Bear
▇▇▇▇▇▇▇”)
have
entered into a terms agreement dated as of November 6, 2006 to an underwriting
agreement dated May 12, 2006, between the Purchaser and Bear ▇▇▇▇▇▇▇ (together,
the “Underwriting
Agreement”).
Now,
therefore, in consideration of the premises and the mutual agreements set forth
herein, the parties hereto agree as follows:
SECTION
1. Definitions.
Certain
terms are defined herein. Capitalized terms used herein but not defined herein
shall have the meanings specified in the Pooling and Servicing Agreement. The
following other terms are defined as follows:
Acquisition
Price:
Cash in
an amount equal to $______ (plus $______ in accrued interest)2 .
Bear
▇▇▇▇▇▇▇:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
Closing
Date:
November 30, 2006.
Cut-off
Date:
November 1, 2006.
Cut-off
Date Balance:
Shall
mean $281,849,595.74.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Substitute Mortgage
Loan.
Due
Date:
With
respect to each Mortgage Loan, the date in each month on which its scheduled
payment is due if such due date is the first day of a month and otherwise is
deemed to be the first day of the following month or such other date specified
in the related Servicing Agreement.
EMC
Flow Loans:
The
Mortgage Loans purchased by EMC pursuant to a flow loan purchase
agreement.
Master
Servicer:
EMC
Mortgage Corporation.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
Moody’s:
▇▇▇▇▇’▇
Investors Service Inc., or its successor in interest.
Mortgage:
The
mortgage or deed of trust creating a first lien on an interest in real property
securing a Mortgage Note.
Mortgage
File:
The
items referred to in Exhibit
1
pertaining to a particular Mortgage Loan and any additional documents required
to be added to such documents pursuant to this Agreement.
Mortgage
Interest Rate:
The
annual rate of interest borne by a Mortgage Note as stated therein.
Mortgagor:
The
obligor(s) on a Mortgage Note.
Net
Rate:
For
each Mortgage Loan, the Mortgage Interest Rate for such Mortgage Loan less
the
Servicing Fee Rate and the Lender-Paid PMI Rate (if applicable).
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Seller or the Purchaser,
reasonably acceptable to the Trustee.
Person:
Any
legal person, including any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Purchase
Price:
With
respect to any Mortgage Loan (or any property acquired with respect thereto)
required to be repurchased by the Seller pursuant to this Agreement or Article
II of the Pooling and Servicing Agreement, an amount equal to the sum of (i)(a)
100% of the Outstanding Principal Balance of such Mortgage Loan as of the date
of repurchase (or if the related Mortgaged Property was acquired with respect
thereto, 100% of the Outstanding Principal Balance at the date of the
acquisition), plus (b) accrued but unpaid interest on the Outstanding Principal
Balance at the related Mortgage Interest Rate, through and including the last
day of the month of repurchase, plus (c) any unreimbursed Monthly Advances
and
servicing advances payable to the Servicer of the Mortgage Loan and (ii) any
costs and damages (if any) incurred by the Trust in connection with any
violation of such Mortgage Loan of any anti-predatory lending laws.
Rating
Agencies:
▇▇▇▇▇’▇
and S&P, each a “Rating
Agency.”
Securities
Act:
The
Securities Act of 1933, as amended.
Security
Instrument:
A
written instrument creating a valid first lien on a Mortgaged Property securing
a Mortgage Note, which may be any applicable form of mortgage, deed of trust,
deed to secure debt or security deed, including any riders or addenda
thereto.
Servicing
Agreements:
Shall
have the meaning assigned to such term in the Pooling and Servicing
Agreement.
Standard
& Poor’s or S&P:
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or its
successors in interest.
Substitute
Mortgage Loan:
A
mortgage loan substituted for a Deleted Mortgage Loan which must meet on the
date of such substitution the requirements stated herein and in the Pooling
and
Servicing Agreement; upon such substitution, such mortgage loan shall be a
“Mortgage Loan” hereunder.
Value:
The
value of the Mortgaged Property at the time of origination of the related
Mortgage Loan, such value being the lesser of (i) the value of such property
set
forth in an appraisal accepted by the applicable originator of the Mortgage
Loan
or (ii) the sales price of such property at the time of
origination.
SECTION
2. Purchase
and Sale of the Mortgage Loans and Related Rights.
(a)
Upon
satisfaction of the conditions set forth in Section 10 hereof, the Seller agrees
to sell, and the Purchaser agrees to purchase Mortgage Loans having an aggregate
outstanding principal balance as of the Cut-off Date equal to the Cut-off Date
Balance.
(b) The
closing for the purchase and sale of the Mortgage Loans and the closing for
the
issuance of the Certificates will take place on the Closing Date at the office
of the Purchaser’s counsel in New York, New York or such other place as the
parties shall agree.
(c) Upon
the
satisfaction of the conditions set forth in Section 10 hereof, on the Closing
Date, the Purchaser shall pay to the Seller the Acquisition Price for the
Mortgage Loans in immediately available funds by wire transfer to such account
or accounts as shall be designated by the Seller.
(d) In
addition to the foregoing, on the Closing Date the Seller assigns to the
Purchaser all of its right, title and interest in the Servicing Agreements
(other than its right to enforce the representations and warranties set forth
therein).
SECTION
3. Mortgage
Loan Schedule.
The
Seller agrees to provide to the Purchaser as of the Cut-off Date a listing
of
the Mortgage Loans (the “Mortgage
Loan Schedule”)
setting forth the information listed on Exhibit
2
to this
Agreement with respect to each of the Mortgage Loans being sold by the Seller.
The Mortgage Loan Schedule shall be delivered to the Purchaser on the Closing
Date and shall be in form and substance mutually agreed to by the Seller and
the
Purchaser.
SECTION
4. Mortgage
Loan Transfer.
(a) The
Purchaser will be entitled to all scheduled payments of principal and interest
on the Mortgage Loans due after the Cut-off Date (regardless of when actually
collected) and all payments thereon, other than scheduled principal and interest
due on or before the Cut-off Date but received after the Cut-off Date. The
Seller will be entitled to all scheduled payments of principal and interest
on
the Mortgage Loans due on or before the Cut-off Date (including payments
collected after the Cut-off Date) and all payments thereon, other than scheduled
principal and interest due after the Cut-off Date but received on or before
the
Cut-off Date. Such principal amounts and any interest thereon belonging to
the
Seller as described above will not be included in the aggregate outstanding
principal balance of the Mortgage Loans as of the Cut-off Date as set forth
on
the Mortgage Loan Schedule.
(b) Pursuant
to various conveyancing documents to be executed on the Closing Date and
pursuant to the Pooling and Servicing Agreement, the Purchaser will assign
on
the Closing Date all of its right, title and interest in and to the Mortgage
Loans to the Trustee for the benefit of the Certificateholders. In connection
with the transfer and assignment of the Mortgage Loans, the Seller has delivered
or will deliver or cause to be delivered to the Trustee by the Closing Date
or
such later date as is agreed to by the Purchaser and the Seller (each of the
Closing Date and such later date is referred to as a “Mortgage
File Delivery Date”),
the
items of each Mortgage File, provided,
however,
that in
lieu of the foregoing, the Seller may deliver the following documents, under
the
circumstances set forth below: (w) in lieu of the original Security Instrument
(other than the Mortgages related to the EMC Flow Loans), assignments to the
Trustee or intervening assignments thereof which have been delivered, are being
delivered or will, upon receipt of recording information relating to the
Security Instrument required to be included thereon, be delivered to recording
offices for recording and have not been returned to the Seller in time to permit
their delivery as specified above, the Seller may deliver a true copy thereof
with a certification by the Seller, on the face of such copy, substantially
as
follows: “Certified to be a true and correct copy of the original, which has
been transmitted for recording”; (x) in lieu of the Security Instrument (other
than the Mortgages related to the EMC Flow Loans), assignments to the Trustee
or
intervening assignments thereof, if the applicable jurisdiction retains the
originals of such documents (as evidenced by a certification from the Seller
to
such effect) the Seller may deliver photocopies of such documents containing
an
original certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; (y) in lieu of the Mortgage
Notes relating to the Mortgage Loans, each identified in the list delivered
by
the Purchaser to the Trustee on the Closing Date and attached hereto as Exhibit
5, the Seller may deliver lost note affidavits and indemnities of the Seller;
and (z) the Seller shall not be required to deliver intervening assignments
or
Mortgage Note endorsements between the related Underlying Seller and the Seller,
between the Seller and the Depositor, and between the Depositor and the Trustee;
and provided further, however, that in the case of Mortgage Loans which have
been prepaid in full after the Cut-off Date and prior to the Closing Date,
the
Seller, in lieu of delivering the above documents, may deliver to the Trustee
a
certification by the Seller or the Master Servicer to such effect and shall
deposit all amounts paid in respect of such Mortgage Loans in the Master
Servicer Collection Account on the Closing Date. The Seller shall deliver such
original documents (including any original documents as to which certified
copies had previously been delivered) or such certified copies to the Trustee
promptly after they are received. The Seller shall cause the Mortgage and
intervening assignments, if any, and the assignment of the Security Instrument
to be recorded not later than 180 days after the Closing Date, unless such
assignment is not required to be recorded under the terms set forth in Section
6(a) hereof.
(c) In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Seller further agrees that it will cause, at the Seller’s own
expense, within 30 days after the Closing Date, the MERS® System to indicate
that such Mortgage Loans have been assigned by the Seller to the Purchaser
and
by the Purchaser to the Trustee in accordance with this Agreement for the
benefit of the Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this Agreement) in
such
computer files (a) the code in the field which identifies the specific Trustee
and (b) the code in the field “Pool Field” which identifies the series of the
Certificates issued in connection with such Mortgage Loans. The Seller further
agrees that it will not, and will not permit any Servicer or the Master
Servicer, and the Master Servicer agrees that it will not, alter the codes
referenced in this paragraph with respect to any Mortgage Loan during the term
of the Pooling and Servicing Agreement unless and until such Mortgage Loan
is
repurchased in accordance with the terms of the Pooling and Servicing
Agreement.
(d) The
Seller and the Purchaser acknowledge hereunder that all of the Mortgage Loans
and the related servicing will ultimately be assigned to U.S. Bank National
Association, as Trustee for the Holders of the Mortgage, on the date
hereof.
SECTION
5. Examination
of Mortgage Files.
(a) On
or
before the Mortgage File Delivery Date, the Seller will have made the Mortgage
Files available to the Purchaser or its agent for examination which may be
at
the offices of the Trustee or the Seller and/or the Seller’s custodian. The fact
that the Purchaser or its agent has conducted or has failed to conduct any
partial or complete examination of the Mortgage Files shall not affect the
Purchaser’s rights to demand cure, repurchase, substitution or other relief as
provided in this Agreement. In furtherance of the foregoing, the Seller shall
make the Mortgage Files available to the Purchaser or its agent from time to
time so as to permit the Purchaser to confirm the Seller’s compliance with the
delivery and recordation requirements of this Agreement and the Pooling and
Servicing Agreement. In addition, upon request of the Purchaser, the Seller
agrees to provide to the Purchaser, Bear ▇▇▇▇▇▇▇ and to any investors or
prospective investors in the Certificates information regarding the Mortgage
Loans and their servicing, to make the Mortgage Files available to the
Purchaser, Bear ▇▇▇▇▇▇▇ and to such investors or prospective investors (which
may be at the offices of the Seller and/or the Seller’s custodian) and to make
available personnel knowledgeable about the Mortgage Loans for discussions
with
the Purchaser, Bear ▇▇▇▇▇▇▇ and such investors or prospective investors, upon
reasonable request during regular business hours, sufficient to permit the
Purchaser, Bear ▇▇▇▇▇▇▇ and such investors or potential investors to conduct
such due diligence as any such party reasonably believes is
appropriate.
(b) Pursuant
to the Pooling and Servicing Agreement, on the Closing Date the Custodian,
on
behalf of the Trustee, for the benefit of the Certificateholders, will
acknowledge receipt of each Mortgage Loan by delivery to the Seller, the
Purchaser and the Trustee of an initial certification in the form attached
as
Exhibit One to the Custodial Agreement.
(c) Pursuant
to the Pooling and Servicing Agreement, within 90 days of the Closing Date
(or,
with respect to any Substitute Mortgage Loan, within five Business Days after
the receipt by the Trustee or Custodian thereof), the Trustee will review or
shall cause the Custodian to review items of the Mortgage Files as set forth
on
Exhibit
1
and will
deliver to the Seller, the Purchaser and the Trustee an interim certification
substantially in the form of Exhibit Two to the Custodial Agreement. If the
Trustee or Custodian, as its agent, finds any document listed on Exhibit
1
not to
have been executed or received, or to be unrelated, determined on the basis
of
the Mortgagor name, original principal balance and loan number, to the Mortgage
Loans identified in the Final Mortgage Loan Schedule or to appear defective
on
its face (a “Material
Defect”),
the
Trustee or the Custodian, as its agent, shall promptly notify the Seller of
such
Material Defect. The Seller shall correct or cure any such Material Defect
within 90 days from the date of notice from the Trustee or the Custodian, as
its
agent, of the Material Defect and if the Seller fails to correct or cure such
Material Defect within such period and such defect materially and adversely
affects the interests of the Certificateholders in the related Mortgage Loan,
the Seller will, in accordance with the terms of the Pooling and Servicing
Agreement, within 90 days of the date of notice, provide the Trustee with a
Substitute Mortgage Loan (if within two years of the Closing Date) or purchase
the related Mortgage Loan at the applicable Purchase Price; provided
that,
if such
defect would cause the Mortgage Loan to be other than a “qualified mortgage” as
defined in Section 860G(a)(3) of the Code, any such cure, repurchase or
substitution must occur within 90 days from the date such breach was discovered;
provided, however,
that if
such defect relates solely to the inability of the Seller to deliver the
original Security Instrument or intervening assignments thereof, or a certified
copy because the originals of such documents, or a certified copy, have not
been
returned by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan if the Seller delivers such original documents
or
certified copy promptly upon receipt, but in no event later than 360 days after
the Closing Date. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver such original or copy of any document
submitted for recording to the appropriate recording office in the applicable
jurisdiction because such document has not been returned by such office;
provided that the Seller shall instead deliver a recording receipt of such
recording office or, if such receipt is not available, a certificate confirming
that such documents have been accepted for recording, and delivery to the
Trustee or the Custodian, as its agent, shall be effected by the Seller within
thirty days of its receipt of the original recorded document.
(d) Pursuant
to the Pooling and Servicing Agreement, within 180 days of the Closing Date
(or,
with respect to any Substitute Mortgage Loan, within five Business Days after
the receipt by the Trustee or Custodian thereof) the Trustee will review or
cause the Custodian to review items of the Mortgage Files as set forth on
Exhibit
1
and will
deliver to the Seller, the Purchaser and the Trustee a final certification
substantially in the form of Exhibit Three to the Custodial Agreement. If the
Trustee or Custodian, as its agent, finds a Material Defect, the Trustee or
the
Custodian, as its agent, shall promptly notify the Seller of such Material
Defect. The Seller shall correct or cure any such Material Defect within 90
days
from the date of notice from the Trustee or the Custodian, as its agent, of
the
Material Defect and if the Seller fails to correct or cure such Material Defect
within such period and such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, the Seller
will, in accordance with the terms of the Pooling and Servicing Agreement,
within 90 days of the date of notice, provide the Trustee with a Substitute
Mortgage Loan (if within two years of the Closing Date) or purchase the related
Mortgage Loan at the applicable Purchase Price; provided
that,
if such
defect would cause the Mortgage Loan to be other than a “qualified mortgage” as
defined in Section 860G(a)(3) of the Code, any such cure, repurchase or
substitution must occur within 90 days from the date such breach was discovered;
provided, however,
that if
such defect relates solely to the inability of the Seller to deliver the
original Security Instrument or intervening assignments thereof, or a certified
copy because the originals of such documents, or a certified copy, have not
been
returned by the applicable jurisdiction, the Seller shall not be required to
purchase such Mortgage Loan if the Seller delivers such original documents
or
certified copy promptly upon receipt, but in no event later than 360 days after
the Closing Date. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver such original or copy of any document
submitted for recording to the appropriate recording office in the applicable
jurisdiction because such document has not been returned by such office;
provided that the Seller shall instead deliver a recording receipt of such
recording office or, if such receipt is not available, a certificate confirming
that such documents have been accepted for recording, and delivery to the
Trustee or the Custodian, as its agent, shall be effected by the Seller within
thirty days of its receipt of the original recorded document.
(e) At
the
time of any substitution, the Seller shall deliver or cause to be delivered
the
Substitute Mortgage Loan, the related Mortgage File and any other documents
and
payments required to be delivered in connection with a substitution pursuant
to
the Pooling and Servicing Agreement. At the time of any purchase or
substitution, the Trustee in accordance with the terms of the Pooling and
Servicing Agreement shall (i) assign to the Seller and cause the Custodian
to
release the documents (including, but not limited to, the Mortgage, Mortgage
Note and other contents of the Mortgage File) in the possession of the Custodian
relating to the Deleted Mortgage Loan and (ii) execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Seller title to such Deleted Mortgage
Loan.
SECTION
6. Recordation
of Assignments of Mortgage.
(a) The
Seller shall cause each assignment of the Security Instrument from the Seller
to
the Trustee to be recorded not later than 180 days after the Closing Date,
unless (a) such recordation is not required by the Rating Agencies or an Opinion
of Counsel has been provided to the Trustee (with a copy to the Custodian)
which
states that the recordation of such assignments is not necessary to protect
the
interests of the Certificateholders in the related Mortgage Loans or (b) MERS
is
identified on the Mortgage or a properly recorded assignment of the Mortgage,
as
the Mortgagee of record solely as nominee for the Seller and its successors
and
assigns; provided,
however,
notwithstanding the foregoing, each assignment shall be submitted for recording
by the Seller in the manner described above, at no expense to the Trust or
Trustee, upon the earliest to occur of (i) reasonable direction by the Holders
of Certificates evidencing Fractional Undivided Interests aggregating not less
than 25% of the portion of the Trust related to such Classes, (ii) the
occurrence of an Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Seller and (iv) the occurrence of
a
servicing transfer as described in Section 8.02 of the Pooling and Servicing
Agreement.
While
each such Mortgage or assignment is being recorded, if necessary, the Seller
shall leave or cause to be left with the Trustee a certified copy of such
Mortgage or assignment. All customary recording fees and reasonable expenses
relating to the recordation of the assignments of mortgage to the Trustee or
the
Opinion of Counsel, as the case may be, shall be borne by the
Seller.
(b) It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Seller to the Purchaser, as contemplated by this Agreement be, and be
treated as, a sale. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held by a court to continue to be property of the Seller, then (a) this
Agreement shall also be deemed to be a security agreement within the meaning
of
Articles 8 and 9 of the applicable Uniform Commercial Code; (b) the transfer
of
the Mortgage Loans provided for herein shall be deemed to be a grant by the
Seller to the Purchaser of a security interest in all of the Seller’s right,
title and interest in and to the Mortgage Loans and all amounts payable to
the
holders of the Mortgage Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, to the extent the Purchaser
would otherwise be entitled to own such Mortgage Loans and proceeds pursuant
to
Section 4 hereof, including all amounts, other than investment earnings, from
time to time held or invested in any accounts created pursuant to the Pooling
and Servicing Agreement, whether in the form of cash, instruments, securities
or
other property; (c) the possession by the Purchaser or the Trustee 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” for purposes of perfecting the security interest pursuant to
Section 9-313 (or comparable provision) of the applicable Uniform Commercial
Code; 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
Purchaser for the purpose of perfecting such security interest under applicable
law. Any assignment of the interest of the Purchaser pursuant to any provision
hereof or pursuant to the Pooling and Servicing Agreement shall also be deemed
to be an assignment of any security interest created hereby. The Seller and
the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be reasonably necessary to ensure that, if this Agreement were deemed
to
create a security interest in the Mortgage Loans, 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 the Pooling and
Servicing Agreement.
SECTION
7. Representations
and Warranties of Seller Concerning the Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser as of the Closing Date,
or such other date as may be specified below with respect to each Mortgage
Loan
being sold by it, that:
(i) the
information set forth in the Mortgage Loan Schedule attached hereto is true
and
correct in all material;
(ii) immediately
prior to the transfer to the Purchaser, the Seller was the sole owner of
beneficial title and holder of each Mortgage and Mortgage Note relating to
the
Mortgage Loans and is conveying the same free and clear of any and all liens,
claims, encumbrances, participation interests, equities, pledges, charges or
security interests of any nature and the Seller has full right and authority
to
sell or assign the same pursuant to this Agreement;
(iii) Each
Mortgage Loan at the time it was made complied in all material respects with
all
applicable laws and regulations, including, without limitation, usury, equal
credit opportunity, disclosure and recording laws and all applicable
anti-predatory lending laws; and each Mortgage Loan has been serviced in all
material respects in accordance with all applicable laws and regulations,
including, without limitation, usury, equal credit opportunity, disclosure
and
recording laws and all applicable anti-predatory lending laws and the terms
of
the related Mortgage Note, the Mortgage and other loan documents;
(iv) there
is
no monetary default existing under any Mortgage or the related Mortgage Note
and
there is no material event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a default, breach
or event of acceleration; and neither the Seller, any of its affiliates nor
any
servicer of any related Mortgage Loan has taken any action to waive any default,
breach or event of acceleration; and no foreclosure action is threatened or
has
been commenced with respect to the Mortgage Loan;
(v) the
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, (i) if required by
law
in the jurisdiction where the Mortgaged Property is located, or (ii) to protect
the interests of the Trustee on behalf of the Certificateholders;
(vi) no
selection procedure reasonably believed by the Seller to be adverse to the
interests of the Certificateholders was utilized in selecting the Mortgage
Loans;
(vii) each
Mortgage is a valid and enforceable first lien on the property securing the
related Mortgage Note and each Mortgaged Property is owned by the Mortgagor
in
fee simple (except with respect to common areas in the case of condominiums,
PUDs and de minimis
PUDs) or
by leasehold for a term longer than the term of the related Mortgage, subject
only to (i) the lien of current real property taxes and assessments, (ii)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage, such
exceptions being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal obtained in connection with the
origination of the related Mortgage Loan or referred to in the lender’s title
insurance policy delivered to the originator of the related Mortgage Loan and
(iii) other matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended to be provided
by such Mortgage;
(viii) there
is
no mechanics’ lien or claim for work, labor or material affecting the premises
subject to any Mortgage which is or may be a lien prior to, or equal with,
the
lien of such Mortgage except those which are insured against by the title
insurance policy referred to in (xiii) below;
(ix) there
was
no delinquent tax or assessment lien against the property subject to any
Mortgage, except where such lien was being contested in good faith and a stay
had been granted against levying on the property;
(x) there
is
no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal and
interest on such Mortgage Note;
(xi) the
physical property subject to any Mortgage is free of material damage and is
in
good repair and there is no proceeding pending or threatened for the total
or
partial condemnation of any Mortgaged Property;
(xii) the
Mortgaged Property and all improvements thereon comply with all requirements
of
any applicable zoning and subdivision laws and ordinances;
(xiii) a
lender’s title insurance policy (on an ALTA or CLTA form) or binder, or other
assurance of title customary in the relevant jurisdiction therefor in a form
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, was issued on the date that each
Mortgage Loan was created by a title insurance company which, to the best of
the
Seller’s knowledge, was qualified to do business in the jurisdiction where the
related Mortgaged Property is located, insuring the Seller and its successors
and assigns that the Mortgage is a first priority lien on the related Mortgaged
Property in the original principal amount of the Mortgage Loan. The Seller
is
the sole insured under such lender’s title insurance policy, and such policy,
binder or assurance is valid and remains in full force and effect, and each
such
policy, binder or assurance shall contain all applicable endorsements including
a negative amortization endorsement, if applicable;
(xiv) At
the
time of origination, each Mortgaged Property was the subject of an appraisal
which conformed to the underwriting requirements of the originator of the
Mortgage Loan and, the appraisal is in a form acceptable to ▇▇▇▇▇▇ Mae or
FHLMC.
(xv) the
improvements on each Mortgaged Property securing a Mortgage Loan is insured
(by
an insurer which is acceptable to the Seller) against loss by fire and such
hazards as are covered under a standard extended coverage endorsement in the
locale in which the Mortgaged Property is located, in an amount which is not
less than the lesser of the maximum insurable value of the improvements securing
such Mortgage Loan or the outstanding principal balance of the Mortgage Loan,
but in no event in an amount less than an amount that is required to prevent
the
Mortgagor from being deemed to be a co-insurer thereunder; if the improvement
on
the Mortgaged Property is a condominium unit, it is included under the coverage
afforded by a blanket policy for the condominium project; if upon origination
of
the related Mortgage Loan, the improvements on the Mortgaged Property were
in an
area identified as a federally designated flood area, a flood insurance policy
is in effect in an amount representing coverage not less than the least of
(i)
the outstanding principal balance of the Mortgage Loan, (ii) the restorable
cost
of improvements located on such Mortgaged Property or (iii) the maximum coverage
available under federal law; and each Mortgage obligates the Mortgagor
thereunder to maintain the insurance referred to above at the Mortgagor’s cost
and expense;
(xvi) each
Mortgage Loan constitutes a “qualified mortgage” under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6),
(7)
and (9) without reliance on the provisions of Treasury Regulation Section
1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other
provision that would allow a Mortgage Loan to be treated as a “qualified
mortgage” notwithstanding its failure to meet the requirements of Section
860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2),
(4), (5), (6), (7) and (9);
(xvii) none
of
the Mortgage Loans are (a) loans subject to 12 CFR Part 226.31, 12 CFR Part
226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation implementing TILA,
which implements the Home Ownership and Equity Protection Act of 1994, as
amended or (b) “high cost home,” “covered” (excluding home loans defined as
“covered home loans” in the New Jersey Home Ownership Security Act of 2002 that
were originated between November 26, 2003 and July 7, 2004), “high risk home” or
“predatory” loans under any applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees);
(xviii) the
information set forth in Schedule A of the Prospectus Supplement with respect
to
the Mortgage Loans is true and correct in all material respects;
(xix) no
Mortgage Loan (a) is a “high cost loan” or “covered loan” as applicable (as such
terms are defined in the then current Standard & Poor’s LEVELS® Glossary,
which is now Version 5.7, Appendix E, attached hereto as Exhibit 6 or (b) was
originated on or after October 1, 2002 and before March 7, 2003, which is
governed by the Georgia Fair Lending Act;
(xx) each
Mortgage Loan was originated in accordance with the underwriting guidelines
of
the related originator;
(xxi) each
original Mortgage has been recorded or is in the process of being recorded
in
accordance with the requirements of Section 2.01 of the Pooling and Servicing
Agreement in the appropriate jurisdictions wherein such recordation is required
to perfect the lien thereof for the benefit of the Trust Fund;
(xxii) the
related Mortgage File contains each of the documents and instruments listed
in
Section 2.01 of the Pooling and Servicing Agreement, subject to any exceptions,
substitutions and qualifications as are set forth in such Section;
(xxiii) the
Mortgage Loans are currently being serviced in accordance with accepted
servicing practices; and
(xxiv) with
respect to each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and will be enforced by the Mortgage Loan
Seller and each prepayment penalty is permitted pursuant to federal, state
and
local law. In addition, with respect to each Mortgage Loan (i) no Mortgage
Loan
will impose a prepayment penalty for a term in excess of five years from the
date such Mortgage Loan was originated and (ii) such prepayment penalty is
at
least equal to the lesser of (A) the maximum amount permitted under applicable
law and (B) six months interest at the related Mortgage Interest Rate on the
amount prepaid in excess of 20% of the original principal balance of such
Mortgage Loan.
(xxv) If
any of
the Mortgage Loans are secured by a leasehold interest, with respect to each
leasehold interest: the use of leasehold estates for residential properties
is
an accepted practice in the area where the related Mortgaged Property is
located; residential property in such area consisting of leasehold estates
is
readily marketable; the lease is recorded and no party is in any way in breach
of any provision of such lease; the leasehold is in full force and effect and
is
not subject to any prior lien or encumbrance by which the leasehold could be
terminated or subject to any charge or penalty; and the remaining term of the
lease does not terminate less than ten years after the maturity date of such
Mortgage Loan;
(xxvi) each
Mortgage Loan was originated (a) by a savings and loan association, savings
bank, commercial bank, credit union, insurance company or similar institution
that is supervised and examined by a federal or state authority, (b) by a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to
Sections 203 and 211 of the National Housing Act, as amended, or (c) by a
mortgage broker or correspondent lender in a manner such that the related
Mortgage Loan would be regarded for purposes of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended, as having been originated by an
entity described in clauses (a) or (b) above.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 7 will inure to the benefit of the Purchaser, its successors and
assigns, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or assignment of Mortgage or the examination of any Mortgage
File.
Upon any substitution for a Mortgage Loan, the representations and warranties
set forth above shall be deemed to be made by the Seller as to any Substitute
Mortgage Loan as of the date of substitution.
Upon
discovery or receipt of notice by the Seller, the Purchaser or the Trustee
of a
breach of any representation or warranty of the Seller set forth in this Section
7 which materially and adversely affects the value of the interests of the
Purchaser, the Certificateholders or the Trustee in any of the Mortgage Loans
delivered to the Purchaser pursuant to this Agreement, the party discovering
or
receiving notice of such breach shall give prompt written notice to the others.
In the case of any such breach of a representation or warranty set forth in
this
Section 7, within 90 days from the date of discovery by the Seller, or the
date
the Seller is notified by the party discovering or receiving notice of such
breach (whichever occurs earlier), the Seller will (i) cure such breach in
all
material respects, (ii) purchase the affected Mortgage Loan at the applicable
Purchase Price or (iii) if within two years of the Closing Date, substitute
a
qualifying Substitute Mortgage Loan in exchange for such Mortgage Loan; provided
that, (A) in the case of a breach of the representation and warranty concerning
the Mortgage Loan Schedule contained in clause (i) of this Section 7, if such
breach is material and relates to any field on the Mortgage Loan Schedule which
identifies any Prepayment Charge or (B) in the case of a breach of the
representation contained in clause (x) of this Section 7, then, in each case,
in
lieu of purchasing such Mortgage Loan from the Trust Fund at the Purchase Price,
the Seller shall pay the amount of the Prepayment Charge (net of any amount
previously collected by or paid to the Trust Fund in respect of such Prepayment
Charge) from its own funds and without reimbursement therefor, and the Seller
shall have no obligation to repurchase or substitute for such Mortgage Loan.
The
obligations of the Seller to cure, purchase or substitute a qualifying
Substitute Mortgage Loan shall constitute the Purchaser’s, the Trustee’s and the
Certificateholder’s sole and exclusive remedy under this Agreement or otherwise
respecting a breach of representations or warranties hereunder with respect
to
the Mortgage Loans, except for the obligation of the Seller to indemnify the
Purchaser for such breach as set forth in and limited by Section 13
hereof.
Any
cause
of action against the Seller or relating to or arising out of a breach by the
Seller of any representations and warranties made in this Section 7 shall accrue
as to any Mortgage Loan upon (i) discovery of such breach by the Seller or
notice thereof by the party discovering such breach and (ii) failure by the
Seller to cure such breach, purchase such Mortgage Loan or substitute a
qualifying Substitute Mortgage Loan pursuant to the terms hereof.
SECTION
8. Representations
and Warranties Concerning the Seller.
As of
the date hereof and as of the Closing Date, the Seller represents and warrants
to the Purchaser as to itself in the capacity indicated as follows:
(a) the
Seller (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and (ii) is qualified and
in
good standing to do business in each jurisdiction where such qualification
is
necessary, except where the failure so to qualify would not reasonably be
expected to have a material adverse effect on the Seller’s business as presently
conducted or on the Seller’s ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(b) the
Seller has full power to own its property, to carry on its business as presently
conducted and to enter into and perform its obligations under this
Agreement;
(c) the
execution and delivery by the Seller of this Agreement have been duly authorized
by all necessary action on the part of the Seller; and neither the execution
and
delivery of this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict with
or
result in a breach of, or constitute a default under, any of the provisions
of
any law, governmental rule, regulation, judgment, decree or order binding on
the
Seller or its properties or the charter or by-laws of the Seller, except those
conflicts, breaches or defaults which would not reasonably be expected to have
a
material adverse effect on the Seller’s ability to enter into this Agreement and
to consummate the transactions contemplated hereby;
(d) the
execution, delivery and performance by the Seller of this Agreement and the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made and, in connection
with the recordation of the Mortgages, powers of attorney or assignments of
Mortgages not yet completed;
(e) this
Agreement has been duly executed and delivered by the Seller and, assuming
due
authorization, execution and delivery by the Purchaser, constitutes a valid
and
binding obligation of the Seller enforceable against it in accordance with
its
terms (subject to applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors
generally);
(f) there
are
no actions, suits or proceedings pending or, to the knowledge of the Seller,
threatened against the Seller, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter which
in
the judgment of the Seller will be determined adversely to the Seller and will
if determined adversely to the Seller materially and adversely affect the
Seller’s ability to perform its obligations under this Agreement; and the Seller
is not in default with respect to any order of any court, administrative agency,
arbitrator or governmental body so as to materially and adversely affect the
transactions contemplated by this Agreement; and
(g) the
Seller’s Information (as defined in Section 13(a) hereof) does not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in light of the circumstances under which
they were made, not misleading.
SECTION
9. Representations
and Warranties Concerning the Purchaser.
As of
the date hereof and as of the Closing Date, the Purchaser represents and
warrants to the Seller as follows:
(a) the
Purchaser (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and (ii) is qualified and
in
good standing as a foreign corporation to do business in each jurisdiction
where
such qualification is necessary, except where the failure so to qualify would
not reasonably be expected to have a material adverse effect on the Purchaser’s
business as presently conducted or on the Purchaser’s ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(b) the
Purchaser has full corporate power to own its property, to carry on its business
as presently conducted and to enter into and perform its obligations under
this
Agreement;
(c) the
execution and delivery by the Purchaser of this Agreement have been duly
authorized by all necessary corporate action on the part of the Purchaser;
and
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Purchaser or its properties or the articles of
incorporation or by-laws of the Purchaser, except those conflicts, breaches
or
defaults which would not reasonably be expected to have a material adverse
effect on the Purchaser’s ability to enter into this Agreement and to consummate
the transactions contemplated hereby;
(d) the
execution, delivery and performance by the Purchaser of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made;
(e) this
Agreement has been duly executed and delivered by the Purchaser and, assuming
due authorization, execution and delivery by the Seller, constitutes a valid
and
binding obligation of the Purchaser enforceable against it in accordance with
its terms (subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally);
(f) there
are
no actions, suits or proceedings pending or, to the knowledge of the Purchaser,
threatened against the Purchaser, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter which
in
the judgment of the Purchaser will be determined adversely to the Purchaser
and
will if determined adversely to the Purchaser materially and adversely affect
the Purchaser’s ability to perform its obligations under this Agreement; and the
Purchaser is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to materially
and
adversely affect the transactions contemplated by this Agreement;
and
(g) the
Purchaser’s Information (as defined in Section 13(b) hereof) does not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading.
SECTION
10. Conditions
to Closing.
(a) The
obligations of the Purchaser under this Agreement will be subject to the
satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) Each
of
the obligations of the Seller required to be performed at or prior to the
Closing Date pursuant to the terms of this Agreement shall have been duly
performed and complied with in all material respects; all of the representations
and warranties of the Seller under this Agreement shall be true and correct
as
of the date or dates specified in all material respects; and no event shall
have
occurred which, with notice or the passage of time, would constitute a default
under this Agreement, or the Pooling and Servicing Agreement; and the Purchaser
shall have received certificates to that effect signed by authorized officers
of
the Seller.
(ii) The
Purchaser shall have received all of the following closing documents, in such
forms as are agreed upon and reasonably acceptable to the Purchaser, duly
executed by all signatories (other than the Purchaser) as required pursuant
to
the respective terms thereof:
(1) The
Pooling and Servicing Agreement, in form and substance reasonably satisfactory
to the Trustee and the Purchaser, and all documents required thereby duly
executed by all signatories;
(2) A
certificate of an officer of the Seller dated as of the Closing Date, in a
form
reasonably acceptable to the Purchaser, and attached thereto the resolutions
of
the Seller authorizing the transactions contemplated by this Agreement, together
with copies of the charter and by-laws of the Seller;
(3) One
or
more opinions of counsel from the Seller’s counsel otherwise in form and
substance reasonably satisfactory to the Purchaser, the Trustee and each Rating
Agency;
(4) A
letter
from each of the Rating Agencies giving each Class of Certificates set forth
on
Schedule A the rating set forth on Schedule A; and
(5) Such
other documents, certificates (including additional representations and
warranties) and opinions as may be reasonably necessary to secure the intended
ratings from each Rating Agency for the Certificates.
(iii) The
Certificates to be sold to Bear ▇▇▇▇▇▇▇ pursuant to the Underwriting Agreement
and the Purchase Agreement shall have been issued and sold to Bear
▇▇▇▇▇▇▇.
(iv) The
Seller shall have furnished to the Purchaser such other certificates of its
officers or others and such other documents and opinions of counsel to evidence
fulfillment of the conditions set forth in this Agreement and the transactions
contemplated hereby as the Purchaser and its counsel may reasonably
request.
(b) The
obligations of the Seller under this Agreement shall be subject to the
satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) The
obligations of the Purchaser required to be performed by it on or prior to
the
Closing Date pursuant to the terms of this Agreement shall have been duly
performed and complied with in all material respects, and all of the
representations and warranties of the Purchaser under this Agreement shall
be
true and correct in all material respects as of the date hereof and as of the
Closing Date, and no event shall have occurred which would constitute a breach
by it of the terms of this Agreement, and the Seller shall have received a
certificate to that effect signed by an authorized officer of the
Purchaser.
(ii) The
Seller shall have received copies of all of the following closing documents,
in
such forms as are agreed upon and reasonably acceptable to the Seller, duly
executed by all signatories other than the Seller as required pursuant to the
respective terms thereof:
(1) The
Pooling and Servicing Agreement, in form and substance reasonably satisfactory
to the Seller, and all documents required thereby duly executed by all
signatories;
(2) A
certificate of an officer of the Purchaser dated as of the Closing Date, in
a
form reasonably acceptable to the Seller, and attached thereto the resolutions
of the Purchaser authorizing the transactions contemplated by this Agreement
and
the Pooling and Servicing Agreement, together with copies of the Purchaser’s
articles of incorporation, and evidence as to the good standing of the Purchaser
dated as of a recent date;
(3) One
or
more opinions of counsel from the Purchaser’s counsel in form and substance
reasonably satisfactory to the Seller;
(4) Such
other documents, certificates (including additional representations and
warranties) and opinions as may be reasonably necessary to secure the intended
rating from each Rating Agency for the Certificates;
SECTION
11. Fees
and Expenses.
Subject
to Section 16 hereof, the Seller shall pay on the Closing Date or such later
date as may be agreed to by the Purchaser (i) the fees and expenses of the
Seller’s attorneys and the reasonable fees and expenses of the Purchaser’s
attorneys, (ii) the fees and expenses of Deloitte & Touche LLP, (iii) the
fee for the use of Purchaser’s Registration Statement based on the aggregate
original principal amount of the Certificates and the filing fee of the
Commission as in effect on the date on which the Registration Statement was
declared effective, (iv) the fees and expenses including counsel’s fees and
expenses in connection with any “blue sky” and legal investment matters, (v) the
fees and expenses of the Trustee which shall include without limitation the
fees
and expenses of the Trustee (and the fees and disbursements of its counsel)
with
respect to (A) legal and document review of this Agreement, the Pooling and
Servicing Agreement, the Certificates and related agreements, (B) attendance
at
the Closing and (C) review of the Mortgage Loans to be performed by the
Custodian, (vi) the expenses for printing or otherwise reproducing the
Certificates, the Prospectus and the Prospectus Supplement, (vii) the fees
and
expenses of each Rating Agency (both initial and ongoing), (viii) the fees
and
expenses relating to the preparation and recordation of mortgage assignments
(including intervening assignments, if any and if available, to evidence a
complete chain of title from the originator to the Trustee) from the Seller
to
the Trustee or the expenses relating to the Opinion of Counsel referred to
in
Section 6(a) hereof, as the case may be, and (ix) Mortgage File due diligence
expenses and other out-of-pocket expenses incurred by the Purchaser in
connection with the purchase of the Mortgage Loans and by Bear ▇▇▇▇▇▇▇ in
connection with the sale of the Certificates. The Seller additionally agrees
to
pay directly to any third party on a timely basis the fees provided for above
which are charged by such third party and which are billed
periodically.
SECTION
12. Accountants’
Letters.
(a) Deloitte
& Touche LLP will review the characteristics of a sample of the Mortgage
Loans described in the Mortgage Loan Schedule and will compare those
characteristics to the description of the Mortgage Loans contained in the
Prospectus Supplement under the captions “Summary of Prospectus Supplement—The
Mortgage Loans”, “The Mortgage Pool” and “Certain Characteristics of the
Mortgage Loans” in Schedule A thereto. The Seller will cooperate with the
Purchaser in making available all information and taking all steps reasonably
necessary to permit such accountants to complete the review and to deliver
the
letters required of them under the Underwriting Agreement. Deloitte & Touche
LLP will also confirm certain calculations as set forth under the caption “Yield
On The Certificates” in the Prospectus Supplement.
(b) To
the
extent statistical information with respect to the Master Servicer or any
Servicer’s servicing portfolio is included in the Prospectus Supplement under
the caption “The Master Servicer and the Servicers,” a letter from the certified
public accountant for such Master Servicer, Servicer or Servicers, as
applicable, will be delivered to the Purchaser dated the date of the Prospectus
Supplement, in the form previously agreed to by the Seller and the Purchaser,
with respect to such statistical information.
SECTION
13. Indemnification.
(a) The
Seller shall indemnify and hold harmless the Purchaser and its directors,
officers and controlling persons (as defined in Section 15 of the Securities
Act) from and against any loss, claim, damage or liability or action in respect
thereof, to which they or any of them may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon (i) any untrue statement of a material fact
contained in the Seller’s
Information
as
identified in Exhibit
3,
the
omission to state in the Prospectus Supplement or Prospectus (or any amendment
thereof or supplement thereto approved by the Seller and in which additional
Seller’s Information is identified), in reliance upon and in conformity with
Seller’s Information a material fact required to be stated therein or necessary
to make the statements therein in light of the circumstances in which they
were
made, not misleading, (ii) any representation or warranty assigned or made
by
the Seller in Section 7 or Section 8 hereof being, or alleged to be, untrue
or
incorrect, or (iii) any failure by the Seller to perform its obligations under
this Agreement; and the Seller shall reimburse the Purchaser and each other
indemnified party for any legal and other expenses reasonably incurred by them
in connection with investigating or defending or preparing to defend against
any
such loss, claim, damage, liability or action.
The
foregoing indemnity agreement is in addition to any liability which the Seller
otherwise may have to the Purchaser or any other such indemnified
party.
(b) The
Purchaser shall indemnify and hold harmless the Seller and its respective
directors, officers and controlling persons (as defined in Section 15 of the
Securities Act) from and against any loss, claim, damage or liability or action
in respect thereof, to which they or any of them may become subject, under
the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or
action arises out of, or is based upon (i) any untrue statement of a material
fact contained in the Purchaser’s
Information
as
identified in Exhibit
4,
the
omission to state in the Prospectus Supplement or Prospectus (or any amendment
thereof or supplement thereto approved by the Purchaser and in which additional
Purchaser’s Information is identified), in reliance upon and in conformity with
the Purchaser’s Information, a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in which
they were made, not misleading, (ii) any representation or warranty made by
the
Purchaser in Section 9 hereof being, or alleged to be, untrue or incorrect,
or
(iii) any failure by the Purchaser to perform its obligations under this
Agreement; and the Purchaser shall reimburse the Seller, and each other
indemnified party for any legal and other expenses reasonably incurred by them
in connection with investigating or defending or preparing to defend any such
loss, claim, damage, liability or action. The foregoing indemnity agreement
is
in addition to any liability which the Purchaser otherwise may have to the
Seller, or any other such indemnified party,
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify each party against whom indemnification is to be sought
in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 13 except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
it
may elect by written notice delivered to the indemnified party promptly (but,
in
any event, within 30 days) after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be
at
the expense of such indemnified party or parties unless (i) the employment
of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
or
(iii) such indemnified party or parties shall have reasonably concluded that
there is a conflict of interest between itself or themselves and the
indemnifying party in the conduct of the defense of any claim or that the
interests of the indemnified party or parties are not substantially co-extensive
with those of the indemnifying party (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf of
the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties; provided,
however,
that
the indemnifying party shall be liable only for the fees and expenses of one
counsel in addition to one local counsel in the jurisdiction involved. Anything
in this subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement or any claim or action effected without its
written consent; provided,
however,
that
such consent was not unreasonably withheld.
(d) If
the
indemnification provided for in paragraphs (a) and (b) of this Section 13 shall
for any reason be unavailable to an indemnified party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to in
Section 13, then the indemnifying party shall in lieu of indemnifying the
indemnified party contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
benefits received by the Seller on the one hand and the Purchaser on the other
from the purchase and sale of the Mortgage Loans, the offering of the
Certificates and the other transactions contemplated hereunder. No person found
liable for a fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who
is
not also found liable for such fraudulent misrepresentation.
(e) The
parties hereto agree that reliance by an indemnified party on any publicly
available information or any information or directions furnished by an
indemnifying party shall not constitute negligence, bad faith or willful
misconduct by such indemnified party.
SECTION
14. Notices.
All
demands, notices and communications hereunder shall be in writing but may be
delivered by facsimile transmission subsequently confirmed in writing. Notices
to the Seller shall be directed to EMC Mortgage Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention, President
or
General Counsel and notices to the Purchaser shall be directed to Structured
Asset Mortgage Investments II Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
(Telecopy: (212-272-7206)), Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; or to any other
address as may hereafter be furnished by one party to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed
to
have been received on the date received at the premises of the addressee (as
evidenced, in the case of registered or certified mail, by the date noted on
the
return receipt) provided that it is received on a business day during normal
business hours and, if received after normal business hours, then it shall
be
deemed to be received on the next business day.
SECTION
15. Transfer
of Mortgage Loans.
The
Purchaser retains the right to assign the Mortgage Loans and any or all of
its
interest under this Agreement to the Trustee without the consent of the Seller,
and, upon such assignment, the Trustee shall succeed to the applicable rights
and obligations of the Purchaser hereunder; provided,
however,
the
Purchaser shall remain entitled to the benefits set forth in Sections 11, 13
and
17 hereto and as provided in Section 2(a). Notwithstanding the foregoing, the
sole and exclusive right and remedy of the Trustee with respect to a breach
of
representation or warranty of the Seller shall be the purchase or substitution
obligations of the Seller contained in Sections 5 and 7 hereof.
SECTION
16. Termination.
This
Agreement may be terminated (a) by the mutual consent of the parties hereto
prior to the Closing Date, (b) by the Purchaser, if the conditions to the
Purchaser’s obligation to close set forth under Section 10(a) hereof are not
fulfilled as and when required to be fulfilled or (c) by the Seller, if the
conditions to the Seller’s obligation to close set forth under Section 10(b)
hereof are not fulfilled as and when required to be fulfilled. In the event
of
termination pursuant to clause (b), the Seller shall pay, and in the event
of
termination pursuant to clause (c), the Purchaser shall pay, all reasonable
out-of-pocket expenses incurred by the other in connection with the transactions
contemplated by this Agreement. In the event of a termination pursuant to clause
(a), each party shall be responsible for its own expenses.
SECTION
17. Representations,
Warranties and Agreements to Survive Delivery.
All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Seller submitted pursuant hereto,
shall remain operative and in full force and effect and shall survive delivery
of the Mortgage Loans to the Purchaser (and by the Purchaser to the Trustee).
Subsequent to the delivery of the Mortgage Loans to the Purchaser, the Seller’s
representations and warranties contained herein with respect to the Mortgage
Loans shall be deemed to relate to the Mortgage Loans actually delivered to
the
Purchaser and included in the Mortgage Loan Schedule and any Substitute Mortgage
Loan.
SECTION
18. Severability.
If any
provision of this Agreement shall be prohibited or invalid under applicable
law,
the Agreement shall be ineffective only to such extent, without invalidating
the
remainder of this Agreement.
SECTION
19. Counterparts.
This
Agreement may be executed in counterparts, each of which will be an original,
but which together shall constitute one and the same agreement.
SECTION
20. Amendment.
This
Agreement cannot be amended or modified in any manner without the prior written
consent of each party.
SECTION
21. GOVERNING
LAW.
THIS
AGREEMENT shall be governed by, and construed in accordance with, the laws
of
the State of New York, without regard to conflict of laws principles thereof
other than Section 5-1401 of the New York General Obligations Law.
SECTION
22. Further
Assurances.
Each of
the parties agrees to execute and deliver such instruments and take such actions
as another party may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement including
any amendments hereto which may be required by either Rating
Agency.
SECTION
23. Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and their permitted successors and assigns and, to
the
extent specified in Section 13 hereof, Bear ▇▇▇▇▇▇▇, and their directors,
officers and controlling persons (within the meaning of federal securities
laws). The Seller acknowledges and agrees that the Purchaser may assign its
rights under this Agreement (including, without limitation, with respect to
the
Seller’s representations and warranties respecting the Mortgage Loans) to the
Trustee. Any person into which the Seller may be merged or consolidated (or
any
person resulting from any merger or consolidation involving the Seller), any
person resulting from a change in form of the Seller or any person succeeding
to
the business of the Seller, shall be considered the “successor” of the Seller
hereunder and shall be considered a party hereto without the execution or filing
of any paper or any further act or consent on the part of any party hereto.
Except as provided in the two preceding sentences, this Agreement cannot be
assigned, pledged or hypothecated by either party hereto without the written
consent of the other parties to this Agreement and any such assignment or
purported assignment shall be deemed null and void.
SECTION
24. The
Seller.
The
Seller will keep in full force and effect its existence, all rights and
franchises as a corporation under the laws of the State of its incorporation
and
will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is necessary to
perform its obligations under this Agreement.
SECTION
25. Entire
Agreement.
This
Agreement contains the entire agreement and understanding between the parties
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof.
SECTION
26. No
Partnership.
Nothing herein contained shall be deemed or construed to create a partnership or
joint venture between the parties hereto.
[REMAINDER
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2 Please
contact Bear, ▇▇▇▇▇▇▇ & Co. Inc. for Purchase
Price.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective duly authorized officers as of the date first above
written.
EMC
MORTGAGE CORPORATION
By:
____________________________________
Name:
Title:
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
By:
____________________________________
Name:
Title:
EXHIBIT
1
CONTENTS
OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser or
its
designee, and which shall be delivered to the Purchaser or its designee pursuant
to the terms of the Agreement.
(i) The
original Mortgage Note, endorsed without recourse (a) to the order of the
Trustee or (b) in the case of a Mortgage Loan registered on the MERS system,
endorsed in blank, in either case showing an unbroken chain of endorsements
from
the originator thereof to the Person endorsing it to the Trustee, or lost note
affidavit together with a copy of the related Mortgage Note;
(ii) The
original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the
presence of the MIN and language indicating that such Mortgage Loan is a MOM
Loan, which shall have been recorded (or, for Mortgage Loans other than the
EMC
Flow Loans, if the original is not available, a copy), with evidence of such
recording indicated thereon (or if the original is not available, a copy),
with
evidence of such recording indicated thereon (or if the original Security
Instrument, assignments to the Trustee or intervening assignments thereof which
have been delivered, are being delivered or will, upon receipt of recording
information relating to the Security Instrument required to be included thereon,
be delivered to recording offices for recording and have not been returned
to
the Seller in time to permit their recording as specified in Section 2.01(b)
of
the Pooling and Servicing Agreement, shall be in recordable form);
(iii) unless
the Mortgage Loan is a MOM Loan or has been assigned in the name of MERS, a
certified copy of the assignment (which may be in the form of a blanket
assignment if permitted in the jurisdiction in which the Mortgaged Property
is
located) to “U.S. Bank National Association, as Trustee”, with evidence of
recording with respect to each Mortgage Loan in the name of the Trustee thereon
(or if (A) the original Security Instrument, assignments to the Trustee or
intervening assignments thereof which have been delivered, are being delivered
or will, upon receipt of recording information relating to the Security
Instrument required to be included thereon, be delivered to recording offices
for recording and have not been returned to the Seller in time to permit their
delivery as specified in Section 2.01(b) of the Pooling and Servicing Agreement,
the Seller may deliver a true copy thereof with a certification by the Seller,
on the face of such copy, substantially as follows: “Certified to be a true and
correct copy of the original, which has been transmitted for recording” or (B)
the related Mortgaged Property is located in a state other than Maryland or
an
Opinion of Counsel has been provided as set forth in Section 2.01(b) of the
Pooling and Servicing Agreement, shall be in recordable form);
(iv)
all
intervening assignments of the Security Instrument, if applicable and only
to
the extent available to the Seller with evidence of recording
thereon;
(v) the
original or a copy of the policy or certificate of primary mortgage guaranty
insurance, to the extent available, if any;
(vi) the
original policy of title insurance or mortgagee’s certificate of title insurance
or commitment or binder for title insurance or, in the event such original
title
policy has not been received from the title insurer, such original title policy
will be delivered within one year of the Closing Date or, in the event such
original title policy is unavailable, a photocopy of such title policy or,
in
lieu thereof, a current lien search on the related Mortgaged Property;
and
(vii) originals
of all modification agreements, if applicable and available.
EXHIBIT
2
MORTGAGE
LOAN SCHEDULE INFORMATION
The
Mortgage Loan Schedule shall set forth the following information with respect
to
each Mortgage Loan:
(a) the
city,
state and zip code of the Mortgaged Property;
(b) the
property type;
(c) the
Mortgage Rate;
(d) the
Servicing Fee Rate;
(e) the
Master Servicer’s Fee Rate, if applicable;
(f) the
LPMI
Fee, if applicable;
(g) the
Trustee Fee Rate, if applicable;
(h) the
Net
Rate;
(i) the
maturity date;
(j) the
stated original term to maturity;
(k) the
stated remaining term to maturity;
(l) the
original principal balance;
(m) the
first
payment date;
(n) the
principal and interest payment in effect as of the Cut-off Date;
(o) the
unpaid principal balance as of the Cut-off Date;
(p) the
Loan-to-Value Ratio at origination;
(q) the
insurer of any Primary Mortgage Insurance Policy;
(r) the
MIN
with respect to each MOM Loan;
(s) the
Gross
Margin, if applicable;
(t) the
next
Adjustment Date, if applicable;
(u) the
Maximum Lifetime Mortgage Rate, if applicable;
(v) the
Minimum Lifetime Mortgage Rate, if applicable;
(w) the
Periodic Rate Cap, if applicable;
(x) the
Loan
Group, if applicable;
(y) a
code
indicating whether the Mortgage Loan is negatively amortizing;
(z) which
Mortgage Loans adjust after an initial fixed rate period of one, two, three,
five, seven or ten years or any other period;
(aa) the
Prepayment Charge, if any;
(bb) lien
position (e.g., first lien or second lien);
(cc) a
code
indicating whether the Mortgage Loan is has a balloon payment;
(dd) a
code
indicating whether the Mortgage Loan is an interest-only loan;
(ee) the
interest-only term, if applicable;
(ff) the
Mortgage Loan Seller; and
(gg) the
original amortization term.
Such
schedule also shall set forth for all of the Mortgage Loans, the total number
of
Mortgage Loans, the total of each of the amounts described under (n) and (o)
above, the weighted average by principal balance as of the Cut-off Date of
each
of the rates described under (c) through (h) above, and the weighted average
remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
EXHIBIT
3
SELLER’S
INFORMATION
All
information in the Prospectus Supplement described under the following Sections:
“SUMMARY OF PROSPECTUS SUPPLEMENT—The Mortgage Loans,” “THE MORTGAGE POOL”, “THE
SPONSOR" and “SCHEDULE A—CERTAIN CHARACTERISTICS OF THE MORTGAGE
LOANS.”
EXHIBIT
4
PURCHASER’S
INFORMATION
All
information in the Prospectus Supplement and the Prospectus, except the Seller’s
Information.
EXHIBIT
5
SCHEDULE
OF LOST NOTES
Available
Upon Request
EXHIBIT
6
REVISED
October 20, ▇▇▇▇
▇▇▇▇▇▇▇▇
▇ - STANDARD & POOR’S PREDATORY LENDING CATEGORIES
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set
forth in
those laws. Note that certain loans classified by the relevant statute as
Covered are included in Standard & Poor’s High Cost Loan Category because
they included thresholds and tests that are typical of what is generally
considered High Cost by the industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code ▇▇▇. §§ ▇▇-▇▇-▇▇▇ et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. ▇▇▇. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
et seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. ▇▇▇. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Indiana
|
Indiana
Home Loan Practices Act, Ind. Code ▇▇▇. §§ 24-9-1-1 et seq.
Effective
January 1, 2005; amended by 2005 HB 1179, effective July 1, 2005.
|
High
Cost Home Loans
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. ▇▇▇. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207) and;
|
|
High
APR Consumer Loan (id.
§16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. ▇▇▇ - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇. Rev. Stat. §§ 360.100
et seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq.
and 209 C.M.R. §§ 40.01 et seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
▇▇▇▇ No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev. Code
▇▇▇.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
Rhode
Island
|
Rhode
Island Home Loan Protection Act, R.I. Gen. Laws §§ 34-25.2-1 et seq.
Effective
December 31, 2006.
|
High
Cost Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇. §§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
Tennessee
|
Tennessee
Home Loan Protection Act, Tenn. Code ▇▇▇. §§ ▇▇-▇▇-▇▇▇ et seq.
Effective
January 1, 2007.
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act, W.
Va. Code
▇▇▇. §§ 31-17-1 et seq.
Effective
June 5, ▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇▇▇▇ Mortgage Loan Act Loan
|
|
Standard
& Poor’s Covered Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇. §§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Revised
10/20/06
SCHEDULE
A
REQUIRED
RATINGS FOR EACH CLASS OF CERTIFICATES
Public
Certificates
|
Class
|
S&P
|
Moody’s
|
|
Class
I-A1-1
|
AAA
|
Aaa
|
|
Class
I-A1-2
|
AAA
|
Aaa
|
|
Class
I-A1-3
|
AAA
|
Aaa
|
|
Class
I-A1-4
|
AAA
|
Aaa
|
|
Class
I-A1-5
|
AAA
|
Aaa
|
|
Class
I-A2-1
|
AAA
|
Aaa
|
|
Class
I-A2-2
|
AAA
|
Aaa
|
|
Class
II-A1-1
|
AAA
|
Aaa
|
|
Class
II-A2-1
|
AAA
|
Aaa
|
|
Class
B-1
|
AA
|
Aa2
|
|
Class
B-2
|
A
|
A2
|
|
Class
B-3
|
BBB
|
Baa2
|
|
Class
BX
|
AA
|
Aa2
|
|
Class
X
|
AAA
|
Aaa
|
|
Class
PO
|
AAA
|
Aaa
|
None
of
the above ratings have been lowered since the respective dates of such
letters.
Private
Certificates
|
Class
|
S&P
|
Moody’s
|
|
Class
B-4
|
BB
|
--
|
|
Class
B-5
|
B
|
--
|
|
Class
B-6
|
--
|
--
|
None
of
the above ratings have been lowered since the respective dates of such
letters.
SCHEDULE
B
MORTGAGE
LOAN SCHEDULE
[Provided
upon request]
EXHIBIT
I-1
CHEVY
CHASE SERVICING AGREEMENT
EMC
MORTGAGE CORPORATION
Purchaser,
CHEVY
CHASE BANK, F.S.B.
Company,
PURCHASE,
WARRANTIES AND SERVICING AGREEMENT
Dated
as
of July 1, 2001
(Adjustable
Rate Mortgage Loans)
TABLE
OF CONTENTS
|
ARTICLE
I
|
|
|
Section
1.01
|
Defined
Terms
|
|
ARTICLE
II
|
|
|
Section
2.01
|
Agreement
to Purchase
|
|
Section
2.02
|
Purchase
Price
|
|
Section
2.03
|
Servicing
of Mortgage Loans
|
|
Section
2.04
|
Record
Title and Possession of Mortgage Files;
|
|
Maintenance
of Servicing Files
|
|
|
Section
2.05
|
Books
and Records
|
|
Section
2.06
|
Transfer
of Mortgage Loans
|
|
Section
2.07
|
Delivery
of Mortgage Loan Documents
|
|
Section
2.08
|
Quality
Control Procedures
|
|
ARTICLE
III
|
|
|
Section
3.01
|
Representations
and Warranties of the Company
|
|
Section
3.02
|
Representations
and Warranties as to Individual Mortgage Loans
|
|
Section
3.03
|
Repurchase;
Substitution
|
|
Section
3.04
|
Representations
and Warranties of the Purchaser
|
|
ARTICLE
IV
|
|
|
Section
4.01
|
Company
to Act as Servicer
|
|
Section
4.02
|
Collection
of Mortgage Loan Payments
|
|
Section
4.03
|
Realization
Upon Defaulted Mortgage Loans
|
|
Section
4.04
|
Establishment
of Custodial Accounts;
|
|
Deposits
in Custodial Accounts
|
|
|
Section
4.05
|
Permitted
Withdrawals from the
|
|
Custodial
Account
|
|
|
Section
4.06
|
Establishment
of Escrow Accounts;
|
|
Deposits
in Escrow Accounts
|
|
|
Section
4.07
|
Permitted
Withdrawals From Escrow Account
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other
|
|
Charges;
Maintenance of Primary Mortgage
|
|
|
Insurance
Policies; Collections Thereunder
|
|
|
Section
4.09
|
Transfer
of Accounts
|
|
Section
4.10
|
Maintenance
of Hazard Insurance
|
|
Section
4.11
|
Maintenance
of Mortgage Impairment
|
|
Insurance
Policy
|
|
|
Section
4.12
|
Fidelity
Bond, Errors and Omissions
|
|
Insurance
|
|
|
Section
4.13
|
Title,
Management and Disposition of REO Property
|
|
Section
4.14
|
Notification
of Maturity Date
|
|
ARTICLE
V
|
|
|
Section
5.01
|
Distributions
|
|
Section
5.02
|
Statements
to the Purchaser
|
|
Section
5.03
|
Monthly
Advances by the Company
|
|
Section
5.04
|
Liquidation
Reports
|
|
ARTICLE
VI
|
|
|
Section
6.01
|
Assumption
Agreements
|
|
Section
6.02
|
Satisfaction
of Mortgages and Release
|
|
of
Mortgage Files
|
|
|
Section
6.03
|
Servicing
Compensation
|
|
Section
6.04
|
Annual
Statement as to Compliance
|
|
Section
6.05
|
Annual
Independent Certified Public
|
|
Accountants’
Servicing Report
|
|
|
Section
6.06
|
Purchaser’s
Right to Examine Company Records
|
|
ARTICLE
VII
|
|
|
Section
7.01
|
Company
Shall Provide Information as Reasonably
|
|
Required
|
|
|
ARTICLE
VIII
|
|
|
Section
8.01
|
Indemnification;
Third Party Claims
|
|
Section
8.02
|
Merger
or Consolidation of the Company
|
|
Section
8.03
|
Limitation
on Liability of the Company and Others
|
|
Section
8.04
|
Company
Not to Assign or Resign
|
|
Section
8.05
|
No
Transfer of Servicing
|
|
ARTICLE
IX
|
|
|
Section
9.01
|
Events
of Default
|
|
Section
9.02
|
Waiver
of Defaults
|
|
ARTICLE
X
|
|
|
Section
10.01
|
Termination
|
|
Section
10.02
|
Termination
Without Cause
|
|
ARTICLE
XI
|
|
|
Section
11.01
|
Successor
to the Company
|
|
Section
11.02
|
Amendment
|
|
Section
11.03
|
Recordation
of Agreement
|
|
Section
11.04
|
Governing
Law
|
|
Section
11.05
|
Notices
|
|
Section
11.06
|
Severability
of Provisions
|
|
Section
11.07
|
Exhibits
|
|
Section
11.08
|
General
Interpretive Principles
|
|
Section
11.09
|
Reproduction
of Documents
|
|
Section
11.10
|
Confidentiality
of Information
|
|
Section
11.11
|
Recordation
of Assignment of Mortgage
|
|
Section
11.12
|
Assignment
by Purchaser
|
|
Section
11.13
|
No
Partnership
|
|
Section
11.14
|
Execution:
Successors and Assigns
|
|
Section
11.15
|
Entire
Agreement
|
|
Section
11.16
|
No
Solicitation
|
|
Section
11.17
|
Closing
|
|
Section
11.18
|
Cooperation
of Company with
Reconstitution
|
EXHIBITS
|
A
|
Contents
of Mortgage File
|
|
B
|
Custodial
Account Letter Agreement
|
|
C
|
Escrow
Account Letter Agreement
|
|
D
|
Form
of Assignment and Assumption Agreement
|
|
E
|
[reserved]
|
|
F
|
[reserved]
|
|
G
|
Request
for Release of Documents and Receipt
|
|
H
|
Company’s
Underwriting Guidelines
|
|
I
|
Form
of Term Sheet
|
This
is a
Purchase, Warranties and Servicing Agreement, dated as of July 1, 2001 and
is
executed between EMC Mortgage Corporation, as Purchaser (the "Purchaser")
and
Chevy Chase Bank, F.S.B., as the Company (the “Company”).
