================================================================================
HOMESTAR MORTGAGE ACCEPTANCE CORP.
Company,
▇▇▇▇▇ FARGO BANK, N.A.
Master Servicer and Securities Administrator,
and
HSBC BANK USA, NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2004
________________________
Asset-Backed Pass-Through Certificates
Series 2004-6
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms..................................................4
Accepted Master Servicing Practices......................................4
Accrual Period...........................................................4
Accrued Certificate Interest.............................................5
Adjustable Rate Mortgage Loans...........................................5
Advance..................................................................5
Affiliate................................................................5
Aggregate Stated Principal Balance.......................................5
Agreement................................................................5
Allocated Realized Loss Amount...........................................5
Assignment...............................................................5
Assignment Agreement.....................................................6
Available Distribution Amount............................................6
Balloon Loan.............................................................6
Balloon Payment..........................................................6
Bankruptcy Code..........................................................6
Basic Principal Distribution Amount......................................6
Basis Risk Shortfall.....................................................6
Basis Risk Shortfall Carry-Forward Amount................................7
Basis Risk Shortfall Reserve Fund........................................7
Book-Entry Certificate...................................................7
Business Day.............................................................7
Cash Liquidation.........................................................7
Cenlar...................................................................7
Cenlar Servicing Agreement...............................................7
Certificate..............................................................7
Certificate Account......................................................7
Certificate Account Deposit Date.........................................8
Certificateholder........................................................8
Holder...................................................................8
Certificate Margin.......................................................8
Certificate Principal Balance............................................8
Certificate Register.....................................................9
Class....................................................................9
Class A Certificate......................................................9
Class A Corridor Contract Allocation Amount..............................9
Class A Principal Distribution Amount....................................9
Class A-1 Certificate....................................................9
Class A-2 Certificate...................................................10
Class A-3A Certificate..................................................10
Class A-3B Certificate..................................................10
Class C Certificate.....................................................10
Class M Certificates....................................................10
Class M-1 Certificate...................................................10
Class M-1 Principal Distribution Amount.................................10
Class M-2 Certificate...................................................11
Class M-2 Principal Distribution Amount.................................11
Class M-3 Certificate...................................................11
Class M-3 Principal Distribution Amount.................................12
Class M-4 Certificate...................................................12
Class M-4 Principal Distribution Amount.................................12
Class M-5 Certificate...................................................12
Class M-5 Principal Distribution Amount.................................13
Class M-6 Certificate...................................................13
Class M-6 Principal Distribution Amount.................................13
Class M-7 Certificate...................................................14
Class M-7 Principal Distribution Amount.................................14
Class M-8 Certificate...................................................14
Class M-8 Principal Distribution Amount.................................14
Class P Certificate.....................................................15
Class R Certificate.....................................................15
Class R-X Certificate...................................................15
Class R-1 Interest......................................................15
Class R-2 Interest......................................................15
Class R-3 Interest......................................................15
Class R-4 Interest......................................................15
Closing Date............................................................15
Code....................................................................15
Collateral Value........................................................15
Commission..............................................................16
Company.................................................................16
Compensating Interest...................................................16
Corridor Contract Counterparty..........................................16
Corridor Contracts......................................................16
Corporate Trust Office..................................................16
Corresponding Certificate...............................................16
Cumulative Insurance Payments...........................................17
Cumulative Loss Percentage....................ERROR! BOOKMARK NOT DEFINED.
Curtailment.............................................................17
Custodial Account.......................................................17
Custodial Agreement.....................................................17
Custodian...............................................................17
Cut-off Date............................................................17
Deficient Valuation.....................................................17
Definitive Certificate..................................................17
2
Deleted Mortgage Loan...................................................18
Depository..............................................................18
Depository Participant..................................................18
Determination Date......................................................18
Disqualified Organization...............................................18
Distribution Date.......................................................19
Due Date................................................................19
Due Period..............................................................19
▇▇▇▇▇...................................................................19
Eligible Account........................................................19
Event of Default........................................................19
Exchange Act............................................................19
Extra Principal Distribution Amount.....................................19
▇▇▇▇▇▇ ▇▇▇..............................................................20
FDIC....................................................................20
Fitch Ratings...........................................................20
Fixed Rate Mortgage Loans...............................................20
▇▇▇▇▇▇▇ Mac.............................................................20
Funding Date..................................ERROR! BOOKMARK NOT DEFINED.
Guaranteed Distribution.................................................20
Indenture.....................................ERROR! BOOKMARK NOT DEFINED.
Initial Certificate Principal Balance...................................20
Initial Notional Amount.................................................20
Insurance Account.......................................................20
Insurance Payment.......................................................20
Insurance Policy........................................................20
Insurance Proceeds......................................................20
Insured Certificates....................................................21
Insurer.................................................................21
Insurer Default.........................................................21
Insurer Premium.........................................................21
Insurer Premium Rate....................................................21
Interest Carry Forward Amount...........................................21
Interest Determination Date.............................................21
Interest Remittance Amount..............................................21
Late Collections........................................................21
Lender-Paid PMI Loans...................................................21
Lender-Paid PMI Policy..................................................21
Lender-Paid PMI Rate....................................................22
LIBOR...................................................................22
LIBOR Business Day......................................................22
Liquidated Mortgage Loan................................................22
Liquidation Proceeds....................................................22
Loan-to-Value Ratio.....................................................22
Lost Note Affidavit.....................................................22
Majority Class C Certificateholder......................................22
3
Marker Rate.............................................................22
Master Servicer.........................................................23
Master Servicing Fees...................................................23
Master Servicing Fee Rate...............................................23
Maximum Uncertificated Accrued Interest Deferral Amount.................23
MERS....................................................................24
MERS(R) System..........................................................24
MIN.....................................................................24
MOM Loan................................................................24
Monthly Payment.........................................................24
▇▇▇▇▇'▇.................................................................24
Mortgage................................................................24
Mortgage File...........................................................24
Mortgage Loan...........................................................24
Mortgage Loan Purchase Agreement........................................24
Mortgage Loan Schedule..................................................25
Mortgage Note...........................................................26
Mortgage Rate...........................................................26
Mortgaged Property......................................................26
Mortgagor...............................................................26
Net Liquidation Proceeds................................................26
Net Monthly Excess Cashflow.............................................26
Net Mortgage Rate.......................................................27
Net Prepayment Interest Shortfall.......................................27
Net WAC Rate............................................................27
Nonrecoverable Advance..................................................27
Non-United States Person................................................27
Notional Amount.........................................................27
Offered Certificates....................................................27
Officers' Certificate...................................................27
Opinion of Counsel......................................................28
Option One..............................................................28
Option One Servicing Agreement..........................................28
Optional Termination Date...............................................28
OTS.....................................................................28
Outstanding Mortgage Loan...............................................28
Overcollateralization Deficiency Amount.................................28
Overcollateralization Floor Amount......................................28
Overcollateralization Release Amount....................................28
Overcollateralization Target Amount.....................................29
Overcollateralized Amount...............................................29
Ownership Interest......................................................29
Pass-Through Rate.......................................................29
Percentage Interest.....................................................31
Permitted Investment....................................................31
Permitted Transferee....................................................32
4
Person..................................................................32
Policy..................................................................32
Prepayment Assumption...................................................32
Prepayment Charge.......................................................32
Prepayment Interest Shortfall...........................................33
Prepayment Period.......................................................33
Primary Hazard Insurance Policy.........................................33
Primary Insurance Policy................................................33
Principal Distribution Amount...........................................33
Principal Prepayment....................................................33
Principal Prepayment in Full............................................33
Principal Remittance Amount.............................................33
Prospectus Supplement...................................................34
Protected Account.......................................................34
Purchase Price..........................................................34
Qualified Insurer.......................................................34
Qualified Substitute Mortgage Loan......................................34
Rating Agency...........................................................35
Realized Loss...........................................................35
Record Date.............................................................35
Regular Certificate.....................................................36
Relief Act..............................................................36
Relief Act Interest Shortfall...........................................36
REMIC...................................................................36
REMIC 1.................................................................36
REMIC 1 Interest Loss Allocation Amount.................................36
REMIC 1 Overcollateralized Amount.......................................36
REMIC 1 Principal Loss Allocation Amount................................37
REMIC 1 Overcollateralization Target Amount.............................37
REMIC 1 Regular Interest LT-AA..........................................37
REMIC 1 Regular Interest LT-A1..........................................37
REMIC 1 Regular Interest LT-A2..........................................37
REMIC 1 Regular Interest LT-A3..........................................38
REMIC 1 Regular Interest LT-M1..........................................38
REMIC 1 Regular Interest LT-M2..........................................38
REMIC 1 Regular Interest LT-M3..........................................38
REMIC 1 Regular Interest LT-M4..........................................39
REMIC 1 Regular Interest LT-M5..........................................39
REMIC 1 Regular Interest LT-M6..........................................39
REMIC 1 Regular Interest LT-M7..........................................39
REMIC 1 Regular Interest LT-M8..........................................39
REMIC 1 Regular Interest LT-P...........................................39
REMIC 1 Regular Interest LT-ZZ..........................................40
REMIC 1 Regular Interests...............................................40
REMIC 2.................................................................40
REMIC 3.................................................................40
5
REMIC 4.................................................................40
REMIC Provisions........................................................40
REMIC Regular Interest..................................................40
Remittance Report.......................................................40
REO Acquisition.........................................................41
REO Disposition.........................................................41
REO Imputed Interest....................................................41
REO Proceeds............................................................41
REO Property............................................................41
Request for Release.....................................................41
Residual Certificate....................................................41
Residual Interest.......................................................41
Responsible Officer.....................................................41
Securities Administrator................................................41
Seller..................................................................42
Senior Enhancement Percentage...........................................42
Servicer................................................................42
Servicer Remittance Date................................................42
Servicing Advances......................................................42
Servicing Agreements....................................................42
Servicing Fee...........................................................42
Servicing Fee Rate......................................................42
Servicing Officer.......................................................43
Single Certificate......................................................43
Standard & Poor's.......................................................43
Startup Day.............................................................43
Stated Principal Balance................................................43
Step-Up Date............................................................43
Stepdown Date...........................................................43
Subservicer.............................................................44
Subservicer Remittance Date.............................................44
Subservicing Agreement..................................................44
Subsequent Recoveries...................................................44
Substitution Adjustment.................................................44
Tax Returns.............................................................44
Transfer................................................................44
Transferor..............................................................44
Trigger Event...........................................................44
Trust Fund..............................................................45
Trust REMIC.............................................................45
Trustee.................................................................45
Uncertificated Accrued Interest.........................................45
Uncertificated Principal Balance........................................45
Uncertificated Pass-Through Rate........................................45
Uncertificated REMIC 1 Pass-Through Rate................................46
Underwriter.............................................................46
6
Uninsured Cause.........................................................46
United States Person....................................................46
Voting Rights...........................................................46
Weighted Average Net Mortgage Rate......................................46
Section 1.02. Determination of LIBOR........................................47
Section 1.03. Allocation of Certain Interest Shortfalls.....................48
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans..................................49
Section 2.02. Acceptance of the Trust Fund by the Trustee...................53
Section 2.03. Representations, Warranties and Covenants of the
Master Servicer and the Company...............................54
Section 2.04. Assignment of Interest in the Mortgage Loan
Purchase Agreement............................................57
Section 2.05. Issuance of Certificates; Conveyance of REMIC Regular
Interests and Acceptance of REMIC 1, REMIC 2, REMIC 3 and
REMIC 4 by the
Trustee.......................................................59
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01. Administration and Servicing of Mortgage Loans................61
Section 3.02. REMIC-Related Covenants.......................................62
Section 3.03. Monitoring of Servicer........................................63
Section 3.04. Fidelity Bond.................................................64
Section 3.05. Power to Act; Procedures......................................64
Section 3.06. Due-on-Sale Clauses; Assumption Agreements....................65
Section 3.07. Release of Mortgage Files.....................................65
Section 3.08. Documents, Records and Funds in Possession
of Master Servicer To Be Held for Trustee.....................66
Section 3.09. Standard Hazard Insurance and Flood Insurance Policies........67
Section 3.10. Presentment of Claims and Collection of Proceeds..............67
Section 3.11. Maintenance of the Primary Mortgage Insurance Policies........67
Section 3.12. Trustee to Retain Possession of Certain
Insurance Policies and Documents..............................68
Section 3.13. Realization Upon Defaulted Mortgage Loans.....................68
Section 3.14. Compensation for the Master Servicer..........................69
7
Section 3.15. REO Property..................................................69
Section 3.16. Protected Accounts............................................70
Section 3.17. Custodial Account.............................................71
Section 3.18. Permitted Withdrawals and Transfers from the
Custodial Account.............................................72
Section 3.19. Certificate Account...........................................73
Section 3.20. Permitted Withdrawals and Transfers
from the Certificate Account..................................74
Section 3.21. Annual Officer's Certificate as to Compliance.................75
Section 3.22. Annual Independent Accountant's Servicing Report..............76
Section 3.23. Reports Filed with Securities and Exchange Commission.........76
Section 3.24. UCC...........................................................77
Section 3.25. Optional Purchase of Defaulted Mortgage Loans.................77
Section 3.26. The Corridor Contracts........................................78
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Distributions.................................................79
Section 4.02. Statements to Certificateholders..............................84
Section 4.03. Remittance Reports; Advances by the Master Servicer...........87
Section 4.04. Distributions on the REMIC Regular Interests..................87
Section 4.05. Allocation of Realized Losses.................................89
Section 4.06. Information Reports to Be Filed by the Servicer...............90
Section 4.07. Compliance with Withholding Requirements......................91
Section 4.08. Basis Risk Shortfall Reserve Fund.............................91
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates..............................................93
Section 5.02. Registration of Transfer and Exchange of Certificates.........94
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates............100
Section 5.04. Persons Deemed Owners........................................100
Section 5.05. Rule 144A Information........................................100
8
ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01. Liability of the Company and the Master Servicer.............101
Section 6.02. Merger, Consolidation or Conversion of the
Company or the Master Servicer...............................101
Section 6.03. Limitation on Liability of the Company,
the Master Servicer, the Securities
Administrator and Others.....................................101
Section 6.04. Limitation on Resignation of the Master Servicer.............102
Section 6.05. Sale and Assignment of Master Servicing......................102
ARTICLE VII
DEFAULT
Section 7.01. Events of Default............................................104
Section 7.02. Trustee to Act; Appointment of Successor.....................105
Section 7.03. Notification to Certificateholders...........................107
Section 7.04. Waiver of Events of Default..................................107
Section 7.05. List of Certificateholders...................................107
ARTICLE VIII
CONCERNING THE TRUSTEE AND SECURITIES ADMINISTRATOR
Section 8.01. Duties of Trustee and the Securities Administrator...........108
Section 8.02. Certain Matters Affecting the Trustee and
the Securities Administrator.................................109
Section 8.03. Trustee and Securities Administrator Not
Liable for Certificates or Mortgage Loans....................111
Section 8.04. Trustee and Securities Administrator
May Own Certificates.........................................111
Section 8.05. Trustee's and Securities Administrator's Fees................111
Section 8.06. Eligibility Requirements for Trustee
and the Securities Administrator.............................112
Section 8.07. Resignation and Removal of the Trustee
and the Securities Administrator.............................112
Section 8.08. Successor Trustee and Successor
Securities Administrator.....................................113
Section 8.09. Merger or Consolidation of Trustee or
Securities Administrator.....................................114
Section 8.10. Appointment of Co-Trustee or Separate Trustee................114
9
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Repurchase or Liquidation
of All Mortgage Loans or upon Purchase
of Certificates..............................................116
Section 9.02. Termination of REMIC 2, REMIC 3 and REMIC 4..................118
Section 9.03. Additional Termination Requirements..........................118
ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.........................................120
Section 10.02. Prohibited Transactions and Activities.......................123
Section 10.03. Master Servicer, Securities Administrator
and Trustee Indemnification..................................123
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment....................................................125
Section 11.02. Recordation of Agreement; Counterparts.......................126
Section 11.03. Limitation on Rights of Certificateholders...................126
Section 11.04. Governing Law................................................127
Section 11.05. Notices......................................................127
Section 11.06. Severability of Provisions...................................128
Section 11.07. Successors and Assigns.......................................128
Section 11.08. Article and Section Headings.................................128
Section 11.09. Notice to Rating Agencies....................................128
Section 11.10. Third Party Rights...........................................129
ARTICLE XII
CERTAIN MATTERS REGARDING THE INSURER
Section 12.01. Rights of the Insurer to Exercise Rights
of Insured Certificateholders................................130
Section 12.02. Claims Upon the Policy; Insurance Account....................130
Section 12.03. Effect of Payments by the Insurer; Subrogation..............131
Section 12.04. Notices and Information to the Insurer.......................131
Section 12.05. Trustee to Hold Policy.......................................132
Section 12.06. Payment of Insurance Premium.................................132
10
Signatures
Acknowledgments
Exhibit A Form of Class A Certificate
Exhibit B-1 Form of Class M Certificate
Exhibit B-2 Form of Class C Certificate
Exhibit B-3 Form of Class P Certificate
Exhibit B-4 Form of Class R Certificate
Exhibit C Form of Trustee Initial Certification
Exhibit D Form of Trustee Final Certification
Exhibit E Form of Remittance Report
Exhibit F Form of Request for Release of Documents
Exhibit G-1 Form of Investor Representation Letter
Exhibit G-2 Form of Transferor Representation Letter
Exhibit G-3 Form of Rule 144A Investment Representation
Exhibit G-4 Form of Transferor Certificate for Transfers of Residual
Certificates
Exhibit G-5 Form of Transfer Affidavit and Agreement for Transfers
of Residual Certificates
Exhibit H Mortgage Loan Schedule
Exhibit I [Reserved]
Exhibit J [Reserved]
Exhibit K Form of Assignment Agreement
Exhibit L-1 Form 10-K Certification
Exhibit L-2 Form 10-K Back-up Certification (Master Servicer)
Exhibit L-3 Form 10-K Back-up Certification (Trustee)
Exhibit M-1 Cenlar Servicing Agreement
Exhibit M-2 Option One Servicing Agreement
Exhibit N Form of Custodial Agreement
Exhibit O [Reserved]
Exhibit P Form of Mortgage Loan Purchase Agreement
Exhibit Q Certificate Guaranty Insurance Policy
Exhibit R Schedule of Corridor Contract Notional Balances
Exhibit S Schedule of Monthly Strike Rates
11
This Pooling and Servicing Agreement, dated and effective as of
November 1, 2004, is entered into among Homestar Mortgage Acceptance Corp., as
company (the "Company"),▇▇▇▇▇ Fargo Bank, N.A., as master servicer (in such
capacity, the "Master Servicer") and as securities administrator (in such
capacity, the "Securities Administrator"), and HSBC Bank USA, National
Association, as trustee (the "Trustee").
PRELIMINARY STATEMENT:
The Company intends to sell pass-through certificates (collectively,
the "Certificates"), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of sixteen classes of
certificates, designated as (i) the Class A-1, Class A-2, Class A-3A and Class
A-3B Certificates, (ii) the Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7 and Class M-8 Certificates, (iii) the Class C
Certificates, (iv) the Class P Certificates and (v) the Class R Certificates and
Class R-X Certificates.
REMIC 1
-------
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the Trust Fund (exclusive of the Basis
Risk Shortfall Reserve Fund and the Corridor Contracts) as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC 1". The Class R-1 Interest will represent the sole class of "residual
interests" in REMIC 1 for purposes of the REMIC Provisions.
The following table irrevocably sets forth the designation, the
Uncertificated REMIC 1 Pass-Through Rate, the initial Uncertificated Principal
Balance, and solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the REMIC 1
Regular Interests. None of the REMIC 1 Regular Interests will be certificated.
Uncertificated REMIC 1 Initial Certificate Assumed Final
DESIGNATION PASS-THROUGH RATE PRINCIPAL BALANCE MATURITY DATE(1)
----------- ---------------------- ------------------- ----------------
LT-AA (2) $ 745,806,048.80 January 25, 2035
LT-A1 (2) $ 2,722,020.00 January 25, 2035
LT-A2 (2) $ 2,555,330.00 January 25, 2035
LT-A3A (2) $ 450,000.00 January 25, 2035
LT-A3B (2) $ 1,075,580.00 January 25, 2035
LT-M1 (2) $ 156,000.00 January 25, 2035
LT-M2 (2) $ 136,970.00 January 25, 2035
LT-M3 (2) $ 155,990.00 January 25, 2035
LT-M4 (2) $ 68,480.00 January 25, 2035
LT-M5 (2) $ 68,490.00 January 25, 2035
LT-M6 (2) $ 57,070.00 January 25, 2035
LT-M7 (2) $ 53,270.00 January 25, 2035
1
LT-M8 (2) $ 49,460.00 January 25, 2035
LT-ZZ (2) $ 7,671,871.61 January 25, ▇▇▇▇
▇▇-▇ (2) $ 100.00 January 25, 2035
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity
date for the Mortgage Loan with the latest possible maturity date has
been designated as the "latest possible maturity date" for each REMIC 1
Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC 1
Pass-Through Rate" herein.
REMIC 2
-------
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the REMIC 1 Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC 2". The Class R-2 Interest will represent the sole class of
"residual interests" in REMIC 2 for purposes of the REMIC Provisions.
The following table irrevocably sets forth the Class designation,
Pass-Through Rate and Initial Certificate Principal Balance for each Class of
Certificates that represents one or more of the "regular interests" in REMIC 2
created hereunder:
Initial Certificate Assumed Final
CLASS DESIGNATION PRINCIPAL BALANCE PASS-THROUGH RATE MATURITY DATE(1)
----------------- ------------------- ----------------- -----------------
A-1 $ 272,202,000 Adjustable(2) January 25, 2035
A-2 $ 255,533,000 Adjustable(2) January 25, 2035
A-3A $ 45,000,000 Adjustable(2) January 25, 2035
A-3B $ 107,558,000 Adjustable(2) January 25, 2035
M-1 $ 15,600,000 Adjustable(2) January 25, 2035
M-2 $ 13,697,000 Adjustable(2) January 25, 2035
M-3 $ 15,599,000 Adjustable(2) January 25, 2035
M-4 $ 6,848,000 Adjustable(2) January 25, 2035
M-5 $ 6,849,000 Adjustable(2) January 25, 2035
M-6 $ 5,707,000 Adjustable(2) January 25, 2035
M-7 $ 5,327,000 Adjustable(2) January 25, 2035
M-8 $ 4,946,000 Adjustable(2) January 25, 2035
C Interest $ 6,160,580.41 Variable(3) January 25, 2035
P Interest $ 100.00 (4) January 25, 2035
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity
date for the Mortgage Loan with the latest possible maturity date has
been designated as the "latest possible maturity date" for each REMIC 1
Regular Interest.
(2) Calculated in accordance with the definition of "Pass-Through Rate"
herein.
(3) The Class C Interest will accrue interest at their variable
Pass-Through Rate on the Notional Amount of the Class C Interest
outstanding from time to time which shall equal the aggregate of the
Uncertificated Principal Balances of the REMIC 1 Regular Interests
(other than REMIC 1 Regular Interest LT-P). The Class C Interest will
not accrue interest on its Certificate Principal Balance.
(4) The Class P Interest does not accrue interest.
2
REMIC 3
-------
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Class C Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC 3." The Class R-3 Interest represents the sole class of
"residual interests" in REMIC 3 for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and Original Class Certificate Principal Balance for the
indicated Class of Certificates that represents a "regular interest" in REMIC 3
created hereunder:
Initial Aggregate
Certificate
Principal Latest Possible
Class Designation Pass-Through Rate Balance Maturity Date(1)
-------------------- ----------------- ----------------- ----------------
Class C Certificates Variable(2) $6,160,580.41 January 25, 2035
_______________
(1) Solely 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 Loans with the latest maturity date has been
designated as the "latest possible maturity date" for the Class C
Certificates.
(2) The Class C Certificates will receive 100% of amounts received in
respect of the Class C Interest.
3
REMIC 4
-------
As provided herein, the Trustee shall make an election to treat the
segregated pool of assets consisting of the Class P Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC 4." The Class R-4 Interest represents the sole class of
"residual interests" in REMIC 4 for purposes of the REMIC Provisions.
The following table sets forth (or describes) the Class designation,
Pass-Through Rate and Original Class Certificate Principal Balance for the
indicated Class of Certificates that represents a "regular interest" in REMIC 4
created hereunder:
Initial Aggregate
Certificate
Principal Latest Possible
Class Designation Pass-Through Rate Balance Maturity Date(1)
-------------------- ----------------- ----------------- ----------------
Class P Certificates Variable(2) $100.00 January 25, 2035
_______________
(1) Solely 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 Loans with the latest maturity date has been
designated as the "latest possible maturity date" for the Class P
Interest.
(2) The Class P Interest will receive 100% of amounts received in respect
of the Class P Interest.
4
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 meanings specified in this
Article. Unless otherwise specified, all calculations in respect of interest on
the Class A Certificates, the Class M Certificates, the Class C Certificates and
the REMIC 1 Regular Interests shall be made on the basis of a 360-day year
consisting of the actual number of days in the related Accrual Period. The Class
P Certificates and the Class R Certificates do not accrue interest.
"Accepted Master Servicing Practices": With respect to any Mortgage
Loan, as applicable, either (x) those customary mortgage master servicing
practices of prudent mortgage master 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 the Servicer), or (y) as provided in this Agreement, to the extent
applicable to the Master Servicer, but in no event below the standard set forth
in clause (x).
"Accrual Period": With respect to any Distribution Date and the Offered
Certificates, the period commencing on the immediately preceding Distribution
Date (or, in the case of the first Distribution Date, the Closing Date) and
ending on the day immediately preceding the current Distribution Date. With
respect to any Distribution Date and the Class C Certificates, the calendar
month preceding the month in which such Distribution Date occurs. The Class R
Certificates and Class P Certificates will not accrue any interest and therefore
have no Accrual Period.
"Accrued Certificate Interest": With respect to the Class A, Class M
and Class C Certificates and any Distribution Date, the amount of interest
accrued during the related Accrual Period at the related Pass-Through Rate on
the Certificate Principal Balance (or Notional Amount in the case of the Class C
Certificates) of such Class immediately prior to such Distribution Date, in each
case, reduced by any Net Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls (allocated to such Certificate as set forth in Section 1.03). The
Accrued Certificate Interest on the Class A Certificates and Class M
Certificates will be calculated on the basis of a 360-day year and the actual
number of days in the related Accrual Period. The Accrued Certificate Interest
on the Class C Certificates will be calculated on the basis of a 360-day year
consisting of twelve 30-days months.
"Adjustable Rate Mortgage Loans": The Mortgage Loans identified in the
Mortgage Loan Schedule as having a Mortgage Rate which is adjustable at any
point during the life of the related Mortgage, including any Mortgage Loans
delivered in replacement thereof.
"Advance": As to any Mortgage Loan, any advance made by the Servicer
or the Master Servicer on any Distribution Date pursuant to Section 4.03.