W I T N E
60;S S E T H
:
WHEREAS,
the Purchaser has heretofore agreed to purchase from the Company and the
Company
has heretofore agreed to sell to the Purchaser, from time to time, certain
Mortgage Loans on a servicing retained basis, pursuant to the terms of a
letter
agreement dated as of June 29, 2001 by and between the Company and the Purchaser
(the "Confirmation").
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule, which is annexed
to
the related Term Sheet; and
WHEREAS,
the Purchaser and the Company wish to prescribe the representations and
warranties of the Company with respect to itself and the Mortgage Loans and
the
management, servicing and control of the Mortgage Loans;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction
where
the related Mortgaged Property is located, and which are in accordance with
FNMA
or ▇▇▇▇▇▇▇ Mac servicing practices and procedures, for MBS pool mortgages,
as
defined in the FNMA or ▇▇▇▇▇▇▇ Mac Guides including future updates.
Adjustment
Date:
As to
each Mortgage Loan, the date on which the Mortgage Interest Rate is adjusted
in
accordance with the terms of the related Mortgage Note.
Agency
Guide: The
FNMA
Guides or the ▇▇▇▇▇▇▇ Mac Guides.
Agreement:
This
Purchase, Warranties and Servicing Agreement including all exhibits hereto,
amendments hereof and supplements hereto.
Appraised
Value:
The
value set forth in an appraisal made in connection with the origination of
the
related Mortgage Loan as of the Origination Date as the value of the Mortgaged
Property.
Assignment:
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 of record the sale or transfer
of the Mortgage Loan, or
a
notice of transfer or equivalent instrument delivered in accordance with
the
MERS requirements.
BIF:
The
Bank Insurance Fund, or any successor thereto.
Business
Day:
Any day
other than: (i) a Saturday or Sunday, or (ii) a legal holiday in the State
of
New York or Maryland, or (iii) a day on which banks in the State of New York
or
Maryland are authorized or obligated by law or executive order to be
closed.
Closing
Date:
With
respect to any Mortgage Loan or pool of Mortgage Loans, the date stated on
the
related Term Sheet.
Code:
The
Internal Revenue Code, as amended (the “Code”).
Company:
Chevy
Chase Bank, F.S.B., its successor in interest and assigns, as permitted by
this
Agreement.
Company's
Officer's Certificate:
A
certificate signed by the Chairman of the Board, President, any Assistant
Vice
President, Vice President or Treasurer of Company stating the date by which
Company expects to receive any missing documents sent for recording from
the
applicable recording office.
Condemnation
Proceeds:
All
awards or 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:
As
defined in the Recitals to this Agreement.
Conversion
Feature: A
provision whereby the Mortgagor may elect to convert to a fixed Mortgage
Interest Rate pursuant to the terms set forth in the Mortgage Note.
Custodial
Account:
Each
separate demand account or accounts created and maintained pursuant to Section
4.04 which shall be entitled "Chevy Chase Bank, F.S.B., in trust for EMC
Mortgage Corporation" and shall be established in an Eligible Account, in
the
name of the Person that is the "Purchaser" with respect to the related Mortgage
Loans.
Cut-off
Date:
With
respect to any Mortgage Loan, the date stated on the related Term
Sheet.
Determination
Date:
The
15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the related Remittance
Date.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace.
Due
Period:
With
respect to any Remittance Date, the period commencing on the second day of
the
month preceding the month of such Remittance Date and ending on the first
day of
the month of the Remittance Date.
Eligible
Account:
An
account established and maintained: (a) within FDIC insured accounts (or
other
accounts with comparable insurance coverage acceptable to the Rating Agencies)
created, maintained and monitored by the Company so that all funds deposited
therein are fully insured, (b) with the corporate trust department of a
financial institution assigned a long-term debt rating of not less than Baa3,
and a short term debt rating of P3, from ▇▇▇▇▇'▇ Investors Services and,
if
ownership of the Mortgage Loans is evidenced by mortgaged backed securities,
the
equivalent required ratings of the Rating Agencies, and held such that the
rights of the Purchaser and the owner of the Mortgage Loans shall be fully
protected against the claims of any creditors of the Company and of any
creditors or depositors of the institution in which such account is maintained
or (c) in a separate non-trust account without FDIC or other insurance in
an
Eligible Institution. In the event that a Custodial Account is established
pursuant to clause (b) or (c) of the preceding sentence, the Company shall
provide the Purchaser with written notice on the Business Day following the
date
on which the applicable institution fails to meet the applicable ratings
requirements.
Eligible
Institution:
Chevy
Chase Bank, F.S.B., or an institution having (i) the highest short-term debt
rating, and one of the two highest long-term debt ratings of the Rating
Agencies; or (ii) with respect to any Custodial Account, an unsecured long-term
debt rating of at least one of the two highest unsecured long-term debt ratings
of the Rating Agencies.
Equity
Take-Out Refinanced Mortgage Loan:
A
Refinanced Mortgage Loan the proceeds of which were in excess of the outstanding
principal balance of the existing mortgage loan.
Escrow
Account:
Each
separate trust account or accounts created and maintained pursuant to Section
4.06 which shall be entitled "Chevy Chase Bank, F.S.B., in trust for EMC
Mortgage Corporation, and various Mortgagors" and shall be established in
an
Eligible Account, in the name of the Person that is the "Purchaser" with
respect
to the related Mortgage Loans.
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.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 9.01.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Company pursuant to Section
4.12.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
FNMA:
The
Federal National Mortgage Association, or any successor thereto.
FNMA
Guides:
The
FNMA Seller's Guide and the FNMA Servicer's Guide and all amendments or
additions thereto.
▇▇▇▇▇▇▇
Mac Guides: The
▇▇▇▇▇▇▇ Mac Seller’s Guide and the ▇▇▇▇▇▇▇ Mac Servicer’s Guide and all
amendments or additions thereto.
GAAP:
Generally accepted accounting principles,
consistently
applied.
HUD:
The
United States Department of Housing and Urban Development or any
successor.
Index:
On each
Adjustment Date, the applicable index shall be the
six
month London Interbank Offered Rate (LIBOR) as
published
in the Wall Street Journal. For purposes of determining the Index, for each
Adjustment Date LIBOR shall
be
the most
recent figure available as of the first business day of the month immediately
preceding the Adjust-ment
Date.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Lender
Paid Mortgage Insurance Rate:
The
Lender Paid Mortgage Insurance Rate shall be a rate per annum equal to the
percentage shown on the Mortgage Loan Schedule.
Lifetime
Rate Cap:
As to
each Mortgage Loan, the maximum Mortgage Interest Rate over the term of such
Mortgage Loan which is 600 basis points (6%) above the initial Mortgage Interest
Rate.
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 or otherwise.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of the original outstanding principal
amount of the Mortgage Loan, to (i) the Appraised Value of the Mortgaged
Property as of the Origination Date with respect to a Refinanced Mortgage
Loan,
and (ii) the lesser of the Appraised Value of the Mortgaged Property as of
the
Origination Date or the purchase price of the Mortgaged Property with respect
to
all other Mortgage Loans.
Margin:
With
respect to each Mortgage Loan, the fixed percentage amount set forth in each
related Mortgage Note which is added to the Index in order to determine the
related Mortgage Interest Rate, as set forth in the Mortgage Loan
Schedule.
MERS: Mortgage
Electronic Registration Systems, Inc.
Monthly
Advance:
The
aggregate of the advances made by the Company on any Remittance Date pursuant
to
Section 5.03.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage Loan which
is
payable by a Mortgagor under the related Mortgage Note.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note.
Mortgage
File:
The
mortgage documents pertaining to a particular Mortgage Loan which are specified
in Exhibit A hereto and any additional documents required to be added to
the
Mortgage File pursuant to this Agreement.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as required by Section
4.11.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan, which may be
adjusted from time to time, in accordance with the provisions of the related
Mortgage Note.
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule attached to the related Term Sheet, which Mortgage
Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding
replaced or repurchased mortgage loans.
Mortgage
Loan Documents:
The
documents listed in
Exhibit A.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate minus the Lender Paid Mortgage Insurance
Premium.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans annexed to the related Term Sheet, such schedule
setting forth the following information with respect to each Mortgage Loan
in
the related Mortgage Loan Package:
(1) the
Company's Mortgage Loan identifying number;
(2) the
Mortgagor's name;
(3)
the
street address of the Mortgaged Property including the city, state and zip
code;
(4) a
code
indicating whether the Mortgaged Property is owner-occupied;
(5) the
type
of residential property constituting the Mortgaged Property;
(6) the
original months to maturity or the remaining months to maturity from the
related
Cut-off Date, in any case based on the original amortization schedule and,
if
different, the maturity expressed in the same manner but based on the actual
amortization schedule;
(7) the
Sales
Price, if applicable, appraised value and Loan-to-Value Ratio, at
origination;
(8) the
Mortgage Interest Rate as of origination and as of the related Cut-off Date;
the
initial Adjustment Date, the next Adjustment Date immediately following the
related Cut-off Date, the Index, the Margin, the Periodic Rate Cap and the
Lifetime Rate Cap;
(9) the
Origination Date of the Mortgage Loan; the stated maturity date; and the
amount
of the Monthly Payment at origination;
(10) the
amount of the Monthly Payment as of the related Cut-off Date;
(11) the
original principal amount of the Mortgage Loan;
(12) the
principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due on or before the
related Cut-off Date whether or not collected;
(13)
a
code indicating the purpose of the Mortgage Loan (i.e., purchase, rate and
term
refinance, equity take-out refinance);
(14)
a
code indicating the documentation style (i.e. full, alternative or reduced);
(15) the
number of times during the twelve (12) month period preceding the related
Closing Date that any Monthly Payment has been received thirty (30) or more
days
after its Due Date;
(16) the
date
on which the first payment is or was due;
(17) a
code
indicating whether or not the Mortgage Loan is the subject of Primary Mortgage
Insurance;
(18)
a
code indicating whether or not the Mortgage Loan is currently convertible
and
the conversion spread;
(19)
actual next due date as of the Cutoff Date;
(20)
product type; and
(21)
Lender Paid Mortgage Insurance Rate.
With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
attached to the related Term Sheet shall set forth the following information,
as
of the related Cut-off Date:
(1) the
number of Mortgage Loans;
(2) the
current aggregate outstanding principal balance of the Mortgage
Loans;
(3) the
weighted average Mortgage Interest Rate of the Mortgage Loans;
(4) the
weighted average maturity of the Mortgage Loans; and
(5)
the
weighted average months to next Adjustment Date.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
underlying real property securing repayment of a Mortgage Note, consisting
of a
single parcel of real estate considered to be real estate under the laws
of the
state in which such real property is located, which may include condominium
units and planned unit developments, improved by a residential dwelling;
except
that with respect to real property located in jurisdictions in which the
use of
leasehold estates for residential properties is a widely-accepted practice,
a
leasehold estate of the Mortgage, the term of which is equal to or longer
than
the term of the Mortgage.
Mortgagor:
The
obligor on a Mortgage Note.
OCC:
Office
of the Comptroller of the Currency, its successors and assigns.
Officers'
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President, a Senior Vice President, Assistant Vice President or a Vice
President and by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Company, and delivered to the
Purchaser as required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf
of
whom the opinion is being given, reasonably acceptable to the
Purchaser.
Origination
Date:
The
date on which a Mortgage Loan closed and funded, which date shall not, in
connection with a Refinanced Mortgage Loan, be the date of the closing and
funding of the debt being refinanced, but rather the closing and funding
of the
debt currently outstanding under the terms of the Mortgage Loan Documents.
OTS:
Office
of Thrift Supervision, its successors and assigns.
Periodic
Rate Cap:
As to
each Mortgage Loan, the maximum increase or decrease in the Mortgage Interest
Rate on any Adjustment Date, starting with the second Adjustment Date, which
is
200 basis points (2%) above or below, respectively, the Mortgage Interest
Rate
in effect during the immediately preceding 12 month period. As to the first
Adjustment Date, the maximum increase or decrease in the Mortgage Interest
Rate
is 300 basis points (3%) above or below, respectively, the Mortgage Interest
Rate in effect during the immediately preceding fixed-rate period.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability corporation, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Primary
Mortgage Insurance Policy:
Each
primary policy of mortgage insurance represented to be in effect pursuant
to
Section 3.02(hh), or any replacement policy therefor obtained by the Company
pursuant to Section 4.08.
Prime
Rate:
The
prime rate announced to be in effect from time to time as published as the
average rate in the Wall Street Journal (Northeast Edition).
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan full or partial
which
is received in advance of its scheduled Due Date, including any prepayment
penalty or premium thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or
months
subsequent to the month of prepayment.
Purchase
Price:
As
defined in Section 2.02.
Purchaser:
EMC
Mortgage Corporation, its successors in interest and assigns.
Qualified
Appraiser:
An
appraiser, duly appointed by the Company, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of
the
Mortgage Loan, and such appraiser and the appraisal made by such appraiser
both
satisfy the requirements of Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, approved as an insurer by FNMA or FHLMC.
Rating
Agencies:
Standard & Poor's Ratings Services, ▇▇▇▇▇'▇ Investor Service or, in the
event that some or all of ownership of the Mortgage Loans is evidenced by
mortgage-backed securities, the nationally recognized rating agencies issuing
ratings with respect to such securities, if any.
Refinanced
Mortgage Loan:
A
Mortgage Loan which was made to a Mortgagor who owned the Mortgaged Property
prior to the origination of such Mortgage Loan and the proceeds of which
were
used in whole or part to satisfy an existing mortgage.
Remittance
Date:
The
18th day of any month, beginning with the First Remittance Date, or if such
18th
day is not a Business Day, the first Business Day immediately preceding such
18th day.
REO
Disposition:
The
final sale by the Company of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Company in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Company on behalf of the Purchaser as
described in Section 4.13.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the outstanding principal
balance of the Mortgage Loan, plus (ii) interest on such outstanding principal
balance at the Mortgage Loan Remittance Rate from the last date through which
interest has been paid and distributed to the Purchaser to the date of
repurchase, plus, (iii) third party expenses incurred in connection with
the
transfer of the Mortgage Loan being repurchased; less amounts received or
advanced in respect of such repurchased Mortgage Loan which are being held
in
the Custodial Account for distribution in the month of repurchase.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses
(including reasonable attorneys' fees and disbursements) incurred in the
performance by the Company of its servicing obligations, including, but not
limited to, the cost of (a) the preservation, restoration and protection
of the
Mortgaged Property, (b) any enforcement, administrative or judicial proceedings,
or any legal work or advice specifically related to servicing the Mortgage
Loans, including but not limited to, foreclosures, bankruptcies, condemnations,
drug seizures, elections, foreclosures by subordinate or superior lienholders,
and other legal actions incidental to the servicing of the Mortgage Loans
(provided that such expenses are reasonable and that the Company specifies
the
Mortgage Loan(s) to which such expenses relate, and provided further that
any
such enforcement, administrative or judicial proceeding does not arise out
of a
breach of any representation, warranty or covenant of the Company hereunder),
(c) the management and liquidation of the Mortgaged Property if the Mortgaged
Property is acquired in full or partial satisfaction of the Mortgage, (d)
taxes,
assessments, water rates, sewer rates and other charges which are or may
become
a lien upon the Mortgaged Property, and Primary Mortgage Insurance Policy
premiums and fire and hazard insurance coverage, (e) any expenses reasonably
sustained by the Company, as Company, with respect to the liquidation of
the
Mortgaged Property in accordance with the terms of this Agreement and (f)
compliance with the obligations under Section 4.08.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser
shall
pay to the Company, which shall, for a period of one full month, be equal
to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting
which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds, to the extent permitted by Section 4.05)
of
such Monthly Payment collected by the Company, or as otherwise provided under
Section 4.05.
Servicing
Fee Rate:
The
Servicing Fee Rate shall be a rate per annum equal to 37.5 basis
points.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Company consisting
of
originals or microfilmed copies of all documents in the Mortgage File which
are
not delivered to the Purchaser and copies of the Mortgage Loan Documents
listed
in Exhibit A, the originals of which are delivered to the Purchaser or its
designee pursuant to Section 2.04.
Servicing
Officer:
Any
officer of the Company involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Company to the Purchaser upon request, as such
list
may from time to time be amended.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the principal balance
of
such Mortgage Loan at the Cut-off Date after giving effect to payments of
principal due on or before such date, whether or not received, minus (ii)
all
amounts previously distributed to the Purchaser with respect to the Mortgage
Loan representing payments or recoveries of principal or advances in lieu
thereof.
Subservicer:
Any
subservicer which is subservicing the Mortgage Loans pursuant to a Subservicing
Agreement. Any subservicer shall meet the qualifications set forth in Section
4.01.
Subservicing
Agreement:
An
agreement between the Company and a Subservicer, if any, for the servicing
of
the Mortgage Loans.
Term
Sheet:
A
supplemental agreement in the form attached hereto as Exhibit I which shall
be
executed and delivered by the Company and the Purchaser to provide for the
sale
and servicing pursuant to the terms of this Agreement of the Mortgage Loans
listed on Schedule I attached thereto, which supplemental agreement shall
contain certain specific information relating to such sale of such Mortgage
Loans and may contain additional covenants relating to such sale of such
Mortgage Loans.
ARTICLE
II
SERVICING
OF MORTGAGE LOANS;
RECORD
TITLE AND POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
Section
2.01 Agreement
to Purchase.
The
Company agrees to sell and the Purchaser agrees to purchase the Mortgage
Loans
having an aggregate principal balance on the related Cut-off Date set forth
in
the related Term Sheet in an amount as set forth in the Confirmation, or
in such
other amount as agreed by the Purchaser and the Company as evidenced by the
actual Stated Principal Balance of the Mortgage Loans accepted by the Purchaser
on the Closing Date, with servicing retained by Company. The Company shall
deliver the related Mortgage Loan Schedule attached to the related Term Sheet
for the Mortgage Loans to be purchased on the related Closing Date to the
Purchaser at least one (1) Business Day prior to the related Closing Date.
The
Mortgage Loans shall be sold pursuant to this Agreement, and the related
Term
Sheet shall be executed and delivered on the related Closing
Date.
Section
2.02 Purchase
Price.
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the Confirmation (subject to adjustment as provided therein), multiplied
by
the aggregate principal balance, as of the related Cut-off Date, of the Mortgage
Loans listed on the related Mortgage Loan Schedule attached to the related
Term
Sheet, after application of scheduled payments of principal due on or before
the
related Cut-off Date whether or not collected. The initial principal amount
of
the Mortgage Loans shall be the aggregate principal balance of the Mortgage
Loans, so computed as of the related Cut-off Date.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Company, at closing, accrued interest on the current principal amount
of
each Mortgage Loan as of the related Cut-off Date at the Mortgage Loan
Remittance Rate of each Mortgage Loan from the related Cut-off Date through
the
day prior to the related Closing Date, inclusive.
The
Purchase Price plus accrued interest as set forth in the preceding paragraph
shall be paid on the related Closing Date by wire transfer of immediately
available funds.
Purchaser
shall be entitled to (1) all scheduled principal due after the related Cut-off
Date, (2) all other recoveries of principal collected on or after the related
Cut-off Date (provided, however, that all scheduled payments of principal
due on
or before the related Cut-off Date and collected by the Company or any successor
servicer to the Company after the related Cut-off Date shall belong to the
Company), and (3) all payments of interest on the Mortgage Loans net of
applicable Servicing Fees (minus that portion of any such payment which is
allocable to the period prior to the related Cut-off Date). The outstanding
principal balance of each Mortgage Loan as of the related Cut-off Date is
determined after application of payments of principal due on or before the
related Cut-off Date whether or not collected, together with any unscheduled
principal prepayments collected prior to the related Cut-off Date; provided,
however, that payments of scheduled principal and interest prepaid for a
Due
Date beyond the related Cut-off Date shall not be applied to the principal
balance as of the related Cut-off Date. Such prepaid amounts shall be the
property of the Purchaser. The Company shall deposit any such prepaid amounts
into the Custodial Account, which account is established for the benefit
of the
Purchaser for subsequent remittance by the Company to the
Purchaser.
Section
2.03 Servicing
of Mortgage Loans.
Simultaneously
with the execution and delivery of each Term Sheet, the Company does hereby
agree to directly service the Mortgage Loans listed on the related Mortgage
Loan
Schedule attached to the related Term Sheet subject to the terms of this
Agreement and the related Term Sheet. The rights of the Purchaser to receive
payments with respect to the related Mortgage Loans shall be as set forth
in
this Agreement.
Section
2.04 Record
Title and Possession of Mortgage Files;
Maintenance of Servicing Files.
As
of the
related Closing Date, the Company sold, transferred, assigned, set over and
conveyed to the Purchaser, without recourse, and the Company hereby acknowledges
that the Purchaser has, but subject to the terms of this Agreement and the
related Term Sheet, all the right, title and interest of the Company in and
to
the Mortgage Loans. Company will deliver the Mortgage Files to the custodian
designated by Purchaser, on or before the related Closing Date, at the expense
of the Company. The Company shall maintain a Servicing File consisting of
a copy
of the contents of each Mortgage File and the originals or microfilmed copies
of
the documents in each Mortgage File not delivered to the Purchaser. The
Servicing File shall contain all documents necessary to service the Mortgage
Loans. The possession of each Servicing File by the Company is at the will
of
the Purchaser, for the sole purpose of servicing the related Mortgage Loan,
and
such retention and possession by the Company is in a custodial capacity only.
From the related Closing Date, the ownership of each Mortgage Loan, including
the Mortgage Note, the Mortgage, the contents of the related Mortgage File
and
all rights, benefits, proceeds and obligations arising therefrom or in
connection therewith, has been vested in the Purchaser. All rights arising
out
of the Mortgage Loans including, but not limited to, all funds received on
or in
connection with the Mortgage Loans and all records or documents with respect
to
the Mortgage Loans prepared by or which come into the possession of the Company
shall be received and held by the Company in trust for the benefit of the
Purchaser as the owner of the Mortgage Loans. Any portion of the Mortgage
Files
retained by the Company shall be appropriately identified in the Company's
computer system to clearly reflect the ownership of the Mortgage Loans by
the
Purchaser. The Company shall release its custody of the contents of the Mortgage
Files only in accordance with written instructions of the Purchaser, except
when
such release is required as incidental to the Company's servicing of the
Mortgage Loans or is in connection with a repurchase of any Mortgage Loan
or
Loans with respect thereto pursuant to this Agreement and the related Term
Sheet, such written instructions shall not be required.
Section
2.05 Books
and Records.
The
sale
of each Mortgage Loan has been reflected on the Company's balance sheet and
other financial statements as a sale of assets by the Company. The Company
shall
be responsible for maintaining, and shall maintain, a complete set of books
and
records for the Mortgage Loans which shall be appropriately identified in
the
Company's computer system to clearly reflect the ownership of the Mortgage
Loan
by the Purchaser. In particular, the Company shall maintain in its possession,
available for inspection by the Purchaser, or its designee and shall deliver
to
the Purchaser upon demand, evidence of compliance with all federal, state
and
local laws, rules and regulations, and requirements of FNMA or FHLMC, as
applicable, including but not limited to documentation as to the method used
in
determining the applicability of the provisions of the Flood Disaster Protection
Act of 1973, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage of any condominium project as required by FNMA or FHLMC,
and
periodic inspection reports as required by Section 4.13. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by the Company may be
in
the form of microfilm or microfiche.
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Purchaser or its designee the related Servicing
File during the time the Purchaser retains ownership of a Mortgage Loan and
thereafter in accordance with applicable laws and regulations.
In
addition to the foregoing, Company shall provide to any supervisory agents
or
examiners that regulate Purchaser, including but not limited to, the OTS,
the
FDIC and other similar entities, access, during normal business hours, upon
reasonable advance notice to Company and without charge to Company or such
supervisory agents or examiners, to any documentation regarding the Mortgage
Loans that may be required by any applicable regulator.
Section
2.06. Transfer
of Mortgage Loans.
The
Company shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Company shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the terms hereof. For the purposes of
this
Agreement, the Company shall be under no obligation to deal with any person
with
respect to this Agreement or any Mortgage Loan unless a notice of the transfer
of such Mortgage Loan has been delivered to the Company in accordance with
this
Section 2.06 and the books and records of the Company show such person as
the
owner of the Mortgage Loan. The Purchaser may, subject to the terms of this
Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that (i) the transferee will not be deemed to be a Purchaser hereunder
binding upon the Company unless such transferee shall agree in writing to
be
bound by the terms of this Agreement and an original counterpart of the
instrument of transfer in an Assignment and Assumption of this Agreement
substantially in the form of Exhibit D hereto executed by the transferee
shall
have been delivered to the Company and the Company, and (ii) in no event
shall
there be more than three (3) Persons at any given time having the status
of
"Purchaser" hereunder. The Purchaser also shall advise the Company of the
transfer. Upon receipt of notice of the transfer, the Company shall ▇▇▇▇
its
books and records to reflect the ownership of the Mortgage Loans of such
assignee, and the previous Purchaser shall be released from its obligations
hereunder with respect to the Mortgage Loans sold or transferred.
Section
2.07 Delivery
of Mortgage Loan Documents.
The
Company shall deliver and release to the Purchaser or its designee the Mortgage
Loan Documents in accordance with the terms of this Agreement and the related
Term Sheet. The documents enumerated as items (1), (2), (3), (4), (5), (6),
(7)
and (8) in Exhibit A hereto shall be delivered by the Company to the Purchaser
or its designee no later than one (1) Business Days prior to the related
Closing
Date pursuant to a bailee letter agreement. All other documents in Exhibit
A
hereto, together with all other documents executed in connection with the
Mortgage Loan that Company may have in its possession, shall be retained
by the
Company in trust for the Purchaser. If the Company cannot deliver the original
recorded Mortgage Loan Documents or the original policy of title insurance,
including riders and endorsements thereto, on the Closing Date, the Company
shall, promptly upon receipt thereof and in any case not later than 120 days
from the related Closing Date, deliver such original documents, including
original recorded documents, to the Purchaser or its designee (unless the
Company is delayed in making such delivery by reason of the fact that such
documents shall not have been returned by the appropriate recording office).
If
delivery is not completed within 120 days solely due to delays in making
such
delivery by reason of the fact that such documents shall not have been returned
by the appropriate recording office, the Company shall deliver such document
to
Purchaser, or its designee, within such time period as specified in a Company's
Officer's Certificate. In the event that documents have not been received
by the
date specified in the Company's Officer's Certificate, a subsequent Company's
Officer's Certificate shall be delivered by such date specified in the prior
Company's Officer's Certificate, stating a revised date for receipt of
documentation. The procedure shall be repeated until the documents have been
received and delivered. The Company shall continue to use its best efforts
to
effect delivery within 210 days of the related Closing Date.
The
Company shall pay all initial recording fees, for the assignments of mortgage
and any other fees in connection with the transfer of all original documents
to
the Purchaser or its designee, including
any fees, costs or expenses related to the registration of the Mortgage Loans
with MERS, if applicable.
The
Company shall prepare, in recordable form, all assignments of mortgage necessary
to assign the Mortgage Loans to Purchaser, or its designee.
Company
shall provide an original or duplicate original of the title insurance policy
to
Purchaser or its designee within ninety (90) days of the receipt of the recorded
documents (required for issuance of such policy) from the applicable recording
office.
Any
review by the Purchaser, or its designee, of the Mortgage Files shall in
no way
alter or reduce the Company's obligations hereunder.
If
the
Purchaser or its designee discovers any defect with respect to a Mortgage
File,
the Purchaser shall, or shall cause its designee to, give written specification
of such defect to the Company which may be given in the exception report
or the
certification delivered pursuant to this Section 2.07, or otherwise in writing
and the Company shall cure or repurchase such Mortgage Loan in accordance
with
Section 3.03.
The
Company shall forward to the Purchaser, or its designee, original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
one
week of their execution; provided, however, that the Company shall provide
the
Purchaser, or its designee, with a certified true copy of any such document
submitted for recordation within two weeks of its execution, and shall provide
the original of any document submitted for recordation or a copy of such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within 120 days of its submission for
recordation.
From
time
to time the Company may have a need for Mortgage Loan Documents to be released
from Purchaser, or its designee. Purchaser shall, or shall cause its designee,
upon the written request of the Company, in the form of Exhibit G attached
hereto, within ten (10) Business Days, deliver to the Company, any requested
documentation previously delivered to Purchaser as part of the Mortgage File,
provided that such documentation is promptly returned to Purchaser, or its
designee, when the Company no longer requires possession of the document,
and
provided that during the time that any such documentation is held by the
Company, such possession is in trust for the benefit of Purchaser. Company
shall
indemnify Purchaser, and its designee, from and against any and all losses,
claims, damages, penalties, fines, forfeitures, costs and expenses (including
court costs and reasonable attorney's fees) resulting from or related to
the
loss, damage, or misplacement of any documentation delivered to Company pursuant
to this paragraph.
Section
2.08 Quality
Control Procedures.
The
Company must have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program must
be
capable of evaluating and monitoring the overall quality of its loan production
and servicing activities. The program is to ensure that the Mortgage Loans
are
originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
Section
2.09 No
Commission.
The
Company and the Purchaser agree that no broker, Investment Banker, agent
or
other person (including but not limited to Purchaser) is entitled to any
commission or compensation in connection with the sale of the Mortgage
Loans.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF
THE
COMPANY AND THE COMPANY; REPURCHASE; REVIEW OF MORTGAGE LOANS
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that, as of the
related Closing Date or as of such date specifically provided
herein:
(a) Chevy
Chase Bank, F.S.B. is a federally chartered savings bank duly organized,
validly
existing and in good standing and has all licenses and qualifications necessary
to carry out its business as now being conducted, and in any event the Company
is in compliance with the applicable laws of any state to the extent necessary
to ensure the enforceability of each Mortgage Loan in accordance with the
terms
of this Agreement; the Company is licensed and qualified to transact business
in
and is in good standing under the laws of each state in which any Mortgaged
Property is located or is otherwise exempt under applicable law from such
licensing or qualification or is otherwise not required under applicable
law to
effect such licensing or qualification and no unresolved demand for such
licensing or qualification has been made upon such Company by any such state,
and in any event such Company is in compliance with the laws of any such
state
to the extent necessary to ensure the enforceability of each Mortgage Loan
and
the servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
(b)
The
Company has the full power and authority and legal right to hold, transfer
and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and the related Term Sheet and to conduct its business as
presently conducted, has duly authorized the execution, delivery and performance
of this Agreement and the related Term Sheet and any agreements contemplated
hereby, has duly executed and delivered this Agreement and the related Term
Sheet, and any agreements contemplated hereby, and this Agreement and the
related Term Sheet and each Assignment of Mortgage to the Purchaser and any
agreements contemplated hereby, constitutes a legal, valid and binding
obligation of the Company, enforceable against it in accordance with its
terms,
and all requisite corporate action has been taken by the Company to make
this
Agreement and the related Term Sheet and all agreements contemplated hereby
valid and binding upon the Company in accordance with their terms; the Company
has the full power and authority and legal right to execute, deliver and
perform, and to enter into and consummate all transactions contemplated by
this
Agreement and the related Term Sheet and to conduct its business as presently
conducted, has duly authorized the execution, delivery and performance of
this
Agreement and the related Term Sheet and any agreements contemplated hereby,
has
duly executed and delivered this Agreement and the related Term Sheet, and
any
agreements contemplated hereby, and this Agreement and any agreements
contemplated hereby, constitutes a legal, valid and binding obligation of
the
Company, enforceable against it in accordance with its terms, and all requisite
corporate action has been taken by the Company to make this Agreement and
the
related Term Sheet and all agreements contemplated hereby valid and binding
upon
the Company in accordance with their terms;
(c)
Neither the execution and delivery of this Agreement nor the related Term
Sheet,
nor the origination of the Mortgage Loans by the Company, the sale of the
Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement and the related Term Sheet will conflict with
any
of the terms, conditions or provisions of the Company's or the Company's
charter
or by-laws or materially conflict with or result in a material breach of
any of
the terms, conditions or provisions of any legal restriction or any agreement
or
instrument to which the Company is now a party or by which they are bound,
or
constitute a default or result in an acceleration under any of the foregoing,
or
result in the material violation of any law, rule, regulation, order, judgment
or decree to which the Company or its properties are subject, or impair the
ability of the Purchaser to realize on the Mortgage Loans.
(d)
There
is no litigation, suit, proceeding or investigation pending or to the Company’s
knowledge, threatened, or any order or decree outstanding, with respect to
the
Company which, either in any one instance or in the aggregate, is reasonably
likely to have a material adverse effect on the sale of the Mortgage Loans,
the
execution, delivery, performance or enforceability of this Agreement or the
related Term Sheet, or which is reasonably likely to have a material adverse
effect on the financial condition of the Company.
(e)
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Company
of
or compliance by the Company with this Agreement or the related Term Sheet,
or
the sale of the Mortgage Loans and delivery of the Mortgage Files to the
Purchaser or the consummation of the transactions contemplated by this Agreement
and the related Term Sheet, except for consents, approvals, authorizations
and
orders which have been obtained;
(f)
The
consummation of the transactions contemplated by this Agreement and the related
Term Sheet is in the ordinary course of business of the Company, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Company pursuant to this Agreement and the related Term Sheet are not
subject to bulk transfer or any similar statutory provisions in effect in
any
applicable jurisdiction;
(g)
The
origination and servicing practices used by the Company, and any prior
originator or Company with respect to each Mortgage Note and Mortgage have
been
legal and in accordance with applicable laws and regulations and the Mortgage
Loan Documents, and in all material respects proper and prudent in the mortgage
origination and servicing business. With respect to escrow deposits and payments
that the Company, on behalf of the investor, is entitled to collect, all
such
payments are in the possession of, or under the control of, the Company,
and
there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. All escrow payments
have
been collected in full compliance with state and federal law and the provisions
of the related Mortgage Note and Mortgage. As to any Mortgage Loan that is
the
subject of an escrow, escrow of funds is not prohibited by applicable law
and
has been established in an amount sufficient to pay for every escrowed item
that
remains unpaid and has been assessed but is not yet due and payable. No escrow
deposits or other charges or payments due under the Mortgage Note have been
capitalized under any Mortgage or the related Mortgage Note;
(h)
The
Company used no selection procedures that identified the Mortgage Loans as
being
less desirable or valuable than other comparable mortgage loans in the Company's
portfolio at the related Cut-off Date;
(i) The
Company will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(j) The
Company is an approved Seller/Servicer of residential mortgage loans for
FNMA,
FHLMC and HUD, with such facilities, procedures and personnel necessary for
the
sound servicing of such mortgage loans. The Company is duly qualified, licensed,
registered and otherwise authorized under all applicable federal, state and
local laws, and regulations, if applicable, meets the minimum capital
requirements set forth by the OCC, and is in good standing to sell mortgage
loans to and service mortgage loans for FNMA and FHLMC and no event has occurred
which would make Company unable to comply with eligibility requirements or
which
would require notification to either FNMA or FHLMC;
(k) The
Company does not believe, nor does it have any cause or reason to believe,
that
it cannot perform each and every covenant contained in this Agreement and
the
related Term Sheet. The Company is solvent and the sale of the Mortgage Loans
will not cause the Company to become insolvent. The sale of the Mortgage
Loans
is not undertaken with the intent to hinder, delay or defraud any of the
Company's creditors;
(l) No
statement, tape, diskette, form, report or other document prepared by, or
on
behalf of, Company or Company pursuant to this Agreement and the related
Term
Sheet or in connection with the transactions contemplated hereby, contains
or
will contain any statement that is or will be inaccurate or misleading in
any
material respect;
(m)
The
Company acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Company, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement and the related Term Sheet. In the opinion of Company,
the
consideration received by Company upon the sale of the Mortgage Loans to
Purchaser under this Agreement and the related Term Sheet constitutes fair
consideration for the Mortgage Loans under current market conditions.
(n)
If
requested by the Purchaser, the Company shall have delivered to the Purchaser
financial statements of its parent, for its last two complete fiscal years.
If
so, all such financial information fairly presents the pertinent results
of
operations and financial position for the period identified and has been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth
in the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Company since the date of the Company’s
financial information that would have a material adverse effect on its ability
to perform its obligations under this Agreement and the related Term Sheet;
and
(o)
Neither
the Company nor the Purchaser have dealt with any broker, investment banker,
agent or other person that may be entitled to any commission or compensation
in
connection with the sale of the Mortgage Loans.
Section
3.02 Representations
and Warranties as to Individual
Mortgage Loans.
References
in this Section to percentages of Mortgage Loans refer in each case to the
percentage of the aggregate principal balance of the Mortgage Loans as of
the
related Cut-off Date, based on the outstanding balances of the Mortgage Loans
as
of the Cut-off Date, and giving effect to scheduled Monthly Payments due
on or
prior to the related Cut-off Date, whether or not received. References to
percentages of Mortgaged Properties refer, in each case, to the percentages
of
expected aggregate principal balances of the related Mortgage Loans (determined
as described in the preceding sentence). The Company hereby represents and
warrant to the Purchaser, as to each Mortgage Loan, as of the related Closing
Date as follows:
(a) The
information set forth in the Mortgage Loan Schedule
attached
to the related Term Sheet is true, complete and correct in all material respects
as of the related Cut-Off Date;
(b) The
Mortgage creates a valid, subsisting and enforceable first lien or a first
priority ownership interest in an estate in fee simple in real property securing
the related Mortgage Note subject to principles of equity, bankruptcy,
insolvency and other laws of general application affecting the rights of
creditors.
(c)
All
payments due prior to the related Cut-off Date for such Mortgage Loan have
been
made as of the related Closing Date, the Mortgage Loan has not been dishonored;
there are no material defaults under the terms of the Mortgage Loan; the
Company
has not advanced its own funds, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the Mortgaged Property
subject to the Mortgage, directly or indirectly, for the payment of any amount
required by the Mortgage Loan; and, as of the related Closing Date, there
has
been no more than one delinquency during the related preceding twelve-month
period, and such delinquency did not last more than 30 days;
(d)
There
are no defaults by the Company in complying with the terms of the Mortgage,
and
all taxes, governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously became
due and owing have been paid, or escrow funds have been established in an
amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(e)
The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments which have
been recorded to the extent any such recordation is required by law, or,
necessary to protect the interest of the Purchaser. No instrument of waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the Mortgage Loan Schedule;
the
substance of any such waiver, alteration or modification has been approved
by
the issuer of any related Primary Mortgage Insurance Policy and title insurance
policy, to the extent required by the related policies;
(f)
The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note or
the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note
or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and as of the Closing Date the Mortgagor was
not
a debtor in any state or federal bankruptcy or insolvency
proceeding;
(g)
All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the FNMA or FHLMC Guides, against
loss by fire, hazards of extended coverage and such other hazards as are
provided for in the FNMA or FHLMC Guide, as well as all additional requirements
set forth in Section 4.10 of this Agreement. All such standard hazard policies
are in full force and effect and on the date of origination contained a standard
mortgagee clause naming the Company and its successors in interest and assigns
as loss payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of 1973,
as
amended, the Mortgage Loan is covered by a flood insurance policy meeting
the
requirements of the current guidelines of the Federal Insurance Administration
which policy conforms to FNMA or FHLMC requirements, as well as all additional
requirements set forth in Section 4.10 of this Agreement. Such policy was
issued
by an insurer acceptable under FNMA or FHLMC guidelines. The Mortgage obligates
the Mortgagor thereunder to maintain all such insurance at the Mortgagor's
cost
and expense, and on the Mortgagor's failure to do so, authorizes the holder
of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense
and
to seek reimbursement therefor from the Mortgagor;
(h)
Any
and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity or disclosure laws applicable
to the
Mortgage Loan have been complied with in all material respects; the Company
maintains, and shall maintain, evidence of such compliance as required by
applicable law or regulation and shall make such evidence available for
inspection at the Company's office during normal business hours upon reasonable
advance notice;
(i)
The
Mortgage has not been satisfied, canceled or subordinated, in whole or in
part,
or rescinded, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission.
The
Company has not waived the performance by the Mortgagor of any action, if
the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Company waived any default resulting from any action
or
inaction by the Mortgagor;
(j) The
Mortgage is a valid, subsisting, enforceable and perfected first lien on
the
Mortgaged Property, including all buildings on the Mortgaged Property and
all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note's original principal balance subject to principles of equity,
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors. The Mortgage and the Mortgage Note do not contain any
evidence of any security interest or other interest or right thereto. Such
lien
is free and clear of all adverse claims, liens and encumbrances having priority
over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording which
are
acceptable to mortgage lending institutions generally and either (A) which
are
referred to in the lender’s title insurance policy delivered to the originator
or otherwise considered in the appraisal made for the originator of the Mortgage
Loan, or (B) which do not adversely affect the residential use or Appraised
Value of the Mortgaged Property as set forth in such appraisal, and (3) other
matters to which like properties are commonly subject which do not individually
or in the aggregate materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property. Any security agreement,
chattel
mortgage or equivalent document related to and delivered in connection with
the
Mortgage Loan establishes and creates a valid, subsisting, enforceable and
perfected first lien and first priority security interest on the property
described therein, and the Company has the full right to sell and assign
the
same to the Purchaser;
(k)
The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to principles of equity,
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors, and the Company has taken all action necessary to transfer
such rights of enforceability to the Purchaser. All parties to the Mortgage
Note
and the Mortgage had the legal capacity to enter into the Mortgage Loan and
to
execute and deliver the Mortgage Note and the Mortgage. The Mortgage Note
and
the Mortgage have been duly and properly executed by such parties. No fraud,
error, omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of Company, the
Mortgagor, or, to the best of Company's knowledge, on the part of any other
party involved in the origination of the Mortgage Loan. Either the borrower
or a
guarantor is a natural person. The proceeds of the Mortgage Loan have been
fully
disbursed and there is no requirement for future advances thereunder, and
any
and all requirements as to completion of any on-site or off-site improvements
and as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage Loan
and
the recording of the Mortgage (including
any fees, costs or expenses related to the registration of the Mortgage Loans
with MERS, if applicable)
were
paid or are in the process of being paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(l)
The
Company is the sole owner and holder of the Mortgage Loan and the indebtedness
evidenced by the Mortgage Note. Upon the sale of the Mortgage Loan to the
Purchaser, the Company will retain the Mortgage File or any part thereof
with
respect thereto not delivered to the Purchaser or the Purchaser’s designee in
trust only for the purpose of servicing and supervising the servicing of
the
Mortgage Loan. Immediately prior to the transfer and assignment to the
Purchaser, the Mortgage Loan, including the Mortgage Note and the Mortgage,
were
not subject to an assignment, sale or pledge to any person other than Purchaser,
and the Company had good and marketable title to and was the sole owner thereof
and had full right to transfer and sell the Mortgage Loan to the Purchaser
free
and clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to this Agreement and following the sale of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or
security interest. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in this Agreement. After the Closing Date, the
Company will not have any right to modify or alter the terms of the sale
of the
Mortgage Loan and the Company will not have any obligation or right to
repurchase the Mortgage Loan or substitute another Mortgage Loan, except
as
provided in this Agreement, or as otherwise agreed to by the Company and
the
Purchaser;
(m)
Each
Mortgage Loan is covered by an ALTA lender's title insurance policy or other
generally acceptable form of policy or insurance acceptable to FNMA or FHLMC
(including adjustable rate endorsements), issued by a title insurer acceptable
to FNMA or FHLMC and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring (subject to the exceptions contained
in
(j)(1), (2) and (3) above) the Company, its successors and assigns, as to
the
first priority lien of the Mortgage in the original principal amount of the
Mortgage Loan and against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment in the Mortgage Interest Rate and Monthly Payment.
Where required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
The
Company, its successors and assigns, are the sole insureds of such lender's
title insurance policy, such title insurance policy has been duly and validly
endorsed to the Purchaser or the assignment to the Purchaser of the Company's
interest therein does not require the consent of or notification to the insurer
and such lender's title insurance policy is in full force and effect and
will be
in full force and effect upon the consummation of the transactions contemplated
by this Agreement. No claims have been made under such lender's title insurance
policy, and no prior holder of the related Mortgage, including the Company,
has
done, by act or omission, anything which would impair the coverage of such
lender's title insurance policy;
(n)
There
is no default, breach, violation or event of acceleration existing under
the
Mortgage or the related Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Company, nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration;
(o)
There
are no mechanics' or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under law could give
rise
to such liens) affecting the related Mortgaged Property which are or may
be
liens prior to or equal to the lien of the related Mortgage;
(p)
All
improvements subject to the Mortgage which were considered in determining
the
appraised value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (m) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q)
Each
Mortgage Loan was originated by or for the Company pursuant to, and conforms
with, the Company’s underwriting guidelines attached as Exhibit H hereto. The
Mortgage Notes and Mortgages are on forms generally acceptable in the industry.
The Mortgage Loan bears interest at an adjustable rate as set forth in the
Mortgage Loan Schedule, and Monthly Payments under the Mortgage Note are
due and
payable on the first day of each month. The Mortgage contains the usual and
enforceable provisions of the Company at the time of origination for the
acceleration of the payment of the unpaid principal amount of the Mortgage
Loan
if the related Mortgaged Property is sold without the prior consent of the
mortgagee thereunder;
(r)
No
Mortgaged Property has been materially damaged by waste, fire, earthquake,
earth
movement, windstorm, tornado, flood or other casualty. At origination of
the
Mortgage Loan there was not, since origination of the Mortgage Loan there
has
been and there currently is, no proceeding pending for the total or partial
condemnation of the Mortgaged Property. The Company has not received
notification that any such proceedings are scheduled to commence at a future
date;
(s)
The
related Mortgage contains customary and enforceable provisions such as to
render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided thereby,
including, (1) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (2) otherwise by judicial foreclosure. There is no homestead
or other exemption available to the Mortgagor which would interfere with
the
right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage;
(t)
If
the Mortgage constitutes a deed of trust, a trustee, authorized and duly
qualified if required under applicable law to act as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees
or
expenses, except as may be required by local law, are or will become payable
by
the Purchaser to the trustee under the deed of trust, except in connection
with
a trustee's sale or attempted sale after default by the Mortgagor;
(u)
The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, approved by the Company, who had no interest, direct or indirect,
in
the Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of FNMA
or
FHLMC and Title XI of the Federal Institutions Reform, Recovery, and Enforcement
Act of 1989 and the regulations promulgated thereunder, all as in effect
on the
date the Mortgage Loan was originated. The appraisal is in a form acceptable
to
FNMA or FHLMC and was made by a Qualified Appraiser;
(v)
All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(w)
The
related Mortgage Note is not and has not been secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to above and such
collateral does not serve as security for any other obligation;
(x)
The
Mortgagor has received and has executed, where applicable, all disclosure
materials required by applicable law with respect to the making of such mortgage
loans;
(y)
The
Mortgage Loan does not contain “balloon” or "graduated payment" features; No
Mortgage Loan is subject to a buydown agreement or contains any buydown
provision;
(z)
The
Mortgagor is not in bankruptcy and, to the best of the Company's knowledge,
the
Mortgagor is not insolvent and the Company has no knowledge of any circumstances
or condition with respect to the Mortgage, the Mortgaged Property, the Mortgagor
or the Mortgagor's credit standing that could reasonably be expected to cause
investors to regard the Mortgage Loan as an unacceptable investment, cause
the
Mortgage Loan to become delinquent, or materially adversely affect the value
or
marketability of the Mortgage Loan;
(aa)
[reserved]
(bb)
[reserved]
(cc)
[reserved]
(dd)
[reserved]
(ee)
None
of the Mortgage Loans have a Loan-to-Value Ratio greater than 95%;
(ff) For
all
of the Mortgage Loans, based on representations made by the Mortgagor at
the
time of origination, all of the Mortgaged Properties are occupied as the
Mortgagor's primary residence. To the best of the Company's knowledge, the
Mortgaged Property is lawfully occupied under applicable law;
(gg) In
the
event the Mortgage Loan has an LTV greater than 80.00%, the excess of the
principal balance of the Mortgage Loan over 75.0% of the Appraised Value
of the
Mortgaged Property with respect to a Refinanced Mortgage Loan, or the lesser
of
the Appraised Value or the purchase price of the Mortgaged Property with
respect
to a purchase money Mortgage Loan is and will be insured as to payment defaults
by a Primary Mortgage Insurance Policy issued by a Qualified Insurer. No
Mortgage Loan has an LTV over 95%. All provisions of such Primary Mortgage
Insurance Policy have been and are being complied with, such policy is in
full
force and effect, and all premiums due thereunder have been paid. No Mortgage
Loan requires payment of such premiums, in whole or in part, by the Purchaser.
No action, inaction, or event has occurred and no state of facts exists that
has, or will result in the exclusion from, denial of, or defense to coverage.
The Mortgage Loan Remittance Rate for the Mortgage Loan as set forth on the
related Mortgage Loan Schedule is net of any such insurance
premium;
(hh) The
assignment of Mortgage (unless
the Mortgage is registered with MERS in accordance with Subsection 2.07)
is
in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located. Any
Assignments of Mortgage registered with MERS in accordance with Subsection
2.07
have been assigned a valid mortgage identification number by MERS. Company
is an
approved MERS participant. Any and all costs, fees and expenses associated
with
the registration of the Mortgages with MERS and the transfer of the Mortgage
Loans on the MERS system to Purchaser have been paid by Company and Purchaser
shall not be responsible for any such costs, fees and expenses;
(ii) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, or a two-to four-family
dwelling, or an individual condominium unit in a condominium project, or
an
individual unit in a planned unit development or a de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a manufactured home not affixed to a permanent foundation,
or a mobile home. As of the date of origination, no portion of any Mortgaged
Property is used for commercial purposes, and since the Origination Date,
to the
best of the Company's knowledge, no portion of any Mortgaged Property is
used
for commercial purposes;
(jj) Except
for the Mortgage Loans indicated on the Mortgage Loan Schedule which require
interest-only payments until the first Adjustment Date and both interest
and
principal payments after such Adjustment Date (the “Interest Only Mortgage
Loans”), principal payments on the Mortgage Loan commenced no more than sixty
(60) days after the funds were disbursed in connection with the Mortgage
Loan.
The Mortgage Note is payable on the first day of each month in monthly
installments of principal (other than with respect to the Interest Only Mortgage
Loans) and interest, which installments are subject to change due to the
adjustments to the Mortgage Interest Rate on each Adjustment Date, with interest
calculated and payable in arrears, sufficient to amortize the Mortgage Loan
fully by the stated maturity date, over an original term of not more than
thirty
years from commencement of amortization;
(kk) As
of the
date of origination and to the best of Company’s knowledge, as of the related
Closing Date of the Mortgage Loan, the Mortgage Property was lawfully occupied
under applicable law, and all inspections, licenses and certificates required
to
be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including
but
not limited to certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities;
(ll) If
the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimis planned unit development), such condominium or planned
unit
development project meets Company's eligibility requirements as set forth
in
Exhibit H;
(mm) To
the
best of Company’s knowledge, there is no pending action or proceeding directly
involving the Mortgaged Property in which compliance with any environmental
law,
rule or regulation is an issue; to the best of Company's knowledge, there
is no
violation of any environmental law, rule or regulation with respect to the
Mortgaged Property; and the Company has not received any notice of any
environmental hazard on the Mortgaged Property and nothing further remains
to be
done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(nn) The
Mortgagor has not notified the Company, and the Company does not have any
knowledge of any relief requested or allowed to the Mortgagor under the
Soldiers' and Sailors' Civil Relief Act of 1940;
(oo)
No
Mortgage Loan is currently a construction or rehabilitation Mortgage Loan
or
facilitates the trade-in or exchange of a Mortgaged Property;
(pp) No
action
has been taken or failed to be taken by Company, on or prior to the Closing
Date
which has resulted or will result in an exclusion from, denial of, or defense
to
coverage under any Primary Mortgage Insurance Policy (including, without
limitation, any exclusions, denials or defenses which would limit or reduce
the
availability of the timely payment of the full amount of the loss otherwise
due
thereunder to the insured) whether arising out of actions, representations,
errors, omissions, negligence, or fraud of the Company or for any other reason
under such coverage;
(qq) Each
Mortgage Loan has been serviced in all material respects in compliance with
Accepted Servicing Practices;
(rr)
The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the National Housing
Act, a savings and loan association, a savings bank, a commercial bank, credit
union, insurance company or similar institution which is supervised and examined
by a federal or state authority. No Mortgaged Property is a timeshare;
and
(ss)
Each
Mortgage Note, each Mortgage, each Assignment of Mortgage and any other
documents required pursuant to this Agreement to be delivered to the Purchaser
or its designee, or its assignee for each Mortgage Loan, have been, on or
before
the Closing Date, delivered to the Purchaser or its designee, or its
assignee.
Section
3.03 Repurchase;
Substitution.
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans and delivery
of the Mortgage Loan Documents to the Purchaser, or its designee, and shall
inure to the benefit of the Purchaser, notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment or the examination,
or
lack of examination, of any Mortgage File. Upon discovery by either the Company
or the Purchaser of a breach of any of the foregoing representations and
warranties which materially and adversely affects the value of the Mortgage
Loans or the interest of the Purchaser in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other. The
Company shall have a period of sixty days from the earlier of its discovery
or
its receipt of notice of any such breach within which to correct or cure
such
breach. The Company hereby covenants and agrees that if any such breach is
not
corrected or cured within such sixty day period, the Company shall, at the
Purchaser's option and not later than ninety days of its discovery or its
receipt of notice of such breach, repurchase such Mortgage Loan at the
Repurchase Price or, with the Purchaser's prior consent and, at Purchaser’s sole
option, substitute a Mortgage Loan as provided below. In the event that any
such
breach shall involve any representation or warranty set forth in Section
3.01,
and such breach is not cured within sixty days of the earlier of either
discovery by or notice to the Company of such breach, all affected Mortgage
Loans shall, at the option of the Purchaser, be repurchased by the Company
at
the Repurchase Price. Any such repurchase shall be accomplished by wire transfer
of immediately available funds to Purchaser in the amount of the Repurchase
Price.
If
the
Company is required to repurchase any Mortgage Loan pursuant to this Section
3.03, the Company may, with the Purchaser's prior consent and, at Purchaser’s
sole option, within one hundred twenty (120) days from the related Closing
Date,
remove such defective Mortgage Loan from the terms of this Agreement and
substitute another mortgage loan for such defective Mortgage Loan, in lieu
of
repurchasing such defective Mortgage Loan; provided however, that in the
event
that any Mortgage Loan was part of a securitization, notwithstanding any
contrary provision of this Agreement, no substitution shall be made. Any
substitute Mortgage Loan shall be acceptable to Purchaser. Any substituted
Loans
will comply with the representations and warranties set forth in this Agreement
as of the substituted date
The
Company shall amend the related Mortgage Loan Schedule to reflect the withdrawal
of the removed Mortgage Loan from this Agreement and the substitution of
such
substitute Mortgage Loan therefor. Upon such amendment, the Purchaser shall
review the Mortgage File delivered to it relating to the substitute Mortgage
Loan. In the event of such a substitution, accrued interest on the substitute
Mortgage Loan for the month in which the substitution occurs and any Principal
Prepayments made thereon during such month shall be the property of the
Purchaser and accrued interest for such month on the Mortgage Loan for which
the
substitution is made and any Principal Prepayments made thereon during such
month shall be the property of the Company. The principal payment on a
substitute Mortgage Loan due on the Due Date in the month of substitution
shall
be the property of the Company and the principal payment on the Mortgage
Loan
for which the substitution is made due on such date shall be the property
of the
Purchaser.
It
is
understood and agreed that the obligation of the Company set forth in this
Section 3.03 to cure, repurchase or substitute for a defective Mortgage Loan,
and to indemnify Purchaser pursuant to Section 8.01, constitute the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties. If the Company fails to repurchase or substitute for a defective
Mortgage Loan in accordance with this Section 3.03, or fails to cure a defective
Mortgage Loan to Purchaser's reasonable satisfaction in accordance with this
Section 3.03, or to indemnify Purchaser pursuant to Section 8.01, that failure
shall be an Event of Default and the Purchaser shall be entitled to pursue
all
remedies available in this Agreement as a result thereof. No provision of
this
paragraph shall affect the rights of the Purchaser to terminate this Agreement
for cause, as set forth in Sections 10.01 and 11.01.
Any
cause
of action against the Company relating to or arising out of the breach of
any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) the earlier of discovery of such breach by the
Company or notice thereof by the Purchaser to the Company, (ii) failure by
the
Company to cure such breach or repurchase such Mortgage Loan as specified
above,
and (iii) demand upon the Company by the Purchaser for compliance with this
Agreement.
Section
3.04 Representations
and Warranties of the Purchaser.
Purchaser
represents, warrants and covenants to Company that, as of the related Closing
Date or as of such date specifically provided herein:
| (a) |
Purchaser
is duly organized, validly existing and in good standing under
the laws of
the State of Delaware and is qualified to transact business in
and is in
good standing under the laws of each state in which the business
transacted by it or the character of the properties owned or leased
by it
requires such qualification.
|
| (b) |
Purchaser
has the full power an authority to perform, and to enter into and
consummate, all transactions contemplated by this Agreement and
the
related Term Sheet. Purchaser has the full power and authority
to purchase
and hold each Mortgage Loan.
|
| (c) |
Neither
the acquisition of the Mortgage Loans by Purchaser pursuant to
this
Agreement and the related Term Sheet, the consummation of the transactions
contemplated hereby, nor the fulfillment of or the compliance with
the
terms and conditions of this Agreement and the related Term Sheet,
will
conflict with or result in a breach of any of the terms, conditions
or
provisions of the Purchaser’s charter or by-laws or result in a material
breach of any legal restriction or any material agreement or instrument
to
which the Purchaser is now a party or by which it is bound, or
constitute
a material default or result in an acceleration under any of the
foregoing, or result in the violation of any material law, rule,
regulation, order, judgment or decree to which Purchaser or its
property
is subject;
|
| (d) |
There
is no action, suit, proceeding, investigation or litigation pending
or, to
the Purchaser’s knowledge, threatened, which either in any one instance or
in the aggregate, if determined adversely to Purchaser would adversely
affect the purchase of the Mortgage Loans by Purchaser hereunder,
or
Purchaser’s ability to perform its obligations under this Agreement and
the related Term Sheet; and
|
| (e) |
No
consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance
by
Purchaser of or compliance by Purchaser with this Agreement and
the
related Term Sheet or the consummation of the transactions contemplated
by
this Agreement and the related Term Sheet (including, but not limited
to,
any approval from HUD), or if required, such consent, approval,
authorization or order has been obtained prior to the related Closing
Date.
|
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Company
to Act as Servicer.
The
Company, as an independent contractor, shall service and administer the Mortgage
Loans in accordance with this Agreement and the related Term Sheet and with
Accepted Servicing Practices, and shall have full power and authority, acting
alone, to do or cause to be done any and all things in connection with such
servicing and administration which the Company may deem necessary or desirable
and consistent with the terms of this Agreement and the related Term Sheet
and
with Accepted Servicing Practices and exercise the same care that it customarily
employs for its own account. Except as set forth in this Agreement and the
related Term Sheet, the Company shall service the Mortgage Loans in strict
compliance with the servicing provisions of the FNMA Guides (special servicing
option), which include, but are not limited to, provisions regarding the
liquidation of Mortgage Loans, the collection of Mortgage Loan payments,
the
payment of taxes, insurance and other charges, the maintenance of hazard
insurance with a Qualified Insurer, the maintenance of mortgage impairment
insurance, the maintenance of fidelity bond and errors and omissions insurance,
inspections, the restoration of Mortgaged Property, the maintenance of Primary
Mortgage Insurance Policies, insurance claims, the title, management of REO
Property, permitted withdrawals with respect to REO Property, liquidation
reports, and reports of foreclosures and abandonments of Mortgaged Property,
the
transfer of Mortgaged Property, the release of Mortgage Files, annual
statements, and examination of records and facilities. In the event of any
conflict, inconsistency or discrepancy between any of the servicing provisions
of this Agreement and any of the servicing provisions of the Agency Guides,
the
provisions of this Agreement and the related Term Sheet shall control and
be
binding upon the Purchaser and the Company.
Consistent
with the terms of this Agreement and the related Term Sheet, the Company
may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of any such term or in any manner grant indulgence to any Mortgagor
if in the Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that unless the Company has obtained the prior
written consent of the Purchaser, the Company shall not permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest
Rate,
forgive the payment of principal or interest, reduce or increase the outstanding
principal balance (except for actual payments of principal) or change the
final
maturity date on such Mortgage Loan. In the event of any such modification
which
has been agreed to in writing by the Purchaser and which permits the deferral
of
interest or principal payments on any Mortgage Loan, the Company shall, on
the
Business Day immediately preceding the Remittance Date in any month in which
any
such principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 4.04, 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 Company shall be entitled to reimbursement
for such advances to the same extent as for all other advances pursuant to
Section 4.05. Without limiting the generality of the foregoing, the Company
shall continue, and is hereby authorized and empowered, to prepare, execute
and
deliver, all instruments of satisfaction or cancellation, or of partial or
full
release, discharge and all other comparable instruments, with respect to
the
Mortgage Loans and with respect to the Mortgaged Properties. Notwithstanding
anything herein to the contrary, the Company may not enter into a forbearance
agreement or similar arrangement with respect to any Mortgage Loan which
runs
more than 180 days after the first delinquent Due Date. Any such agreement
shall
be approved by Purchaser and, if required, by the Primary Mortgage Insurance
Policy issuer, if required. In no event shall Company be obligated to repurchase
a Mortgage Loan due to the exercise of any Conversion Feature.
In
servicing and administering the Mortgage Loans, the Company shall employ
Accepted Servicing Practices, giving due consideration to the Purchaser's
reliance on the Company. Unless a different time period is stated in this
Agreement, Purchaser shall be deemed to have given consent in connection
with
respect to a particular matter if Purchaser does not affirmatively grant
or deny
consent within 5 Business Days from the date Purchaser receives a written
request for consent for such matter from Company as Company.
Section
4.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Company will proceed diligently to collect all payments
due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement, Accepted
Servicing Practices, and the terms and provisions of any related Primary
Mortgage Insurance Policy, follow such collection procedures as it follows
with
respect to mortgage loans comparable to the Mortgage Loans and held for its
own
account.
Section
4.03 Realization
Upon Defaulted Mortgage
The
Company shall use its best efforts, consistent with the procedures that the
Company would use in servicing loans for its own account, consistent with
Accepted Servicing Practices, any Primary Mortgage Insurance Policies and
the
best interest of Purchaser, to foreclose upon or otherwise comparably convert
the ownership of properties securing such of the Mortgage Loans as come into
and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments pursuant to Section 4.01. Foreclosure or
comparable proceedings shall be initiated within ninety (90) days of default
for
Mortgaged Properties for which no satisfactory arrangements can be made for
collection of delinquent payments. The Company shall use its best efforts
to
realize upon defaulted Mortgage Loans in such manner as will maximize the
receipt of principal and interest by the Purchaser, taking into account,
among
other things, the timing of foreclosure proceedings. The foregoing is subject
to
the provisions that, in any case in which a Mortgaged Property shall have
suffered damage, the Company 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 Purchaser after reimbursement to itself
for
such expenses, and (ii) that such expenses will be recoverable by the Company
through Insurance Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 4.05. Company shall obtain prior approval
of Purchaser as to restoration expenses in excess of five thousand dollars
($5,000). The Company shall notify the Purchaser in writing of the commencement
of foreclosure proceedings and prior to the rejection of any offer of
reinstatement. The Company shall be responsible for all costs and expenses
incurred by it in any such proceedings or functions; provided, however, that
it
shall be entitled to reimbursement thereof from the related property, as
contemplated in Section 4.05.
Notwithstanding
anything to the contrary contained herein, the Purchaser may, at the Purchaser's
sole option, terminate the Company as servicer of any Mortgage Loan which
becomes ninety (90 days or greater delinquent in payment of a scheduled Monthly
Payment, without payment of any termination fee with respect thereto, provided
that the Company shall on the date said termination takes effect be reimbursed
for any unreimbursed advances of the Company's funds made pursuant to Section
5.03 and any unreimbursed Servicing Advances and Servicing Fees in each case
relating to the Mortgage Loan underlying such delinquent Mortgage Loan
notwithstanding anything to the contrary set forth in Section 4.05. In the
event
of any such termination, the provisions of Section 11.01 hereof shall apply
to
said termination and the transfer of servicing responsibilities with respect
to
such delinquent Mortgage Loan to the Purchaser or its designee.
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Company has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Purchaser otherwise requests
an environmental inspection or review of such Mortgaged Property, such an
inspection or review is to be conducted by a qualified inspector at the
Purchaser's expense. Upon completion of the inspection, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection. After reviewing the environmental inspection report, the Purchaser
shall determine how the Company shall proceed with respect to the Mortgaged
Property.
In
the
event that a Mortgage Loan becomes REO Property, such property shall be disposed
of by Company, with the consent of Purchaser as required pursuant to this
Agreement, within two years after becoming an REO Property. Company shall
manage, conserve, protect and operate each such REO Property for the
certificateholders solely for the purpose of its prompt disposition and sale,
and if such REO Property has been securitized, the Company shall consult
with
any applicable master servicer with respect to such securitization so that
the
foregoing will be in compliance with the applicable securitization’s structure.
Moreover, pursuant to its efforts to sell such property, the Company shall
either itself or through an agent selected by Company, protect and conserve
such
property in the same manner and to such an extent as is customary in the
locality where such property is located. Additionally, if such REO Property
has
been securitized, the Company shall perform the tax withholding and reporting
related to Sections 1445 and 6050J of the Code after consultation with the
applicable master servicer for the related securitization.
Section
4.04 Establishment
of Custodial Accounts; Deposits in
Custodial Accounts.
The
Company shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts. The
Custodial Account shall be an Eligible Account. Funds deposited in the Custodial
Account may be drawn on by the Company in accordance with Section 4.05. The
creation of any Custodial Account shall be evidenced by a letter agreement
in
the form shown in Exhibit B hereto. The original of such letter agreement
shall
be furnished to the Purchaser on the Closing Date, and upon the request of
any
subsequent Purchaser.
The
Company shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received or made by it subsequent
to the Cut-off Date, or received by it prior to the Cut-off Date but allocable
to a period subsequent thereto, other than in respect of principal and interest
on the Mortgage Loans due on or before the Cut-off Date:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii)
all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii)
all
Liquidation Proceeds;
(iv)
any
amounts required to be deposited by the Company in connection with any REO
Property pursuant to Section 4.13;
(v)
all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.08, 4.10 and 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Accepted Servicing Practices,
the
Mortgage Loan Documents or applicable law;
(vi)
all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Company's normal servicing procedures,
the
loan documents or applicable law;
(vii)
any
Monthly Advances;
(viii)
Intentionally Omitted;
(ix)
any
amounts required to be deposited by the Company pursuant to Section 4.10
in
connection with the deductible clause in any blanket hazard insurance policy,
such deposit shall be made from the Company's own funds, without reimbursement
therefor;
(x)
any
amounts required to be deposited in the Custodial Account pursuant to Section
4.01, 4.13 or 6.02.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of: amortization
schedule fees, fees for copies of canceled escrow checks, escrow analysis
and
loan documents, credit verification fees, fees for property inspections for
defaults and lost drafts, fees for fax copies, partial release fees, nsf
fees,
speed pay fees, subordination fees and wire
Fees,
as
well as late
payment charges and assumption fees, to the extent permitted by Section 6.01,
need not be deposited by the Company in the Custodial Account. Any interest
paid
on funds deposited in the Custodial Account by the depository institution
shall
accrue to the benefit of the Company and the Company shall be entitled to
retain
and withdraw such interest from the Custodial Account pursuant to Section
4.05
(iv).
Section
4.05 Permitted
Withdrawals From the Custodial Account.
The
Company may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 5.01;
(ii)
to
reimburse itself for Monthly Advances, the Company's right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the
related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) of principal and/or interest respecting which any such advance was
made,
it being understood that, in the case of such reimbursement, the Company's
right
thereto shall be prior to the rights of the Purchaser, except that, where
the
Company is required to repurchase a Mortgage Loan, pursuant to Section 3.03
or
Section 3.04, the Company's right to such reimbursement shall be subsequent
to
the payment to the Purchaser of the Repurchase Price pursuant to such Section
and all other amounts required to be paid to the Purchaser with respect to
such
Mortgage Loan;
(iii)
to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees, the Company's right to reimburse itself pursuant to this subclause
(iii)
with respect to any Mortgage Loan being limited to related proceeds from
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds in accordance
with the relevant provisions of the FNMA Guides or as otherwise set forth
in
this Agreement or the related Term Sheet, it being understood that for those
Mortgage Loans in foreclosure, Company shall recover for Servicing Advances
and
Servicing Fees through the completion of foreclosure and disposition of the
REO
Property; such recovery shall be made upon liquidation of the REO Property;
(iv) to
pay to
itself as part of its servicing compensation (a) any interest earned on funds
in
the Custodial Account (all such interest to be withdrawn monthly not later
than
each Remittance Date), and (b) the Servicing Fee from that portion of any
payment or recovery as to interest with respect to a particular Mortgage
Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 3.03 or Section 3.04 all amounts received thereon and not distributed
as
of the date on which the related repurchase price is determined,
(vi) to
transfer funds to another Eligible Account in accordance with Section 4.09
hereof;
(vii)to
remove funds inadvertently placed in the Custodial Account by the Company;
and
(vi) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
4.06 Establishment
of Escrow Accounts; Deposits
in Escrow Accounts.
The
Company shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one
or more
Escrow Accounts. The Escrow Account shall be an Eligible Account. Funds
deposited in the Escrow Account may be drawn on by the Company in accordance
with Section 4.07. The creation of any Escrow Account shall be evidenced
by a
letter agreement in the form shown in Exhibit C. The original of such letter
agreement shall be furnished to the Purchaser on the Closing Date, and upon
request to any subsequent purchaser.
The
Company 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;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii)all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient
to
cover escrow disbursements.
The
Company shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth or in accordance with Section 4.07. The Company shall
be
entitled to retain any interest 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 and, to the extent required by law, the Company
shall pay interest on escrowed funds to the Mortgagor notwithstanding that
the
Escrow Account is non-interest bearing or that interest paid thereon is
insufficient for such purposes.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by Company only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy premiums, if applicable, fire and hazard insurance
premiums, condominium assessments and comparable items;
(ii) to
reimburse Company for any Servicing Advance made by Company with respect
to a
related Mortgage Loan but only from amounts received on the related Mortgage
Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii)to
refund to the Mortgagor any funds as may be determined to be
overages;
(iv) for
transfer to the Custodial Account in accordance with the terms of this
Agreement;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to
the Company, or to the Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account;
(vii)
to
clear and terminate the Escrow Account on the termination of this Agreement.
As
part of its servicing duties, the Company shall pay to the Mortgagors interest
on funds in Escrow Account, to the extent required by law, and to the extent
that interest earned on funds in the Escrow Account is insufficient, shall
pay
such interest from its own funds, without any reimbursement therefor;
and
(viii)
to
pay to the Mortgagors or other parties Insurance Proceeds deposited in
accordance with Section 4.06.
Section
4.08 Payment
of Taxes, Insurance and Other Charges;
Maintenance of Primary Mortgage Insurance
Policies; Collections Thereunder.
With
respect to each Mortgage Loan, the Company shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of primary mortgage insurance premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges, including renewal premiums and shall effect payment thereof prior
to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits
of the
Mortgagor in the Escrow Account which shall have been estimated and accumulated
by the Company in amounts sufficient for such purposes, as allowed under
the
terms of the Mortgage or applicable law. To the extent that the Mortgage
does
not provide for Escrow Payments, the Company shall determine that any such
payments are made by the Mortgagor at the time they first become due. The
Company assumes full responsibility for the timely payment of all such bills
and
shall effect timely payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
The
Company will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each Mortgage Loan
for
which such coverage is herein required. Such coverage will be terminated
only
with the approval of Purchaser, or as required by applicable law or regulation;
provided, however that any such lender paid mortgage insurance coverage may
also
be terminated without approval by Purchaser in the event that such coverage
is
terminated in accordance with the Mortgagor’s Mortgage Note, Mortgage, or any
riders or addenda thereto. The Company will not cancel or refuse to renew
any
Primary Mortgage Insurance Policy in effect on the Closing Date that is required
to be kept in force under this Agreement unless a replacement Primary Mortgage
Insurance Policy for such canceled or nonrenewed policy is obtained from
and
maintained with a Qualified Insurer. The Company shall not take any action
which
would result in non-coverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of the Company would have been
covered thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 6.01, the Company
shall
promptly notify the insurer under the related Primary Mortgage Insurance
Policy,
if any, of such assumption or substitution of liability in accordance with
the
terms of such policy and shall take all actions which may be required by
such
insurer as a condition to the continuation of coverage under the Primary
Mortgage Insurance Policy. If such Primary Mortgage Insurance Policy is
terminated as a result of such assumption or substitution of liability, the
Company shall obtain a replacement Primary Mortgage Insurance Policy as provided
above.
In
connection with its activities as Company, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
Private Mortgage Insurance Policy in a timely fashion in accordance with
the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section
4.04,
any amounts collected by the Company under any Primary Mortgage Insurance
Policy
shall be deposited in the Custodial Account, subject to withdrawal pursuant
to
Section 4.05.
Section
4.09 Transfer
of Accounts.
The
Company may transfer the Custodial Account or the Escrow Account to a different
Eligible Account from time to time. Such transfer shall be made only upon
obtaining the prior written consent of the Purchaser, which consent will
not be
unreasonably withheld.
Section
4.10 Maintenance
of Hazard Insurance.
The
Company shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is acceptable to FNMA or FHLMC and customary
in the area where the Mortgaged Property is located in an amount which is
equal
to the lesser of (i) the maximum insurable value of the improvements securing
such Mortgage Loan or (ii) the greater of (a) the outstanding principal balance
of the Mortgage Loan, and (b) an amount such that the proceeds thereof shall
be
sufficient to prevent the Mortgagor and/or the mortgagee from becoming a
co-insurer. If required by the Flood Disaster Protection Act of 1973, as
amended, each Mortgage Loan shall be covered by a flood insurance policy
meeting
the requirements of the current guidelines of the Federal Insurance
Administration in effect with an insurance carrier acceptable to FNMA or
FHLMC,
in an amount representing coverage not less than the least of (i) the
outstanding principal balance of the Mortgage Loan, (ii) the maximum insurable
value of the improvements securing such Mortgage Loan or (iii) the maximum
amount of insurance which is available under the Flood Disaster Protection
Act
of 1973, as amended. If at any time during the term of the Mortgage Loan,
the
Company determines in accordance with applicable law and pursuant to the
FNMA
Guides that a Mortgaged Property is located in a special flood hazard area
and
is not covered by flood insurance or is covered in an amount less than the
amount required by the Flood Disaster Protection Act of 1973, as amended,
the
Company shall notify the related Mortgagor that the Mortgagor must obtain
such
flood insurance coverage, and if said Mortgagor fails to obtain the required
flood insurance coverage within forty-five (45) days after such notification,
the Company shall immediately force place the required flood insurance on
the
Mortgagor’s behalf. The Company shall also maintain on each REO Property, fire
and hazard insurance with extended coverage in an amount which is at least
equal
to the maximum insurable value of the improvements which are a part of such
property, and, to the extent required and available under the Flood Disaster
Protection Act of 1973, as amended, flood insurance in an amount as provided
above. Any amounts collected by the Company under any such policies other
than
amounts to be deposited in the Escrow Account and applied to the restoration
or
repair of the Mortgaged Property or REO Property, or released to the Mortgagor
in accordance with Accepted Servicing Practices, shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 4.05. It is
understood and agreed that no other additional insurance need be required
by the
Company of the Mortgagor or maintained on property acquired in respect of
the
Mortgage Loan, other than pursuant to this Agreement, the FNMA Guides or
such
applicable state or federal laws and regulations as shall at any time be
in
force and as shall require such additional insurance. All such policies shall
be
endorsed with standard mortgagee clauses with loss payable to the Company
and
its successors and/or assigns and shall provide for at least thirty days
prior
written notice of any cancellation, reduction in the amount or material change
in coverage to the Company. The Company shall not interfere with the Mortgagor's
freedom of choice in selecting either his insurance carrier or agent, provided,
however, that the Company shall not accept any such insurance policies from
insurance companies unless such companies are Qualified Insurers.
Section
4.11 Maintenance
of Mortgage Impairment Insurance
Policy.
In
the
event that the Company shall obtain and maintain a blanket policy issued
by an
insurer acceptable to FNMA or FHLMC insuring against hazard losses on all
of the
Mortgage Loans, then, to the extent such policy provides coverage in an amount
equal to the amount required pursuant to Section 4.10 and otherwise complies
with all other requirements of Section 4.10, it shall conclusively be deemed
to
have satisfied its obligations as set forth in Section 4.10, it being understood
and agreed that such policy may contain a deductible clause, in which case
the
Company shall, in the event that there shall not have been maintained on
the
related Mortgaged Property or REO Property a policy complying with Section
4.10,
and there shall have been a loss which would have been covered by such policy,
deposit in the Custodial Account the amount not otherwise payable under the
blanket policy because of such deductible clause. In connection with its
activities as servicer of the Mortgage Loans, the Company agrees to prepare
and
present, on behalf of the Purchaser, claims under any such blanket policy
in a
timely fashion in accordance with the terms of such policy. Upon request
of the
Purchaser, the Company shall cause to be delivered to the Purchaser a certified
true copy of such policy and shall use its best efforts to obtain a statement
from the insurer thereunder that such policy shall in no event be terminated
or
materially modified without thirty days' prior written notice to the
Purchaser.
Section
4.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Company shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies on all officers, employees or other persons acting in any capacity
with regard to the Mortgage Loan to handle funds, money, documents and papers
relating to the Mortgage Loan. The Fidelity Bond shall be in the form of
the
Mortgage Banker's Blanket Bond and shall protect and insure the Company against
losses, including forgery, theft, embezzlement and fraud of such persons.
The
errors and omissions insurance shall protect and insure the Company against
losses arising out of errors and omissions and negligent acts of such persons.
Such errors and omissions insurance shall also protect and insure the Company
against losses in connection with the failure to maintain any insurance policies
required pursuant to this Agreement and the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.12 requiring the Fidelity
Bond
or errors and omissions insurance shall diminish or relieve the Company from
its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the
corresponding amounts required by FNMA in the FNMA Guide. The Company shall
deliver to the Purchaser a certificate from the surety and the insurer as
to the
existence of the Fidelity Bond and errors and omissions insurance policy
and
shall obtain a statement from the surety and the insurer that such Fidelity
Bond
or insurance policy shall in no event be terminated or materially modified
without thirty days' prior written notice to the Purchaser. The Company shall
notify the Purchaser within thirty business days of receipt of notice that
such
Fidelity Bond or insurance policy will be, or has been, materially modified
or
terminated. The Purchaser (or any party having the status of Purchaser
hereunder) and any subsidiary thereof and their successors or assigns as
their
interests may appear must be named as loss payees on the Fidelity Bond and
as
additional insured on the errors and omissions policy. Upon request by
Purchaser, Company shall provide Purchaser with an insurance certificate
certifying coverage under this Section 4.12, and will provide an update to
such
certificate upon request, or upon renewal or material modification of
coverage.
Section
4.13 Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in
the
name of the Purchaser or its designee, or in the event the Purchaser or its
designee is not authorized or permitted to hold title to real property in
the
state where the REO Property is located, or would be adversely affected under
the "doing business" or tax laws of such state by so holding title, the deed
or
certificate of sale shall be taken in the name of such Person or Persons
as
shall be consistent with an opinion of counsel obtained by the Company from
an
attorney duly licensed to practice law in the state where the REO Property
is
located. Any Person or Persons holding such title other than the Purchaser
shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Purchaser.
The
Company shall notify the Purchaser in accordance with the FNMA Guides of
each
acquisition of REO Property upon such acquisition, together with a copy of
the
drive by appraisal or brokers price opinion of the Mortgaged Property obtained
in connection with such acquisition, and thereafter assume the responsibility
for marketing such REO property in accordance with Accepted Servicing Practices.
Thereafter, the Company shall continue to provide certain administrative
services to the Purchaser relating to such REO Property as set forth in this
Section 4.13. The fee for such administrative services (the “Administrative
Fee”) shall be $1,500 to be paid upon liquidation of the REO Property. No
Servicing Fee shall be assessed on any REO Property from and after the date
on
which it becomes an REO Property.
The
Company shall, either itself or through an agent selected by the Company,
and in
accordance with the FNMA Guides manage, conserve, protect and operate each
REO
Property in the same manner that it manages, conserves, protects and operates
other foreclosed property for its own account, and in the same manner that
similar property in the same locality as the REO Property is managed. The
Company shall cause each REO Property to be inspected promptly upon the
acquisition of title thereto and shall cause each REO Property to be inspected
at least monthly thereafter or more frequently as required by the circumstances.
The Company shall make or cause to be made a written report of each such
inspection. Such reports shall be retained in the Mortgage File and copies
thereof shall be forwarded by the Company to the Purchaser at Purchaser’s
request.
The
Company shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within one year after
title has been taken to such REO Property, unless the Company determines,
and
gives an appropriate notice to the Purchaser to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If
a
longer period than one (1) year is permitted under the foregoing sentence
and is
necessary to sell any REO Property, the Company shall report monthly to the
Purchaser as to the progress being made in selling such REO Property. No
REO
Property shall be marketed for less than the Appraised Value, without the
prior
consent of Purchaser. No REO Property shall be sold for less than ninety
five
percent (95%) of its Appraised Value, without the prior consent of Purchaser.
All requests for reimbursement of Servicing Advances shall be in accordance
with
the FNMA Guides. The disposition of REO Property shall be carried out by
the
Company at such price, and upon such terms and conditions, as the Company
deems
to be in the best interests of the Purchaser (subject to the above conditions).
Company shall provide monthly reports to Purchaser in reference to the status
of
the marketing of the REO Properties.
Notwithstanding
anything to the contrary contained herein, the Purchaser may, at the Purchaser's
sole option, terminate the Company as servicer of any such REO Property without
payment of any termination fee with respect thereto, provided that the Company
shall on the date said termination takes effect be reimbursed for any
unreimbursed advances of the Company's funds made pursuant to Section 5.03
and
any unreimbursed Servicing Advances and Servicing Fees, in each case relating
to
the Mortgage Loan underlying such REO Property notwithstanding anything to
the
contrary set forth in Section 4.05, and, only to the extent the related REO
Property was not liquidated prior to Company’s termination, any Administrative
Fee prorated based on the following ratio: (1) the total number of months
the
Company serviced it as REO Property to (2) the total number of months from
completion of foreclosure to completion of liquidation of the REO Property.
In
the event of any such termination, the provisions of Section 11.01 hereof
shall
apply to said termination and the transfer of servicing responsibilities
with
respect to such REO Property to the Purchaser or its designee.
Section
4.14 Notification
of Maturity Date.
With
respect to each Mortgage Loan, the Company shall execute and deliver to the
Mortgagor any and all necessary notices required under applicable law and
the
terms of the related Mortgage Note and Mortgage regarding the maturity date
if
required under applicable law.
ARTICLE
V
PAYMENTS
TO THE PURCHASER
Section
5.01 Distributions.
On
each
Remittance Date, the Company shall distribute by wire transfer of immediately
available funds to the Purchaser (i) all amounts credited to the Custodial
Account as of the close of business on the preceding Determination Date,
net of
charges against or withdrawals from the Custodial Account pursuant to Section
4.05, plus (ii) all Monthly Advances, if any, which the Company is obligated
to
distribute pursuant to Section 5.03, plus, (iii) interest at the Mortgage
Loan
Remittance Rate on any Principal Prepayment from the date of such Principal
Prepayment through the end of the month for which disbursement is made provided
that the Company’s obligation as to payment of such interest shall be limited to
the Servicing Fee earned during the month of the distribution, minus (iv)
any
amounts attributable to Monthly Payments collected but due on a Due Date
or
Dates subsequent to the preceding Determination Date, which amounts shall
be
remitted on the Remittance Date next succeeding the Due Period for such amounts.
It is understood that, by operation of Section 4.04, the remittance on the
first
Remittance Date with respect to Mortgage Loans purchased pursuant to the
related
Term Sheet is to include principal collected after the related Cut-off Date
through the preceding Determination Date plus interest, adjusted to the Mortgage
Loan Remittance Rate collected through such Determination Date exclusive
of any
portion thereof allocable to the period prior to the related Cut-off Date,
with
the adjustments specified in clauses (ii), (iii) and (iv) above.
With
respect to any remittance received by the Purchaser after the Remittance
Date,
the Company shall pay to the Purchaser interest on any such late payment
at an
annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall cover the period commencing
with the day following the Business Day such payment was due and ending with
the
Business Day on which such payment is made to the Purchaser, both inclusive.
The
payment by the Company of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the
Company.
Section
5.02 Statements
to the Purchaser.
The
Company shall furnish to Purchaser an individual loan accounting report,
as of
the last Business Day of each month, in the Company's assigned loan number
order
to document Mortgage Loan payment activity on an individual Mortgage Loan
basis.
With respect to each month, the corresponding individual loan accounting
report
shall be received by the Purchaser no later than the fifth Business Day of
the
following month on a disk or tape or other computer-readable format in such
format as may be mutually agreed upon by both Purchaser and Company, and
no
later than the fifth Business Day of the following month in hard copy, which
report, in hard copy, shall contain the following:
(i)
With
respect to each Monthly Payment, the amount of such remittance allocable
to
principal (including a separate breakdown of any Principal Prepayment, including
the date of such prepayment, and any prepayment penalties or premiums, along
with a detailed report of interest on principal prepayment amounts remitted
in
accordance with Section 4.04);
(ii)
with
respect to each Monthly Payment, the amount of such remittance allocable
to
interest;
(iii)
the
amount of servicing compensation received by the Company during the prior
distribution period;
(iv)
the
aggregate Stated Principal Balance of the Mortgage Loans;
(v)
the
aggregate of any expenses reimbursed to the Company during the prior
distribution period pursuant to Section 4.05;
(vi)
The
number and aggregate outstanding principal balances of Mortgage Loans (a)
delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90 days or more; (b)
as to
which foreclosure has commenced; and (c) as to which REO Property has been
acquired; and
The
Company shall also provide a trial balance, sorted in Purchaser's assigned
loan
number order with each such Report.
The
Company shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority pursuant
to any applicable law with respect to the Mortgage Loans and the transactions
contemplated hereby. In addition, the Company
shall provide Purchaser with such information concerning the Mortgage Loans
as
is necessary for Purchaser to prepare its federal income tax return as Purchaser
may reasonably request from time to time.
Section
5.03 Monthly
Advances by the Company.
Not
later
than the close of business on the Business Day preceding each Remittance
Date,
the Company shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Company, whether or not deferred
pursuant to Section 4.01, of principal (due after the Cut-off Date) and interest
not allocable to the period prior to the Cut-off Date, adjusted to the Mortgage
Loan Remittance Rate, which were due on a Mortgage Loan and delinquent at
the
close of business on the related Determination Date.
The
Company's obligation to make such Monthly Advances as to any Mortgage Loan
will
continue through the last Monthly Payment due prior to the payment in full
of
the Mortgage Loan, or through the Remittance Date prior to the date on which
the
Mortgaged Property liquidates (including Insurance Proceeds, proceeds from
the
sale of REO Property or Condemnation Proceeds) with respect to the Mortgage
Loan
unless the Company deems such advance to be nonrecoverable. In such event,
the
Company shall deliver to the Purchaser an Officer's Certificate of the Company
to the effect that an officer of the Company has reviewed the related Mortgage
File and has made the reasonable determination that any additional advances
are
nonrecoverable.
Section
5.04 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed-in-lieu of foreclosure, the Company shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property
in a
form mutually acceptable to Company and Purchaser. The Company shall also
provide reports on the status of REO Property containing such information
as
Purchaser may reasonably require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Assumption
Agreements.
The
Company will, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any "due-on-sale"
clause to the extent permitted by law; provided, however, that the Company
shall
not exercise any such rights if prohibited by law or the terms of the Mortgage
Note from doing so or if the exercise of such rights would impair or threaten
to
impair any recovery under the related Primary Mortgage Insurance Policy,
if any.
If the Company reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause, the Company, with the approval of the Purchaser
(such
approval not to be unreasonably withheld), will enter into an assumption
agreement with the person to whom the Mortgaged Property has been conveyed
or is
proposed to be conveyed, pursuant to which such person becomes liable under
the
Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. Where an assumption is allowed pursuant
to
this Section 6.01, the Company, with the prior consent of the Purchaser and
the
primary mortgage insurer, if any, is authorized to enter into a substitution
of
liability agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed pursuant to which the original mortgagor
is released from liability and such Person is substituted as mortgagor and
becomes liable under the related Mortgage Note. Any such substitution of
liability agreement shall be in lieu of an assumption agreement. Purchaser
shall
be deemed to have consented to any assumption for which Purchaser was given
notification and requested to consent, but for which neither a consent nor
an
objection was given by Purchaser within five Business Days of such notification.
In
connection with any such assumption or substitution of liability, the Company
shall follow the underwriting practices and procedures of the FNMA Guides.
With
respect to an assumption or substitution of liability, the Mortgage Interest
Rate borne by the related Mortgage Note, the amount of the Monthly Payment
and
the maturity date may not be changed (except pursuant to the terms of the
Mortgage Note). If the credit of the proposed transferee does not meet such
underwriting criteria, the Company diligently shall, to the extent permitted
by
the Mortgage or the Mortgage Note and by applicable law, accelerate the maturity
of the Mortgage Loan. The Company shall notify the Purchaser that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Purchaser the original of any such substitution of liability
or assumption agreement, which document shall be added to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File
to
the same extent as all other documents and instruments constituting a part
thereof. All fees collected by the Company for entering into an assumption
or
substitution of liability agreement shall belong to the Company.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Company 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 Company may be restricted
by law from preventing, for any reason whatsoever. For purposes of this Section
6.01, the term "assumption" is deemed to also include a sale of the Mortgaged
Property subject to the Mortgage that is not accompanied by an assumption
or
substitution of liability agreement.
Section
6.02 Satisfaction
of Mortgages and Release of Mortgage
Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Company of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Company will immediately notify the Purchaser by a
certification, which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment which
are
required to be deposited in the Custodial Account pursuant to Section 4.04
have
been or will be so deposited, of a Servicing Officer and shall request delivery
to it of the portion of the Mortgage File held by the Purchaser. The Purchaser
shall no later than five Business Days after receipt of such certification
and
request, release or cause to be released to the Company, the related Mortgage
Loan Documents and, upon its receipt of such documents, the Company shall
promptly prepare and deliver to the Purchaser the requisite satisfaction
or
release. No later than three Business Days following its receipt of such
satisfaction or release, the Purchaser shall deliver, or cause to be delivered,
to the Company the release or satisfaction properly executed by the owner
of
record of the applicable mortgage or its duly appointed attorney in fact.
No
expense incurred in connection with any instrument of satisfaction or deed
of
reconveyance shall be chargeable to the Custodial Account.
In
the
event the Company satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Company, upon written demand, shall remit within two Business
Days to the Purchaser the then outstanding principal balance of the related
Mortgage Loan by deposit thereof in the Custodial Account. The Company shall
maintain the Fidelity Bond and errors and omissions insurance insuring the
Company against any loss it may sustain with respect to any Mortgage Loan
not
satisfied in accordance with the procedures set forth herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, including for the purpose of collection under any Primary Mortgage
Insurance Policy, the Purchaser shall, upon request of the Company and delivery
to the Purchaser of a servicing receipt signed by a Servicing Officer, release
the portion of the Mortgage File held by the Purchaser to the Company. Such
servicing receipt shall obligate the Company to return the related Mortgage
documents to the Purchaser when the need therefor by the Company no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Custodial
Account or the Mortgage File or such document has been delivered to an attorney,
or to a public trustee or other public official as required by law, for purposes
of initiating or pursuing legal action or other proceedings for the foreclosure
of the Mortgaged Property either judicially or non-judicially, and the Company
has delivered to the Purchaser a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan
was liquidated, the servicing receipt shall be released by the Purchaser
to the
Company.
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Company shall be entitled to
withdraw from the Custodial Account (to the extent of interest payments
collected on the Mortgage Loans) or to retain from interest payments collected
on the Mortgage Loans, the amounts provided for as the Company's Servicing
Fee,
subject to payment of compensating interest on Principal Prepayments as capped
by the Servicing Fee pursuant to Section 5.01 (iii). Additional servicing
compensation in the form of assumption fees, as provided in Section 6.01,
and
late payment charges and other ancillary fees shall be retained by the Company
to the extent not required to be deposited in the Custodial Account. No
Servicing Fee shall be payable in connection with partial Monthly Payments.
The
Company shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for.
Section
6.04 Annual
Statement as to Compliance.
The
Company will deliver to the Purchaser as of September 30th of each year,
beginning with 2001, an Officers' Certificate stating, as to each signatory
thereof, that (i) a review of the activities of the Company during the preceding
fiscal year and of performance under this Agreement has been made under such
officers' supervision, and (ii) to the best of such officers' knowledge,
based
on such review, the Company has fulfilled all of its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such
officers and the nature and status of cure provisions thereof. Copies of
such
statement shall be provided by the Company to the Purchaser upon
request.
Section
6.05 Annual
Independent Certified Public Accountants'
Servicing Report.
Within
one hundred twenty (120) days of Company's fiscal year end the Company at
its
expense shall cause a firm of independent public accountants which is a member
of the American Institute of Certified Public Accountants to furnish a statement
to the Purchaser to the effect that such firm has examined certain documents
and
records relating to the Company's servicing of mortgage loans of the same
type
as the Mortgage Loans pursuant to servicing agreements substantially similar
to
this Agreement, which agreements may include this Agreement, and that, on
the
basis of such an examination, conducted substantially in the uniform single
audit program for mortgage bankers, such firm is of the opinion that the
Company's servicing has been conducted in compliance with the agreements
examined pursuant to this Section 6.05, except for (i) such exceptions as
such
firm shall believe to be immaterial, and (ii) such other exceptions as shall
be
set forth in such statement. Copies of such statement shall be provided by
the
Company to the Purchaser. In addition, on an annual basis, Company shall
provided Purchaser with copies of its audited financial statements upon
execution by Purchaser of an agreement to keep confidential the contents
of such
financial statements.
Section
6.06 Purchaser's
Right to Examine Company Records.
The
Purchaser shall have the right to examine and audit upon reasonable notice
to
the Company, during business hours or at such other times as might be reasonable
under applicable circumstances, any and all of the books, records, documentation
or other information of the Company, or held by another for the Company or
on
its behalf or otherwise, which relates to the performance or observance by
the
Company of the terms, covenants or conditions of this Agreement.
The
Company shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Purchaser, including but not limited to OTS, FDIC and other similar entities,
access to any documentation regarding the Mortgage Loans in the possession
of
the Company which may be required by any applicable regulations. Such access
shall be afforded without charge, upon reasonable request, during normal
business hours and at the offices of the Company, and in accordance with
the
federal government, FDIC, OTS, or any other similar regulations.
ARTICLE
VII
REPORTS
TO BE PREPARED BY COMPANY
Section
7.01 Company
Shall Provide Information as Reasonably
Required.
The
Company shall furnish to the Purchaser during the term of this Agreement,
such
periodic, special or other reports, information or documentation, whether
or not
provided for herein, as shall be necessary, reasonable or appropriate in
respect
to the Purchaser, or otherwise in respect to the Mortgage Loans and the
performance of the Company under this Agreement, including any reports,
information or documentation reasonably required to comply with any regulations
regarding any supervisory agents or examiners of the Purchaser all such reports
or information to be as provided by and in accordance with such applicable
instructions and directions as the Purchaser may reasonably request in relation
to this Agreement or the performance of the Company under this Agreement.
The
Company agrees to execute and deliver all such instruments and take all such
action as the Purchaser, from time to time, may reasonably request in order
to
effectuate the purpose and to carry out the terms of this
Agreement.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser audited financial statements of the Company for
the
most recently completed two (2) fiscal years for which such statements are
available, as well as a Consolidated Statement of Condition at the end of
the
last two (2) fiscal years covered by any Consolidated Statement of Operations.
If it has not already done so, the Company shall furnish promptly to the
Purchaser or a prospective purchaser copies of the statements specified above;
provided, however, that prior to furnishing such statements or information
to
any prospective purchaser, the Company may require such prospective purchaser
to
execute a confidentiality agreement in a form satisfactory to the
Company.
The
Company shall make reasonably available to the Purchaser or any prospective
Purchaser a knowledgeable financial or accounting officer for the purpose
of
answering questions and to permit any prospective purchaser to inspect the
Company’s servicing facilities for the purpose of satisfying such prospective
purchaser that the Company has the ability to service the Mortgage Loans
as
provided in this Agreement.
ARTICLE
VIII
THE
COMPANY
Section
8.01 Indemnification;
Third Party Claims.
The
Company agrees to indemnify the Purchaser and hold it harmless against any
and
all claims, losses, damages, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Purchaser may sustain in any way related to the failure of the Company to
observe and perform its duties, obligations, covenants, and agreements to
service the Mortgage Loans in strict compliance with the terms of this
Agreement. The Company agrees to indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the breach of a
representation or warranty set forth in Sections 3.01 or 3.02 of this Agreement.
The Company shall immediately notify the Purchaser if a claim is made by
a third
party against Company with respect to this Agreement or the Mortgage Loans,
assume (with the consent of the Purchaser) the defense of any such claim
and pay
all expenses in connection therewith, including counsel fees, whether or
not
such claim is settled prior to judgment, and promptly pay, discharge and
satisfy
any judgment or decree which may be entered against it or the Purchaser in
respect of such claim. The Company shall follow any reasonable written
instructions received from the Purchaser in connection with such claim. The
Purchaser shall promptly reimburse the Company for all amounts advanced by
it
pursuant to the two preceding sentences except when the claim relates to
the
failure of the Company to service and administer the Mortgages in strict
compliance with the terms of this Agreement, the breach of representation
or
warranty set forth in Sections 3.01 or 3.02, or the gross negligence, bad
faith
or willful misconduct of Company. The provisions of this Section 8.01 shall
survive termination of this Agreement.
Section
8.02 Merger
or Consolidation of the Company.
Unless
the Purchaser is notified in writing that the Company intends to change its
status as a federal savings bank (such notice shall be given by the Company
to
Purchaser one month prior to such change), the Company will keep in full
effect
its existence, rights and franchises as a federal savings bank under federal
law
except as permitted herein, and will obtain and preserve its qualification
to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any
Person into which the Company may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Company
shall be a party, or any Person succeeding to the business of the Company
whether or not related to loan servicing, shall be the successor of the Company
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
shall
be an institution (i) having a GAAP net worth of not less than $25,000,000,
(ii)
the deposits of which are insured by the FDIC, SAIF and/or BIF, or which
is a
HUD-approved mortgagee whose primary business is in origination and servicing
of
first lien mortgage loans, and (iii) who is a FNMA or FHLMC approved
Seller/Servicer in good standing.
Section
8.03 Limitation
on Liability of the Company and Others.
Neither
the Company nor any of the officers, employees or agents of the Company shall
be
under any liability to the Purchaser 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 made in good faith; provided, however, that this provision shall
not
protect the Company against any breach of warranties or representations made
herein, or failure to perform its obligations in strict compliance with any
standard of care set forth in this Agreement, or any liability which would
otherwise be imposed by reason of negligence, bad faith or willful misconduct,
or any breach of the terms and conditions of this Agreement. The Company
and any
officer, employee or agent of the Company may rely in good faith on any document
of any kind prima facie properly executed and submitted by the Purchaser
respecting any matters arising hereunder. The Company shall not be under
any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with
this
Agreement and which in its reasonable opinion may involve it in any expenses
or
liability; provided, however, that the Company may, with the consent of the
Purchaser, undertake any such action which it may deem necessary or desirable
in
respect to this Agreement and the rights and duties of the parties hereto.
In
such event, the reasonable legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for
which
the Purchaser will be liable, and the Company shall be entitled to be reimbursed
therefor from the Purchaser upon written demand.
Section
8.04 Company
Not to Assign or Resign.
The
Company shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except by mutual consent of the Company and the
Purchaser or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Company. Any such determination permitting the resignation of the Company
shall
be evidenced by an Opinion of Counsel to such effect delivered to the Purchaser
which Opinion of Counsel shall be in form and substance acceptable to the
Purchaser. No such resignation shall become effective until a successor shall
have assumed the Company's responsibilities and obligations hereunder in
the
manner provided in Section 11.01.
Section
8.05 No
Transfer of Servicing.
With
respect to the retention of the Company to service the Mortgage Loans hereunder,
the Company acknowledges that the Purchaser has acted in reliance upon the
Company's independent status, the adequacy of its servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the generality
of this Section, the Company shall not either assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written approval of the Purchaser,
which
consent shall be granted or withheld in the Purchaser's sole
discretion.
Without
in any way limiting the generality of this Section 8.05, in the event that
the
Company either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof without
(i)
satisfying the requirements set forth herein or (ii) the prior written consent
of the Purchaser, then the Purchaser shall have the right to terminate this
Agreement as set forth in Section 10.02, without any payment of any penalty
or
damages and without any liability whatsoever to the Company (other than with
respect to accrued but unpaid Servicing Fees and Servicing Advances remaining
unpaid) or any third party.
ARTICLE
IX
DEFAULT
Section
9.01 Events
of Default.
In
case
one or more of the following Events of Default by the Company shall occur
and be
continuing, that is to say:
(i)
any
failure by the Company to remit to the Purchaser any payment required to
be made
under the terms of this Agreement which continues unremedied for a period
of two
Business Days after the earlier of the date upon which written notice of
such
failure, requiring the same to be remedied, shall have been given to the
Company
by the Purchaser or the date upon which such non-payment is discovered by
Company; or
(ii)
failure on the part of the Company duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Company
set
forth in this Agreement which continues unremedied for a period of thirty
days
(except that such number of days shall be fifteen in the case of a failure
to
pay any premium for any insurance policy required to be maintained under
this
Agreement) after the date on which written notice of such failure, requiring
the
same to be remedied, shall have been given to the Company by the Purchaser;
or
(iii)
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, 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 Company and such decree or order
shall have remained in force undischarged or unstayed for a period of sixty
days; or
(iv)
the
Company shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Company
or
of or relating to all or substantially all of its property; or
(v)
the
Company shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi)
Company ceases to be approved by both FNMA and FHLMC as a mortgage loan Company
and Company for more than thirty days; or
(vii)
the
Company attempts to assign its right to servicing compensation hereunder
or the
Company attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its
duties
hereunder or any portion thereof; or
(viii)
the Company ceases to be (a) licensed to service first lien residential mortgage
loans in any jurisdiction in which a Mortgaged Property is located and such
licensing is required, and (b) qualified to transact business in any
jurisdiction where it is currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Company's ability
to
perform its obligations hereunder; or
(ix)
the
Company fails to meet the eligibility criteria set forth in the last sentence
of
Section 8.02.
Then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Company may, in addition
to
whatever rights the Purchaser may have under Sections 3.03 and 8.01 and at
law
or equity or to damages, including injunctive relief and specific performance,
terminate all the rights and obligations of the Company under this Agreement
and
in and to the Mortgage Loans and the proceeds thereof without compensating
the
Company for the same. On or after the receipt by the Company of such written
notice, all authority and power of the Company under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested
in
the successor appointed pursuant to Section 11.01. Upon written request from
the
Purchaser, the Company shall prepare, execute and deliver, any and all documents
and other instruments, place in such successor's possession all Mortgage
Files,
and do or accomplish all other acts or things necessary or appropriate to
effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise, at the Company's sole expense. The Company agrees to cooperate
with
the Purchaser and such successor in effecting the termination of the Company'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 Company to the Custodial Account or
Escrow
Account or thereafter received with respect to the Mortgage Loans or any
REO
Property.
Section
9.02 Waiver
of Defaults.
The
Purchaser may waive only by written notice any default by the Company in
the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event
of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent
or
other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
ARTICLE
X
TERMINATION
Section
10.01 Termination.
The
respective obligations and responsibilities of the Company shall terminate
upon:
(i) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan or the disposition of all REO
Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Company and the Purchaser in writing; or (iii) termination
with
or without cause under the terms of this Agreement.
Section
10.02 Termination
Without Cause.
The
Purchaser may, at its sole option, terminate any rights the Company may have
hereunder, without cause, upon no less than 90 days written notice. Any such
notice of termination shall be in writing and delivered to the Company as
provided in Section 11.05 of this Agreement. In the event of such termination,
the Purchaser agrees to pay, as liquidated damages, a sum equal to three
percent
(3.0%) of the aggregate unpaid principal balance of the Mortgage
Loans.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Successor
to the Company.
Prior
to
termination of Company's responsibilities and duties under this Agreement
pursuant to Sections 4.13, 8.04, 9.01, 10.01 (ii) or (iii) or 10.02, the
Purchaser shall (i) succeed to and assume all of the Company's responsibilities,
rights, duties and obligations under this Agreement, or (ii) appoint a successor
having the characteristics set forth in Section 8.02 hereof and which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Company under this Agreement prior to the termination
of
Company's responsibilities, duties and liabilities under this Agreement.
In
connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as the Purchaser and such successor shall agree. In the event that
the
Company's duties, responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned Sections, the Company shall
discharge such duties and responsibilities during the period from the date
it
acquires knowledge of such termination until the effective date thereof with
the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The Company
shall
be compensated in accordance with this Agreement up until the effective date
of
its termination or resignation. The resignation or removal of Company pursuant
to the aforementioned Sections shall not become effective until a successor
shall be appointed pursuant to this Section and shall in no event relieve
the
Company of the representations and warranties made pursuant to Sections 3.01,
3.02 and 3.03 and the remedies available to the Purchaser thereunder and
under
Section 8.01, it being understood and agreed that the provisions of such
Sections 3.01, 3.02, 3.03 and 8.01 shall be applicable to the Company
notwithstanding any such resignation or termination of the Company, or the
termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Company and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Company, with
like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Company or this Agreement pursuant to Section 4.13, 8.04,
9.01, 10.01, or 10.02 shall not affect any claims that the Purchaser may
have
against the Company arising prior to any such termination or
resignation.
The
Company shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Mortgage Files and related documents
and
statements held by it hereunder and the Company shall account for all funds.
The
Company shall execute and deliver such instruments and do such other things
all
as may reasonably be required to more fully and definitely vest and confirm
in
the successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Company. The successor shall make arrangements as it may
deem
appropriate to reimburse the Company for unrecovered Servicing Advances which
the successor retains hereunder and which would otherwise have been recovered
by
the Company pursuant to this Agreement but for the appointment of the successor
Company.
Upon
a
successor's acceptance of appointment as such, the Company shall notify by
mail
the Purchaser of such appointment.
Section
11.02 Amendment.
This
Agreement and the related Term Sheet may be amended from time to time by
the
Company and the Purchaser only by written agreement signed by the Company
and
the Purchaser.
Section
11.03 Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any 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 Company at the Company's
expense on direction of the Purchaser accompanied by an opinion of counsel
to
the effect that such recordation materially and beneficially affects the
interest of the Purchaser or is necessary for the administration or servicing
of
the Mortgage Loans.
Section
11.04 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York except to the extent preempted by Federal law. The
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws.
Section
11.05 Notices.
Any
demands, notices or other communications permitted or required hereunder
shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or certified mail, return receipt requested, or transmitted by
telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
(i)
if
to the
Company:
Chevy
Chase Bank, F.S.B.
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With
copy
to:
▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq.
Deputy
General Counsel
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
and:
▇▇▇▇▇
▇▇▇▇▇
Loan
Servicing Manager
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(ii)
if
to the
Purchaser:
EMC
Mortgage Corporation
Mac
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇
with
copy
to: EMC Mortgage Corporation, General Counsel
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
Section
11.06 Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement and the related Term
Sheet which is prohibited or which is held to be void or unenforceable shall
be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction
shall
be ineffective, as to such jurisdiction, to the extent of such prohibition
or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any
provision hereof. If the invalidity of any part, provision, representation
or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate,
in good
faith, to develop a structure the economic effect of which is nearly as possible
the same as the economic effect of this Agreement without regard to such
invalidity.
Section
11.07 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
11.08 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i)
the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(ii)
accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii)
references
herein to "Articles", "Sections", Subsections", "Paragraphs", and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv)
a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v)
the
words
"herein", "hereof ", "hereunder" and other words of similar import refer
to this
Agreement as a whole and not to any particular provision;
(vi)
the
term
"include" or "including" shall mean without limitation by reason of enumeration;
and
(viii)
headings
of the Articles and Sections in this Agreement are for reference purposes
only
and shall not be deemed to have any substantive effect.
Section
11.09 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may
be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
11.10 Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party, in addition to consumer information some of
which
information may be deemed confidential pursuant to the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act (Pub. L. 106-102).
Each
party agrees to keep all such non-public information strictly confidential
(and
shall require any third party which receives any such confidential information
to keep such information confidential), and to use all such information solely
in order to effectuate the purpose of the Agreement, provided that each party
may provide confidential information to its employees, agents and affiliates
who
have a need to know such information in order to effectuate the transaction,
provided further that such information is identified as confidential non-public
information. In addition, confidential information may be provided to a
regulatory authority with supervisory power over Purchaser, provided such
information is identified as confidential non-public information.
Section
11.11 Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at
the
Company’s expense in the event recordation is either necessary under applicable
law or requested by the Purchaser at its sole option.
Section
11.12 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Company, to assign,
in whole or in part, its interest under this Agreement with respect to some
or
all of the Mortgage Loans, and designate any person to exercise any rights
of
the Purchaser hereunder, by executing an Assignment and Assumption Agreement
substantially in the form of Exhibit D hereto and the assignee or designee
shall
accede to the rights and obligations hereunder of the Purchaser with respect
to
such Mortgage Loans. All references to the Purchaser in this Agreement shall
be
deemed to include its assignee or designee. However, in no event shall there
be
more than three (3) Persons at any given time having the status of "Purchaser"
hereunder.
Section
11.13 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership
or
joint venture between the parties hereto and the services of the Company
shall
be rendered as an independent contractor and not as agent for
Purchaser.
Section
11.14 Execution:
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.04, this Agreement shall inure
to
the benefit of and be binding upon the Company and the Purchaser and their
respective successors and assigns.
Section
11.15 Entire
Agreement.
The
Company acknowledges that no representations, agreements or promises were
made
to the Company by the Purchaser or any of its employees other than those
representations, agreements or promises specifically contained herein or
in the
Confirmation. This Agreement and the related Term Sheet sets forth the entire
understanding between the parties hereto and shall be binding upon all
successors of both parties. In the event of any inconsistency between the
Confirmation and this Agreement and the related Term Sheet, this Agreement
and
the related Term Sheet shall control.
Section
11.16. No
Solicitation.
From
and
after the Closing Date, the Company agrees that it will not take any action
or
permit or cause any action to be taken by any of its agents or affiliates,
or by
any independent contractors on the Company's behalf, to personally, by telephone
or mail, solicit the borrower or obligor under any Mortgage Loan to refinance
the Mortgage Loan, in whole or in part, without the prior written consent
of the
Purchaser. Notwithstanding the foregoing, it is understood and agreed that
promotions undertaken by the Company or any affiliate of the Company which
are
directed to the general public at large, or segments thereof, provided that
no
segment shall consist primarily of the Mortgage Loans, including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 11.16. This Section 11.16 shall not be deemed to preclude
the
Company or any of its affiliates from soliciting any Mortgagor for any other
financial products or services.
Section
11.17. Closing.
The
closing for the purchase and sale of the Mortgage Loans shall take place
on the
related Closing Date. The closing shall be either: by telephone, confirmed
by
letter or wire as the parties shall agree, or conducted in person, at such
place
as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on the related Closing Date
shall
be subject to each of the following conditions:
(a) at
least
one (1) Business Day prior to the related Closing Date, the Company shall
deliver to the Purchaser a magnetic diskette, or transmit by modem, a listing
on
a loan-level basis of the information contained in the related Mortgage Loan
Schedule attached to the related Term Sheet;
(b) all
of
the representations and warranties of the Company and Company under this
Agreement and the related Term Sheet shall be materially true and correct
as of
the related Closing Date and no event shall have occurred which, with notice
or
the passage of time, would constitute a material default under this Agreement
or
the related Term Sheet;
(c) the
Purchaser shall have received, or the Purchaser's attorneys shall have received
in escrow, all documents required pursuant to this Agreement and the related
Term Sheet, an opinion of counsel and an officer's certificate, all in such
forms as are agreed upon and acceptable to the Purchaser, duly executed by
all
signatories other than the Purchaser as required pursuant to the terms of
this
Agreement and the related Term Sheet;
(d) the
Company shall have delivered and released to the Purchaser (or its designee)
on
or prior to the related Closing Date all documents required pursuant to the
terms of this Agreement and the related Term Sheet; and
(e) all
other
terms and conditions of this Agreement, the related Term Sheet and the
Confirmation shall have been materially complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Company on the
related Closing Date the Purchase Price, plus accrued interest pursuant to
Section 2.02 of this Agreement and the related Term Sheet, by wire transfer
of
immediately available funds to the account designated by the
Company.
Section
11.18. Cooperation
of Company with a Reconstitution.
The
Company and the Purchaser agree that with respect to some or all of the Mortgage
Loans, on or after the related Closing Date, on one or more dates (each a
"Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect
a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then
subject to this Agreement and the related Term Sheet, without recourse,
to:
(a)
one or
more third party purchasers in one or more in whole loan transfers (each,
a
"Whole Loan Transfer"); or
(b) one
or
more trusts or other entities to be formed as part of one or more pass-through
transfers (each, a "Pass-Through Transfer");
however,
in no event shall there be more than three (3) persons at any given time
having
the status of "Purchaser" hereunder.
The
Company agrees to execute in connection with any agreements between the
Purchaser and the Company in connection with a Whole Loan Transfer, a Company's
warranties and servicing agreement or a participation and servicing agreement
or
similar agreement in form and substance reasonably acceptable to the parties,
and in connection with a Pass-Through Transfer, a pooling and servicing
agreement in form and substance reasonably acceptable to the parties,
(collectively the agreements referred to herein are designated, the
"Reconstitution Agreements"). It is understood that any such Reconstitution
Agreements will not contain any greater obligations on the part of Company
than
are contained in this Agreement and the related Term Sheet.
With
respect to each Whole Loan Transfer and each Pass-Through Transfer entered
into
by the Purchaser, the Company agrees (1) to cooperate fully with the Purchaser
and any prospective purchaser with respect to all reasonable requests and
due
diligence procedures; (2) to execute, deliver and perform all Reconstitution
Agreements required by the Purchaser; (3) to restate the representations
and
warranties set forth in this Agreement (provided that with respect to those
representations and warranties set forth in Section 3.02, the Company shall
only
restate those representations and warranties that relate in any way to the
Mortgage Loan (or any set of facts with respect thereto) as of origination
and
any representations and warranties that relate to the servicing of such Mortgage
Loan as of the settlement or closing date in connection with such Reconstitution
(each, a "Reconstitution Date"). In that connection, the Company shall provide
to such Company or issuer, as the case may be, and any other participants
in
such Reconstitution: (i) any and all information and appropriate verification
of
information which may be reasonably available to the Company, whether through
letters of its auditors and counsel or otherwise, as the Purchaser or any
such
other participant shall request upon reasonable demand; and (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Company
as are
reasonably agreed upon by the Company and the Purchaser or any such other
participant. The Purchaser shall be responsible for the costs relating to
the
delivery of such information.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall
remain
subject to, and serviced in accordance with the terms of, this Agreement
and the
related Term Sheet, and with respect thereto this Agreement and the related
Term
Sheet shall remain in full force and effect.
IN
WITNESS WHEREOF, the Company and the Purchaser have caused their names to
be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
|
EMC
MORTGAGE CORPORATION
Purchaser
|
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| |
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| By: | ||
| Name: |
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
|
| Title: |
Attorney
in Fact
|
|
|
CHEVY
CHASE BANK, F.S.B.
Company
|
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| |
|
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| By: | ||
| Name: |
|
|
| Title: | ||
EXHIBIT
A
CONTENTS
OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser,
and
which shall be retained by the Company in the Servicing File or delivered
to the
Purchaser or its designee pursuant to Sections 2.04 and 2.05 of the Purchase,
Warranties and Servicing Agreement.
1.
The
original Mortgage Note endorsed "Pay to the order of
____________________________________________________, without recourse,"
and
signed in the name of the Company by an authorized officer, with all intervening
endorsements showing a complete chain of title from the originator to the
Company, together with any applicable riders. If the Mortgage Loan was acquired
by the Company in a merger, the endorsement must be by "[Company], successor
by
merger to the [name of predecessor]". If the Mortgage Loan was acquired or
originated by the Company while doing business under another name, the
endorsement must be by "[Company] formerly known as [previous name]". In
the
event that the original Mortgage Note is lost, a lost note affidavit may
be
provided.
2.
The
original Mortgage (together with a standard adjustable rate mortgage rider)
with
evidence of recording thereon, or a copy thereof certified by the public
recording office in which such mortgage has been recorded or, if the original
Mortgage has not been returned from the applicable public recording office,
a
true certified copy, certified by the Company.
3.
The
original or certified copy, certified by the Company, of the Primary Mortgage
Insurance Policy, if required.
4. At
Purchaser’s option, the Company shall either deliver (i) the original
Assignment, from the Company to _____________________________________, or
in
accordance with Purchaser's instructions, which assignment shall, but for
any
blanks requested by Purchaser, be in form and substance acceptable for
recording; or (ii) if the Assignment of Mortgage is issued in accordance
with
MERS requirements, Company shall cause each Mortgage Loan to be registered
with
MERS in the name of Purchaser (or as otherwise directed by Purchaser). If
an
Assignment of Mortgage is issued in accordance with (i) above, and if the
Mortgage Loan was acquired or originated by the Company while doing business
under another name, the Assignment must be by "[Company] formerly known as
[previous name]".
5. The
original policy of title insurance, including riders and endorsements thereto,
or if the policy has not yet been issued, a written commitment or interim
binder
or preliminary report of title issued by the title insurance or escrow
company.
6. Originals
of all recorded intervening Assignments, or copies thereof, certified by
the
public recording office in which such Assignments have been recorded showing
a
complete chain of title from the originator to the Company, with evidence
of
recording thereon, or a copy thereof certified by the public recording office
in
which such Assignment has been recorded or, if the original Assignment has
not
been returned from the applicable public recording office, a true certified
copy, certified by the Company.
7. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the Company.
8. If
the
Mortgage Note or Mortgage or any other material document or instrument relating
to the Mortgage Loan has been signed by a person on behalf of the Mortgagor,
the
original or copy of power of attorney or other instrument that authorized
and
empowered such person to sign bearing evidence that such instrument has been
recorded, if so required in the appropriate jurisdiction where the Mortgaged
Property is located, or a copy thereof certified by the public recording
office
in which such instrument has been recorded or, if the original instrument
has
not been returned from the applicable public recording office, a true certified
copy, certified by the Company.
9. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
10.
Residential loan application.
11. Uniform
underwriter and transmittal summary (FNMA Form 1008) or reasonable
equivalent.
12. Credit
report on the mortgagor.
13. Business
credit report, if applicable.
14. Residential
appraisal report and attachments thereto.
15. The
original of any guarantee executed in connection with the Mortgage
Note.
16. Verification
of employment and income except for Mortgage Loans originated under a Limited
Documentation Program, all in accordance with Company's underwriting
guidelines.
17. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
Company's underwriting guidelines.
18. Photograph
of the Mortgaged Property (may be part of appraisal).
19. Survey
of
the Mortgaged Property, if any.
20. Sales
contract, if applicable.
21. If
available, termite report, structural engineer’s report, water portability and
septic certification.
22. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
23. Name
affidavit, if applicable.
Notwithstanding
anything to the contrary herein, Company may provide one certificate for
all of
the Mortgage Loans indicating that the documents were delivered for
recording.
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
To:
Chevy
Chase Bank, F.S.B.
_____________________
_____________________
(the
"Depository")
As
"Company" under the Purchase, Warranties and Servicing Agreement, dated as
of
July 1, 2001, Adjustable Rate Mortgage Loans (the "Agreement"), we hereby
authorize and request you to establish an account, as a Custodial Account
pursuant to Section 4.04 of the Agreement, to be designated as "Chevy Chase
Bank, F.S.B., in trust for EMC Mortgage Corporation". All deposits in the
account shall be subject to withdrawal therefrom by order signed by the Company.
This letter is submitted to you in duplicate. Please execute and return one
original to us.
|
CHEVY
CHASE BANK, F.S.B.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
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.
|
CHEVY
CHASE BANK, F.S.B.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
To:
Chevy
Chase Bank, F.S.B.
_____________________
_____________________
(the
"Depository")
As
“Company” under the Purchase Warranties and Servicing Agreement, dated as of
July 1, 2001, Adjustable Rate Mortgage Loans (the "Agreement"), we hereby
authorize and request you to establish an account, as an Escrow Account pursuant
to Section 4.06 of the Agreement, to be designated as " Chevy Chase Bank,
F.S.B., in trust for EMC Mortgage Corporation, and various Mortgagors." All
deposits in the account shall be subject to withdrawal therefrom by order
signed
by the Company. This letter is submitted to you in duplicate. Please execute
and
return one original to us.
|
CHEVY
CHASE BANK, F.S.B.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
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.
|
CHEVY
CHASE BANK, F.S.B.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
D
FORM
OF
ASSIGNMENT AND ASSUMPTION
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ___________________, between
__________________, a _____________________ corporation("Assignor") and
_____________________, a __________________ corporation
("Assignee"):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as Purchaser, in, to and under (a) those
certain
Mortgage Loans listed on Exhibit A attached hereto (the "Mortgage Loans")
and
(b) that certain Purchase, Warranties and Servicing Agreement, Adjustable
Rate
Mortgage Loans (the "Purchase, Warranties and Servicing Agreement"), dated
as of
July 1, 2001 by and among EMC Mortgage Corporation ("Purchaser"), and Chevy
Chase Bank, F.S.B. (the "Company") with respect to the Mortgage
Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and all obligations of
the
Assignor with respect to any mortgage loans subject to the Purchase, Warranties
and Servicing Agreement which are not the Mortgage Loans set forth on Exhibit
A
attached hereto and are not the subject of this Assignment and Assumption
Agreement.
2.
The
assignor warrants and represents to, and covenants with, the Assignee
that:
a. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b. The
Assignor has not received notice or, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Company with respect to
the
Purchase, Warranties and Servicing Agreement or the Mortgage Loans;
c. The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Purchase, Warranties and Servicing
Agreement or the Mortgage Loans, including without limitation the transfer
of
the servicing obligations under the Purchase, Warranties and Servicing
Agreement. The Assignor has no knowledge of, and has not received notice
of, any
waivers under or amendments or other modifications of, or assignments of
rights
or obligations under or defaults under, the Purchase, Warranties and Servicing
Agreement, or the Mortgage Loans; and
d. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or
accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
by
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the "1933 Act") or which would render
the disposition of the Mortgage Loans a violation of Section 5 of the 1933
Act
or require registration pursuant thereto.
3. The
Assignee warrants and represents to, and covenants with, the Assignor and
the
Company that:
a. The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
b. The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment and Assumption Agreement, and to consummate the
transactions set forth herein. The execution, delivery and performance of
the
Assignee of this Assignment and Assumption Agreement, and the consummation
by it
of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Assignee. This Assignment and Assumption
Agreement has been duly executed and delivered by the Assignee and constitutes
the valid and legally binding obligation of the Assignee enforceable against
the
Assignee in accordance with its respective terms;
c. To
the
best of Assignee's knowledge, no material consent, approval, order or
authorization of, or declaration, filing or registration with, any governmental
entity is required to be obtained or made by the Assignee in connection with
the
execution, delivery or performance by the Assignee of this Assignment and
Assumption Agreement, or the consummation by it of the transactions contemplated
hereby;
d. The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants
and
conditions of the Purchase, Warranties and Servicing Agreement and the Mortgage
Loans, and from and after the date hereof, the Assignee assumes for the benefit
of each of the Company and the Assignor all of the Assignor's obligations
as
Purchaser thereunder, with respect to the Mortgage Loans;
e. The
Assignee understands that the Mortgage Loans have not been registered under
the
1933 Act or the securities laws of any state;
f.
The
purchase price being paid by the Assignee for the Mortgage Loans is in excess
of
$250,000 and will be paid by cash remittance of the full purchase price within
sixty (60) days of the sale;
g. The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person;
h. The
Assignee considers itself a substantial, sophisticated institutional investor
having such knowledge and financial and business matters that it is capable
of
evaluating the merits and the risks of investment in the Mortgage
Loans;
i. The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Company;
j. Neither
the Assignee nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, an interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or
accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the 1933 Act or which would render the disposition of the Mortgage
Loans a violation of Section 5 of the 1933 Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize any
person
to act, in such manner with respect to the Mortgage Loans; and
k.
Either: (1) the Assignee is not an employee benefit plan ("Plan") within
the
meaning of section 3(3) of the Employee Retirement Income Security Act of
1974,
as amended ("ERISA") or a plan (also "Plan") within the meaning of section
4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and the Assignee
is
not directly or indirectly purchasing the Mortgage Loans on behalf of,
investment manager of, as named fiduciary of, as Trustee of, or with assets
of,
a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not result
in
a prohibited transaction under section 406 of ERISA or section 4975 of the
Code.
Distributions
shall be made by wire transfer of immediately available funds to
_____________________________
for
the
account of _________________________________________
account
number ___________________________________________________. Applicable
statements should be mailed to ____________________
_____________________________________________________________.
Any
new
loan number assigned to a Mortgage Loan by the Assignee shall be provided
to the
Company at the following address: Chevy Chase Bank, F.S.B., ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: _______________.
In
addition, if Assignee has changed its document custodian from the previous
custodian, such new custodian’s name, address and contact information shall be
provided to the Company at the aforementioned address.
The
Assignor's address for purposes for all notices and correspondence related
to
the Mortgage Loans and this Agreement is:
| Attention: _________________ |
IN
WITNESS WHEREOF, the parties have caused this Assignment and Assumption to
be
executed by their duly authorized officers as of the date first above
written.
|
Assignor
|
Assignee
|
|||
|
By:
|
By:
|
|||
|
Its:
|
Its:
|
|||
|
Tax
Payer Identification No.:
|
Tax
Payer Identification No.:
|
|||
Acknowledged:
Chevy
Chase Bank, F.S.B.
By:___________________________
Its:__________________________
EXHIBIT
E
RESERVED
EXHIBIT
F
RESERVED
EXHIBIT
G
REQUEST
FOR RELEASE/RETURN OF DOCUMENTS
To
Custodian/Name:
Address:
Date:
In
connection with the administration of the pool of mortgages held by you in
custody for _______________ (“Owner”), the undersigned (the “Company”) requests
the release of the mortgage documents for the mortgage described below for
the
reason indicated.
Property
address:
Pool
number:
Lender
loan number:
Original
Mortgage Amount………………………………….$
Date
of
Original Mortgage…………………………………..
Interest
Rate………………………………………………………
Monthly
Fixed Installment (P&I)…………………………...
Paid
Through Date………………………………………………..
REASON
FOR REQUESTING DOCUMENTS (Check one of the items below):
____
On
__________ (date), the above captioned mortgage loan was paid in full or
the
Company has been notified that payment in full has been or will be escrowed.
The
Company hereby certifies that all amounts with respect to this loan which
are
required to be paid have been or will be deposited in the Custodial Account
as
required.
____
The
above
captioned loan is being placed in foreclosure and the original documents
are
required to proceed with the foreclosure action. The Company hereby certifies
that the documents will be returned to the Owner in the event of
reinstatement.
____
Other
(explain)
_________________________________________________
_________________________________________________
TO
CUSTODIAN: PLEASE ACKNOWLEDGE RELEASE OF THE DOCUMENTS BY YOUR
SIGNATURE.
Lender
Number: 149020004
Lender
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Telephone No: (▇▇▇)
▇▇▇-▇▇▇▇
Acknowledged:
|
By
Custodian:
|
By
Lender:
|
||||
|
CHEVY
CHASE BANK, F.S.B.
|
|||||
|
Authorized
Signature
|
Authorized
Signature
|
||||
|
Name:
|
Name:
|
||||
|
Date:
|
Date:
|
||||
TO
CUSTODIAN: PLEASE ACKNOWLEDGE RETURN OF THE DOCUMENTS BY YOUR
SIGNATURE.
Acknowledged:
|
By
Custodian:
|
Reason
For Returning Documents (check one):
|
|||||
|
|
Loan
was reinstated
|
|||||
|
Authorized
Signature
|
||||||
|
Name:
|
||||||
|
Date:
|
|
Other:
(Explain)
|
||||
EXHIBIT
H
COMPANY’S
UNDERWRITING GUIDELINES
EXHIBIT
I
TERM
SHEET
This
TERM
SHEET (the "Term Sheet") dated _____________, between and Chevy Chase Bank,
F.S.B., a federal savings bank, located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ (the “Company”) and EMC Mortgage Corporation, a Delaware corporation,
located at Mac ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇▇▇ (the "Purchaser") is made pursuant to the terms and conditions of that
certain Purchase, Warranties and Servicing Agreement (the "Agreement") dated
as
of July 1, 2001, between the Company and the Purchaser, the provisions of
which
are incorporated herein as if set forth in full herein, as such terms and
conditions may be modified or supplemented hereby. All initially capitalized
terms used herein unless otherwise defined shall have the meanings ascribed
thereto in the Agreement.
The
Purchaser hereby purchases from the Company and the Company hereby sells
to the
Purchaser, all of the Company’s right, title and interest in and to the Mortgage
Loans described on the Mortgage Loan Schedule annexed hereto as Schedule
I,
pursuant to and in accordance with the terms and conditions set forth in
the
Agreement, as same may be supplemented or modified hereby. Hereinafter, the
Company shall service the Mortgage Loans for the benefit of the Purchaser
and
all subsequent transferees of the Mortgage Loans pursuant to and in accordance
with the terms and conditions set forth in the Agreement.