5
"Affiliate": With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "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 and "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Aggregate Stated Principal Balance": As of any date of determination,
the aggregate Stated Principal Balance of the Mortgage Loans.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof.
"Allocated Realized Loss Amount": With respect to any Distribution Date
and any Class of Class M Certificates, an amount equal to the sum of any
Realized Loss allocated to that class of Certificates on that Distribution Date
and any Allocated Realized Loss Amount for that class remaining unpaid from any
previous Distribution Date.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient under the laws of
the jurisdiction wherein the related Mortgaged Property is located to reflect a
record the sale of the Mortgage.
"Assignment Agreement": The Assignment, Assumption and Recognition
Agreement, dated as of the Closing Date, among the Company, the Trustee and the
Seller, whereby the Servicing Agreements are being assigned to the Trust, and
attached hereto as Exhibit K.
"Available Distribution Amount": With respect to any Distribution Date,
an amount equal to the aggregate of the following amounts with respect to the
Mortgage Loans: (a) all previously undistributed payments on account of
principal and all previously undistributed payments on account of interest
received after the Cut-off Date and on or prior to the related Determination
Date, (b) any Advances and Compensating Interest paid by the Servicers or the
Master Servicer with respect to such Distribution Date and (c) any reimbursed
amount in connection with losses on investments of deposits in an account,
except: (i) all payments that were due on or before the Cut-off Date; (ii) all
Principal Prepayments, Liquidation Proceeds and Subsequent Recoveries received
after the applicable Prepayment Period; (iii) all payments, other than Principal
Prepayments, that represent early receipt of scheduled payments due on a date or
dates subsequent to the related Due Date; (iv) amounts received on particular
Mortgage Loans as late payments of principal or interest and respecting which,
and to the extent that, there are any unreimbursed Advances; (v) any investment
earnings on amounts on deposit in the Custodial Account and the Certificate
Account and amounts permitted to be withdrawn from the Custodial Account and the
Certificate Account pursuant to this Agreement; (vi) amounts needed to pay the
Servicing Fees and Master Servicing Fees or to reimburse the Servicer or the
Master Servicer for amounts due under the applicable Servicing Agreement and the
Agreement to the extent such amounts have not been retained by, or paid
previously to, the Servicer or the Master Servicer; (vii) to pay any fees with
respect to the Lender-Paid PMI Policies, (viii) any amounts reimbursable to the
Trustee, the Securities Administrator and the Custodian pursuant to this
Agreement and (ix) the Insurer Premium payable with respect to the Insured
Certificates on any Distribution Date.
6
"Balloon Loan": Each of the Mortgage Loans identified in the Mortgage
Loan Schedule as having an original term to maturity that is shorter than the
related amortization term.
"Balloon Payment": With respect to any Balloon Loan, the payment due on
the stated maturity date of such Balloon Loan.
"Bankruptcy Code": The Bankruptcy Code of 1978, as amended.
"Basic Principal Distribution Amount": With respect to any Distribution
Date, the excess, if any, of (x) the Principal Remittance Amount for such
Distribution Date, over (y) the Overcollateralization Release Amount.
"Basis Risk Shortfall": With respect to any Class of Offered
Certificates, on each Distribution Date where clause (ii) of the related
definition of "Pass-Through Rate" is less than clause (i) of the definition of
"Pass-Through Rate", the excess, if any, of (x) the aggregate Accrued
Certificate Interest thereon for such Distribution Date calculated pursuant to
clause (i) of the definition of "Pass-Through Rate" over (y) interest accrued on
the Mortgage Loans at the Net WAC Rate.
"Basis Risk Shortfall Carry-Forward Amount": With respect to each Class
of Offered Certificates and any Distribution Date, as determined separately for
each such Class of Offered Certificates, an amount equal to the aggregate amount
of Basis Risk Shortfall for such Certificates on such Distribution Date, plus
any unpaid Basis Risk Shortfall for such Class of Certificates from prior
Distribution Dates, plus interest thereon at the Pass-Through Rate for such
Distribution Date, to the extent previously unreimbursed by the Net Monthly
Excess Cashflow or the Corridor Contracts.
"Basis Risk Shortfall Reserve Fund": A reserve fund established by the
Securities Administrator on behalf of the Trustee for the benefit of the Holders
of the Offered Certificates. The Basis Risk Shortfall Reserve Fund is an
"outside reserve fund" within the meaning of Treasury regulation Section
1.860G-2(h), which is not an asset of any REMIC, ownership of which is evidenced
by the Class C Certificates, and which is established and maintained pursuant to
Section 4.08.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"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, the Servicer, any Subservicer or the Securities Administrator is
located are authorized or obligated by law or executive order to be closed.
"Cash Liquidation": As to any defaulted Mortgage Loan other than a
Mortgage Loan as to which an REO Acquisition occurred, a determination by the
Servicer that it has received all Insurance Proceeds, Liquidation Proceeds and
other payments or cash recoveries which the Servicer reasonably and in good
faith expects to be finally recoverable with respect to such Mortgage Loan.
7
"Cenlar": Cenlar FSB.
"Cenlar Servicing Agreement": The Servicing Agreement dated March 5,
2004, between ▇▇▇▇▇ Fargo Bank, N.A. as master servicer and Opteum Financial
Services LLC as seller and servicer.
"Certificate": Any Class A, Class M, Class C, Class P, Class R or Class
R-X Certificate.
"Certificate Account": The trust account or accounts created and
maintained pursuant to Section 3.19, which shall be entitled "HSBC Bank USA,
National Association, in trust for registered holders of Homestar Mortgage
Acceptance Corp., Asset-Backed Pass-Through Certificates, Series 2004-6", and
which account or accounts must each be an Eligible Account.
"Certificate Account Deposit Date": With respect to any Distribution
Date, the Business Day immediately preceding such Distribution Date.
"Certificateholder" or "Holder": The Person in whose name a Certificate
is registered in the Certificate Register and, in respect of the Insured
Certificates, the Insurer to the extent of Cumulative Insurance Payments, except
that only a Permitted Transferee shall be a holder of a Residual Certificate for
any purposes hereof and, solely for the purposes of giving any consent pursuant
to this Agreement, any Certificate registered in the name of the Company or the
Master Servicer or any affiliate thereof shall be deemed not to be outstanding
and the Voting Rights to which such Certificate is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent has been obtained, except as otherwise
provided in Section 11.01. The Trustee and the Securities Administrator shall be
entitled to rely upon a certification of the Company or the Master Servicer in
determining if any Certificates are registered in the name of the respective
affiliate. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and participating members thereof, except as
otherwise specified herein; PROVIDED, HOWEVER, that the Trustee and the
Securities Administrator shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register. Unless otherwise indicated in this Agreement or the
Custodial Agreement, whenever reference is made to the actions taken by the
Securities Administrator or by the Trustee on behalf of the Certificateholders,
such reference to Certificateholders shall include the Insurer as long as there
is no Insurer Default continuing.
"Certificate Margin": With respect to the Class A-1, Class ▇-▇, ▇▇▇▇▇
▇-▇▇, ▇▇▇▇▇ ▇-▇▇, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6, Class M-7 and Class M-8 Certificates and solely for the purposes of the
definition of Marker Rate and Maximum Uncertificated Accrued Interest Deferral
Amount, the REMIC I Regular Interests (other than REMIC I Regular Interests
LT-AA, LT-ZZ and LT-P), on any Distribution Date prior to the Optional
Termination Date, 0.220%, 0.370%, 0.550%, 0.460%, 0.630%, 0.670%, 1.100%,
1.200%, 1.500%, 1.850%, 1.950% and 3.500% per annum, respectively, and on any
Distribution Date on and after the Step-Up Date, 0.440%, 0.740%, 1.100%, 0.920%,
0.945%, 1.005%, 1.650%, 1.800%, 2.250%, 2.775%, 2.925% and 5.250% per annum,
respectively.
8
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate, as reflected on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent, if any, and otherwise on the books of a Depository
Participant, if any, and otherwise on the books of the Depository.
"Certificate Principal Balance": With respect to any Class of Class A
Certificates or Class M Certificates immediately prior to any Distribution Date,
the Initial Certificate Principal Balance thereof, plus any Subsequent
Recoveries added to the Certificate Principal Balance of such Certificate,
reduced by the sum of (a) all amounts actually distributed in respect of
principal of such Class and, (b) in the case of a Class M Certificate, Realized
Losses allocated thereto on all prior Distribution Dates; provided, however,
that solely for purposes of determining the Insurer's rights as subrogee to the
Insured Certificateholders, the Certificate Principal Balance of any Insured
Certificate shall be deemed not to be reduced by any principal amounts paid to
the Holder thereof from Insurance Payments, unless such amounts have been
reimbursed to the Insurer pursuant to Section 4.01(c)(i). With respect to the
Class C Certificates as of any date of determination, an amount equal to the
excess, if any, of (A) the then aggregate Uncertificated Principal Balances of
the REMIC 1 Regular Interests over (B) the then aggregate Certificate Principal
Balances of the Class A Certificates, the Class M Certificates and the Class P
Certificates then outstanding.
"Certificate Register": The register maintained pursuant to Section
5.02.
"Class": Collectively, all of the Certificates bearing the same
designation.
"Class A Certificate": Class A-1, Class A-2, Class A-3A or Class A-3B
Certificates.
"Class A Corridor Contract Allocation Amount": With respect to each
Class of Class A Certificates and any Distribution Date, the amount received
with respect to the Corridor Contract for the Class A Certificates for such
Distribution Date times a fraction, the numerator of which is the Certificate
Principal Balance of such Class of Certificates immediately prior to such
Distribution Date, and the denominator of which is the aggregate Certificate
Principal Balance of the Class A Certificates immediately prior to such
Distribution Date.
"Class A Principal Distribution Amount": For any applicable
Distribution Date on or after the Stepdown Date as long as a Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the aggregate Certificate Principal Balance of the Class
A Certificates immediately prior to such Distribution Date over (y) the lesser
of (a) the Aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) multiplied by 78.80% and (b) the amount, if any, by which (i)
the Aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) the Overcollateralization Floor Amount.
9
"Class A-1 Certificate": Any one of the Class A-1 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class A-2 Certificate": Any one of the Class A-2 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class A-3A Certificate": Any one of the Class A-3A Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class A-3B Certificate": Any one of the Class A-3B Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit A, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class C Interest": An uncertificated interest in the Trust Fund held
by the Trustee on behalf of the Holders of the Class CE Certificates, evidencing
a Regular Interest in REMIC 2 for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Class C Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-2, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 3.
"Class M Certificates": The Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates.
"Class M-1 Certificate": Any one of the Class M-1 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
10
"Class M-1 Principal Distribution Amount": For any applicable
Distribution Date on or after the Stepdown Date as long as a Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date) and (ii)
the Certificate Principal Balance of the Class M-1 Certificates immediately
prior to such Distribution Date over (y) the lesser of (a) the Aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Prepayment
Period) multiplied by 82.90% and (b) the amount, if any, by which (i) the
Aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) the Overcollateralization Floor Amount.
"Class M-2 Certificate": Any one of the Class M-2 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class M-2 Principal Distribution Amount": For any applicable
Distribution Date on or after the Stepdown Date as long as a Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A Certificates and Class M-1 Certificates (after taking
into account the distribution of the Class A and Class M-1 Principal
Distribution Amounts on such Distribution Date) and (ii) the Certificate
Principal Balance of the Class M-2 Certificates immediately prior to such
Distribution Date over (y) the lesser of (a) the Aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) multiplied by
86.50% and (b) the amount, if any, by which (i) the Aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) exceeds (ii) the
Overcollateralization Floor Amount.
"Class M-3 Certificate": Any one of the Class M-3 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest
11
in REMIC 2 and (ii) the right to receive the related Basis Risk Shortfall
Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class M-3 Principal Distribution Amount": For any applicable
Distribution Date on or after the Stepdown Date as long as a Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A, Class M-1 and Class M-2 Certificates (after taking into
account the distributions of the Class A, Class M-1 and Class M-2 Principal
Distribution Amounts on such Distribution Date) and (ii) the Certificate
Principal Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (y) the lesser of (a) the Aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) multiplied by
90.60% and (a) the amount, if any, by which (i) the Aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) exceeds (ii) the
Overcollateralization Floor Amount.
"Class M-4 Certificate": Any one of the Class M-4 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class M-4 Principal Distribution Amount": For any applicable
Distribution Date on or after the Stepdown Date as long as a Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A, Class M-1, Class M-2 and Class M-3 Certificates (after
taking into account the distribution of the Class A, Class M-1, Class M-2 and
Class M-3 Principal Distribution Amounts on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class M-4 Certificates immediately prior to
such Distribution Date over (y) the lesser of (a) the Aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) multiplied by
92.40% and (b) the amount, if any, by which (i) the Aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) exceeds (ii) the
Overcollateralization Floor Amount.
12
"Class M-5 Certificate": Any one of the Class M-5 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class M-5 Principal Distribution Amount": For any applicable
Distribution Date on or after the Stepdown Date as long as a Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A, Class M-1, Class M-2, Class M-3 and Class M-4
Certificates (after taking into account the distribution of the Class A, Class
M-1, Class M-2, Class M-3 and Class M-4 Principal Distribution Amounts on such
Distribution Date) and (ii) the Certificate Principal Balance of the Class M-5
Certificates immediately prior to such Distribution Date over (y) the lesser of
(a) the Aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) multiplied by 94.20% and (b) the amount, if any, by which (i)
the Aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) the Overcollateralization Floor Amount.
"Class M-6 Certificate": Any one of the Class M-6 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class M-6 Principal Distribution Amount": For any applicable
Distribution Date on or after the Stepdown Date as long as a Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4 and Class M-5
Certificates (after taking into account the distribution of the Class A, Class
M-1, Class M-2, Class M-3, Class M-4 and Class M-5 Principal Distribution
Amounts on such Distribution Date) and (ii) the Certificate Principal Balance of
the Class M-6 Certificates immediately prior to such Distribution Date over (y)
the lesser of (a) the Aggregate Stated Principal Balance of the Mortgage Loans
as of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period, and after reduction for Realized Losses incurred
during the related Prepayment Period) multiplied by 95.70% and (b) the amount,
if any, by which (i) the Aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled
13
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period, and after reduction for Realized Losses incurred
during the related Prepayment Period) exceeds (ii) the Overcollateralization
Floor Amount.
"Class M-7 Certificate": Any one of the Class M-7 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class M-7 Principal Distribution Amount": For any applicable
Distribution Date on or after the Stepdown Date as long as a Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5
and Class M-6 Certificates (after taking into account the distribution of the
Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6
Principal Distribution Amounts on such Distribution Date) and (ii) the
Certificate Principal Balance of the Class M-7 Certificates immediately prior to
such Distribution Date over (y) the lesser of (a) the Aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) multiplied by
97.10% and (b) the amount, if any, by which (i) the Aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction for
Realized Losses incurred during the related Prepayment Period) exceeds (ii) the
Overcollateralization Floor Amount.
"Class M-8 Certificate": Any one of the Class M-8 Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-1, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing (i) a REMIC Regular
Interest in REMIC 2 and (ii) the right to receive the related Basis Risk
Shortfall Carry-Forward Amount from the Basis Risk Shortfall Reserve Fund.
"Class M-8 Principal Distribution Amount": For any applicable
Distribution Date on or after the Stepdown Date as long as a Trigger Event has
not occurred with respect to such Distribution Date, an amount equal to the
excess (if any) of (x) the sum of (i) the aggregate Certificate Principal
Balance of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6 and Class M-7 Certificates (after taking into account the distribution
of the Class A, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6
and Class M-7 Principal Distribution Amounts on such Distribution Date) and (ii)
the Certificate Principal Balance of the Class M-8 Certificates immediately
prior to such Distribution Date over (y) the lesser of (a) the Aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
14
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the related Prepayment
Period) multiplied by 98.40% and (b) the amount, if any, by which (i) the
Aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the related
Prepayment Period) exceeds (ii) the Overcollateralization Floor Amount.
"Class P Certificate": Any one of the Class P Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-3, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, representing the right to
distributions as set forth herein and therein and evidencing a REMIC Regular
Interest in REMIC 4.
"Class P Interest": An uncertificated interest in the Trust Fund held
by the Trustee on behalf of the Holders of the Class P Certificates, evidencing
a Regular Interest in REMIC 2 for purposes of the REMIC Provisions.
"Class R Certificate": Any one of the Class R Certificates as
designated on the face thereof substantially in the form annexed hereto as
Exhibit B-4, executed by the Securities Administrator and authenticated and
delivered by the Securities Administrator, evidencing the ownership of the Class
R-1 Interest and Class R-2 Interest.
"Class R-X Certificate": The Class R-X Certificate executed by the
Securities Administrator, and authenticated and delivered by the Securities
Administrator, substantially in the form annexed hereto as Exhibit B-4 and
evidencing the ownership of the Class R-3 Interest and Class R-4 Interest.
"Class R-1 Interest": The uncertificated Residual Interest in REMIC 1.
"Class R-2 Interest": The uncertificated Residual Interest in REMIC 2.
"Class R-3 Interest": The uncertificated Residual Interest in REMIC 3.
"Class R-4 Interest": The uncertificated Residual Interest in REMIC 4.
"Closing Date": November 19, 2004.
"Code": The Internal Revenue Code of 1986, as amended.
"Collateral Value": The appraised value of a Mortgaged Property based
upon the lesser of (i) the appraisal made at the time of the origination of the
related Mortgage Loan, or (ii) the sales price of such Mortgaged Property at
such time of origination. With respect to a Mortgage Loan the proceeds of which
were used to refinance an existing mortgage loan, the appraised value of the
Mortgaged Property based upon the appraisal obtained at the time of refinancing.
15
"Commission": The Securities and Exchange Commission.
"Company": Homestar Mortgage Acceptance Corp., or its successor in
interest.
"Compensating Interest": With respect to any Distribution Date, an
amount equal to Prepayment Interest Shortfalls resulting from Principal
Prepayments during the related Prepayment Period, but not more than the
Servicing Fees for the immediately preceding Due Period.
"Corridor Contract Counterparty": Bear ▇▇▇▇▇▇▇ Financial Products, Inc.
"Corridor Contracts": The corridor contracts, each between the Trustee
and the Corridor Contract Counterparty for the benefit of the Offered
Certificates and the Class C Certificates.
"Corridor Contract Notional Balance": As to each Corridor Contract and
each Distribution Date, the lesser of (x) the Certificate Principal Balance of
the related Class of Certificates immediately prior to such Distribution Date
and (y) the amount set forth on Exhibit R hereto for such Distribution Date.
"Corporate Trust Office": With respect to the Trustee, the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business related to this Agreement shall be administered, which
office at the date of the execution of this Agreement is located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services -
Homestar, and with respect to the Securities Administrator, for Certificate
transfer purposes, ▇▇▇▇▇ Fargo Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Services - Homestar 2004-6,
and for all other purposes, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attn: Corporate Trust Services - Homestar 2004-6.
"Corresponding Certificate": With respect to:
(i) REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇-▇▇, the Class A-1 Certificates,
(ii) REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇-▇▇, the Class A-2 Certificates,
(iii) REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇-▇▇, the Class A-3A Certificates,
(iv) REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇-▇▇, the Class A-3B Certificates,
(v) REMIC 1 Regular Interest LT-M1, the Class M-1 Certificates,
(vi) REMIC 1 Regular Interest LT-M2, the Class M-2 Certificates,
(vii) REMIC 1 Regular Interest LT-M3, the Class M-3 Certificates,
(viii) REMIC 1 Regular Interest LT-M4, the Class M-4 Certificates,
(ix) REMIC 1 Regular Interest LT-M5, the Class M-5 Certificates,
(x) REMIC 1 Regular Interest LT-M6, the Class M-6 Certificates,
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(xi) REMIC 1 Regular Interest LT-M7, the Class M-7 Certificates,
(xii) REMIC 1 Regular Interest LT-M8, the Class M-8 Certificates,
and
(xiii) REMIC 1 Regular Interest LT-P, the Class P Certificates.
"Cumulative Insurance Payments": As of any time of determination, the
aggregate amount of all Insurance Payments previously paid by the Insurer under
the Policy minus (a) the aggregate of all payments previously made to the
Insurer pursuant to Section 4.01(c)(i) hereof as reimbursement for Insurance
Payments.
"Curtailment": Any Principal Prepayment made by a Mortgagor which is
not a Principal Prepayment in Full.
"Custodial Account": The custodial account or accounts created and
maintained by the Master Servicer pursuant to Section 3.17 in the name of a
depository institution, as custodian for the Holders of the Certificates. Any
such account or accounts shall be an Eligible Account.
"Custodial Agreement": An agreement, dated as of the Closing Date among
the Company, the Master Servicer, the Trustee and the Custodian in substantially
the form of Exhibit N hereto.
"Custodian": ▇▇▇▇▇ Fargo Bank, N.A., or any successor custodian
appointed pursuant to the provisions hereof and of the Custodial Agreement.
"Cut-off Date": November 1, 2004.
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
by a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any scheduled Monthly
Payment that constitutes a permanent forgiveness of principal, which valuation
or reduction results from a proceeding under the Bankruptcy Code.
"Definitive Certificate": Any definitive, fully registered Certificate.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be replaced
with a Qualified Substitute Mortgage Loan.
"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 corresponding day of the month immediately succeeding the month in which
such payment was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on the 31st day
of such month), then on the last day of such immediately succeeding month.
Similarly for "60 days delinquent," "90 days delinquent" and so on.
17
"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(5) of the Uniform Commercial Code of the State of New York and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended.
"Depository Participant": A broker, dealer, bank or other financial
institutions or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"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 Distribution Date.
"Disqualified Organization": Any organization defined as a
"disqualified organization" under Section 860E(e)(5) of the Code, which includes
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, a
majority of its board of directors is not selected by such governmental unit),
(ii) a 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 and (v) any other Person so designated by the Securities Administrator
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause any REMIC or any Person having an
Ownership Interest in any Class of Certificates (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 Date": The 25th day of any month, or if such 25th day is
not a Business Day, the Business Day immediately following such 25th day,
commencing in December 2004.
"Due Date": With respect to approximately 99.97% of the Mortgage Loans,
the first day of the month of the related Distribution Date. Approximately 0.03%
of the Mortgage Loans have Due Dates which do not occur on the first day of the
month.
"Due Period": With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month of such
Distribution Date (or, with respect to the first Due Period, the day following
the Cut-off Date) and ending on the first day of the month of the related
Distribution Date.
"▇▇▇▇▇": The Electronic Data Gathering and Retrieval System of the
Commission.
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"Eligible Account": Any of (i) a segregated account maintained with a
federal or state chartered depository institution (A) the short-term obligations
of which are rated A-1+ or better by Standard & Poor's and P-1 by Moody's at the
time of any deposit therein or (B) insured by the FDIC (to the limits
established by such Corporation), the uninsured deposits in which account 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 prior to the establishment of such account, the
Certificateholders will have a claim with respect to the funds in such account
and 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
Certificate Account or Custodial Account) securing such funds that is superior
to claims of any other depositors or general creditors of the depository
institution with which such account is maintained, (ii) a segregated trust
account or accounts maintained with a federal or state chartered depository
institution or trust company subject to regulations regarding fiduciary funds on
deposit similar to Title 12 of the Code of Federal Regulations Section 9.10(b),
which, in either case, has corporate trust powers, acting in its fiduciary
capacity or (iii) a segregated account or accounts of a depository institution
acceptable to the Rating Agencies (as evidenced in writing by a letter from the
Rating Agencies to the Trustee that use of any such account as the Custodial
Account or the Certificate Account will not have an adverse effect on the
then-current ratings assigned to the Classes of the Certificates then rated by
the Rating Agencies). Eligible Accounts may bear interest.
"Event of Default": One or more of the events described in Section
7.01.
"Exchange Act": The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Extra Principal Distribution Amount": With respect to any Distribution
Date, is the lesser of (x) the Overcollateralization Deficiency Amount for such
Distribution Date and (y) the Net Monthly Excess Cashflow Amount for such
Distribution Date.
"▇▇▇▇▇▇ ▇▇▇": Federal National Mortgage Association or any successor.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"Fitch Ratings": Fitch, Inc., or its successor in interest.
"Fixed Rate Mortgage Loans": The Mortgage Loans identified in the
Mortgage Loan Schedule as having a Mortgage Rate which is fixed for the life of
the related Mortgage, including any Mortgage Loans delivered in replacement
thereof.
"▇▇▇▇▇▇▇ Mac": Federal Home Loan Mortgage Corporation or any successor.
"Guaranteed Distribution": With respect to any Insured Certificates and
any Distribution Date, as defined in the Policy.
19
"Initial Certificate Principal Balance": With respect to each Class of
Regular Certificates, the Initial Certificate Principal Balance of such Class of
Certificates as set forth in the Preliminary Statement hereto, or with respect
to any single Certificate, the Initial Certificate Principal Balance as stated
on the face thereof.
"Initial Notional Amount": With respect to the Class C Certificate, the
aggregate of the initial Uncertificated Principal Balance of the REMIC 1 Regular
Interests (other than REMIC 1 Regular Interest LT-P).
"Insurance Account": The account established pursuant to Section
12.02(b) hereof.
"Insurance Payment": Any payment made by the Insurer with respect to
any Insured Certificates under the Policy.
"Insurance Policy": With respect to any Mortgage Loan, any insurance
policy (including the Lender-Paid PMI Policies) which is required to be
maintained from time to time under this Agreement in respect of such Mortgage
Loan.
"Insurance Proceeds": Proceeds paid in respect of the Mortgage Loans
pursuant to any Primary Insurance Policy or any other related insurance policy
covering a Mortgage Loan (excluding the Policy), to the extent such proceeds are
payable to the mortgagee under the Mortgage, any Subservicer, the Master
Servicer or the Trustee and are not applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the
procedures that the Master Servicer would follow in servicing mortgage loans
held for its own account.
"Insured Certificates": The Class A-3B Certificates.
"Insurer": Ambac Assurance Corporation, a Wisconsin-domiciled stock
insurance corporation or its successors in interest. "Insurer Default": The
existence and continuance of any failure by the Insurer to make a payment
required under the Policy in accordance with its terms.
"Insurer Premium": With respect to the Class A-3B Certificates, the
premium payable to the Insurer on each Distribution Date in an amount equal to
one-twelfth of the product of the Insurer Premium Rate and the Certificate
Principal Balance of the Class A-3B Certificates immediately prior to such
Distribution Date.
"Insurer Premium Rate": The per annum rate specified in the Policy.
"Interest Carry Forward Amount": With respect to each Class of Offered
Certificates and each Distribution Date, the excess of (a) the Accrued
Certificate Interest for such Class with respect to prior Distribution Dates,
over (b) the amount actually distributed to such Class with respect to interest
on such prior Distribution Dates, with interest on such excess at the related
Pass-Through Rate.
20
"Interest Determination Date": With respect to the first Accrual
Period, the second LIBOR Business Day preceding the Closing Date, and with
respect to each Accrual Period thereafter, the second LIBOR Business Day
preceding the related Payment Date on which such Accrual Period commences.