1.
Definitions
For
purposes of the Mortgage Loans to be sold pursuant to this Term Sheet, the
following terms shall have the following meanings:
Aggregate
Principal Balance
(as
of
the Cut-Off Date):
Closing
Date:
Custodian:
Cut-off
Date:
Initial
Weighted Average
Mortgage
Loan Remittance Rate:
Mortgage
Loan:
Purchase
Price Percentage:
Servicing
Fee Rate:
Additional
Closing Conditions:
In
addition to the conditions specified in the Agreement, the obligation of
each of
the Company and the Purchaser is subject to the fulfillment, on or prior
to the
applicable Closing Date, of the following additional conditions:
Additional
Loan Documents:
In
addition to the contents of the Mortgage File specified in the Agreement,
the
following documents shall be delivered with respect to the Mortgage Loans:
[Additional]
[Modification] of Representations and Warranties:
[In
addition to the representations and warranties set forth in the Agreement,
as of
the date hereof, the Company makes the following additional representations
and
warranties with respect to the Mortgage Loans: [None]. [Notwithstanding anything
to the contrary set forth in the Agreement, with respect to each Mortgage
Loan
to be sold on the Closing Date, the representation and warranty set forth
in
Section ______ of the Agreement shall be modified to read as
follows:]
Except
as
modified herein, Section ______ of the Agreement shall remain in full force
and
effect as of the date hereof.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective duly authorized officers as of the date first above
written.
|
CHEVY
CHASE BANK, F.S.B.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
EMC
MORTGAGE CORPORATION
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
AMENDMENT
NO. 1 TO PURCHASE, WARRANTIES AND SERVICING
AGREEMENT
THIS
AMENDMENT NO. 1, effective as of January 13, 2003, amends the Purchase,
Warranties and Servicing Agreement by and between EMC Mortgage Corporation
(the
“Purchaser”) and Chevy Chase Bank, F.S.B. (the “Company”), previously entered
into as of July 1, 2002 (the “Agreement”).
RECITALS
WHEREAS,
the Company sells to the Purchaser, and the Purchaser purchases from the
Company, from time to time, pursuant to the Agreement, certain conventional
residential Mortgage Loans, including all Servicing Rights related thereto;
and
WHEREAS,
in connection with future sales of Mortgage Loans to the Purchaser, the Company
and the Purchaser wish to amend the Agreement as set forth below.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
set forth and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Purchaser and the Company agree to
amend
the Agreement as follows:
1. Section
1.01 of the Agreement shall be amended as follows: (a) The definitions of
Cash-Out Refinancing and Rate/Term Refinancing shall be added.
“Cash-Out
Refinancing:
As
defined in the ▇▇▇▇▇▇ ▇▇▇ Guide under the heading Cash-Out Refinance.”
“Rate/Term
Refinancing:
As
defined in the ▇▇▇▇▇▇ Mae Guide under the heading Limited Cash-Out
Refinance.”
(b)
Item
(16) of the definition of “Mortgage
Loan Schedule”
shall
be revised as follows: “(16) a code indicating the purpose of the Mortgage Loan
(i.e., purchase, Cash-Out Refinancing, Rate/Term Refinance);”
2.
The second
sentence of Section 3.02 (h) of the Agreement shall be deleted in its entirety
and replaced with the following: “None
of the Mortgage Loans are (a) loans subject to 12 CFR Part 226.31, 12 CFR
Part
226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation implementing
TILA,
which implements the Home Ownership and Equity Protection Act of 1994, as
amended or (b) classified and/or defined as a “high cost”, “covered”, or
“predatory” loan under any other state, federal or local law or regulation or
ordinance, including, but not limited to, the States of Georgia or North
Carolina, or the City of New York.”
3.
All
other terms and conditions of the Agreement remain unchanged and in full
force
and effect.
4.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Addendum to be executed
and
delivered by their proper and duly authorized officers as of the day and
year
first above written.
| EMC Mortgage Corporation | Chevy Chase Bank, F.S.B. | |||
| BY: | BY: | |||
| NAME: | NAME: | |||
|
ITS:
(Title)
|
ITS:
(Title)
|
|||
AMENDMENT
NUMBER TWO
to
the
PURCHASE,
WARRANTIES AND SERVICING AGREEMENT
Dated
as
of February 1, 2006
between
EMC
MORTGAGE CORPORATION,
as
Purchaser
and
CHEVY
CHASE BANK, F.S.B,
as
Company
This
AMENDMENT NUMBER TWO (this “Amendment”) is made and entered into this 31st day
of January, 2006, by and between EMC Mortgage Corporation, a Delaware
corporation, as purchaser (the “Purchaser”) and Chevy Chase Bank, F.S.B., as
company (the “Company”) in connection with the Purchase, Warranties and
Servicing Agreement, dated as of July 1, 2001, between the above mentioned
parties (the “Agreement”). This Amendment is made pursuant to Section 11.02 of
the Agreement.
RECITALS
WHEREAS,
the
parties hereto have entered into the Agreement;
WHEREAS,
the Agreement provides that the parties thereto may enter into an amendment
to
the Agreement;
WHEREAS,
the parties hereto desire to amend the Agreement as set forth in this Amendment;
and
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1. Capitalized
terms used herein and not defined herein shall have the meanings assigned
to
such terms in the Agreement or Regulation AB as applicable.
2. Article
I
of the Agreement is hereby amended effective as of the date hereof by adding
the
following definitions to Section 1.01:
Commission
or SEC:
The
Securities and Exchange Commission.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction and
as
identified in writing to the Company as the depositor for such Securitization
Transaction.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Master
Servicer:
With
respect to any Securitization Transaction, the “master servicer,” if any,
identified in the related transaction documents and as identified in writing
to
the Company as the depositor for such Securitization Transaction.
Nonrecoverable
Advance:
Any
portion of a Monthly Advance or Servicing Advance previously made or proposed
to
be made by the Company pursuant to this Agreement, that, in the good faith
judgment of the Company, will not or, in the case of a proposed advance,
would
not, be ultimately recoverable by it from the related Mortgagor or the related
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds or otherwise
with respect to the related Mortgage Loan.
Originator:
A bank,
savings and loan, or mortgage banker that creates a mortgage secured by a
borrower’s residential real property and sells such mortgage in the secondary
market.
Pass-Through
Transfer:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Prepayment
Charge:
Any
prepayment premium, penalty or charge payable by a Mortgagor in connection
with
any Principal Prepayment on a Mortgage Loan pursuant to the terms of the
related
Mortgage Note.
Qualified
Correspondent:
Any
Person from which the Company purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Company and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Company, in accordance with underwriting guidelines designated by the
Company (“Designated Guidelines”) or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as described in clause (i) above and were acquired by the Company within
180
days after origination; (iii) either (x) the Designated Guidelines were,
at the
time such Mortgage Loans were originated, used by the Company in origination
of
mortgage loans of the same type as the Mortgage Loans for the Company’s own
account or (y) the Designated Guidelines were, at the time such Mortgage
Loans
were underwritten, designated by the Company on a consistent basis for use
by
lenders in originating mortgage loans to be purchased by the Company; and
(iv)
the Company employed, at the time such Mortgage Loans were acquired by the
Company, pre-purchase or post-purchase quality assurance procedures (which
may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed
to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Company. For the avoidance of doubt,
a
“Qualified Correspondent” includes a “table broker” or mortgage lender that
originates loans underwritten and funded by the Company or an Affiliate of
the
Company.
Reconstitution
Agreement:
Any
servicing agreement relating to a Reconstitution.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as 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.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicing
Criteria:
As of
any date of determination, the “servicing criteria” set forth in Item 1122(d) of
Regulation AB, or any amendments thereto, a summary of the requirements of
which
as of the date hereof is attached hereto as Exhibit
M
for
convenience of reference only. In the event of a conflict or inconsistency
between the terms of Exhibit
M
and the
text of Item 1122(d) of Regulation AB, the text of Item 1122(d) of Regulation
AB
shall control (or those Servicing Criteria otherwise mutually agreed to by
the
Purchaser, the Company and any Person that will be responsible for signing
any
Sarbanes Certification with respect to a Securitization Transaction in response
to evolving interpretations of Regulation AB and incorporated into a revised
Exhibit
M).
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a Subservicer.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company, and shall not include a mortgage broker that does
not
fund loans.
3. Article
I
of the Agreement is hereby amended effective as of the date hereof by deleting
in its entirety the definition of Subservicer in Section 1.01 and replacing
it
with the following:
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB;
provided, however, that the term “Subservicer” shall not include any master
servicer, or any special servicer engaged at the request of a Depositor,
Purchaser or investor in a Securitization Transaction, nor any “back-up
servicer” or trustee performing servicing functions on behalf of a
Securitization Transaction.
4. Article
I
of the Agreement is hereby amended effective as of the date hereof by deleting
in its entirety the definition of Principal Prepayment in Section 1.01 and
replacing it with the following:
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan full or partial
which
is received in advance of its scheduled Due Date, including any Prepayment
Charge, and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
5. Article
III of the Agreement is hereby amended effective as of the date hereof by
revising Section 3.01(n) as follows (new text underlined):
(n) If
requested by the Purchaser, the
Company shall have delivered to the Purchaser the Company’s financial
statements, for its last two complete fiscal years. If so, all such financial
information fairly presents the pertinent results of operations and financial
position for the period identified and has been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the
periods involved, except as set forth in the notes thereto. There has been
no
change in the servicing
policies and procedures,
business, operations, financial condition, properties or assets of the Company
since the date of the Company’s financial information last provided to the
Purchaser that would have a material adverse effect on its ability to perform
its obligations under this Agreement and the related Term Sheet;
6. Article
III of the Agreement is hereby amended effective as of the date hereof by
adding
the following new Section 3.01(p):
(p) As
of the
date of each Pass-Through Transfer, and with respect to the representations
(1)-(5) only if the Company is a “servicer” within the meaning of Item
1108(a)(3) of Regulation AB, and with respect to representation (6) only
if the
Company meets the requirements for disclosure under Item 1117 of Regulation
AB,
and with respect to representation (7) only if the Company meets the
requirements for disclosure under Item 1119 of Regulation AB and except as
has
been otherwise disclosed to the Purchaser, any Master Servicer and any
Depositor: (1) no default or servicing related performance trigger has occurred
as to any other securitization due to any act or failure to act of the Company;
(2) no material noncompliance with applicable servicing criteria as to any
other
securitization has been disclosed or reported by the Company; (3) the Company
has not been terminated as Servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (4) no material changes to the Company’s
servicing policies and procedures for similar loans has occurred in the
preceding three years; (5) there are no aspects of the Company’s financial
condition that could have a material adverse impact on the performance by
the
Company of its obligations hereunder; (6) there are no legal proceedings
pending, or known to be contemplated by governmental authorities, against
the
Company that could be material to investors in the securities issued in such
Pass-Through Transfer; and (7) there are no affiliations, relationships or
transactions relating to the Company of a type that are described under Item
1119 of Regulation AB.
7. Article
III of the Agreement is hereby amended effective as of the date hereof by
adding
the following new Section 3.01(q):
(q) If
so
requested by the Purchaser or any Depositor on any date, the Company shall,
within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties, if any, set forth in Section
3.01(p) of this Section or, if any such representation and warranty is not
accurate as of the date of such request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
8. Article
III of the Agreement is hereby amended effective as of the date hereof by
adding
the following new Section 3.01(r):
(r) Notwithstanding
anything to the contrary in the Agreement, the Company shall (or shall cause
each Subservicer and Third-Party Originator to), provided that the Company
(and
each Subservicer and Third-Party Originator, as the case may be) meets the
disclosure requirements of Items 1117 and 1119 of Regulation AB, as the case
may
be, for such disclosure period (i) immediately notify the Purchaser, any
Master
Servicer and any Depositor in writing of (A) any legal proceedings pending,
or
known to be contemplated by governmental authorities against the Company,
any
Subservicer or any Third-Party Originator that could reasonably be expected
to
be material to investors in securities in such Securitization Transaction,
(B)
any known affiliations or relationships that develop following the closing
date
of a Pass-Through Transfer between the Company, any Subservicer or any
Third-Party Originator 9provided that the requesting party identify, in writing,
such parties by name) and any of the parties specified in clause (7) of
paragraph (p) of this Section (and any other transaction party identified
in
writing by the requesting party) with respect to such Pass-Through
Transfer, (C)
any
Event of Default under the terms of this Agreement or any Reconstitution
Agreement, (D) any merger, consolidation or sale of substantially all of the
assets of the Company, and (E) the Company’s entry into an agreement with a
Subservicer to perform or assist in the performance of any of the Company’s
obligations under this Agreement or any Reconstitution Agreement and (ii)
provide to the Purchaser and any Depositor a description of such proceedings,
affiliations or relationships.
All
notification pursuant to this Section 3.01(r), other than those pursuant
to
Section 3.01(r)(i)(A), should be sent to:
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Conduit Seller Approval Dept.
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
With
a
copy to:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇
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Attention:
Global Credit Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Notifications
pursuant to Section 3.01(r)(i)(A) should be sent to:
EMC
Mortgage Corporation
Two
Mac
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▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
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Attention:
Associate General Counsel for Loan Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
With
copies to:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇,
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Global Credit Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Conduit Seller Approval Dept.
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
9. Article
III of the Agreement is hereby amended effective as of the date hereof by
adding
the following new Section 3.01(s):
(s) As
a
condition to the succession to the Company or any Subservicer as Servicer
or
Subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Company or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Company or any Subservicer,
the Company shall provide to the Purchaser, any Master Servicer and any
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Purchaser, any Master
Servicer and any Depositor of such succession or appointment and (y) in writing
and in form and substance reasonably satisfactory to the Purchaser, any Master
Servicer and such Depositor and agreed to by the Company, all information
reasonably requested by the Purchaser, any Master Servicer or any Depositor
in
order to comply with its reporting obligation under Item 6.02 of Form 8-K
with
respect to any class of asset-backed securities.
10. Article
III of the Agreement is hereby amended effective as of the date hereof by
adding
the following new Section 3.02(tt):
With
respect to each Mortgage Loan, information regarding the borrower credit
files
related to such Mortgage Loan has been furnished to credit reporting agencies
in
compliance with the provisions of the Fair Credit Reporting Act and the
applicable implementing regulations.
11.
Article
IV of the Agreement is hereby amended effective as of the date hereof by
adding
the following after the second sentence of the first paragraph of Section
4.01:
In
addition, the Company shall furnish information regarding the borrower credit
files related to such Mortgage Loan to credit reporting agencies in compliance
with the provisions of the Fair Credit Reporting Act and the applicable
implementing regulations.
12. Article
IV of the Agreement is hereby amended effective as of the date hereof by
adding
this paragraph to the end of Section 4.02:
The
Company shall not waive any Prepayment Charge unless: (i) the enforceability
thereof shall have been limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally,
(ii) the enforcement thereof is illegal, or any local, state or federal agency
has threatened legal action if the prepayment penalty is enforced, (iii)
the
mortgage debt has been accelerated in connection with a foreclosure or other
involuntary payment or (iv) such waiver is standard and customary in servicing
similar Mortgage Loans and relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of the Company, maximize recovery
of total proceeds taking into account the value of such Prepayment Charge
and
the related Mortgage Loan.
13. Article
IV of the Agreement is hereby amended effective as of the date hereof by
revising the first paragraph of Section 4.03 by adding the following after
the
first sentence:
In
determining the delinquency status of any Mortgage Loan, the Company will
use
delinquency recognition policies as described to and approved by the Purchaser,
and shall revise these policies as requested by the Purchaser from time to
time.
14. Article
V
of the Agreement is hereby amended effective as of the date hereof by deleting
Section 5.02 in its entirety and replacing it with the following:
Section
5.02 Statements
to the Purchaser.
The
Company shall furnish to Purchaser an individual loan accounting report,
as of
the last Business Day of each month, in the Company's assigned loan number
order
to document Mortgage Loan payment activity on an individual Mortgage Loan
basis.
With respect to each month, the corresponding individual loan accounting
report
shall be received by the Purchaser no later than the fifth Business Day of
the
following month on a disk or tape or other computer-readable format in such
format as may be mutually agreed upon by both Purchaser and Company, and
no
later than the fifth Business Day of the following month in hard copy, and
shall
contain the following:
(i) with
respect to each Mortgage Loan and each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any prepayment
penalties or premiums, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with Section 4.04);
(ii) with
respect to each Mortgage Loan and each Monthly Payment, the amount of such
remittance allocable to interest;
(iii) with
respect to each Mortgage Loan, the amount of servicing compensation received
by
the Company during the prior distribution period;
(iv) the
Stated Principal Balance of each Mortgage Loan and the aggregate Stated
Principal Balance of all Mortgage Loans as of the first day of the distribution
period and the last day of the distribution period;
(v) with
respect to each Mortgage Loan, the current Mortgage Interest Rate;
(vi) with
respect to each Mortgage Loan, the aggregate amount of any Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and REO Disposition Proceeds
received during the prior distribution period;
(vii) with
respect to each Mortgage Loan, the amount of any Prepayment Interest Shortfalls
paid by the Company in accordance with Section 4.04(viii) during the prior
distribution period;
(viii) the
beginning and ending balances of the Custodial Account and Escrow
Account;
(ix) the
number of Mortgage Loans as of the first day of the distribution period and
the
last day of the distribution period;
(x) with
respect to each Mortgage Loan, the Stated Principal Balance of each Mortgage
Loan (a) delinquent as grouped in the following intervals through final
liquidation of such Mortgage Loan: 30 to 59 days, 60 to 89 days, 90 days
or
more; (b) as to which foreclosure has commenced; and (c) as to which REO
Property has been acquired;
(xi) with
respect to each Mortgage Loan, the amount and severity of any realized loss
following liquidation of such Mortgage Loan;
(xii) with
respect to each Mortgage Loan, and in the aggregate for all Mortgage Loans,
the
amount of any Monthly Advances made by the Company during the prior distribution
period;
(xiii) with
respect to each Mortgage Loan, a description of any Servicing Advances made
by
the Company with respect to such Mortgage Loan including the amount, terms
and
general purpose of such Servicing Advances, and the aggregate amount of
Servicing Advances for all Mortgage Loans during the prior distribution
period;
(xiv) with
respect to each Mortgage Loan, a description of any Nonrecoverable Advances
made
by the Company with respect to such Mortgage Loan including the amount, terms
and general purpose of such Nonrecoverable Advances, and the aggregate amount
of
Nonrecoverable Advances for all Mortgage Loans during the prior distribution
period;
(xv) with
respect to each Mortgage Loan, a description of any Monthly Advances, Servicing
Advances and Nonrecoverable Advances reimbursed to the Company with respect
to
such Mortgage Loan during the prior distribution period pursuant to Section
4.05, and the source of funds for such reimbursement, and the aggregate amount
of any Monthly Advances, Servicing Advances and Nonrecoverable Advances
reimbursed to the Company for all Mortgage Loans during the prior distribution
period pursuant to Section 4.05;
(xvi) with
respect to any Mortgage Loan, a description of any material modifications,
extensions or waivers to the terms, fees, penalties or payments of such Mortgage
Loan during the prior distribution period or that have cumulatively become
material over time;
(xvii) a
description of any material breach of a representation or warranty set forth
in
Section 3.01 or Section 3.02 herein or of any other breach of a covenant
or
condition contained herein and the status of any resolution of such
breach;
(xviii) with
respect to each Mortgage Loan, the Stated Principal Balance of any substitute
Mortgage Loan provided by the Company and the Stated Principal Balance of
any
Mortgage Loan that has been replaced by a substitute Mortgage Loan in accordance
with Section 3.03 herein;
(xix) with
respect to each Mortgage Loan, the Stated Principal Balance of any Mortgage
Loan
that has been repurchased by the Company in accordance with Section 3.03
herein.
In
addition, the Company shall provide to the Purchaser such other information
reasonably known or available to the Company that is related to Company’s
performance of such servicing functions and that is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121
of
Regulation AB, as amended from time to time. The Company shall also provide
a
monthly report, in the form of Exhibit
E
hereto,
or such other form as is mutually acceptable to the Company, the Purchaser
and
any Master Servicer, Exhibit
F
with
respect to defaulted mortgage loans and Exhibit
N,
with
respect to realized losses and gains, with each such report.
The
Company shall prepare and file any and all information statements or other
filings that any governmental taxing authority requires the Company to deliver
to such taxing authority or to the Purchaser pursuant to any applicable law
with
respect to the Mortgage Loans and the transactions contemplated hereby. In
addition, the Company shall provide Purchaser with such information concerning
the Mortgage Loans as is necessary for Purchaser to prepare its federal income
tax return as Purchaser may reasonably request from time to time.
15.
Article
V
of the Agreement is hereby amended effective as of the date hereof by deleting
the last paragraph of Section 5.03 in its entirety and replacing it with
the
following:
The
Company’s obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the last Monthly Payment due prior to the payment in full
of
the Mortgage Loans, or through the Remittance Date prior to the date on which
the Mortgaged Property liquidates (including Insurance Proceeds, proceeds
from
the sale of REO Property or Condemnation Proceeds) with respect to the Mortgage
Loan unless the Company deems such advance to be a Nonrecoverable Advance.
In
such event, the Company shall deliver to the purchaser an Officer’s Certificate
of the Company to the effect that an officer of the Company has reviewed
the
related Mortgage File and has made the reasonable determination that any
additional advances are Nonrecoverable Advances.
16.
Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.04 in its entirety and replacing it with the
following:
Section
6.04 Annual
Statement as to Compliance; Annual Certification.
(a) The
Company will deliver to the Purchaser and any Master Servicer, not later
than
March 1 of each calendar year beginning in 2007, an Officer’s Certificate
reasonably acceptable to the Purchaser (an “Annual Statement of Compliance”)
stating, as to the signatory thereof, that (i) a review of the servicing
activities of the Company during the preceding calendar year and of servicing
performance under this Agreement or other applicable servicing agreement
has
been made under such officers’ supervision and (ii) to the best of such
officers’ knowledge, based on such review, the Company has fulfilled all of its
servicing-related obligations under this Agreement or other applicable servicing
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 officer and the nature and status of cure provisions
thereof. Such Annual Statement of Compliance shall contain no restrictions
or
limitations on its use. Copies of such statement shall be provided by the
Company to the Purchaser upon request and by the Purchaser to any Person
identified as a prospective purchaser of the Mortgage Loans. In the event
that
the Company has delegated any servicing responsibilities with respect to
the
Mortgage Loans to a Subservicer, the Company shall deliver an officer’s
certificate (an “Annual Certification”) of the Subservicer as described above as
to each Subservicer as and when required with respect to the
Company.
(b) With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
by March 1 of each calendar year beginning in 2007, an officer of the Company
shall execute and deliver an Annual Certification to the Purchaser, any Master
Servicer and any related Depositor for the benefit of each such entity and
such
entity’s affiliates that are transaction parties and the officers, directors and
agents of any such entities that may rely on such Annual Certification in
the
fulfillment of their obligations with respect to Regulation AB, in the form
attached hereto as Exhibit
K.
In the
event that the Company has delegated any servicing responsibilities with
respect
to the Mortgage Loans to a Subservicer, the Company shall deliver an Annual
Certification of the Subservicer as described above as to each Subservicer
as
and when required with respect to the Company.
(c) If
the
Company cannot deliver the related Annual Statement of Compliance or Annual
Certification by March 1st
of such
year, the Purchaser, at its sole option, may permit a cure period for the
Company to deliver such Annual Statement of Compliance or Annual Certification,
but in no event later than March 10th of such year.
Failure
of the Company to timely comply with this Section 6.04 shall be deemed an
Event
of Default, automatically, without notice and without any cure period, unless
otherwise agreed to by the Purchaser as set forth in 6.04(c), and Purchaser
may,
in addition to whatever rights the Purchaser may have under Sections 3.03
and
8.01 and at law or equity or to damages, including injunctive relief and
specific performance, terminate all the rights and obligations of the Company
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Company except for compensation and rights arising
prior to such termination. Such termination shall be considered with cause
pursuant to Section 10.01 of this Agreement. This paragraph shall supersede
any
other provision in this Agreement or any other agreement to the
contrary.
17. Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.05 in its entirety and replacing it with the
following:
Section
6.05 [Reserved]
18. Article
VI of the Agreement is hereby amended effective as of the date hereof by
adding
the following new Section 6.07:
Section
6.07 Assessment
of Compliance with Servicing Criteria.
On
and
after January 1, 2006, the Company shall service and administer, and shall
cause
each Subservicer to Servicer or administer, the Mortgage Loans in accordance
with all applicable requirements of the Servicing Criteria.
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
the Company shall deliver to the Purchaser or its designee, any Master Servicer
and any Depositor on or before March 1 of each calendar year beginning in
2007,
a report (an “Assessment of Compliance”) reasonably satisfactory to the
Purchaser, any Master Servicer and any Depositor regarding the Company’s
assessment of compliance with the Servicing Criteria during the preceding
calendar year as required by Rules 13a-18 and 15d-18 of the Exchange Act
and
Item 1122 of Regulation AB or as otherwise required by the Master Servicer,
which as of the date hereof, require a report by an authorized officer of
the
Company that contains the following:
(a) A
statement by such officer of its responsibility for assessing compliance
with
the Servicing Criteria applicable to the Company;
(b) A
statement by such officer that such officer used the Servicing Criteria to
assess compliance with the Servicing Criteria applicable to the
Company;
(c) An
assessment by such officer of the Company’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a
whole
involving the Company, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Company’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Company, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Company, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on a
certification substantially in the form of Exhibit
M
hereto
delivered to the Purchaser concurrently with the execution of this
Agreement.
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
on or before March 1 of each calendar year beginning in 2007, the Company
shall
furnish to the Purchaser or its designee, any Master Servicer and any Depositor
a report (an “Attestation Report”) by a registered public accounting firm that
attests to, and reports on, the Assessment of Compliance made by the Company,
as
required by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b)
of
Regulation AB or as otherwise required by the Master Servicer, which Attestation
Report must be made in accordance with standards for attestation reports
issued
or adopted by the Public Company Accounting Oversight Board.
The
Company shall cause each Subservicer, and each Subcontractor determined by
the
Company pursuant to Section 11.19 to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Purchaser, any Master Servicer and any Depositor an assessment of compliance
and
accountants’ attestation as and when provided in Sections 6.07.
If
the
Company cannot deliver the related Assessment of Compliance or Attestation
Report by March 1st
of such
year, the Purchaser, at its sole option, may permit a cure period for the
Company to deliver such Assessment of Compliance or Attestation Report, but
in
no event later than March 10th of such year.
Failure
of the Company to timely comply with this Section 6.07 shall be deemed an
Event
of Default, automatically, without notice and without any cure period, unless
otherwise agreed to by the Purchaser as described herein, and Purchaser may,
in
addition to whatever rights the Purchaser may have under Sections 3.03 and
8.01
and at law or equity or to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Company under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Company except for compensation and rights arising prior
to
such termination. Such termination shall be considered with cause pursuant
to
Section 10.01 of this Agreement. This paragraph shall supersede any other
provision in this Agreement or any other agreement to the contrary.
Notwithstanding
anything in this Agreement to the contrary, the Company will only be required
to
deliver an Assessment of Compliance and Attestation Report when it is not
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB including Instruction 2 thereof upon prior written notice by
the
Purchaser that any Master Servicer has requested such information.
19. Article
VI of the Agreement is hereby amended effective as of the date hereof by
adding
the following new Section 6.08:
Section
6.08 Intent
of the Parties; Reasonableness.
The
Purchaser and the Company acknowledge and agree that a purpose of Sections
3.01(p), 5.02, 6.04, 6.07, 11.18, 11.19 and Exhibit J of this Agreement is
to
facilitate compliance by the Purchaser and any Depositor with the provisions
of
Regulation AB and related rules and regulations of the Commission. None of
the
Purchaser, any Master Servicer or any Depositor shall exercise its right
to
request or require delivery of information or other performance under these
provisions other than in good faith and as is reasonable, or for purposes
other
than compliance with the provisions of the Securities Act, the Exchange Act
and
the rules and regulations of the Commission thereunder that are applicable
to
any Securitization Transaction. The Company, the Purchaser, the Master Servicer
and any Depositor acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff or consensus among participants in
the
asset-backed securities markets, and agrees to negotiate in good faith with
the
Purchaser, Master Servicer or any Depositor, upon a request made in good
faith
regarding the Company’s delivery of information under these provisions on the
basis of evolving interpretations of Regulation AB. In connection with any
Pass-Through Transfer, the Company shall cooperate with the Purchaser to
deliver
to the Purchaser (including any of its assignees or designees that are parties
to the relevant transaction) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
and reasonable determination of the Purchaser, Master Servicer or any Depositor
to permit the Purchaser or such Depositor to comply with the provisions of
Regulation AB, together with such disclosures relating to the Company, any
Subservicer, any Third-Party Originator and the Mortgage Loans, or the servicing
of the Mortgage Loans, reasonably believed by the Purchaser or any Depositor
to
be necessary in order to effect such compliance.
20. Article
IX of the Agreement is hereby amended effective as of the date hereof by
deleting the first sentence of the last paragraph of Section 9.01 and replacing
it with the following (new text underlined):
Then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Company (except in the
case
of an Event of Default under clauses (iii), (iv) or (v) above, or
as
otherwise stated herein,
in
which case, automatically and without notice) may, in addition to whatever
rights the Purchaser or
Master Servicer
may have
under Sections 3.03 and 8.01 and at law or equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Company (and
if the Company is servicing any of the Mortgage Loans in a Securitization
Transaction, appoint a successor Servicer reasonably acceptable to any Master
Servicer for such Securitization Transaction)
under
this Agreement and in and to the Mortgage Loans and the proceeds thereof
without
compensating the Company for the same except for compensation and rights
arising
prior to such termination.
21. Article
IX of the Agreement is hereby amended effective as of the date hereof by
adding
the following at the end of the last paragraph of Section 9.01:
The
Company shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor, as applicable, for
all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of the
Company as Servicer for cause and the transfer of servicing of the Mortgage
Loans to a successor Servicer due to such termination for cause. The provisions
of this paragraph shall not limit whatever rights the Purchaser or any Depositor
may have under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such
as an
action for damages, specific performance or injunctive relief.
22. Article
XI of the Agreement is hereby amended effective as of the date hereof by
restating Section 11.18 in its entirety as follows:
Section
11.18. Cooperation
of Company with a Reconstitution.
The
Company and the Purchaser agree that with respect to some or all of the Mortgage
Loans, on or after the related Closing Date, on one or more dates (each a
"Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect
a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then
subject to this Agreement, without recourse, to:
(a) one
or
more third party purchasers in one or more in whole loan transfers (each,
a
"Whole Loan Transfer"); or
(b) one
or
more trusts or other entities to be formed as part of one or more Pass-Through
Transfers.
The
Company agrees to execute in connection with any agreements among the Purchaser,
the Company, and any Servicer in connection with a Whole Loan Transfer, an
Assignment, Assumption and Recognition Agreement substantially in the form
of
Exhibit
D
hereto,
or, at Purchaser’s request, a seller's warranties and servicing agreement or a
participation and servicing agreement or similar agreement in form and substance
reasonably acceptable to the parties (including the Company), and in connection
with a Pass-Through Transfer, a pooling and servicing agreement in form and
substance reasonably acceptable to the parties and the Company, (collectively
the agreements referred to herein are designated, the "Reconstitution
Agreements"). It is understood that any such Reconstitution Agreements will
not
contain any greater obligations on the part of Company than are contained
in
this Agreement. Notwithstanding anything to the contrary in this Section
11.18,
the Company agrees that it is required to perform the obligations described
in
Exhibit
J
hereto.
With
respect to each Whole Loan Transfer and each Pass-Through Transfer entered
into
by the Purchaser, the Company agrees (1) to cooperate fully with the Purchaser
and any prospective purchaser with respect to all reasonable requests and,
at
the Purchaser’s expense due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser subject to
the
limitations of this Section 11.18; and (3) to restate the representations
and
warranties set forth in this Agreement as of the settlement or closing date
in
connection with such Reconstitution (each, a "Reconstitution Date").
In
addition, the Company shall provide to such Servicer or issuer, as the case
may
be, and any other participants in such Reconstitution upon the Purchaser’s
request and subject to the limitations of this Section 11.18:
(i) any
and
all information and appropriate verification of information which may be
reasonably available to the Company, whether through letters of its auditors
and
counsel or otherwise, as the Purchaser or any such other participant shall
request upon reasonable demand;
(ii) such
additional representations, warranties, covenants, opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Company
as are reasonably agreed upon by the Company and the Purchaser or any such
other
participant;
(iii) within
5
Business Days after request by the Purchaser, the information with respect
to
the Company (as Originator) and each Third-Party Originator of the Mortgage
Loans as required under Item 1110(a) and (b) of Regulation AB, a summary
of the
requirements of which has of the date hereof is attached hereto as Exhibit
L
for
convenience of reference only. If requested by the Purchaser, this will include
information about the applicable credit-granting or underwriting
criteria;
(iv) within
5
Business Days after request by the Purchaser, the Company shall provide (or,
as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Company, if the Company is an originator of Mortgage
Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall
be
prepared by the Company (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
and (c) provided, however, that Seller shall not be required to provide Static
Pool Information with respect to mortgage loans originated prior to January
1,
2006 pursuant to Item 1105(f) of Regulation AB; provided, further, however
that
Seller shall provide such information if it becomes reasonably available
to
Seller. To the extent that there is reasonably available to the Company (or
Third-Party Originator) Static Pool Information with respect to more than
one
mortgage loan type, the Purchaser or any Depositor shall be entitled to specify
whether some or all of such information shall be provided pursuant to this
paragraph. The content and presentation of such Static Pool Information may
be
in the form customarily provided by the Company, and need not be customized
for
the Purchaser or any Depositor. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall be presented
in
increments no less frequently than quarterly over the life of the mortgage
loans
included in the vintage origination year or prior securitized pool. The most
recent periodic increment must be as of a date no later than 135 days prior
to
the date of the prospectus or other offering document in which the Static
Pool
Information is to be included or incorporated by reference. The Static Pool
Information shall be provided in an electronic format that provides a permanent
record of the information provided, such as a portable document format (pdf)
file, or other such electronic format as customarily provided by Seller or
if
Seller does not customarily provide such information as reasonably required
by
the Purchaser or the Depositor, as applicable and agreed to by the
Company;
(v)
within
5
Business Days after request by the Purchaser, information with respect to
the
Company (as Servicer) as required by Item
1108(b) and (c) of Regulation AB,
and
provided the Company (as Servicer) meets the criteria in Item 1108(a)(3).
A
summary of the requirements of Item 1108(b) and (c) of Regulation AB is attached
hereto as Exhibit
L
for
convenience of reference only. In the event that the Company has delegated
any
servicing responsibilities with respect to the Mortgage Loans to a Subservicer,
the Company shall provide the information required pursuant to this clause
with
respect to the Subservicer;
(vi) within
5
Business Days after request by the Purchaser,
(a)
if
the Company (or Third-Party Originator of Subservicer as the case may be)
meets
the disclosure criteria of Item 1117 of Regulation AB, information regarding
any
legal proceedings pending (or known to be contemplated by governmental
authorities) against the Company (as Originator and as Servicer) and each
Third-Party Originator of the Mortgage Loans and each Subservicer that could
be
material to investors in the Securities issued in the related Securitization
Transaction, a summary of the requirements of Item 1117 of Regulation AB
as of
the date hereof is attached hereto as Exhibit
L
for
convenience of reference only;
(b)
if
the Company (or Third-Party Originator of Subservicer as the case may be)
meets
the disclosure criteria of Item 1119 of Regulation AB, information regarding
affiliations with respect to the Company (as Originator and as Servicer)
and
each Third-Party Originator of the Mortgage Loans and each Subservicer as
required by Item 1119(a) of Regulation AB, a summary of the requirements
of Item
1119(a) of Regulation AB as of the date hereof is attached hereto as
Exhibit
L
for
convenience of reference only; and
(c)
if
the Company (or Third-Party Originator of Subservicer as the case may be)
meets
the disclosure criteria of Item 1119 of Regulation AB,information regarding
relationships and transactions with respect to the Company (as Originator
and as
Servicer) and each Third-Party Originator of the Mortgage Loans and each
Subservicer as required by Item 1119(b) and (c) of Regulation AB, a summary
of
the requirements of Item 1119(b) and (c) of Regulation AB as of the date
hereof
is attached hereto as Exhibit
L
for
convenience of reference only; and
(vii) if
so
requested by the Purchaser, the Company shall provide (or, as applicable,
cause
each Third-Party Originator to provide), at the expense of the requesting
party
(to the extent of any additional incremental expense associated with delivery
pursuant to this Agreement), such statements and agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating
to
prior securitized pools for securitizations closed on or after January 1,
2006
or, in the case of Static Pool Information with respect to the Company’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, or to any financial information included in any
other disclosure provided under this Section 11.18, as the Purchaser or such
Depositor shall reasonably request. Such statements and letters shall be
addressed to and be for the benefit of such parties as the Purchaser or such
Depositor shall designate, which may include, by way of example, any Sponsor,
any Depositor and any broker dealer acting as underwriter, placement agent
or
initial purchaser with respect to a Pass-Through Transfer. Any such statement
or
letter may take the form of a standard, generally applicable document
accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor;
(viii) Following
the date of any Pass-Through Transfer after January 1, 2006 containing Mortgage
Loans and for the period while such Mortgage Loans are in any Pass-Through
Transfer, the Purchaser agrees to furnish to the Company, within forty-five
(45)
days of the close of each related month, on a monthly basis, loan level
performance information regarding the related Mortgage Loans, including
delinquency, foreclosure and loss data, but excluding any personal borrower
information, which Purchaser deems necessary for the Company’s compliance with
Regulation AB, and to be used by the Company solely on an aggregate basis
for
Regulation AB disclosure purposes. The preceding sentence shall only apply
to
Mortgage Loans for which Purchaser is the Servicer; provided, however, that
if
Purchaser is no longer the Servicer of the related Mortgage Loans, the Purchaser
shall use its best efforts to require the new Servicer to provide such
information. The Company agrees that the Purchaser may thereafter provide
updated performance information on the Mortgage Loans for any previous
period.
(ix) If
so
requested, in writing, by the Purchaser or any Depositor for the purpose
of
satisfying its reporting obligation under the Exchange Act with respect to
any
class of asset-backed securities, the Company shall (or shall cause each
Subservicer and Third-Party Originator to), provided that the Company (and
each
Subservicer and Third-Party Originator, as the case may be) meets the disclosure
requirements of items 1117 and 1119 of Regulation AB, as the case may be,
for
such disclosure period (i) provide prompt notice to the Purchaser, any Master
Servicer and any Depositor in writing of (A) any legal proceedings pending,
or
known to be contemplated by governmental authorities against the Company,
any
Subservicer or any Third-Party Originator that could be material to investors
in
the securities issued in such Securitization Transaction that develop following
the closing date of such Securitization Transaction, (B) any known affiliations
or relationships that develop following the closing date of a Securitization
Transaction between the Company, any Subservicer or any Third-Party Originator
and any of the parties (provided that the requesting party identify, in writing,
such parties by name) specified in clause (D) of paragraph (a) of this Section
(and any other parties identified in writing by the requesting party) with
respect to such Securitization Transaction, (C) any Event of Default under
the
terms of this Agreement or any Reconstitution Agreement, (D) any merger,
consolidation or sale of substantially all of the assets of the Company,
and (E)
the Company’s entry into an agreement with a Subservicer to perform or assist in
the performance of any of the Company’s obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Purchaser and any Depositor
a
description of such proceedings, affiliations or relationships. The obligations
of the Company under this paragraph (ix) with respect to a Securitization
Transaction shall terminate upon the termination of the Purchaser’s and
Depositor’s reporting obligations under the Exchange Act with respect to such
securitization;
(x)
As a
condition to the succession to the Company or any Subservicer as Servicer
or
Subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Company or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Company or any Subservicer,
the Company shall provide to the Purchaser, any Master Servicer, and any
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Purchaser and any Depositor
of such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply
with
its reporting obligation under Item 6.02 of Form 8-K with respect to any
class
of asset-backed securities;
(x)
In
addition to such information as the Company, as Servicer, is obligated to
provide pursuant to other provisions of this Agreement, not later than ten
days
prior to the deadline for the filing of any distribution report on Form 10-D
in
respect of any Securitization Transaction that includes any of the Mortgage
Loans serviced by the Company or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent the Company or such Subservicer
has knowledge, provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence
of any
of the following events with respect to such Mortgage Loans serviced by the
Company along with all information, data, and materials related thereto as
may
be required to be included in the related distribution report on Form 10-D
(as
specified in the provisions of Regulation AB referenced below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(C) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation AB);
and
(xi)
The
Company shall provide to the Purchaser, any Master Servicer and any Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors
and
Omission Insurance policy, financial information and reports, and such other
information related to the Company or any Subservicer or the Company or such
Subservicer’s performance hereunder.
In
the
event of a conflict or inconsistency between the terms of Exhibit
L
and the
text of the applicable Item of Regulation AB as cited above, the text of
Regulation AB, its adopting release and other public statements of the SEC
shall
control.
The
Company shall indemnify the Purchaser, the Depositor, and the Master Servicer,
and each of their respective affiliates including as applicable each of the
following parties participating in a Pass-Through Transfer: each sponsor
and
issuing entity; each Person (including, but not limited to, any Master Servicer,
if applicable) responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Pass-Through Transfer, or for execution of a certification pursuant to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Pass-Through Transfer; each broker dealer acting as underwriter, placement
agent
or initial purchaser with respect to such Pass-Through Transfer, each Person
who
controls any of such parties or the Depositor (within the meaning of Section
15
of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees, agents and affiliates
of each
of the foregoing and of the Depositor (each, an “Indemnified Party”), and shall
hold each of them harmless from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
(each, a “Regulation AB Loss”) arising out of or based upon:
(i)(A)
any
untrue statement of a material fact contained or alleged to be contained
in any
information, report, certification, data, accountants’ letter or other material
provided under this Section 11.18 by the Company or by another third-party
on
the direction of the Company,
or
provided under this Section 11.18 by or at the direction of any Subservicer,
Subcontractor or Third-Party Originator (collectively, the “Company
Information”), or (B) the omission or alleged omission to state in the Company
Information a material fact required to be stated in the Company Information
or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by way
of
clarification, that clause (B) of this paragraph shall be construed solely
by
reference to the Company Information and not to any other information
communicated in connection with a sale or purchase of securities, without
regard
to whether the Company Information or any portion thereof is presented together
with or separately from such other information;
(ii)
any
breach by the Company of its obligations under this Section 11.18, including
particularly any failure by the Company, any Subservicer, any Subcontractor
or
any Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under this Section
11.18, including any failure by the Company to identify pursuant to Section
11.19 any Subcontractor “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB;
(iii)
any
breach by the Company of a representation or warranty set forth in Section
3.01
or in a writing furnished pursuant to Section 3.01(q) and made as of a date
prior to the closing date of the related Pass-Through Transfer, to the extent
that such breach is not cured by such closing date, or any breach by the
Company
of a representation or warranty in a writing furnished pursuant to Section
3.01(q) to the extent made as of a date subsequent to such closing date;
or
(iv)
the
negligence bad faith or willful misconduct of the Company in connection with
its
performance under this Section 11.18.
In
the
case of any claim involving Regulation AB Losses instituted involving any
untrue
statement of a material fact alleged to be contained in any Company Information,
the Purchaser shall notify the Company and the Company may, but only with
the
written approval of the Purchaser in the Purchaser’s sole discretion, retain
counsel satisfactory to the Purchaser to represent the Purchaser with respect
to
the Regulation AB Losses (provided that the counsel so designated would have
no
actual or potential conflict of interest in connection with such
representation), and the Company shall pay the fees and disbursements of
such
counsel related to such claim. If the Company assumes the defense of such
proceeding, it shall be entitled to settle such proceeding with the written
consent of the Purchaser (in its sole discretion) or, if such settlement
provides for release of the Purchaser in connection with all matters relating
to
the proceeding which have been asserted against the Purchaser in such proceeding
by the other parties to such settlement, without the consent of the
Purchaser.
For
purposes of clarification with respect to the indemnification given above
in
this Section 11.18, the Seller shall only be required to indemnify the
Indemnified Parties with respect to Regulation AB Losses that any Indemnified
Party incurs when such Regulation AB Losses arise out of or are based upon
Company Information and only with respect to those Mortgage Loans sold pursuant
to this Agreement; provided, that the indemnification provided in this Section
11.18 shall be the only indemnification with respect to Regulation AB Losses;
provided, further, that if any loan performance information is not provided
to
the Company pursuant to this Agreement, the Company shall have no obligation
to
indemnify any Indemnified Party for Regulation AB Losses arising from the
Company’s failure to provide Static Pool Information.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Company agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party
in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
In
the
case of any failure of performance described above, the Company shall promptly
reimburse the Purchaser, any Depositor, as applicable, and each Person
responsible for the preparation, execution or filing of any report required
to
be filed with the Commission with respect to such Securitization Transaction,
or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction, for
all
costs reasonably incurred by each such party in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall
remain
subject to, and serviced in accordance with the terms of, this Agreement
and the
related Term Sheet, and with respect thereto this Agreement and the related
Term
Sheet shall remain in full force and effect.
23. Article
XI of the Agreement is hereby amended effective as of the date hereof by
adding
the following new Section 11.19:
Section
11.19. Use
of
Subservicers and Subcontractors.
(a) The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company as Servicer under this Agreement
or any Reconstitution Agreement unless the Company complies with the provisions
of paragraph (b) of this Section. The Company shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Company as Servicer under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions
of
paragraph (d) of this Section.
(b) The
Company shall cause any Subservicer used by the Company (or by any Subservicer)
for the benefit of the Purchaser and any Depositor to comply with the provisions
of this Section and with Sections 3.01(p), 3.01(s), 6.04, 6.07 and 11.18
of this
Agreement to the same extent as if such Subservicer were the Company, and
to
provide the information required with respect to such Subservicer under Section
3.01(r) of this Agreement. The Company shall be responsible for obtaining
from
each Subservicer and delivering to the Purchaser, any Master Servicer and
any
Depositor any Annual Statement of Compliance required to be delivered by
such
Subservicer under Section 6.04(a), any Assessment of Compliance and Attestation
Report required to be delivered by such Subservicer under Section 6.07 and
any
Annual Certification required under Section 6.04(b) as and when required
to be
delivered under this Agreement.
(c) The
Company shall promptly upon request provide to the Purchaser, any Master
Servicer and any Depositor (or any designee of the Depositor, such as an
administrator) a written description (in form and substance satisfactory
to the
Purchaser, any Master Servicer and such Depositor) of the role and function
of
each Subcontractor utilized by the Company or any Subservicer, 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.
(d) As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.07 and 11.18 of this
Agreement to the same extent as if such Subcontractor were the Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any Assessment of Compliance
and
Attestation Report and the other certificates required to be delivered by
such
Subservicer and such Subcontractor under Section 6.07, in each case as and
when
required to be delivered.
24. Article
XI of the Agreement is hereby amended effective as of the date hereof by
adding
the following new Section 11.20:
Section
11.20. Third
Party Beneficiary Rights, Benefits and Obligations.
For
purposes of this Agreement, each Master Servicer shall be considered a
third party beneficiary to this Agreement, entitled to all the rights and
benefits hereof and as limited herein as if it were a direct party to this
Agreement.
25. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit E:
EXHIBIT
E
REPORTING
DATA FOR MONTHLY REPORT
|
Standard
File Layout - Master Servicing
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
Text
up to 10 digits
|
20
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
Text
up to 10 digits
|
10
|
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
Text
up to 10 digits
|
10
|
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
Maximum
length of 30 (Last, First)
|
30
|
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported
by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
Servicer's fee rate for a loan as reported by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
Servicer's fee amount for a loan as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
MM/DD/YYYY
|
10
|
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
MM/DD/YYYY
|
10
|
|
|
Action
Code Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|||
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of
the cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the
current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for
the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable
for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as
reported by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
MM/DD/YYYY
|
10
|
|
|
MOD_TYPE
|
The
Modification Type.
|
Varchar
- value can be alpha or numeric
|
30
|
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
26. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit F:
EXHIBIT
F
REPORTING
DATA FOR DEFAULTED LOANS
Standard
File Layout - Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the Originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
|
|
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external Servicer to identify
a group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
|
|
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
|
|
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the Servicer at
the end of
processing cycle, as reported by Servicer.
|
|
MM/DD/YYYY
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
|
MM/DD/YYYY
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
|
MM/DD/YYYY
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal,
Discharged
and/or a Motion For Relief Was Granted.
|
|
MM/DD/YYYY
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
|
MM/DD/YYYY
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
|
|
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
|
MM/DD/YYYY
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
|
MM/DD/YYYY
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the Servicer with instructions
to begin
foreclosure proceedings.
|
|
MM/DD/YYYY
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
|
MM/DD/YYYY
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
|
MM/DD/YYYY
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
|
MM/DD/YYYY
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
|
MM/DD/YYYY
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the Servicer initiates eviction of the borrower.
|
|
MM/DD/YYYY
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
|
MM/DD/YYYY
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
|
MM/DD/YYYY
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
|
MM/DD/YYYY
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
|
MM/DD/YYYY
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
|
MM/DD/YYYY
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
|
MM/DD/YYYY
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
|
MM/DD/YYYY
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
|
|
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan.
Code
indicates the reason why the loan is in default for this
cycle.
|
|
|
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
|
MM/DD/YYYY
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
|
No
commas(,) or dollar signs ($)
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
|
MM/DD/YYYY
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
|
MM/DD/YYYY
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
|
MM/DD/YYYY
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
|
MM/DD/YYYY
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
|
MM/DD/YYYY
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
|
MM/DD/YYYY
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
|
MM/DD/YYYY
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
|
MM/DD/YYYY
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
|
MM/DD/YYYY
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
| · |
ASUM-Approved
Assumption
|
| · |
BAP-Borrower
Assistance Program
|
| · |
CO-
Charge Off
|
| · |
DIL-
Deed-in-Lieu
|
| · |
FFA-
Formal Forbearance Agreement
|
| · |
MOD-
Loan Modification
|
| · |
PRE-
Pre-Sale
|
| · |
SS-
Short Sale
|
| · |
MISC-Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
▇▇▇▇▇
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending
the
file.
The
Occupant
Code
field
should show the current status of the property code as follows:
| · |
Mortgagor
|
| · |
Tenant
|
| · |
Unknown
|
| · |
Vacant
|
The
Property
Condition
field
should show the last reported condition of the property as follows:
| · |
Damaged
|
| · |
Excellent
|
| · |
Fair
|
| · |
Gone
|
| · |
Good
|
| · |
Poor
|
| · |
Special
Hazard
|
| · |
Unknown
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field
should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field
should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
27. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit J:
EXHIBIT
J
COMPANY’S
OBLIGATIONS IN CONNECTION
WITH
A
RECONSTITUTION
• The
Company shall (i) possess the ability to service to a securitization documents;
(ii) service on a “Scheduled/Scheduled” reporting basis (advancing through the
liquidation of an REO Property), (iii) make compensating interest payments
on
payoffs and curtailments and (iv) remit and report to a Master Servicer in
format reasonably acceptable to such Master Servicer by the 10th calendar day of
each month.
• The
Company shall provide an acceptable annual certification (officer’s certificate)
to the Master Servicer (as required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) as
well
as any other annual certifications customarily required under the securitization
documents (i.e. the annual statement as to compliance/annual independent
certified public accountants’ servicing report due by March 1 of each year),
provided that the Company has notice that such other annual certifications
will
be required.
• The
Company shall maintain its servicing system in accordance with the requirements
of the Master Servicer.
28. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit K:
EXHIBIT
K
FORM
OF
COMPANY CERTIFICATION
Re:
The
[ ]
agreement dated as of [ l,
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
____________________________, the _______________________ of [NAME OF COMPANY]
(the “Company”), certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with
the
knowledge and intent that they will rely upon this certification,
that:
I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by
the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the “Company Servicing
Information”);
Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
I
am
responsible for reviewing the activities performed by the Company as Servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Company has fulfilled its obligations under the Agreement in all material
respects; and
The
Compliance Statement required to be delivered by the Company pursuant to
this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer and Subcontractor pursuant
to the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed
to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
29. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit L:
EXHIBIT
L
SUMMARY
OF APPLICABLE REGULATION AB REQUIREMENTS
NOTE:
This Exhibit L is provided for convenience of reference only. In the event
of a
conflict or inconsistency between the terms of this Exhibit L and the text
of
Regulation AB, the text of Regulation AB, its adopting release and other
public
statements of the SEC shall control.
Item
1105(a)(1)-(3) and (c)
-Provide
static pool information with respect to mortgage loans that were originated
or
purchased by the Company and which are of the same type as the Mortgage
Loans.
-Provide
static pool information regarding delinquencies, cumulative losses and
prepayments for prior securitized pools of the Company.
-If
the
Company has less than 3 years experience securitizing assets of the same
type as
the Mortgage Loans, the Company may provide the static pool information by
vintage origination years regarding loans originated or purchased by the
Company, instead of by prior securitized pool. A vintage origination year
represents mortgage loans originated during the same year.
-Such
static pool information shall be for the prior five years, or for so long
as the
Company has been originating or purchasing (in the case of data by vintage
origination year) or securitizing (in the case of data by prior securitized
pools) such mortgage loans if for less than five years.
-The
static pool information for each vintage origination year or prior securitized
pool, as applicable, shall be presented in monthly or quarterly increments
over
the life of the mortgage loans included in the vintage origination year or
prior
securitized pool.
-Provide
summary information for the original characteristics of the prior securitized
pools or vintage origination years, as applicable and material, including:
number of pool assets, original pool balance, weighted average initial loan
balance, weighted average mortgage rate, weighted average and minimum and
maximum FICO, product type, loan purpose, weighted average and minimum and
maximum LTV, distribution of loans by mortgage rate, and geographic
concentrations of 5% or more.
Item
1108(b) and (c)
Provide
the following information with respect to each servicer that will service,
including interim service, 20% or more of the mortgage loans in any loan
group
in the securitization issued in the Pass-Through Transfer:
-a
description of the Company’s form of organization;
-a
description of how long the Company has been servicing residential mortgage
loans; a general discussion of the Company’s experience in servicing assets of
any type as well as a more detailed discussion of the Company’s experience in,
and procedures for the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Company’s portfolio of mortgage loans of the type similar to
the Mortgage Loans and information on factors related to the Company that
may be
material to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including whether any default or
servicing related performance trigger has occurred as to any other
securitization due to any act or failure to act of the Company, whether any
material noncompliance with applicable servicing criteria as to any other
securitization has been disclosed or reported by the Company, and the extent
of
outsourcing the Company uses;
-a
description of any material changes to the Company’s policies or procedures in
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of the type similar to the Mortgage
Loans during the past three years;
-information
regarding the Company’s financial condition to the extent that there is a
material risk that the effect on one or more aspects of servicing resulting
from
such financial condition could have a material impact on the performance
of the
securities issued in the Pass-Through Transfer, or on servicing of mortgage
loans of the same asset type as the Mortgage Loans;
-any
special or unique factors involved in servicing loans of the same type as
the
Mortgage Loans, and the Company’s processes and procedures designed to address
such factors;
-statistical
information regarding principal and interest advances made by the Company
on the
Mortgage Loans and the Company’s overall servicing portfolio for the past three
years; and
-the
Company’s process for handling delinquencies, losses, bankruptcies and
recoveries, such as through liquidation of REO Properties, foreclosure, sale
of
the Mortgage Loans or workouts.
Item
1110(a)
-Identify
any originator or group of affiliated originators that originated, or is
expected to originate, 10% or more of the mortgage loans in any loan group
in
the securitization issued in the Pass-Through Transfer.
Item
1110(b)
Provide
the following information with respect to any originator or group of affiliated
originators that originated, or is expected to originate, 20% or more of
the
mortgage loans in any loan group in the securitization issued in the
Pass-Through Transfer:
-the
Company’s form of organization; and
-a
description of the Company’s origination program and how long the Company has
been engaged in originating residential mortgage loans, which description
must
include a discussion of the Company’s experience in originating mortgage loans
of the same type as the Mortgage Loans and information regarding the size
and
composition of the Company’s origination portfolio as well as information that
may be material to an analysis of the performance of the Mortgage Loans,
such as
the Company’s credit-granting or underwriting criteria for mortgage loans of the
same type as the Mortgage Loans.
Item
1117
-describe
any legal proceedings pending against the Company or against any of its
property, including any proceedings known to be contemplated by governmental
authorities, that may be material to the holders of the securities issued
in the
Pass-Through Transfer.
Item
1119(a)
-describe
any affiliations of the Company, each other originator of the Mortgage Loans
and
each Subservicer with the sponsor, depositor, issuing entity, trustee, any
originator, any other servicer, any significant obligor, enhancement or support
provider or any other material parties related to the Pass-Through
Transfer.
Item
1119(b)
-describe
any business relationship, agreement, arrangement, transaction or understanding
entered into outside of the ordinary course of business or on terms other
than
those obtained in an arm’s length transaction with an unrelated third party,
apart from the Pass-Through Transfer, between the Company, each other originator
of the Mortgage Loans and each Subservicer, or their respective affiliates,
and
the sponsor, depositor or issuing entity or their respective affiliates,
that
exists currently or has existed during the past two years, that may be material
to the understanding of an investor in the securities issued in the Pass-Through
Transfer.
Item
1119(c)
-describe
any business relationship, agreement, arrangement, transaction or understanding
involving or relating to the Mortgage Loans or the Pass-Through Transfer,
including the material terms and approximate dollar amount involved, between
the
Company, each other originator of the Mortgage Loans and each Subservicer,
or
their respective affiliates and the sponsor, depositor or issuing entity
or
their respective affiliates, that exists currently or has existed during
the
past two years.
30. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit M:
EXHIBIT
M
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
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 trustee’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
COMPANY] [NAME OF SUBSERVICER]
Date: _________________________
By: _________________________
Name:
Title:
31. The
Agreement is hereby amended as of the date hereof by adding the following
new
Exhibit N:
EXHIBIT
N
REPORTING
DATA FOR REALIZED LOSSES AND GAINS
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
1.
2. The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
1.
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
2.
The
Total
Interest Due less the aggregate amount of servicing fee that would have been
earned if all delinquent payments had been made as agreed. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
3. Accrued
Servicing Fees based upon the Scheduled Principal Balance of the Mortgage
Loan
as calculated on a monthly basis. For documentation, an Amortization Schedule
from date of default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12.
Complete
as applicable. Required documentation:
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period
of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of Servicer efforts to recover advances.
*
For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and WFB’s approved
Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13.
The
total
of lines 1 through 12.
3.
Credits:
14-21. Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow Agent / Attorney
Letter
of
Proceeds Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for
Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
23. The
total
derived from subtracting line 22 from 13. If the amount represents a realized
gain, show
the
amount in parenthesis ( ).
Calculation
of Realized Loss/Gain Form 332
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email Address:_____________________
|
Servicer
Loan No.
|
|
Servicer
Name
|
|
Servicer
Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
3rd
Party Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes
No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
|
$ |
(1)
|
|||
|
(2)
|
Interest
accrued at Net Rate
|
|
(2)
|
||||
|
(3)
|
Accrued
Servicing Fees
|
|
(3)
|
||||
|
(4)
|
Attorney's
Fees
|
|
(4)
|
||||
|
(5)
|
Taxes
(see page 2)
|
|
(5)
|
||||
|
(6)
|
Property
Maintenance
|
|
(6)
|
||||
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
|
(7)
|
||||
|
(8)
|
Utility
Expenses
|
|
(8)
|
||||
|
(9)
|
Appraisal/BPO
|
|
(9)
|
||||
|
(10)
|
Property
Inspections
|
|
(10)
|
||||
|
(11)
|
FC
Costs/Other Legal Expenses
|
(11)
|
|||||
|
(12)
|
Other
(itemize)
|
|
(12)
|
||||
|
Cash
for Keys
|
|
(12)
|
|||||
|
HOA/Condo
Fees
|
|
(12)
|
|||||
|
|
|
(12)
|
|||||
|
Total
Expenses
|
$ |
(13)
|
|||||
|
Credits:
|
|||||||
|
(14)
|
Escrow
Balance
|
$
|
(14)
|
||||
|
(15)
|
HIP
Refund
|
(15)
|
|||||
|
(16)
|
Rental
Receipts
|
|
(16)
|
||||
|
(17)
|
Hazard
Loss Proceeds
|
|
(17)
|
||||
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
|
(18a) | ||||
|
HUD
Part A
|
|||||||
|
HUD
Part B
|
(18b) | ||||||
|
(19)
|
Pool
Insurance Proceeds
|
|
(19)
|
||||
|
(20)
|
Proceeds
from Sale of Acquired Property
|
|
(20)
|
||||
|
(21)
|
Other
(itemize)
|
|
(21)
|
||||
|
|
|
|
(21)
|
||||
|
Total
Credits
|
$
|
(22)
|
|||||
|
Total
Realized Loss (or Amount of Gain)
|
|
|
$
|
(23)
|
|||
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
32. Except
as
amended above, the Agreement shall continue to be in full force and effect
in
accordance with its terms.
33. This
Amendment may be executed by one or more of the parties hereto on any number
of
separate counterparts and of said counterparts taken together shall be deemed
to
constitute one and the same instrument.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the following parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day
and
year first above written.
|
EMC
MORTGAGE CORPORATION,
as
Purchaser
|
||
| |
|
|
| By: | ||
| Name: |
|
|
| Title: | ||
|
CHEVY
CHASE BANK, F.S.B.,
as
Company
|
||
| |
|
|
| By: | ||
| Name: |
|
|
| Title: | ||
EXHIBIT
I-2
EMC
SERVICING AGREEMENT
______________________________________________________________________________
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
Owner
and
EMC
MORTGAGE CORPORATION
Servicer
SERVICING
AGREEMENT
Dated
as
of January 1, 2006
_________________________________________________________________
EXHIBITS
|
Exhibit
A
|
Mortgage
Loan Schedule
|
|
Exhibit
B
|
Custodial
Account Letter Agreement
|
|
Exhibit
C
|
Escrow
Account Letter Agreement
|
|
Exhibit
D
|
Form
of Request for Release
|
|
Exhibit
E
|
Reporting
Data for Monthly Report
|
|
Exhibit
F
|
Reporting
Data for Defaulted Loans
|
|
Exhibit
G
|
Form
of Owner Certification
|
|
Exhibit
H
|
Summary
of Regulation AB Servicing Criteria
|
|
Exhibit
I
|
Summary
of Applicable Regulation AB Requirements
|
|
Exhibit
J
|
Servicing
Criteria to be Addressed in Assessment of Compliance
|
|
Exhibit
K
|
Reporting
Data for Realized Losses and Gains
|
THIS
IS A
SERVICING AGREEMENT, dated as of January 1, 2006, and is executed between
Structured Asset Mortgage Investments II Inc. (the "Owner") and EMC Mortgage
Corporation (the "Servicer").
W
I T N E
S S E T H :
WHEREAS,
the Owner is the owner of the Mortgage Loans;
WHEREAS,
the Owner and the Servicer wish to prescribe the permanent management, servicing
and control of the Mortgage Loans;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Owner and the Servicer agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices:
The
procedures, including prudent collection and loan administration procedures,
and
the standard of care (i) employed by prudent mortgage servicers which service
mortgage loans of the same type as the Mortgage Loans in the jurisdictions
in
which the related Mortgage Properties are located or (ii) in accordance with
the
▇▇▇▇▇▇ ▇▇▇ Guide or ▇▇▇▇▇▇▇ Mac Guide, subject to any variances negotiated
with
▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac and
subject to the express provisions of this Agreement. Such standard of care
shall
not be lower than that the Servicer customarily employs and exercises in
servicing and administering similar mortgage loans for its own account and
shall
be in full compliance with all federal, state, and local laws, ordinances,
rules
and regulations.
Adjustment
Date:
As to
each ARM Loan, the date on which the Mortgage Interest Rate is adjusted in
accordance with the terms of the related Mortgage Note.
Agreement:
This
Servicing Agreement including all exhibits hereto, amendments hereof and
supplements hereto.
ARM
Loans:
First
lien, conventional, 1-4 family residential Mortgage Loans with interest rates
which adjust from time to time in accordance with the related Index and are
subject to Periodic Rate Caps and Lifetime Rate Caps and which may permit
conversion to fixed interest rates.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a legal holiday in the States
of
Maryland, Minnesota, New York or the jurisdiction in which the Servicer conducts
its servicing activities, or (iii) a day on which banks in the States of
Maryland, Minnesota, New York or the jurisdiction in which the Servicer conducts
its servicing activities are authorized or obligated by law or executive
order
to be closed.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time, or
any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission
or SEC:
The
Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or 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.
Custodial
Account:
One or
more demand account or accounts created and maintained pursuant to Section
4.04
which shall be entitled "[_________] Custodial Account in trust for [Owner],
Owner of Whole Loan Mortgages and various Mortgagors" established at a Qualified
Depository, each of which accounts shall be held by such Qualified Depository
in
a fiduciary capacity, separate and apart from its funds and general
assets.
Custodian:
▇▇▇▇▇
Fargo Bank, National Association, or such other custodian as Owner shall
designate.
Cut-off
Date:
The
open of business on [________] 1, 2006.
Delinquent:
As
defined in the related pooling and servicing agreement.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Pass-Through Transfer.
Determination
Date:
The
15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the Remittance
Date.
Due
Date:
Each
day on which payments of principal and interest are required to be paid in
accordance with the terms of the related Mortgage Note, exclusive of any
days of
grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day
of the
month preceding the month of such Remittance Date and ending on the first
day of
the month of the Remittance Date.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to Section
4.06 which shall be entitled "[__________] Escrow Account, in trust for [Owner],
Owner of Whole Loan Mortgages and various Mortgagors" and shall be established
at a Qualified Depository, each of which accounts shall in no event contain
funds in excess of the FDIC insurance limits.
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.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 9.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇
▇▇▇:
▇▇▇▇▇▇
▇▇▇, or any successor thereto.
▇▇▇▇▇▇
Mae Guide:
The
▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae Servicing Guide and all amendments
or additions thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer pursuant to Section
4.12.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as
amended
from time to time.
▇▇▇▇▇▇▇
Mac:
▇▇▇▇▇▇▇
Mac, or any successor thereto.
▇▇▇▇▇▇▇
Mac Guide:
The
▇▇▇▇▇▇▇ Mac Selling Guide and the ▇▇▇▇▇▇▇ Mac Servicing Guide and all amendments
or additions thereto.
Full
Principal Prepayment:
A
Principal Prepayment made by a Mortgagor of the entire principal balance
of a
Mortgage Loan.
GAAP:
Generally accepted accounting procedures, consistently applied.
HUD:
The
United States Department of Housing and Urban Development or any
successor.
Index:
With
respect to each ARM Loan, on the related Adjustment Date, the index used
to
determine the Mortgage Interest Rate on each such ARM Loan.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Lifetime
Rate Cap:
With
respect to each ARM Loan, the maximum Mortgage Interest Rate over the term
of
such Mortgage Loan, as specified in the related Mortgage Note.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds and Condemnation Proceeds, 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
or otherwise, other than amounts received following the acquisition of an
REO
Property pursuant to Section 4.13.
Margin:
With
respect to each ARM Loan, the fixed percentage amount set forth in each related
Mortgage Note which is added to the Index in order to determine the related
Mortgage Interest Rate.
Master
Servicer:
▇▇▇▇▇
Fargo Bank, National Association, its successors in interest and assigns,
or any
successor thereto designated by the Owner.
Monthly
Advance:
The
aggregate of the advances made by the Servicer on any Remittance Date pursuant
to Section 5.03.
Monthly
Payment:
With
respect to each Mortgage Loan, the scheduled monthly payment of principal
and
interest thereon which is payable by the related Mortgagor under the related
Mortgage Note.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan in accordance
with
the provisions of the related Mortgage Note, and in the case of an ARM Loan,
as
adjusted from time to time on each Adjustment Date for such Mortgage Loan
to
equal the Index for such Mortgage Loan plus the Margin for such Mortgage
Loan,
and subject to the limitations on such interest rate imposed by the Periodic
Rate Cap and the Lifetime Rate Cap.
Mortgage
Loan:
An
individual Mortgage Loan described herein and as further identified on the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Mortgage Loan Documents, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds, and all other rights, benefits, proceeds and obligations arising
from
or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
The
original mortgage loan legal documents held by the Custodian.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Owner, which shall be equal to the related Mortgage Interest Rate minus the
Servicing Fee Rate.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans attached hereto as Exhibit
A,
such
schedule being acceptable to the Owner and the Servicer.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
underlying real property securing repayment of a Mortgage Note.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Liquidation Proceeds:
As to
any Mortgage Loan, Liquidation Proceeds net of unreimbursed Servicing Advances,
Servicing Fees and Monthly Advances and expenses incurred by the Servicer
in
connection with the liquidation of the Mortgage Loan and the related Mortgaged
Property.
Nonrecoverable
Advance:
Any
advance previously made by the Servicer pursuant to Section 5.03 or any
Servicing Advance proposed to be made by the Servicer in respect of a Mortgage
Loan or REO Property which, in the good faith judgment of the Servicer, may
not
be ultimately recoverable by the Servicer from Liquidation Proceeds or Insurance
Proceeds on such Mortgage Loan or REO Property as provided herein. The
determination by the Servicer that it has made a Nonrecoverable Advance,
or that
a proposed advance may constitute a Nonrecoverable Advance, shall be evidenced
by an Officer's Certificate of the Servicer delivered to the Owner and detailing
the reasons for such determination.
Officer's
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President, a Senior Vice President or a Vice President or by the Treasurer
or the Secretary or one of the Assistant Treasurers or Assistant Secretaries
of
the Servicer, and delivered to the Owner as required by this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf
of
whom the opinion is being given, reasonably acceptable to the
Owner.
Owner:
Structured Asset Mortgage Investments II Inc., its successors in interest
and
assigns (including the Trustee in connection with a Pass-Through
Transfer).
Partial
Principal Prepayment:
A
Principal Prepayment by a Mortgagor of a partial principal balance of a Mortgage
Loan.
Pass-Through
Transfer:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Periodic
Rate Cap:
With
respect to each ARM Loan, the maximum increase or decrease in the Mortgage
Interest Rate on any Adjustment Date.
Permitted
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations the timely payment of which are fully guaranteed
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;
(ii) (a)
demand or time deposits, federal funds or bankers' acceptances issued by
any
depository institu-tion or trust company incorporated under the laws of the
United States of America or any state thereof (including any Trustee or the
Master Servicer) and subject to supervision and examination by federal and/or
state banking authorities, provided that the commercial paper and/or the
short-term deposit rating and/or the long-term unsecured debt obligations
or
deposits of such depository institution or trust company at the time of such
investment or contractual commitment providing for such investment are rated
in
one of the two highest rating categories by each Rating Agency and (b) any
other
demand or time deposit or certificate of deposit that is fully insured by
the
Federal Deposit Insurance Cor-poration;
(iii) repurchase
obligations with respect to (a) any security described in clause (i) above
or
(b) any other security issued or guaranteed by an agency or instrumen-tality
of
the United States of America, the obligations of which are backed by the
full
faith and credit of the United States of America, in either case entered
into
with a depository institution or trust company (acting as principal) described
in clause (ii)(a) above;
(iv) securities
bearing interest or sold at a discount issued by any corporation (including
any
Trustee or the Master Servicer) incorporated under the laws of the United
States
of America or any state thereof that are rated in one of the two highest
rating
categories by each Rating Agency at the time of such in-vestment or contractual
commitment providing for such investment; provided,
however,
that
securities issued by any particular corporation will not be Permitted
Investments to the extent that investments therein will cause the then
outstanding principal amount of secur-ities issued by such corporation and
held
as Permitted Investments to exceed 10% of the aggregate outstand-ing principal
balances and amounts of all the Permitted Investments;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obliga-tions payable on demand or on a specified date not
more
than one year after the date of issuance there-of) which are rated in one
of the
two highest rating categories by each Rating Agency at the time of such
investment;
(vi) any
other
demand, money market or time deposit, obligation, security or investment
as may
be acceptable to each Rating Agency; and
(vii) any
money
market funds the collateral of which consists of obligations fully guaranteed
by
the United States of America or any agency or instru-ment-al-ity of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America (which may include repurchase obligations
secured by collateral described in clause (i)) and other securities (including
money market or common trust funds for which any Trustee or the Master Servicer
or any affiliate thereof acts as a manager or an advisor) and which money
market
funds are rated in one of the two highest rating categories by each Rating
Agency;
provided,
however,
that no
instrument or security shall be a Permitted Investment if such instrument
or
security evidences a right to receive only interest payments with respect
to the
ob-li-ga-tions underlying such instrument or if such security provides for
payment of both principal and interest with a yield to matur-ity in excess
of
120% of the yield to maturity at par.
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.
Prepayment
Charge:
Any
prepayment premium, penalty or charge payable by a Mortgagor in connection
with
any Principal Prepayment on a Mortgage Loan pursuant to the terms of the
related
Mortgage Note.
Prepayment
Interest Excess:
With
respect to any Remittance Date, for each Mortgage Loan that was the subject
of a
Principal Prepayment in full or in part during the portion of the related
Prepayment Period occurring between the first day of the calendar month in
which
such Remittance Date occurs and the Determination Date of the calendar month
in
which such Remittance Date occurs, an amount equal to interest (to the extent
received) at the applicable Mortgage Loan Remittance Rate on the amount of
such
Principal Prepayment for the number of days commencing on the first day of
the
calendar month in which such Remittance Date occurs and ending on the last
date
through which interest is collected from the related Mortgagor.
Prepayment
Interest Shortfall:
With
respect to any Remittance Date, for each such Mortgage Loan that was the
subject
of a Principal Prepayment during the portion of the related Prepayment Period
occurring between the first day of the related Prepayment Period and the
last
day of the calendar month preceding the month in which such Remittance Date
occurs, an amount equal to interest (to be paid by the Servicer out of its
own
funds without reimbursement therefor) at the applicable Mortgage Loan Remittance
Rate on the amount of such Principal Prepayment for the number of days
commencing on the date on which the prepayment is applied and ending on the
last
day of the calendar month preceding such Remittance Date.
Prepayment
Period:
As to
any Remittance Date, (a) in the case of Full Principal Prepayments, the period
commencing on the 16th
day of
the month prior to the month in which the related Remittance
Date
occurs and ending on the 15th
day of
the month in which such Remittance Date occurs, and (b) in the case of Partial
Principal Prepayments or other recoveries, the preceding calendar
month.
Primary
Mortgage Insurance Policy:
Each
primary policy of mortgage insurance, or any replacement policy therefor
obtained by the Servicer pursuant to Section 4.08.
Prime
Rate:
The
prime rate of U.S. money center banks as published from time to time in
The
Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan full or partial
which
is received in advance of its scheduled Due Date, including any Prepayment
Charge and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Qualified
Appraiser:
An
appraiser, duly appointed by the Servicer, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of
the
Mortgage Loan, which appraiser and the appraisal made by such appraiser both
satisfy the requirements of Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Depository:
(a) The
Custodian, (b) a depository, the accounts of which are insured by the FDIC
and
the short term debt ratings and the long term deposit ratings of which are
rated
in one of the two highest rating categories by either of ▇▇▇▇▇’▇ Investors
Service, Inc. or Fitch, Inc., or (c) a depository, the short-term debt
obligations, or other short-term deposits of which are rated at least ‘A-2’ and
the long-term unsecured debt obligations of which are rated at least ‘AA-’ by
Standard & Poor's Ratings Service, a division of The McGraw Hill Companies
Inc.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, approved as an insurer by ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac.
Rating
Agency:
Standard & Poor's Ratings Service, a division of The McGraw Hill Companies
Inc., and ▇▇▇▇▇'▇ Investors Service, Inc.
Reconstitution
Agreement: Any
agreement involving any Pass-Through Transfer or Whole Loan
Transfer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as 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.
REMIC:
A "real
estate mortgage
investment conduit" within the meaning of Section 860D of the Code.
REMIC
Provisions:
The
provisions of the Federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of the Code, and related provisions, and regulations,
rulings or pronouncements promulgated thereunder, as the foregoing may be
in
effect from time to time.
Remittance
Date:
The
Remittance Date shall be the 23rd day of any month, or if such 23rd day is
not a
Business Day, the first Business Day immediately preceding such 23rd
day.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Servicer in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Owner as described
in Section 4.13.
Sarbanes
Certification:
A
certification required pursuant to The
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations or amendments thereof
by
the Commission’s staff).
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Administrator:
The
securities administrator with respect to any Pass-Through Transfer.
Servicer:
EMC
Mortgage Corporation, or any of its successors in interest or any successor
under this Agreement appointed as herein provided.
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses
(including reasonable attorneys' fees and disbursements) incurred in the
performance by the Servicer of its servicing obligations relating to each
Mortgage Loan, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement,
administrative or judicial proceedings, or any legal work or advice specifically
related to servicing the Mortgage Loans, including but not limited to,
foreclosures, bankruptcies, condemnations, drug seizures, elections,
foreclosures by subordinate or superior lienholders, and other legal actions
incidental to the servicing of the Mortgage Loans (provided that such expenses
are reasonable and that the Servicer specifies the Mortgage Loan(s) to which
such expenses relate), (c) the management and liquidation of the Mortgaged
Property if the Mortgaged Property is acquired in full or partial satisfaction
of the Mortgage, (d) taxes, assessments, water rates, sewer rates and other
charges which are or may become a lien upon the Mortgaged Property, and Primary
Mortgage Insurance Policy premiums and fire and hazard insurance coverage
and
(e) compliance with the obligations under Section 4.08.
Servicing
Criteria:
As of
any date of determination, the “servicing criteria” set forth in Item 1122(d) of
Regulation AB, or any amendments thereto, a summary of the requirements of
which
as of the date hereof is attached hereto as Exhibit H for convenience of
reference only. In the event of a conflict or inconsistency between the terms
of
Exhibit H and the text of Item 1122(d) of Regulation AB, the text of Item
1122(d) of Regulation AB shall control (or those Servicing Criteria otherwise
mutually agreed to by the Owner, the Servicer and any Person that will be
responsible for signing any Sarbanes Certification with respect to a
Pass-Through Transfer in response to evolving interpretations of Regulation
AB
and incorporated into a revised Exhibit H).
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual servicing fee the
Owner
shall pay to the Servicer, which shall, for a period of one full month, be
equal
to one--twelfth of the product of (a) the applicable Servicing Fee Rate and
(b)
the outstanding principal balance of the Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Owner to pay the Servicing Fee is limited to, and the
Servicing Fee is payable from the interest portion of such Monthly Payment
collected by the Servicer or as otherwise provided under Section
4.05.
Servicing
Fee Rate:
The
Servicing Fee Rate shall be a rate per annum equal to 0.25%.
Servicing
File:
The
documents, records and other items pertaining to a particular Mortgage Loan
and
any additional documents relating to such Mortgage Loan as are in, or as
may
from time to time come into, the Servicer's possession.
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Owner upon request, as such list
may
from time to time be amended.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the principal balance
of
such Mortgage Loan after giving effect to payments of principal due and received
or for which a Monthly Advance has been made, minus (ii) all amounts previously
distributed to the Owner with respect to the Mortgage Loan representing
Principal Prepayments.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Trustee:
The
Person appointed as trustee in connection with any Pass-Through
Transfer.
Whole
Loan Transfer:
The
sale or transfer of some or all of the ownership interest in the Mortgage
Loans
by the Owner to one or more third parties in whole loan or participation
format,
which third party may be ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES; BOOKS AND RECORDS; DELIVERY
OF
MORTGAGE LOAN DOCUMENTS
Section
2.01. Servicing
of Mortgage Loans.
The
Servicer does hereby agree to service the Mortgage Loans in accordance with
the
terms of this Agreement. The rights of the Owner to receive payments with
respect to the Mortgage Loans shall be as set forth in this
Agreement.
Section
2.02. Maintenance
of Servicing Files.
The
Servicer shall maintain a Servicing File consisting of all documents necessary
to service the Mortgage Loans. The possession of each Servicing File by the
Servicer is for the sole purpose of servicing the Mortgage Loan, and such
retention and possession by the Servicer is in a custodial capacity only.
The
Servicer acknowledges that the ownership of each Mortgage Loan, including
the
Note, the Mortgage, all other Mortgage Loan Documents and all rights, benefits,
proceeds and obligations arising therefrom or in connection therewith, has
been
vested in the Owner. All rights arising out of the Mortgage Loans including,
but
not limited to, all funds received on or in connection with the Mortgage
Loans
and all records or documents with respect to the Mortgage Loans prepared
by or
which come into the possession of the Servicer shall be received and held
by the
Servicer in trust for the exclusive benefit of the Owner as the owner of
the
related Mortgage Loans. Any portion of the related Servicing Files retained
by
the Servicer shall be appropriately identified in the Servicer's computer
system
to clearly reflect the ownership of the related Mortgage Loans by the Owner.
The
Servicer shall release its custody of the contents of the related Servicing
Files only in accordance with written instructions of the Owner, except when
such release is required as incidental to the Servicer's servicing of the
Mortgage Loans, such written instructions shall not be required.
Section
2.03. Books
and Records.
The
Servicer shall be responsible for maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loans which shall be appropriately
identified in the Servicer's computer system to clearly reflect the ownership
of
the Mortgage Loan by the Owner. In particular, the Servicer shall maintain
in
its possession, available for inspection by the Owner, or its designee and
shall
deliver to the Owner upon demand, evidence of compliance with all federal,
state
and local laws, rules and regulations, and requirements of ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇
Mac, as applicable, including but not limited to documentation as to the
method
used in determining the applicability of the provisions of the Flood Disaster
Protection Act of 1973, as amended, to the Mortgaged Property, documentation
evidencing insurance coverage and eligibility of any condominium project
for
approval by ▇▇▇▇▇▇ Mae and periodic inspection reports as required by Section
4.13. To the extent that original documents are not required for purposes
of
realization of Liquidation Proceeds or Insurance Proceeds, documents maintained
by the Servicer may be in the form of microfilm or microfiche or such other
reliable means of recreating original documents, including but not limited
to,
optical imagery techniques so long as the Servicer complies with the
requirements of the ▇▇▇▇▇▇ ▇▇▇ Guide.
The
Servicer shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Owner or its designee the related Servicing
File
(or copies thereof) during the time the Owner retains ownership of a Mortgage
Loan and thereafter in accordance with applicable laws and
regulations.
Section
2.04. Transfer
of Mortgage Loans.
No
transfer of a Mortgage Loan may be made unless such transfer is in compliance
with the terms hereof. For the purposes of this Agreement, the Servicer shall
be
under no obligation to deal with any person with respect to this Agreement
or
any Mortgage Loan unless a notice of the transfer of such Mortgage Loan has
been
delivered to the Servicer in accordance with this Section 2.04. The Owner
may,
subject to the terms of this Agreement, sell and transfer one or more of
the
Mortgage Loans in accordance with Sections 10.02 and 11.12, provided,
however, that the transferee will not be deemed to be an Owner hereunder
binding
upon the Servicer unless such transferee shall agree in writing to be bound
by
the terms of this Agreement and an assignment and assumption of this Agreement
reasonably acceptable to the Servicer. The Owner shall advise the Servicer
in
writing of the transfer. Upon receipt of notice of the permitted transfer,
the
Servicer shall ▇▇▇▇ its books and records to reflect the ownership of the
Mortgage Loans of such assignee, and shall release the previous Owner from
its
obligations hereunder with respect to the Mortgage Loans sold or
transferred.
Section
2.05. Delivery
of Mortgage Loan Documents.
The
Servicer shall forward to the Custodian on behalf of the Owner original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
4
week(s) of their execution; provided, however, that the Servicer shall provide
the Custodian on behalf of the Owner with a certified true copy of any such
document submitted for recordation within 4 week(s) after its execution,
and
shall provide the original of any document submitted for recordation or a
copy
of such document certified by the appropriate public recording office to
be a
true and complete copy of the original within 180 days of its execution.
If
delivery is not completed within 180 days solely due to delays in making
such
delivery by reason of the fact that such documents shall not have been returned
by the appropriate recording office, the Servicer shall continue to use its
best
efforts to effect delivery as soon as possible thereafter.
From
time
to time the Servicer may have a need for Mortgage Loan Documents to be released
by the Custodian. If the Servicer shall require any of the Mortgage Loan
Documents, the Servicer shall notify the Custodian in writing of such request
in
the form of the request for release attached hereto as Exhibit
D.
The
Custodian shall deliver to the Servicer within five (5) Business Days, any
requested Mortgage Loan Document previously delivered to the Custodian, provided
that such documentation is promptly returned to the Custodian when the Servicer
no longer requires possession of the document, and provided that during the
time
that any such documentation is held by the Servicer, such possession is in
trust
for the benefit of the Owner.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SERVICER
The
Servicer represents, warrants and covenants to the Owner that as of the date
hereof or as of such date specifically provided herein:
(a)
The
Servicer is a validly existing corporation in good standing under the laws
of
the State of its organization and is qualified to transact business in, is
in
good standing under the laws of, and possesses all licenses necessary for
the
conduct of its business in, each state in which any Mortgaged Property is
located or is otherwise exempt or not required under applicable law to effect
such qualification or license and no demand for such qualification or license
has been made upon the Servicer by any such state, and in any event the Servicer
is in compliance with the laws of each such State to the extent necessary
to
ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loans in accordance with the terms of this Agreement;
(b)
The
Servicer has full power and authority to execute, deliver and perform, and
to
enter into and consummate all transactions contemplated by this Agreement
and to
conduct its business as presently conducted, has duly authorized the execution,
delivery and performance of this Agreement, has duly executed and delivered
this
Agreement, and this Agreement constitutes a legal, valid and binding obligation
of the Servicer, enforceable against it in accordance with its terms subject
to
bankruptcy laws and other similar laws of general application affecting rights
of creditors and subject to the application of the rules of equity, including
those respecting the availability of specific performance;
(c)
None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated thereby and hereby, or the fulfillment of or
compliance with the terms and conditions of this Agreement will conflict
with
any of the terms, conditions or provisions of the Servicer's articles of
incorporation or by-laws or materially conflict with or result in a breach
of
any of the terms, conditions or provisions of any legal restriction or any
agreement or instrument to which the Servicer is now a party or by which
it is
bound, or constitute a default or result in an acceleration under any of
the
foregoing, or result in the material violation of any law, rule, regulation,
order, judgment or decree to which the Servicer or its property is
subject;
(d)
There
is
no litigation pending or, to the Servicer's knowledge, threatened with respect
to the Servicer which is reasonably likely to have a material adverse effect
on
the execution, delivery or enforceability of this Agreement, or which is
reasonably likely to have a material adverse effect on the financial condition
of the Servicer;
(e)
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 consents, approvals,
authorizations and orders which have been obtained;
(f)
The
Servicer is an approved seller/servicer of residential mortgage loans for
▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇ Mac. The Servicer is in good standing to service mortgage
loans
for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and no event has occurred which would make
the
Servicer unable to comply with eligibility requirements or which would require
notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(g)
As of
the date of each Pass-Through Transfer, and except as has been otherwise
disclosed to the Owner, the Master Servicer and any Depositor, or disclosed
in
any public filing: (1) no default or servicing related performance trigger
has
occurred as to any other Pass-Through Transfer due to any act or failure
to act
of the Servicer; (2) no material noncompliance with applicable servicing
criteria as to any other Pass-Through Transfer has occurred, been disclosed
or
reported by the Servicer; (3) the Servicer has not been terminated as servicer
in a residential mortgage loan Pass-Through Transfer, either due to a servicing
default or to application of a servicing performance test or trigger; (4)
no
material changes to the Servicer’s servicing policies and procedures for similar
loans have occurred in the preceding three years; (5) there are no aspects
of
the Servicer’s financial condition that could have a material adverse impact on
the performance by the Servicer of its obligations hereunder; (6) there are
no
legal proceedings pending, or known to be contemplated by governmental
authorities, against the Servicer that could be material to investors in
the
securities issued in such Pass-Through Transfer; and (7) there are no
affiliations, relationships or transactions relating to the Servicer of a
type
that are described under Item 1119 of Regulation AB;
(h)
If so
requested by the Owner, the Master Servicer or any Depositor on any date,
the
Servicer shall, within five Business Days following such request, confirm
in
writing the accuracy of the representations and warranties set forth in clause
(g) of this Article or, if any such representation and warranty is not accurate
as of the date of such request, provide reasonably adequate disclosure of
the
pertinent facts, in writing, to the requesting party;
(i)
Notwithstanding anything to the contrary in the Agreement, the Servicer shall
(or shall cause each Subservicer) (i) immediately notify the Owner, the Master
Servicer and any Depositor in writing of (A) any material litigation or
governmental proceedings pending against the Servicer or any Subservicer,
(B)
any affiliations or relationships that develop following the closing date
of a
Pass-Through Transfer between the Servicer or any Subservicer and any of
the
parties specified in clause (7) of paragraph (g) of this Article (and any
other
parties identified in writing by the requesting party) with respect to such
Pass-Through Transfer, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation
or sale
of substantially all of the assets of the Company, and (E) the Company’s entry
into an agreement with a Subservicer to perform or assist in the performance
of
any of the Company’s obligations under this Agreement or any Reconstitution
Agreement and (ii) provide to the Owner and any Depositor a description of
such
proceedings, affiliations or relationships;
(j)
As a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner, the Master Servicer
and
any Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Owner, the Master Servicer
and any Depositor of such succession or appointment and (y) in writing and
in
form and substance reasonably satisfactory to the Owner, the Master Servicer
and
such Depositor, all information reasonably requested by the Owner, the Master
Servicer or any Depositor in order to comply with its reporting obligation
under
Item 6.02 of Form 8-K with respect to any class of asset-backed securities;
and
(k)
Servicer
has delivered to the Owner and the Master Servicer financial statements of
its
parent, for its last two complete fiscal years. All such financial information
fairly presents the pertinent results of operations and financial position
for
the period identified and has been prepared in accordance with GAAP consistently
applied throughout the periods involved, except as set forth in the notes
thereto. There has been no change in the servicing policies and procedures,
business, operations, financial condition, properties or assets of the Servicer
since the date of the Servicer’s financial information that would have a
material adverse effect on its ability to perform its obligations under this
Agreement.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01. Servicer
to Act as Servicer.
The
Servicer, as independent contract servicer, shall service and administer
the
Mortgage Loans in accordance with this Agreement and with Accepted Servicing
Practices (giving due consideration to the Owner's reliance on the Servicer),
and shall have full power and authority, acting alone, to do or cause to
be done
any and all things in connection with such servicing and administration which
the Servicer may deem necessary or desirable and consistent with the terms
of
this Agreement and with Accepted Servicing Practices and shall exercise the
same
care that it customarily employs for its own account. In addition, the Servicer
shall furnish information regarding the borrower credit files related to
such
Mortgage Loan to credit reporting agencies in compliance with the provisions
of
the Fair Credit Reporting Act and the applicable implementing regulations.
Except as set forth in this Agreement, the Servicer shall service the Mortgage
Loans in accordance with Accepted Servicing Practices in compliance with
the
servicing provisions of the ▇▇▇▇▇▇ ▇▇▇ Guide, which include, but are not
limited
to, provisions regarding the liquidation of Mortgage Loans, the collection
of
Mortgage Loan payments, the payment of taxes, insurance and other charges,
the
maintenance of hazard insurance with a Qualified Insurer, the maintenance
of
fidelity bond and errors and omissions insurance, inspections, the restoration
of Mortgaged Property, the maintenance of Primary Mortgage Insurance Policies,
insurance claims, and title insurance, management of REO Property, permitted
withdrawals with respect to REO Property, liquidation reports, and reports
of
foreclosures and abandonments of Mortgaged Property, the transfer of Mortgaged
Property, the release of Mortgage Loan Documents, annual statements, and
examination of records and facilities. In the event of any conflict,
inconsistency or discrepancy between any of the servicing provisions of this
Agreement and any of the servicing provisions of the ▇▇▇▇▇▇ Mae Guide, the
provisions of this Agreement shall control and be binding upon the Owner
and the
Servicer. The Owner may, at its option, deliver powers-of-attorney to the
Servicer sufficient to allow the Servicer as servicer to execute all
documentation requiring execution on behalf of Owner with respect to the
servicing of the Mortgage Loans, including satisfactions, partial releases,
modifications and foreclosure documentation or, in the alternative, shall
as
promptly as reasonably possible, execute and return such documentation to
the
Servicer.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary
any
term of any Mortgage Loan or consent to the postponement of any such term
or in
any manner grant indulgence to any Mortgagor if in the Servicer's reasonable
and
prudent determination such waiver, modification, postponement or indulgence
is
not materially adverse to the Owner, provided, however, that with respect
to any
Mortgage Loan that is not in default or if default is not reasonably forseeable,
unless the Servicer has provided to the Owner a
certification addressed to the Owner, based on the advice of counsel
or certified public accountants that have a national reputation with respect
to
taxation of REMICs that a modification of such Mortgage Loan will not result
in
the imposition of taxes on or disqualify from REMIC status any
of the REMICs and has obtained the prior written consent of
the Owner, the Servicer shall not permit any modification with respect to
any
Mortgage Loan that would change the Mortgage Interest Rate, forgive the payment
of principal or interest, reduce or increase the outstanding principal balance
(except for actual payments of principal), change the final maturity date
on
such Mortgage Loan or waive a prepayment penalty or charge. In the event
of any
such modification which has been agreed to in writing by the Owner and which
permits the deferral of interest or principal payments on any Mortgage Loan,
the
Servicer shall, on the Business Day immediately preceding the related Remittance
Date in any month in which any such principal or interest payment has been
deferred, deposit in the Custodial Account from its own funds, in accordance
with Section 4.04 and Section 5.03, the difference between (a) such month's
principal and one month's interest at the related 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 pursuant to Section 4.05. Without
limiting the generality of the foregoing, the Servicer shall continue, and
is
hereby authorized and empowered, to prepare, execute and deliver, 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
Servicer shall perform all of its servicing responsibilities hereunder or
may
cause a subservicer to perform any such servicing responsibilities on its
behalf, but the use by the Servicer of a subservicer shall not release the
Servicer from any of its obligations hereunder and the Servicer shall remain
responsible hereunder for all acts and omissions of each subservicer as fully
as
if such acts and omissions were those of the Servicer. Any such subservicer
must
be a ▇▇▇▇▇▇ ▇▇▇ approved seller/servicer or a ▇▇▇▇▇▇▇ Mac seller/servicer
in
good standing and no event shall have occurred, including but not limited
to, a
change in insurance coverage, which would make it unable to comply with the
eligibility requirements for lenders imposed by ▇▇▇▇▇▇ ▇▇▇ or for
seller/servicers by ▇▇▇▇▇▇▇ Mac, or which would require notification to ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Servicer shall pay all fees and expenses of each
subservicer from its own funds, and a subservicer's fee shall not exceed
the
Servicing Fee.
At
the
cost and expense of the Servicer, without any right of reimbursement from
the
Custodial Account, the Servicer shall be entitled to terminate the rights
and
responsibilities of a subservicer and arrange for any servicing responsibilities
to be performed by a successor subservicer meeting the requirements in the
preceding paragraph, provided, however, that nothing contained herein shall
be
deemed to prevent or prohibit the Servicer, at the Servicer's option, from
electing to service the related Mortgage Loans itself. In the event that
the
Servicer's responsibilities and duties under this Agreement are terminated
pursuant to Section 8.04, 9.01 or 10.01, and if requested to do so by the
Owner,
the Servicer shall at its own cost and expense terminate the rights and
responsibilities of each subservicer effective as of the date of termination
of
the Servicer. The Servicer shall pay all fees, expenses or penalties necessary
in order to terminate the rights and responsibilities of each subservicer
from
the Servicer's own funds without reimbursement from the Owner.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Servicer and a subservicer or any reference herein to actions
taken
through a subservicer or otherwise, the Servicer shall not be relieved of
its
obligations to the Owner and shall be obligated to the same extent and under
the
same terms and conditions as if it alone were servicing and administering
the
Mortgage Loans. The Servicer shall be entitled to enter into an agreement
with a
subservicer for indemnification of the Servicer by the subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
Any
subservicing agreement and any other transactions or services relating to
the
Mortgage Loans involving a subservicer shall be deemed to be between such
subservicer and Servicer alone, and the Owner shall have no obligations,
duties
or liabilities with respect to such Subservicer including no obligation,
duty or
liability of Owner to pay such subservicer's fees and expenses. For purposes
of
distributions and advances by the Servicer pursuant to this Agreement, the
Servicer shall be deemed to have received a payment on a Mortgage Loan when
a
subservicer has received such payment.
Section
4.02. Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Servicer will proceed with diligence to collect all payments
due under each Mortgage Loan when the same shall become due and payable and
shall, to the extent such procedures shall be consistent with this Agreement
and
the terms and provisions of related Primary Mortgage Insurance Policy, follow
such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Further, the
Servicer will take reasonable care in ascertaining and estimating annual
ground
rents, taxes, assessments, water rates, fire and hazard insurance premiums,
mortgage insurance premiums, and all other charges that, as provided in the
Mortgage, will become due and payable 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 not waive any Prepayment Charge unless: (i) the enforceability
thereof shall have been limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally,
(ii) the enforcement thereof is illegal, or any local, state or federal agency
has threatened legal action if the prepayment penalty is enforced, (iii)
the
mortgage debt has been accelerated in connection with a foreclosure or other
involuntary payment or (iv) such waiver is standard and customary in servicing
similar Mortgage Loans and relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of the Servicer, maximize recovery
of total proceeds taking into account the value of such Prepayment Charge
and
the related Mortgage Loan. If a Prepayment Charge is waived, but does not
meet
the standards described above, then the Servicer is required to pay the amount
of such waived Prepayment Charge by remitting such amount to the Owner by
the
Remittance Date.
With
respect to Mortgage Loans affected by Hurricane ▇▇▇▇▇▇▇, if the Mortgaged
Property is located in public and individual assistance counties as designated
by FEMA (as set forth on its website ▇▇▇.▇▇▇▇.▇▇▇), the Servicer may cease
charging of late fees and credit reporting activity for all Mortgagors in
certain counties until May 1, 2006, and if reasonably prudent, may extend
such
period as long as necessary. In addition, the Servicer may suspend all
foreclosure and bankruptcy activity relating to such certain Mortgage Loans
until May 1, 2006, and if reasonably prudent, may extend such period as long
as
necessary.
Section
4.03. Realization
Upon Defaulted Mortgage Loans.
The
Servicer shall use its reasonable efforts, consistent with the procedures
that
the Servicer would use in servicing loans for its own account and the
requirements of the ▇▇▇▇▇▇ ▇▇▇ Guide, to foreclose upon or otherwise comparably
convert the ownership of properties securing such of the Mortgage Loans as
come
into and continue in default and as to which no satisfactory arrangements
can be
made for collection of delinquent payments pursuant to Section 4.01. In
determining the delinquency status of any Mortgage Loan, the Servicer will
apply
the definition of Delinquent as such term is defined under the related pooling
and servicing agreement. The Servicer shall use its reasonable efforts to
realize upon defaulted Mortgage Loans in such manner as will maximize the
receipt of principal and interest by the Owner, 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 Owner 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, as
contemplated in Section 4.05. The Servicer shall be responsible for all costs
and expenses incurred by it in any such proceedings or functions as Servicing
Advances; provided, however, that it shall be entitled to reimbursement therefor
as provided in Section 4.05. Notwithstanding anything to the contrary contained
herein, in connection with a foreclosure or acceptance of a deed in lieu
of
foreclosure, in the event the Servicer has reasonable cause to believe that
a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Owner otherwise requests an environmental inspection or review
of such
Mortgaged Property, such an inspection or review is to be conducted by a
qualified inspector. Upon completion of the inspection, the Servicer shall
promptly provide the Owner with a written report of the environmental
inspection. After reviewing the environmental inspection report, the Owner
shall
determine how the Servicer shall proceed with respect to the Mortgaged
Property.
Section
4.04. Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts. Each
Custodial Account shall be established with a Qualified Depository. To the
extent such funds are not deposited in a Custodial Account, such funds may
be
invested in Permitted Investments for the benefit of the Owner (with any
income
earned thereon for the benefit of the Servicer). Custodial Accounts will
be
reconciled within 45 calendar days after the bank statement cut-off date.
Funds
deposited in the Custodial Account may be drawn on by the Servicer in accordance
with Section 4.05. The creation of any Custodial Account shall be evidenced
by a
letter agreement in the form shown in Exhibit
B
hereto.
The original of such letter agreement shall be furnished to the Owner upon
request. The Servicer acknowledges and agrees that the Servicer shall bear
any
losses incurred with respect to Permitted Investments. The amount of any
such
losses shall be immediately deposited by the Servicer in the Custodial Account,
out of the Servicer's own funds, with no right to reimbursement
therefor.
The
Servicer shall deposit in a mortgage clearing account on a daily basis, and
in
the Custodial Account or Accounts no later than 48 hours after receipt and
identification of funds and retain therein the following payments and
collections:
(i) all
payments on account of principal, including Principal Prepayments and penalties,
on the Mortgage Loans received after the Cut-off Date;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the related
Mortgage Loan Remittance Rate received after the Cut-off Date;
(iii) all
Net
Liquidation Proceeds received after the Cut-off Date;
(iv) any
net
amounts received by the Servicer after the Cut-off Date in connection with
any
REO Property pursuant to Section 4.13;
(v) all
Insurance Proceeds received after the Cut-off Date including amounts required
to
be deposited pursuant to Sections 4.08 and 4.10, other than proceeds to be
held
in the Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Servicer's normal
servicing procedures, the loan documents or applicable law;
(vi) all
Condemnation Proceeds affecting any Mortgaged Property received after the
Cut-off Date other than proceeds to be held in the Escrow Account and applied
to
the restoration or repair of the Mortgaged Property or released to the Mortgagor
in accordance with the Servicer's normal servicing procedures, the loan
documents or applicable law;
(vii) any
Monthly Advances as provided in Section 5.03;
(viii) any
amounts received after the Cut-off Date and required to be deposited in the
Custodial Account pursuant to Section 6.02; and
(ix) with
respect to each full or partial Principal Prepayment received after the Cut-off
Date, any Prepayment Interest Shortfalls, to the extent of the Servicer's
aggregate Servicing Fee received with respect to the related Due
Period.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption
fees,
to the extent permitted by Section 6.01, and all Prepayment Interest Excess
need
not be deposited by the Servicer in the Custodial Account.
Section
4.05. Permitted
Withdrawals From the Custodial Account.
The
Servicer may, from time to time, make withdrawals from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Owner in the amounts and in the manner provided for in Section
5.01;
(ii) to
reimburse itself for Monthly Advances, the Servicer's right to reimburse
itself
pursuant to this subclause (ii) being limited to amounts received on the
related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) of principal and/or interest respecting which any such advance was
made;
(iii) to
reimburse itself for unreimbursed Servicing Advances and Monthly Advances,
the
Servicer's right to reimburse itself pursuant to this subclause (iii) with
respect to any Mortgage Loan being limited to Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds received after the Cut-off Date related to
such
Mortgage Loan;
(iv) to
pay to
itself as servicing compensation (a) any interest earned on funds in the
Custodial Account (all such interest to be withdrawn monthly not later than
each
Remittance Date) and (b) the Servicing Fee from that portion of any payment
recovery attributable to interest on a particular Mortgage Loan;
(v) to
reimburse itself for any Nonrecoverable Advances;
(vi) to
transfer funds to another Qualified Depository in accordance with Section
4.09
hereof;
(vii) to
reimburse itself as provided in Section 8.03 hereof;
(viii) to
remove
funds inadvertently placed in the Custodial Account in error by the Servicer;
and
(ix) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
4.06. Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one
or more
Escrow Accounts. Each Escrow Account shall be established with a Qualified
Depository. To the extent such funds are not deposited in an Escrow Account,
such funds may be invested in Permitted Investments. Funds deposited in an
Escrow Account may be drawn on by the Servicer in accordance with Section
4.07.
The creation of any Escrow Account shall be evidenced by a letter agreement
in
the form shown in Exhibit
C.
The
original of such letter agreement shall be furnished to the Owner upon request.
The Servicer acknowledges and agrees that the Servicer shall bear any losses
incurred with respect to Permitted Investments. The amount of any such losses
shall be immediately deposited by the Servicer in the Escrow Account, as
appropriate, out of the Servicer's own funds, with no right to reimbursement
therefor.
The
Servicer shall deposit in a mortgage clearing account on a daily basis, and
in
the Escrow Account or Accounts no later than 48 hours after receipt of funds
and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any items as are required under the terms of
this
Agreement;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient
to
cover escrow disbursements.
The
Servicer shall make withdrawals from an Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth in and in accordance with Section 4.07. Except as provided
in Section 4.07, the Servicer shall be entitled to retain any interest paid
on
funds deposited in an Escrow Account by the Qualified Depository.
Section
4.07. Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Servicer only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, fire and
hazard insurance premiums, Primary Mortgage Insurance Policy premiums, if
applicable, and comparable items;
(ii) to
reimburse Servicer for any Servicing Advance made by Servicer with respect
to a
related Mortgage Loan but only from amounts received on the related Mortgage
Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii) to
refund
to the Mortgagor any funds as may be determined to be overages;
(iv) for
transfer to the Custodial Account in connection with an acquisition of REO
Property;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to
the Servicer, or to the Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account;
(vii) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.06;
(viii) to
remove
funds inadvertently placed in an Escrow Account in error by the Servicer;
and
(ix) to
clear
and terminate the Escrow Account on the termination of this Agreement.
As
part
of its servicing duties, the Servicer shall pay to the Mortgagors interest
on
funds in an Escrow Account, to the extent required by law, and to the extent
that interest earned on funds in the Escrow Account is insufficient, shall
pay
such interest from its own funds, without any reimbursement
therefor.
Section
4.08. Payment
of Taxes, Insurance and Other Charges, Maintenance of Primary Mortgage Insurance
Policies, Collections Thereunder.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such
purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by the Servicer in amounts sufficient for such purposes,
as
allowed under the terms of the Mortgage or applicable law. To the extent
that
the Mortgage does not provide for Escrow Payments, the Servicer shall determine
that any such payments are made by the Mortgagor when due. The Servicer assumes
full responsibility for the timely payment of all such bills and shall effect
timely payments of all such bills irrespective of the Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments and
shall make advances from its own funds to effect such payments.
The
Servicer will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each Mortgage Loan
for
which such coverage is herein required. Such coverage will be maintained
until
the ratio of the current outstanding principal balance of the related Mortgage
Loan to the appraised value of the related Mortgaged Property, based on the
most
recent appraisal of the Mortgaged Property performed by a Qualified Appraiser,
such appraisal to be included in the Servicing File, is reduced to an amount
for
which ▇▇▇▇▇▇ Mae no longer requires such insurance to be maintained. The
Servicer will not cancel or refuse to renew any Primary Mortgage Insurance
Policy that is required to be kept in force under this Agreement unless a
replacement Primary Mortgage Insurance Policy for such canceled or nonrenewed
policy is obtained from and maintained with a Qualified Insurer. The Servicer
shall not take any action which would result in non-coverage under any
applicable Primary Mortgage Insurance Policy of any loss which, but for the
actions of the Servicer would have been covered thereunder. In connection
with
any assumption or substitution agreement entered into or to be entered into
pursuant to Section 6.01, the Servicer shall promptly notify the insurer
under
the related Primary Mortgage Insurance Policy, if any, of such assumption
or
substitution of liability in accordance with the terms of such policy and
shall
take all actions which may be required by such insurer as a condition to
the
continuation of coverage under the Primary Mortgage Insurance Policy. If
such
Primary Mortgage Insurance Policy is terminated as a result of such assumption
or substitution of liability, the Servicer shall obtain a replacement Primary
Mortgage Insurance Policy as provided above.
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Owner, claims to the insurer under any
Private Mortgage Insurance Policy in a timely fashion in accordance with
the
terms of such Primary Mortgage Insurance Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section
4.04,
any amounts collected by the Servicer under any Primary Mortgage Insurance
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05.
Section
4.09. Transfer
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time. The Servicer shall notify the Owner
of
any such transfer within 15 Business Days of transfer. If any one of the
investment ratings of a Qualified Depository holding funds or Eligible
Investments in the Custodial Account or Escrow Account is downgraded by the
issuing rating agency, the Servicer shall, within three (3) Business Days
of
receipt of notice of the downgrading, transfer all such accounts, funds and
Permitted Investments to a different Qualified Depository in accordance with
this Agreement.
Section
4.10. Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is equal to the lesser of (i) the
maximum
insurable value of the improvements securing such Mortgage Loan or (ii) the
greater of (a) the outstanding principal balance of the Mortgage Loan, and
(b)
the percentage such that the proceeds thereof shall be sufficient to prevent
the
Mortgagor and/or the Mortgagee from becoming a co-insurer. If the Mortgaged
Property is in an area identified in the Federal Register by the Federal
Emergency Management Agency as being a special flood hazard area that has
federally-mandated flood insurance requirements, the Servicer will cause
to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least
of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the maximum
insurable value of the improvements securing such Mortgage Loan or (iii)
the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The Servicer shall also maintain on the
REO
Property, fire and hazard insurance with extended coverage in an amount which
is
at least equal to the maximum insurable value of the improvements which are
a
part of such property, liability insurance and, to the extent required and
available under the Flood Disaster Protection Act of 1973, as amended, flood
insurance in an amount as provided above. Any amounts collected by the Servicer
under any such policies other than amounts to be deposited in the Escrow
Account
and applied to the restoration or repair of the Mortgaged Property or REO
Property, or released to the Mortgagor in accordance with the Servicer's
normal
servicing procedures, shall be deposited in the Custodial Account, subject
to
withdrawal pursuant to Section 4.05. It is understood and agreed that no
other
additional insurance need be required by the Servicer or the Mortgagor or
maintained on property acquired in respect of the Mortgage Loans, other than
pursuant to the ▇▇▇▇▇▇ ▇▇▇ Guide or such applicable state or federal laws
and
regulations as shall at any time be in force and as shall require such
additional insurance. All such policies shall be endorsed with standard
mortgagee clauses with loss payable to the Servicer and its successors and/or
assigns and shall provide for at least thirty days prior written notice of
any
cancellation, reduction in the amount or material change in coverage to the
Servicer. 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 currently reflect a General Policy Rating
in
Best's Key Rating Guide currently acceptable to ▇▇▇▇▇▇ Mae and are licensed
to
do business in the state wherein the property subject to the policy is
located.
Section
4.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Servicer shall obtain and maintain a mortgage impairment or
blanket policy issued by an issuer that has a Best rating of A:VI insuring
against hazard losses on all of Mortgaged Properties securing the Mortgage
Loans, then, to the extent such policy provides coverage in an amount equal
to
the amount required pursuant to Section 4.10 and otherwise complies with
all
other requirements of Section 4.10, the Servicer shall conclusively be deemed
to
have satisfied its obligations as set forth in Section 4.10, it being understood
and agreed that such policy may contain a deductible clause, in which case
the
Servicer shall, in the event that there shall not have been maintained on
the
related Mortgaged Property or REO Property a policy complying with Section
4.10,
and there shall have been one or more losses which would have been covered
by
such policy, deposit in the Custodial Account the amount not otherwise payable
under the blanket policy because of such deductible clause. In connection
with
its activities as Servicer of the Mortgage Loans, the Servicer agrees to
prepare
and present, on behalf of the Owner, claims under any such blanket policy
in a
timely fashion in accordance with the terms of such policy. Upon request
of the
Owner, the Servicer shall cause to be delivered to the Owner 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 thirty (30)
days
prior written notice to the Owner.
Section
4.12. Fidelity
Bond, Errors and Omissions Insurance.
The
Servicer shall maintain, at its own expense, a blanket fidelity bond and
an
errors and omissions insurance policy, with broad coverage with responsible
companies that would meet the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac on
all
officers, employees or other persons acting in any capacity with regard to
the
Mortgage Loans and who handle funds, money, documents and papers relating
to the
Mortgage Loans. The Fidelity Bond and errors and omissions insurance shall
be in
the form of the Mortgage Banker's Blanket Bond and shall protect and insure
the
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such persons. Such Fidelity Bond and
errors
and omissions insurance shall also protect and insure the Servicer against
losses in connection with the failure to maintain any insurance policies
required pursuant to this Agreement and the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.12 requiring the Fidelity
Bond
and errors and omissions insurance shall diminish or relieve the Servicer
from
its duties and obligations as set forth in this Agreement. The minimum coverage
under any such Fidelity Bond and insurance policy shall be at least equal
to the
corresponding amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇ Guide or by
▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Guide. The Servicer shall, upon request of
Owner,
deliver to the Owner a certificate from the surety and the insurer as to
the
existence of the Fidelity Bond and errors and omissions insurance policy
and
shall obtain a statement from the surety and the insurer that such Fidelity
Bond
or insurance policy shall in no event be terminated or materially modified
without thirty days prior written notice to the Owner. The Servicer shall
notify
the Owner within five Business Days of receipt of notice that such Fidelity
Bond
or insurance policy will be, or has been, materially modified or terminated.
The
Owner and its successors or assigns as their interests may appear must be
named
as loss payees on the Fidelity Bond and as additional insured on the errors
and
omissions policy.
Section
4.13. 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 Owner or its designee. Any such Person or Persons holding such
title
other than the Owner shall acknowledge in writing that such title is being
held
as nominee for the benefit of the Owner.
The
Servicer shall assume the responsibility for marketing each REO Property
in
accordance with Accepted Servicing Practices. Thereafter, the Servicer shall
continue to provide certain administrative services to the Owner relating
to
such REO Property as set forth in this Section 4.13. The REO Property must
be
sold within three years following the end of the calendar year of the date
of
acquisition, unless a REMIC election has been made with respect to the
arrangement under which the Mortgage Loans and REO Property are held and
(i) the
Owner shall have been supplied with an Opinion of Counsel (at the Servicer's
expense) to the effect that the holding by the related trust of such Mortgaged
Property subsequent to such three-year period (and specifying the period
beyond
such three-year period for which the Mortgaged Property may be held) will
not
result in the imposition of taxes on "prohibited transactions" of the related
trust as defined in Section 860F of the Code, or cause the related REMIC
to fail
to qualify as a REMIC, in which case the related trust may continue to hold
such
Mortgaged Property (subject to any conditions contained in such Opinion of
Counsel), or (ii) the Owner (at the Servicer's expense) or the Servicer shall
have applied for, prior to the expiration of such three-year period, an
extension of such three-year period in the manner contemplated by Section
856(e)(3) of the Code, in which case the three-year period shall be extended
by
the applicable period. If a period longer than three years is permitted under
the foregoing sentence and is necessary to sell any REO Property, the Servicer
shall report monthly to the Owner as to progress being made in selling such
REO
Property.
Notwithstanding
any other provision of this Agreement, if a REMIC election has been made,
no
Mortgaged Property held by a REMIC shall be rented (or allowed to continue
to be
rented) or otherwise used for the production of income by or on behalf of
the
related trust or sold or managed in such a manner or pursuant to any terms
that
would (i) cause such Mortgaged Property to fail to qualify at any time as
"foreclosure property" within a meaning of Section 860G(a)(8) of the Code,
(ii)
subject the related trust to the imposition of any federal or state income
taxes
on "net income from foreclosure property" with respect to such Mortgaged
Property within the meaning of Section 860G(c) of the Code, or (iii) cause
the
sale of such Mortgaged Property to result in the receipt by the related trust
or
any income from non-permitted assets as described in Section 860F(a) (2)(B)
of
the Code, unless the Servicer has agreed to indemnify and hold harmless the
related trust with respect to the imposition of any such taxes.
The
Servicer shall deposit or cause to be deposited, on a daily basis in each
Custodial Account all revenues received with respect to the related REO Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 4.10 hereof. The Servicer
shall maintain separate records with respect to each REO Property identifying
all deposits and withdrawals from the Custodial Account for each REO
Property.
The
Servicer shall furnish to the Owner on each Remittance Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operating statement shall be accompanied by such
other
information as the Owner shall reasonably request.
The
Servicer shall, either itself or through an agent selected by the Servicer,
and
in accordance with the ▇▇▇▇▇▇ ▇▇▇ Guide, manage, conserve, protect and operate
each REO Property in the same manner that it manages, conserves, protects
and
operates other foreclosed property for its own account, and in the same manner
that similar property in the same locality as the REO Property is managed.
Each
REO Disposition shall be carried out by the Servicer at such price and upon
such
terms and conditions as the Servicer deems to be in the best interest of
the
Owner. The REO Disposition Proceeds from the sale of the REO Property shall
be
promptly deposited in the Custodial Account. As soon as practical thereafter,
the expenses of such sale shall be paid and the Servicer shall reimburse
itself
for any related Servicing Advances, or Monthly Advances made pursuant to
Section
5.03.
The
Servicer shall cause each REO Property to be inspected promptly upon the
acquisition of title thereto and shall cause each REO Property to be inspected
at least monthly thereafter or more frequently as may be required by the
circumstances. The Servicer shall make or cause the inspector to make a written
report of each such inspection. Such reports shall be retained in the Servicing
File and copies thereof shall be forwarded by the Servicer to the
Owner.
Section
4.14.Notification
of Adjustments.
With
respect to each Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date in compliance with
requirements of applicable law and the related Mortgage and Mortgage Note.
The
Servicer shall execute and deliver any and all necessary notices required
under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate adjustments. The Servicer shall promptly, upon
written request therefor, deliver to the Owner such notifications and any
additional applicable data regarding such adjustments and the methods used
to
calculate and implement such adjustments. Upon the discovery by the Servicer
or
the receipt of notice from the Owner that the Servicer has failed to adjust
a
Mortgage Interest Rate in accordance with the terms of the related Mortgage
Note
and Mortgage, the Servicer shall immediately deposit in the Custodial Account
from its own funds the amount of any interest loss or deferral caused to
the
Owner thereby.
ARTICLE
V
PAYMENTS
TO THE OWNER
Section
5.01. Remittances.
On
each
Remittance Date, the Servicer shall remit to the Owner (i) all amounts credited
to the Custodial Account as of the close of business on the last day of the
calendar month preceding the Determination Date, net of charges against or
withdrawals from the Custodial Account pursuant to Section 4.05, except (a)
Full
Principal Prepayments received on or before the 15th day of the month in
which a
Remittance Date occurs shall be remitted to the Owner on the Remittance Date
of
such month, and (b) Full Principal Prepayments received after the 15th day
of
the month in which a Remittance Date occurs shall be remitted to the Owner
on
the next following Remittance Date, plus, to the extent not already deposited
in
the Custodial Account, the sum of (ii) all Monthly Advances, if any, which
the
Servicer is obligated to distribute pursuant to Section 5.03 and (iii) all
Prepayment Interest Shortfalls the Servicer is required to make up pursuant
to
Section 4.04, minus (iv) any amounts attributable to Monthly Payments collected
after the Cut-off Date but due on a Due Date or Dates subsequent to the last
day
of the related Due Period, which amounts shall be remitted on the related
Remittance Date next succeeding the Due Period for such amounts.
With
respect to any remittance received by the Owner after the Business Day on
which
such payment was due, the Servicer shall pay to the Owner interest on any
such
late payment at an annual rate equal to the Prime Rate, adjusted as of the
date
of each change, plus two percentage points, but in no event greater than
the
maximum amount permitted by applicable law. Such interest shall be remitted
to
the Owner by the Servicer on the date such late payment is made and shall
cover
the period commencing with the day following such Business Day and ending
with
the Business Day on which such payment is made, both inclusive. The payment
by
the Servicer of any such interest shall not be deemed an extension of time
for
payment or a waiver of any Event of Default by the Servicer.
Section
5.02 Statements
to the Owner and the Master Servicer.
The
Servicer shall furnish to the Owner and the Master Serivcer an individual
Mortgage Loan accounting report (a ”Report”), as of the last Business Day of
each month and the end of the related Prepayment Period, as applicable, in
the
Servicer's assigned loan number order to document Mortgage Loan payment activity
on an individual Mortgage Loan basis. With respect to each month, such Report
shall be received by the Owner and the Master Servicer no later than the
tenth
calendar day of the month of the related Remittance Date (or, with respect
to
information as to Full Principal Prepayments and prepayment penalties no
later
than one (1) Business Day after the end of each Prepayment Period), a report
in
an Excel (or compatible) electronic format, in such format as may be mutually
agreed upon by both the Owner and the Servicer, and which shall provide the
information required to be contained in the monthly statements to
certificateholders as specified in the related pooling and servicing Agreement,
to the extent applicable to the Servicer.
In
addition, the Servicer shall provide to the Master Servicer and the Owner
such
other information known or available to the Servicer that is necessary in
order
to provide the distribution and pool performance information as required
under
Regulation AB, as amended from time to time, as determined by the Owner in
its
sole discretion. The Servicer shall also provide a monthly report, in the
form
of Exhibit E hereto, or such other form as is mutually acceptable to the
Servicer, the Owner and the Master Servicer, Exhibit F with respect to defaulted
mortgage loans and Exhibit K, with respect to realized losses and gains,
with
each such report.
The
Servicer shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or
to
Owner or the Master Servicer pursuant to any applicable law with respect
to the
Mortgage Loans and the transactions contemplated hereby. In addition, the
Servicer shall provide the Owner and the Master Servicer with such information
concerning the Mortgage Loans as is necessary for the Owner and
the
Master Servicer
to
prepare its federal income tax return as Owner and the Master Servicer may
reasonably request from time to time.
In
addition, not more than 60 days after the end of each calendar year, the
Servicer shall furnish to each Person who was an Owner and the Master Servicer
at any time during such calendar year an annual statement in accordance with
the
requirements of applicable federal income tax law as to the aggregate of
remittances of principal and interest for the applicable portion of such
year.
Section
5.03. Monthly
Advances by the Servicer.
Not
later
than the close of business on the Business Day preceding each Remittance
Date,
the Servicer shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Servicer, whether or not deferred
pursuant to Section 4.01, of Monthly Payments, adjusted to the related Mortgage
Loan Remittance Rate, which are delinquent at the close of business on the
related Determination Date; provided, however, that the amount of any such
deposit may be reduced by the Amount Held for Future Distribution (as defined
below) then on deposit in the Custodial Account. Any portion of the Amount
Held
for Future Distribution used to pay Monthly Advances shall be replaced by
the
Servicer by deposit into the Custodial Account on any future Remittance Date
to
the extent that the funds that are available in the Custodial Account for
remittance to the Owner on such Remittance Date are less than the amount
of
payments required to be made to the Owner on such Remittance Date.
The
"Amount Held for Future Distribution" as to any Remittance Date shall be
the
total of the amounts held in the Custodial Account at the close of business
on
the preceding Determination Date which were received after the Cut-off Date
on
account of (i) Liquidation Proceeds, Insurance Proceeds, and Principal
Prepayments received or made in the month of such Remittance Date, and (ii)
payments which represent early receipt of scheduled payments of principal
and
interest due on a date or dates subsequent to the related Due Date.
The
Servicer's obligation to make such Monthly Advances as to any Mortgage Loan
will
continue through the final disposition or liquidation of the Mortgaged Property,
unless the Servicer deems such advance to be nonrecoverable from Liquidation
Proceeds, REO Disposition Proceeds or Insurance Proceeds with respect to
the
applicable Mortgage Loan. In such latter event, the Servicer shall deliver
to
the Owner an Officer's Certificate of the Servicer to the effect that an
officer
of the Servicer has reviewed the related Servicing File and has obtained
a
recent appraisal and has made the reasonable determination that any additional
advances are nonrecoverable from Liquidation or Insurance Proceeds with respect
to the applicable Mortgage Loan.
Section
5.04. Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Owner pursuant to a deed-in--lieu of foreclosure, the Servicer shall submit
to
the Owner a liquidation report with respect to such Mortgaged Property in
such
form as the Servicer and the Owner shall agree. The Servicer shall also provide
reports on the status of REO Property containing such information as Owner
may
reasonably require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01. Assumption
Agreements.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of a Mortgaged Property (whether by absolute
conveyance or by contract of, sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any "due-on-sale"
clause to the extent permitted by law; provided, however, that the Servicer
shall not exercise any such rights if prohibited by law or the terms of the
Mortgage Note from doing so or if the exercise of such rights would impair
or
threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, the Servicer, will enter
into an assumption agreement with the person to whom the Mortgaged Property
has
been conveyed or is proposed to be conveyed, pursuant to which such person
becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. Where an assumption
is allowed pursuant to this Section 6.01, the Servicer, with the prior consent
of the primary mortgage insurer, if any, is authorized to enter into a
substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which
the
original mortgagor is released from liability and such Person is substituted
as
mortgagor and becomes liable under the related Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption
agreement.
In
connection with any such assumption or substitution of liability, the Servicer
shall follow the underwriting practices and procedures of the ▇▇▇▇▇▇ Mae
Guide.
With respect to an assumption or substitution of liability, the Mortgage
Interest Rate borne by the related Mortgage Note and the amount of the Monthly
Payment may not be changed. The Servicer shall notify the Owner that any
such
substitution of liability or assumption agreement has been completed by
forwarding to the Owner the original of any such substitution of liability
or
assumption agreement, which document shall be added to the related Mortgage
Loan
Documents and shall, for all purposes, be considered a part of such related
mortgage file to the same extent as all other documents and instruments
constituting a part thereof. All fees collected by the Servicer for entering
into an assumption or substitution of liability agreement shall belong to
the
Servicer.
Notwithstanding
the foregoing paragraphs of this section 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. For purposes
of
this Section 6.01, the term "assumption" is deemed to also include a sale
of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Section
6.02. Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
Upon
the
payment in full of any Mortgage Loan, the Servicer will immediately notify
the
Custodian with a certification and request for release by a Servicing Officer,
which certification shall include a statement to the effect that all amounts
received in connection with such payment which are required to be deposited
in
the Custodial Account pursuant to Section 4.04 have been so deposited, and
a
request for delivery to the Servicer of the portion of the Mortgage Loan
Documents held by the Custodian. Upon receipt of such certification and request,
the Owner shall promptly release or cause the Custodian to promptly release
the
related Mortgage Loan Documents to the Servicer and the Servicer shall prepare
and deliver for execution by the Owner or at the Owner's option execute under
the authority of a power of attorney delivered to the Servicer by the Owner
any
satisfaction or release. No expense incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account.
In
the
event the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Owner may have under the mortgage instruments,
the Servicer, upon written demand, shall remit within one Business Day to
the
Owner the then outstanding principal balance of the related Mortgage Loan
by
deposit thereof in the Custodial Account. The Servicer shall maintain the
Fidelity Bond insuring the Servicer against any loss it may sustain with
respect
to any Mortgage Loan not satisfied in accordance with the procedures set
forth
herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loans, including for the purpose of collection under any Primary Mortgage
Insurance Policy, upon request of the Servicer and delivery to the Custodian
of
a servicing receipt signed by a Servicing Officer, the Custodian shall release
the portion of the Mortgage Loan Documents held by the Custodian to the
Servicer. Such servicing receipt shall obligate the Servicer to promptly
return
the related Mortgage Loan Documents to the Custodian, when the need therefor
by
the Servicer no longer exists, unless the Mortgage Loan has been liquidated
and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in
the Custodial Account or such documents have been delivered to an attorney,
or
to a public trustee or other public official as required by law, for purposes
of
initiating or pursuing legal action or other proceedings for the foreclosure
of
the Mortgaged Property either judicially or non-judicially, and the Servicer
has
promptly delivered to the Owner or the Custodian a certificate of a Servicing
Officer certifying as to the name and address of the Person to which such
documents were delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan
was liquidated, the servicing receipt shall be released by the Owner or the
Custodian, as applicable, to the Servicer.
Section
6.03. Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall be entitled to
withdraw from the Custodial Account or to retain from interest payments on
the
Mortgage Loans the amounts provided for as the Servicer's Servicing Fee.
Additional servicing compensation in the form of assumption fees, as provided
in
Section 6.01, late payment charges and other ancillary fees shall be retained
by
the Servicer to the extent not required to be deposited in the Custodial
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 therefor except as specifically provided for.
Section
6.04. Annual
Statement as to Compliance; Annual Certification.
(a) The
Servicer will deliver to the Owner and the Master Servicer, not later than
March
15th of each calendar year beginning in 2007, an Officer’s Certificate (an
“Annual Statement of Compliance”) stating, as to each signatory thereof, that
(i) a review of the activities of the Servicer during the preceding calendar
year and of performance under this Agreement or other applicable servicing
agreement has been made under such officer’s supervision and (ii) to the best of
such officer’s knowledge, based on such review, the Servicer has fulfilled all
of its obligations under this Agreement or other applicable servicing 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 officer and the nature and status of cure provisions
thereof. Such Annual Statement of Compliance shall contain no restrictions
or
limitations on its use. Copies of such statement shall be provided by the
Servicer to the Owner upon request and by the Owner to any Person identified
as
a prospective purchaser of the Mortgage Loans. In the event that the Servicer
has delegated any servicing responsibilities with respect to the Mortgage
Loans
to a Subservicer, the Servicer shall deliver an Annual Statement of Compliance
of the Subservicer as described above as to each Subservicer as and when
required with respect to the Servicer.
(b) With
respect to the Mortgage Loans, by March 15th of each calendar year beginning
in
2007, an officer of the Servicer shall execute and deliver an Officer’s
Certificate (an “Annual Certification”) to the Owner, the Master Servicer, the
Securities Administrator, and any related Depositor for the benefit of each
such
entity and such entity’s affiliates and the officers, directors and agents of
any such entity and such entity’s affiliates, in the form attached hereto as
Exhibit G. In the event that the Servicer has delegated any servicing
responsibilities with respect to the Mortgage Loans to a Subservicer or a
Subcontractor, to the extent such Subcontractor is “participating in the
servicing function” pursuant to Item 1122 of Regulation AB, the Servicer shall
deliver an Annual Certification as to each such Subservicer and Subcontractor,
as and when required with respect to the Servicer.