"Interest Remittance Amount": With respect to any Distribution Date,
that portion of the Available Distribution Amount for such Distribution Date
allocable to interest received or advanced on the Mortgage Loans.
"Late Collections": With respect to any Mortgage Loan, all amounts
received during any Due Period, whether as late payments of Monthly Payments or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of Monthly Payments due but delinquent for a previous
Due Period and not previously recovered.
"Lender-Paid PMI Loans": The Mortgage Loans included in the Trust Fund
covered by a Lender-Paid PMI Policy, as indicated on the Mortgage Loan Schedule.
"Lender-Paid PMI Policy": Each lender-paid Primary Insurance Policy, as
assigned to the Trust on the Closing Date, or any replacement policy therefor.
"Lender-Paid PMI Rate": With respect to any Lender-Paid PMI Loan, the
rate per annum at which the premium on the related Lender-Paid PMI Policy
accrues.
"LIBOR": With respect to any Distribution Date and the Pass-Through
Rates on the Offered Certificates, the arithmetic mean of the Loan interbank
offered rate quotations of reference banks (which will be selected by the
Securities Administrator) for one-month U.S. dollar deposits, expressed on a per
annum basis, determined in accordance with Section 1.02.
"LIBOR Business Day": A day on which banks are open for dealing in
foreign currency and exchange in London and New York City.
"Liquidated Mortgage Loan": As to any Distribution Date, any Mortgage
Loan in respect of which the Servicer has determined, in accordance with the
servicing procedures specified in the Servicing Agreement, as of the end of the
related Prepayment Period, that all Liquidation Proceeds which it expects to
recover with respect to the liquidation of the Mortgage Loan or disposition of
the related REO Property have been recovered.
"Liquidation Proceeds": Amounts (other than Insurance Proceeds)
received by the Servicer or Master Servicer in connection with the taking of an
entire Mortgaged Property by exercise of the power of eminent domain or
condemnation or in connection with the liquidation of a defaulted Mortgage Loan
through trustee's sale, foreclosure sale or otherwise and any Subsequent
Recoveries, other than amounts received in respect of any REO Property.
"Loan-to-Value Ratio": As of any date of determination, the fraction,
expressed as a percentage, the numerator of which is the current principal
balance of the related Mortgage Loan at the date of determination and the
denominator of which is the Collateral Value of the related Mortgaged Property.
21
"Lost Note Affidavit": With respect to any Mortgage Loan as to which
the original Mortgage Note has been permanently lost, misplaced or destroyed and
has not been replaced, an affidavit from the Seller certifying that the original
Mortgage Note has been lost, misplaced or destroyed (together with a copy of the
related Mortgage Note) and indemnifying the Trust Fund against any loss, cost or
liability resulting from the failure to deliver the original Mortgage Note in
the form of Exhibit J hereto.
"Majority Class C Certificateholder": With respect to the Class C
Certificates and any Distribution Date, the Holder of a 50.01% or greater
Percentage Interest of the Class C Certificates.
"Marker Rate": With respect to the Class C Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the Uncertificated REMIC 1 Pass-Through Rates for each REMIC 1 Regular
Interest (other than REMIC 1 Regular Interest LT-AA and REMIC I Regular Interest
LT-P) subject to a cap (for each such REMIC 1 Regular Interest other than REMIC
1 Regular Interest LT-ZZ) equal to the lesser of (x) One-Month LIBOR plus the
related Certificate Margin of the Corresponding Certificate and (y) the Net WAC
Rate for the purpose of this calculation; with the rate on REMIC 1 Regular
Interest LT-ZZ subject to a cap of zero for the purpose of this calculation;
provided, however, that solely for this purpose, calculations of the
Uncertificated REMIC 1 Pass-Through Rate and the related caps with respect to
REMIC 1 Regular Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular
Interest LT-A3A, REMIC 1 Regular Interest LT-A3B, REMIC 1 Regular Interest
LT-M1, REMIC 1 Regular Interest LT-M2, REMIC 1 Regular Interest LT-M3, REMIC 1
Regular Interest LT-M4, REMIC 1 Regular Interest LT-M5, REMIC 1 Regular Interest
LT-M6, REMIC 1 Regular Interest LT-M7 and REMIC 1 Regular Interest LT-M8 shall
be multiplied by a fraction, the numerator of which is the actual number of days
in the Interest Accrual Period and the denominator of which is 30.
"Master Servicer": ▇▇▇▇▇ Fargo Bank, N.A., or any successor master
servicer appointed as herein provided.
"Master Servicing Fee": As to each Mortgage Loan, an amount, equal to
interest at the Master Servicing Fee Rate on the Stated Principal Balance of
such Mortgage Loan as of the Due Date in the calendar month preceding the month
in which the payment of the Master Servicing Fee is due.
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
per annum rate of 0.0125%.
"Maximum Uncertificated Accrued Interest Deferral Amount": With respect
to any Distribution Date, the excess of (a) accrued interest at the
Uncertificated REMIC 1 Pass-Through Rate applicable to REMIC 1 Regular Interest
LT-ZZ for such Distribution Date on a balance equal to the excess of (i) the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-ZZ over (ii) the
REMIC 1 Overcollateralized Amount, in each case for such Distribution Date over
(b) the sum of (I) Uncertificated Accrued Interest on REMIC 1 Regular ▇▇▇▇▇▇▇▇
▇▇-▇▇, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular Interest LT-A3A, REMIC 1
Regular Interest LT-A3B, REMIC 1 Regular Interest LT-M1, REMIC 1 Regular
Interest LT-M2, REMIC 1 Regular Interest LT-M3, REMIC 1 Regular Interest LT-M4,
REMIC 1 Regular Interest LT-M5, REMIC 1 Regular Interest LT-M6, REMIC 1 Regular
Interest LT-M7 and REMIC 1 Regular Interest LT-M8 with the rate on each such
REMIC 1 Regular Interest subject to a cap equal to the lesser of (x) One-Month
LIBOR plus the related Certificate Margin and (y) the Net WAC Rate; provided,
however, that solely for this purpose, calculations of the Uncertificated REMIC
1 Pass-Through Rate and the related caps with respect to REMIC 1 Regular
Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular Interest LT-A3A,
REMIC 1 Regular Interest LT-A3B, REMIC 1 Regular Interest LT-M1, REMIC 1 Regular
Interest LT-M2, REMIC
22
1 Regular Interest LT-M3, REMIC 1 Regular Interest LT-M4, REMIC 1 Regular
Interest LT-M5, REMIC 1 Regular Interest LT-M6, REMIC 1 Regular Interest LT-M7
and REMIC 1 Regular Interest LT-M8 shall be multiplied by a fraction, the
numerator of which is the actual number of days in the Interest Accrual Period
and the denominator of which is 30.
"MERS": Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
"MERS(R) 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(R) 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.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and interest on such Mortgage Loan which is payable
by a Mortgagor from time to time under the related Mortgage Note as originally
executed (after adjustment, if any, for Deficient Valuations occurring prior to
such Due Date, and after any adjustment by reason of any bankruptcy or similar
proceeding or any moratorium or similar waiver or grace period), and other than
any Balloon Payment.
"Monthly Strike Rate": With respect to each Corridor Contract and each
Distribution Date, the rate set forth in Exhibit S attached hereto.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., or its successor in
interest.
"Mortgage": The mortgage, deed of trust or any other instrument
securing the Mortgage Loan.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement; provided, that
whenever the term "Mortgage File" is used to refer to documents actually
received by the Custodian as agent for the Trustee, such term shall not be
deemed to include such additional documents required to be added unless they are
actually so added.
23
"Mortgage Loan": Each of the mortgage loans, transferred and assigned
to the Trustee pursuant to Section 2.01, 2.04 or 2.06 and from time to time held
in the Trust Fund (including any Qualified Substitute Mortgage Loans), the
Mortgage Loans so transferred, assigned and held being identified in the
Mortgage Loan Schedule. As used herein, the term "Mortgage Loan" includes the
related Mortgage Note and Mortgage.
"Mortgage Loan Purchase Agreement": The Mortgage Loan Purchase
Agreement dated as the Cut-off Date, between Opteum Financial Services, LLC as
seller and the Company as purchaser, and all amendments thereof and supplements
thereto, a form of which is attached hereto as Exhibit P.
"Mortgage Loan Schedule": As of any date of determination, the schedule
of Mortgage Loans included in the Trust Fund. The initial schedule of Mortgage
Loans with accompanying information transferred on the Closing Date to the
Trustee as part of the Trust Fund for the Certificates, attached hereto as
Exhibit H (as amended from time to time to reflect the addition of Qualified
Substitute Mortgage Loans) (and, for purposes of the Trustee pursuant to Section
2.02, in computer-readable form as delivered to the Trustee), which list shall
set forth the following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the city, state and zip code of the Mortgaged Property;
(iii) (A) the original term to maturity and (B) if such Mortgage
Loan is a Balloon Loan, the amortization term thereof;
(iv) the original principal balance and the original Mortgage Rate;
(v) the first Distribution Date;
(vi) whether the Mortgage Loan is a Balloon Mortgage Loan or a
Mortgage Loan the terms of which do not provide for a Balloon Payment;
(vii) the type of Mortgaged Property;
(viii) the Monthly Payment in effect as of the Cut-off Date;
(ix) the principal balance as of the Cut-off Date;
(x) the Mortgage Rate as of the Cut-off Date;
(xi) the occupancy status;
(xii) the purpose of the Mortgage Loan;
(xiii) the Collateral Value of the Mortgaged Property;
(xiv) the original term to maturity;
24
(xv) the paid-through date of the Mortgage Loan;
(xvi) the Master Servicing Fee Rate;
(xvii) the Servicing Fee Rate;
(xviii) the Net Mortgage Rate for such Mortgage Loan;
(xix) whether the Mortgage Loan is covered by a private mortgage
insurance policy or an original certificate of private mortgage insurance;
(xx) the documentation type;
(xxi) the type and term of the related Prepayment Charge, if any;
(xxii) whether such Mortgage Loan is a Lender-Paid PMI Loan and, if
so, the related Lender-Paid PMI Rate;
(xxiii) with respect to each Adjustable Rate Mortgage Loan:
(a) the frequency of each Adjustment Date;
(b) the next Adjustment Date;
(c) the Maximum Mortgage Rate;
(d) the Minimum Mortgage Rate;
(e) the Mortgage Rate as of the Cut-off Date;
(f) the related Periodic Rate Cap;
(g) the Gross Margin; and
(h) the purpose of the Mortgage Loan.
"Mortgage Note": The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
"Mortgage Rate": With respect to any Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan, as adjusted from time to time in
accordance with the provisions of the Mortgage Note.
"Mortgaged Property": The underlying property securing a Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note.
"Net Liquidation Proceeds": With respect to any Liquidated Mortgage
Loan or any other disposition of related Mortgaged Property (including REO
Property) the related Liquidation
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Proceeds net of Advances, Servicing Advances, Servicing Fees and any other
accrued and unpaid servicing fees received and retained in connection with the
liquidation of such Mortgage Loan or Mortgaged Property.
"Net Monthly Excess Cashflow": For any Distribution Date, the sum of
(a) the Overcollateralization Release Amount and (b) the excess of (x) the
Available Distribution Amount for such distribution date over (y) the sum for
such Distribution Date of (A) the aggregate Accrued Certificate Interest for the
Offered Certificates, (B) the aggregate Interest Carry Forward Amount for the
Class A Certificates and (C) the Principal Remittance Amount.
"Net Mortgage Rate": With respect to each Mortgage Loan Due Date, a per
annum rate of interest equal to the then-applicable Mortgage Rate on such
Mortgage Loan less the sum of (i) the Master Servicing Fee Rate, (ii) the
Servicing Fee Rate and (iii) with respect to the Lender-Paid PMI Loans, the
related Lender-Paid PMI Rate, calculated on the basis of a 360-day year and the
number of days in the related Accrual Period.
"Net Prepayment Interest Shortfall": With respect to any Distribution
Date, the excess, if any, of any Prepayment Interest Shortfalls for such date
over the related Compensating Interest.
"Net WAC Rate": With respect to the Offered Certificates, a per annum
rate equal to (a) the weighted average of the Net Mortgage Rates of the Mortgage
Loans, weighted on the basis of the Stated Principal Balances thereof as of the
close of business on the first day of the calendar month preceding the month in
which such Distribution Date occurs, less (b) the Insurer Premium Rate
multiplied by a fraction, the numerator of which is the Certificate Principal
Balance of the Class A-3B Certificates and the denominator of which is the
Aggregate Stated Principal Balance of the Mortgage Loans. For federal income tax
purposes, the equivalent of the foregoing shall be expressed as the weighted
average of the Uncertificated REMIC 1 Pass-Through Rate on each REMIC 1 Regular
Interest, weighted on the basis of the Uncertificated Principal Balance of each
such REMIC 1 Regular Interest.
"Nonrecoverable Advance": Any Advance or Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan which, in the good
faith judgment of the Servicer or the Master Servicer, will not or, in the case
of a proposed Advance or Servicing Advance, would not be ultimately recoverable
from related Late Collections, Insurance Proceeds, Liquidation Proceeds or REO
Proceeds. The determination by the Servicer or the Master Servicer that it has
made a Nonrecoverable Advance or that any proposed Advance or Servicing Advance
would constitute a Nonrecoverable Advance, shall be evidenced by a certificate
of a Servicing Officer delivered, in the case of the Servicer, to the Company,
the Master Servicer and the Insurer, and in the case of the Master Servicer, to
the Company, the Trustee and the Insurer.
"Non-United States Person": Any Person other than a United States
Person.
"Notional Amount": With respect to the Class C Certificates,
immediately prior to any Distribution Date, the aggregate of the Uncertificated
Principal Balances of the REMIC 1 Regular Interests, other than REMIC 1 Regular
Interest LT-P.
"Offered Certificates": The Class A Certificates and Class M
Certificates.
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"Officers' Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a vice president and by
the Treasurer, the Secretary, or one of the assistant treasurers or assistant
secretaries of the Company, the Seller, the Master Servicer or of any
Subservicer and delivered to the Company and Trustee.
"Opinion of Counsel": A written opinion of counsel, who may be counsel
for the Company, the Seller, or the Master Servicer, reasonably acceptable to
the Trustee and Securities Administrator; except that any opinion of counsel
relating to (a) the qualification of any account required to be maintained
pursuant to this Agreement as an Eligible Account, (b) the qualification of each
REMIC as a REMICs, (c) compliance with the REMIC Provisions or (d) resignation
of the Master Servicer pursuant to Section 6.04 must be an opinion of counsel
who (i) is in fact independent of the Company and the Master Servicer, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Company or the Master Servicer or in an affiliate of either and
(iii) is not connected with the Company or the Master Servicer as an officer,
employee, director or person performing similar functions.
"Option One": Option One Mortgage Corporation.
"Option One Servicing Agreement": The Servicing Agreement dated March
5, 2004, between the Company as owner and Opteum Financial Services LLC as
servicer.
"Optional Termination Date": The first Distribution Date following the
first Distribution Date after the Aggregate Stated Principal Balance of the
Mortgage Loans, and properties acquired in respect thereof, remaining in the
Trust Fund has been reduced to less than or equal to 10% of the Aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
"OTS": Office of Thrift Supervision or any successor.
"Outstanding Mortgage Loan": As to any Due Date, a Mortgage Loan
(including an REO Property) which was not the subject of a Principal Prepayment
in Full, Cash Liquidation or REO Disposition and which was not purchased prior
to such Due Date pursuant to Sections 2.02, 2.04 or 3.14.
"Overcollateralization Deficiency Amount": With respect to any
Distribution Date, the amount, if any, by which the Overcollateralization Target
Amount exceeds the Overcollateralized Amount (calculated for the purpose of this
definition only, solely after giving effect to distributions in respect of the
Principal Remittance Amount on such Distribution Date) on such Distribution
Date.
"Overcollateralization Floor Amount": An amount equal to 0.50% of the
Aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Overcollateralization Release Amount": With respect to any
Distribution Date, the lesser of (x) the Principal Remittance Amount for such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralized
Amount (after giving effect to distributions in respect of the Principal
Remittance Amount to be made on such Distribution Date) for such Distribution
Date over (ii) the Overcollateralization Target Amount for such Distribution
Date.
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"Overcollateralization Target Amount": With respect to any Distribution
Date, (a) prior to the Stepdown Date, 0.80% of the Aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date, (b) on or after the
Stepdown Date and if a Trigger Event is not in effect, the greater of (i) 1.60%
of the then current Aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period and (ii) the Overcollateralization
Floor Amount or (c) on or after the Stepdown Date and if a Trigger Event is in
effect, the Overcollateralization Target Amount for the immediately preceding
Distribution Date. Notwithstanding the foregoing, on and after any Distribution
Date following the reduction of the aggregate Certificate Principal Balance of
the Class A Certificates and the Class M Certificates to zero, the
Overcollateralization Target Amount shall be zero.
"Overcollateralized Amount": With respect to any Distribution Date, the
amount, if any, by which (i) the Aggregate Stated Principal Balance of the
Mortgage Loans (after giving effect to scheduled payments of principal due
during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period and any Realized Losses on the Mortgage Loans) exceeds (ii) the aggregate
Certificate Principal Balance of the Offered Certificates as of such
Distribution Date (after giving effect to distributions on such Distribution
Date).
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
"Pass-Through Rate": With respect to each Distribution Date and each
Class of Offered Certificates, a floating rate equal to the lesser of (i)
One-Month LIBOR plus the related Certificate Margin and (ii) the Net WAC Rate
with respect to such Distribution Date.
With respect to any Distribution Date and the Class C Certificates, a
per annum rate equal to the percentage equivalent of a fraction, the numerator
of which is (x) the sum of the amounts calculated pursuant to clauses (A)
through (O) below, and the denominator of which is (y) the aggregate of the
Uncertificated Principal Balances of the REMIC 1 Regular Interests (other than
REMIC 1 Regular Interests LT-P). For purposes of calculating the Pass-Through
Rate for the Class C Certificates, the numerator is equal to the sum of the
following components:
(A) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-AA minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-AA;
(B) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-A1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-A1;
(C) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-A2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-A2;
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(D) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-A3A minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-A3A;
(E) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-A3B minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-A3B;
(F) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-M1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M1;
(G) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-M2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M2;
(H) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-M3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M3;
(I) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-M4 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M4;
(J) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-M5 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M5;
(K) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-M6 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M6;
(L) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-M7 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M7;
(M) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-M8 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M8;
(N) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-ZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-ZZ; and
(O) 100% of the interest on REMIC 1 Regular Interest LT-P.
The Class P Certificates, the Class R-X Certificates and the Class R
Certificates will not accrue interest and therefore will not have a Pass-Through
Rate.
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"Percentage Interest": With respect to any Certificate (other than a
Class R Certificate or Class R-X Certificate), the undivided percentage
ownership interest in the related Class evidenced by such Certificate, which
percentage ownership interest shall be equal to the Initial Certificate
Principal Balance thereof or Initial Notional Amount, as applicable, thereof
divided by the aggregate Initial Certificate Principal Balance or Initial
Notional Amount, as applicable, of all of the Certificates of the same Class.
With respect to any Class R Certificate or Class R-X Certificate, the interest
in distributions to be made with respect to such Class evidenced thereby,
expressed as a percentage, as stated on the face of each such Certificate.
"Permitted Investment": One or more of the following:
(i) obligations of or guaranteed as to principal and interest by
the United States or any agency or instrumentality thereof when such obligations
are backed by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof, provided
that the unsecured obligations of the party agreeing to repurchase such
obligations are at the time rated by each Rating Agency in its highest
short-term rating available;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original maturity of
not more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining maturity of
more than 30 days) denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the United States or
any state thereof or of any domestic branch of a foreign depository institution
or trust company; provided that the debt obligations of such depository
institution or trust company (or, if the only Rating Agency is Standard &
Poor's, in the case of the principal depository institution in a depository
institution holding company, debt obligations of the depository institution
holding company) at the date of acquisition thereof have been rated by each
Rating Agency in its highest short-term rating available; and provided further
that, if the only Rating Agency is Standard & Poor's and if the depository or
trust company is a principal subsidiary of a bank holding company and the debt
obligations of such subsidiary are not separately rated, the applicable rating
shall be that of the bank holding company; and, provided further that, if the
original maturity of such short-term obligations of a domestic branch of a
foreign depository institution or trust company shall exceed 30 days, the
short-term rating of such institution shall be A-1+ in the case of Standard &
Poor's if Standard & Poor's is the Rating Agency;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United States or
any state thereof which on the date of acquisition has been rated by Moody's and
Standard & Poor's in their highest short-term ratings available; provided that
such commercial paper shall have a remaining maturity of not more than 30 days;
(v) a money market fund or a qualified investment fund rated by
Moody's in its highest long-term ratings available and rated AAAm or AAAm-G by
Standard & Poor's, including any such funds for which ▇▇▇▇▇ Fargo Bank, N.A. or
any affiliate thereof serves as an
30
investment advisor, manager, administrator, shareholder, servicing agent, and/or
custodian or sub-custodian; and
(vi) other obligations or securities that are acceptable to each
Rating Agency as a Permitted Investment hereunder and will not reduce the rating
assigned to any Class of Certificates by such Rating Agency below the lower of
the then-current rating or the rating assigned to such Certificates as of the
Closing Date by such Rating Agency, as evidenced in writing;
PROVIDED, HOWEVER, that no instrument shall be a Permitted Investment if it
represents, either (1) the right to receive only interest payments with respect
to the underlying debt instrument or (2) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest payments with respect to such instrument provide a yield
to maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
"Permitted Transferee": Any transferee of a Residual Certificate other
than a Disqualified Organization, a Non-United States Person or an "electing
large partnership" (as defined in Section 775 of the Code).
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Policy": The Certificate Guaranty Insurance Policy No. AB0826BE issued
by the Insurer in respect of the Insured Certificates, including any
endorsements thereto, a copy of which is attached hereto as Exhibit Q.
"Prepayment Assumption": As defined in the Prospectus Supplement.
"Prepayment Charge": With respect to any Mortgage Loan, the charges,
penalties or premiums, if any, due in connection with a full or partial
prepayment of such Mortgage Loan in accordance with the terms of the related
Mortgage Note (or any rider or annex thereto), or any amounts in respect thereof
paid by the Seller in accordance with the Mortgage Loan Purchase Agreement or
the Servicer in accordance with the Servicing Agreements.
"Prepayment Interest Shortfall": As to any Distribution Date and any
Mortgage Loan (other than a Mortgage Loan relating to an REO Property) that was
the subject of (a) a Principal Prepayment in Full during the related Prepayment
Period, an amount equal to the excess of one month's interest at the Net
Mortgage Rate on the Stated Principal Balance of such Mortgage Loan over the
amount of interest (adjusted to the Net Mortgage Rate) paid by the Mortgagor for
such Prepayment Period to the date of such Principal Prepayment in Full or (b) a
Curtailment during the prior calendar month, an amount equal to one month's
interest at the Mortgage Rate on the amount of such Curtailment.
"Prepayment Period": As to any Distribution Date, the calendar month
preceding the month in which such Distribution Date occurs.
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"Primary Hazard Insurance Policy": Each primary hazard insurance policy
required to be maintained pursuant to Section 3.13.
"Primary Insurance Policy": Any primary policy of mortgage guaranty
insurance including the Lender-Paid PMI Policies, or any replacement policy
therefor.
"Principal Distribution Amount": With respect to any Distribution Date,
an amount equal to the sum of the Basic Principal Distribution Amount plus the
Extra Principal Distribution Amount.
"Principal Prepayment": Any payment of principal made by the Mortgagor
on a Mortgage Loan which is received in advance of its scheduled Due Date 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 in Full": Any Principal Prepayment made by a
Mortgagor of the entire unpaid principal balance of the Mortgage Loan.
"Principal Remittance Amount": With respect to any Distribution Date,
the sum of (i) each scheduled payment of principal collected or advanced on the
Mortgage Loans by the Servicer or Master Servicer that was due during the
related Due Period, (ii) the principal portion of all partial and full Principal
Prepayments of the Mortgage Loans applied by the Servicer or Master Servicer
during the related Prepayment Period, (iii) the principal portion of all Net
Liquidation Proceeds, REO Proceeds, Insurance Proceeds and Subsequent Recoveries
received during the related Prepayment Period, (iv) the principal portion of
proceeds of Mortgage Loan purchases made pursuant to Section 2.02, 2.04 or 3.06,
in each case received or made during the related Prepayment Period, (v) the
principal portion of any related Substitution Adjustments deposited in the
Custodial Account during the related Prepayment Period and (vi) on the
Distribution Date on which the Trust Fund is to be terminated pursuant to
Section 9.01, the principal portion of the termination price received from the
Servicer or the Master Servicer, as applicable, in connection with a termination
of the Trust Fund to occur on such Distribution Date.
"Prospectus Supplement": That certain Prospectus Supplement dated
November 17, 2004 relating to the public offering of the Offered Certificates.
"Protected Account": An account established and maintained for the
benefit of Certificateholders by the Servicer with respect to the related
Mortgage Loans and with respect to REO Property pursuant to the respective
Servicing Agreements.
"Purchase Price": With respect to any Mortgage Loan (or REO Property)
required to be purchased pursuant to Section 2.02, 2.04 or 3.06, an amount equal
to the sum of (i) 100% of the Stated Principal Balance thereof, (ii) unpaid
accrued interest (or REO Imputed Interest) at the applicable Net Mortgage Rate
on the Stated Principal Balance thereof outstanding during each Due Period that
such interest was not paid or advanced, from the date through which interest was
last paid by the Mortgagor or advanced and distributed to Certificateholders
together with unpaid Master Servicing Fees and Servicing Fees and, if such
Mortgage Loan is a Lender-Paid PMI
32
Loan, the related premium payable at the related Lender-Paid PMI Rate, from the
date through which interest was last paid by the Mortgagor, in each case to the
first day of the month in which such Purchase Price is to be distributed, plus
(iii) the aggregate of all Advances and Servicing Advances made in respect
thereof that were not previously reimbursed and (iv) costs and damages incurred
by the Trust Fund in connection with a repurchase pursuant to Section 2.04
hereof that arises out of a violation of any anti-predatory lending law which
also constitutes an actual breach of representation (xxxii) of Section 3.1(b) of
the Mortgage Loan Purchase Agreement.
"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 Certificates rated by the Rating
Agencies as of the Closing Date.