The
Servicer shall indemnify and hold harmless the Master Servicer and its officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 6.04 or Section 6.09 or the negligence, bad
faith
or willful misconduct of the Servicer in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Master Servicer, then the Servicer agrees that it shall contribute
to the amount paid or payable by the Master Servicer as a result of the losses,
claims, damages or liabilities of the Master Servicer in such proportion
as is
appropriate to reflect the relative fault of the Master Servicer on the one
hand
and the Servicer on the other in connection with a breach of the Servicer’s
obligations under this Section 6.04 or Section 6.09 or the Servicer’s
negligence, bad faith or willful misconduct in connection
therewith.
Upon
request by the Owner or the Master Servicer, the Servicer will deliver to
such
requesting party a copy of the audited (if such financial statements are
available, otherwise unaudited) financial statements of the Servicer for
the
most recent fiscal year of the Servicer.
Section
6.05. [Reserved]
Section
6.06. Owner's
Right to Examine Servicer Records.
The
Owner
shall have the right to examine and audit, at its expense, upon reasonable
notice to the Servicer, during business hours or at such other times as might
be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Servicer, or held by another for
the
Servicer or on its behalf or otherwise, which relate to the performance or
observance by the Servicer of the terms, covenants or conditions of this
Agreement.
The
Servicer shall provide to the Owner and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Owner access to any documentation regarding the Mortgage Loans in the possession
of the Servicer which may be required by any applicable regulations. Such
access
shall be afforded without charge, upon reasonable request, during normal
business hours and at the offices of the Servicer, and in accordance with
the
applicable federal or state government regulations.
Section
6.07. Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which
the
Mortgage Loans and REO Property are held, the Servicer shall not take any
action, cause the REMIC to take any action or fail to take (or fail to cause
to
be taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be could (i) endanger the status of the REMIC as a REMIC or
(ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on "prohibited transactions" as defined in Section 860F(a)(2) of
the
Code and the tax on "contribution" to a REMIC set forth in Section 860G(d)
of
the Code unless the Servicer has received an Opinion of Counsel (at the expense
of the party seeking to take such actions) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of
any
such tax.
Section
6.08. Non-solicitation.
The
Servicer shall not knowingly conduct any solicitation exclusively targeted
to
the Mortgagors for the purpose of inducing or encouraging the early prepayment
or refinancing of the related Mortgage Loans. It is understood and agreed
that
promotions undertaken by the Servicer or any agent or affiliate of the Servicer
which are directed to the general public at large, including, without
limitation, mass mailings based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this section. Nothing contained herein shall prohibit the Servicer
from
(i) distributing to Mortgagors any general advertising including information
brochures, coupon books, or other similar documentation which indicates services
the Servicer offers, including refinances or (ii) providing financing of
home
equity loans to Mortgagors at the Mortgagor's request.
Section
6.09. Assessment
of Compliance with Servicing Criteria.
On
and
after January 1, 2006, the Servicer shall service and administer, and shall
cause each subservicer to service or administer, the Mortgage Loans in
accordance with all applicable requirements of the Servicing
Criteria.
With
respect to the Mortgage Loans, the Servicer shall deliver to the Owner or
its
designee, the Master Servicer, the Securities Administrator, and any Depositor
on or before March 15th of each calendar year beginning in 2007, a report
(an
“Assessment of Compliance”) regarding the Servicer’s assessment of compliance
with the Servicing Criteria during the preceding calendar year as required
by
Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB,
or
as otherwise required by the Master Servicer, which as of the date hereof,
require a report by an authorized officer of the Servicer that contains the
following:
(a) A
statement by such officer of its responsibility for assessing compliance
with
the Servicing Criteria applicable to the Servicer;
(b) A
statement by such officer that such officer used the Servicing Criteria to
assess compliance with the Servicing Criteria applicable to the
Servicer;
(c) An
assessment by such officer of the Servicer’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a
whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit J hereto.
With
respect to the Mortgage Loans, on or before March 15th of each calendar year
beginning in 2007, the Servicer shall furnish to the Owner or its designee,
the
Master Servicer, the Securities Administrator and any Depositor a report
(an
“Attestation Report”) by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance made by the Servicer, as required
by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation
AB, or as otherwise required by the Master Servicer, which Attestation Report
must be made in accordance with standards for attestation reports issued
or
adopted by the Public Company Accounting Oversight Board.
The
Servicer shall cause each Subservicer, and each Subcontractor determined
by the
Servicer pursuant to Section 11.15 to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Owner, the Master Servicer, the Securities Administrator and any Depositor
an
assessment of compliance and accountants’ attestation as and when provided in
Section 6.09.
Section
6.10. Intent
of the Parties; Reasonableness.
The
Owner
and the Servicer acknowledge and agree that a purpose of clause (g) of Article
III, Sections 5.02, 6.04, 6.09 and 10.02 of this Agreement is to facilitate
compliance by the Owner and any Depositor with the provisions of Regulation
AB
and related rules and regulations of the Commission. None of the Owner, the
Master Servicer or any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder.
The
Servicer acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply
with
requests made by the Owner or any Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations
of
Regulation AB. In connection with any Pass-Through Transfer, the Servicer
shall
cooperate fully with the Owner to deliver to the Owner (including any of
its
assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Owner or any Depositor to permit the Owner or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Servicer, any Subservicer and the Mortgage Loans,
or
the servicing of the Mortgage Loans, reasonably believed by the Owner or
any
Depositor to be necessary in order to effect such compliance.
ARTICLE
VII
REPORTS
TO BE PREPARED BY SERVICER
Section
7.01. Servicer
Shall Provide Information as Reasonably Required.
The
Servicer shall furnish to the Owner upon request, during the term of this
Agreement, such periodic, special or other reports or information, whether
or
not provided for herein, as shall be necessary, reasonable or appropriate
with
respect to the purposes of this Agreement. The Servicer may negotiate with
the
Owner for a reasonable fee for providing such report or information, unless
(i)
the Servicer is required to supply such report or information pursuant to
any
other section of this Agreement, or (ii) the report or information has been
requested in connection with Internal Revenue Service or other regulatory
agency
requirements. All such reports or information shall be provided by and in
accordance with all reasonable instructions and directions given by the Owner.
The Servicer agrees to execute and deliver all such instruments and take
all
such action as the Owner, from time to time, may reasonably request in order
to
effectuate the purpose and to carry out the terms of this
Agreement.
ARTICLE
VIII
THE
SERVICER
Section
8.01. Indemnification;
Third Party Claims.
The
Servicer agrees to indemnify the Owner, its successors and assigns, any agent
of
the Owner, and the Master Servicer, and hold each of such Persons harmless
from
and against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and expenses
that such Person may sustain in any way related to the failure of the Servicer
to perform in any way its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement and for breach of any representation
or warranty of the Servicer contained herein. The Servicer shall immediately
notify the Owner or other indemnified Person if a claim is made by a third
party
with respect to this Agreement or the Mortgage Loans, assume (with the consent
of the Owner and such other Indemnified Person and with counsel reasonably
satisfactory to the Owner and such Person) 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
such other indemnified Person in respect of such claim but failure to so
notify
the Owner and such other indemnified Person shall not limit its obligations
hereunder. The Servicer agrees that it will not enter into any settlement
of any
such claim without the consent of the Owner and such other indemnified Person
unless such settlement includes an unconditional release of the Owner and
such
other indemnified Person from all liability that is the subject matter of
such
claim. The provisions of this Section 8.01 shall survive termination of this
Agreement.
Section
8.02. Merger
or Consolidation of the Servicer.
The
Servicer will keep in full effect its existence, rights and franchises as
a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as
a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement
or any
of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer
whether or not related to loan servicing, shall be the successor of the Servicer
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
shall
be an institution (i) having a GAAP net worth of not less than $25,000,000,
(ii)
the deposits of which are insured by the FDIC, or which is a HUD-approved
mortgagee whose primary business is in origination and servicing of first
lien
mortgage loans, and (iii) which is a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac approved
seller/servicer in good standing.
Section
8.03. Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the officers, employees or agents of the Servicer
shall
be under any liability to the Owner 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 made in good faith; provided, however, that this provision shall
not
protect the Servicer or any such person against any breach of warranties
or
representations made herein, or failure to perform in any way its obligations
in
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of gross negligence
or any
breach of the terms and conditions of this Agreement. The Servicer and any
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 the Owner
respecting any matters arising hereunder. The Servicer shall not be under
any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with
this
Agreement and which in its opinion may involve it in any expenses or liability;
provided, however, that the Servicer may, with the consent of the Owner,
which
consent shall not be unreasonably withheld, undertake any such action which
it
may deem necessary or desirable with respect to this Agreement and the rights
and duties of the parties hereto. In such event, the reasonable legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities for which the Owner will be liable, and the
Servicer shall be entitled to be reimbursed therefor from the Custodial Account
pursuant to Section 4.05.
Section
8.04. Servicer
Not to Resign.
The
Servicer shall not resign from the obligations and duties hereby imposed
on it
except by mutual consent of the Servicer and the Owner or upon the determination
that its duties hereunder are no longer permissible under applicable law
and
such incapacity cannot be cured by the Servicer. Any such determination
permitting the resignation of the Servicer shall be evidenced by an Opinion
of
Counsel to such effect delivered to the Owner which Opinion of Counsel shall
be
in form and substance acceptable to the Owner. No such resignation shall
become
effective until a successor shall have assumed the Servicer's responsibilities
and obligations hereunder in the manner provided in Section 11.01.
Section
8.05. No
Transfer of Servicing.
With
respect to the retention of the Servicer to service the Mortgage Loans
hereunder, the Servicer acknowledges that the Owner has acted in reliance
upon
the Servicer's independent status, the adequacy of its servicing facilities,
plan, personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the generality
of this section, the Servicer shall not either assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written approval of the Owner, which
approval shall not be unreasonably withheld; provided that the Servicer may
assign the Agreement and the servicing hereunder without the consent of Owner
to
an affiliate of the Servicer to which all servicing of the Servicer is assigned
so long as (i) such affiliate is a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved servicer
and (ii) if it is intended that such affiliate be spun off to the shareholders
of the Servicer, such affiliate have a GAAP net worth of at least $25,000,000
and (iii) such affiliate shall deliver to the Owner a certification pursuant
to
which such affiliate shall agree to be bound by the terms and conditions
of this
Agreement and shall certify that such affiliate is a ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇
Mac
approved servicer in good standing.
ARTICLE
IX
DEFAULT
Section
9.01. Events
of Default.
In
case
one or more of the following Events of Default by the Servicer shall occur
and
be continuing, that is to say:
(i) any
failure by the Servicer to remit to the Owner any payment required to be
made
under the terms of this Agreement which continues unremedied for one (1)
Business Day after written notice thereof (it being understood that this
subparagraph shall not affect Servicer's obligation pursuant to Section 5.01
to
pay default interest on any remittance received by the Owner after the Business
Day on which such payment was due); 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
set
forth in this Agreement (other than those described in clause (ix) hereof),
the
breach of which has a material adverse effect and which continue unremedied
for
a period of thirty days (except that such number of days shall be fifteen
in the
case of a failure to pay any premium for any insurance policy required to
be
maintained under this Agreement and such failure shall be deemed to have
a
material adverse effect) 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
Owner; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(iv) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(v) 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
(vi) the
Servicer ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac (to the
extent such entities are then operating in a capacity similar to that in
which
they operate on the date hereof) as a mortgage loan servicer for more than
thirty days to the extent such entities perform similar functions;
or
(vii) the
Servicer attempts to assign its right to servicing compensation hereunder
or the
Servicer attempts, without the consent of the Owner, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its
duties
hereunder or any portion thereof except as otherwise permitted herein;
or
(viii) the
Servicer ceases to be qualified to transact business in any jurisdiction
where
it is currently so qualified, but only to the extent such non-qualification
materially and adversely affects the Servicer's ability to perform its
obligations hereunder; or
(ix) failure
by the Servicer to duly perform, within the required time period, its
obligations under Section 6.04, 6.09 or any of clauses (v) through (viii)
of
Section 10.02;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Owner, by notice in writing to the Servicer may, in addition
to
whatever rights the Owner may have under Section 8.01 and at law or equity
to
damages, including injunctive relief and specific performance, terminate
all the
rights and obligations of the Servicer (and if the Servicer is servicing
any of
the Mortgage Loans in a Pass-Through Transfer, appoint a successor servicer
reasonably acceptable to the Master Servicer for such Pass-Through Transfer)
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Servicer for the same. On or after the receipt by
the
Servicer of such written 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 the successor appointed pursuant to Section 11.01.
Upon
written request from the Owner, the Servicer shall prepare, execute and deliver,
any and all documents and other instruments, place in such successor's
possession all Servicing Files, and do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise, at the Servicer's sole expense.
The
Servicer agrees to cooperate with the Owner 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
Custodial Account or Escrow Account or thereafter received with respect to
the
Mortgage Loans or any REO Property.
The
Servicer shall promptly reimburse the Owner (or any designee of the Owner,
such
as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Owner (or such designee) or such Depositor, as such
are
incurred, in connection with the termination of the Servicer as servicer
and the
transfer of servicing of the Mortgage Loans to a successor servicer, if the
termination and/or transfer of servicing is for cause related to a servicer
default. The provisions of this paragraph shall not limit whatever rights
the
Owner or any Depositor may have under other provisions of this Agreement
and/or
any applicable Reconstitution Agreement or otherwise, whether in equity or
at
law, such as an action for damages, specific performance or injunctive
relief.
Section
9.02. Waiver
of Defaults.
The
Owner
may waive only by written notice any default by the Servicer in the performance
of its obligations hereunder and its consequences. Upon any such waiver of
a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose
of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so
waived
in writing.
ARTICLE
X
TERMINATION
Section
10.01. Termination.
The
respective obligations and responsibilities of the Servicer shall terminate
upon: (i) the later of the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or the disposition of all
REO
Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Servicer and the Owner in writing; or (iii) termination by
the
Owner pursuant to Section 9.01. Simultaneously with any such termination
and the
transfer of servicing hereunder, the Servicer shall be entitled to be reimbursed
for any outstanding Servicing Advances and Monthly Advances.
Section
10.02. Cooperation
of Servicer with a Reconstitution.
The
Servicer and the Owner agree that with respect to some or all of the Mortgage
Loans, on or after the related closing date, on one or more dates (each a
"Reconstitution Date") at the Owner's sole option, the Owner may effect a
sale
(each, a "Reconstitution") of some or all of the Mortgage Loans then subject
to
this Agreement, without recourse, to:
(a) one
or
more third party purchasers in one or more in whole loan transfers (each,
a
"Whole Loan Transfer"); or
(b) one
or
more trusts or other entities to be formed as part of one or more Pass-Through
Transfers.
The
Servicer agrees to execute in connection with any agreements among the Owner,
the Servicer, and any servicer in connection with a Whole Loan Transfer,
an
assignment, assumption and recognition agreement, or, at Owner’s request, a
seller's warranties and servicing agreement or a participation and servicing
agreement or similar agreement in form and substance reasonably acceptable
to
the parties, and in connection with a Pass-Through Transfer, a pooling and
servicing agreement in form and substance reasonably acceptable to the parties.
It is understood that any such Reconstitution Agreements will not contain
any
greater obligations on the part of Servicer than are contained in this
Agreement.
With
respect to each Whole Loan Transfer and each Pass-Through Transfer entered
into
by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and
any
prospective purchaser with respect to all reasonable requests and due diligence
procedures; (2) to execute, deliver and perform all Reconstitution Agreements
required by the Owner; (3) to restate the representations and warranties
set
forth in this Agreement as of the settlement or closing date in connection
with
such Reconstitution (each, a "Reconstitution Date").
In
addition, the Servicer shall provide to such servicer or issuer, as the case
may
be, and any other participants in such Reconstitution:
(i) any
and
all information and appropriate verification of information which may be
reasonably available to the Servicer, whether through letters of its auditors
and counsel or otherwise, as the Owner or any such other participant shall
request upon reasonable demand;
(ii) such
additional representations, warranties, covenants, opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Servicer
as are reasonably agreed upon by the Servicer and the Owner or any such other
participant;
(iii) within
5
Business Days after request by the Owner, the information with respect to
the
Servicer (as servicer) as required by Item 1108(b) and (c) of Regulation
AB, a
summary of the requirements of which as of the date hereof is attached hereto
as
Exhibit I for convenience of reference only, as determined by Owner in its
sole
discretion. In the event that the Servicer has delegated any servicing
responsibilities with respect to the Mortgage Loans to a Subservicer, the
Servicer shall provide the information required pursuant to this clause with
respect to the Subservicer;
(iv) within
5
Business Days after request by the Owner,
(a)
information regarding any legal proceedings pending (or known to be
contemplated) against the Servicer (as servicer) and each Subservicer as
required by Item 1117 of Regulation AB, a summary of the requirements of
which
as of the date hereof is attached hereto as Exhibit I for convenience of
reference only, as determined by Owner in its sole discretion,
(b)
information regarding affiliations with respect to the Servicer (as servicer)
and each Subservicer as required by Item 1119(a) of Regulation AB, a summary
of
the requirements of which as of the date hereof is attached hereto as Exhibit
I
for convenience of reference only, as determined by Owner in its sole
discretion, and
(c)
information regarding relationships and transactions with respect to the
Servicer (as servicer) and each Subservicer as required by Item 1119(b) and
(c)
of Regulation AB, a summary of the requirements of which as of the date hereof
is attached hereto as Exhibit I for convenience of reference only, as determined
by Owner in its sole discretion;
(v) for
the
purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Servicer shall (or shall
cause each Subservicer to) (i) provide prompt notice to the Owner, the Master
Servicer and any Depositor in writing of (A) any material litigation or
governmental proceedings involving the Servicer or any Subservicer, (B) any
affiliations or relationships that develop following the closing date of
a
Pass-Through Transfer between the Servicer or any Subservicer and any of
the
parties specified in clause (D) of paragraph (a) of this Section (and any
other
parties identified in writing by the requesting party) with respect to such
Pass-Through Transfer, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation
or sale
of substantially all of the assets of the Servicer, and (E) the Servicer’s entry
into an agreement with a Subservicer to perform or assist in the performance
of
any of the Servicer’s obligations under this Agreement or any Reconstitution
Agreement and (ii) provide to the Owner and any Depositor a description of
such
proceedings, affiliations or relationships;
(vi) as
a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner, the Master Servicer,
and
any Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Owner and any Depositor
of
such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Owner and such Depositor, all information
reasonably requested by the Owner or any Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K with respect to any class
of
asset-backed securities;
(vii) in
addition to such information as the Servicer, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, not later than ten
days
prior to the deadline for the filing of any distribution report on Form 10-D
in
respect of any Pass-Through Transfer that includes any of the Mortgage Loans
serviced by the Servicer or any Subservicer, the Servicer or such Subservicer,
as applicable, shall, to the extent the Servicer or such Subservicer has
knowledge, provide to the party responsible for filing such report (including,
if applicable, the Master Servicer) notice of the occurrence of any of the
following events along with all information, data, and materials related
thereto
as may be required to be included in the related distribution report on Form
10-D (as specified in the provisions of Regulation AB referenced
below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(C) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation AB);
and
(viii) the
Servicer shall provide to the Owner, the Master Servicer and any Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors
and
Omission Insurance policy, financial information and reports, and such other
information related to the Servicer or any Subservicer or the Servicer or
such
Subservicer’s performance hereunder.
In
the
event of a conflict or inconsistency between the terms of Exhibit I and the
text
of the applicable Item of Regulation AB as cited above, the text of Regulation
AB, its adopting release and other public statements of the SEC shall
control.
The
Servicer shall indemnify the Owner, each affiliate of the Owner, and each
of the
following parties participating in a Pass-Through Transfer: each issuing
entity;
each Person (including, but not limited to, the Master Servicer, if applicable)
responsible for the preparation, execution or filing of any report required
to
be filed with the Commission with respect to such Pass-Through Transfer,
or for
execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under
the Exchange Act with respect to such Pass-Through Transfer; each broker
dealer
acting as underwriter, placement agent or initial purchaser, each Person
who
controls any of such parties or the Depositor (within the meaning of Section
15
of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees, agents and affiliates
of each
of the foregoing and of the Depositor (each, an “Indemnified Party”), and shall
hold each of them harmless from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
arising out of or based upon:
(i)(A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, data, accountants’ letter or other
material provided under this Section 10.02 by or on behalf of the Servicer,
or
provided under this Section 10.02, Sections 6.04 and 6.09 and by or on behalf
of
any Subservicer or Subcontractor (collectively, the “Servicer Information”), or
(B) the omission or alleged omission to state in the Servicer Information
a
material fact required to be stated in the Servicer Information or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, by way of clarification,
that
clause (B) of this paragraph shall be construed solely by reference to the
Servicer Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or separately
from
such other information;
(ii)
any
breach by the Servicer of its obligations under this Section 10.02, including
particularly any failure by the Servicer, any Subservicer or any Subcontractor
to deliver any information, report, certification, accountants’ letter or other
material when and as required under this Section 10.02, including any failure
by
the Servicer to identify pursuant to Section 11.15 any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB;
(iii)
any
breach by the Servicer of a representation or warranty set forth in Section
Article III or in a writing furnished pursuant to clause (h) of Article III
and
made as of a date prior to the closing date of the related Pass-Through
Transfer, to the extent that such breach is not cured by such closing date,
or
any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to clause (h) of Article III to the extent made as of
a date
subsequent to such closing date; or
(iv)
the
negligence bad faith or willful misconduct of the Servicer in connection
with
its performance under this Section 10.02.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Servicer agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party
in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Servicer on the other.
In
the
case of any failure of performance described above, the Servicer shall promptly
reimburse the Owner, any Depositor, as applicable, and each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Pass-Through Transfer, or for execution
of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Pass-Through Transfer, for all costs reasonably
incurred by each such party in order to obtain the information, report,
certification, accountants’ letter or other material not delivered pursuant to
this Section or Section 6.04 or Section 6.09 as required by the Servicer,
any
Subservicer or any Subcontractor.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer
or Pass
Through Transfer shall be subject to this Agreement and shall continue to
be
serviced in accordance with the terms of this Agreement and with respect
thereto
this Agreement shall remain in full force and effect.
Section
10.03. Master
Servicer.
The
Servicer, including any successor servicer hereunder, shall be subject to the
supervision of the Master Servicer, which Master Servicer shall be obligated
to
ensure that the Servicer services the Mortgage Loans in accordance with the
provisions of this Agreement. The Master Servicer, acting on behalf of the
Owner, shall have the same rights as the Owner to enforce the obligations
of the
Servicer under this Agreement. The Master Servicer shall be entitled to
terminate the rights and obligations of the Servicer under this Agreement
upon
the failure of the Servicer to perform any of its obligations under this
Agreement if such failure constitutes an Event of Default as provided in
Article
IX of this Agreement. Notwithstanding anything to the contrary, in no event
shall the Master Servicer assume any of the obligations of the Owner under
this
Agreement.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Successor
to the Servicer.
Prior
to
termination of the Servicer's responsibilities and duties under this Agreement
pursuant to Sections 8.04, 9.01 or 10.01(ii), the Owner shall (i) succeed
to and
assume all of the Servicer's responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor having the characteristics
set
forth in Section 8.02 hereof and which shall succeed to all rights and assume
all of the responsibilities, duties and liabilities of the Servicer under
this
Agreement prior to the termination of the Servicer's responsibilities, duties
and liabilities under this Agreement. In connection with such appointment
and
assumption, the Owner may make such arrangements for the compensation of
such
successor out of payments on Mortgage Loans as the Owner and such successor
shall agree. 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, 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 and shall in no event relieve
the
Servicer of the representations and warranties made pursuant to Article III
and
the remedies available to the Owner under Section 8.01, it being understood
and
agreed that the provisions of such Article III and Section 8.01 shall be
applicable to the Servicer notwithstanding any such resignation or termination
of the Servicer, or the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and to the Owner an instrument accepting such appointment,
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 this Agreement pursuant to Section 8.04, 9.01
or
10.01 shall not affect any claims that the Owner may have against the Servicer
arising prior to any such termination or resignation.
The
Servicer shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Servicing Files and related documents
and
statements held by it hereunder and the Servicer shall account for all funds.
The Servicer shall execute and deliver such instruments and do such other
things
all as may reasonably be required to more fully and definitely vest and confirm
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Servicer. The successor shall make such arrangements
as
it may deem appropriate to reimburse the Servicer for unrecovered Monthly
Advances and Servicing Advances which the successor retains hereunder and
which
would otherwise have been recovered by the Servicer pursuant to this Agreement
but for the appointment of the successor servicer.
Upon
a
successor's acceptance of appointment as such, the Servicer shall notify
the
Owner of such appointment.
All
reasonable costs and expenses incurred in connection with replacing the Servicer
upon its resignation or the termination of the Servicer in accordance with
the
terms of this Agreement, including, without limitation, (i) all legal costs
and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an Event of Default
and (ii) all costs and expenses associated with the complete transfer of
servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor service to service the
Mortgage Loans in accordance with this Agreement, shall be payable on demand
by
the resigning or terminated Servicer without any right of reimbursement
therefor.
Section
11.02. Amendment.
This
Agreement may be amended from time to time by the Servicer and the Owner
by
written agreement signed by the Servicer and the Owner.
Section
11.03. Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of all 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 Servicer at the Owner's
expense on direction of the Owner accompanied by an opinion of counsel to
the
effect that such recordation materially and beneficially affects the interest
of
the Owner or is necessary for the administration or servicing the Mortgage
Loans.
Section
11.04. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAWS. THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
11.05. Notices.
Any
demands, notices or other communications permitted or required hereunder
shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or transmitted by telecopier and confirmed by a similar mailed
writing, as follows:
(i)
if
to the
Servicer:
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
President or General Counsel
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii)
if
to the
Owner:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Global Credit Administration
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii)
if
to the
Master Servicer:
▇▇▇▇▇
Fargo Bank, National Association
▇.▇.
▇▇▇
▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Master Servicing - Bear ▇▇▇▇▇▇▇
And
for
overnight delivery to:
▇▇▇▇▇
Fargo Bank, National Association
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Master Servicing - Bear ▇▇▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice, or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the address
(as
evidenced, in the case of registered or certified mail, by the date noted
on the
return receipt).
Section
11.06. Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity
of any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement,
the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of
this
Agreement without regard to such invalidity.
Section
11.07. Exhibits
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
11.08. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii) references
herein to "Articles," "Sections," "Subsections," "Paragraphs," and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words
"herein," "hereof," "hereunder" and other words of similar import refer to
this
Agreement as a whole and not to any particular provision; and
(vi) the
term
"include" or "including" shall mean without limitation by reason of
enumeration.
Section
11.09. Reproduction
of Documents.
This
Agreement and all documents relating hereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may
be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
11.10. Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Except as required to be disclosed by law,
each
party agrees to keep all non-public information regarding the other party
strictly confidential, and to use all such information solely in order to
effectuate the purpose of this Agreement.
Section
11.11. Assignment
by the Owner.
The
Owner
shall have the right, without the consent of the Servicer hereof, to assign,
in
whole or in part, its interest under this Agreement with respect to some
or all
of the Mortgage Loans, and designate any person to exercise any rights of
the
Owner hereunder, by executing an assignment and assumption agreement reasonably
acceptable to the Servicer and the assignee or designee shall accede to the
rights and obligations hereunder of the Owner with respect to such Mortgage
Loans. In no event shall Owner sell a partial interest in any Mortgage Loan.
All
references to the Owner in this Agreement shall be deemed to include its
assignees or designees. It is understood and agreed between the Owners and
the
Servicer that no more than five (5) Persons shall have the right of owner
under
this Agreement at any one time.
Section
11.12. No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership
or
joint venture between the parties hereto and the services of the Servicer
shall
be rendered as an independent contractor and not as agent for
Owner.
Section
11.13. Execution,
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.05, this Agreement shall inure
to
the benefit of and be binding upon the Servicer and the Owner and their
respective successors and assigns.
Section
11.14. Entire
Agreement.
Each
of
the Servicer and the Owner acknowledge that no representations, agreements
or
promises were made to it by the other party or any of its employees other
than
those representations, agreements or promises specifically contained herein.
This Agreement sets forth the entire understanding between the parties hereto
and shall be binding upon all successors of both parties.
Section
11.15. Use
of
Subservicers and Subcontractors.
(a) The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
or any Reconstitution Agreement unless the Servicer complies with the provisions
of paragraph (b) of this Section. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the servicers of any Subcontractor, to fulfill
any
of the obligations of the Servicer as servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions
of
paragraph (d) of this Section. The Servicer must notify the Owner, the Master
Servicer and any Depositor in writing of any affiliations or relationships
that
develop following the closing date between the Servicer or any Subservicer.
(b) The
Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Owner and any Depositor to comply with
the
provisions of this Section and with clauses (g) and (j) of Article III, Sections
6.04, 6.09 and 10.02 of this Agreement to the same extent as if such Subservicer
were the Owner, and to provide the information required with respect to such
Subservicer under Section 3.01(i) of this Agreement. The Servicer shall be
responsible for obtaining from each Subservicer and delivering to the Owner,
the
Master Servicer and any Depositor any Annual Statement of Compliance required
to
be delivered by such Subservicer under Section 6.04(a), any Assessment of
Compliance and Attestation Report required to be delivered by such Subservicer
under Section 6.09, any Annual Certification required under Section 6.04(b),
any
Additional Form 10-D Disclosure and any Form 8-K Disclosure Information,
as and
when required to be delivered.
(c) The
Servicer shall promptly upon request provide to the Owner, the Master Servicer
and any Depositor (or any designee of the Depositor, such as an administrator)
a
written description (in form and substance satisfactory to the Owner, the
Master
Servicer and such Depositor) of the role and function of each Subcontractor
utilized by the Servicer or any Subservicer, 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.
(d) As
a condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Owner and any Depositor
to comply with the provisions of Sections 6.07 and 10.02 of this Agreement
to
the same extent as if such Subcontractor were the Servicer. The Servicer
shall
be responsible for obtaining from each Subcontractor and delivering to the
Owner
and any Depositor any Assessment of Compliance and Attestation Report and
other
certificates required to be delivered by such Subservicer and such Subcontractor
under Section 6.09 (and any Annual Certification required under Section
6.09(b)), in each case as and when required to be delivered.
11.16. Third
Party Beneficiary
For
purposes of this Agreement, each Master Servicer shall be considered a third
party beneficiary to this Agreement, entitled to all the rights and benefits
hereof as if it were a direct party to this Agreement.
IN
WITNESS WHEREOF, the Servicer and the Owner have caused their names to be
signed
hereto by their respective officers thereunto duly authorized as of the date
and
year first above written.
|
EMC
MORTGAGE CORPORATION
Servicer
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
Owner
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
(date)
To:______________________
_________________________
_________________________
(the
"Depository")
As
"Servicer" under the Servicing Agreement, dated as of [_____] 1, 2006, (the
"Agreement"), we hereby authorize and request you to establish an account,
as a
Custodial Account pursuant to Section 4.04 of the Agreement, to be designated
as
"[Servicer] Custodial Account, in trust for [Owner], Owner of Whole Loan
Mortgages, and various Mortgagors." All deposits in the account shall be
subject
to withdrawal therefrom by order signed by the Servicer. You may refuse any
deposit which would result in violation of the requirement that the account
be
fully insured as described below. This letter is submitted to you in duplicate.
Please execute and return one original to us.
|
By:
|
|
|
Name:
|
|
|
Title:
|
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. The full amount deposited at any time in the account will
be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance Fund
or
will be invested in Permitted Investments as defined in the
Agreement.
|
[ ]
|
|
|
(name
of Depository)
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
(date)
To:___________________________
______________________________
______________________________
(the
"Depository")
As
"Servicer" under the Servicing Agreement, dated as of [______] 1, 2006 (the
"Agreement"), we hereby authorize and request you to establish an account,
as an
Escrow Account pursuant to Section 4.06 of the Agreement, to be designated
as
"[Servicer] Escrow Account, in trust for [Owner], Owner of Whole Loan Mortgages,
and various Mortgagors." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse any
deposit
which would result in violation of the requirement that the account be fully
insured as described below. This letter is submitted to you in duplicate.
Please
execute and return one original to us.
|
By:
|
|
|
Name:
|
|
|
Title:
|
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. The full amount deposited at any time in the account will
be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance Fund
or
will be invested in Permitted Investments as defined in the
Agreement.
|
[ ]
|
|
|
(name
of Depository)
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
D
REQUEST
FOR RELEASE OF DOCUMENTS
|
To:
|
▇▇▇▇▇
Fargo Bank, National Association
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
|
|
|
▇▇▇▇.,
▇▇ ▇▇▇▇▇
|
|
|
Attn:
________________
|
|
Re:
|
Custodial
Agreement dated as of November 30, 1999, between EMC Mortgage Corporation
and ▇▇▇▇▇ Fargo Bank, National Association, as
Custodian
|
In
connection with the administration of the Mortgage Loans held by you as
Custodian for the Owner pursuant to the above-captioned Custody Agreement,
we
request the release, and hereby acknowledge receipt, of the Custodian's Mortgage
File for the Mortgage Loan described below, for the reason
indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
|
_______
|
1.
|
Mortgage
Paid in Full
|
|
_______
|
2.
|
Foreclosure
|
|
_______
|
3.
|
Substitution
|
|
_______
|
4.
|
Other
Liquidation (Repurchases, etc.)
|
|
_______
|
5.
|
Nonliquidation
|
[Reason:_______________________________]
Address
to which Custodian should
Deliver
the Custodian's Mortgage File:
|
__________________________________________
|
|
__________________________________________
|
|
__________________________________________
|
|
By:
|
||
|
(authorized
signer)
|
||
|
Issuer:
|
||
|
Address:
|
||
|
Date:
|
||
Custodian
▇▇▇▇▇
Fargo Bank, National Association
Please
acknowledge the execution of the above request by your signature and date
below:
|
Signature
|
Date
|
|||
|
Documents
returned to Custodian:
|
||||
|
Custodian:
|
Date:
|
|||
EXHIBIT
E
REPORTING
DATA FOR MONTHLY REPORT
|
Standard
File Layout - Master Servicing
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
Text
up to 10 digits
|
20
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
Text
up to 10 digits
|
10
|
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
Text
up to 10 digits
|
10
|
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
Maximum
length of 30 (Last, First)
|
30
|
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported
by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
MM/DD/YYYY
|
10
|
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
MM/DD/YYYY
|
10
|
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
MM/DD/YYYY
|
10
|
|
|
Action
Code Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|||
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of
the cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the
current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for
the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable
for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as
reported by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
MM/DD/YYYY
|
10
|
|
|
MOD_TYPE
|
The
Modification Type.
|
Varchar
- value can be alpha or numeric
|
30
|
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
EXHIBIT
F
REPORTING
DATA FOR DEFAULTED LOANS
Standard
File Layout - Delinquency Reporting
|
(a) Column/Header
Name
|
(b) Description
|
(c) Decimal
|
(d) Format
Comment
|
|
(e) SERVICER_LOAN_NBR
|
(f) A
unique number assigned to a loan by the Servicer. This may be
different
than the LOAN_NBR
|
(g)
|
(h)
|
|
(i) LOAN_NBR
|
(j) A
unique identifier assigned to each loan by the originator.
|
(k)
|
(l)
|
|
(m) CLIENT_NBR
|
(n) Servicer
Client Number
|
(o)
|
(p)
|
|
(q) SERV_INVESTOR_NBR
|
(r) Contains
a unique number as assigned by an external servicer to identify
a group of
loans in their system.
|
(s)
|
(t)
|
|
(u) BORROWER_FIRST_NAME
|
(v) First
Name of the Borrower.
|
(w)
|
(x)
|
|
(y) BORROWER_LAST_NAME
|
(z) Last
name of the borrower.
|
(aa)
|
(bb)
|
|
(cc) PROP_ADDRESS
|
(dd) Street
Name and Number of Property
|
(ee)
|
(ff)
|
|
(gg) PROP_STATE
|
(hh) The
state where the property located.
|
(ii)
|
(jj)
|
|
(kk) PROP_ZIP
|
(ll) Zip
code where the property is located.
|
(mm)
|
(nn)
|
|
(oo) BORR_NEXT_PAY_DUE_DATE
|
(pp) The
date that the borrower's next payment is due to the servicer
at the end of
processing cycle, as reported by Servicer.
|
(qq)
|
(rr) MM/DD/YYYY
|
|
(ss) LOAN_TYPE
|
(tt) Loan
Type (i.e. FHA, VA, Conv)
|
(uu)
|
(vv)
|
|
(ww) BANKRUPTCY_FILED_DATE
|
(xx) The
date a particular bankruptcy claim was filed.
|
(yy)
|
(zz) MM/DD/YYYY
|
|
(aaa) BANKRUPTCY_CHAPTER_CODE
|
(bbb) The
chapter under which the bankruptcy was filed.
|
(ccc)
|
(ddd)
|
|
(eee) BANKRUPTCY_CASE_NBR
|
(fff) The
case number assigned by the court to the bankruptcy
filing.
|
(ggg)
|
(hhh)
|
|
(iii) POST_PETITION_DUE_DATE
|
(jjj) The
payment due date once the bankruptcy has been approved by the
courts
|
(kkk)
|
(lll) MM/DD/YYYY
|
|
(mmm) BANKRUPTCY_DCHRG_DISM_DATE
|
(nnn) The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal,
Discharged
and/or a Motion For Relief Was Granted.
|
(ooo)
|
(ppp) MM/DD/YYYY
|
|
(qqq) LOSS_MIT_APPR_DATE
|
(rrr) The
Date The Loss Mitigation Was Approved By The Servicer
|
(sss)
|
(ttt) MM/DD/YYYY
|
|
(uuu) LOSS_MIT_TYPE
|
(vvv) The
Type Of Loss Mitigation Approved For A Loan Such As;
|
(www)
|
(xxx)
|
|
(yyy) LOSS_MIT_EST_COMP_DATE
|
(zzz) The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
(aaaa)
|
(bbbb) MM/DD/YYYY
|
|
(cccc) LOSS_MIT_ACT_COMP_DATE
|
(dddd) The
Date The Loss Mitigation Is Actually Completed
|
(eeee)
|
(ffff) MM/DD/YYYY
|
|
(gggg) FRCLSR_APPROVED_DATE
|
(hhhh) The
date DA Admin sends a letter to the servicer with instructions
to begin
foreclosure proceedings.
|
(iiii)
|
(jjjj) MM/DD/YYYY
|
|
(kkkk) ATTORNEY_REFERRAL_DATE
|
(llll) Date
File Was Referred To Attorney to Pursue Foreclosure
|
(mmmm)
|
(nnnn) MM/DD/YYYY
|
|
(oooo) FIRST_LEGAL_DATE
|
(pppp) Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
(qqqq)
|
(rrrr) MM/DD/YYYY
|
|
(ssss) FRCLSR_SALE_EXPECTED_DATE
|
(tttt) The
date by which a foreclosure sale is expected to occur.
|
(uuuu)
|
(vvvv) MM/DD/YYYY
|
|
(wwww) FRCLSR_SALE_DATE
|
(xxxx) The
actual date of the foreclosure sale.
|
(yyyy)
|
(zzzz) MM/DD/YYYY
|
|
(aaaaa) FRCLSR_SALE_AMT
|
(bbbbb) The
amount a property sold for at the foreclosure sale.
|
(ccccc) 2
|
(ddddd) No
commas(,) or dollar signs ($)
|
|
(eeeee) EVICTION_START_DATE
|
(fffff) The
date the servicer initiates eviction of the borrower.
|
(ggggg)
|
(hhhhh) MM/DD/YYYY
|
|
(iiiii) EVICTION_COMPLETED_DATE
|
(jjjjj) The
date the court revokes legal possession of the property from
the
borrower.
|
(kkkkk)
|
(lllll) MM/DD/YYYY
|
|
(mmmmm) LIST_PRICE
|
(nnnnn) The
price at which an REO property is marketed.
|
(ooooo) 2
|
(ppppp) No
commas(,) or dollar signs ($)
|
|
(qqqqq) LIST_DATE
|
(rrrrr) The
date an REO property is listed at a particular price.
|
(sssss)
|
(ttttt) MM/DD/YYYY
|
|
(uuuuu) OFFER_AMT
|
(vvvvv) The
dollar value of an offer for an REO property.
|
(wwwww) 2
|
(xxxxx) No
commas(,) or dollar signs ($)
|
|
(yyyyy) OFFER_DATE_TIME
|
(zzzzz) The
date an offer is received by DA Admin or by the Servicer.
|
(aaaaaa)
|
(bbbbbb) MM/DD/YYYY
|
|
(cccccc) REO_CLOSING_DATE
|
(dddddd) The
date the REO sale of the property is scheduled to close.
|
(eeeeee)
|
(ffffff) MM/DD/YYYY
|
|
(gggggg) REO_ACTUAL_CLOSING_DATE
|
(hhhhhh) Actual
Date Of REO Sale
|
(iiiiii)
|
(jjjjjj) MM/DD/YYYY
|
|
(kkkkkk) OCCUPANT_CODE
|
(llllll) Classification
of how the property is occupied.
|
(mmmmmm)
|
(nnnnnn)
|
|
(oooooo) PROP_CONDITION_CODE
|
(pppppp) A
code that indicates the condition of the property.
|
(qqqqqq)
|
(rrrrrr)
|
|
(ssssss) PROP_INSPECTION_DATE
|
(tttttt) The
date a property inspection is performed.
|
(uuuuuu)
|
(vvvvvv) MM/DD/YYYY
|
|
(wwwwww) APPRAISAL_DATE
|
(xxxxxx) The
date the appraisal was done.
|
(yyyyyy)
|
(zzzzzz) MM/DD/YYYY
|
|
(aaaaaaa) CURR_PROP_VAL
|
(bbbbbbb) The
current "as is" value of the property based on brokers price
opinion or
appraisal.
|
(ccccccc) 2
|
(ddddddd)
|
|
(eeeeeee) REPAIRED_PROP_VAL
|
(fffffff) The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
(ggggggg) 2
|
(hhhhhhh)
|
|
(iiiiiii) If
applicable:
|
(jjjjjjj)
|
(kkkkkkk)
|
(lllllll)
|
|
(mmmmmmm) DELINQ_STATUS_CODE
|
(nnnnnnn) FNMA
Code Describing Status of Loan
|
(ooooooo)
|
(ppppppp)
|
|
(qqqqqqq) DELINQ_REASON_CODE
|
(rrrrrrr) The
circumstances which caused a borrower to stop paying on a loan.
Code
indicates the reason why the loan is in default for this
cycle.
|
(sssssss)
|
(ttttttt)
|
|
(uuuuuuu) MI_CLAIM_FILED_DATE
|
(vvvvvvv) Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
(wwwwwww)
|
(xxxxxxx) MM/DD/YYYY
|
|
(yyyyyyy) MI_CLAIM_AMT
|
(zzzzzzz) Amount
of Mortgage Insurance Claim Filed
|
(aaaaaaaa)
|
(bbbbbbbb) No
commas(,) or dollar signs ($)
|
|
(cccccccc) MI_CLAIM_PAID_DATE
|
(dddddddd) Date
Mortgage Insurance Company Disbursed Claim Payment
|
(eeeeeeee)
|
(ffffffff) MM/DD/YYYY
|
|
(gggggggg) MI_CLAIM_AMT_PAID
|
(hhhhhhhh) Amount
Mortgage Insurance Company Paid On Claim
|
(iiiiiiii) 2
|
(jjjjjjjj) No
commas(,) or dollar signs ($)
|
|
(kkkkkkkk) POOL_CLAIM_FILED_DATE
|
(llllllll) Date
Claim Was Filed With Pool Insurance Company
|
(mmmmmmmm)
|
(nnnnnnnn) MM/DD/YYYY
|
|
(oooooooo) POOL_CLAIM_AMT
|
(pppppppp) Amount
of Claim Filed With Pool Insurance Company
|
(qqqqqqqq) 2
|
(rrrrrrrr) No
commas(,) or dollar signs ($)
|
|
(ssssssss) POOL_CLAIM_PAID_DATE
|
(tttttttt) Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
(uuuuuuuu)
|
(vvvvvvvv) MM/DD/YYYY
|
|
(wwwwwwww) POOL_CLAIM_AMT_PAID
|
(xxxxxxxx) Amount
Paid On Claim By Pool Insurance Company
|
(yyyyyyyy) 2
|
(zzzzzzzz) No
commas(,) or dollar signs ($)
|
|
(aaaaaaaaa) FHA_PART_A_CLAIM_FILED_DATE
|
(bbbbbbbbb) Date
FHA Part A Claim Was Filed With HUD
|
(ccccccccc)
|
(ddddddddd) MM/DD/YYYY
|
|
(eeeeeeeee) FHA_PART_A_CLAIM_AMT
|
(fffffffff) Amount
of FHA Part A Claim Filed
|
(ggggggggg) 2
|
(hhhhhhhhh) No
commas(,) or dollar signs ($)
|
|
(iiiiiiiii) FHA_PART_A_CLAIM_PAID_DATE
|
(jjjjjjjjj) Date
HUD Disbursed Part A Claim Payment
|
(kkkkkkkkk)
|
(lllllllll) MM/DD/YYYY
|
|
(mmmmmmmmm) FHA_PART_A_CLAIM_PAID_AMT
|
(nnnnnnnnn) Amount
HUD Paid on Part A Claim
|
(ooooooooo) 2
|
(ppppppppp) No
commas(,) or dollar signs ($)
|
|
(qqqqqqqqq) FHA_PART_B_CLAIM_FILED_DATE
|
(rrrrrrrrr) Date
FHA Part B Claim Was Filed With HUD
|
(sssssssss)
|
(ttttttttt) MM/DD/YYYY
|
|
(uuuuuuuuu) FHA_PART_B_CLAIM_AMT
|
(vvvvvvvvv) Amount
of FHA Part B Claim Filed
|
(wwwwwwwww) 2
|
(xxxxxxxxx) No
commas(,) or dollar signs ($)
|
|
(yyyyyyyyy) FHA_PART_B_CLAIM_PAID_DATE
|
(zzzzzzzzz) Date
HUD Disbursed Part B Claim Payment
|
(aaaaaaaaaa)
|
(bbbbbbbbbb) MM/DD/YYYY
|
|
(cccccccccc) FHA_PART_B_CLAIM_PAID_AMT
|
(dddddddddd) Amount
HUD Paid on Part B Claim
|
(eeeeeeeeee) 2
|
(ffffffffff) No
commas(,) or dollar signs ($)
|
|
(gggggggggg) VA_CLAIM_FILED_DATE
|
(hhhhhhhhhh) Date
VA Claim Was Filed With the Veterans Admin
|
(iiiiiiiiii)
|
(jjjjjjjjjj) MM/DD/YYYY
|
|
(kkkkkkkkkk) VA_CLAIM_PAID_DATE
|
(llllllllll) Date
Veterans Admin. Disbursed VA Claim Payment
|
(mmmmmmmmmm)
|
(nnnnnnnnnn) MM/DD/YYYY
|
|
(oooooooooo) VA_CLAIM_PAID_AMT
|
(pppppppppp) Amount
Veterans Admin. Paid on VA Claim
|
(qqqqqqqqqq) 2
|
(rrrrrrrrrr) No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
|
· ASUM-
|
Approved
Assumption
|
|
· BAP-
|
Borrower
Assistance Program
|
|
· CO-
|
Charge
Off
|
|
· DIL-
|
Deed-in-Lieu
|
|
· FFA-
|
Formal
Forbearance Agreement
|
|
· MOD-
|
Loan
Modification
|
|
· PRE-
|
Pre-Sale
|
|
· SS-
|
Short
Sale
|
|
· MISC-
|
Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending
the
file.
The
Occupant
Code
field should show the current status of the property code as
follows:
|
· Mortgagor
|
|
· Tenant
|
|
· Unknown
|
|
· Vacant
|
The
Property
Condition
field should show the last reported condition of the property as follows:
|
· Damaged
|
|
· Excellent
|
|
· Fair
|
|
· Gone
|
|
· Good
|
|
· Poor
|
|
· Special
Hazard
|
|
· Unknown
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
EXHIBIT
G
FORM
OF
SERVICER CERTIFICATION
Re: The
[ ]
agreement dated as of [ l,
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
____________________________, the _______________________ of [NAME OF COMPANY]
(the “Company”), certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with
the
knowledge and intent that they will rely upon this certification,
that:
I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, Officer’s Certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered by
the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the “Company Servicing
Information”);
Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Company has fulfilled its obligations under the Agreement in all material
respects; and
The
Compliance Statement required to be delivered by the Company pursuant to
this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer and Subcontractor pursuant
to the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed
to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
EXHIBIT
H
SUMMARY
OF REGULATION AB
SERVICING
CRITERIA
NOTE:
This Exhibit H is provided for convenience of reference only. In the event
of a
conflict or inconsistency between the terms of this Exhibit H and the text
of
Regulation AB, the text of Regulation AB, its adopting release and other
public
statements of the SEC shall control.
Item
1122(d)
| (b) |
General
servicing considerations.
|
(1) Policies
and procedures are instituted to monitor any performance or other triggers
and
events of default in accordance with the transaction agreements.
(2) 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.
(3) Any
requirements in the transaction agreements to maintain a back-up servicer
for
the mortgage loans are maintained.
(4) 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.
| (c) |
Cash
collection and administration.
|
(1) 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.
(2) Disbursements
made via wire transfer on behalf of an obligor or
to an
investor are made only by authorized personnel.
(3) 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.
(4) 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.
(5) 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.
(6) Unissued
checks are safeguarded so as to prevent unauthorized access.
(7) 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.
| (d) |
Investor
remittances and reporting.
|
(1) 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 trustee’s records as to the
total unpaid principal balance and number of mortgage loans serviced by the
Servicer.
(2) Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
(3) 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.
(4) Amounts
remitted to investors per the investor reports agree with cancelled checks,
or
other form of payment, or custodial bank statements.
| (e) |
Mortgage
Loan administration.
|
(1) Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
(2) Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
(3) 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.
(4) 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.
(5) The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
(6) 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 mortgage
loan documents.
(7) 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.
(8) 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).
(9) Adjustments
to interest rates or rates of return for mortgage loans with variable rates
are
computed based on the related mortgage loan documents.
(10) 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.
(11) 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.
(12) 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.
(13) 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.
(14) Delinquencies,
charge-offs and uncollectable accounts are recognized and recorded in accordance
with the transaction agreements.
(15) 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.
EXHIBIT
I
SUMMARY
OF APPLICABLE REGULATION AB REQUIREMENTS
NOTE:
This Exhibit I is provided for convenience of reference only. In the event
of a
conflict or inconsistency between the terms of this Exhibit I and the text
of
Regulation AB, the text of Regulation AB, its adopting release and other
public
statements of the SEC shall control.
Item
1108(b) and (c)
Provide
the following information with respect to each servicer that will service,
including interim service, 20% or more of the mortgage loans in any loan
group
in the securitization issued in the Pass-Through Transfer:
-a
description of the Owner’s form of organization;
-a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of mortgage loans of the type similar to
the Mortgage Loans and information on factors related to the Servicer that
may
be material to any analysis of the servicing of the Mortgage Loans or the
related asset-backed securities, as applicable, including whether any default
or
servicing related performance trigger has occurred as to any other
securitization due to any act or failure to act of the Servicer, whether
any
material noncompliance with applicable servicing criteria as to any other
securitization has been disclosed or reported by the Servicer, and the extent
of
outsourcing the Servicer uses;
-a
description of any material changes to the Servicer’s policies or procedures in
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of the type similar to the Mortgage
Loans during the past three years;
-information
regarding the Servicer’s financial condition to the extent that there is a
material risk that the effect on one or more aspects of servicing resulting
from
such financial condition could have a material impact on the performance
of the
securities issued in the Pass-Through Transfer, or on servicing of mortgage
loans of the same asset type as the Mortgage Loans;
-any
special or unique factors involved in servicing loans of the same type as
the
Mortgage Loans, and the Servicer’s processes and procedures designed to address
such factors;
-statistical
information regarding principal and interest advances made by the Servicer
on
the Mortgage Loans and the Servicer’s overall servicing portfolio for the past
three years; and
-the
Owner’s process for handling delinquencies, losses, bankruptcies and recoveries,
such as through liquidation of REO Properties, foreclosure, sale of the Mortgage
Loans or workouts.
Item
1117
-describe
any legal proceedings pending against the Servicer or against any of its
property, including any proceedings known to be contemplated by governmental
authorities, that may be material to the holders of the securities issued
in the
Pass-Through Transfer.
Item
1119(a)
-describe
any affiliations of the Servicer, each other originator of the Mortgage Loans
and each Subservicer with the sponsor, depositor, issuing entity, trustee,
any
originator, any other servicer, any significant obligor, enhancement or support
provider or any other material parties related to the Pass-Through
Transfer.
Item
1119(b)
-describe
any business relationship, agreement, arrangement, transaction or understanding
entered into outside of the ordinary course of business or on terms other
than
those obtained in an arm’s length transaction with an unrelated third party,
apart from the Pass-Through Transfer, between the Servicer, each other
originator of the Mortgage Loans and each Subservicer, or their respective
affiliates, and the sponsor, depositor or issuing entity or their respective
affiliates, that exists currently or has existed during the past two years,
that
may be material to the understanding of an investor in the securities issued
in
the Pass-Through Transfer.
Item
1119(c)
-describe
any business relationship, agreement, arrangement, transaction or understanding
involving or relating to the Mortgage Loans or the Pass-Through Transfer,
including the material terms and approximate dollar amount involved, between
the
Servicer, each other originator of the Mortgage Loans and each Subservicer,
or
their respective affiliates and the sponsor, depositor or issuing entity
or
their respective affiliates, that exists currently or has existed during
the
past two years.
EXHIBIT
J
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
(RMBS
unless otherwise noted)
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify
in
their management assertion that they are attesting only to the portion of
the
distribution chain they are responsible for in the related transaction
agreements.
|
RegAB
Reference
|
Servicing
Criteria
|
Servicers
|
|
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.
|
X
|
|
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.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets 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.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on pool assets 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.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
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.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
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.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
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.
|
X
|
|
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 trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
|
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.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset 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 pool asset documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(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.
|
X
|
|
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.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset 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 pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|
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 pool asset 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 pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
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 OWNER] [NAME OF SUBSERVICER]
|
|
|
Date:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
K
REPORTING
DATA FOR REALIZED LOSSES AND GAINS
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due within 90 days of liquidation.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
1.
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
2.
The
Total
Interest Due less the aggregate amount of servicing fee that would have been
earned if all delinquent payments had been made as agreed. For documentation,
an
Amortization Schedule from date of default through liquidation breaking out
the
net interest and servicing fees advanced is required.
3.
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the Mortgage
Loan
as calculated on a monthly basis. For documentation, an Amortization Schedule
from date of default through liquidation breaking out the net interest and
servicing fees advanced is required.
4-12. Complete
as applicable. Required documentation:
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period
of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and WFB’s approved
Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13.
The
total
of lines 1 through 12.
Credits:
14-21.
Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow Agent / Attorney
Letter
of
Proceeds Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for
Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
23. The
total
derived from subtracting line 22 from 13. If the amount represents a realized
gain, show the amount in parenthesis ( ).
|
Calculation
of Realized Loss/Gain Form
332
|
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email
Address:_____________________
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO
Sale
3rd
Party Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
|
$ |
(1)
|
|||
|
(2)
|
Interest
accrued at Net Rate
|
|
(2)
|
||||
|
(3)
|
Accrued
Servicing Fees
|
|
(3)
|
||||
|
(4)
|
Attorney's
Fees
|
|
(4)
|
||||
|
(5)
|
Taxes
(see page 2)
|
|
(5)
|
||||
|
(6)
|
Property
Maintenance
|
|
(6)
|
||||
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
|
(7)
|
||||
|
(8)
|
Utility
Expenses
|
|
(8)
|
||||
|
(9)
|
Appraisal/BPO
|
|
(9)
|
||||
|
(10)
|
Property
Inspections
|
|
(10)
|
||||
|
(11)
|
FC
Costs/Other Legal Expenses
|
(11)
|
|||||
|
(12)
|
Other
(itemize)
|
|
(12)
|
||||
|
Cash
for Keys
|
|
(12)
|
|||||
|
HOA/Condo
Fees
|
|
(12)
|
|||||
|
|
|
(12)
|
|||||
|
Total
Expenses
|
$ |
(13)
|
|||||
|
Credits:
|
|||||||
|
(14)
|
Escrow
Balance
|
$
|
(14)
|
||||
|
(15)
|
HIP
Refund
|
(15)
|
|||||
|
(16)
|
Rental
Receipts
|
|
(16)
|
||||
|
(17)
|
Hazard
Loss Proceeds
|
|
(17)
|
||||
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
|
(18a) | ||||
|
HUD
Part A
|
|||||||
|
HUD
Part B
|
(18b) | ||||||
|
(19)
|
Pool
Insurance Proceeds
|
|
(19)
|
||||
|
(20)
|
Proceeds
from Sale of Acquired Property
|
|
(20)
|
||||
|
(21)
|
Other
(itemize)
|
|
(21)
|
||||
|
|
|
|
(21)
|
||||
|
Total
Credits
|
$
|
(22)
|
|||||
|
Total
Realized Loss (or Amount of Gain)
|
|
|
$
|
(23)
|
|||
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
|
|
||||||
|
|
||||||
|
|
||||||
|
|
||||||
|
|
||||||
|
|
||||||
|
|
||||||
|
|
EXHIBIT
I-3
▇▇▇▇▇
FARGO SERVICING AGREEMENT
EMC
MORTGAGE CORPORATION
Purchaser
and
▇▇▇▇▇
FARGO BANK, N.A.
Company
AMENDED
AND RESTATED MASTER
SELLER'S
WARRANTIES AND SERVICING AGREEMENT
Dated
as of November 1, 2005
Fixed
Rate and Adjustable Rate Mortgage Loans
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS; CUSTODIAL
AGREEMENT; DELIVERY OF DOCUMENTS
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
ARTICLE
V
PAYMENTS
TO PURCHASER
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
ARTICLE
VII
COMPANY
TO COOPERATE
ARTICLE
VIII
THE
COMPANY
ARTICLE
IX
SECURITIZATION
TRANSACTIONS; WHOLE LOAN TRANSFERS AND AGENCY TRANSFERS
ARTICLE
X
DEFAULT
ARTICLE
XI
TERMINATION
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
EXHIBITS
|
||
|
Exhibit
A
|
Form
of Assignment and Conveyance
|
|
|
Agreement
|
||
|
Exhibit
B
|
Custodial
Agreement
|
|
|
Exhibit
C
|
Contents
of Each Retained Mortgage File,
|
|
|
Servicing
File and Custodial Mortgage File
|
||
|
Exhibit
D
|
Servicing
Criteria
|
|
|
Exhibit
E
|
Form
of Sarbanes Certification
|
|
|
Exhibit
F
|
Form
of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Back-Up
|
|
|
Certification
|
||
|
Exhibit
G
|
Form
of Assignment, Assumption and
|
|
|
Recognition
Agreement
|
||
|
Exhibit
H
|
Electronic
Data File
|
|
This
is
an Amended and Restated Master Seller's Warranties and Servicing Agreement
for
residential first mortgage loans, dated and effective as of November 1, 2005,
and is executed between EMC Mortgage Corporation, as purchaser (the
"Purchaser"), and ▇▇▇▇▇ Fargo Bank, N.A., as seller and servicer (the
"Company").
W I T N E
60;S S E T H
WHEREAS,
the Purchaser has agreed to purchase from the Company and the Company has
agreed
to sell to the Purchaser from time to time (each a “Transaction”) certain
residential Mortgage Loans which shall be delivered as whole loans (each
a “Loan
Package”) on various dates (each a “Closing Date”) as provided for in certain
Assignment and Conveyance Agreements by and between the Purchaser and the
Company as executed from time to time; and
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on the related Mortgage Loan Schedule; and
WHEREAS,
the Purchaser and the Company wish to prescribe the manner of purchase of
the
Mortgage Loans and the conveyance, servicing and control of the Mortgage
Loans.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the content otherwise
requires, shall have the following meanings:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices of prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property
is
located.
Adjustment
Date:
As to
each adjustable rate Mortgage Loan, the date on which the Mortgage Interest
Rate
is adjusted in accordance with the terms of the related Mortgage Note and
Mortgage.
Agency/Agencies:
▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ Mac or GNMA, or any of them as applicable.
Agency
Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to
an
Agency which sale or transfer is not a Securitization Transaction or Whole
Loan
Transfer.
Agreement:
This
Amended and Restated Master Seller's Warranties and Servicing Agreement and
all
amendments hereof and supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Appraised
Value:
With
respect to any Mortgage Loan, the lesser of (i) the value set forth on the
appraisal made in connection with the origination of the related Mortgage
Loan
as the value of the related Mortgaged Property, or (ii) the purchase price
paid
for the Mortgaged Property, provided, however, in the case of a refinanced
Mortgage Loan, such value shall be based solely on the appraisal made in
connection with the origination of such Mortgage Loan.
Assignment
and Conveyance Agreement: With
respect to each Transaction, the agreement between the Purchaser and the
Company
conveying to the Purchaser all the right, title and interest of the Company
in
and to the related Mortgage Loans listed on the related Mortgage Loan Schedule,
a form of which is attached hereto as Exhibit A.
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 sale of the Mortgage
to the
Purchaser or if the related Mortgage has been recorded in the name of MERS
or
its designee, such actions as are necessary to cause the Purchaser to be
shown
as the owner of the related Mortgage on the records of MERS for purposes
of the
system of recording transfers of beneficial ownership of mortgages maintained
by
MERS, including assignment of the MIN Number which will appear either on
the
Mortgage or the Assignment of Mortgage to MERS.
Assignment
of Mortgage Note and Pledge Agreement:
With
respect to a Cooperative Loan, an assignment of the Mortgage Note and Pledge
Agreement.
Assignment
of Proprietary Lease:
With
respect to a Cooperative Loan, an assignment of the Proprietary Lease sufficient
under the laws of the jurisdiction wherein the related Cooperative Apartment
is
located to effect the assignment of such Proprietary Lease.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in the states where the parties are located or are
authorized or obligated by law or executive order to be closed.
Buydown
Agreement:
An
agreement between the Company and a Mortgagor, or an agreement among the
Company, a Mortgagor and a seller of a Mortgaged Property or a third party
with
respect to a Mortgage Loan which provides for the application of Buydown
Funds.
Buydown
Funds:
In
respect of any Buydown Mortgage Loan, any amount contributed by the seller
of a
Mortgaged Property subject to a Buydown Mortgage Loan, the buyer of such
property, the Company or any other source, plus interest earned thereon,
in
order to enable the Mortgagor to reduce the payments required to be made
from
the Mortgagor’s funds in the early years of a Mortgage Loan.
Buydown
Mortgage Loan:
Any
Mortgage Loan in respect of which, pursuant to a Buydown Agreement, (i) the
Mortgagor pays less than the full Monthly Payments specified in the Mortgage
Note for a specified period, and (ii) the difference between the payments
required under such Buydown Agreement and the Mortgage Note is provided from
Buydown Funds.
Buydown
Period:
The
period of time when a Buydown Agreement is in effect with respect to a related
Buydown Mortgage Loan.
Closing
Date:
The
date or dates, set forth in the related Commitment Letter, on which from
time to
time the Purchaser shall purchase and the Company shall sell the Mortgage
Loans
listed on the related Mortgage Loan Schedule for each Transaction.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or
any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Commitment
Letter:
The
commitment letter executed in relation to each Transaction that sets forth,
among other things, the Purchase Price for the related Mortgage
Loans.
Company:
▇▇▇▇▇
Fargo Bank, N.A., or its successor in interest or assigns, or any successor
to
the Company under this Agreement appointed as herein provided.
Company
Information:
As
defined in Section 9.01(f)(i)(A).
Condemnation
Proceeds:
All
awards or 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.
Cooperative:
The
entity that holds title (fee or an acceptable leasehold estate) to all of
the
real property that the Project comprises, including the land, separate dwelling
units and all common areas.
Cooperative
Apartment:
The
specific dwelling unit relating to a Cooperative Loan.
Cooperative
Lien Search:
A
search for (a) federal tax liens, mechanics’ liens, lis
pendens,
judgments of record or otherwise against (i) the Cooperative, (ii) the seller
of
the Cooperative Apartment and (iii) the Company if the Cooperative Loan is
a
refinanced Mortgage Loan, (b) filings of financing statements and (c) the
deed
of the Project into the Cooperative.
Cooperative
Loan:
A
Mortgage Loan that is secured by Cooperative Shares and a Proprietary Lease
granting exclusive rights to occupy the related Cooperative
Apartment.
Cooperative
Shares:
The
shares of stock issued by a Cooperative, owned by the Mortgagor, and allocated
to a Cooperative Apartment.
Covered
Loan:
A
Mortgage Loan categorized as “Covered” pursuant to the Standard & Poor’s
Glossary for File Format for LEVELS® Version 5.6, Appendix E, as revised from
time to time and in effect on each related Closing Date.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
4.04.
Custodial
Agreement:
The
agreement governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents, a form
of
which is annexed hereto as Exhibit B.
Custodial
Mortgage File:
The
items referred to as items (1), (2), (4), (5) and (10) in Exhibit C annexed
hereto to be delivered by the Company to the Custodian on the related Closing
Date with respect to a particular Mortgage Loan, and any additional documents
required to be added to the Custodial Mortgage File and delivered to the
custodian pursuant to this Agreement.
Custodian:
The
custodian under the Custodial Agreement, or its successor in interest or
assigns, or any successor to the Custodian under the Custodial Agreement
as
provided therein.
Cut-off
Date:
With
respect to each Transaction, the first day of the month in which the related
Closing Date occurs.
Deleted
Mortgage Loan:
A
Mortgage Loan which is repurchased by the Company in accordance with the
terms
of this Agreement and which is, in the case of a substitution pursuant to
Section 3.03, replaced or to be replaced with a Qualified Substitute Mortgage
Loan.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The
Business Day immediately preceding the related Remittance Date.
Due
Date:
The
first day of the month on which the Monthly Payment is due on a Mortgage
Loan,
exclusive of any days of grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day
of the
month preceding the month of the Remittance Date and ending in the first
day of
the month of the Remittance Date.
Electronic
Data File:
The
final electronic file of the Mortgage Loans, in relation to each Transaction,
provided by Company to the Purchaser on or before the related Closing
Date.
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Company pursuant
to Section 4.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section 4.06.
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 related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 10.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇
▇▇▇:
The
Federal National Mortgage Association or any successor thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Company pursuant to Section
4.12.
▇▇▇▇▇▇▇
Mac:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
Gross
Margin:
With
respect to each adjustable rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note which is added to the Index in order to
determine the related Interest Rate, as set forth in the Mortgage Loan
Schedule.
High
Cost Loan:
A
Mortgage Loan classified as (a) a “high cost” loan under the Home Ownership and
Equity Protection Act of 1994, (b) a “high cost home,” “threshold,” “covered,”
“high risk home,” “predatory” or similar loan under any other applicable state,
federal or local law or (c) a Mortgage Loan categorized as “High Cost” pursuant
to the Standard & Poor’s Glossary for File Format for LEVELS® Version 5.6,
Appendix E, as revised from time to time and in effect on each related Closing
Date.
Home
Loan:
A
Mortgage Loan categorized as “Home Loan” pursuant to the Standard & Poor’s
Glossary for File Format for LEVELS® Version 5.6, Appendix E, as revised from
time to time and in effect on each related Closing Date.
Incremental
Interest:
As to
any Incremental Rate Mortgage Loan, the amount of interest accrued on such
Mortgage Loan attributable to the Incremental Rate; provided, however, that
with
respect to any payment of interest received in respect of such a Mortgage
Loan
(whether paid by the Mortgagor or received as Liquidation Proceeds or otherwise)
which is less than the full amount of interest then due with respect to such
Mortgage Loan, only that portion of such payment of interest that bears the
same
relationship to the total amount of such payment of interest as the Incremental
Rate, if any, in respect of such Mortgage Loan bears to the Mortgage Interest
Rate shall be allocated to the Incremental Interest with respect
thereto.
Incremental
Rate:
For an
Incremental Rate Mortgage Loan, the per annum increase to the initial Mortgage
Interest Rate set forth in the addendum to the related Mortgage Note, which
increase takes effect upon the occurrence of certain specified conditions
prior
to the first Adjustment Date and remains in effect until the first Adjustment
Date.
Incremental
Rate Mortgage Loan:
A
Mortgage Loan for which the related Mortgage Note includes an addendum that
allows for an increase to the initial Mortgage Interest Rate upon the occurrence
of certain specified conditions.
Index:
With
respect to any adjustable rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest thereon.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Interest
Only Mortgage Loan:
A
Mortgage Loan for which an interest-only payment feature is allowed during
the
interest-only period set forth in the related Mortgage Note.
Lender
Paid Mortgage Insurance Policy or LPMI Policy:
A PMI
Policy for which the Company pays all premiums from its own funds, without
reimbursement therefor.
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 or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of the original loan amount of the
Mortgage Loan at its origination (unless otherwise indicated) to the Appraised
Value of the Mortgaged Property.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System
MERS
System:
The
system of recording transfers of mortgages electronically maintained by
MERS.
MIN:
Mortgage Identification Number used to identify mortgage loans registered
under
MERS.
Monthly
Advance:
The
portion of each Monthly Payment that is delinquent with respect to each Mortgage
Loan at the close of business on the Determination Date, required to be advanced
by the Company pursuant to Section 5.03 on the Business Day immediately
preceding the Remittance Date of the related month.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage Loan or
in the
case of an Interest Only Mortgage Loan, payments of (i) interest, or (ii)
principal and interest, if applicable, on a Mortgage Loan.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note or the Pledge Agreement securing the Mortgage
Note
for a Cooperative Loan.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in Section
4.11.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note in accordance with the
provisions of the Mortgage Note.
Mortgage
Loan:
An
individual mortgage loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Retained Mortgage File, the Custodial Mortgage File, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
With
respect to a Mortgage Loan, the original related Mortgage Note with applicable
addenda and riders, the original related Security Instrument and the originals
of any required addenda and riders, the original related Assignment and any
original intervening related Assignments, the original related title insurance
policy and evidence of the related PMI Policy, if any.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate.
Mortgage
Loan Schedule:
With
respect to each Transaction, a schedule of Mortgage Loans, which shall be
attached to the related Assignment and Conveyance Agreement, setting forth
the
following information with respect to each Mortgage Loan: (1) the Company’s
Mortgage Loan number; (2) the city state and zip code of the Mortgaged Property;
(3) a code indicating whether the Mortgaged Property is a single family
residence, two-family residence, three-family residence, four-family residence,
a Cooperative Loan, planned unit development or condominium; (4) the current
Mortgage Interest Rate; (5) the current net Mortgage Interest Rate; (6) the
current Monthly Payment; (7) the Gross Margin; (8) the original term to
maturity; (9) the scheduled maturity date; (10) the principal balance of
the
Mortgage Loan as of the related Cut-off Date after deduction of payments
of
principal due on or before the related Cut-off Date whether or not collected;
(11) the Loan-to-Value; (12) the next Adjustment Date; (13) the lifetime
Mortgage Interest Rate cap; (14) whether the Mortgage Loan is convertible
or
not; (15) a code indicating the mortgage guaranty insurance company; (16)
a code
indicating whether the Mortgage Loan contains pledged assets; (17) a code
indicating whether the Mortgage Loan has balloon payments; (18) a code
indicating whether the Mortgage Loan is an Interest Only Mortgage Loan;
(16)
a
field indicating whether the Mortgage Loan is a Home Loan; and
(17)
the Servicing Fee.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage Note,
or
with respect to a Cooperative Loan, the Cooperative Apartment.
Mortgagor:
The
obligor on a Mortgage Note.
Officer's
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or the President or a Vice President or an Assistant Vice President
and
certified by the Treasurer or the Secretary or one of the Assistant Treasurers
or Assistant Secretaries of the Company, and delivered to the Purchaser as
required by this Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Company, reasonably
acceptable to the Purchaser.
Periodic
Interest Rate Cap:
As to
each adjustable rate Mortgage Loan, the maximum increase or decrease in the
Mortgage Interest Rate on any Adjustment Date pursuant to the terms of the
Mortgage Note.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Pledge
Agreement:
With
respect to a Cooperative Loan, the specific agreement creating a first lien
on
and pledge of the Cooperative Shares and the appurtenant Proprietary
Lease.
Pledge
Instruments:
With
respect to a Cooperative Loan, the Stock Power, the Assignment of the
Proprietary Lease and the Assignment of the Mortgage Note and Pledge
Agreement.
PMI
Policy:
A
policy of primary mortgage guaranty insurance evidenced by an electronic
form
and certificate number issued by a Qualified Insurer, as required by this
Agreement with respect to certain Mortgage Loans.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The
Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any prepayment penalty or premium
thereon and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Principal
Prepayment Period:
The
month preceding the month in which the related Remittance Date
occurs.
Project:
With
respect to a Cooperative Loan, all real property owned by the related
Cooperative including the land, separate dwelling units and all common
areas.
Proprietary
Lease:
With
respect to a Cooperative Loan, a lease on a Cooperative Apartment evidencing
the
possessory interest of the Mortgagor in such Cooperative Apartment.
Purchaser:
EMC
Mortgage Corporation, or its successor in interest or any successor to the
Purchaser under this Agreement as herein provided.
Purchase
Price:
The
purchase price for each Loan Package shall be as stated in the related
Commitment Letter.
Qualified
Correspondent:
Any
Person from which the Company purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Company and such Person that contemplated
that such person would underwrite mortgage loans from time to time, for sale
to
the Company, in accordance with underwriting guidelines designated by the
Company (“Designated Guidelines”) or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as described in clause (i) above and were acquired by the Company within
180
days after origination; (iii) either (x) the Designated Guidelines were,
at the
time such Mortgage Loans were originated, used by the Company in origination
of
mortgage loans of the same type as the Mortgage Loans for the Company’s own
account or (y) the Designated Guidelines were, at the time such Mortgage
Loans
were underwritten, designated by the Company on a consistent basis for use
by
lenders in originating mortgage loans to be purchased by the Company; and
(iv)
the Company employed, at the time such Mortgage Loans were acquired by the
Company, pre-purchased or post-purchased quality assurance procedures (which
may
involve, among other things, review of a sample or mortgage loans purchased
during a particular time period or through particular channels) designed
to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Company.
Qualified
Depository:
A
deposit account or accounts maintained with a federal or state chartered
depository institution the deposits in which are insured by the FDIC to the
applicable limits and the short-term unsecured debt obligations of which
(or, in
the case of a depository institution that is a subsidiary of a holding company,
the short-term unsecured debt obligations of such holding company) are rated
A-1
by Standard & Poor’s Ratings Group or Prime-1 by ▇▇▇▇▇’▇ Investors Service,
Inc. (or a comparable rating if another rating agency is specified by the
Purchaser by written notice to the Company) at the time any deposits are
held on
deposit therein.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
Qualified
Substitute Mortgage Loan:
A
mortgage loan eligible to be substituted by the Company for a Deleted Mortgage
Loan which must, on the date of such substitution, (i) have an outstanding
principal balance, after deduction of all scheduled payments due in the month
of
substitution (or in the case of a substitution of more than one mortgage
loan
for a Deleted Mortgage Loan, an aggregate principal balance), not in excess
of
the Stated Principal Balance of the Deleted Mortgage Loan; (ii) have a Mortgage
Loan Remittance Rate not less than and not more than two percent (2%) greater
than the Mortgage Loan Remittance Rate of the Deleted Mortgage Loan; (iii) have
a remaining term to maturity not greater than and not more than one year
less
than that of the Deleted Mortgage Loan; (iv) be of the same type as the Deleted
Mortgage Loan and (v) comply with each representation and warranty set forth
in
Sections 3.01 and 3.02.
Rating
Agency/Agencies:
Any
nationally recognized statistical Rating Agency, or its successors, including
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, ▇▇▇▇▇’▇
Investors Service, Inc. and Fitch Ratings.
Recognition
Agreement:
An
agreement whereby a Cooperative and a lender with respect to a Cooperative
Loan
(i) acknowledge that such lender may make, or intends to make, such Cooperative
Loan, and (ii) make certain agreements with respect to such Cooperative
Loan.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
The
agreement or agreements entered into by the Company and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to
any or
all of the Mortgage Loans serviced hereunder, in connection with a Whole
Loan
Transfer or Securitization Transaction.
Reconstitution
Date:
The
date on which any or all of the Mortgage Loans serviced under this Agreement
may
be removed from this Agreement and reconstituted as part of a Securitization
Transaction, Agency Transfer or Whole Loan Transfer pursuant to Section 9.01
hereof. The Reconstitution Date shall be such date as the Purchaser shall
designate.
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.
REMIC:
A "real
estate mortgage investment conduit" within the meaning of Section 860D of
the
Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1, Subtitle A of the
Code,
and related provisions, regulations, rulings or pronouncements promulgated
thereunder, as the foregoing may be in effect from time to time.
Remittance
Date:
The
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately following) of any month.
REO
Disposition:
The
final sale by the Company of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
4.16.
REO
Property:
A
Mortgaged Property acquired by the Company on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section
4.16.
Repurchase
Price:
Unless
agreed otherwise by the Purchaser and the Company, a price equal to (i) the
Stated Principal Balance of the Mortgage Loan plus (ii) interest on such
Stated
Principal Balance at the Mortgage Loan Remittance Rate from the date on which
interest has last been paid and distributed to the Purchaser through the
last
day of the month in which such repurchase takes place, less amounts received
or
advanced in respect of such repurchased Mortgage Loan which are being held
in
the Custodial Account for distribution in the month of repurchase.
Retained
Mortgage File:
The
items referred to as items (3), (6), (7), (8) and (9) in Exhibit C annexed
hereto with respect to a particular Mortgage Loan that are not required to
be
delivered to the Custodian pursuant to this Agreement, and any additional
documents required to be added to the Retained Mortgage File pursuant to
this
Agreement.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (a) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (b) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer:
As
defined in Section 9.01(e)(iii).
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses other
than Monthly Advances (including reasonable attorney's fees and disbursements)
incurred in the performance by the Company of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and
protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
any
REO Property and (d) compliance with the obligations under Section 4.08 and
4.10
(excluding the Company’s obligations to pay the premiums on LPMI
Policies).
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser
shall
pay to the Company, which shall, for a period of one full month, be equal
to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting
which
any related interest payment on a Mortgage Loan is received. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds, to the extent permitted by Section 4.05)
of
such Monthly Payment collected by the Company, or as otherwise provided under
Section 4.05.
Servicing
Fee Rate:
The per
annum percentage for each Mortgage Loan, as stated in the Commitment
Letter.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Company consisting
of
originals of all documents in the Retained Mortgage File which are not delivered
to the Custodian and copies of the Mortgage Loan Documents listed in the
Custodial Agreement the originals of which are delivered to the Custodian
pursuant to Section 2.03.
Servicing
Officer:
Any
officer of the Company involved in or responsible for the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Company to the Purchaser upon request, as such
list
may from time to time be amended.
Stated
Principal Balance:
As to
each Mortgage Loan, (i) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on
or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Stock
Certificate:
With
respect to a Cooperative Loan, a certificate evidencing ownership of the
Cooperative Shares issued by the Cooperative.
Stock
Power:
With
respect to a Cooperative Loan, an assignment of the Stock Certificate or
an
assignment of the Cooperative Shares issued by the Cooperative.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Subsidy
Account:
An
account maintained by the Company specifically to hold all Subsidy Funds
to be
applied to individual Subsidy Loans.
Subsidy
Funds:
With
respect to any Subsidy Loans, funds contributed by the employer of a Mortgagor
in order to reduce the payments required from the Mortgagor for a specified
period in specified amounts.
Subsidy
Loan:
Any
Mortgage Loan subject to a temporary interest subsidy agreement pursuant
to
which the monthly interest payments made by the related Mortgagor will be
less
than the scheduled monthly interest payments on such Mortgage Loan, with
the
resulting difference in interest payments being provided by the employer
of the
Mortgagor. Each Subsidy Loan will be identified as such in the related
Electronic Data File.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company.
Time$aver®
Mortgage Loan:
A
Mortgage Loan which has been refinanced pursuant to a Company program that
allows a rate/term refinance of an existing Company serviced loan with minimal
documentation.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans by the Purchaser to
a
third party, which sale or transfer is not a Securitization Transaction or
Agency Transfer.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS; CUSTODIAL
AGREEMENT; DELIVERY OF DOCUMENTS
Section
2.01 Conveyance
of Mortgage Loans; Possession of Custodial Mortgage Files;
Maintenance
of Retained Mortgage Files and Servicing Files.
Pursuant
to an Assignment and Conveyance Agreement, on the related Closing Date, the
Company, simultaneously with the payment of the Purchase Price by the Purchaser,
shall thereby sell, transfer, assign, set over and convey to the Purchaser,
without recourse, but subject to the terms of this Agreement and the related
Assignment and Conveyance Agreement, all the right, title and interest of
the
Company in and to the Mortgage Loans listed on the respective Mortgage Loan
Schedule annexed to such Assignment and Conveyance Agreement, together with
the
Retained Mortgage Files and Custodial Mortgage Files and all rights and
obligations arising under the documents contained therein. Pursuant to Section
2.03, the Company shall deliver the Custodial Mortgage File for each Mortgage
Loan comprising the related Loan Package to the Custodian.
The
contents of each Retained Mortgage File not delivered to the Custodian are
and
shall be held in trust by the Company for the benefit of the Purchaser as
the
owner thereof. The Company shall maintain a Servicing File consisting of
a copy
of the contents of each Custodial Mortgage File and the originals of the
documents in each Retained Mortgage File not delivered to the Custodian.
The
possession of each Retained Mortgage File and Servicing File by the Company
is
at the will of the Purchaser for the sole purpose of servicing the related
Mortgage Loan, and such retention and possession by the Company is in a
custodial capacity only. Upon the sale of the Mortgage Loans the ownership
of
each Mortgage Note, the related Mortgage and the related Custodial Mortgage
File
and Servicing File shall vest immediately in the Purchaser, 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 Company shall vest immediately in
the
Purchaser and shall be retained and maintained by the Company, in trust,
at the
will of the Purchaser and only in such custodial capacity. The Company shall
release its custody of the contents of any Servicing File only in accordance
with written instructions from the Purchaser, unless such release is required
as
incidental to the Company's servicing of the Mortgage Loans or is in connection
with a repurchase of any Mortgage Loan pursuant to Section 3.03 or 6.02.
All
such costs associated with the release, transfer and re-delivery to the Company
shall be the responsibility of the Purchaser other than any related recording
costs (especially in instances of breach).
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Company agrees that it will cause, the MERS® System to indicate that such
Mortgage Loans have been assigned by the Company to the Purchaser in accordance
with this Agreement by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer
files
the information required by the MERS® System to identify the Purchaser as
beneficial owner of such Mortgage Loans.
Section
2.02 Books
and Records; Transfers of Mortgage Loans.
From
and
after the sale of the Mortgage Loans to the Purchaser in the related Loan
Package on each Closing Date, all rights arising out of such Mortgage Loans
including but not limited to all funds received on or in connection with
such
Mortgage Loans, shall be received and held by the Company in trust for the
benefit of the Purchaser as owner of such Mortgage Loans, and the Company
shall
retain record title to the related Mortgages for the sole purpose of
facilitating the servicing and the supervision of the servicing of such Mortgage
Loans.
The
sale
of each Mortgage Loan shall be reflected on the Company's balance sheet and
other financial statements as a sale of assets by the Company. The Company
shall
be responsible for maintaining, and shall maintain, a complete set of books
and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Company
shall maintain in its possession, available for inspection by the Purchaser,
or
its designee, and shall deliver to the Purchaser upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations,
and
requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and
records
of periodic inspections as required by Section 4.13. To the extent that original
documents are not required for purposes of realization of Liquidation Proceeds
or Insurance Proceeds, documents maintained by the Company may be in the
form of
microfilm or microfiche or such other reliable means of recreating original
documents, including but not limited to, optical imagery techniques so long
as
the Company complies with the requirements of the ▇▇▇▇▇▇ Mae Selling and
Servicing Guide, as amended from time to time.
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Purchaser or its designee the related Servicing
File during the time the Purchaser retains ownership of such Mortgage Loan
and
thereafter in accordance with applicable laws and regulations.
The
Company shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Company shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the terms hereof. For the purposes of
this
Agreement, the Company shall be under no obligation to deal with any Person
with
respect to this Agreement or the Mortgage Loans unless the books and records
show such Person as the owner of the Mortgage Loan. The Purchaser may, subject
to the terms of this Agreement, sell and transfer one or more of the Mortgage
Loans. The Purchaser also shall advise the Company of the transfer. Upon
receipt
of notice of the transfer, the Company shall ▇▇▇▇ its books and records to
reflect the ownership of the Mortgage Loans of such assignee, and shall release
the previous Purchaser from its obligations hereunder with respect to the
Mortgage Loans sold or transferred. Such notification of a transfer shall
include a final loan schedule which shall be received by the Company no fewer
than five (5) Business Days before the last Business Day of the month. If
such
notification is not received as specified above, the Company’s duties to remit
and report as required by Section 5 shall begin with the next Due
Period.
Section
2.03 Custodial
Agreement; Delivery of Documents.
On
each
Closing Date with respect to each Mortgage Loan comprising the related Loan
Package, the Company shall deliver and release to the Custodian the related
Custodial Mortgage File as set forth in Exhibit C attached hereto.
The
Custodian shall certify its receipt of any Mortgage Loan Documents actually
received on or prior to such Closing Date and as required to be delivered
pursuant to the Custodial Agreement, as evidenced by the Initial Certification
of the Custodian in the form annexed to the Custodial Agreement. The Purchaser
will be responsible for the fees and expenses of the Custodian.
Upon
the
Purchaser’s request, the Company shall deliver to Purchaser or its designee
within ten (10) days after such request such contents of the Retained Mortgage
file so requested. In the event that the company fails to deliver to the
Purchaser or its designee the requested contents of the Retained Mortgage
File
within such ten-day period, and if the Company does not cure such failure
within
five (5) days following receipt of written notification of such failure,
the
Company shall repurchase each related Mortgage Loan at the price and in the
manner specified in Section 3.03.
The
Company shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.01 or 6.01 within one week of their
execution, provided, however, that the Company shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
ten
(10) days of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within sixty days of its submission for recordation.
In
the
event the public recording office is delayed in returning any original document
which the Company is required to deliver at any time to the Custodian in
accordance with the terms of the Custodial Agreement or which the Company
is
required to maintain in the related Retained Mortgage File, the Company shall
deliver to the Custodian or to the Retained Mortgage File, as applicable,
within
240 days of its submission for recordation, a copy of such document and an
Officer's Certificate, which shall (i) identify the recorded document; (ii)
state that the recorded document has not been delivered to the Custodian
due
solely to a delay by the public recording office, (iii) state the amount
of time
generally required by the applicable recording office to record and return
a
document submitted for recordation, and (iv) specify the date the applicable
recorded document will be delivered to the Custodian. The Company will be
required to deliver such document to the Custodian or to the Retained Mortgage
File, as applicable, by the date specified in (iv) above. An extension of
the
date specified in (iv) above may be requested from the Purchaser, which consent
shall not be unreasonably withheld.
In
the
event that new, replacement, substitute or additional Stock Certificates
are
issued with respect to existing Cooperative Shares, the Company immediately
shall deliver to the Custodian the new Stock Certificates, together with
the
related Stock Powers in blank. Such new Stock Certificates shall be subject
to
the related Pledge Instruments and shall be subject to all of the terms,
covenants and conditions of this Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES REMEDIES AND BREACH
Section
3.01 Company
Representations and Warranties.
The
Company hereby represents and warrants to the Purchaser that, as of the related
Closing Date:
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(a)
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Due
Organization and Authority.
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The
Company is a national banking association duly organized, validly
existing
and in good standing under the laws of the United States and has
all
licenses necessary to carry on its business as now being conducted
and is
licensed, qualified and in good standing in each state where a
Mortgaged
Property is located if the laws of such state require licensing
or
qualification in order to conduct business of the type conducted
by the
Company, and in any event the Company is in compliance with the
laws of
any such state to the extent necessary to ensure the enforceability
of the
related Mortgage Loan and the servicing of such Mortgage Loan in
accordance with the terms of this Agreement; the Company has the
full
power and authority to execute and deliver this Agreement and to
perform
in accordance herewith; the execution, delivery and performance
of this
Agreement (including all instruments of transfer to be delivered
pursuant
to this Agreement) by the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this
Agreement
evidences the valid, binding and enforceable obligation of the
Company;
and all requisite action has been taken by the Company to make
this
Agreement valid and binding upon the Company in accordance with
its
terms;
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(b)
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Ordinary
Course of Business.
|
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The
consummation of the transactions contemplated by this Agreement
are in the
ordinary course of business of the Company, who is in the business
of
selling and servicing loans, and the transfer, assignment and conveyance
of the Mortgage Notes and the Mortgages by the Company pursuant
to this
Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable
jurisdiction;
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(c)
|
No
Conflicts.
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Neither
the execution and delivery of this Agreement, the acquisition of
the
Mortgage Loans by the Company, the sale of the Mortgage Loans to
the
Purchaser or the transactions contemplated hereby, nor the fulfillment
of
or compliance with the terms and conditions of this Agreement will
conflict with or result in a breach of any of the terms, articles
of
incorporation or by-laws or any legal restriction or any agreement
or
instrument to which the Company is now a party or by which it is
bound, or
constitute a default or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its
property
is subject, or impair the ability of the Purchaser to realize on
the
Mortgage Loans, or impair the value of the Mortgage
Loans;
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(d)
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Ability
to Service.
|
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The
Company is an approved seller/servicer of conventional residential
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, with the facilities,
procedures, and experienced personnel necessary for the sound servicing
of
mortgage loans of the same type as the Mortgage Loans. The Company
is in
good standing to sell mortgage loans to and service mortgage loans
for
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and no event has occurred, including
but not
limited to a change in insurance coverage, which would make the
Company
unable to comply with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac eligibility requirements
or which would require notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac;
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(e)
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Reasonable
Servicing Fee.
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The
Company acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the
entire
Servicing Fee shall be treated by the Company, for accounting and
tax
purposes, as compensation for the servicing and administration
of the
Mortgage Loans pursuant to this
Agreement;
|
|
(f)
|
Ability
to Perform.
|
|
The
Company does not believe, nor does it have any reason or cause
to believe,
that it cannot perform each and every covenant contained in this
Agreement. The Company is solvent and the sale of the Mortgage
Loans will
not cause the Company to become insolvent. The sale of the Mortgage
Loans
is not undertaken to hinder, delay or defraud any of the Company's
creditors;
|
|
(g)
|
No
Litigation Pending.
|
|
There
is no action, suit, proceeding or investigation pending or threatened
against the Company which, either in any one instance or in the
aggregate,
may result in any material adverse change in the business, operations,
financial condition, properties or assets of the Company, or in
any
material impairment of the right or ability of the Company to carry
on its
business substantially as now conducted, or in any material liability
on
the part of the Company, or which would draw into question the
validity of
this Agreement or the Mortgage Loans or of any action taken or
to be
contemplated herein, or which would be likely to impair materially
the
ability of the Company to perform under the terms of this
Agreement;
|
|
(h)
|
No
Consent Required.
|
|
No
consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance
by
the Company of or compliance by the Company with this Agreement
or the
sale of the Mortgage Loans as evidenced by the consummation of
the
transactions contemplated by this Agreement, or if required, such
approval
has been obtained prior to the related Closing
Date;
|
|
(i)
|
Selection
Process.
|
The
Mortgage Loans were selected from among either the outstanding fixed rate
or
adjustable rate one- to four-family mortgage loans in the Company's mortgage
banking portfolio at the related Closing Date as to which the representations
and warranties set forth in Section 3.02 could be made and such selection
was
not made in a manner so as to affect adversely the interests of the
Purchaser;
|
(j)
|
No
Untrue Information.
|
|
Neither
this Agreement nor any statement, report or other document furnished
or to
be furnished pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement
of fact or
omits to state a fact necessary to make the statements contained
therein
not misleading;
|
|
(k)
|
Sale
Treatment.
|
|
The
Company has determined that the disposition of the Mortgage Loans
pursuant
to this Agreement will be afforded sale treatment for accounting
and tax
purposes;
|
|
(l)
|
No
Material Change.
|
|
There
has been no material adverse change in the business, operations,
financial
condition or assets of the Company since the date of the Company’s most
recent financial statements;
|
|
(m)
|
No
Brokers’ Fees.
|
|
The
Company has not dealt with any broker, investment banker, agent
or other
Person that may be entitled to any commission or compensation in
the
connection with the sale of the Mortgage Loans; and
|
|
(n)
|
MERS.
|
The
Company is a member of MERS in good standing.
Section
3.02 Representations
and Warranties Regarding Individual Mortgage Loans.
As
to
each Mortgage Loan, the Company hereby represents and warrants to the Purchaser
that as of the related Closing Date:
|
(a)
|
Mortgage
Loans as Described.
|
|
The
information set forth in the respective Mortgage Loan Schedule
and the
information contained on the respective Electronic Data File delivered
to
the Purchaser is true and correct;
|
|
(b)
|
Payments
Current.
|
|
All
payments required to be made up to the related Cut-off Date for
the
Mortgage Loan under the terms of the Mortgage Note have been made
and
credited. No payment under any Mortgage Loan has been thirty (30)
days
delinquent more than one time within twelve (12) months prior to
the
related Closing Date;
|
|
(c)
|
No
Outstanding Charges.
|
|
There
are no defaults in complying with the terms of the Mortgages, and
all
taxes, governmental assessments, insurance premiums, leasehold
payments,
water, sewer and municipal charges, which previously became due
and owing
have been paid, or an escrow of funds has been established in an
amount
sufficient to pay for every such item which remains unpaid and
which has
been assessed but is not yet due and payable. The Seller has not
advanced
funds, or induced, solicited directly or indirectly, the payment
of any
amount required under the Mortgage Loan, except for interest accruing
from
the date of the Mortgage Note or date of disbursement of the Mortgage
Loan
proceeds, whichever is later, to the day which precedes by one
month the
Due Date of the first installment of principal and
interest;
|
|
(d)
|
Original
Terms Unmodified.
|
|
The
terms of the Mortgage Note and Mortgage have not been impaired,
waived,
altered or modified in any respect, except by a written instrument
which
has been recorded, if necessary to protect the interests of the
Purchaser
and which has been delivered to the Custodian. The substance of
any such
waiver, alteration or modification has been approved by the issuer
of any
related PMI Policy and the title insurer, to the extent required
by the
policy, and its terms are reflected on the related Mortgage Loan
Schedule.
No Mortgagor has been released, in whole or in part, except in
connection
with an assumption agreement approved by the issuer of any related
PMI
Policy and the title insurer, to the extent required by the policy,
and
which assumption agreement was delivered to the Custodian pursuant
to the
terms of the Custodial Agreement;
|
|
(e)
|
No
Defenses.
|
|
The
Mortgage Loan is not subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense
of
usury, nor will the operation of any of the terms of the Mortgage
Note or
the Mortgage, or the exercise of any right thereunder, render either
the
Mortgage Note or the Mortgage unenforceable, in whole or in part,
or
subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such
right of
rescission, set-off, counterclaim or defense has been asserted
with
respect thereto;
|
|
(f)
|
No
Satisfaction of Mortgage.
|
|
The
Mortgage has not been satisfied, canceled, subordinated or rescinded,
in
whole or in part, and the Mortgaged Property has not been released
from
the lien of the Mortgage, in whole or in part, nor has any instrument
been
executed that would effect any such release, cancellation, subordination
or rescission;
|
|
(g)
|
Validity
of Mortgage Documents.
|
|
The
Mortgage Note and the Mortgage and related documents are genuine,
and each
is the legal, valid and binding obligation of the maker thereof
enforceable in accordance with its terms. All parties to the Mortgage
Note
and the Mortgage had legal capacity to enter into the Mortgage
Loan and to
execute and deliver the Mortgage Note and the Mortgage, and the
Mortgage
Note and the Mortgage have been duly and properly executed by such
parties;
|
With
respect to each Cooperative Loan, the Mortgage Note, the Mortgage, the Pledge
Agreement, and related documents are genuine, and each is the legal, valid
and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Mortgage Note, the Mortgage, the Pledge Agreement,
the
Proprietary Lease, the Stock Power, Recognition Agreement and the Assignment
of
Proprietary Lease had legal capacity to enter into the Mortgage Loan and
to
execute and deliver such documents, and such documents have been duly and
properly executed by such parties;
| (h) | No Fraud. |
|
No
error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the
part of
the Company, or the Mortgagor, or to the best of the Company’s knowledge,
any appraiser, any builder, or any developer, or any other party
involved
in the origination of the Mortgage Loan or in the application of
any
insurance in relation to such Mortgage
Loan;
|
|
(i)
|
Compliance
with Applicable Laws.
|
|
Any
and all requirements of any federal, state or local law including,
without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit and privacy protection, equal credit opportunity,
disclosure or predatory and abusive lending laws applicable to
the
Mortgage Loan have been complied with, and the Company shall maintain
in
its possession, available for the Purchaser's inspection, and shall
deliver to the Purchaser upon demand, evidence of compliance with
all such
requirements. All inspections, licenses and certificates required
to be
made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same,
including
but not limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities;
|
|
(j)
|
Location
and Type of Mortgaged Property.
|
|
The
Mortgaged Property is located in the state identified in the related
Mortgage Loan Schedule and consists of a single, contiguous parcel
of real
property with a detached single family residence erected thereon,
or a
two- to four-family dwelling, or an individual condominium unit
in a
condominium project, or a Cooperative Apartment, or an individual
unit in
a planned unit development or a townhouse, provided, however, that
any
condominium project or planned unit development shall conform with
the
applicable ▇▇▇▇▇▇ Mae requirements, or the underwriting guidelines
of the
company, regarding such dwellings, and no residence or dwelling
is a
mobile home. As of the respective date of the appraisal for each
Mortgaged
Property, any Mortgaged Property being used for commercial purposes
conforms to the underwriting guidelines of the Company and, to
the best of
the Company’s knowledge, since the date of such appraisal, no portion of
the Mortgage Property has been used for commercial purposes outside
of the
underwriting guidelines of the
Company;
|
| (k) | Valid First Lien. |
|
The
Mortgage is a valid, subsisting and enforceable first lien on the
Mortgaged Property, including all buildings on the Mortgaged Property
and
all installations and mechanical, electrical, plumbing, heating
and air
conditioning systems located in or annexed to such buildings, and
all
additions, alterations and replacements made at any time with respect
to
the foregoing. The lien of the Mortgage is subject only
to:
|
|
(1)
|
the
lien of current real property taxes and assessments not yet due
and
payable;
|
|
(2)
|
covenants,
conditions and restrictions, rights of way, easements and other
matters of
the public record as of the date of recording acceptable to mortgage
lending institutions generally and specifically referred to in
the
lender's title insurance policy delivered to the originator of
the
Mortgage Loan and (i) referred to or otherwise considered in the
appraisal
made for the originator of the Mortgage Loan and (ii) which do
not
adversely affect the Appraised Value of the Mortgaged Property
set forth
in such appraisal; and
|
|
(3)
|
other
matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended
to be
provided by the mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property.
|
|
Any
security agreement, chattel mortgage or equivalent document related
to and
delivered in connection with the Mortgage Loan establishes and
creates a
valid, subsisting and enforceable first lien and first priority
security
interest on the property described therein and the Company has
full right
to sell and assign the same to the Purchaser;
|
With
respect to each Cooperative Loan, each Pledge Agreement creates a valid,
enforceable and subsisting first security interest in the Cooperative Shares
and
Proprietary Lease, subject only to (i) the lien of the related Cooperative
for
unpaid assessments representing the Mortgagor’s pro rata share of the
Cooperative’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (ii) other matters to which
like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Pledge Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated
or
otherwise subject to the lien of any mortgage on the Project;
| (l) | Full Disbursement of Proceeds. |
|
The
proceeds of the Mortgage Loan have been fully disbursed, except
for
escrows established or created due to seasonal weather conditions,
and
there is no requirement for future advances thereunder. All costs,
fees
and expenses incurred in making or closing the Mortgage Loan and
the
recording of the Mortgage were paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
|
|
(m)
|
Consolidation
of Future Advances.
|
|
Any
future advances made prior to the related Cut-off Date, have been
consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears
a
single interest rate and single repayment term reflected on the
related
Mortgage Loan Schedule. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority
by a
title insurance policy, an endorsement to the policy insuring the
mortgagee’s consolidated interest or by other title evidence acceptable to
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; the consolidated principal amount does
not
exceed the original principal amount of the Mortgage Loan; the
Seller
shall not make future advances after the related Cut-Off
Date;
|
| (n) | Ownership. |
|
The
Company is the sole owner of record and holder of the Mortgage
Loan and
the related Mortgage Note and the Mortgage are not assigned or
pledged,
and the Company has good and marketable title thereto and has full
right
and authority to transfer and sell the Mortgage Loan to the Purchaser.
The
Company is transferring the Mortgage Loan free and clear of any
and all
encumbrances, liens, pledges, equities, participation interests,
claims,
charges or security interests of any nature encumbering such Mortgage
Loan;
|
(o) Origination/Doing
Business.
|
The
Mortgage Loan was originated by a savings and loan association,
a savings
bank, a commercial bank, a credit union, an insurance company,
or similar
institution which is supervised and examined by a federal or state
authority or by a mortgagee approved by the Secretary of Housing
and Urban
Development pursuant to Sections 203 and 211 of the National Housing
Act.
All parties which have had any interest in the Mortgage Loan, whether
as
mortgagee, assignee, pledgee or otherwise, are (or, during the
period in
which they held and disposed of such interest, were) (1) in compliance
with any and all applicable licensing requirements of the laws
of the
state wherein the Mortgaged Property is located, and (2) organized
under
the laws of such state, or (3) qualified to do business in such
state, or
(4) federal savings and loan associations or national banks having
principal offices in such state, or (5) not doing business in such
state;
|
| (p) | LTV, PMI Policy. |
|
Each
Mortgage Loan has an LTV as set forth in the related Mortgage Loan
Schedule and related Electronic Data File. Except as indicated
on the
Electronic Data File, those Mortgage Loans with an LTV greater
than 80% at
the time of origination, a portion of the unpaid principal balance
of the
Mortgage Loan is and will be insured as to payment defaults by
a PMI
Policy. If the Mortgage Loan is insured by a PMI Policy for which
the
Mortgage pays all premiums, the coverage will remain in place until
(i)
the LTV is decreased to 78% or (ii) the PMI Policy is otherwise
terminated
pursuant to the Homeowners Protection Act of 1998, 12 USC 4901,
et seq.
All provisions of such PMI Policy and LPMI Policy have been and
are being
complied with, such PMI Policy and LPMI Policy is in full force
and
effect, and all premiums due thereunder have been paid. The Qualified
Insurer has a claims paying ability acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇
Mac. Any Mortgage Loan subject to a PMI Policy obligates the Mortgagor
or
in the case of an LPMI Policy, obligates the Company, thereunder
to
maintain the PMI Policy or LPMI Policy and to pay all premiums
and charges
in connection therewith. The Mortgage Interest Rate for the Mortgage
Loan
as set forth on the related Mortgage Loan Schedule is net of any
such
insurance premium. No prior holder of the Mortgage, including the
Company,
has done, by act or omission, anything which would impair the coverage
of
such PMI Policy or LPMI Policy;
|
| (q) | Title Insurance. |
|
The
Mortgage Loan is covered by an ALTA lender's title insurance policy
or
other generally acceptable form of policy of insurance acceptable
to
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued by a title insurer acceptable
to ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring the Company, its successors
and assigns, as to the first priority lien of the Mortgage in the
original
principal amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (1), (2) and (3) of Paragraph (k) of this
Section
3.02, and against any loss by reason of the invalidity or unenforceability
of the lien resulting from the provisions of the Mortgage providing
for
adjustment to the Mortgage Interest Rate and Monthly Payment. The
Company
is the sole insured of such lender's title insurance policy, and
such
lender's title insurance policy is in full force and effect and
will be in
force and effect upon the consummation of the transactions contemplated
by
this Agreement. No claims have been made under such lender's title
insurance policy, and no prior holder of the Mortgage, including
the
Company, has done, by act or omission, anything which would impair
the
coverage of such lender's title insurance
policy;
|
| (r) | No Defaults. |
|
There
is no default, breach, violation or event of acceleration existing
under
the Mortgage or the Mortgage Note and no event which, with the
passage of
time or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration,
and
neither the Company nor its predecessors have waived any default,
breach,
violation or event of acceleration;
|
| (s) | No Mechanics' Liens. |
|
There
are no mechanics' or similar liens or claims which have been filed
for
work, labor or material (and no rights are outstanding that under
the law
could give rise to such liens) affecting the related Mortgaged
Property
which are or may be liens prior to, or equal or coordinate with,
the lien
of the related Mortgage which are not insured against by the title
insurance policy referenced in Paragraph (q)
above;
|
| (t) | Location of Improvements; No Encroachments. |
|
Except
as insured against by the title insurance policy referenced in
Paragraph
(q) above, all improvements which were considered in determining
the
Appraised Value of the Mortgaged Property lay wholly within the
boundaries
and building restriction lines of the Mortgaged Property and no
improvements on adjoining properties encroach upon the Mortgaged
Property.
No improvement located on or being part of the Mortgaged Property
is in
violation of any applicable zoning law or
regulation;
|
|
(u)
|
Payment
Terms.
|
|
Except
with respect to the Interest Only Mortgage Loans, principal payments
commenced no more than 60 days after the funds were disbursed to
the
Mortgagor in connection with the Mortgage Loan. The Mortgage Loans
have an
original term to maturity of not more than 30 years, with interest
payable
in arrears on the first day of each month. As to each adjustable
rate
Mortgage Loan on each applicable Adjustment Date, the Mortgage
Interest
Rate will be adjusted to equal the sum of the Index plus the applicable
Gross Margin, rounded up or down to the nearest multiple of 0.125%
indicated by the Mortgage Note; provided that the Mortgage Interest
Rate
will not increase or decrease by more than 2.00% on any Adjustment
Date,
and will in no event exceed the maximum Mortgage Interest Rate
or be lower
than the minimum Mortgage Interest Rate listed on the Mortgage
Loan
Schedule for such Mortgage Loan. Each adjustable rate Mortgage
Note
requires a monthly payment which is sufficient, during the period
prior to
the first adjustment to the Mortgage Interest Rate, to fully amortize
the
outstanding principal balance as of the first day of such period
over the
then remaining term of such Mortgage Note and to pay interest at
the
related Mortgage Interest Rate; provided however, with respect
to any
Interest Only Mortgage Loans, the Mortgage Note allows a Monthly
Payment
of interest only during the period prior to the first Adjustment
Date and
upon the first adjustment to the Mortgage Interest Rate, the Mortgage
Note
requires a Monthly Payment of principal and interest, sufficient
to fully
amortize the outstanding principal balance over the then remaining
term of
such Mortgage Loan. As to each adjustable rate Mortgage Loan, if
the
related Mortgage Interest Rate changes on an adjustment date, the
then
outstanding principal balance will be reamortized over the remaining
life
of such Mortgage Loan. No Mortgage Loan contains terms or provisions
which
would result in negative amortization;
|
| (v) | Customary Provisions. |
|
The
Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the
realization
against the Mortgaged Property of the benefits of the security
provided
thereby, including, (i) in the case of a Mortgage designated as
a deed of
trust, by trustee's sale, and (ii) otherwise by judicial foreclosure.
There is no homestead or other exemption available to a Mortgagor
which
would interfere with the right to sell the Mortgaged Property at
a
trustee's sale or the right to foreclose the
Mortgage;
|
| (w) | Occupancy of the Mortgaged Property. |
|
As
of the date of origination, the Mortgaged Property was lawfully
occupied
under applicable law;
|
| (x) | No Additional Collateral. |
|
The
Mortgage Note is not and has not been secured by any collateral,
pledged
account, except as indicated on the Electronic Data File, or other
security except the lien of the corresponding Mortgage and the
security
interest of any applicable security agreement or chattel mortgage
referred
to in (k) above;
|
| (y) | Deeds of Trust. |
|
In
the event the Mortgage constitutes a deed of trust, a trustee,
duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage,
and no
fees or expenses are or will become payable by the Mortgagee to
the
trustee under the deed of trust, except in connection with a trustee's
sale after default by the
Mortgagor;
|
| (z) | Acceptable Investment. |
|
The
Company has no knowledge of any circumstances or conditions with
respect
to the Mortgage Loan, the Mortgaged Property, the Mortgagor or
the
Mortgagor's credit standing that can reasonably be expected to
cause
private institutional investors to regard the Mortgage Loan as
an
unacceptable investment, cause the Mortgage Loan to become delinquent,
or
adversely affect the value or marketability of the Mortgage
Loan;
|
| (aa) | Transfer of Mortgage Loans. |
|
If
the Mortgage Loan is not a MERS Mortgage Loan, the Assignment upon
the
insertion of the name of the assignee and recording information
is in
recordable form and is acceptable for recording under the laws
of the
jurisdiction in which the Mortgaged Property is
located;
|
| (bb) | Mortgaged Property Undamaged. |
|
The
Mortgaged Property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty so as to
affect
adversely the value of the Mortgaged Property as security for the
Mortgage
Loan or the use for which the premises were
intended;
|
| (cc) | Collection Practices; Escrow Deposits. |
|
The
origination and collection practices used with respect to the Mortgage
Loan have been in accordance with Accepted Servicing Practices,
and have
been in all material respects legal and proper. With respect to
escrow
deposits and Escrow Payments, all such payments are in the possession
of
the Company and there exist no deficiencies in connection therewith
for
which customary arrangements for repayment thereof have not been
made. All
Escrow Payments have been collected in full compliance with state
and
federal law. No escrow deposits or Escrow Payments or other charges
or
payments due the Company have been capitalized under the Mortgage
Note;
|
| (dd) | No Condemnation. |
|
There
is no proceeding pending or to the best of the Company’s knowledge
threatened for the total or partial condemnation of the related
Mortgaged
Property;
|
| (ee) | The Appraisal. |
|
The
Servicing File contains an appraisal of the related Mortgaged Property.
As
to each Time$aver® Mortgage Loan, the appraisal may be from the original
of the existing Company-serviced loan, which was refinanced via
such
Time$aver® Mortgage Loan. The appraisal was conducted by an appraiser who
had no interest, direct or indirect, in the Mortgaged Property
or in any
loan made on the security thereof; and whose compensation is not
affected
by the approval or disapproval of the Mortgage Loan, and the appraisal
and
the appraiser both satisfy the applicable requirements of Title
XI of the
Financial Institution Reform, Recovery, and Enforcement Act of
1989 and
the regulations promulgated thereunder, all as in effect on the
date the
Mortgage Loan was originated;
|
| (ff) | Insurance. |
|
The
Mortgaged Property securing each Mortgage Loan is insured by an
insurer
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac against loss by fire and
such
hazards as are covered under a standard extended coverage endorsement
and
such other hazards as are customary in the area where the Mortgaged
Property is located pursuant to insurance policies conforming to
the
requirements of Section 4.10, in an amount which is at least equal
to the
lesser of (a) 100% of the insurable value, on a replacement cost
basis, of
the improvements on the related Mortgaged Property, and (b) the
greater of
(i) the outstanding principal balance of the Mortgage Loan and
(ii) an
amount such that the proceeds of such insurance shall be sufficient
to
prevent the application to the Mortgagor or the loss payee of any
coinsurance clause under the policy. If the Mortgaged Property
is a
condominium unit, it is included under the coverage afforded by
a blanket
policy for the project. If the improvements on the Mortgaged Property
are
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, a flood insurance
policy meeting the requirements of the current guidelines of the
Federal
Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less
than the
least of (A) the outstanding principal balance of the Mortgage Loan,
(B) the full insurable value and (C) the maximum amount of
insurance which was available under the Flood Disaster Protection
Act of
1973, as amended. All individual insurance policies contain a standard
mortgagee clause naming the Company and its successors and assigns
as
mortgagee, and all premiums thereon have been paid. The Mortgage
obligates
the Mortgagor thereunder to maintain a hazard insurance policy
at the
Mortgagor's cost and expense, and on the Mortgagor's failure to
do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at such Mortgagor's cost and expense, and to seek reimbursement
therefor from the Mortgagor. The hazard insurance policy is the
valid and
binding obligation of the insurer, is in full force and effect,
and will
be in full force and effect and inure to the benefit of the Purchaser
upon
the consummation of the transactions contemplated by this Agreement.
The
Company has not acted or failed to act so as to impair the coverage
of any
such insurance policy or the validity, binding effect and enforceability
thereof;
|
|
(gg)
|
Servicemembers’
Civil Relief Act.
|
|
The
Mortgagor has not notified the Company, and the Company has no
knowledge
of any relief requested or allowed to the Mortgagor under the
Servicemembers’ Civil Relief Act, as
amended;
|
|
(hh)
|
No
Graduated Payments or Contingent Interests.
|
|
The
Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage
Loan does not have a shared appreciation or other contingent interest
feature;
|
|
(ii)
|
No
Construction Loans.
|
|
No
Mortgage Loan was made in connection with (i) the construction
or
rehabilitation of a Mortgage Property or (ii) facilitating the
trade-in or
exchange of a Mortgaged Property other than a construction-to-permanent
loan which has converted to a permanent Mortgage
Loan;
|
|
(jj)
|
Underwriting.
|
|
Each
Mortgage Loan was underwritten in accordance with the underwriting
guidelines of the Company, which were in effect at the time the
Mortgage
Loan was originated; and the Mortgage Note and Mortgage are on
forms
acceptable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇
Mae;
|
|
(kk)
|
Buydown
Mortgage Loans.
|
|
With
respect to each Mortgage Loan that is a Buydown Mortgage
Loan:
|
|
(i)
|
On
or before the date of origination of such Mortgage Loan, the Company
and
the Mortgagor, or the Company, the Mortgagor and the seller of
the
Mortgaged Property or a third party entered into a Buydown Agreement.
The
Buydown Agreement provides that the seller of the Mortgaged Property
(or
third party) shall deliver to the Company temporary Buydown Funds
in an
amount equal to the aggregate undiscounted amount of payments that,
when
added to the amount the Mortgagor on such Mortgage Loan is obligated
to
pay on each Due Date in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payment due on
such
Mortgage Loan. The temporary Buydown Funds enable the Mortgagor
to qualify
for the Buydown Mortgage Loan. The effective interest rate of a
Buydown
Mortgage Loan if less than the interest rate set forth in the related
Mortgage Note will increase within the Buydown Period as provided
in the
related Buydown Agreement so that the effective interest rate will
be
equal to the interest rate as set forth in the related Mortgage
Note. The
Buydown Mortgage Loan satisfies the requirements of ▇▇▇▇▇▇ ▇▇▇
or ▇▇▇▇▇▇▇
Mac guidelines;
|
|
(ii)
|
The
Mortgage and Mortgage Note reflect the permanent payment terms
rather than
the payment terms of the Buydown Agreement. The Buydown Agreement
provides
for the payment by the Mortgagor of the full amount of the Monthly
Payment
on any Due Date that the Buydown Funds are available. The Buydown
Funds
were not used to reduce the original principal balance of the Mortgage
Loan or to increase the Appraised Value of the Mortgage Property
when
calculating the Loan-to-Value Ratios for purposes of the Agreement
and, if
the Buydown Funds were provided by the Company and if required
under
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines, the terms of the Buydown
Agreement
were disclosed to the appraiser of the Mortgaged
Property;
|
|
(iii)
|
The
Buydown Funds may not be refunded to the Mortgagor unless the Mortgagor
makes a principal payment for the outstanding balance of the Mortgage
Loan;
|
|
(iv)
|
As
of the date of origination of the Mortgage Loan, the provisions
of the
related Buydown Agreement complied with the requirements of ▇▇▇▇▇▇
Mae or
▇▇▇▇▇▇▇ Mac regarding buydown
agreements.
|
|
(ll)
|
Delivery
of Custodial Mortgage Files.
|
Any
documents required to be delivered by the Company under this Agreement have
been
delivered to the Custodian. The Company is in possession of a complete, true
and
accurate Retained Mortgage File and Custodial Mortgage File in compliance
with
Exhibit C hereto;
|
(mm)
|
No
Violation of Environmental Laws.
|
There
is
no pending action or proceeding directly involving any Mortgaged Property
of
which the Company is aware in which compliance with any environmental law,
rule
or regulation is an issue; and to the best of the Company’s knowledge, nothing
further remains to be done to satisfy in full all requirements of each such
law,
rule or regulation constituting a prerequisite to use and enjoyment of said
property;
|
(nn)
|
No
Bankruptcy.
|
No
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated and to the best of
the
Company’s knowledge, as of the related Closing Date, the Company has not
received notice that any Mortgagor is a debtor under any state or federal
bankruptcy or insolvency proceeding;
|
(oo)
|
HOEPA.
|
No
Mortgage Loan is a High Cost Loan or Covered Loan;
|
(pp)
|
Cooperative
Loans.
|
With
respect to each Cooperative Loan:
|
(i)
|
The
Cooperative Shares are held by a person as a tenant-stockholder
in a
Cooperative. Each original UCC financing statement, continuation
statement
or other governmental filing or recordation necessary to create
or
preserve the perfection and priority of the first lien and security
interest in the Cooperative Loan and Proprietary Lease has been
timely and
properly made. Any security agreement, chattel mortgage or equivalent
document related to the Cooperative Loan and delivered to Purchaser
or its
designee establishes in Purchaser a valid and subsisting perfected
first
lien on and security interest in the Mortgaged Property described
therein,
and Purchaser has full right to sell and assign the same. The Proprietary
Lease term expires no less than five years after the Mortgage Loan
term or
such other term acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac;
|
|
(ii)
|
A
Cooperative Lien Search has been made by a company competent to
make the
same which company is acceptable to ▇▇▇▇▇▇ Mae and qualified to
do
business in the jurisdiction where the Cooperative is
located;
|
|
(iii)
|
(a)
The term of the related Proprietary Lease is not less than the
terms of
the Cooperative Loan; (b) there is no provision in any Proprietary
Lease
which requires the Mortgagor to offer for sale the Cooperative
Shares
owned by such Mortgagor first to the Cooperative; (c) there is
no
prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (d) the Cooperative
has been
created and exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which the Project
is
located and qualifies as a cooperative housing corporation under
Section
210 of the Code; (e) the Recognition Agreement is on a form published
by
Aztech Document Services, Inc. or includes similar provisions;
and (f) the
Cooperative has good and marketable title to the Project, and owns
the
Project either in fee simple or under a leasehold that complies
with the
requirements of the ▇▇▇▇▇▇ ▇▇▇ Guidelines; such title is free and
clear of
any adverse liens or encumbrances, except the lien of any blanket
mortgage;
|
| (iv) |
The
Company has the right under the terms of the Mortgage Note, Pledge
Agreement and Recognition Agreement to pay any maintenance charges
or
assessments owed by the Mortgagor;
|
| (v) |
Each
Stock Power (i) has all signatures guaranteed or (ii) if all signatures
are not guaranteed, then such Cooperative Shares will be transferred
by
the stock transfer agent of the Cooperative if the Company undertakes
to
convert the ownership of the collateral securing the related Cooperative
Loan;
|
|
(qq)
|
Georgia
Fair Lending Act.
|
There
is
no Mortgage Loan that was originated on or after October 1, 2002 and before
March 7, 2003, which is secured by property located in the State of
Georgia;
|
(rr)
|
Methodology.
|
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles which relate the borrower’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the borrower’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the borrower had a reasonable ability to make timely
payments on the Mortgage Loan;
|
(ss)
|
Imposition
of a Premium.
|
With
respect to any Mortgage Loan that contains a provision permitting imposition
of
a premium upon a prepayment prior to maturity: (i) the prepayment premium
is
disclosed to the borrower in the loan documents pursuant to applicable state
and
federal law, and (ii) notwithstanding any state or federal law to the contrary,
the Company shall recommend that such prepayment premium is not imposed in
any
instance when the mortgage debt is accelerated as the result of the borrower’s
default in making the loan payments;
|
(tt)
|
Single
Premium Credit Life.
|
No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g. life, disability, accident, unemployment or health insurance products)
or
debt cancellation agreement as a condition of obtaining the extension of
credit.
No Mortgagor obtained a prepaid single premium credit insurance policy (e.g.
life, disability, accident, unemployment or health insurance product) as
part of
the origination of the Mortgage Loan. No proceeds from any Mortgage Loan
were
used to purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Mortgage Loan;
|
(uu)
|
No
Arbitration Provision.
|
|
With
respect to each Mortgage Loan, neither the related Mortgage nor
the
related Mortgage Note requires the Mortgagor to
submit to arbitration to resolve any dispute arising out of or
relating in
any way to the Mortgage Loan transaction;
|
|
(ww)
|
Credit
Reporting.
|
With
respect to each Mortgage Loan, the Company has fully furnished, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (i.e. favorable and unfavorable) on its borrower
credit
files to Equifax, Experian and Trans Union Credit Information Company (three
of
the credit repositories), on a monthly basis; and
|
(xx)
|
Illinois
Interest Act.
|
Any
Mortgage Loan with a Mortgaged Property in the State of Illinois complies
with
the Illinois Interest Act.
Section
3.03 Repurchase.
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and the delivery of the Mortgage Loan Documents to the Custodian
and
shall inure to the benefit of the Purchaser, notwithstanding any restrictive
or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Custodial Mortgage Files or Retained
Mortgage File. Upon discovery by either the Company or the Purchaser of a
breach
of any of the foregoing representations and warranties which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser (or which materially and adversely affects the interests of Purchaser
in the related Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan), the party discovering such breach
shall
give prompt written notice to the other.
Within
ninety (90) days of the earlier of either discovery by or notice to the Company
of any breach of a representation or warranty which materially and adversely
affects the value of the Mortgage Loans, the Company shall use its best efforts
promptly to cure such breach in all material respects and, if such breach
cannot
be cured, the Company shall, at the Purchaser's option, repurchase such Mortgage
Loan at the Repurchase Price. In the event that a breach shall involve any
representation or warranty set forth in Section 3.01, and such breach cannot
be
cured within 90 days of the earlier of either discovery by or notice to the
Company of such breach, all of the Mortgage Loans shall, at the Purchaser's
option, be repurchased by the Company at the Repurchase Price. However, if
the
breach shall involve a representation or warranty set forth in Section 3.02
and
the Company discovers or receives notice of any such breach within 120 days
of
the related Closing Date, the Company shall, if the breach cannot be cured,
at
the Purchaser's option and provided that the Company has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in its
place a Qualified Substitute Mortgage Loan or Loans, provided that any such
substitution shall be effected not later than 120 days after the related
Closing
Date. If the Company has no Qualified Substitute Mortgage Loan, it shall
repurchase the deficient Mortgage Loan within ninety (90) days of the written
notice of the breach or the failure to cure, whichever is later. Any repurchase
of a Mortgage Loan or Loans pursuant to the foregoing provisions of this
Section
3.03 shall be accomplished by deposit in the Custodial Account of the amount
of
the Repurchase Price for distribution to Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect
of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution.
At
the
time of repurchase or substitution, the Purchaser and the Company shall arrange
for the reassignment of the Deleted Mortgage Loan to the Company and the
delivery to the Company of any documents held by the Custodian relating to
the
Deleted Mortgage Loan. If
the
Company repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Company
shall cause MERS to designate on the MERS® System to remove the Purchaser as the
beneficial holder with respect to such Mortgage Loan. In
the
event of a repurchase or substitution, the Company shall, simultaneously
with
such reassignment, give written notice to the Purchaser that such repurchase
or
substitution has taken place, amend the related Mortgage Loan Schedule to
reflect the withdrawal of the Deleted Mortgage Loan from this Agreement,
and, in
the case of substitution, identify a Qualified Substitute Mortgage Loan and
amend the related Mortgage Loan Schedule to reflect the addition of such
Qualified Substitute Mortgage Loan to this Agreement. In connection with
any
such substitution, the Company shall be deemed to have made as to such Qualified
Substitute Mortgage Loan the representations and warranties set forth in
this
Agreement except that all such representations and warranties set forth in
this
Agreement shall be deemed made as of the date of such substitution. The Company
shall effect such substitution by delivering to the Custodian for such Qualified
Substitute Mortgage Loan the documents required by Section 2.03, with the
Mortgage Note endorsed as required by Section 2.03. No substitution will
be made
in any calendar month after the Determination Date for such month. The Company
shall deposit in the Custodial Account the Monthly Payment less the Servicing
Fee due on such Qualified Substitute Mortgage Loan or Loans in the month
following the date of such substitution. Monthly Payments due with respect
to
Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by the Company. With respect to any Deleted Mortgage loan,
distributions to Purchaser shall include the Monthly Payment due on any Deleted
Mortgage Loan in the month of substitution, and the Company shall thereafter
be
entitled to retain all amounts subsequently received by the Company in respect
of such Deleted Mortgage Loan.
For
any
month in which the Company substitutes a Qualified Substitute Mortgage Loan
for
a Deleted Mortgage Loan, the Company shall determine the amount (if any)
by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all Deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall
shall
be distributed by the Company in the month of substitution pursuant to Section
5.01. Accordingly, on the date of such substitution, the Company shall deposit
from its own funds into the Custodial Account an amount equal to the amount
of
such shortfall.
In
addition to such repurchase or substitution obligation, the Company shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim,
demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Company representations and warranties contained in this Agreement. It
is
understood and agreed that the obligations of the Company set forth in this
Section 3.03 to cure, substitute for or repurchase a defective Mortgage Loan
and
to indemnify the Purchaser as provided in this Section 3.03 constitute the
sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties.
Any
cause
of action against the Company relating to or arising out of the breach of
any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice
thereof by the Company to the Purchaser, (ii) failures by the Company to
cure
such breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Company by the Purchaser for compliance with this
Agreement.
In
the
event a Mortgage Loan pays off in full on or before the related Closing Date,
the Company must repay the Purchaser the difference between the Unpaid Principal
Balance of such Mortgage Loan as of the date of pay off and the Unpaid Principal
Balance multiplied by the purchase price percentage adjusted, if necessary
in
accordance with the Commitment Letter.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Company
to Act as Servicer.
The
Company, as an independent contractor, shall service and administer the Mortgage
Loans and shall have full power and authority, acting alone or through the
utilization of a Subcontractor, to do any and all things in connection with
such
servicing and administration which the Company may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices. The
Company shall be responsible for any and all acts of a Subcontractor, and
the
Company’s utilization of a Subcontractor shall in no way relieve the liability
of the Company under this Agreement.
Consistent
with the terms of this Agreement, the Company may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance
with
any such term or in any manner grant indulgence to any Mortgagor if in the
Company's reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser, provided,
however, that the Company shall not make any future advances with respect
to a
Mortgage Loan and (unless the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Company, imminent
and
the Company has obtained the prior written consent of the Purchaser) the
Company
shall not permit any modification with respect to any Mortgage Loan that
would
change the Mortgage Interest Rate, defer or forgive the payment of principal
(except for actual payments of principal) or change the final maturity date
on
such Mortgage Loan. In the event of any such modification which permits the
deferral of interest or principal payments on any Mortgage Loan, the Company
shall, on the Business Day immediately preceding the Remittance Date in any
month in which any such principal or interest payment has been deferred,
deposit
in the Custodial Account from its own funds, in accordance with Section 5.03,
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 Company shall
be
entitled to reimbursement for such advances to the same extent as for all
other
advances made pursuant to Section 5.03. Without limiting the generality of
the
foregoing, the Company shall continue, and is hereby authorized and empowered,
to execute and deliver on behalf of itself and the Purchaser, 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. If reasonably required by the Company,
the
Purchaser shall furnish the Company with any powers of attorney and other
documents necessary or appropriate to enable the Company to carry out its
servicing and administrative duties under this Agreement.
In
servicing and administering the Mortgage Loans, the Company shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage
loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser's reliance on the Company.
The
Company is authorized and empowered by the Purchaser, in its own name, when
the
Company believes it appropriate in its reasonable judgment to register any
Mortgage Loan on the MERS® System, or cause the removal from the registration of
any Mortgage Loan on the MERS® System, with written consent of the Purchaser, to
execute and deliver, on behalf of the Purchaser, any and all instruments
of
assignment and other comparable instruments with respect to such assignment
or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Purchaser and its successors and assigns.
The
Company shall cause to be maintained for each Cooperative Loan a copy of
the
financing statements and shall file and such financing statements and
continuation statements as necessary, in accordance with the Uniform Commercial
Code applicable in the jurisdiction in which the related Cooperative Apartment
is located, to perfect and protect the security interest and lien of the
Purchaser.
The
Company shall apply any Principal Prepayment on an Interest Only Mortgage
Loan
to the then-outstanding principal balance, at which time the interest-only
payment feature shall be extinguished. The related Monthly Payment shall
thereafter consist of both principal and interest components, and the amount
of
such Monthly Payment shall not change prior to the next Adjustment
Date.
Section
4.02 Liquidation
of Mortgage Loans.
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 4.01 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
Company shall take such action as (1) the Company would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (2) shall be consistent with Accepted Servicing Practices,
(3)
the Company shall determine prudently to be in the best interest of Purchaser,
and (4) is consistent with any related PMI Policy. In the event that any
payment
due under any Mortgage Loan is not postponed pursuant to Section 4.01 and
remains delinquent for a period of 90 days or any other default continues
for a
period of 90 days beyond the expiration of any grace or cure period, the
Company
shall commence foreclosure proceedings, the Company shall notify the Purchaser
in writing of the Company's intention to do so, and the Company shall not
commence foreclosure proceedings if the Purchaser objects to such action
within
three (3) Business Days of receiving such notice. In the event the Purchaser
objects to such foreclosure action, the Company shall not be required to
make
Monthly Advances with respect to such Mortgage Loan, pursuant to Section
5.03,
and the Company's obligation to make such Monthly Advances shall terminate
on
the 90th day referred to above. In such connection, the Company shall from
its
own funds make all necessary and proper Servicing Advances, provided, however,
that the Company shall not be required to expend its own funds in connection
with any foreclosure or towards the restoration or preservation of any Mortgaged
Property, unless it shall determine (a) that such preservation, restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to Purchaser after reimbursement to itself for such expenses and (b)
that
such expenses will be recoverable by it either through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from
the
Custodial Account pursuant to Section 4.05) or through Insurance Proceeds
(respecting which it shall have similar priority).