"Qualified Substitute Mortgage Loan": A Mortgage Loan substituted by
the Company for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in an Officers' Certificate of the Seller delivered
to the Trustee, (i) have an outstanding principal balance, after deduction of
the principal portion of the monthly payment 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 outstanding principal balance, after such
deduction), not in excess of the Stated Principal Balance of the Deleted
Mortgage Loan (the amount of any shortfall to be paid to the Master Servicer for
deposit in the Custodial Account in the month of substitution); (ii) have a
Mortgage Rate and a Net Mortgage Rate no lower than and not more than 1% per
annum higher than the Mortgage Rate and Net Mortgage Rate, respectively, of the
Deleted Mortgage Loan as of the date of substitution; (iii) have a Loan-to-Value
Ratio at the time of substitution no higher than that of the Deleted Mortgage
Loan at the time of substitution; (iv) have a remaining term to stated maturity
not greater than (and not more than one year less than) that of the Deleted
Mortgage Loan; (v) comply with each representation and warranty set forth in
Section 2.04 hereof; and, (vi) comply with each non-statistical representation
and warranty set forth in the Mortgage Loan Purchase Agreement.
"Rating Agency": Standard & Poor's and Moody's and each of their
successors. If such agencies and their successors are no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating agency,
or other comparable Person, designated by the Company, notice of which
designation shall be given to the Trustee, the Securities Administrator and
Master Servicer. References herein to the two highest long term debt ratings of
a Rating Agency shall mean "AA" or better in the case of Standard & Poor's and
"Aa2" or better in the case of Moody's and references herein to the two highest
short-term debt ratings of a Rating Agency shall mean "A-1+" in the case of
Standard & Poor's and "P-1" in the case of Moody's, and in the case of any other
Rating Agency such references shall mean such rating categories without regard
to any plus or minus.
"Realized Loss": With respect to each Mortgage Loan or REO Property as
to which a Cash Liquidation or REO Disposition has occurred, an amount (not less
than zero) equal to (i) the Stated Principal Balance of the Mortgage Loan as of
the date of Cash Liquidation or REO
33
Disposition, plus (ii) interest (and REO Imputed Interest, if any) at the Net
Mortgage Rate from the Due Date as to which interest was last paid or advanced
to Certificateholders up to the date of the Cash Liquidation or REO Disposition
on the Stated Principal Balance of such Mortgage Loan outstanding during each
Due Period that such interest was not paid or advanced, minus (iii) the
proceeds, if any, received during the month in which such Cash Liquidation or
REO Disposition occurred, to the extent applied as recoveries of interest at the
Net Mortgage Rate and to principal of the Mortgage Loan, net of the portion
thereof reimbursable to the Master Servicer or the Servicer with respect to
related Advances or Servicing Advances not previously reimbursed. With respect
to each Mortgage Loan which has become the subject of a Deficient Valuation, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. In addition, to the extent
the Servicer or Master Servicer 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
Certificate Principal Balance of any Class of Certificates on any Distribution
Date.
"Record Date": With respect to any Book-Entry Certificates and any
Distribution Date, the close of business on the Business Day immediately
preceding such distribution date. With respect to any Certificates that are not
Book-Entry Certificates, the close of business on the last Business Day of the
calendar month preceding such Distribution Date.
"Regular Certificate": Any of the Certificates other than a Residual
Certificate.
"Relief Act": The Servicemembers Civil Relief Act, f/k/a Soldiers' and
Sailors' Civil Relief Act of 1940, as amended.
"Relief Act Interest Shortfall": With respect to any Distribution Date,
for any Mortgage Loan with respect to which there has been a reduction in the
amount of interest collectible thereon for the most recently ended Due Period as
a result of the application of the Relief Act, the amount by which (i) interest
collectible on such Mortgage Loan during such Due Period is less than (ii) one
month's interest on the Principal Balance of such Mortgage Loan at the Loan Rate
for such Mortgage Loan before giving effect to the application of the Relief
Act.
"REMIC": A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
"REMIC 1": The segregated pool of assets subject hereto (exclusive of
the Basis Risk Shortfall Reserve Fund and the Corridor Contracts) with respect
to which a REMIC election is to be made, conveyed in trust to the Trustee, for
the benefit of the Holders of the REMIC 1 Regular Interests and the Holders of
the Class R Certificates (as holders of the Class R-1 Interest), consisting of:
(i) each Mortgage Loan (exclusive of payments of principal and interest due on
or before the Cut-off Date, if any, received by the Master Servicer which shall
not constitute an asset of the Trust Fund) as from time to time are subject to
this Agreement and all payments under and proceeds of such Mortgage Loans
(exclusive of any prepayment fees and late payment charges received on the
Mortgage Loans), together with all documents included in the related Mortgage
File, subject to Section 2.01; (ii) such funds or assets as from time to time
are deposited in the Custodial Account or the Certificate Account and belonging
to the Trust Fund;
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(iii) any REO Property; (iv) the Primary Hazard Insurance Policies, if any, the
Primary Insurance Policies, if any, and all other Insurance Policies with
respect to the Mortgage Loans; and (v) the Company's interest in respect of the
representations and warranties made by the Seller in the Mortgage Loan Purchase
Agreement as assigned to the Trustee pursuant to Section 2.04 hereof. REMIC 1
specifically does not include the Basis Risk Shortfall Reserve Fund and the
Corridor Contracts.
"REMIC 1 Interest Loss Allocation Amount": With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Principal Balance of the mortgage loans and related REO Properties then
outstanding and (ii) the Uncertificated REMIC 1 Pass-Through Rate for REMIC 1
Regular Interest LT-AA minus the Marker Rate, divided by (b) 12.
"REMIC 1 Overcollateralized Amount": With respect to any date of
determination, (i) 1% of the aggregate Uncertificated Principal Balances of
REMIC 1 Regular Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular
Interest LT-A3A, REMIC 1 Regular Interest LT-A3B, REMIC 1 Regular Interest
LT-M1, REMIC 1 Regular Interest LT-M2, REMIC 1 Regular Interest LT-M3, REMIC 1
Regular Interest LT-M4, REMIC 1 Regular Interest LT-M5, REMIC 1 Regular Interest
LT-M6, REMIC 1 Regular Interest LT-M7, REMIC 1 Regular Interest LT-M8, REMIC 1
Regular Interest LT-ZZ and REMIC 1 Regular Interest LT-P, minus (ii) the
aggregate of the Uncertificated Principal Balances of REMIC 1 Regular Interest
LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular Interest LT-A3A, REMIC 1
Regular Interest LT-A3B, REMIC 1 Regular Interest LT-M1, REMIC 1 Regular
Interest LT-M2, REMIC 1 Regular Interest LT-M3, REMIC 1 Regular Interest LT-M4,
REMIC 1 Regular Interest LT-M5, REMIC 1 Regular Interest LT-M6, REMIC 1 Regular
Interest LT-M7, REMIC 1 Regular Interest LT-M8 and REMIC 1 Regular Interest
LT-P, in each case as of such date of determination.
"REMIC 1 Principal Loss Allocation Amount": With respect to any
Distribution Date and the mortgage loans, an amount equal to (a) the product of
(i) the aggregate Principal Balance of the mortgage loans and related REO
Properties then outstanding and (ii) 1 minus a fraction, the numerator of which
is two times the aggregate of the Uncertificated Principal Balances of REMIC 1
Regular Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular Interest
LT-A3A, REMIC 1 Regular Interest LT-A3B, REMIC 1 Regular Interest LT-M1, REMIC 1
Regular Interest LT-M2, REMIC 1 Regular Interest LT-M3, REMIC 1 Regular Interest
LT-M4, REMIC 1 Regular Interest LT-M5, REMIC 1 Regular Interest LT-M6, REMIC 1
Regular Interest LT-M7, REMIC 1 Regular Interest LT-M8 and the denominator of
which is the aggregate of the Uncertificated Principal Balances of REMIC 1
Regular Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular Interest
LT-A3A, REMIC 1 Regular Interest LT-A3B, REMIC 1 Regular Interest LT-M1, REMIC 1
Regular Interest LT-M2, REMIC 1 Regular Interest LT-M3, REMIC 1 Regular Interest
LT-M4, REMIC 1 Regular Interest LT-M5, REMIC 1 Regular Interest LT-M6, REMIC 1
Regular Interest LT-M7, REMIC 1 Regular Interest LT-M8 and REMIC 1 Regular
Interest LT-ZZ.
"REMIC 1 Overcollateralization Target Amount": 1% of the
Overcollateralization Target Amount.
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"REMIC 1 Regular Interest LT-AA": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-AA shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-A1": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
regular interest in REMIC 1. REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇-▇▇ shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-A2": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
regular interest in REMIC 1. REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇-▇▇ shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-A3A": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
regular interest in REMIC 1. REMIC 1 Regular ▇▇▇▇▇▇▇▇ ▇▇-▇▇▇ shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-A3B": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
regular interest in REMIC 1. REMIC 1 Regular Interest LT-A3B shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-M1": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-M1 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-M2": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-M2 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of
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principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Principal Balance as set forth in the
Preliminary Statement hereto.
"REMIC 1 Regular Interest LT-M3": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-M3 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-M4": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-M4 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-M5": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-M5 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-M6": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-M6 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-M7": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-M7 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-M8": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-M8 shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interest LT-P": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in
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REMIC 1. REMIC 1 Regular Interest LT-P shall accrue interest at the related
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to any amounts distributed to REMIC 1 Regular Interest LT-P
(including Prepayment Charges).
"REMIC 1 Regular Interest LT-ZZ": One of the separate non-certificated
beneficial ownership interests in REMIC 1 issued hereunder and designated as a
"regular interest" in REMIC 1. REMIC 1 Regular Interest LT-ZZ shall accrue
interest at the related Uncertificated REMIC 1 Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
"REMIC 1 Regular Interests": REMIC 1 Regular Interest LT-AA, REMIC 1
Regular Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular Interest
LT-A3A, REMIC 1 Regular Interest LT-A3B, REMIC 1 Regular Interest LT-M1, REMIC 1
Regular Interest LT-M2, REMIC 1 Regular Interest LT-M3, REMIC 1 Regular Interest
LT-M4, REMIC 1 Regular Interest LT-M5, REMIC 1 Regular Interest LT-M6, REMIC 1
Regular Interest LT-M7, REMIC 1 Regular Interest LT-M8, REMIC 1 Regular Interest
LT-ZZ and REMIC 1 Regular Interest LT-P.
"REMIC 2": The segregated pool of assets consisting of all of the REMIC
1 Regular Interests conveyed in trust to the Trustee, for the benefit of the
Holders of the Regular Certificates (other than the Class C Certificates and
Class P Certificates), the Holder of the Class C Interest, the Holder of the
Class P Interest and the Holders of the Class R Certificates (as holders of the
Class R-2 Interest), pursuant to Article II hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be made.
"REMIC 3": The segregated pool of assets consisting of all of the
Class C Interest conveyed in trust to the Trustee, for the benefit of the
Holders of the Class C Certificates and the Class R-X Certificate (in respect of
the Class R-3 Interest), pursuant to Article II hereunder, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
"REMIC 4": The segregated pool of assets consisting of all of the Class
P Interest conveyed in trust to the Trustee, for the benefit of the Holders of
the Class P Certificates and the Class R-X Certificate (in respect of the Class
R-4 Interest), pursuant to Article II hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be made.
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
"REMIC Regular Interest": A REMIC 1 Regular Interest or Regular
Certificate.
"Remittance Report": A report prepared by the Master Servicer (and
delivered to the Securities Administrator) providing the information set forth
in Exhibit E attached hereto.
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"REO Acquisition": The acquisition by the Servicer on behalf of the
Trust Fund for the benefit of the Certificateholders of any REO Property
pursuant to Section 3.15.
"REO Disposition": The receipt by the Servicer of Insurance Proceeds,
Liquidation Proceeds, Subsequent Recoveries and other payments and recoveries
(including proceeds of a final sale) which the Servicer expects to be finally
recoverable from the sale or other disposition of the REO Property.
"REO Imputed Interest": As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Rate that would have been
applicable to the related Mortgage Loan had it been outstanding) on the unpaid
principal balance of the Mortgage Loan as of the date of acquisition thereof (as
such balance is reduced pursuant to Section 3.15 by any income from the REO
Property treated as a recovery of principal).
"REO Proceeds": Proceeds, net of directly related expenses, received in
respect of any REO Property (including, without limitation, proceeds from the
rental of the related Mortgaged Property and of any REO Disposition), which
proceeds are required to be deposited into the Custodial Account as and when
received.
"REO Property": A Mortgaged Property acquired by the Servicer on behalf
of the Trust Fund through foreclosure or deed-in-lieu of foreclosure in
connection with a defaulted Mortgage Loan.
"Request for Release": A release signed by a Servicing Officer, in the
form of Exhibit F attached hereto.
"Residual Certificate": A Class R Certificate or Class R-X Certificate.
"Residual Interest": The sole class of "residual interests" in a REMIC
within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": When used with respect to the Trustee shall mean
any officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Agreement and also, with respect
to a particular matter, any other officer of the Trustee to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject. When used with respect to the Securities Administrator shall
mean any officer assigned with direct responsibility for the administration of
this Agreement and also, with respect to a particular matter, any other officer
of the Securities Administrator to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Securities Administrator": ▇▇▇▇▇ Fargo Bank, N.A., or its successor in
interest, or any successor securities administrator appointed as herein
provided.
"Seller": Opteum Financial Services, LLC, or its successor in interest.
"Senior Enhancement Percentage": For any Distribution Date, the
percentage obtained by dividing (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class M Certificates and (ii) the related
Overcollateralization Amount, in each case prior to the distribution of the
39
Principal Distribution Amount on such Distribution Date, by (y) the Aggregate
Stated Principal Balance of the Mortgage Loans after giving effect to
distributions to be made on that Distribution Date.
"Servicer": Opteum Financial Services, LLC, or its successor in
interest.
"Servicer Remittance Date": The 18th day of any month, or if such 18th
day is not a Business Day, the first Business Day immediately preceding such
18th day. The first Remittance Date shall occur on December 17, 2004.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in connection with a default, delinquency or
other unanticipated event in the performance by the Master Servicer, the
Servicer or any Subservicer of its servicing obligations, including, but not
limited to, the cost of (i) the preservation, restoration and protection of a
Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures, including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being registered on the MERS
System, (iii) the management and liquidation of any REO Property, including
reasonable fees paid to any independent contractor in connection therewith, and
(iv) compliance with the obligations under the second paragraph of Section 3.01,
Section 3.09 and Section 3.13 (other than any deductible described in the last
paragraph thereof).
"Servicing Agreements": The Cenlar Servicing Agreement and the Option
One Servicing Agreement, attached hereto as Exhibits M-1 and M-2, respectively.
"Servicing Fee": With respect to each Mortgage Loan, accrued interest
at the related Servicing Fee Rate with respect to the Mortgage Loan on the same
principal balance on which interest on the Mortgage Loan accrues for the
calendar month. The Servicing Fee consists of servicing and other related
compensation payable to the Servicer or to the Master Servicer if the Master
Servicer is directly servicing the loan, and includes any amount payable to any
Subservicer by the Servicer.
"Servicing Fee Rate": With respect to each mortgage loan, the servicing
fee rate set forth in the mortgage loan schedule. With respect to each fixed
rate mortgage loan, the Servicing Fee Rate ranges from 0.25% to 0.50% per annum.
With respect to each adjustable rate mortgage loan, the Servicing Fee Rate
ranges from 0.375% to 0.50% per annum; provided that, if any adjustable rate
mortgage loan has an initial fixed rate interest period, that rate will range
from 0.25% to 0.50% per annum during such initial period. The weighted average
Servicing Fee Rate for the fixed rate mortgage loans is 0.3034% per annum. The
weighted average Servicing Fee Rate for the adjustable rate mortgage loans is
0.3837% per annum; provided that, if any adjustable rate mortgage loan has an
initial fixed rate interest period, the weighted average Servicing Fee Rate
during such initial period will be 0.2675% per annum.
"Servicing Officer": Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans, whose
name and specimen signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer, as such list may from time to time be
amended.
40
"Single Certificate": A Regular Certificate of any Class (other than a
Class P Certificate) evidencing an Initial Certificate Principal Balance or
Initial Notional Amount, as applicable, of $1,000, or, in the case of a Class P
Certificate, a Certificate of such Class evidencing an Initial Certificate
Principal Balance of $100.
"Standard & Poor's": Standard & Poor's, a division of The McGraw Hill
Companies, Inc., or its successor in interest.
"Startup Day": The day designated as such pursuant to Article X hereof.
"Stated Principal Balance": With respect to any Mortgage Loan or
related REO Property at any given time, (i) the principal balance of the
Mortgage Loan outstanding as of the Cut-off Date, after application of principal
payments due on or before such date, whether or not received, minus (ii) the sum
of (a) the principal portion of the Monthly Payments due with respect to such
Mortgage Loan or REO Property during each Due Period ending prior to the most
recent Distribution Date which were received or with respect to which an Advance
was made, and (b) all Principal Prepayments with respect to such Mortgage Loan
or REO Property, and all Insurance Proceeds, Liquidation Proceeds, Subsequent
Recoveries and REO Proceeds to the extent applied by the Master Servicer as
recoveries of principal in accordance with Section 3.15 with respect to such
Mortgage Loan or REO Property, which were distributed pursuant to Section 4.01
on any previous Distribution Date, and (c) any Realized Loss with respect
thereto allocated pursuant to Section 4.07 for any previous Distribution Date.
"Step-Up Date": The first Distribution Date following the first
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans, and properties acquired in respect thereof, remaining in the
Trust Fund has been reduced to less than or equal to 10% of the Aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Stepdown Date": The earlier to occur of (i) the Distribution Date on
which the aggregate Certificate Principal Balance of the Class A Certificates
has been reduced to zero and (ii) the later to occur of (x) the Distribution
Date occurring in December 2007 and (y) the first Distribution Date for which
the Senior Enhancement Percentage is greater than or equal to 21.20%.
"Subservicer": Any Subservicer appointed by the Servicer pursuant to a
Servicing Agreement. Initially, the Subservicers shall be Cenlar and Option One.
"Subservicer Remittance Date": The 18th day of each month, or if such
day is not a Business Day, the immediately preceding Business Day.
"Subservicing Agreement": The written contract between the Servicer and
a Subservicer and any successor Subservicer relating to servicing and
administration of certain Mortgage Loans as provided in the Servicing
Agreements.
"Subsequent Recoveries": As of any Distribution Date, amounts received
by the Servicer or Master Servicer (net of any related expenses permitted to be
reimbursed pursuant to Section 4.02) or surplus amounts held by the Servicer or
Master Servicer to cover estimated expenses (including, but not limited to,
recoveries in respect of the representations and warranties made by
41
the Seller pursuant to the Mortgage Loan Purchase Agreement) specifically
related to a Mortgage Loan that was the subject of a liquidation or final
disposition of any REO Property prior to the related Prepayment Period that
resulted in a Realized Loss.
"Substitution Adjustment": As defined in Section 2.04 hereof.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC due to their classification as REMICs under
the REMIC Provisions, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the Internal Revenue Service or any other governmental taxing authority
under any applicable provisions of federal, state or local tax laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation or other form of assignment of any Ownership Interest in a
Certificate.
"Transferor": Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
"Trigger Event": A Trigger Event is in effect with respect to any
distribution date if:
(1) the three-month rolling average of the aggregate principal
balance of Mortgage Loans that are 60 or more days Delinquent (including for
this purpose any such Mortgage Loans in foreclosure and Mortgage Loans with
respect to which the related mortgaged property has been acquired by the trust)
as of the close of business on the last day of the preceding calendar month
equals or exceeds 33% of the Senior Enhancement Percentage; or
(2) in the case of any Distribution Date after the 36th
Distribution Date, the Cumulative amount of Realized Losses incurred on the
Mortgage Loans from the Cut-off Date through the end of the calendar month
immediately preceding such Distribution Date exceeds the applicable percentage
set forth below of the Aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date:
DISTRIBUTION DATE PERCENTAGE
----------------- ----------
December 2007 to November 2008 1.25%
December 2008 to November 2009 1.75%
December 2009 to November 2010 2.25%
December 2010 and thereafter 2.55%
"Trust Fund": REMIC 1, REMIC 2, REMIC 3, REMIC 4, the Corridor
Contracts, the Basis Risk Shortfall Reserve Fund, the Custodial Account and the
Certificate Account.
"Trust REMIC": Any of REMIC 1, REMIC 2, REMIC 3 or REMIC 4.
"Trustee": HSBC Bank USA, National Association, or its successor in
interest, or any successor trustee appointed as herein provided.
42
"Uncertificated Accrued Interest": With respect to each REMIC Regular
Interest on each Distribution Date, an amount equal to one month's interest at
the related Uncertificated Pass-Through Rate on the Uncertificated Principal
Balance or Uncertificated Notional Amount, as applicable, of such REMIC Regular
Interest. In each case, Uncertificated Accrued Interest will be reduced by any
Net Prepayment Interest Shortfalls and Relief Act Interest Shortfalls (allocated
to such REMIC Regular Interests as set forth in Section 1.03).
"Uncertificated Principal Balance": With respect to each REMIC 1
Regular Interest, the principal amount of such REMIC Regular Interest
outstanding as of any date of determination. As of the Closing Date, the
Uncertificated Principal Balance of each REMIC 1 Regular Interest shall equal
the amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each such REMIC 1 Regular Interest shall be reduced by all
distributions of principal made on such REMIC 1 Regular Interest on such
Distribution Date pursuant to Section 4.06 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.07. The Uncertificated Principal Balance of
REMIC 1 Regular Interest LT-ZZ shall be increased by interest deferrals as
provided in Section 4.06. The Uncertificated Principal Balance of each REMIC
Regular Interest shall never be less than zero.
"Uncertificated Pass-Through Rate": The Uncertificated REMIC 1
Pass-Through Rate.
"Uncertificated REMIC 1 Pass-Through Rate": With respect to each REMIC
1 Regular Interest and any Distribution Date, a per annum rate equal to the
average of the Net Mortgage Rates of the Mortgage Loans, weighted on the basis
of the Stated Principal Balances thereof as of the close of business on the last
day of the calendar month preceding the month in which such Distribution Date
occurs.
"Underwriter": Bear, ▇▇▇▇▇▇▇ & Co. Inc.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.13.
"United States Person": A citizen or resident of the United States, a
corporation or a partnership (including an entity treated as a corporation or
partnership for United States 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, for purposes solely of the restrictions on the
transfer of Class R 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 required by the applicable operative
agreement to be 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, a trust which was in
existence on
43
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.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, (i) 96% of all Voting Rights will be allocated among the
Holders of the Offered Certificates in proportion to the then outstanding
Certificate Principal Balances of their respective Certificates, (ii) 1% of all
Voting Rights will be allocated to the Holders of the Class C Certificates,
(iii) 1% of all Voting Rights will be allocated to the Holders of the Class P
Certificates, (iv) 1% of all Voting Rights will be allocated to the Holders of
the Class R Certificates and (v) 1% of all Voting Rights will be allocated to
the Holders of the Class R-X Certificates. The Voting Rights allocated to any
Class of Certificates shall be allocated among all Holders of the Certificates
of such Class in proportion to the outstanding Percentage Interests in such
Class represented thereby.
"Weighted Average Net Mortgage Rate": The weighted average of the Net
Mortgage Rates of the Mortgage Loans, weighted on the basis of the Stated
Principal Balances thereof as of the close of business on the first day of the
calendar month preceding the month in which such Distribution Date occurs.
Section 1.02. Determination of LIBOR.
LIBOR applicable to the calculation of the Pass-Through Rate on the
Offered Certificates for any Accrual Period will be determined on each Interest
Determination Date.
On each Interest Determination Date, LIBOR shall be established by the
Securities Administrator and, as to any 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 selected by the Securities Administrator), 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 Securities Administrator after
consultation with the Master Servicer and the Insurer) 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
Certificate Principal Balance of the Offered Certificates then outstanding. The
Securities Administrator 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 next multiple of 1/16%. 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
Securities
44
Administrator, 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 Certificate Principal Balance of
the Offered 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 Securities Administrator shall select an
alternative comparable index (over which the Securities Administrator 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 Securities Administrator on any
Interest Determination Date and the Trustee's subsequent calculation of the
Pass-Through Rate applicable to the Offered Certificates for the relevant
Accrual Period, in the absence of manifest error, will be final and binding.
The Securities Administrator will supply to any Certificateholder so
requesting by telephone the Pass-Through Rate on the Offered Certificates for
the current and the immediately preceding Accrual Period.
Section 1.03. Allocation of Certain Interest Shortfalls.
For purposes of calculating the amount of the Accrued Certificate
Interest for the Class A, Class M and Class C Certificates for any Distribution
Date, the aggregate amount of any Net Prepayment Interest Shortfalls and any
Relief Act Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to the Class C Certificates to the
extent of one month's interest at the then applicable Pass-Through Rate on the
Notional Amount of each such Certificate and, thereafter, among the Class A
Certificates and Class M Certificates on a pro rata basis based on, and to the
extent of, one month's interest at the then applicable respective Pass-Through
Rate on the respective Certificate Principal Balance of each such Certificate.
For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC 1 Regular Interests for any Distribution Date, the
aggregate amount of any Net Prepayment Interest Shortfalls and any Relief Act
Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated (i) with respect to the Mortgage Loans,
among REMIC 1 Regular Interest LT-AA, REMIC 1 Regular Interest LT-A1, REMIC 1
Regular Interest LT-A2, REMIC 1 Regular Interest LT-A3A, REMIC 1 Regular
Interest LT-A3B, REMIC 1 Regular Interest LT-M1, REMIC 1 Regular Interest LT-M2,
REMIC 1 Regular Interest LT-M3, REMIC 1 Regular Interest LT-M4, REMIC 1 Regular
Interest LT-M5, REMIC 1 Regular Interest LT-M6, REMIC 1 Regular Interest LT-M7,
REMIC 1 Regular Interest LT-M8 and REMIC 1 Regular Interest LT-ZZ, pro rata
based on, and to the extent of, one month's interest at the then applicable
respective Uncertificated REMIC 1 Pass-Through Rate on the respective
Uncertificated Principal Balance of each such REMIC 1 Regular Interest.
For purposes of calculating the amount of the Uncertificated Accrued
Certificate Interest for the Class C Interest for any Distribution Date, the
aggregate amount of any Net Prepayment
45
Interest Shortfalls and any Relief Act Interest Shortfalls allocated to the
Class C Certificates shall be allocated to the Class C Interest.
46
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
The Company, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign, transfer, sell, set over and
otherwise convey to the Trustee without recourse all the right, title and
interest of the Company in and to (1) the Mortgage Loans identified on the
Mortgage Loan Schedule (including any Prepayment Charges but exclusive of any
late payment charges received thereon), (2) the rights with respect to the
Servicing Agreements as assigned to the Trustee on behalf the Certificateholders
by the Assignment Agreement and (3) all other assets included or to be included
in the Trust Fund for the benefit of the Certificateholders. Such assignment
includes all principal and interest due and received by the Servicer on or with
respect to the Mortgage Loans (other than payment of principal and interest due
on or before the Cut-off Date).