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Company has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Purchaser otherwise requests
an environmental inspection or review of such Mortgaged Property, such an
inspection or review is to be conducted by a qualified inspector. The cost
for
such inspection or review shall be borne by the Purchaser. Upon completion
of
the inspection or review, the Company shall promptly provide the Purchaser
with
a written report of the environmental inspection.
After
reviewing the environmental inspection report, the Purchaser shall determine
how
the Company shall proceed with respect to the Mortgaged Property. In the
event
(a) the environmental inspection report indicates that the Mortgaged Property
is
contaminated by hazardous or toxic substances or wastes and (b) the Purchaser
directs the Company to proceed with foreclosure or acceptance of a deed in
lieu
of foreclosure, the Company shall be reimbursed for all reasonable costs
associated with such foreclosure or acceptance of a deed in lieu of foreclosure
and any related environmental clean up costs, as applicable, from the related
Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to
fully
reimburse the Company, the Company shall be entitled to be reimbursed from
amounts in the Custodial Account pursuant to Section 4.05 hereof. In the
event
the Purchaser directs the Company not to proceed with foreclosure or acceptance
of a deed in lieu of foreclosure, the Company shall be reimbursed for all
Servicing Advances made with respect to the related Mortgaged Property from
the
Custodial Account pursuant to Section 4.05 hereof.
Section
4.03 Collection
of Mortgage Loan Payments.
Continuously
from the related Cut-off Date until the principal and interest on all Mortgage
Loans are paid in full, the Company 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 Loan and the 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.
Section
4.04 Establishment
of and Deposits to Custodial Account.
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Custodial Accounts, in the form
of
time deposit or demand accounts, titled "▇▇▇▇▇ Fargo Bank, N.A. in trust
for the
Purchaser and/or subsequent purchasers of Mortgage Loans - P & I." The
Custodial Account shall be established with a Qualified Depository. Upon
request
of the Purchaser and within ten (10) days thereof, the Company shall provide
the
Purchaser with written confirmation of the existence of such Custodial Account.
Any funds deposited into the Custodial Account shall at all times be insured
to
the fullest extent allowed by applicable law. Funds deposited in the Custodial
Account may be drawn on by the Company in accordance with Section
4.05.
The
Company shall deposit in the Custodial Account within one (1) Business Day
of
Company’s receipt, and retain therein, the following collections received by the
Company and payments made by the Company after the related Cut-off Date,
other
than payments of principal and interest due on or before the related Cut-off
Date, or received by the Company prior to the related Cut-off Date but allocable
to a period subsequent thereto:
|
(i)
|
all
payments on account of principal on the Mortgage Loans, including
all
Principal Prepayments;
|
|
(ii)
|
all
payments on account of interest on the Mortgage Loans adjusted
to the
Mortgage Loan Remittance Rate;
|
|
(iii)
|
all
Liquidation Proceeds;
|
|
(iv)
|
all
Insurance Proceeds including amounts required to be deposited pursuant
to
Section 4.10 (other than proceeds to be held in the Escrow Account
and
applied to the restoration or repair of the Mortgaged Property
or released
to the Mortgagor in accordance with Section 4.14), Section 4.11
and
Section 4.15;
|
|
(v)
|
all
Condemnation Proceeds which are not applied to the restoration
or repair
of the Mortgaged Property or released to the Mortgagor in accordance
with
Section 4.14;
|
|
(vi)
|
any
amount required to be deposited in the Custodial Account pursuant
to
Section 4.01, 5.03, 6.01 or 6.02;
|
|
(vii)
|
any
amounts payable in connection with the repurchase of any Mortgage
Loan
pursuant to Section 3.03 and all amounts required to be deposited
by the
Company in connection with a shortfall in principal amount of any
Qualified Substitute Mortgage Loan pursuant to Section
3.03;
|
|
(viii)
|
with
respect to each Principal Prepayment an amount (to be paid by the
Company
out of its funds) which, when added to all amounts allocable to
interest
received in connection with the Principal Prepayment, equals one
month's
interest on the amount of principal so prepaid at the Mortgage
Loan
Remittance Rate;
|
|
(ix)
|
any
amounts required to be deposited by the Company pursuant to Section
4.11
in connection with the deductible clause in any blanket hazard
insurance
policy;
|
|
(x)
|
any
amounts received with respect to or related to any REO Property
and all
REO Disposition Proceeds pursuant to Section 4.16; and
|
|
(xi)
|
an
amount from the Subsidy Account that when added to the Mortgagor’s payment
will equal the full monthly amount due under the related Mortgage
Note.
|
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 6.01, need not be deposited by the
Company into the Custodial Account. Any interest paid on funds deposited
in the
Custodial Account by the depository institution shall accrue to the benefit
of
the Company and the Company shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.05.
Section
4.05 Permitted
Withdrawals From Custodial Account.
The
Company shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
|
(i)
|
to make payments to the Purchaser in the amounts and in the manner provided for in Section 5.01; |
| (ii) |
to
reimburse itself for Monthly Advances of the Company's funds
made pursuant
to Section 5.03, the Company's right to reimburse itself pursuant
to this
subclause (ii) being limited to amounts received on the related
Mortgage
Loan which represent late payments of principal and/or interest
respecting
which any such advance was made, it being understood that, in
the case of
any such reimbursement, the Company's right thereto shall be
prior to the
rights of Purchaser, except that, where the Company is required
to
repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02,
the Company's
right to such reimbursement shall be subsequent to the payment
to the
Purchaser of the Repurchase Price pursuant to such sections and
all other
amounts required to be paid to the Purchaser with respect to
such Mortgage
Loan;
|
| (iii) | to reimburse itself for unreimbursed Servicing Advances, and for any unpaid Servicing Fees, the Company's right to reimburse itself pursuant to this subclause (iii) with respect to any Mortgage Loan being limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such other amounts as may be collected by the Company from the Mortgagor or otherwise relating to the Mortgage Loan, it being understood that, in the case of any such reimbursement, the Company's right thereto shall be prior to the rights of Purchaser, except that where the Company is required to repurchase a Mortgage Loan pursuant to Section 3.03 or 6.02, in which case the Company's right to such reimbursement shall be subsequent to the payment to the Purchaser of the Repurchase Price pursuant to such sections and all other amounts required to be paid to the Purchaser with respect to such Mortgage Loan. Upon Purchaser's request, the Company shall provide documentation supporting the Company's Servicing Advances; |
| (iv) | to pay itself interest on funds deposited in the Custodial Account; |
| (v) |
to
reimburse itself for expenses incurred and reimbursable to it
pursuant to
Section 8.01;
|
| (vi) |
to
pay any amount required to be paid pursuant to Section 4.16 related
to any
REO Property, it being understood that, in the case of any such
expenditure or withdrawal related to a particular REO Property,
the amount
of such expenditure or withdrawal from the Custodial Account
shall be
limited to amounts on deposit in the Custodial Account with respect
to the
related REO Property;
|
| (vii) | to reimburse itself for any Servicing Advances or REO expenses after liquidation of the Mortgaged Property not otherwise reimbursed above; |
| (viii) | to remove funds inadvertently placed in the Custodial Account by the Company; and |
| (ix) |
to
clear and terminate the Custodial Account upon the termination
of this
Agreement.
|
In
the
event that the Custodial Account is interest bearing, on each Remittance
Date,
the Company shall withdraw all funds from the Custodial Account except for
those
amounts which, pursuant to Section 5.01, the Company is not obligated to
remit
on such Remittance Date. The Company may use such withdrawn funds only for
the
purposes described in this Section 4.05.
Section
4.06 Establishment
of and Deposits to Escrow Account.
The
Company 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, "▇▇▇▇▇
Fargo
Bank, N.A., in trust for the Purchaser and/or subsequent purchasers of
Residential Mortgage Loans, and various Mortgagors - T & I." The Escrow
Accounts shall be established with a Qualified Depository, in a manner which
shall provide maximum available insurance thereunder. Upon request of the
Purchaser and within ten (10) days thereof, the Company shall provide the
Purchaser with written confirmation of the existence of such Escrow Account.
Funds deposited in the Escrow Account may be drawn on by the Company in
accordance with Section 4.07.
The
Company shall deposit in the Escrow Account or Accounts within one (1) Business
Days of Company’s receipt, 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;
|
|
(ii)
|
all
amounts representing Insurance Proceeds or Condemnation Proceeds
which are
to be applied to the restoration or repair of any Mortgaged Property;
and
|
|
(iii)
|
all
payments on account of Buydown
Funds.
|
The
Company shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 4.07.
The
Company shall be entitled to retain any interest 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 Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Company
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 Company for any Servicing Advances made by the Company
pursuant to Section 4.08 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 under the terms of the related Mortgage
Loan;
|
|
(iv)
|
for
transfer to the Custodial Account and application to reduce the
principal
balance of the Mortgage Loan in accordance with the terms of the
related
Mortgage and Mortgage Note;
|
|
(v)
|
for
application to restoration or repair of the Mortgaged Property
in
accordance with the procedures outlined in Section
4.14;
|
|
(vi)
|
to
pay to the Company, or any Mortgagor to the extent required by
law, any
interest paid on the funds deposited in the Escrow
Account;
|
|
(vii)
|
to
remove funds inadvertently placed in the Escrow Account by the
Company;
|
|
(viii)
|
to
remit to Purchaser payments on account of Buydown Funds as applicable;
and
|
|
(ix)
|
to
clear and terminate the Escrow Account on the termination of this
Agreement.
|
Section
4.08 Payment
of Taxes, Insurance and Other Charges.
With
respect to each Mortgage Loan, the Company 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 PMI Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) and shall effect payment thereof prior
to
the applicable penalty or termination date, employing for such purpose deposits
of the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Company in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. The Company assumes full responsibility
for the
timely payment of all such bills and shall effect timely payment of all such
charges irrespective of each Mortgagor's faithful performance in the payment
of
same or the making of the Escrow Payments, and the Company shall make advances
from its own funds to effect such payments.
Section
4.09 Protection
of Accounts.
The
Company may transfer the Custodial Account, the Subsidy Account or the Escrow
Account to a different Qualified Depository from time to time with prior
written
notice to Purchaser.
Section
4.10 Maintenance
of Hazard Insurance.
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by an insurer
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac 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) 100% of the insurable value, on a replacement cost basis, of
the
improvements on the related Mortgaged Property, and (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan and (b) an amount such
that
the proceeds of such insurance shall be sufficient to prevent the application
to
the Mortgagor or the loss payee of any coinsurance clause under the policy.
In
the event a hazard insurance policy shall be in danger of being terminated,
or
in the event the insurer shall cease to be acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac, the Company shall notify the Purchaser and the related Mortgagor, and
shall
use its best efforts, as permitted by applicable law, to obtain from another
qualified insurer a replacement hazard insurance policy substantially and
materially similar in all respects to the original policy. In no event, however,
shall a Mortgage Loan be without a hazard insurance policy at any time, subject
only to Section 4.11 hereof.
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified 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 is in effect with a generally acceptable
insurance carrier acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac 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 Company determines in accordance with applicable law 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 Company shall
notify
the related Mortgagor that the Mortgagor must obtain such flood insurance
coverage, and if said Mortgagor fails to obtain the required flood insurance
coverage within forty-five (45) days after such notification, the Company
shall
immediately force place the required flood insurance on the Mortgagor’s behalf,
as permitted by applicable law.
If
a
Mortgage is secured by a unit in a condominium project, the Company shall
verify
that the coverage required of the owner's association, including hazard,
flood,
liability, and fidelity coverage, is being maintained in accordance with
then
current ▇▇▇▇▇▇ Mae requirements, and secure from the owner's association
its
agreement to notify the Company promptly of any change in the insurance coverage
or of any condemnation or casualty loss that may have a material effect on
the
value of the Mortgaged Property as security.
In
the
event that any Purchaser or the Company 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 Company shall communicate and consult with
the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Company shall
immediately force place the required coverage on the Mortgagor’.
All
policies required hereunder shall name the Company 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
Company shall not interfere with the Mortgagor's freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Company
shall
not accept any such insurance policies from insurance companies unless such
companies are acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac and are licensed to
do
business in the jurisdiction in which the Mortgaged Property is located.
The
Company 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.
Pursuant
to Section 4.04, any amounts collected by the Company 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 Company's normal servicing procedures as specified in
Section 4.14) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 4.05.
Section
4.11 Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Company 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 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4.10. The
Company shall prepare and make any claims on the blanket policy as deemed
necessary by the Company in accordance with Accepted Servicing Practices.
Any
amounts collected by the Company under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 4.05. 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 4.10, and there shall have been
a loss
which would have been covered by such policy, the Company shall deposit in
the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to
be
deposited from the Company's funds, without reimbursement therefor. Upon
request
of the Purchaser, the Company shall cause to be delivered to such Purchaser
a
certificate of insurance 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 such Purchaser.
Section
4.12 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Company shall maintain with responsible companies, at its own expense, a
blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad coverage
on all officers, employees or other Persons acting in any capacity requiring
such Persons to handle funds, money, documents or papers relating to the
Mortgage Loans ("Company Employees"). Any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be in the form of the Mortgage Banker's
Blanket
Bond and shall protect and insure the Company against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
Company Employees. Such Fidelity Bond and Errors and Omissions Insurance
Policy
also shall protect and insure the Company against losses in connection with
the
release or satisfaction of a Mortgage Loan without having obtained payment
in
full of the indebtedness secured thereby. No provision of this Section 4.12
requiring such Fidelity Bond and Errors and Omissions Insurance Policy shall
diminish or relieve the Company from its duties and obligations as set forth
in
this Agreement. The minimum coverage under any such bond and insurance policy
shall be with a company acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and in amounts
at least equal to the amounts acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Upon
the
request of any Purchaser, the Company shall cause to be delivered to such
Purchaser a certified true copy of such fidelity bond and insurance policy
and a
statement from the surety and the insurer that such fidelity bond and insurance
policy shall in no event be terminated or materially modified without 30
days'
prior written notice to the Purchaser.
Section
4.13 Inspections.
If
any
Mortgage Loan is more than 60 days delinquent, the Company immediately shall
inspect the Mortgaged Property and shall conduct subsequent inspections in
accordance with Accepted Servicing Practices or as may be required by the
primary mortgage guaranty insurer. The Company shall keep a record of each
such
inspection and shall provide the Purchaser with copies of such upon
request.
Section
4.14 Restoration
of Mortgaged Property.
The
Company need not obtain the approval of the Purchaser prior to releasing
any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. For claims greater than $15,000,
at a minimum the Company shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation
Proceeds:
|
(i)
|
the
Company shall receive satisfactory independent verification
of completion
of repairs and issuance of any required approvals with respect
thereto;
|
| (ii) |
the
Company 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;
|
| (iii) |
the
Company shall verify that the Mortgage Loan is not in default;
and
|
| (iv) |
pending
repairs or restoration, the Company shall place the Insurance
Proceeds or
Condemnation Proceeds in the Escrow
Account.
|
If
the
Purchaser is named as an additional loss payee, the Company is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
Section
4.15 Maintenance
of PMI Policy; Claims.
Each
Mortgage Loan has an LTV as indicated on the Mortgage Loan Schedule and
Electronic Data File. Except as indicated on the Electronic Data File, with
respect to each Mortgage Loan with an LTV in excess of 80% at the time of
origination, the Company shall, without any cost to the Purchaser maintain
or
cause the Mortgagor to maintain in full force and effect a PMI Policy or
LPMI
Policy insuring a portion of the unpaid principal balance of the Mortgage
Loan
as to payment defaults. If the Mortgage Loan is insured by a PMI Policy for
which the Mortgagor pays all premiums, the coverage will remain in place
until
(i) the LTV decreases to 78% or (ii) the PMI Policy is otherwise terminated
pursuant to the Homeowners Protection Act of 1998, 12 USC 4901, et seq. In
the
event that such PMI Policy shall be terminated other than as required by
law,
the Company shall obtain from another Qualified Insurer a comparable replacement
policy, with a total coverage equal to the remaining coverage of such terminated
PMI Policy. If the insurer shall cease to be a Qualified Insurer, the Company
shall determine whether recoveries under the PMI Policy and LPMI Policy are
jeopardized for reasons related to the financial condition of such insurer,
it
being understood that the Company shall in no event have any responsibility
or
liability for any failure to recover under the PMI Policy or LPMI Policy
for
such reason. If the Company determines that recoveries are so jeopardized,
it
shall notify the Purchaser and the Mortgagor, if required, and obtain from
another Qualified Insurer a replacement insurance policy. The Company shall
not
take any action which would result in noncoverage under any applicable PMI
Policy or LPMI Policy of any loss which, but for the actions of the Company
would have been covered thereunder. In connection with any assumption or
substitution agreement entered into or to be entered into pursuant to Section
6.01, the Company shall promptly notify the insurer under the related PMI
Policy
or LPMI Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such PMI Policy or LPMI Policy and shall take
all
actions which may be required by such insurer as a condition to the continuation
of coverage under such PMI Policy or LPMI Policy. If such PMI Policy is
terminated as a result of such assumption or substitution of liability, the
Company shall obtain a replacement PMI Policy or LPMI Policy as provided
above.
In
connection with its activities as servicer, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy in a timely fashion in accordance with the terms of such PMI Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any PMI Policy respecting a defaulted Mortgage Loan. Pursuant
to
Section 4.04, any amounts collected by the Company under any PMI Policy shall
be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05.
Section
4.16 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 Purchaser, or in the event the Purchaser 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 Company 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 Purchaser shall acknowledge in
writing
that such title is being held as nominee for the Purchaser.
The
Purchaser shall have the option to manage and operate the REO Property provided
the Purchaser gives written notice of its intention to do so within thirty
(30)
days after such REO Property is acquired in foreclosure or by deed in lieu
of
foreclosure. The election by the Purchaser to manage the REO Property shall
not
constitute a termination of any rights of the Company pursuant to Section
11.02.
Upon the Company's receipt of such written notice, it shall be relived of
any
obligation to manage, conserve, protect, operate, dispose or sell the Mortgaged
Property for the Purchaser, or its designee. All such duties will become
the
obligation of the Purchaser, or its designee. In such connection, upon the
Mortgaged Property being acquired on behalf of the Purchaser, or its designee,
the Company shall fully cooperate with Purchaser to transfer management of
the
REO Property to Purchaser, or its designee, and shall immediately submit
a
statement of expenses to the Purchaser for reimbursement within 30 days for
all
Monthly Advances and Servicing Advances. If Company does not receive
reimbursement of such expenses from the Purchaser within the 30-days of the
statement of expenses, Company shall be permitted to withdraw such amount
from
the Custodial Account pursuant to Section 4.05.
In
the
event the Purchaser does not elect to manage an REO Property, the Company
shall
manage, conserve and protect the related REO Property for the Purchaser.
The
Company, either itself or through an agent selected by the Company, shall
manage
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
Company 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 Company deems to be in the best interest of the
Purchaser.
The
Company shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within one year after
title has been taken to such REO Property, unless (i) a REMIC election has
not
been made with respect to the arrangement under which the Mortgage Loans
and the
REO Property are held, and (ii) the Company determines, and gives an appropriate
notice to the Purchaser to such effect, that a longer period is necessary
for
the orderly liquidation of such REO Property. If a period longer than one
year
is permitted under the foregoing sentence and is necessary to sell any REO
Property, (i) the Company shall report monthly to the Purchaser as to the
progress being made in selling such REO Property and (ii) if, with the written
consent of the Purchaser, a purchase money mortgage is taken in connection
with
such sale, such purchase money mortgage shall name the Company as mortgagee,
and
such purchase money mortgage shall not be held pursuant to this Agreement,
but
instead a separate participation agreement among the Company and Purchaser
shall
be entered into with respect to such purchase money mortgage.
The
Company 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, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required
above.
The
disposition of REO Property shall be carried out by the Company at such price,
and upon such terms and conditions, as the Company deems to be in the best
interests of the Purchaser. The proceeds of sale of the REO Property shall
be
promptly deposited in the Custodial Account. As soon as practical thereafter
the
expenses of such sale shall be paid and the Company shall reimburse itself
for
any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to Section 5.03. On the Remittance Date
immediately following the Principal Prepayment Period in which such sale
proceeds are received the net cash proceeds of such sale remaining in the
Custodial Account shall be distributed to the Purchaser.
The
Company shall withdraw the Custodial Account funds necessary for the proper
operation management and maintenance of the REO Property, including the cost
of
maintaining any hazard insurance pursuant to Section 4.10 and the fees of
any
managing agent of the Company, or the Company itself. The Company shall make
monthly distributions on each Remittance Date to the Purchaser of the net
cash
flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in the Section 4.16 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
Section
4.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 5.02, the Company shall
furnish
to the Purchaser on or before the Remittance Date each month a statement
with
respect to any REO Property covering the operation of such REO Property for
the
previous month and the Company's efforts in connection with the sale of such
REO
Property and any rental of such REO Property incidental to the sale thereof
for
the previous month. That statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
Section
4.18 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed in lieu of foreclosure, the Company shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged
Property.
Section
4.19 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Company
shall
report such foreclosure or abandonment as required pursuant to Section 6050J
of
the Code. The Company shall file information reports with respect to the
receipt
of mortgage interest received in a trade or business and information returns
relating to cancellation of indebtedness income with respect to any Mortgaged
Property as required by the Code. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by the Code.
Section
4.20 Application
of Buydown Funds.
With
respect to each Buydown Mortgage Loan, the Company shall have deposited into
the
Escrow Account, no later than the last day of the month, Buydown Funds in
an
amount equal to the aggregate undiscounted amount of payments that, when
added
to the amount the Mortgagor on such Mortgage Loan is obligated to pay on
all Due
Dates in accordance with the terms of the Buydown Agreement, is equal to
the
full scheduled Monthly Payments which are required to be paid by the Mortgagor
under the terms of the related Mortgage Note (without regard to the related
Buydown Agreement as if the Mortgage Loan were not subject to the terms of
the
Buydown Agreement). With respect to each Buydown Mortgage Loan, the Company
will
distribute to the Purchaser on each Remittance Date an amount of Buydown
Funds
equal to the amount that, when added to the amount required to be paid on
such
date by the related Mortgagor, pursuant to and in accordance with the related
Buydown Agreement, equals the full Monthly Payment that would otherwise be
required to be paid on such Mortgage Loan by the related Mortgagor under
the
terms of the related Mortgage Note (as if the Mortgage Loan were not a Buydown
Mortgage Loan and without regard to the related Buydown Agreement).
If
the
Mortgagor on a Buydown Mortgage Loan defaults on such Mortgage Loan during
the
Buydown Period and the Mortgaged Property securing such Buydown Mortgage
Loan is
sold in the liquidation thereof (either by the Company or the insurer under
any
related Primary Insurance Policy) the Company shall, on the Remittance Date
following the date upon which Liquidation Proceeds or REO Disposition proceeds
are received with respect to any such Buydown Mortgage Loan, distribute to
the
Purchaser all remaining Buydown Funds for such Mortgage Loan then remaining
in
the Escrow Account. Pursuant to the terms of each Buydown Agreement, any
amounts
distributed to the Purchaser in accordance with the preceding sentence will
be
applied to reduce the outstanding principal balance of the related Buydown
Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays such Mortgage
Loan in its entirety during the related Buydown Period, the Company shall
be
required to withdraw from the Escrow Account any Buydown Funds remaining
in the
Escrow Account with respect to such Buydown Mortgage Loan in accordance with
the
related Buydown Agreement. If a principal prepayment by a Mortgagor on a
Buydown
Mortgage Loan during the related Buydown Period, together with any Buydown
Funds
then remaining in the Escrow Account related to such Buydown Mortgage Loan,
would result in a principal prepayment of the entire unpaid principal balance
of
the Buydown Mortgage Loan, the Company shall distribute to the Purchaser
on the
Remittance Date occurring in the month immediately succeeding the month in
which
such Principal Prepayment is received, all Buydown Funds related to such
Mortgage Loan so remaining in the Escrow Account, together with any amounts
required to be deposited into the Custodial Account.
Section
4.21 Notification
of Adjustments.
With
respect to each adjustable rate Mortgage Loan, the Company shall adjust the
Mortgage Interest Rate on the related Interest Rate Adjustment Date in
compliance with the requirements of applicable law and the related Mortgage
and
Mortgage Note. The Company shall execute and deliver any and all necessary
notices required under applicable law and the terms of the related Mortgage
Note
and Mortgage regarding the Mortgage Interest Rate adjustments. Upon the
discovery by the Company or the receipt of notice from the Purchaser that
the
Company has failed to adjust a Mortgage Interest Rate in accordance with
the
terms of the related Mortgage Note, the Company shall immediately deposit
in the
Custodial Account from its own funds the amount of any interest loss or deferral
caused the Purchaser thereby.
Section
4.22 Confidentiality/Protection
of Customer Information.
The
Company shall keep confidential and shall not divulge to any party, without
the
Purchaser's prior written consent, the price paid by the Purchaser for the
Mortgage Loans, except to the extent that it is reasonable and necessary
for the
Company to do so in working with legal counsel, auditors, taxing authorities
or
other governmental agencies. Each party agrees that it shall comply with
all
applicable laws and regulations regarding the privacy or security of Customer
Information and shall maintain appropriate administrative, technical and
physical safeguards to protect the security, confidentiality and integrity
of
Customer Information, including maintaining security measures designed to
meet
the Interagency Guidelines Establishing Standards for Safeguarding Customer
Information, 66 Fed. Reg. 8616 (the “Interagency Guidelines”), if applicable.
For purposes of this Section 4.22, the term “Customer Information” shall have
the meaning assigned to it in the Interagency Guidelines.
Section
4.23 Fair
Credit Reporting Act
The
Company, in its capacity as servicer for each Mortgage Loan, agrees to fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly
basis.
Section
4.24 Establishment
of and Deposits to Subsidy Account.
The
Company shall segregate and hold all Subsidy Funds collected and received
pursuant to the Subsidy Loans separate and apart from any of its own funds
and
general assets and shall establish and maintain one or more Subsidy Accounts,
in
the form of time deposit or demand accounts, titled “▇▇▇▇▇ Fargo Bank, N.A., in
trust for the Purchaser, its successors or assigns, and/or subsequent purchasers
of residential Mortgage Loans, and various Mortgagors.” The Subsidy Account
shall be an eligible deposit account established with an eligible
institution.
The
Company shall, from time to time, withdraw funds from the Subsidy Account
for
the following purposes:
|
(i)
|
to
deposit in the Custodial Account in the amounts and in the manner
provided
for in Section 4.04(xi);
|
|
(ii)
|
to
transfer funds to another eligible institution in accordance with
Section
4.09 hereof;
|
| (iii) |
to
withdraw funds deposited in error;
and
|
|
(iv)
|
to
clear and terminate the Subsidy Account upon the termination of
this
Agreement.
|
Notwithstanding
anything to the contrary elsewhere in this Agreement, the Company may employ
the
Escrow Account as the Subsidy Account to the extent that the Company can
separately identify any Subsidy Funds deposited therein.
Section
4.25 Use
of
Subservicers and Subcontractors.
The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions
of
paragraph (a) of this Section 4.25. The Company shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Company under this Agreement or any Reconstitution
Agreement unless the Company complies with the provisions of paragraph (b)
of
this Section 4.25.
(a) It
shall
not be necessary for the Company to seek the consent of the Purchaser or
any
Depositor to the utilization of any Subservicer. The Company shall cause
any
Subservicer used by the Company (or by any Subservicer) for the benefit of
the
Purchaser and any Depositor to comply with the provisions of this Section
4.25
and with Sections 6.04, 6.06, 9.01(e)(iii), 9.01(e)(v) and 9.01(f) of this
Agreement to the same extent as if such Subservicer were the Company, and
to
provide the information required with respect to such Subservicer under Section
9.01(e)(iv) of this Agreement. The Company shall be responsible for obtaining
from each Subservicer and delivering to the Purchaser and any Depositor any
servicer compliance statement required to be delivered by such Subservicer
under
Section 6.04 and any assessment of compliance and attestation required to
be
delivered by such Subservicer under Section 6.06 and any certification required
to be delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 6.06 as and when required to be
delivered.
(b) It
shall
not be necessary for the Company to seek the consent of the Purchaser or
any
Depositor to the utilization of any Subcontractor. The Company shall promptly
upon request provide to the Purchaser and any Depositor (or any designee
of the
Depositor, such as a master servicer or administrator) a written description
(in
form and substance satisfactory to the Purchaser and such Depositor) of the
role
and function of each Subcontractor utilized by the Company or any Subservicer,
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
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.06 and 9.01(f) of this
Agreement to the same extent as if such Subcontractor were the Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance
and
attestation required to be delivered by such Subcontractor under Section
6.06,
in each case as and when required to be delivered.
ARTICLE
V
PAYMENTS
TO PURCHASER
Section
5.01 Remittances.
On
each
Remittance Date the Company shall remit by wire transfer of immediately
available funds to the Purchaser (a) all amounts deposited in the Custodial
Account as of the close of business on the Determination Date (net of charges
against or withdrawals from the Custodial Account pursuant to Section 4.05),
plus (b) all amounts, if any, which the Company is obligated to distribute
pursuant to Section 5.03, minus (c) any amounts attributable to Principal
Prepayments received after the applicable Principal Prepayment Period which
amounts shall be remitted on the following Remittance Date, together with
any
additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.04(viii);
minus (d) any amounts attributable to Monthly Payments collected but due
on a
Due Date or Dates subsequent to the first day of the month of the Remittance
Date, and minus (e) any amounts attributable to Buydown Funds being held
in the
Custodial Account, which amounts shall be remitted on the Remittance Date
next
succeeding the Due Period for such amounts.
With
respect to any remittance received by the Purchaser after the Business Day
on
which such payment was due, the Company shall pay to the Purchaser interest
on
any such late payment at an annual rate equal to the Prime Rate, adjusted
as of
the date of each change, plus three percentage points, but in no event greater
than the maximum amount permitted by applicable law. Such interest shall
cover
the period commencing with the day following the Business Day such payment
was
due and ending with the Business Day on which such payment is made to the
Purchaser, both inclusive. Such interest shall be remitted by wire transfer
of
immediately available funds within one Business Day following agreement by
the
Purchaser and the Company of the penalty amount. The payment by the Company
of
any such interest shall not be deemed an extension of time for payment or
a
waiver of any Event of Default by the Company.
Section
5.02 Statements
to Purchaser.
Not
later
than the Remittance Date, the Company shall furnish to the Purchaser a monthly
remittance advice in the standard form of electronic Alltel® file, as to the
period ending on the last day of the preceding month. If requested by the
Purchaser prior to the related Closing Date, the first monthly remittance
advice
due to the Purchaser following such Closing Date shall be furnished by the
12th
calendar
day, or if such day is not a Business Day, then the preceding Business
Day.
Section
5.03 Monthly
Advances by Company.
On
the
Business Day immediately preceding each Remittance Date, the Company shall
deposit in the Custodial Account from its own funds or from amounts held
for
future distribution an amount equal to all Monthly Payments (with interest
adjusted to the Mortgage Loan Remittance Rate) which were due on the Mortgage
Loans during the applicable Due Period and which were delinquent at the close
of
business on the immediately preceding Determination Date or which were deferred
pursuant to Section 4.01. Any amounts held for future distribution and so
used
shall be replaced by the Company by deposit in the Custodial Account on or
before any future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than payments to the Purchaser required to
be made
on such Remittance Date. The Company's obligation to make such Monthly Advances
as to any Mortgage Loan will continue through the last Monthly Payment due
prior
to the payment in full of the Mortgage Loan, or through the last Remittance
Date
prior to the Remittance Date for the distribution of all Liquidation Proceeds
and other payments or recoveries (including REO Disposition Proceeds, Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan; provided,
however, that such obligation shall cease if the Company determines, in its
sole
reasonable opinion, that advances with respect to such Mortgage Loan are
non-recoverable by the Company from Liquidation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, Condemnation Proceeds, or otherwise with respect
to a
particular Mortgage Loan. In the event that the Company determines that any
such
advances are non-recoverable, the Company shall provide the Purchaser with
a
certificate signed by two officers of the Company evidencing such
determination.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Transfers
of Mortgaged Property.
The
Company 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 Company shall, to the extent
it
has knowledge of such conveyance, immediately notify the Purchaser and exercise
its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto, provided, however, that the Company
shall not exercise such rights if prohibited by law from doing so or if the
exercise of such rights would impair or threaten to impair any recovery under
the related PMI Policy, if any.
If
the
Company reasonably believes it is unable under applicable law to enforce
such
"due-on-sale" clause, the Company 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 Company
is
unable under applicable law to require that the original Mortgagor remain
liable
under the Mortgage Note and the Company has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is
released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan,
the outstanding principal amount of the Mortgage Loan nor any other materials
terms shall be changed without Purchaser’s consent.
To
the
extent that any Mortgage Loan is assumable, the Company shall inquire diligently
into the credit worthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee
which
are used 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 Company diligently shall, to the extent permitted
by
the Mortgage or the Mortgage Note and by applicable law, accelerate the maturity
of the Mortgage Loan.
Section
6.02 Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Company of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Company shall notify the Purchaser in the Monthly Remittance
Advice as provided in Section 5.02, and may request the release of any Mortgage
Loan Documents.
If
the
Company satisfies or releases a Mortgage without first having obtained payment
in full of the indebtedness secured by the Mortgage or should the Company
otherwise prejudice any rights the Purchaser may have under the mortgage
instruments, upon written demand of the Purchaser, the Company shall repurchase
the related Mortgage Loan at the Repurchase Price by deposit thereof in the
Custodial Account within 2 Business Days of receipt of such demand by the
Purchaser. The Company shall maintain the Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 4.12 insuring the Company against
any loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Company shall be entitled to
withdraw from the Custodial Account or to retain from interest payments on
the
Mortgage Loans the amount of its Servicing Fee. The Servicing Fee shall be
payable monthly and shall be computed on the basis of the outstanding principal
balance and for the period respecting which any related interest payment
on a
Mortgage Loan is computed. The obligation of the Purchaser to pay the Servicing
Fee is limited to, and payable solely from, the interest portion of such
Monthly
Payments.
Additional
servicing compensation in the form of assumption fees, to the extent provided
in
Section 6.01, and late payment charges shall be retained by the Company to
the
extent not required to be deposited in the Custodial Account. The Company
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.
Section
6.04 Annual
Statements as to Compliance.
(i) The
Company shall deliver to the Purchaser, on or before February 28, 2006, an
Officer's Certificate, stating that (x) a review of the activities of the
Company during the preceding calendar year and of performance under this
Agreement or similar agreements has been made under such officer's supervision,
and (y) to the best of such officer's knowledge, based on such review, the
Company has fulfilled all its obligations under this Agreement throughout
such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and the action being taken by the Company to cure such
default.
(ii) On
or
before March 1 of each calendar year, commencing in 2007, the Company shall
deliver to the Purchaser and any Depositor a statement of compliance addressed
to the Purchaser and such Depositor and signed by an authorized officer of
the
Company, to the effect that (a) a review of the Company’s activities during the
immediately preceding calendar year (or applicable portion thereof) and of
its
performance under this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer’s supervision, and (b) to
the best of such officers’ knowledge, based on such review, the Company has
fulfilled all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such calendar
year
(or applicable portion thereof) or, if there has been a failure to fulfill
any
such obligation in any material respect, specifically identifying each such
failure known to such officer and the nature and the status
thereof.
Section
6.05 Annual
Independent Public Accountants' Servicing Report.
Except
with respect to Securitization Transactions occurring on or after January
1,
2006, on or before February 28, 2006, the Company, at its expense, shall
cause a
firm of independent public accountants which is a member of the American
Institute of Certified Public Accountants to furnish a statement to each
Purchaser to the effect that such firm has examined certain documents and
records relating to the servicing of the mortgage loans similar in nature
and
that such firm is of the opinion that the provisions of this or similar
agreements have been complied with, and that, on the basis of such examination
conducted substantially in compliance with the Single Attestation Program
for
Mortgage Bankers, nothing has come to their attention which would indicate
that
such servicing has not been conducted in compliance therewith, except for
(i)
such exceptions as such firm shall believe to be immaterial, and (ii) such
other
exceptions as shall be set forth in such statement. By providing Purchaser
a
copy of a Uniform Single Attestation Program Report from their independent
public accountant's on an annual basis, Company shall be considered to have
fulfilled its obligations under this Section 6.05.
Section
6.06 Report
on Assessment of Compliance and Attestation.
With
respect to any Mortgage Loans that are the subject of a Securitization
Transaction occurring on or before March 1 of each calendar year, commencing
in
2007, the Company shall:
| (i) |
deliver
to the Purchaser and any Depositor a report (in form and substance
reasonably satisfactory to the Purchaser and such Depositor) regarding
the
Company’s assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18
and
15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report
shall be addressed to the Purchaser and such Depositor and signed
by an
authorized officer of the Company and shall address each of the
Servicing
Criteria specified on a certification substantially in the form
of Exhibit
D hereto;
|
| (ii) |
deliver
to the Purchaser and any Depositor a report of a registered public
accounting firm reasonably acceptable to the Purchaser and such
Depositor
that attests to, and reports on, the assessment of compliance made
by the
Company and delivered pursuant to the preceding paragraph. 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;
|
| (iii) |
cause
each Subservicer and each Subcontractor, determined by the Company
pursuant to Section 425(b) to be “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, to deliver to
the
Purchaser and such Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (a) and (b) of this
Section
6.06; and
|
| (iv) |
deliver
to the Purchaser, any Depositor and any other Person that will
be
responsible for signing the certification (a “Sarbanes Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant
to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) on behalf of
an
asset-backed issuer with respect to a Securitization Transaction
a
certification in the form attached hereto as Exhibit
E.
|
The
Company acknowledges that the parties identified in clause (iv) above may
rely
on the certification provided by the Company pursuant to such clause in signing
a Sarbanes Certification and filing such with the Commission.
Section
6.07 Remedies.
(i) Any
failure by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under Article 9, Section 6.04,
Section 6.05 or Section 6.06, or any breach by the Company of a representation
or warranty set forth in Section 9.01(e)(iv)(A), or in a writing furnished
pursuant to Section 9.01(e)(iv)(B) and made as of a date prior to the closing
date of the related Securitization Transaction, to the extent that such breach
is not cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(e)(iv)(B) to the extent made as of a date subsequent to such closing
date,
shall, except as provided in sub-clause (ii) of this Section, immediately
and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Company under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations
of
the Company as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of
any
compensation to the Company; provided that to the extent than any provision
of
this Agreement and/or any applicable Reconstitution Agreement expressly provides
for the survival of certain rights or obligations following termination of
the
Company as servicer, such provision shall be given effect.
(ii) Any
failure by the Company, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 6.04, Section 6.05 or Section 6.06, including any failure by
the
Company to identify any Subcontract “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, which continues unremedied
for
ten (10) calendar days after the date on which such information, report,
certification or accountants’ letter was required to be delivered shall
constitute an Event of Default with respect to the Company under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser
or
Depositor, as applicable, in its sole discretion to terminate the rights
and
obligations of the Company under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Company; provided that
to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
(iii) The
Company shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor, as applicable, for
all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of the
Company as servicer and the transfer of servicing of the Mortgage Loans to
a
successor servicer. The provisions of this paragraph shall not limit whatever
rights the Purchaser or any Depositor may have under other provisions of
this
Agreement and/or any applicable Reconstitution Agreement or otherwise, whether
in equity or at law, such as an action for damages, specific performance
or
injunctive relief.
Section
6.08 Right
to Examine Company Records.
The
Purchaser, or its designee, shall have the right to examine and audit any
and
all of the books, records, or other information of the Company, whether held
by
the Company or by another on its behalf, with respect to or concerning this
Agreement or the Mortgage Loans, during business hours or at such other times
as
may be reasonable under applicable circumstances, upon reasonable advance
notice. The Purchaser shall pay its own expenses associated with such
examination.
Section
6.09 Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which
the
Mortgage Loans and REO Property are held, the Company shall not take any
action,
cause the REMIC to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken, as
the case may be, could (i) endanger the status of the REMIC as a REMIC or
(ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on “prohibited transactions” as defined Section 860(a)(2) of the Code
and the tax on “contributions” to a REMIC set forth in Section 860(d) of the
Code) unless the Company has received an Opinion of Counsel (at the expense
of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition of
any
such tax.
ARTICLE
VII
COMPANY
TO COOPERATE
Section
7.01 Provision
of Information.
During
the term of this Agreement, the Company shall furnish to the Purchaser such
periodic, special, or other reports or information, and copies or originals
of
any documents contained in the Servicing File for each Mortgage Loan provided
for herein. All other special reports or information not provided for herein
as
shall be necessary, reasonable, or appropriate with respect to the Purchaser
or
any regulatory agency will be provided at the Purchaser’s expense. All such
reports, documents or information shall be provided by and in accordance
with
all reasonable instructions and directions which the Purchaser may
give.
The
Company shall execute and deliver all such instruments and take all such
action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this
Agreement.
Section
7.02 Financial
Statements; Servicing Facility.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective Purchaser a Consolidated Statement of Operations of the
Company
for the most recently completed two (2) fiscal years for which such a statement
is available, as well as a Consolidated Statement of Condition at the end
of the
last two fiscal years covered by such Consolidated Statement of Operations.
The
Company also shall make available any comparable interim statements to the
extent any such statements have been prepared by or on behalf of the Company
(and are available upon request to members or stockholders of the Company
or to
the public at large).
The
Company also shall make available to Purchaser or prospective Purchaser a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Company or the financial
statements of the Company, and to permit any prospective purchaser to inspect
the Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE
VIII
THE
COMPANY
Section
8.01 Indemnification;
Third Party Claims.
The
Company shall indemnify the Purchaser and hold it harmless against any and
all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the failure of the Company
to perform its duties and service the Mortgage Loans in strict compliance
with
the terms of this Agreement. The Company immediately shall notify the Purchaser
if a claim is made by a third party with respect to this Agreement or the
Mortgage Loans, assume (with the prior written consent of the Purchaser)
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 the Purchaser in respect of such
claim. The Company shall follow any written instructions received from the
Purchaser in connection with such claim. The Purchaser promptly shall reimburse
the Company for all amounts advanced by it pursuant to the preceding sentence
except when the claim is in any way related to the Company's indemnification
pursuant to Section 3.03, or the failure of the Company to service and
administer the Mortgage Loans in strict compliance with the terms of this
Agreement.
Section
8.02 Merger
or Consolidation of the Company.
The
Company shall keep in full effect its existence, rights and franchises and
shall
obtain and preserve its qualification to do business in each jurisdiction
in
which such qualification is or shall be necessary to protect the validity
and
enforceability of this Agreement or any of the Mortgage Loans and to perform
its
duties under this Agreement.
Any
Person into which the Company may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Company
shall be a party, or any Person succeeding to the business of the Company,
shall
be the successor of the Company hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided, however, that the successor
or
surviving Person shall be an institution which is a ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇
Mac-approved company in good standing and has a net worth of no less than
$25
million. Furthermore, in the event the Company transfers or otherwise disposes
of all or substantially all of its assets to an affiliate of the Company,
such
affiliate shall satisfy the condition above, and shall also be fully liable
to
the Purchaser for all of the Company's obligations and liabilities
hereunder.
Section
8.03 Limitation
on Liability of Company and Others.
Neither
the Company nor any of the directors, officers, employees or agents of the
Company shall be under any liability to the Purchaser 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 Company or any such Person against any breach of
warranties or representations made herein, or failure to perform its obligations
in strict compliance with any standard of care set forth in this Agreement
or
any other liability which would otherwise be imposed under this Agreement.
The
Company and any director, officer, employee or agent of the Company 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 Company
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage Loans
in
accordance with this Agreement and which in its opinion may involve it in
any
expense or liability, provided, however, that the Company may, with the consent
of the Purchaser, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the Company shall be entitled to reimbursement from
the
Purchaser of the reasonable legal expenses and costs of such
action.
Section
8.04 Limitation
on Resignation and Assignment by Company.
The
Purchaser has entered into this Agreement with the Company and subsequent
Purchaser will purchase the Mortgage Loans in reliance upon the independent
status of the Company, and the representations as to the adequacy of its
servicing facilities, plant, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Company shall neither assign this Agreement or the servicing rights hereunder
or
delegate its rights or duties hereunder (other than pursuant to Section 4.01)
or
any portion hereof or sell or otherwise dispose of all of its property or
assets
without the prior written consent of the Purchaser, which consent shall not
be
unreasonably withheld.
The
Company shall not resign from the obligations and duties hereby imposed on
it
except by mutual consent of the Company and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced
by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company's responsibilities and obligations hereunder in the manner provided
in
Section 12.01.
Without
in any way limiting the generality of this Section 8.04, in the event that
the
Company either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder (other than pursuant to Section
4.01)
or any portion thereof or sell or otherwise dispose of all or substantially
all
of its property or assets, without the prior written consent of the Purchaser,
then the Purchaser shall have the right to terminate this Agreement upon
notice
given as set forth in Section 10.01, without any payment of any penalty or
damages and without any liability whatsoever to the Company or any third
party.
ARTICLE
IX
SECURITIZATION
TRANSACTIONS; WHOLE LOAN TRANSFERS AND AGENCY TRANSFERS
Section
9.01 Securitization
Transactions; Whole Loan Transfers and Agency Transfers
The
Purchaser and the Company agree that with respect to some or all of the Mortgage
Loans, the Purchaser, at its sole option, may effect Whole Loan Transfers,
Agency Transfer or Securitization Transactions, retaining the Company as
the
servicer thereof or subservicer if a master servicer is employed, or as
applicable the "seller/servicer." On the Reconstitution Date, the Mortgage
Loans
transferred may cease to be covered by this Agreement; provided, however,
that,
in the event that any Mortgage Loan transferred pursuant to this Section
9.01 is
rejected by the transferee, the Company shall continue to service such rejected
Mortgage Loan on behalf of the Purchaser in accordance with the terms and
provisions of this Agreement.
The
Company shall cooperate with the Purchaser in connection with each Whole
Loan
Transfer, Agency Transfer or Securitization Transaction in accordance with
this
Section 9.01. In connection therewith:
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(a)
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the
Company shall make all representations and warranties with respect
to the
Mortgage Loans as of the related Closing Date and with respect
to the
Company itself as of the closing date of each Whole Loan Transfer,
Agency
Transfer or Securitization
Transaction;
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(b)
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the
Company shall negotiate in good faith and execute any seller/servicer
agreements required to effectuate the foregoing provided such agreements
create no greater obligation or cost on the part of the Company
than
otherwise set forth in this
Agreement;
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(c)
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the
Company shall provide as
applicable:
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(i)
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any
and all information and appropriate verification of information
which may
be reasonably available to the Company, whether through letters
of its
auditors and counsel or otherwise, as the Purchaser shall
request;
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| (ii) |
such
additional representations, warranties, covenants, opinions of
counsel,
letters from auditors, and certificates of public officials or
officers of
the Company as are reasonably believed necessary by the trustee,
any
Rating Agency or the Purchaser, as the case may be, in connection
with
such Whole Loan Transfers, Agency Transfers or Securitization
Transactions. The Purchaser shall pay all third party costs associated
with the preparation of such information. The Company shall execute
any
seller/servicer agreements required within a reasonable period
of time
after receipt of such seller/servicer agreements which time shall
be
sufficient for the Seller and Seller's counsel to review such
seller/servicer agreements. Under this Agreement, the Company shall
retain
a Servicing Fee for each Mortgage Loan, at no less than the applicable
Servicing Fee Rate; and
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| (iii) |
at
any time as required by any Rating Agency, such additional documents
from
the related Retained Mortgage File to the Custodian as may be required
by
such Rating Agency;
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| (d) |
the
Company shall with respect to any Mortgage Loans that are subject
to a
Securitization Transaction occurring
on or before December 31, 2005,in
which the filing of a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification directly with
the
Commission is required, by February 28, 2006, or in connection
with any
additional ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification required to be filed upon
thirty
(30) days written request, an officer of the Company shall execute
and
deliver an Officer’s Certification substantially in the form attached
hereto as Exhibit F, to the entity filing the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
directly with the Commission (such as the Purchaser, any master
servicer,
any trustee
or
any depositor) for the benefit of such entity and such entity’s affiliates
and the officers, directors and agents of such entity and such
entity’s
affiliates, and shall indemnify such entity or persons arising
out of any
breach of Company’s obligations
or
representations
relating thereto as provided in such Officer’s Certification.
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(e)
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the
Company shall, in connection with any Securitization Transaction
occurring
on or after January 1, 2006, the Company shall (1) within five
(5)
Business Days following request by the Purchaser or any Depositor,
provide
to the Purchaser and such Depositor (or, as applicable, cause each
Third-Party Originator and each Subservicer to provide), in writing
and in
form and substance reasonably satisfactory to the Purchaser and
such
Depositor, the information and materials specified in paragraphs
(i),
(ii), (iii) and (vii) of this subsection (e), and (2) as promptly
as
practicable following notice to or discovery by the Company, provide
to
the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (iv) of this subsection
(e).
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(i)
|
if
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding (1) the Company, as originator of the
Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (2) each Third-Party Originator, and (3) as
applicable,
each Subservicer, as is requested for the purpose of compliance
with Items
1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such information
shall include, at a minimum:
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|
(A)
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the
originator’s form of organization;
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(B)
|
a
description of the originator’s origination program and how long the
originator has been engaged in originating residential mortgage
loans,
which description shall include a discussion of the originator’s
experience in originating mortgage loans of a similar type as the
Mortgage
Loans; information regarding the size and composition of the originator’s
origination portfolio; and information that may be material, in
the good
faith judgment of the Purchaser, to an analysis of the performance
of the
Mortgage Loans, including the originators’ credit-granting or underwriting
criteria for mortgage loans of similar type(s) as the Mortgage
Loans and
such other information as the Purchaser or any Depositor may reasonably
request for the purpose of compliance with Item 1110(b)(2) of Regulation
AB;
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(C)
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a
description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Company, each Third-Party
Originator
and each Subservicer; and
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(D)
|
a
description of any affiliation or relationship between the Company,
each
Third-Party Originator, each Subservicer and any of the following
parties
to a Securitization Transaction, as such parties are identified
to the
Company by the Purchaser or any Depositor in writing in advance
of a
Securitization Transaction:
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(1)
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the
sponsor;
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(2)
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the
depositor;
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(3)
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the
issuing entity;
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(4)
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any
servicer;
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(5)
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any
trustee;
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(6)
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any
originator;
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(7)
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any
significant obligor;
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(8)
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any
enhancement or support provider; and
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(9)
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any
other material transaction
party.
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(ii)
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If
so requested by the Purchaser or any Depositor, the Company shall
provide
(or, as applicable, cause each Third-Party Originator to provide)
Static
Pool Information with respect to the mortgage loans (of a similar
type as
the Mortgage Loans, as reasonably identified by the Purchaser as
provided
below) originated by (1) the Company, if the Company is an originator
of
Mortgage Loans (including as an acquirer of Mortgage Loans from
a
Qualified Correspondent), and/or (2) each Third-Party Originator.
Such
Static Pool Information shall be prepared by the Company (or Third-Party
Originator) on the basis of its reasonable, good faith interpretation
of
the requirements of Item 1105(a)(1)-(3) of Regulation AB. To the
extent
that there is reasonably available to the Company (or Third-Party
Originator) Static Pool Information with respect to more than one
mortgage
loan type, the Purchaser or any Depositor shall be entitled to
specify
whether some or all of such information shall be provided pursuant
to this
paragraph. The content of such Static Pool Information may be in
the form
customarily provided by the Company, and need not be customized
for the
Purchaser or any Depositor. Such Static Pool Information for each
vintage
origination year or prior securitized pool, as applicable, shall
be
presented in increments no less frequently than quarterly over
the life of
the mortgage loans included in the vintage origination year or
prior
securitized pool. The most recent periodic increment must be as
of a date
no later than 135 days prior to the date of the prospectus or other
offering document in which the Static Pool Information is to be
included
or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record
of the
information provided, such as a portable document format (pdf)
file, or
other such electronic format reasonably required by the Purchaser
or the
Depositor, as applicable.
|
If
so
requested by the Purchaser or any Depositor, the Company shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense
of the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such statements and agreed-upon
procedures letters of certified public accountants reasonably acceptable
to the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to
the
Company’s or Third-Party Originator’s originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to and
be for
the benefit of such parties as the Purchaser or such Depositor shall designate,
which may include, by way of example, any sponsor, any Depositor and any
broker
dealer acting as underwriter, placement agent or initial purchaser with respect
to a Securitization Transaction. Any such statement or letter may take the
form
of a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
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(iii)
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If
so requested by the Purchaser or any Depositor, the Company shall
provide
such information regarding the Company, as servicer of the Mortgage
Loans,
and each Subservicer (each of the Company and each Subservicer,
for
purposes of this paragraph, a “Servicer”), as is requested for the purpose
of compliance with Items 1108 of Regulation AB. Such information
shall
include, at a minimum:
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(A)
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the
Servicer’s form of organization;
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(B)
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a
description of how long the Servicer has been servicing residential
mortgage loans; a general discussion of the Servicer’s experience in
servicing assets of any type as well as a more detailed discussion
of the
Servicer’s experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution Agreements;
information regarding the size, composition and growth of the Servicer’s
portfolio of residential mortgage loans of a type similar to the
Mortgage
Loans and information on factors related to the Servicer that may
be
material, in the good faith judgment of the Purchaser or any Depositor,
to
any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without limitation:
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(1)
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whether
any prior securitizations of mortgage loans of a type similar to
the
Mortgage Loans involving the Servicer have defaulted or experienced
an
early amortization or other performance triggering event because
of
servicing during the three-year period immediately preceding the
related
Securitization Transaction;
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(2)
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the
extent of outsourcing the Servicer
utilizes;
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(3)
|
whether
there has been previous disclosure of material noncompliance with
the
applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Servicer as a servicer
during the
three-year period immediately preceding the related Securitization
Transaction;
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(4)
|
whether
the Servicer has been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application
of a servicing performance test or trigger; and
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(5)
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such
other information as the Purchaser or any Depositor may reasonably
request
for the purpose of compliance with Item 1108(b)(2) of Regulation
AB;
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|
(C)
|
a
description of any material changes during the three-year period
immediately preceding the related Securitization Transaction to
the
Servicer’s policies or procedures with respect to the servicing function
it will perform under this Agreement and any Reconstitution Agreements
for
mortgage loans of a type similar to the Mortgage
Loans;
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(D)
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information
regarding the Servicer’s financial condition, to the extent that there is
a material risk that an adverse financial event or circumstance
involving
the Servicer could have a material adverse effect on the performance
by
the Company of its servicing obligations under this Agreement or
any
Reconstitution Agreement;
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|
(E)
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information
regarding advances made by the Servicer on the Mortgage Loans and
the
Servicer’s overall servicing portfolio of residential mortgage loans for
the three-year period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an authorized
officer
of the Servicer to the effect that the Servicer has made all advances
required to be made on residential mortgage loans serviced by it
during
such period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and
the reasons for such failure to
advance;
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(F)
|
a
description of the Servicer’s processes and procedures designed to address
any special or unique factors involved in servicing loans of a
similar
type as the Mortgage Loans;
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(G)
|
a
description of the Servicer’s processes for handling delinquencies,
losses, bankruptcies and recoveries, such as through liquidation
of
mortgaged properties, sale of defaulted mortgage loans or workouts;
and
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(H)
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information
as to how the Servicer defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging,
restructuring, partial payments considered current or other practices
with
respect to delinquency and loss
experience.
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|
(iv)
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If
so requested by the Purchaser or any Depositor for the purpose
of
satisfying its reporting obligation under the Exchange Act with
respect to
any class of asset-backed securities, the Company shall (or shall
cause
each Subservicer and Third-Party Originator to) (1) notify the
Purchaser
and any Depositor in writing of (A) any material litigation or
governmental proceedings pending against the Company, any Subservicer
or
any Third-Party Originator and (B) any affiliations or relationships
that
develop following the closing date of a Securitization Transaction
between
the Company, any Subservicer or any Third-Party Originator and
any of the
parties specified in Section 9.01(e)(i)(D) (and any other parties
identified in writing by the requesting party) with respect to
such
Securitization Transaction, and (2) provide to the Purchaser and
any
Depositor a description of such proceedings, affiliations or
relationships.
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|
(v)
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As
a condition to the succession to the Company or any Subservicer
as
servicer or Subservicer under this Agreement or any Reconstitution
Agreement by any Person (i) into which the Company or such Subservicer
may
be merged or consolidated, or (ii) which may be appointed as a
successor
to the Company or any Subservicer, the Company shall provide to
the
Purchaser and any Depositor, at least 15 calendar days prior to
the
effective date of such succession or appointment, (x) written notice
to
the Purchaser and any Depositor of such succession or appointment
and (y)
in writing and in form and substance reasonably satisfactory to
the
Purchaser and such Depositor, all information reasonably requested
by the
Purchaser or any Depositor in order to comply with is reporting
obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
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|
(vi)
|
(A)
|
The
Company shall represent to the Purchaser, as of the date on which
information is first provided to the Purchaser under this Section
9.01(e)
that, except as disclosed in writing to the Purchaser prior to
such date:
(1) the Company is not aware and has not received notice that any
default,
early amortization or other performance triggering event has occurred
as
to any other securitization due to any act or failure to act of
the
Company; (2) the Company has not been terminated as servicer in
a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or trigger;
(3)
no material noncompliance with the applicable servicing criteria
with
respect to other securitizations of residential mortgage loans
involving
the Company as servicer has been disclosed or reported by the Company;
(4)
no material changes to the Company’s policies or procedures with respect
to the servicing function it will perform under this Agreement
and any
Reconstitution Agreement for mortgage loans of a type similar to
the
Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (5) there are
no aspects
of the Company’s financial condition that could have a material adverse
effect on the performance by the Company of its servicing obligations
under this Agreement or any Reconstitution Agreement; (6) there
are no
material legal or governmental proceedings pending (or known to
be
contemplated) against the Company, any Subservicer or any Third-Party
Originator; and (7) there are no affiliations, relationships or
transactions relating to the Company, any Subservicer or any Third-Party
Originator with respect to any Securitization Transaction and any
party
thereto identified by the related Depositor of a type described
in Item
1119 of Regulation AB.
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|
(B)
|
If
so requested by the Purchaser on any date following the date on
which
information is first provided to the Purchaser under this Section
9.01(e),
the Company shall, within five (5) Business Days following such
request,
confirm in writing the accuracy of the representations and warranties
set
forth in sub clause (A) above or, if any such representation and
warranty
is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the
requesting
party.
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|
(vii)
|
In
addition to such information as the Company, as servicer, is obligated
to
provide pursuant to other provisions of this Agreement, if so requested
by
the Purchaser or any Depositor, the Company shall provide such
information
reasonably available to the Company regarding the performance of
the
Mortgage Loans as is reasonably required to facilitate preparation
of
distribution reports in accordance with Item 1121 of Regulation
AB.
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|
(f)
|
the
Company shall indemnify the Purchaser, each affiliate of the Purchaser,
and each of the following parties participating in a Securitization
Transaction; each sponsor and issuing entity; each Person responsible
for
the preparation, execution or filing of any report required to
be filed
with the Commission with respect to such Securitization Transaction,
or
for execution of a certification pursuant to Rule 13a-14(d) or
Rule
15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement
agent or
initial purchaser, each Person who controls any of such parties
or the
Depositor (within the meaning of Section 15 of the Securities Act
and
Section 20 of the Exchange Act); and the respective present and
former
directors, officers, employees and agents of each of the foregoing
and of
the Depositor, and shall hold each of them harmless from and against
any
losses, damages, penalties, fines, forfeitures, legal fees and
expenses
and related costs, judgments, and any other costs, fees and expenses
that
any of them may sustain arising out of or based
upon:
|
(i)
(A) any
untrue statement of a material fact contained or alleged to be contained
in any
information, report, certification, accountants’ letter or other material
provided under Sections 9.01(c) and (e) by or on behalf of the Company, or
provided under Sections 9.01(c) and (e) by or on behalf of any Subservicer,
Subcontractor or Third-Party Originator (collectively, the “Company
Information”), or (B) the omission or alleged omission to state in the Company
Information a material fact required to be stated in the Company Information
or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to the
Company Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Company
Information or any portion thereof is presented together with or separately
from
such other information;
| (ii) |
any
failure by the Company, any Subservicer, any Subcontractor or any
Third-Party Originator to deliver any information, report, certification,
accountants’ letter or other material when and as required under Sections
9.01(c) and (e), including any failure by the Company to identify
any
Subcontractor “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB; or
|
| (iii) |
any
breach by the Company of a representation or warranty set forth
in Section
9.01(e)(iv)(A) or in a writing furnished pursuant to Section
9.01(e)(iv)(B) and made as of a date prior to the closing date
of the
related Securitization Transaction, to the extent that such breach
is not
cured by such closing date, or any breach by the Company of a
representation or warranty in a writing furnished pursuant to Section
9.01(e)(iv)(B) to the extent made as of a date subsequent to such
closing
date.
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In
the
case of any failure of performance described in sub-clause (ii) of this Section
9.01(f), the Company shall promptly reimburse the Purchaser, any Depositor,
as
applicable, and each Person responsible for the preparation, execution or
filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant
to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Company, any Subservicer,
any
Subcontractor or any Third-Party Originator.
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(g)
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the
Purchaser and each Person who controls the Purchaser shall indemnify
the
Company, each affiliate of the Company, each Person who controls
any of
such parties or the Company (within the meaning of Section 15 of
the
Securities Act and Section 20 of the Exchange Act) and the respective
present and former directors, officers, employees and agents of
each of
the foregoing and of the Company, and shall hold each of them harmless
from and against any losses, damages, penalties, fines, forfeitures,
legal
fees and expenses and related costs, judgments, and any other costs,
fees
and expenses that any of them may sustain arising out of or based
upon:
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(i)
(A) any
untrue statement of a material fact contained or alleged to be contained
in any
offering materials related to a Securitization Transaction, including without
limitation the registration statement, prospectus, prospectus supplement,
any
private placement memorandum, any offering circular, any computational
materials, and any amendments or supplements to the foregoing (collectively,
the
“Securitization Materials”) or (B) the omission or alleged omission to state in
the Securitization Materials a material fact required to be stated in the
Securitization Materials or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
but only to the extent that such untrue statement or alleged untrue statement
or
omission or alleged omission is other than a statement or omission arising
out
of, resulting from, or based upon the Company Information.
The
Purchaser and the Company acknowledge and agree that the purpose of Section
9.01(e) is to facilitate compliance by the Purchaser and any Depositor with
the
provisions of Regulation AB and related rules and regulations of the Commission.
Neither the Purchaser nor any Depositor shall exercise its right to request
delivery of information or other performance under these provisions other
than
in good faith, or for purposes other than compliance with the Securities
Act,
the Exchange Act and the rules and regulations of the Commission thereunder.
The
Company acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply
with
requests made by the Purchaser or any Depositor in good faith for delivery
of
information under these provisions on the basis of evolving interpretations
of
Regulation AB. In connection with any Securitization Transaction, the Company
shall cooperate fully with the Purchaser to deliver to the Purchaser (including
any of its assignees or designees) and any Depositor, any and all statements,
reports, certifications, records and any other information necessary in the
good
faith determination of the Purchaser or any Depositor to permit the Purchaser
or
such Depositor to comply with the provisions of Regulation AB, together with
such disclosures relating to the Company, any Subservicer, any Third-Party
Originator and the Mortgage Loans, or the servicing of the Mortgage Loans,
reasonably believed by the Purchaser or any Depositor to be necessary in
order
to effect such compliance.
In
the
event the Purchaser has elected to have the Company hold record title to
the
Mortgages, prior to the Reconstitution Date the Company shall prepare an
Assignment of Mortgage in blank or to the trustee from the Company acceptable
to
the trustee for each Mortgage Loan that is part of the Whole Loan Transfers,
Agency Transfer or Securitization Transactions. The Company shall pay all
preparation and recording costs associated with the initial Assignment of
Mortgage. The Company shall execute each Assignment of Mortgage, track such
Assignments of Mortgage to ensure they have been recorded and deliver them
as
required by the trustee upon the Company's receipt thereof. Additionally,
the
Company shall prepare and execute, at the direction of the Purchaser, any
note
endorsements in connection with any and all seller/servicer agreements. If
required at any time by a Rating Agency, Purchaser or successor purchaser
in
connection with any Whole Loan Transfer, Agency Sale or Securitization
Transaction, the Company shall deliver such additional documents from its
Retained Mortgage File within thirty (30) Business Days to the Custodian,
successor purchaser or other designee of the Purchaser as said Rating Agency,
Purchaser or successor purchaser may require.
All
Mortgage Loans (i) not sold or transferred pursuant to Whole Loan Transfers,
Agency Transfer or Securitization Transactions or (ii) that are subject to
a
Securitization for which the related trust is terminated for any reason,
shall
remain subject to this Agreement and shall continue to be serviced in accordance
with the terms of this Agreement and with respect thereto this Agreement
shall
remain in full force and effect.