In connection with such transfer and assignment, the Company has caused
the Seller to deliver to, and deposit with the Custodian as agent for the
Trustee, as described in the Mortgage Loan Purchase Agreement, with respect to
each Mortgage Loan, the following documents or instruments:
(i) the original Mortgage Note (including all riders
thereto) bearing all intervening endorsements necessary to show a
complete chain of endorsements from the original payee, endorsed "Pay
to the order of _____without recourse", via original signature, and, if
previously endorsed, signed in the name of the last endorsee by a duly
qualified officer of the last endorsee or, with respect to any Mortgage
Loan as to which the original Mortgage Note has been permanently lost
or destroyed and has not been replaced, a Lost Note Affidavit. If the
Mortgage Loan was acquired by the last endorsee in a merger, the
endorsement must be by "[name of last endorsee], successor by merger to
[name of the predecessor]." If the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another
name, the endorsement must be by "[name of last endorsee], formerly
known as [previous name]." Within 45 days after the Closing Date, the
Custodian shall endorse the Mortgage Note in the name of "HSBC Bank
USA, National Association, as trustee under the Pooling and Servicing
Agreement relating to Homestar Mortgage Acceptance Corp., Asset-Backed
Pass-Through Certificates, Series 2004-6" for each Mortgage Note;
(ii) The original recorded Mortgage, noting the presence
of the MIN of the Mortgage Loan and either language indicating that the
Mortgage Loan is a MOM loan or if the Mortgage Loan was not a MOM loan
at origination, the original Mortgage and the assignment thereof to
MERS, with evidence of recording indicated thereon; provided that if
such document is not included because of a delay by the public
recording office where such document has been delivered for recordation
or such office as a matter of policy does not return the original of
such document or if such original Mortgage has been lost,
47
the Seller shall include or cause to be included a copy thereof
certified by the appropriate recording office, if available;
(iii) the original Assignment of Mortgage in blank, in form
and substance acceptable for recordation in the jurisdiction in which
the related mortgage property is located and signed in the name of the
Last Endorsee by an authorized officer; unless the Mortgage Loan is
registered on the MERS system;
(iv) The original intervening Assignments, if any, with
evidence of recording thereon, showing an unbroken chain of title to
the Mortgage from the originator thereof to Person assigning it to the
Trustee (or to MERS, if the Mortgage Loan is registered on the MERS(R)
System); provided that if such document is not included because of a
delay by the public recording office where such document has been
delivered for recordation or such office as a matter of policy does not
return the original of such document, the Seller shall include or cause
to be included a copy thereof certified by the appropriate recording
office, if available;
(v) The originals of each assumption, modification or
substitution agreement, if any, relating to the Mortgage Loan; and
(vi) the original title insurance policy, or, if such
policy has not been issued, any one of an original or a copy of the
preliminary title report, title binder or title commitment on the
Mortgaged Property with the original policy of the insurance to be
delivered promptly following the receipt thereof.
Within 30 days after the Closing Date, the Company shall complete or
cause to be completed the Assignments of Mortgage in the name of "HSBC Bank USA,
National Association, as trustee under the Pooling and Servicing Agreement
relating to Homestar Mortgage Acceptance Corp., Asset-Backed Pass-Through
Certificates, Series 2004-6" (or shall prepare or cause to be prepared new forms
of Assignment of Mortgage so completed in the name of the Trustee) for each
Mortgage Property in a state, if any, which is specifically excluded from the
Opinion of Counsel delivered by the Company to the Trustee, the Custodian and
the Insurer, each such assignment shall be recorded in the appropriate public
office for real property records, and returned to the Custodian, at no expense
to the Custodian.
The Seller is obligated as described in the Mortgage Loan Purchase
Agreement, with respect to the Mortgage Loans, to deliver to the Custodian as
agent for the Trustee: (a) either the original recorded Mortgage, or in the
event such original cannot be delivered by the Seller, a copy of such Mortgage
certified as true and complete by the appropriate recording office, in those
instances where a copy thereof certified by the Seller was delivered to the
Custodian as agent for the Trustee pursuant to clause (ii) above; and (b) either
the original Assignment or Assignments of the Mortgage, with evidence of
recording thereon, showing an unbroken chain of assignment from the originator
to the Seller, or in the event such original cannot be delivered by the Seller,
a copy of such Assignment or Assignments certified as true and complete by the
appropriate recording office, in those instances where copies thereof certified
by the Seller were delivered to the Custodian as agent for the Trustee pursuant
to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement,
the Seller need not cause to be recorded
48
any assignment in any jurisdiction under the laws of which, as evidenced by an
Opinion of Counsel delivered by the Seller to the Trustee, the Custodian, the
Insurer and the Rating Agencies, the recordation of such assignment is not
necessary to protect the Trustee's interest in the related Mortgage Loan;
PROVIDED, HOWEVER, notwithstanding the delivery of any Opinion of Counsel, each
assignment shall be submitted for recording by the Seller in the manner
described above, at no expense to the Trust or the Trustee, upon the earliest to
occur of: (i) reasonable direction by the Holders of Certificates evidencing at
least 25% of the Voting Rights, (ii) the occurrence of an Event of Default,
(iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the
Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02
hereof and (v) if the Seller is not the Master Servicer and with respect to any
one assignment, the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Mortgagor under the related Mortgage.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains the original
Mortgage after it has been recorded, the Seller shall be deemed to have
satisfied its obligations hereunder upon delivery to the Custodian as agent for
the Trustee of a copy of such Mortgage certified by the public recording office
to be a true and complete copy of the recorded original thereof.
If any Assignment is lost or returned unrecorded to the Custodian as
agent for the Trustee because of any defect therein, the Seller is required, as
described in the Mortgage Loan Purchase Agreement, to prepare a substitute
Assignment or cure such defect, as the case may be, and the Seller shall cause
such Assignment to be recorded in accordance with this section.
The Seller is required as described in the Mortgage Loan Purchase
Agreement, with respect to the Mortgage Loans, to exercise its best reasonable
efforts to deliver or cause to be delivered to the Custodian as agent for the
Trustee within 120 days of the Closing Date, with respect to the Mortgage Loans,
the original or a photocopy of the title insurance policy with respect to each
such Mortgage Loan assigned to the Trustee pursuant to this Section 2.01.
In connection with the assignment of any Mortgage Loan registered on
the MERS(R) System, the Seller further agrees that it will cause, at the
Seller's own expense, as of the Closing Date, the MERS(R) System to indicate
that such Mortgage Loans have been assigned by the Seller 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 Company further agrees that it will not, and will not permit
the Servicer to alter the codes referenced in this paragraph with respect to any
Mortgage Loan during the term of this Agreement unless and until such Mortgage
Loan is repurchased in accordance with the terms of this Agreement.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian as agent for the Trustee are and shall be held by the
Seller in trust for the benefit of the Trustee on behalf of the
Certificateholders.
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Except as may otherwise expressly be provided herein, none of the
Company, the Custodian, the Master Servicer, or the Trustee shall (and the
Master Servicer shall ensure that no Servicer shall) assign, sell, dispose of or
transfer any interest in the Trust Fund or any portion thereof, or cause the
Trust Fund or any portion thereof to be subject to any lien, claim, mortgage,
security interest, pledge or other encumbrance.
It is intended that the conveyance of the Mortgage Loans by the Company
to the Trustee as provided in this Section be, and be construed as, a sale of
the Mortgage Loans as provided for in this Section 2.01 by the Company to the
Trustee for the benefit of the Certificateholders. It is, further, not intended
that such conveyance be deemed a pledge of the Mortgage Loans by the Company to
the Trustee to secure a debt or other obligation of the Company. However, in the
event that the Mortgage Loans are held to be property of the Company, or if for
any reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans, then it is intended that, (a) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
New York Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; (b) the conveyance provided for in this Section shall
be deemed to be (1) a grant by the Company to the Trustee of a security interest
in all of the Company's right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to (A) the
Mortgage Loans, including the Mortgage Notes, the Mortgages, any related
Insurance Policies and all other documents in the related Mortgage Files, (B)
all amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and (C) 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
Certificate Account or the Custodial Account, whether in the form of cash,
instruments, securities or other property and (2) an assignment by the Company
to the Trustee of any security interest in any and all of the Seller's right
(including the power to convey title thereto), title and interest, whether now
owned or hereafter acquired, in and to the property described in the foregoing
clauses (1)(A) through (C); (c) the possession by the Custodian as agent for the
Trustee or any other agent of 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" or possession by a
purchaser or a person designated by such secured party, for purposes of
perfecting the security interest pursuant to the New York Uniform Commercial
Code and the Uniform Commercial Code of any other applicable jurisdiction
(including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and
8-503 thereof); and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose of perfecting such security interest under applicable law. The
Company and the Trustee shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the REMIC 1
Regular Interests, 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 Agreement.
50
Section 2.02. Acceptance of the Trust Fund by the Trustee.
The Trustee acknowledges receipt (subject to any exceptions noted in
the Initial Certification described below), of the documents referred to in
Section 2.01 above and all other assets included in the definition of "Trust
Fund" and declares that it (or the Custodian on its behalf) holds and will hold
such documents and the other documents delivered to Custodian as agent for the
Trustee constituting the Mortgage Files, and that it holds or will hold such
other assets included in the definition of "Trust Fund" (to the extent delivered
or assigned to the Custodian as agent for the Trustee), in trust for the
exclusive use and benefit of all present and future Certificateholders.
The Trustee agrees that, for the benefit of the Certificateholders, the
Custodian as agent for the Trustee will review each Mortgage File on or before
the Closing Date to ascertain that all documents required to be delivered to it
are in its possession, and the Custodian as agent for the Trustee agrees to
execute and deliver, or cause to be executed and delivered, to the Company on
the Closing Date, with respect to each Mortgage Loan, an Initial Certification
in the form annexed hereto as Exhibit C to the effect that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan specifically identified in such certification as not
covered by such certification), (i) all documents required to be delivered to it
pursuant to this Agreement with respect to such Mortgage Loan are in its
possession, and (ii) such documents have been reviewed by it and appear regular
on their face and relate to such Mortgage Loan. Neither the Custodian, the
Trustee or the Master Servicer shall be under any duty to determine whether any
Mortgage File should include any of the documents specified in clauses (v) or
(vi) of Section 2.01. Neither the Custodian, the Trustee or the Master Servicer
shall be under any 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 they are in recordable form or that they are
other than what they purport to be on their face.
Within 180 days of the Closing Date, with respect to the Mortgage
Loans, the Custodian as agent for the Trustee shall deliver to the Company a
Final Certification in the form annexed hereto as Exhibit D evidencing the
completeness of the Mortgage Files, with any applicable exceptions noted
thereon.
If in the process of reviewing the Mortgage Files and preparing the
certifications referred to above the Custodian as agent for the Trustee or the
Master Servicer finds any document or documents constituting a part of a
Mortgage File to be missing or defective in any material respect, the Custodian
as agent for the Trustee shall promptly notify the Trustee, the Seller and the
Company. The Custodian as agent for the Trustee shall promptly notify the Seller
and the Securities Administrator of such defect and request that the Seller cure
any such defect within 60 days from the date on which the Seller was notified of
such defect, and if the Seller does not cure such defect in all material
respects during such period, request on behalf of the Certificateholders that
the Seller purchase such Mortgage Loan from the Trust Fund at the Purchase Price
within 90 days after the date on which the Seller was notified of such defect;
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. It is understood and agreed that the obligation of the Seller to
cure
51
a material defect in, or purchase any Mortgage Loan as to which a material
defect in a constituent document exists shall constitute the sole remedy
respecting such defect available to Certificateholders or the Trustee on behalf
of Certificateholders. The Purchase Price for the purchased Mortgage Loan shall
be deposited or caused to be deposited upon receipt by the Master Servicer in
the Custodial Account and, upon receipt by the Custodian as agent for the
Trustee and the Securities Administrator of written notification of such deposit
signed by a Servicing Officer, the Custodian as agent for the Trustee shall
release or cause to be released to the Seller the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as the Seller shall require as necessary to vest in the
Seller ownership of any Mortgage Loan released pursuant hereto and at such time
the Custodian as agent for the Trustee shall have no further responsibility with
respect to the related Mortgage File. In furtherance of the foregoing, if the
Seller is not a member of MERS and the Mortgage is registered on the MERS(R)
System, the Trustee, at the Seller's expense, shall cause MERS to execute and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS(R) System in accordance with MERS' rules and
regulations.
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer and the Company.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Company for the benefit of Certificateholders and the Trustee
that:
(i) The Master Servicer is, and throughout the term
hereof shall remain, a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation, the
Master Servicer is, and shall remain, in compliance with the laws of
each state in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement, and the
Master Servicer or an affiliate is, and shall remain, approved to
service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac;
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms of
this Agreement by the Master Servicer, will not violate the Master
Servicer's articles of incorporation or bylaws or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Master Servicer has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution
and delivery by the Company and the Trustee, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general
52
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) The Master Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation is likely to
affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer;
(vi) No litigation is pending (other than litigation with
respect to which pleadings or documents have been filed with a court,
but not served on the Master Servicer) or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement or is likely to affect materially and
adversely either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the
Master Servicer;
(vii) The Master Servicer will comply in all material
respects in the performance of this Agreement with all reasonable rules
and requirements of each insurer under each Insurance Policy;
(viii) The execution of this Agreement and the performance
of the Master Servicer's obligations hereunder do not require any
license, consent or approval of any state or federal court, agency,
regulatory authority or other governmental body having jurisdiction
over the Master Servicer, other than such as have been obtained; and
(ix) No information, certificate of an officer, statement
furnished in writing or report delivered to the Company, any affiliate
of the Company or the Trustee by the Master Servicer in its capacity as
Master Servicer, will, to the knowledge of the Master Servicer, contain
any untrue statement of a material fact.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.03(a) shall survive the execution and
delivery of this Agreement, and shall inure to the benefit of the Company, the
Trustee and the Certificateholders. Upon discovery by any of the Company, the
Trustee, the Securities Administrator or the Master Servicer of a breach of any
of the foregoing representations, warranties and covenants that materially and
adversely affects the interests of the Company or the Trustee or the value of
any Mortgage Loan or Prepayment Charge, the party discovering such breach shall
give prompt written notice to the other parties.
(b) The Company hereby represents and warrants to the Master
Servicer, the Securities Administrator and the Trustee for the benefit of
Certificateholders that as of the Closing Date
(i) the Company (a) is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and (b) is qualified and in good
53
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 Company's business as presently conducted or on the
Company's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(ii) the Company has full corporate power to own its
property, to carry on its business as presently conducted and to enter
into and perform its obligations under this Agreement;
(iii) the execution and delivery by the Company of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Company; 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 Company or its properties or the
articles of incorporation or by-laws of the Company, except those
conflicts, breaches or defaults which would not reasonably be expected
to have a material adverse effect on the Company's ability to enter
into this Agreement and to consummate the transactions contemplated
hereby;
(iv) the execution, delivery and performance by the
Company 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;
(v) this Agreement has been duly executed and delivered
by the Company and, assuming due authorization, execution and delivery
by the other parties hereto, constitutes a valid and binding obligation
of the Company enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending
or, to the knowledge of the Company, threatened against the Company,
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 Company will be determined adversely to
the Company and will if determined adversely to the Company materially
and adversely affect the Company's ability to enter into this Agreement
or perform its obligations under this Agreement; and the Company 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
(vii) 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
54
Company 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.
Upon discovery by either the Company, the Master Servicer, the
Securities Administrator, the Custodian or the Trustee of a breach of any
representation or warranty set forth in this Section 2.03 which materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the party discovering such breach shall give prompt written notice to the other
parties.
Section 2.04. Assignment of Interest in the Mortgage Loan Purchase
Agreement.
The Company hereby assigns to the Trustee for the benefit of
Certificateholders all of its rights (but none of its obligations) in, to and
under the Mortgage Loan Purchase Agreement. Insofar as the Mortgage Loan
Purchase Agreement relates to such representations and warranties and any
remedies provided thereunder for any breach of such representations and
warranties, such right, title and interest may be enforced by the Trustee on
behalf of the Certificateholders. Upon the discovery by the Company, the Master
Servicer, the Securities Administrator or the Trustee of a breach of any of the
representations and warranties made in the Mortgage Loan Purchase Agreement in
respect of any Mortgage Loan which materially and adversely affects the value of
a Mortgage Loan or the interests of the Certificateholders in such Mortgage
Loan, the party discovering such breach shall give prompt written notice to the
other parties. The Trustee shall promptly notify the Seller of such breach and
request that the Seller shall, within 90 days from the date that the Seller was
notified or otherwise obtained knowledge of such breach, either (i) cure such
breach in all material respects or (ii) purchase such Mortgage Loan from the
Trust Fund at the Purchase Price and in the manner set forth in Section 2.02;
provided that if such 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 repurchase must occur within 90 days from the date such breach was
discovered. However, in the case of a breach under the Mortgage Loan Purchase
Agreement, subject to the approval of the Company the Seller shall have the
option to substitute a Qualified Substitute Mortgage Loan or Loans for such
Mortgage Loan if such substitution occurs within two years following the Closing
Date, except 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
substitution must occur within 90 days from the date the breach was discovered
if such 90 day period expires before two years following the Closing Date. In
the event that the Seller elects to substitute a Qualified Substitute Mortgage
Loan or Loans for a Deleted Mortgage Loan pursuant to this Section 2.04, the
Trustee shall enforce the obligation of the Seller under the Mortgage Loan
Purchase Agreement to deliver to the Custodian as agent for the Trustee and the
Master Servicer, as appropriate, with respect to such Qualified Substitute
Mortgage Loan or Loans, the original Mortgage Note, the Mortgage, an Assignment
of the Mortgage in recordable form, and such other documents and agreements as
are required by Section 2.01, with the Mortgage Note endorsed as required by
Section 2.01. No substitution will be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution, to the extent
received by the Master Servicer or any Subservicer, shall not be part of the
Trust Fund and will be retained by the Master Servicer and remitted by the
Master Servicer to the Seller on the next succeeding Distribution Date. For the
month of substitution,
55
distributions to Certificateholders will include the Monthly Payment due on a
Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled
to retain all amounts received in respect of such Deleted Mortgage Loan. The
Company shall amend or cause to be amended the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Qualified Substitute Mortgage Loan or
Loans and the Company shall deliver the amended Mortgage Loan Schedule to the
Custodian as agent for the Trustee. Upon such substitution, the Qualified
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, the Seller shall be deemed to have made the
representations and warranties with respect to the Qualified Substitute Mortgage
Loan contained in the Mortgage Loan Purchase Agreement as of the date of
substitution, and the Company shall be deemed to have made with respect to any
Qualified Substitute Mortgage Loan or Loans, as of the date of substitution, the
representations and warranties set forth in the Mortgage Loan Purchase Agreement
(other than any statistical representations set forth therein).
In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (the "Substitution Adjustment"), if any, by which the
aggregate principal balance of all such Qualified Substitute Mortgage Loans as
of the date of substitution is less than the Aggregate Stated Principal Balance
of all such Deleted Mortgage Loans (in each case after application of the
principal portion of the Monthly Payments due in the month of substitution that
are to be distributed to Certificateholders in the month of substitution). The
Trustee shall enforce the obligation of the Seller under the Mortgage Loan
Purchase Agreement to provide the Master Servicer on the day of substitution for
immediate deposit into the Custodial Account the amount of such shortfall,
without any reimbursement therefor. In accordance with the Mortgage Loan
Purchase Agreement, the Seller shall give notice in writing to the Trustee and
the Custodian of such event, which notice shall be accompanied by an Officers'
Certificate as to the calculation of such shortfall and by an Opinion of Counsel
to the effect that such substitution will not cause (a) any federal tax to be
imposed on any Trust REMIC, including without limitation, any federal tax
imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860G(d)(1) of the Code or
(b) any portion of any Trust REMIC to fail to qualify as a REMIC at any time
that any Certificate is outstanding. The costs of any substitution as described
above, including any related assignments, opinions or other documentation in
connection therewith shall be borne by the Seller.
Except as expressly set forth herein none of the Trustee, the
Custodian, the Securities Administrator or the Master Servicer is under any
obligation to discover any breach of the above-mentioned representations and
warranties. It is understood and agreed that the obligation of the Seller to
cure such breach, purchase or to substitute for such Mortgage Loan as to which
such a breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to Certificateholders or the Trustee on behalf
of Certificateholders. Notwithstanding the foregoing, within 90 days of the
earlier of discovery by the Seller or receipt of notice by the Seller of the
breach of the representation or covenant of the Seller set forth in Section
3.1(b)(xxxvi) of the Mortgage Loan Purchase Agreement which materially and
adversely affects the interests of the Holders of the Class P Certificates in
any Prepayment Charge or if the Prepayment Charge is unenforceable due to
subsequent changes in law, the Seller shall remedy such breach as set forth in
Section 3.1(b) of the Mortgage Loan Purchase Agreement.
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Section 2.05. Issuance of Certificates; Conveyance of REMIC Regular Interests
and Acceptance of REMIC 1, REMIC 2, REMIC 3 and REMIC 4 by the Trustee.
(a) The Trustee acknowledges the assignment to it of the Mortgage
Loans and the delivery to the Custodian as agent for the Trustee of the Mortgage
Files, subject to the provisions of Sections 2.01 and 2.02, together with the
assignment to it of all other assets included in the Trust Fund, receipt of
which is hereby acknowledged. Concurrently with such assignment and delivery and
in exchange therefor, the Trustee, pursuant to the written request of the
Company executed by an officer of the Company, has executed, authenticated and
delivered to or upon the order of the Company, the Certificates in authorized
denominations. The interests evidenced by the Certificates, constitute the
entire beneficial ownership interest in the Trust Fund.
(b) The Company, 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 Company in
and to REMIC 1 for the benefit of the Holders of the REMIC 1 Regular Interests
and Holders of the Class R Certificates (as Holders of the Class R-1 Interest).
The Trustee acknowledges receipt of the REMIC 1 Regular Interests (which are
uncertificated) and declares that it holds and will hold the same in trust for
the exclusive use and benefit of the Holders of the REMIC 1 Regular Interests
and Holders of the Class R Certificates (as Holders of the Class R-1 Interest).
The interests evidenced by the Class R-1 Interest, together with the REMIC 1
Regular Interests, constitute the entire beneficial ownership interest in REMIC
1.
(c) The Company, 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 Company in
and to the REMIC 1 Regular Interests (which are uncertificated) for the benefit
of the Holders of the Regular Certificates (other than the Class C Certificates
and Class P Certificates) and the Holder of the Class C Interest, the Holder of
the Class P Interest and the Class R Certificates (in respect of the Class R-2
Interest). The Trustee acknowledges receipt of the REMIC 1 Regular Interests 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 (other than the Class C
Certificates and Class P Certificates) and the Holder of the Class C Interest,
the Holder of the Class P Interest and the Class R Certificates (in respect of
the Class R-2 Interest). The interests evidenced by the Class R-2 Interest,
together with the Regular Certificates (other than the Class C Certificates and
Class P Certificates) and the Holder of the Class C Interest, the Holder of the
the Class P Interest, constitute the entire beneficial ownership interest in
REMIC 2.
(d) The Company, 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 Company in
and to the Class C Interest (which is uncertificated) for the benefit of the
Holders of the Class C Certificates and the Class R-X Certificates (in respect
of the Class R-3 Interest). The Trustee acknowledges receipt of the Class C
Interest and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the Holders of the Class C Certificates and the
Class R-X Certificates (in respect of the Class R-3 Interest). The interests
evidenced by the Class R-3 Interest, together with the Class C Certificates,
constitute the entire beneficial ownership interest in REMIC 3.
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(e) The Company, 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 Company in
and to the Class P Interest (which is uncertificated) for the benefit of the
Holders of the Class P Certificates and the Class R-X Certificates (in respect
of the Class R-4 Interest). The Trustee acknowledges receipt of the Class P
Interest and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the Holders of the Class P Certificates and the
Class R-X Certificates (in respect of the Class R-4 Interest). The interests
evidenced by the Class R-4 Interest, together with the Class P Certificates,
constitute the entire beneficial ownership interest in REMIC 4.
(f) Concurrently with (i) the assignment and delivery to the
Trustee of REMIC 1 and the acceptance by the Trustee thereof, pursuant to
Section 2.01, Section 2.02 and subsection (b), (ii) the assignment and delivery
to the Trustee of REMIC 2 (including the Residual Interest therein represented
by the Class R-2 Interest) and the acceptance by the Trustee thereof, pursuant
to subsection (c), (iii) the assignment and delivery to the Trustee of REMIC 3
(including the Residual Interest therein represented by the Class R-3 Interest)
and the acceptance by the Trustee thereof, pursuant to subsection (d) and (iv)
the assignment and delivery to the Trustee of REMIC 4 (including the Residual
Interest therein represented by the Class R-4 Interest) and the acceptance by
the Trustee thereof, pursuant to subsection (e), the Trustee, pursuant to the
written request of the Company executed by an officer of the Company, has
executed, authenticated and delivered to or upon the order of the Company, (A)
the Class R Certificates in authorized denominations evidencing the Class R-1
Interest and the Class R-2 Interest and (B) the Class R-X Certificates in
authorized denominations evidencing the Class R-3 Interest and the Class R-4
Interest.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01. Administration and Servicing of Mortgage Loans.
(a) The Master Servicer shall supervise, monitor and oversee the
obligation of the Servicer to service and administer the Mortgage Loans in
accordance with the terms of the related Servicing Agreement and shall have full
power and authority to do any and all things which it may deem necessary or
desirable in connection with such master servicing and administration. In
performing its obligations hereunder, the Master Servicer shall act in a manner
consistent with Accepted Master Servicing Practices. Furthermore, the Master
Servicer shall oversee and consult with the Servicer as necessary from
time-to-time to carry out the Master Servicer's obligations hereunder, shall
receive, review and evaluate all reports, information and other data provided to
the Master Servicer by the Servicer and shall cause the Servicer to perform and
observe the covenants, obligations and conditions to be performed or observed by
the Servicer under the applicable Servicing Agreement. The Master Servicer shall
independently and separately monitor the Servicer's servicing activities with
respect to each related 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 Servicer's and Master Servicer's
records, and based on such reconciled and corrected information, the Master
Servicer shall provide such information to the Securities Administrator as shall
be necessary in order for it to prepare the statements specified in Section
4.03, and prepare any other information and statements required to be forwarded
by the Master Servicer hereunder. The Master Servicer shall reconcile the
results of its Mortgage Loan monitoring with the actual remittances of the
Servicer to the Custodial Account pursuant to the applicable Servicing
Agreement.
The Trustee shall furnish the Servicer and the Master Servicer with any
powers of attorney and other documents in form as provided to it necessary or
appropriate to enable the Servicer and the Master Servicer to service and
administer the related Mortgage Loans and REO Property.
The Trustee shall provide access to the records and documentation in
possession of the Trustee regarding the related Mortgage Loans and REO Property
and the servicing thereof to the 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 and deliver to the Servicer and the Master
Servicer any court pleadings, requests for trustee's sale or other 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
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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.
(b) Consistent with the terms of this Agreement, the Master
Servicer 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 such waiver, modification, postponement or
indulgence is in conformity with the Accepted Servicing Practices; provided,
however, that:
(A) the Master Servicer shall not make future advances (except as
provided in Section 4.03);
(B) the Master Servicer shall not permit any modification with
respect to any Mortgage Loan that would change the Mortgage Rate, defer or
forgive the payment of any principal or interest payments, reduce the
outstanding Stated Principal Balance (except for reductions resulting from
actual payments of principal) or extend the final maturity date on such Mortgage
Loan (unless (i) the Mortgagor is in default with respect to the Mortgage Loan
or (ii) such default is, in the judgment of the Master Servicer, reasonably
foreseeable); and
(C) the Master Servicer shall not consent to (i) partial releases
of Mortgages, (ii) alterations, (iii) removal, demolition or division of
properties subject to Mortgages, (iv) modification or (v) second mortgage
subordination agreements with respect to any Mortgage Loan that would: (i)
affect adversely the status of any REMIC as a REMIC,(ii) cause any REMIC to be
subject to a tax on "prohibited transactions" or "contributions" pursuant to the
REMIC Provisions, or (iii) both (x) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or Treasury regulations
promulgated thereunder) and (y) cause any REMIC constituting part of the Trust
Fund to fail to qualify as a REMIC under the Code or the imposition of any tax
on "prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions.
The provisions of this Section 3.01(b) shall apply to the exercise of such
waiver, modification, postponement or indulgence rights by the Master Servicer
in its capacity as such and shall not apply to the exercise of any similar
rights by the Servicer, who shall instead by subject to the provisions of the
Servicing Agreement. Such waiver, modification, postponement and indulgence
rights of the Master Servicer set forth in this Section shall not be construed
as a duty.
(c) The Master Servicer shall enforce the obligation of the
Servicer under the Servicing Agreements in connection with the waiver of
Prepayment Charges in accordance with the criteria therein and to pay the amount
of any waived Prepayment Charges.
Section 3.02. REMIC-Related Covenants.
For as long as each REMIC shall exist, the Trustee, the Master Servicer
and the Securities Administrator shall act in accordance herewith to assure
continuing treatment of such REMIC as a REMIC, and the Trustee, the Master
Servicer and the Securities Administrator shall comply with any directions of
the Company, the Servicer or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit the sale of
all or any
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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; and (b) other than with
respect to a substitution pursuant to the Mortgage Loan Purchase Agreement or
Section 2.04 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.
Section 3.03. Monitoring of Servicer.
(a) The Master Servicer shall be responsible for reporting to the
Trustee and the Company the compliance by the Servicer with its duties under the
related Servicing Agreement. In the review of the Servicer's activities, the
Master Servicer may rely upon an officer's certificate of the Servicer (or
similar document signed by an officer of the Servicer) with regard to the
Servicer's compliance with the terms of its Servicing Agreement. In the event
that the Master Servicer, in its judgment, determines that the Servicer 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 Company and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of the Servicer under the
related Servicing Agreement, and shall, in the event that the Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of the
Servicer thereunder and act as servicer of the related Mortgage Loans or to
cause the Trustee to enter in to 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. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of 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, in its good faith
business judgment, would require were it the owner of the related Mortgage
Loans. The Master Servicer shall pay the costs of such enforcement at its own
expense, provided that the Master Servicer shall not be required to prosecute or
defend any legal action except to the extent that the Master Servicer shall have
received reasonable indemnity for its costs and expenses in pursuing such
action.
(c) To the extent that the costs and expenses of the Master
Servicer related to any termination of the Servicer, appointment of a successor
Servicer or the transfer and assumption of servicing by the Master Servicer with
respect to 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 the Servicer and (ii) all costs and expenses associated with the
complete transfer of servicing, including all servicing files and all servicing
data and the completion, correction or manipulation of such servicing data as
may be required by the successor servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
service to service the
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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 Custodial Account.
(d) The Master Servicer shall require the Servicer to comply with
the remittance requirements and other obligations set forth in the related
Servicing Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume
liability for the representations and warranties of the Servicer, if any, that
it replaces.
Section 3.04. Fidelity Bond.
The Master Servicer, at its expense, shall maintain in effect a blanket
fidelity bond and an errors and omissions insurance policy, affording coverage
with respect to all directors, officers, employees and other Persons acting on
such Master Servicer's behalf, and covering errors and omissions in the
performance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.05. Power to Act; Procedures.
The Master Servicer shall master service the Mortgage Loans and shall
have full power and authority, 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 Certificateholders 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 permit the 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, would 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 the Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property, and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with the applicable
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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 the 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 8.10 hereof. In the performance of its duties hereunder, the
Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Trustee, be deemed
to be the agent of the Trustee.
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 Servicer 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 the 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 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 F
hereto signed by an officer of the Servicer or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate from
a Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the Servicer pursuant to
Section 3.16 or by the Servicer pursuant to its Servicing Agreement have been or
will be so deposited) and shall request that the Custodian, on behalf of the
Trustee, deliver to the 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 Servicer and the Trustee and
Custodian shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, the Servicer is authorized, to give, as
agent for the Trustee, as the mortgagee under the Mortgage that secured the
Mortgage Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of such
payment, it being understood and agreed that no expenses incurred in connection
with such instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Protected Account.
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(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, the Trustee shall execute such documents as shall be prepared and
furnished to the Trustee by the 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 the 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 F (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, as applicable.
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 the 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 the Servicer from time to time as are required by the
terms hereof, or in the case of the Servicer, the applicable Servicing
Agreement, to be delivered to the Trustee or Custodian. Any funds received by
the Master Servicer or by the Servicer in respect of any Mortgage Loan or which
otherwise are collected by the Master Servicer or by the Servicer as Liquidation
Proceeds, 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 Master Servicer's right to retain or withdraw from the Custodial
Account the Master Servicing Compensation and other amounts provided in this
Agreement, and to the right of the Servicer to retain its Servicing Fee and
other amounts as provided in the applicable Servicing Agreement. The Master
Servicer shall, and (to the extent provided in the applicable Servicing
Agreement) shall cause the Servicer to, 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, and 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
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and shall be and remain the sole and exclusive property of the Trustee;
provided, however, that the Master Servicer and the Servicer shall be entitled
to setoff against, and deduct from, any such funds any amounts that are properly
due and payable to the Master Servicer or the Servicer under this Agreement or
the 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 Servicer 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 3.16 and 3.17, any amounts collected by
the Servicer or the Master Servicer, or by the 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
Custodial Account, subject to withdrawal pursuant to Section 3.17 and 3.18. Any
cost incurred by the Master Servicer or the Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or the
Servicer pursuant to Section 3.17 and 3.18.
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 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 the Servicer and remitted to the Master Servicer) in respect of such
policies, bonds or contracts shall be promptly deposited in the Custodial
Account upon receipt, except that any amounts realized that are to be applied to
the repair or restoration of the related Mortgaged Property as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable Insurance Policy need not be so deposited (or
remitted).
Section 3.11. Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit the Servicer (to
the extent such action is prohibited under the applicable Servicing Agreement)
to take, any action that would result in noncoverage under any applicable
Primary Mortgage Insurance Policy of any loss
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which, but for the actions of the Master Servicer or the Servicer, would have
been covered thereunder. The Master Servicer shall use its best reasonable
efforts to cause the Servicer (to the extent required under the related
Servicing Agreement) to keep in force and effect (to the extent that the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
The Master Servicer shall not, and shall not permit the 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 the
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 3.16 and 3.17, any amounts collected by the Master Servicer
or the Servicer under any Primary Mortgage Insurance Policies shall be deposited
in the Custodial Account, subject to withdrawal pursuant to Sections 3.17 and
3.18.
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 the 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.
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Section 3.14. Compensation for the Master Servicer.
The Master Servicer will be entitled to the Master Servicer Fee and any
all income and gain realized from any investment of funds in the Certificate
Account and the Custodial 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 (but not
including any Prepayment Charge) shall be retained by the Servicer and shall not
be deposited in the Protected Account. The Master Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement.
Section 3.15. REO Property.
(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 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 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 Servicer to deposit all funds collected
and received in connection with the operation of any REO Property in the
Protected Account.
(c) The Master Servicer and the Servicer, upon the final
disposition of any REO Property, shall be entitled to reimbursement for any
related unreimbursed Monthly Advances and other unreimbursed advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such REO Property; provided, that any such unreimbursed
Monthly Advances as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
(d) To the extent provided in the related Servicing Agreement, the
Liquidation Proceeds from the final disposition of the REO Property, net of any
payment to the Master Servicer and the Servicer as provided above shall be
deposited in the Protected Account on or prior to the Determination Date in the
month following receipt thereof and be remitted by wire transfer in immediately
available funds to the Master Servicer for deposit into the related Custodial
Account on the next succeeding Servicer Remittance Date.
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Section 3.16. Protected Accounts.
(a) The Master Servicer shall enforce the obligation of the
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 48 hours (or as of such other time specified in the related Servicing
Agreement) of receipt, all collections of principal and interest on any Mortgage
Loan and any REO Property received by the Servicer, including Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds, and advances made from
the Servicer's own funds (less servicing compensation as permitted by the
applicable Servicing Agreement in the case of the Servicer) and all other
amounts to be deposited in the Protected Account. The Servicer is hereby
authorized to make withdrawals from and deposits to the related Protected
Account for purposes required or permitted by this Agreement. To the extent
provided in the related Servicing Agreement, the Protected Account shall be held
by a Designated Depository Institution and segregated on the books of such
institution in the name of the Trustee for the benefit of Certificateholders.
(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 Certificateholders
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 Custodial Account, and shall be held
until required for such deposit. The income earned from Permitted Investments
made pursuant to this Section 3.16 shall be paid to the Servicer under the
applicable Servicing Agreement, and 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 Servicer. The Servicer (to the extent provided
in the Servicing Agreement) shall deposit the amount of any such loss in the
Protected Account within two Business Days of receipt of notification of such
loss but not later than the second Business Day prior to the Distribution Date
on which the moneys so invested are required to be distributed to the
Certificateholders.
(c) To the extent provided in the related Servicing Agreement and
subject to this Article III, on or before each Servicer Remittance Date, the
Servicer shall withdraw or shall cause to be withdrawn from its Protected
Accounts and shall immediately deposit or cause to be deposited in the Custodial
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):
(1) Scheduled payments on the Mortgage Loans received or
any related portion thereof advanced by the 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;
(2) Full Principal Prepayments and any Liquidation
Proceeds received by the Servicer with respect to the Mortgage
Loans in the related Prepayment Period,
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with interest to the date of prepayment or liquidation, net of
the amount thereof comprising its Servicing Fee;
(3) Partial Principal Prepayments received by the
Servicer for the Mortgage Loans in the related Prepayment
Period; and
(4) Any amount to be used as a Monthly Advance.
(d) Withdrawals may be made from an Account only to make
remittances as provided in the Servicing Agreement; to reimburse the Master
Servicer or the Servicer for Monthly Advances which have been recovered by
subsequent collections from the related Mortgagor; to remove amounts deposited
in error; to remove fees, charges or other such amounts deposited on a temporary
basis; or to clear and terminate the account at the termination of this
Agreement in accordance with Section 10.01. As provided in Sections 3.16(a) and
3.17(b) certain amounts otherwise due to the Servicer may be retained by them
and need not be deposited in the Custodial Account.
Section 3.17. Custodial Account.
(a) The Master Servicer shall establish and maintain in the name
of the Trustee, for the benefit of the Certificateholders, the Custodial Account
as a segregated trust account or accounts. The Custodial Account shall be an
Eligible Account. The Master Servicer will deposit in the Custodial Account as
identified by the Master Servicer and as received by the Master Servicer from
the Servicer, the following amounts:
(1) Any amounts withdrawn from a Protected Account;
(2) Any Monthly Advance and any payments of Compensating
Interest;
(3) Any Insurance Proceeds, Net Liquidation Proceeds or
Subsequent Recoveries received by or on behalf of the Servicer
or Master Servicer or which were not deposited in a Protected
Account;
(4) 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 2.04, and all proceeds of any
Mortgage Loans or property acquired with respect thereto
repurchased by the Company or its designee pursuant to Section
10.01;
(5) Any amounts required to be deposited with respect to
losses on investments of deposits in an Account; and
(6) Any other amounts received by or on behalf of the
Master Servicer and required to be deposited in the Custodial
Account pursuant to this Agreement.
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(b) All amounts deposited to the Custodial 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 Custodial Account or the
Certificate 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 Subsection 3.20(a) need not be credited by the
Master Servicer or the Servicer to the Certificate Account or the Custodial
Account, as applicable. In the event that the Master Servicer shall deposit or
cause to be deposited to the Custodial Account any amount not required to be
credited thereto, the Securities Administrator, upon receipt of a written
request therefor signed by a Servicing Officer of the Master Servicer, shall
promptly transfer such amount to the Master Servicer, any provision herein to
the contrary notwithstanding.
(c) The amount at any time credited to the Custodial 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 Certificate Account
Deposit Date. Any and all investment earnings on amounts on deposit in the
Master Servicer 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 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 Custodial 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 3.18. Permitted Withdrawals and Transfers from the Custodial
Account.
(a) The Master Servicer will, from time to time on demand of the
Servicer or the Securities Administrator, make or cause to be made such
withdrawals or transfers from the Custodial 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
Custodial 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 Custodial Account (i) any expenses recoverable by the Trustee, the Master
Servicer or the Securities Administrator or the Custodian pursuant to Sections
3.03 and 7.04 and (ii) any amounts payable to the Master Servicer as set forth
in Section 3.14.
(c) In addition, on or before each Certificate Account Deposit
Date, the Master Servicer shall deposit in the Certificate Account (or remit to
the Securities Administrator for deposit therein) any Monthly Advances required
to be made by the Master Servicer with respect to the Mortgage Loans.
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(d) No later than 3:00 p.m. New York time on each Certificate
Account Deposit Date, the Master Servicer will transfer all Available
Distribution Amount on deposit in the Custodial Account with respect to the
related Distribution Date to the Securities Administrator for deposit in the
Certificate Account.
Section 3.19. Certificate Account.
(a) The Securities Administrator shall establish and maintain in
the name of the Trustee, for the benefit of the Certificateholders, the
Certificate Account as a segregated trust account or accounts and it may be a
sub-account of the Custodial Account.
(b) All amounts deposited to the Certificate 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.
(c) The Certificate Account shall constitute a trust account of
the Trust Fund segregated on the books of the Securities Administrator on behalf
of the Trustee, and the Certificate 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, the Securities
Administrator or the Master Servicer (whether made directly, or indirectly
through a liquidator or receiver of the Trustee or the Master Servicer). The
Certificate Account shall be an Eligible Account. The Certificate Account may be
a sub-account of the Custodial Account and in such case any withdrawals from the
Custodial Account and deposits into the Certificate Account shall be deemed to
have been made. The amount at any time credited to the Certificate 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 selected by the Securities Administrator or deposited in demand
deposits with such depository institutions as selected by the Securities
Administrator, 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, manager or advisor for such
Permitted Investment is an affiliate of the Securities Administrator or, if such
obligor is any other Person, the Business Day preceding such Distribution Date.
All investment earnings on amounts on deposit in the Certificate Account or
benefit from funds uninvested therein from time to time shall be for the account
of the Securities Administrator. The Securities Administrator shall be permitted
to withdraw or receive distribution of any and all investment earnings from the
Certificate Account on each Distribution Date. If there is any loss on a
Permitted Investment or demand deposit, the Securities Administrator shall
deposit the amount of the loss to the Certificate Account. With respect to the
Certificate Account and the funds deposited therein, the Master Servicer shall
take such action as may be necessary to ensure that the 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. ss. 92a(e),
and applicable regulations pursuant thereto, if applicable, or any applicable
comparable state statute applicable to state chartered banking corporations.
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Section 3.20. Permitted Withdrawals and Transfers from the Certificate
Account.
(a) The Securities Administrator will, from time to time, make or
cause to be made such withdrawals or transfers from the Certificate Account as
the Securities Administrator has designated for such transfer or withdrawal
pursuant to this Agreement and the Servicing Agreements:
(1) to reimburse the Master Servicer or the Servicer for
any Monthly Advance of its own funds, the right of the Master
Servicer or the Servicer to reimbursement pursuant to this
subclause (i) being limited to amounts received on a
particular Mortgage Loan (including, for this purpose, the
Purchase Price therefor, Insurance Proceeds and Liquidation
Proceeds) which represent late payments or recoveries of the
principal of or interest on such Mortgage Loan respecting
which such Monthly Advance was made;
(2) to reimburse the Master Servicer or the Servicer from
Insurance Proceeds or Liquidation Proceeds relating to a
particular Mortgage Loan for amounts expended by the Master
Servicer or the 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;
(3) to reimburse the Master Servicer or the Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for
insured expenses incurred with respect to such Mortgage Loan
and to reimburse the Master Servicer or the Servicer from
Liquidation Proceeds from a particular Mortgage Loan for
Liquidation Expenses incurred with respect to such Mortgage
Loan; provided that the Master Servicer shall not be entitled
to reimbursement for Liquidation Expenses with respect to a
Mortgage Loan to the extent that (i) any amounts with respect
to such Mortgage Loan were paid as Excess Liquidation Proceeds
pursuant to clause (xi) of this Subsection 3.20(a) to the
Master Servicer; and (ii) such Liquidation Expenses were not
included in the computation of such Excess Liquidation
Proceeds;
(4) to reimburse the Master Servicer or the Servicer for
advances of funds (other than Monthly Advances) made with
respect to the Mortgage Loans, and the right to reimbursement
pursuant to this subclause being limited to amounts received
on the related Mortgage Loan (including, for this purpose, the
Purchase Price therefor, Insurance Proceeds and Liquidation
Proceeds) which represent late recoveries of the payments for
which such advances were made;
(5) to reimburse the Master Servicer or the Servicer for
any Monthly Advance or advance, after a Realized Loss has been
allocated with respect to the related Mortgage Loan if the
Monthly Advance or advance has not been reimbursed pursuant to
clauses (1) and (4);
(6) to pay the Master Servicer as set forth in Section
3.14;
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(7) to reimburse the Master Servicer for expenses, costs
and liabilities incurred by and reimbursable to it pursuant to
Sections 3.03 and 6.03;
(8) to pay to the Master Servicer, as additional
servicing compensation, any Excess Liquidation Proceeds to the
extent not retained by the Servicer;
(9) to reimburse or pay the 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;
(10) to reimburse the Trustee, the Securities
Administrator or the Custodian for expenses, costs and
liabilities incurred by or reimbursable to it pursuant to this
Agreement;
(11) to remove amounts deposited in error; and
(12) to clear and terminate the Certificate Account
pursuant to Section 9.01.
(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 Certificate Account pursuant to
subclauses (1) through (4) immediately above 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 Certificate
Account under Section 3.18(b).
(c) On each Distribution Date, the Securities Administrator shall
distribute the Available Distribution Amount to the extent on deposit in the
Certificate Account to the Holders of the Certificates and determined by the
Securities Administrator.
Section 3.21. Annual Officer's Certificate as to Compliance.
(a) The Master Servicer shall deliver to the Trustee, the Insurer
and the Rating Agencies on or before March 1 of each year, commencing on March
1, 2005, an Officer's Certificate, certifying that with respect to the period
ending December 31 of the prior year: (i) such Servicing Officer has reviewed
the activities of such Master Servicer during the preceding calendar year or
portion thereof and its performance under this Agreement, (ii) to the best of
such Servicing Officer's knowledge, based on such review, such Master Servicer
has performed and fulfilled its duties, responsibilities and obligations under
this Agreement in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof, (iii) nothing has come to the attention of such
Servicing Officer to lead such Servicing Officer to believe that the Servicer
has failed to perform any of its duties, responsibilities and obligations under
the related Servicing Agreement in all material respects throughout such year,
or, if there has been a material default in the performance or fulfillment of
any such duties, responsibilities or obligations, specifying each such default
known to such Servicing Officer and the nature and status thereof.
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(b) Copies of such statements shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Securities
Administrator at the Master Servicer's expense if the Master Servicer failed to
provide such copies.
Section 3.22. Annual Independent Accountant's Servicing Report.
If the Master Servicer has, during the course of any fiscal year,
directly serviced any of the Mortgage Loans, then the Master Servicer at its
expense shall cause a nationally recognized firm of independent certified public
accountants to furnish a statement to the Trustee, the Rating Agencies, the
Insurer and the Company on or before March 1 of each year, commencing on March
1, 2005 to the effect that, with respect to the most recently ended fiscal year,
such firm has examined certain records and documents relating to the Master
Servicer's performance of its servicing obligations under this Agreement and
pooling and servicing and trust agreements in material respects similar to this
Agreement and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
▇▇▇▇▇▇▇ Mac or the Uniform Single Attestation Program for Mortgage Bankers, such
firm is of the opinion that the Master Servicer's activities have been conducted
in compliance with this Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation Program
for Mortgage Bankers or the Audit Program for Mortgages Serviced by ▇▇▇▇▇▇▇ Mac
requires it to report. Copies of such statements shall be provided to any
Certificateholder upon request by the Master Servicer, or by the Securities
Administrator at the expense of the Master Servicer. If such report discloses
exceptions that are material, the Master Servicer shall advise the Trustee
whether such exceptions have been or are susceptible of cure, and will take
prompt action to do so.
Section 3.23. Reports Filed with Securities and Exchange Commission.
Within 15 days after each Distribution Date, the Securities
Administrator shall, in accordance with industry standards, file with the
Commission via ▇▇▇▇▇, a Form 8-K with a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
January 30 in any year, the Securities Administrator shall, in accordance with
industry standards and unless otherwise instructed by the Company, file a Form
15 Suspension Notice with respect to the Trust Fund, if applicable. Prior to (i)
March 15, 2005 and (ii) unless and until a Form 15 Suspension Notice shall have
been filed, prior to March 15 of each year thereafter, the Master Servicer shall
provide the Securities Administrator with a Master Servicer Certification,
together with a copy of the annual independent accountant's servicing report and
annual statement of compliance of the Servicer, in each case, required to be
delivered pursuant to the related Servicing Agreement, and, if applicable, the
annual statement of compliance, and the annual independent accountant's
servicing report to be delivered by the Master Servicer pursuant to Sections
3.21 and 3.22. Prior to (i) March 31, 2005, or such earlier filing date as may
be required by the Commission, and (ii) unless and until a Form 15 Suspension
Notice shall have been filed, March 31 of each year thereafter, or such earlier
filing date as may be required by the Commission, the Securities Administrator
shall file a Form 10-K, in substance conforming to industry standards, with
respect to the Trust. Such Form 10-K shall include the Master Servicer
Certification and other documentation provided by the Master Servicer pursuant
to the second
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preceding sentence. The Company hereby grants to the Securities Administrator a
limited power of attorney to execute and file each such document on behalf of
the Company. Such power of attorney shall continue until either the earlier of
(i) receipt by the Securities Administrator from the Company of written
termination of such power of attorney and (ii) the termination of the Trust
Fund. The Company agrees to promptly furnish to the Securities Administrator,
from time to time upon request, such further information, reports and financial
statements within its control related to this Agreement and the Mortgage Loans
as the Securities Administrator reasonably deems appropriate to prepare and file
all necessary reports with the Commission. The Securities Administrator shall
have no responsibility to file any items other than those specified in this
Section 3.23; provided, however, the Securities Administrator will cooperate
with the Company in connection with any additional filings with respect to the
Trust Fund as the Company deems necessary under the Exchange Act. Fees and
expenses incurred by the Securities Administrator in connection with this
Section 3.23 shall not be reimbursable from the Trust Fund.
Section 3.24. UCC.
The Company 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 Company.
The Trustee agrees to monitor and notify the Company if any continuation
statements for such Uniform Commercial Code financing statements need to be
filed. If directed by the Company in writing, the Trustee will file any such
continuation statements solely at the expense of the Company. The Company shall
file any financing statements or amendments thereto required by any change in
the Uniform Commercial Code.
Section 3.25. Optional Purchase of Defaulted Mortgage Loans.
(a) During the first full calendar month (but excluding the last
Business Day thereof) following a Mortgage Loan or related REO Property becoming
90 days or more delinquent, the Seller shall have the option, but not the
obligation to purchase from the Trust Fund any such Mortgage Loan or related REO
Property that is then still 90 days or more delinquent, which the Seller
determines in good faith will otherwise become subject to foreclosure
proceedings (evidence of such determination to be delivered in writing to the
Trustee prior to purchase), at a price equal to the Purchase Price. The Purchase
Price for any Mortgage Loan or related REO Property purchased hereunder shall be
deposited in the Custodial Account, and the Trustee, upon written certification
of such deposit, shall release or cause to be released to the Seller the related
Mortgage File and the Trustee shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Seller shall
furnish and as shall be necessary to vest in the Seller title to any Mortgage
Loan or related REO Property released pursuant hereto.
(b) If with respect to any delinquent Mortgage Loan or related REO
Property, the option of the Seller set forth in the preceding paragraph shall
have arisen but the Seller shall have failed to exercise such option on or
before the Business Day preceding the last Business Day of the calendar month
following the calendar month during which such Mortgage Loan or related REO
Property first became 90 days or more delinquent, then such option shall
automatically expire; provided, however, that if any such Mortgage Loan or
related REO Property shall cease to be 90 days or more delinquent but then
subsequently shall again become 90 days or more
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delinquent, then the Seller shall be entitled to another repurchase option with
respect to such Mortgage Loan or REO Property as provided in the preceding
paragraph.
Section 3.26. The Corridor Contracts.
The Trustee on behalf of the Trust Fund, shall enter into two interest
rate cap transactions evidenced by the Corridor Contracts, on the terms and
conditions set forth in the Corridor Contract Assignment Agreements. The
Corridor Contracts will be an asset of the Trust Fund but will not be an asset
of any REMIC. The Securities Administrator, on behalf of the Trustee, shall
deposit any amounts received from time to time with respect to the Corridor
Contracts into the Basis Risk Shortfall Reserve Fund.
The Securities Administrator, on behalf of the Trustee, shall prepare
and deliver any notices required to be delivered under the Corridor Contracts.
The Securities Administrator, on behalf of the Trustee, shall terminate
the Corridor Contracts upon the occurrence of certain events of default or
termination events to the extent specified thereunder.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01. Distributions.
(a) On each Distribution Date, the Securities Administrator shall
pay the Insurer the Insurer Premium payable on such Distribution Date from
amounts on deposit in the Certificate Account. In addition, on each Distribution
Date the Securities Administrator shall distribute to each Certificateholder of
record as of the next preceding Record Date (other than as provided in Section
9.01 respecting the final distribution) either in immediately available funds
(by wire transfer or otherwise) to the account of such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder has so notified the Securities Administrator at least 5
Business Days prior to the related Record Date, or otherwise by check mailed to
such Certificateholder at the address of such Holder appearing in the
Certificate Register, such Certificateholder's share (based on the aggregate of
the Percentage Interests represented by Certificates of the applicable Class
held by such Holder) of the amounts required to be distributed to such Holder
pursuant to this Section 4.01.
On each Distribution Date, the Securities Administrator shall withdraw
from the Certificate Account that portion of Available Distribution Amount for
such Distribution Date consisting of the Interest Remittance Amount for such
Distribution Date, and make the following disbursements and transfers in the
order of priority described below, in each case to the extent of the Interest
Remittance Amount remaining for such Class for such Distribution Date:
(i) concurrently, to the Holders of the Class A
Certificates, the related Accrued Certificate Interest for such Class
and any Interest Carry Forward Amount for such Class for such
Distribution Date; and
(ii) sequentially, to the Holders of the Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class
M-8 Certificates, in that order, the related Accrued Certificate
Interest for such Class for such Distribution Date.
(b) (i) On each Distribution Date (a) prior to the Stepdown Date
or (b) on which a Trigger Event is in effect, the Holders of each Class of
Offered Certificates shall be entitled to receive distributions in respect of
principal from that portion of Available Distribution Amount to the extent of
the Principal Distribution Amount in the following amounts and order of
priority:
(1) to the Class A Certificates, in the order and
priority set forth in clause (d) below, until the Certificate
Principal Balances thereof have been reduced to zero; and
(2) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, until the Certificate Principal
Balance of each such Class is reduced to zero.
(ii) On each Distribution Date (a) on or after the
Stepdown Date and (b) on which a Trigger Event is not in effect, the
Holders of each Class of Offered Certificates shall be entitled to
receive distributions in respect of principal from that portion of
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Available Distribution Amount to the extent of the Principal
Distribution Amount in the following amounts and order of priority:
(1) first, the Class A Principal Distribution Amount
shall be distributed to the Holders of the Class A
Certificates, in the order and priority set forth in clause
(d) below, until the Certificate Principal Balances thereof
have been reduced to zero;
(2) second, to the Holders of the Class M-1 Certificates,
the Class M-1 Principal Distribution Amount until the
Certificate Principal Balance thereof has been reduced to
zero;
(3) third, to the Holders of the Class M-2 Certificates,
the Class M-2 Principal Distribution Amount until the
Certificate Principal Balance thereof has been reduced to
zero;
(4) fourth, to the Holders of the Class M-3 Certificates,
the Class M-3 Principal Distribution Amount until the
Certificate Principal Balance thereof has been reduced to
zero;
(5) fifth, to the Holders of the Class M-4 Certificates,
the Class M-4 Principal Distribution Amount until the
Certificate Principal Balance thereof has been reduced to
zero;
(6) sixth, to the Holders of the Class M-5 Certificates,
the Class M-5 Principal Distribution Amount until the
Certificate Principal Balance thereof has been reduced to
zero;
(7) seventh, to the Holders of the Class M-6
Certificates, the Class M-6 Principal Distribution Amount
until the Certificate Principal Balance thereof has been
reduced to zero;
(8) eighth, to the Holders of the Class M-7 Certificates,
the Class M-7 Principal Distribution Amount until the
Certificate Principal Balance thereof has been reduced to
zero; and
(9) ninth, to the Holders of the Class M-8 Certificates,
the Class M-8 Principal Distribution Amount until the
Certificate Principal Balance thereof has been reduced to
zero.
(c) On each Distribution Date the Net Monthly Excess Cashflow
shall be distributed in the following order of priority, in each case to the
extent of the Net Monthly Excess Cashflow remaining for such Distribution Date:
(i) first, to the Insurer, as subrogee of the Insured
Certificateholders, from the amount, if any, of the Available
Distribution Amount remaining after the foregoing distributions, an
amount necessary to reimburse the Insurer for claims paid under the
Policy, to the extent of Cumulative Insurance Payments on the Insured
Certificates;
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(ii) second, to the Holders of the Offered Certificates
then entitled to receive distributions in respect of principal, in an
amount equal to any Extra Principal Distribution Amount, payable to
such Holders as part of the Principal Distribution Amount as described
under Section 4.01(b) above;
(iii) third, sequentially to the Holders of the Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and
Class M-8 Certificates, in that order, in an amount equal to any
Interest Carry Forward Amount for such Class or Classes;
(iv) fourth, sequentially to the Holders of the Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and
Class M-8 Certificates, in that order, in an amount equal to any
Allocated Realized Loss Amount for such Class or Classes;
(v) fifth, to the Basis Risk Shortfall Reserve Fund,
after taking into account amounts, if any, received under the Corridor
Contracts, to pay the Offered Certificates as follows: first, to the
Class A Certificates, on a pro rata basis, based on the aggregate
amount of Basis Risk Shortfall Carry-Forward Amounts for such Classes,
and second, sequentially to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in
that order, any related Basis Risk Shortfall Carry-Forward Amount for
such Class or Classes on such Distribution Date, to the extent not
covered by the Corridor Contracts;
(vi) sixth, to the Holders of the Class C Certificates,
the Accrued Certificate Interest for such Class and any Principal
Remittance Amount not used to make payments pursuant to clauses (b) and
(c)(i) through (v) above and any Overcollateralization Release Amount
for such Distribution Date;
(vii) seventh, if such Distribution Date follows the
Prepayment Period during which a Prepayment Charge may be required to
be paid in respect of any Mortgage Loans, to the Holders of the Class P
Certificates, in reduction of the Certificate Principal Balance
thereof, until the Certificate Principal Balance thereof is reduced to
zero;
(viii) eighth, to the Master Servicer, the Securities
Administrator and the Trustee any amounts payable pursuant to Sections
6.03 or 8.05 which were not reimbursed because of the operation of the
annual cap described in such Sections; and
(ix) ninth, any remaining amounts to the Holders of the
Class R Certificates (in respect of the appropriate Residual Interest).
Without limiting the provisions of Section 9.01, the Class R Certificateholders,
by accepting the Class R Certificates, agree to pledge their rights to receive
any amounts otherwise distributable on the Class R Certificates, and such rights
are hereby assigned and pledged to the holders of the Class C Certificates.
(d) On each Distribution Date, any Principal Distribution Amount
payable to the Class A Certificates shall be distributed in the following manner
and order of priority:
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(i) first, sequentially, to the Class A-1 Certificates
and Class A-2 Certificates, in that order, in each case until the
Certificate Principal Balance thereof has been reduced to zero; and
(ii) second, concurrently on a pro rata basis, to the
Class A-3A Certificates and Class A-3B Certificates, based on the
Certificate Principal Balances thereof, until the Certificate Principal
Balances thereof have been reduced to zero;
provided, however, on any Distribution Date after the Certificate Principal
Balances of the Class M Certificates have been reduced to zero, distributions of
principal to the Class A Certificates will be allocated among such Class A
Certificates concurrently on a pro rata basis, based on the Certificate
Principal Balances thereof.
(e) In addition to the foregoing distributions, with respect to
any Subsequent Recoveries, the Master Servicer shall deposit such funds into the
Custodial Account pursuant to Section 3.17. 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 Certificate Principal
Balance of the Class of 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 Certificates. The amount of any
remaining Subsequent Recoveries will be applied to increase the Certificate
Principal Balance of the Class of Certificates with the next highest payment
priority, up to the amount of such Realized Losses previously allocated to that
Class of Certificates, and so on. Holders of such Certificates will not be
entitled to any payment in respect of Accrued Certificate Interest on the amount
of such increases for any Accrual Period preceding the Distribution Date on
which such increase occurs. Any such increases shall be applied to the
Certificate Principal Balance of each Certificate of such Class in accordance
with its respective Percentage Interest.
(f) On each Distribution Date, all amounts representing Prepayment
Charges in respect of the Mortgage Loans received during the related Prepayment
Period will be withdrawn from the Certificate Account and distributed by the
Securities Administrator to the Holders of the Class P Certificates and shall
not be available for distribution to the Holders of any other Class of
Certificates. The payment of the foregoing amounts to the Holders of the Class P
Certificates shall not reduce the Certificate Principal Balances thereof.
(g) With respect to the Corridor Contracts, on each Distribution
Date, any payments received from the Corridor Contract Counterparty with respect
to such Distribution Date will be allocated to the Offered Certificates and the
Class C Certificates in the following order of priority, in each case to the
extent of amounts remaining:
(1) first, the Class A Corridor Contract Allocation
Amount shall be paid to the Class A Certificates, on a pro
rata basis, in reduction of any related Basis Risk Shortfall
Carry-Forward Amount for such Distribution Date and any
amounts with respect to the Corridor Contract for the Class M
Certificates shall be paid sequentially to the Class ▇-▇,
▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7 and Class M-8 Certificates, in that order, in reduction of
any related Basis Risk Shortfall Carry-Forward Amount for such
Distribution Date;
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(2) second, from any amounts remaining from both Corridor
Contracts, concurrently to the Class A Certificates, on a pro
rata basis, based on the aggregate amount of Basis Risk
Shortfall Carry-Forward Amounts remaining for such classes of
Class A Certificates, in reduction of any remaining related
Basis Risk Shortfall Carry-Forward Amount for such
Distribution Date;
(3) third, from any amounts remaining from both Corridor
Contracts, sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, any remaining related Basis Risk
Shortfall Carry-Forward Amount for such Class or Classes for
such Distribution Date; and
(4) fourth, any remaining amounts from both Corridor
Contracts to the Class C Certificates.
(h) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Company, as Holder thereof, and the Company shall be
responsible for crediting the amount of such distribution to the accounts of its
Company Participants in accordance with its normal procedures. Each Company
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Securities Administrator the Company or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(i) Except as otherwise provided in Section 9.01, if the
Securities Administrator anticipates that a final distribution with respect to
any Class of Certificates will be made on the next Distribution Date, the
Securities Administrator shall, no later than two Business Days after the
Determination Date in the month of such final distribution, mail on such date to
each Holder of such Class of Certificates a notice to the effect that: (i) the
Securities Administrator anticipates that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only upon
presentation and surrender of such Certificates at the office of the Securities
Administrator or as otherwise specified therein, and (ii) no interest shall
accrue on such Certificates from and after the end of the prior calendar month.
(j) Any funds not distributed to any Holder or Holders of
Certificates of such Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be set
aside and held in trust and credited to the account of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(j) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Securities Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within six months after the second notice all such Certificates shall not have
been surrendered for cancellation, the Securities Administrator shall take
reasonable steps as directed by the Company, or appoint an agent to take
reasonable steps, to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining the funds in
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trust and of contacting such Certificateholders shall be paid out of the assets
remaining in the Trust Fund. If within nine months after the second notice any
such Certificates shall not have been surrendered for cancellation, the Class R
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(j).
(k) On each Distribution Date, other than the final Distribution
Date, the Securities Administrator 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 Percentage Interest represented
by such Holder's Certificates) of all amounts required to be distributed on such
Distribution Date to such Class. The Securities Administrator shall calculate
the amount to be distributed to each Class and, based on such amounts, the
Securities Administrator shall determine the amount to be distributed to each
Certificateholder. All of the Securities Administrator's calculations of
payments shall be based solely on information provided to the Securities
Administrator by the Master Servicer. The Securities Administrator shall not be
required to confirm, verify or recompute any such information but shall be
entitled to rely conclusively on such information.
Section 4.02. Statements to Certificateholders.
(a) On each Distribution Date, based, as applicable, on
information provided to it by the Master Servicer, the Securities Administrator
shall prepare and make available on the Securities Administrator's website as
set forth below, to each Holder of the Regular Certificates, the Trustee, the
Master Servicer, the Insurer and the Rating Agencies, a statement as to the
distributions made on such Distribution Date setting forth:
(i) (A) the amount of the distribution made on such
Distribution Date to the Holders of each Class of Regular Certificates,
separately identified, allocable to principal and (B) the amount of the
distribution made on such Distribution Date to the Holders of the Class
P Certificates allocable to Prepayment Charges;
(ii) the amount of the distribution made on such
Distribution Date to the Holders of each Class of Regular Certificates
(other than the Class P Certificates) allocable to interest, separately
identified;
(iii) the Pass-Through Rate on each Class of Regular
Certificates (other than the Class P Certificates) for such
Distribution Date;
(iv) the aggregate amount of Advances for such
Distribution Date;
(v) the number and Aggregate Stated Principal Balance of
the Mortgage Loans as of the end of the related Due Period;
(vi) the Overcollateralized Amount, the
Overcollateralization Definiency Amount and the Overcollateralization
Target Amount for such Distribution Date;
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(vii) the aggregate Certificate Principal Balance or
Notional Amount, as applicable, of each Class of Regular Certificates
after giving effect to the amounts distributed on such Distribution
Date (in the case of each Class of the Class M Certificates, separately
identifying any reduction thereof due to the allocation of Realized
Losses thereto);
(viii) the number and Aggregate Stated Principal Balance of
Mortgage Loans (a) Delinquent 31 to 60 days, (b) Delinquent 61 to 90
days, (c) Delinquent 91 days or more, in each case as of the end of the
calendar month prior to such Distribution Date;
(ix) the number, aggregate principal balance and book
value of any REO Properties as of the close of business on the last day
of the calendar month preceding the month in which such Distribution
Date occurs;
(x) the weighted average remaining term to maturity,
weighted average Mortgage Rate and Weighted Average Net Mortgage Rate
of the Mortgage Loans as of the close of business on the first day of
the calendar month in which such Distribution Date occurs;
(xi) the aggregate amount of Principal Prepayments made
during the related Prepayment Period;
(xii) the aggregate amount of Realized Losses incurred
during the related Prepayment Period and the cumulative amount of
Realized Losses;
(xiii) the aggregate amount of extraordinary Trust Fund
expenses withdrawn from the Custodial Account or the Certificate
Account for such Distribution Date;
(xiv) the aggregate amount of any Prepayment Interest
Shortfalls for such Distribution Date, to the extent not covered by
payments by the Servicer or Master Servicer pursuant to Section 3.17,
and the aggregate amount of Relief Act Interest Shortfalls for such
Distribution Date;
(xv) the Accrued Certificate Interest in respect of each
Class of the Class A Certificates, Class M Certificates and Class C
Certificates for such Distribution Date and the Unpaid Interest
Shortfall Amount, if any, with respect to each Class of the Class A
Certificates and Class M Certificates for such Distribution Date;
(xvi) the aggregate amount of the Master Servicer Fee
received by the Master Servicer with respect to the related Due Period
and such other customary information as the Securities Administrator
deems necessary or desirable, or which a Certificateholder reasonably
requests, to enable Certificateholders to prepare their tax returns;
(xvii) the aggregate of any deposits to and withdrawals from
the Basis Risk Shortfall Reserve Fund for such Distribution Date and
the remaining amount on deposit in the Basis Risk Shortfall Reserve
Fund after such deposits and withdrawals;
(xviii) the Available Distribution Amount for such
Distribution Date;
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(xix) the amount of any Guaranteed Distribution paid on
such Distribution Date, the amount of any reimbursement payment made to
the Insurer on such Distribution Date pursuant to Section 4.01(c)(i)
and the amount of Cumulative Insurance Payments after giving effect to
any such Guaranteed Distribution or any such reimbursement payment to
the Insurer; and
(xx) the amount paid under the Corridor Contracts.
On each Distribution Date the Securities Administrator shall provide
Bloomberg Financial Markets, L.P. ("Bloomberg") CUSIP level factors for each
Class of Certificates as of such Distribution Date, using a format and media
mutually acceptable to the Trustee and Bloomberg.
The information set forth above shall be calculated or reported, as the
case may be, by the Securities Administrator, based solely on, and to the extent
of, information provided to the Securities Administrator by the Master Servicer.
The Securities Administrator may conclusively rely on such information and shall
not be required to confirm, verify or recalculate any such information.
The Securities Administrator may make available each month, to any
interested party, the monthly statement to Certificateholders via the Securities
Administrator's website initially located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇." Assistance in
using the website can be obtained by calling the Securities Administrator'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 Securities Administrator's customer service desk
and indicating such. The Securities Administrator 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 Securities
Administrator shall provide timely and adequate notification to all parties
regarding any such change.
Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall prepare and forward, to each Person who at
any time during the calendar year was a Holder of a Certificate, a statement
containing the information set forth in subclauses (i) and (ii) above,
aggregated for such calendar year or applicable portion thereof during which
such person was a Certificateholder. Such obligation of the Securities
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code and regulations
thereunder as from time to time are in force.
Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall prepare and forward, to each Person who at
any time during the calendar year was a Holder of a Class R Certificate a
statement containing the information provided pursuant to the previous paragraph
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Securities
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time are
in force.
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Section 4.03. Remittance Reports; Advances by the Master Servicer.
(a) On the Business Day following each Determination Date but in
no event later than the 20th day of each month (or if such 20th day is not a
Business Day, the preceding Business Day), the Master Servicer shall deliver to
the Securities Administrator and the Insurer a report, prepared as of the close
of business on the Determination Date (the "Remittance Report"), in the form of
an electronic format mutually acceptable to each party. The Remittance Report
and any written information supplemental thereto shall include such information
with respect to the Mortgage Loans that is required by the Securities
Administrator for purposes of making the calculations and preparing the
statement described in Sections 4.01 and 4.02, as set forth in written
specifications or guidelines issued by the Securities Administrator from time to
time. The Trustee shall have no obligation to recompute, recalculate or verify
any information provided to it by the Master Servicer.
(b) If the scheduled payment on a Mortgage Loan that was due on a
related Due Date is delinquent, other than as a result of application of the
Relief Act, and for which the related Servicer was required to make an advance
pursuant to the related Servicing Agreement exceeds the amount deposited in the
Custodial Account which will be used for an advance with respect to such
Mortgage Loan, the Master Servicer will deposit in the Custodial Account not
later than the Certificate Account Deposit Date immediately preceding the
related Distribution Date an amount equal to such deficiency, net of the
Servicing Fee for such Mortgage Loan except to the extent the Master Servicer
determines any such advance to be a Nonrecoverable Advance. Subject to the
foregoing, the Master Servicer shall continue to make such advances through the
date that the related Servicer is required to do so under its Servicing
Agreement. If the Master Servicer deems an advance to be a Nonrecoverable
Advance, on the Certificate Account Deposit Date, the Master Servicer shall
present an Officer's Certificate to the Trustee and the Insurer (i) stating that
the Master Servicer elects not to make a Monthly Advance in a stated amount and
(ii) detailing the reason it deems the advance to be a Nonrecoverable Advance.
(c) The Master Servicer shall deposit in the Custodial Account not
later than each Certificate Account Deposit Date an amount equal to the lesser
of (i) the sum of the aggregate amounts required to be paid by the Servicers
under the Servicing Agreements with respect to subclauses (a) and (b) of the
definition of Interest Shortfall with respect to the Mortgage Loans for the
related Distribution Date, and not so paid by the related Servicer and (ii) the
Master Servicer Fees for such Distribution Date (such amount, the "Compensating
Interest Payment"). The Master Servicer shall not be entitled to any
reimbursement of any Compensating Interest Payment.
Section 4.04. Distributions on the REMIC Regular Interests.
(a) On each Distribution Date, the Securities Administrator shall
cause the Available Distribution Amount, in the following order of priority, to
be distributed by REMIC 1 to REMIC 2 on account of the REMIC 1 Regular Interests
or withdrawn from the Certificate Account and distributed to the Holders of the
Class R Certificates (in respect of the Class R-1 Interest), as the case may be:
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(i) to Holders of REMIC 1 Regular Interest LT-AA, REMIC 1
Regular Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular
Interest LT-A3A, REMIC 1 Regular Interest LT-A3B, REMIC 1 Regular
Interest LT-M1, REMIC 1 Regular Interest LT-M2, REMIC 1 Regular
Interest LT-M3, REMIC 1 Regular Interest LT-M4, REMIC 1 Regular
Interest LT-M5, REMIC 1 Regular Interest LT-M6, REMIC 1 Regular
Interest LT-M7, REMIC 1 Regular Interest LT-M8 and REMIC 1 Regular
Interest LT-ZZ and REMIC 1 Regular Interest LT-P, pro rata, in an
amount equal to
(A) the related Uncertificated Accrued Interest for such
Distribution Date, plus
(B) any amounts in respect thereof remaining unpaid from
the previous Distribution Dates.
Amounts payable as Uncertificated Accrued Interest in respect of REMIC 1 Regular
Interest LT-ZZ shall be reduced when the REMIC 1 Overcollateralized Amount is
less than the REMIC 1 Overcollateralization Target Amount, by the lesser of (x)
the amount of such difference and (y) the Maximum Uncertificated Accrued
Interest Deferral Amount, and such amount will be payable to the Holders of
REMIC 1 Regular Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular
Interest LT-A3A, REMIC 1 Regular Interest LT-A3B, REMIC 1 Regular Interest
LT-M1, REMIC 1 Regular Interest LT-M2, REMIC 1 Regular Interest LT-M3, REMIC 1
Regular Interest LT-M4, REMIC 1 Regular Interest LT-M5, REMIC 1 Regular Interest
LT-M6, REMIC 1 Regular Interest LT-M7 and REMIC 1 Regular Interest LT-M8 in the
same proportion as the Overcollateralization Deficiency Amount is allocated to
the Corresponding Certificates, and the Uncertificated Principal Balance of
REMIC 1 Regular Interest LT-ZZ shall be increased by such amount;
(ii) to the Holders of REMIC 1 Regular Interest LT-P, (A)
on each Distribution Date, 100% of the amount paid in respect of
Prepayment Charges and (B) on the Distribution Date immediately
following the expiration of the latest Prepayment Charge as identified
on the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause;
(iii) to the Holders of the REMIC 1 Regular Interests, in
an amount equal to the remainder of the Available Funds for such
Distribution Date after the distributions made pursuant to clauses (i)
and (ii) above, allocated as follows:
(A) 98% of such remainder to the Holders of REMIC 1
Regular Interest LT-AA, until the Uncertificated
Principal Balance of such Uncertificated REMIC 1
Regular Interest is reduced to zero;
(B) 2% of such remainder, first to the REMIC 1 Regular
Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC
1 Regular Interest LT-A3A, REMIC 1 Regular Interest
LT-A3B, REMIC 1 Regular Interest LT-M1, REMIC 1
Regular Interest LT-M2, REMIC 1 Regular Interest
LT-M3, REMIC 1 Regular Interest LT-M4, REMIC 1
Regular Interest LT-M5, REMIC 1 Regular Interest
LT-M6, REMIC 1 Regular Interest LT-M7 and REMIC 1
Regular Interest LT-M8, 1% of and in the same
proportion as
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principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Principal
Balances of such REMIC 2 Regular Interests are
reduced to zero and second, to the Holders of REMIC 1
Regular Interest LT-ZZ, until the Uncertificated
Principal Balance of such REMIC 1 Regular Interest is
reduced to zero; and
(C) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-1 Interest);
provided, however, that 98% and 2% of any principal payments shall be allocated
to Holders of REMIC 1 Regular Interest LT-AA and REMIC 1 Regular Interest LT-ZZ,
respectively, once the Uncertificated Principal Balances of REMIC 1 Regular
Interest LT-A1, REMIC 1 Regular Interest LT-A2, REMIC 1 Regular Interest LT-A3A,
REMIC 1 Regular Interest LT-A3B, REMIC 1 Regular Interest LT-M1, REMIC 1 Regular
Interest LT-M2, REMIC 1 Regular Interest LT-M3, REMIC 1 Regular Interest LT-M4,
REMIC 1 Regular Interest LT-M5, REMIC 1 Regular Interest LT-M6, REMIC 1 Regular
Interest LT-M7 and REMIC 1 Regular Interest LT-M8 have been reduced to zero.
Distributions of principal and interest on the Class C Interest shall
be made in the same manner and priority as amounts distributed on the Class C
Certificates.
Section 4.05. Allocation of Realized Losses.
All Realized Losses on the Mortgage Loans shall be allocated by the
Securities Administrator on each Distribution Date as follows: first, to Net
Monthly Excess Cashflow, through a distribution of the Extra Principal
Distribution Amount for that Distribution Date; second, to the
Overcollateralized Amount by a reduction of the Certificate Principal Balance of
the Class C Certificates, until the Certificate Principal Balance thereof has
been reduced to zero; third, to the Class M-8 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; fourth, to the
Class M-7 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; fifth, to the Class M-6 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; sixth, to the Class M-5
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; seventh, to the Class M-4 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; eighth, to the Class M-3 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero; ninth,
to the Class M-2 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; and tenth to the Class M-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero. All Realized
Losses to be allocated to the Certificate Principal Balances of all Classes on
any Distribution Date shall be so allocated after the actual distributions to be
made on such date as provided above. All references above to the Certificate
Principal Balance of any Class of Certificates shall be to the Certificate
Principal Balance of such Class immediately prior to the relevant Distribution
Date, before reduction thereof by any Realized Losses, in each case to be
allocated to such Class of Certificates, on such Distribution Date.
Any allocation of Realized Losses to a Class M Certificate on any
Distribution Date shall be made by reducing the Certificate Principal Balance
thereof by the amount so allocated. Any
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allocation of Realized Losses to a Class C Certificate shall be made by (i)
first, reducing the amount otherwise payable in respect thereof pursuant to
Section 4.01(c)(ix), and (ii) second, by reducing the Certificate Principal
Balance thereof by the amount so allocated. No allocations of any Realized
Losses shall be made to the Certificate Principal Balances of the Class A-1,
Class ▇-▇, ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇ ▇-▇▇ or the Class P Certificates.
All Realized Losses on the Mortgage Loans shall be allocated by the
Securities Administrator on each Distribution Date as follows: first to
Uncertificated Accrued Interest payable to the REMIC 1 Regular Interest LT-AA
and REMIC 1 Regular Interest LT-ZZ up to an aggregate amount equal to the REMIC
1 Interest Loss Allocation Amount, 98% and 2% respectively; second, to the
Uncertificated Principal Balances of REMIC 1 Regular Interest LT-AA and REMIC 1
Regular Interest LT-ZZ up to an aggregate amount equal to the REMIC 1 Principal
Loss Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT-AA, REMIC 1 Regular Interest
LT-M7 and REMIC 1 Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M7 has been
reduced to zero; fourth, to the Uncertificated Principal Balances of REMIC 1
Regular Interest LT-AA, REMIC 1 Regular Interest LT-M6 and REMIC 1 Regular
Interest LT-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 1 Regular Interest LT-M6 has been reduced to zero; fifth, to
the Uncertificated Principal Balances of REMIC 1 Regular Interest LT-AA, REMIC 1
Regular Interest LT-M5 and REMIC 1 Regular Interest LT-ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT-M5 has been reduced to zero; sixth, to the Uncertificated Principal
Balances of REMIC 1 Regular Interest LT-AA, REMIC 1 Regular Interest LT-M4 and
REMIC 1 Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M4 has been
reduced to zero; seventh, to the Uncertificated Principal Balances of REMIC 1
Regular Interest LT-AA, REMIC 1 Regular Interest LT-M3 and REMIC 1 Regular
Interest LT-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 1 Regular Interest LT-M3 has been reduced to zero; eighth, to
the Uncertificated Principal Balances of REMIC 1 Regular Interest LT-AA, REMIC 1
Regular Interest LT-M2 and REMIC 1 Regular Interest LT-ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 1 Regular
Interest LT-M2 has been reduced to zero; and ninth, to the Uncertificated
Principal Balances of REMIC 1 Regular Interest LT-AA, REMIC 1 Regular Interest
LT-M1 and REMIC 1 Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Principal Balance of REMIC 1 Regular Interest LT-M1 has been
reduced to zero.
Realized Losses shall be allocated to the Class C Interest in the same
manner and priority as such amounts are allocated to the Class C Certificates.
Section 4.06. Information Reports to Be Filed by the Servicer.
The Servicer shall file information reports with respect, to the extent
set forth in the Servicing Agreements, to the receipt of mortgage interest
received in a trade or business, foreclosures and abandonments of any Mortgaged
Property and the information returns relating to cancellation of indebtedness
income with respect to any Mortgaged Property required by Sections 6050H, 6050J
and 6050P of the Code, respectively, and deliver to the Securities Administrator
an Officers' Certificate stating that such reports have been filed. Such reports
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shall be in form and substance sufficient to meet the reporting requirements
imposed by such Sections 6050H, 6050J and 6050P of the Code.
Section 4.07. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement the Securities
Administrator shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount on the
Mortgage Loans, that the Securities Administrator reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for such withholding. In the event the Securities Administrator
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Securities Administrator shall, together with its monthly
report to such Certificateholders pursuant to Section 4.02 hereof, indicate such
amount withheld.
Section 4.08. Basis Risk Shortfall Reserve Fund.
(a) On the Closing Date, the Securities Administrator shall
establish and maintain in its name, in trust for the benefit
of Offered Certificates, the Basis Risk Shortfall Reserve Fund.
(b) On each Distribution Date, the Securities Administrator shall
transfer from the Certificate Account to the Basis Risk Shortfall Reserve Fund
the amounts specified pursuant to Sections 4.01(c)(iv) and (g). On each
Distribution Date, to the extent required, the Securities Administrator shall
make withdrawals from the Basis Risk Shortfall Reserve Fund and use the amounts
in the Basis Risk Shortfall Reserve Fund to make distributions to the Offered
Certificates in an amount equal to the amount of any Basis Risk Shortfall
Carry-Forward Amount on such Certificates. Any such amounts from the Corridor
Contracts shall be distributed in the same order of priority set forth in
Section 4.01(f) above. Any such amounts from the Net Monthly Excess Cashflow
shall be distributed first, sequentially to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3A
and Class A-3B Certificates, in that order and second, sequentially to the Class
▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class
M-8 Certificates, in that order, in each case until the related Basis Risk
Shortfall Carry-Forward Amount has been reduced to zero. Any such amounts (other
than any amounts paid to the Basis Risk Shortfall Reserve Fund by the Corridor
Contracts) transferred shall be treated for federal tax purposes as amounts
distributed by REMIC 2 to the Holder of the Class C Interest. On the 30th
Distribution Date, after the distributions described in the preceding sentence,
the Securities Administrator shall withdraw from the Basis Risk Shortfall
Reserve Fund (to the extent of funds available on deposit therein) any remaining
amounts and distribute them to the Holders of the Class C Interest, not in
respect of any REMIC.
(c) The Basis Risk Shortfall Reserve Fund shall be an Eligible
Account. Amounts held in the Basis Risk Shortfall Reserve Fund from time to time
shall continue to constitute assets of the Trust Fund, but not of the REMICs,
until released from the Basis Risk Shortfall Reserve Fund pursuant to this
Section 4.08. The Basis Risk Shortfall Reserve Fund constitutes an "outside
reserve fund" within the meaning of Treasury Regulation ss. 1.860G-2(h) and is
not an asset of any REMIC. The Holders of the Class C Certificates shall be the
owner of the Basis Risk Shortfall Reserve Fund. The Securities Administrator
shall keep records that accurately reflect
89
the funds on deposit in the Basis Risk Shortfall Reserve Fund. The Securities
Administrator shall, at the written direction of the holder of the Majority
Class C Certificateholder, invest amounts on deposit in the Basis Risk Shortfall
Reserve Fund in Permitted Investments. In the absence of written direction to
the Securities Administrator from the Majority Class C Certificateholder, all
funds in the Basis Risk Shortfall Reserve Fund shall remain uninvested. On each
Distribution Date, the Securities Administrator shall distribute, not in respect
of any REMIC, any interest earned on the Basis Risk Shortfall Reserve Fund to
the Holders of the Class C Certificates.
(d) For federal tax return and information reporting, the value of
the right of the Holders of the Offered Certificates to receive payments from
the reserve fund in respect of any Basis Risk Shortfall Carry-Forward Amount
will be $1,120,000 and $433,000 with respect to the Class A Certificates and
Class M Certificates, respectively. Such information will be provided to the
Trustee by the Underwriter on or prior to the Closing Date.
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ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A and B-1 through B-4. The Certificates will be
issuable in registered form only. The Certificates (other than the Class P
Certificates, the Class C Certificates and the Residual Certificates) will be
issued in minimum denominations of $25,000 Initial Certificate Principal Balance
and integral multiples of $1 in excess thereof. The Class C Certificates will be
issued in minimum denominations of $1.00 Initial Notional Amount and integral
multiples of $1.00 in excess thereof. The Class P Certificates and the Residual
Certificates will each be issuable in minimum denominations of any Percentage
Interest representing 20.00% and multiples of 0.01% in excess thereof.
Upon original issue, the Certificates shall, upon the written request
of the Company executed by an officer of the Company, be executed and delivered
by the Securities Administrator, authenticated by the Securities Administrator
and delivered to or upon the order of the Company upon receipt by the Securities
Administrator of the documents specified in Section 2.01. The Certificates shall
be executed by manual or facsimile signature on behalf of the Securities
Administrator by a Responsible Officer. Certificates bearing the manual or
facsimile signatures of individuals who were at the time they signed the proper
officers of the Securities Administrator shall bind the Securities
Administrator, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Securities Administrator by manual signature, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates issued on the Closing Date shall be dated the Closing Date and any
Certificates delivered thereafter shall be dated the date of their
authentication.
(b) The Class A Certificates and the Class M Certificates shall
initially be issued as one or more Certificates registered in the name of the
Company or its nominee and, except as provided below, registration of such
Certificates may not be transferred by the Securities Administrator except to
another Company that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to each of such
Book-Entry Certificates through the book-entry facilities of the Company and,
except as provided below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Company Participant or
brokerage firm representing such Certificate Owner. Each Company Participant
shall transfer the Ownership Interests only in the Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Company's normal procedures. The Securities
91
Administrator shall not be required to monitor, determine or inquire as to
compliance with the transfer restrictions with respect to the Book-Entry
Certificates, and the Securities Administrator shall have no liability for
transfers of Ownership Interests in the Book Entry Certificates made through the
book-entry facilities of the Depositary or between or among Depositary
Participants or Certificate Owners, made in violation of the applicable
restrictions.
The Trustee, the Securities Administrator, the Master Servicer and the
Company may for all purposes (including the making of payments due on the
respective Classes of Book-Entry Certificates) deal with the Company as the
authorized representative of the Certificate Owners with respect to the
respective Classes of Book-Entry Certificates for the purposes of exercising the
rights of Certificateholders hereunder. The rights of Certificate Owners with
respect to the respective Classes of Book-Entry Certificates shall be limited to
those established by law and agreements between such Certificate Owners and the
Company Participants and brokerage firms representing such Certificate Owners.
Multiple requests and directions from, and votes of, the Company as Holder of
any Class of Book-Entry Certificates with respect to any particular matter shall
not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Securities Administrator may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Company of such record date.
If (i)(A) the Company advises the Securities Administrator in writing
that the Company is no longer willing or able to properly discharge its
responsibilities as Company and (B) the Company is unable to locate a qualified
successor or (ii) the Company at its option advises the Securities Administrator
in writing that it elects to terminate the book-entry system through the
Company, the Securities Administrator shall notify all Certificate Owners,
through the Company, of the occurrence of any such event and of the availability
of Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Securities Administrator of the Book-Entry Certificates by the
Company, accompanied by registration instructions from the Company for
registration of transfer, the Securities Administrator shall, at the expense of
the Company, issue the Definitive Certificates. Neither the Company, the Master
Servicer nor the Securities Administrator shall be liable for any actions taken
by the Company or its nominee, including, without limitation, any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates the Trustee, the Securities Administrator and the Master Servicer
shall recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(c) Each Certificate is intended to be a "security" governed by
Article 8 of the Uniform Commercial Code as in effect in the State of New York
and any other applicable jurisdiction, to the extent that any of such laws may
be applicable.
Section 5.02. Registration of Transfer and Exchange of Certificates.
(a) The Securities Administrator shall maintain a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Securities Administrator shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided.
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(b) Except as provided in Section 5.02(c), no transfer, sale,
pledge or other disposition of a Class P, Class C or Residual Certificate shall
be made unless such transfer, sale, pledge or other disposition is exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Act"), and any applicable state securities laws or is made in accordance with
said Act and laws. In the event that a transfer of a Class P, Class C or
Residual Certificate is to be made under this Section 5.02(b), (i) the
Securities Administrator shall require an Opinion of Counsel acceptable to and
in form and substance satisfactory to the Securities Administrator that such
transfer shall be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from said Act and laws or is being made
pursuant to said Act and laws, which Opinion of Counsel shall not be an expense
of the Securities Administrator, the Trustee, the Company or the Master
Servicer, provided that such Opinion of Counsel will not be required in
connection with the initial transfer of any such Certificate by the Company or
any affiliate thereof, to a non-affiliate of the Company and (ii) the Securities
Administrator shall require the transferee to execute a representation letter,
substantially in the form of Exhibit G-1 hereto, and the Securities
Administrator shall require the transferor to execute a representation letter,
substantially in the form of Exhibit G-2 hereto, each acceptable to and in form
and substance satisfactory to the Securities Administrator certifying to the
Company and the Securities Administrator the facts surrounding such transfer,
which representation letters shall not be an expense of the Securities
Administrator, the Trustee, the Company or the Master Servicer; PROVIDED,
HOWEVER, that such representation letters will not be required in connection
with any transfer of any such Certificate by the Company to an affiliate of the
Company and the Securities Administrator shall be entitled to conclusively rely
upon a representation (which, upon the request of the Securities Administrator,
shall be a written representation) from the Company of the status of such
transferee as an affiliate of the Company. Any such Certificateholder desiring
to effect such transfer shall, and does hereby agree to, indemnify the
Securities Administrator, the Trustee, the Company and the Master Servicer
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such applicable federal and state laws.
(c) Notwithstanding the requirements of Section 5.02(b), transfers
of Class P, Class C and Residual Certificates may be made in accordance with
this Section 5.02(c) if the prospective transferee of a Certificate provides the
Securities Administrator and the Company with an investment letter substantially
in the form of Exhibit G-3 attached hereto, which investment letter shall not be
an expense of the Securities Administrator, the Trustee, the Company or the
Master Servicer, and which investment letter states that, among other things,
such transferee is a "qualified institutional buyer" as defined under Rule 144A.
Such transfers shall be deemed to have complied with the requirements of Section
5.02(b) hereof; PROVIDED, HOWEVER, that no Transfer of any of the Class P
Certificates, Class C Certificates or Residual Certificates may be made pursuant
to this Section 5.02(c) by the Company. Any such Certificateholder desiring to
effect such transfer shall, and does hereby agree to, indemnify the Securities
Administrator, the Trustee, the Company and the Master Servicer against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such applicable federal and state laws.
The Securities Administrator shall require an Opinion of Counsel, on
which the Securities Administrator, the Trustee, the Company or the Master
Servicer may rely, from a prospective transferee prior to the transfer of any
Class P, Class C, Class R or Class R-X Certificate to any employee benefit plan
or other retirement arrangement, including an individual
93
retirement account or ▇▇▇▇▇ plan, that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
(any of the foregoing, a "Plan"), to a trustee or other Person acting on behalf
of any Plan, or to any other person who is using "plan assets" of any Plan to
effect such acquisition (including any insurance company using funds in its
general or separate accounts that may constitute "plan assets"). Such Opinion of
Counsel must establish to the satisfaction of the Securities Administrator that
such transfer is permissible under applicable law, will not constitute or result
in a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code, and will not subject the Securities Administrator, the Trustee, the Master
Servicer or the Company to any obligation in addition to those undertaken in
this Agreement. None of the Company, the Master Servicer, the Securities
Administrator or the Trustee will be required to obtain such Opinion of Counsel
on behalf of any prospective transferee. A purchaser of a Class P, Class C,
Class R or Class R-X Certificate shall be deemed to represent to the Securities
Administrator, the Trustee, the Master Servicer and the Company that it is not a
Plan or using assets of a Plan if it does not provide such an Opinion of
Counsel.
Each beneficial owner of a Class M 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 a
trustee or other Person acting on behalf of a Plan or using "plan assets" of a
Plan to effect such acquisition (including any insurance company using funds in
its general or separate accounts that may constitute "plan assets"), (ii) it has
acquired and is holding such certificate in reliance on Prohibited Transaction
Exemption 2002-41 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 Ratings or
▇▇▇▇▇'▇, 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) [Reserved]
(e) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee or its designee under clause
(iii)(A) below to deliver payments to a Person other than such Person and to
negotiate the terms of any mandatory sale under clause (iii)(B) below and to
execute all instruments of transfer and to do all other things necessary in
connection with any such sale. The rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the following
provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Securities Administrator of any change or
impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Securities
Administrator shall require delivery to it, and shall not
94
register the Transfer of any Residual Certificate until its receipt of
(I) an affidavit and agreement (a "Transfer Affidavit and Agreement" in
the form attached hereto as Exhibit G-5) from the proposed Transferee,
in form and substance satisfactory to the Securities Administrator
representing and warranting, among other things, that it is a Permitted
Transferee, that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person who is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in a
Residual Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this Section
5.02 and agrees to be bound by them, and (II) a certificate, in the
form attached hereto as Exhibit G-4, from the Holder wishing to
transfer the Residual Certificate, in form and substance satisfactory
to the Securities Administrator representing and warranting, among
other things, that no purpose of the proposed Transfer is to impede the
assessment or collection of tax.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Securities Administrator assigned to this
transaction has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (x) to require a
Transfer Affidavit and Agreement from any other Person to whom such
Person attempts to transfer its Ownership Interest in a Residual
Certificate and (y) not to transfer its Ownership Interest unless it
provides a certificate to the Securities Administrator in the form
attached hereto as Exhibit G-4.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing an Ownership Interest
in such Certificate, agrees to give the Securities Administrator
written notice that it is a "pass-through interest holder" within the
meaning of Temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring an Ownership Interest in a Residual
Certificate, if it is "a pass-through interest holder", or is holding
an Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder."
(ii) The Securities Administrator will register the
Transfer of any Residual Certificate only if it shall have received the
Transfer Affidavit and Agreement in the form attached hereto as Exhibit
G-5, a certificate of the Holder requesting such transfer in the form
attached hereto as Exhibit G-4 and all of such other documents as shall
have been reasonably required by the Securities Administrator as a
condition to such registration. Transfers of the Residual Certificates
other than to Permitted Transferees are prohibited.
(iii) (A) If any Person other than a Permitted Transferee
shall become a Holder of a Residual Certificate, then the last
preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such
Residual Certificate. If a Non-United States Person shall become a
Holder of a Residual Certificate, then the last preceding Permitted
Transferee shall be restored, to the extent permitted by law, to all
95
rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. If a
transfer of a Residual Certificate is disregarded pursuant to the
provisions of Treasury Regulations Section 1.860E-1 or Section
1.860G-3, then the last preceding Permitted Transferee shall be
restored, to the extent permitted by law, to all rights and obligations
as Holder thereof retroactive to the date of registration of such
transfer of such Residual Certificate. The prior Holder shall be
entitled to recover from any purported Holder of a Residual Certificate
that was in fact not a Permitted Transferee under this Section 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 clause (b) and to any amendment of this Agreement
deemed necessary (whether as a result of new legislation or otherwise)
by counsel of the Company to ensure that the Residual Certificates are
not transferred to any Person who is not a Permitted Transferee and
that any transfer of such Residual Certificates will not cause the
imposition of a tax upon the Trust or cause any such REMIC to fail to
qualify as a REMIC. The Securities Administrator shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 5.02 or for
making any payments due on such Certificate to the Holder thereof or
for taking any other action with respect to such Holder under the
provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the restrictions in this Section
5.02 and to the extent that the retroactive restoration of the rights
of the Holder of such Residual Certificate as described in clause
(iii)(A) above shall be invalid, illegal or unenforceable, then the
Securities Administrator shall have the right, without notice to the
Holder or any prior Holder of such Residual Certificate, to sell such
Residual Certificate to a purchaser selected by the Securities
Administrator on such terms as the Securities Administrator may choose.
Such purported Transferee shall promptly endorse and deliver each
Residual Certificate in accordance with the instructions of the
Securities Administrator. Such purchaser may be the Securities
Administrator itself. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Securities
Administrator), expenses and taxes due, if any, will be remitted by the
Securities Administrator to such purported Transferee. The terms and
conditions of any sale under this clause (iii)(B) shall be determined
in the sole discretion of the Securities Administrator, and the
Securities Administrator shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion.
(iv) The Securities Administrator shall make available to
the Internal Revenue Service and those Persons specified by the REMIC
Provisions, all information necessary to compute any tax imposed (A) as
a result of the transfer of an ownership interest in a Residual
Certificate to any Person who is a Disqualified Organization, including
the information regarding "excess inclusions" of such Residual
Certificates required to be provided to the Internal Revenue Service
and certain Persons as described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5), and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of
the Code that holds
96
an Ownership Interest in a Residual Certificate having as among its
record Holders at any time any Person who is a Disqualified
Organization. The Securities Administrator may charge and shall be
entitled to reasonable compensation for providing such information as
may be required from those Persons which may have had a tax imposed
upon them as specified in clauses (A) and (B) of this paragraph for
providing such information.
(v) Subject to the preceding paragraphs, upon surrender
for registration of transfer of any Certificate at the office of the
Securities Administrator maintained for such purpose, the Securities
Administrator shall execute and the Securities Administrator shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class of a like
aggregate Percentage Interest. Every Certificate surrendered for
transfer shall be accompanied by notification of the account of the
designated transferee or transferees for the purpose of receiving
distributions pursuant to Section 4.01 by wire transfer, if any such
transferee desires and is eligible for distribution by wire transfer.
(vi) At the option of the Certificateholders, Certificates
may be exchanged for other Certificates of authorized denominations of
the same Class of a like aggregate Percentage Interest, upon surrender
of the Certificates to be exchanged at the office of the Securities
Administrator. Whenever any Certificates are so surrendered for
exchange the Securities Administrator shall execute, authenticate and
deliver the Certificates which the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or
surrendered for transfer or exchange shall (if so required by the
Trustee) be duly endorsed by, or be accompanied by a written instrument
of transfer in the form satisfactory to the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing. In
addition, with respect to each Class R Certificate, the Holder thereof
may exchange, in the manner described above, such Class R Certificate
for two separate Certificates, each representing such Holder's
respective Percentage Interest in the Class R-1 Interest and the Class
R-2 Interest, respectively, in each case that was evidenced by the
Class R Certificate being exchanged. In addition, with respect to each
Class R-X Certificate, the Holder thereof may exchange, in the manner
described above, such Class R-X Certificate for two separate
Certificates, each representing such Holder's respective Percentage
Interest in the Class R-3 and the Class R-4 Interest, respectively, in
each case that was evidenced by the Class R-X Certificate being
exchanged.
(vii) No service charge shall be made to the
Certificateholders for any transfer or exchange of Certificates, but
the Securities Administrator 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.
(viii) All Certificates surrendered for transfer and
exchange shall be canceled and retained by the Securities Administrator
in accordance with the Securities Administrator's standard procedures.
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Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Securities
Administrator and the Securities Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Securities Administrator such security or indemnity as
may be required by it to save it harmless, then, in the absence of notice to the
Securities Administrator that such Certificate has been acquired by a bona fide
purchaser, the Securities Administrator shall execute, authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and Percentage Interest. Upon
the issuance of any new Certificate under this Section 5.03, the Securities
Administrator 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 Securities Administrator)
connected therewith. Any replacement Certificate issued pursuant to this Section
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.
The Company, the Master Servicer, Securities Administrator, the
Insurer, the Trustee and any agent of any of them 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 4.01 and for all other
purposes whatsoever, and neither the Company, the Master Servicer, the Insurer,
the Trustee nor any agent of any of them shall be affected by notice to the
contrary.
Section 5.05. Rule 144A Information.
For so long as any Class P, Class C and Residual Certificates are
outstanding and are "restricted securities" within the meaning of Rule 144(a)(3)
of the Securities Act, (1) the Company will provide or cause to be provided to
any Holder of such 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 Company 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. The Master Servicer shall
cooperate with the Company and furnish the Company such information in the
Master Servicer's possession as the Company may reasonably request.
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ARTICLE VI
THE COMPANY AND THE MASTER SERVICER
Section 6.01. Liability of the Company and the Master Servicer.
The Company and the Master Servicer each shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and
undertaken by the Company and the Master Servicer herein. Only the Master
Servicer, any successor Master Servicer or the Trustee acting as Master Servicer
shall be liable with respect to the master servicing of the Mortgage Loans and
the REO Property for actions taken by any such Person in contravention of the
Master Servicer's duties hereunder.
Section 6.02. Merger, Consolidation or Conversion of the Company or
the Master Servicer.
The Company and the Master Servicer each will keep in full effect its
existence, rights and franchises as a corporation under the laws of the state of
its incorporation, and each 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 respective duties under this Agreement.
Any Person into which the Company or the Master Servicer may be merged,
consolidated or converted, or any corporation resulting from any merger or
consolidation to which the Company or the Master Servicer shall be a party, or
any Person succeeding to the business of the Company or the Master Servicer,
shall be the successor of the Company or the Master Servicer, as the case may
be, 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 to
the Master Servicer or an affiliate thereof shall be qualified to service
mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Section 6.03. Limitation on Liability of the Company, the Master
Servicer, the Securities Administrator and Others.
Neither the Company, the Master Servicer nor any of the directors,
officers, employees or agents of the Company or the Master Servicer shall be
under any liability to the Trust Fund or the Certificateholders 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 the Master Servicer (but this
provision shall protect the above described persons) against any breach of
warranties or representations made herein, or against any specific liability
imposed on the Master Servicer pursuant to Section 3.01 or any other Section
hereof; and provided further that this provision shall not protect the Company,
the Master Servicer or any such person, against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Company, the Master Servicer and any
director, officer, employee or agent of the Company or the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by
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any Person respecting any matters arising hereunder. The Company, the Custodian,
the Master Servicer, the Securities Administrator, and any director, officer,
employee or agent of the Company, the Custodian, the Master Servicer or the
Securities Administrator shall be indemnified and held harmless by the Trust
Fund (with respect to the Master Servicer, Custodian and Securities
Administrator, in the aggregate up to a limit of $500,000 per calendar year,
against any loss, liability or expense incurred in connection with this
Agreement, the Custodial Agreement or the Certificates or the Mortgage Loans
(including reasonable legal fees and disbursements of counsel), other than (a)
any loss, liability or expense related to Master Servicer's master servicing
obligations with respect to any specific Mortgage Loan or Mortgage Loans (except
as any such loss, liability or expense shall be otherwise reimbursable pursuant
to this Agreement) or related to the Master Servicer's obligations under Section
3.01, or to the Custodian's failure to perform its duties under the Custodial
Agreement, respectively, or (b) any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of the Company, the Master Servicer, the Custodian or the
Securities Administrator shall be under any obligation to appear in, prosecute
or defend any legal action which is not incidental to its respective duties
under this Agreement and which in its opinion may involve it in any expense or
liability; PROVIDED, HOWEVER, that the Company, the Master Servicer, the
Custodian or the Securities Administrator may in its sole discretion undertake
any such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom (except any action or
liability related to the Master Servicer's obligations under Section 3.01) shall
be expenses, costs and liabilities of the Trust Fund, and the Company, the
Custodian, the Master Servicer and the Securities Administrator shall be
entitled to be reimbursed therefor from the Certificate Account as provided in
Section 3.18, any such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the Certificate Account.
Section 6.04. Limitation on Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor master servicer
reasonably acceptable to the Trustee upon receipt by the Trustee of a letter
from each Rating Agency (obtained by the Master Servicer and at its expense)
that such a resignation and appointment will not, in and of itself, result in a
downgrading of the Certificates or (b) upon determination that its duties
hereunder are no longer permissible under applicable law. Any such determination
described in (b) above permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel (at the expense of the resigning Master
Servicer) to such effect delivered to the Trustee. No such resignation shall
become effective until the Trustee or a successor servicer shall have assumed
the Master Servicer's responsibilities, duties, liabilities and obligations
hereunder. Any resignation of the Master Servicer shall result in the automatic
resignation of the Securities Administrator.
Section 6.05. Sale and Assignment of Master Servicing.
The Master Servicer may sell and assign its rights and delegate its
duties and obligations in their 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
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shall be qualified to service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b)
shall, in the case of successor master servicers only, 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) as having a comparable master
servicing ability to that of the Master Servicer on the Closing Date; (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 and 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 or withdrawn as a result
of such assignment, sale and delegation, as evidenced by a letter to such effect
obtained by the Master Servicer at its expense and delivered to 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 Counsel (at
the expense of the Master Servicer), 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.
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ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into
the Certificate Account on each Certificate Account Deposit Date the
amounts required to be deposited therein (other than an Advance) under
the terms of this Agreement which continues unremedied for one (1)
Business Day after such amount was required to be remitted; or
(ii) any failure on the part of the Master Servicer duly
to observe or perform in any material respect any other of the
covenants or agreements on the part of the Master Servicer contained in
the Certificates or in this Agreement (including any breach of the
Master Servicer's representations and warranties pursuant to Section
2.03(a) which materially and adversely affects the interests of the
Certificateholders) which continues unremedied for a period of 60 days
after the date on which written notice of such failure, 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 entitled to at least 25% of the Voting Rights; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such
decree or order shall have remained in force undischarged or unstayed
for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or of or relating to
all or substantially all of its property; or
(v) the Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of or otherwise voluntarily commence a case
or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) the Master Servicer shall fail to deposit in the
Certificate Account on any Certificate Account Deposit Date an amount
equal to any required Advance which continues unremedied for a period
of one (1) Business Day after the Business Day immediately preceding
the related Distribution Date.
If an Event of Default described in clauses (i) - (vi) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the
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Trustee or the Holders of Certificates entitled to at least 51% of the Voting
Rights, by notice in writing to the Master Servicer (and to the Trustee if given
by such Holders of 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 Trust Fund, other than
its rights as a Certificateholder hereunder; PROVIDED, HOWEVER, that the
successor to the Master Servicer appointed pursuant to Section 7.02 shall have
accepted the duties of Master Servicer effective upon the resignation or
termination of the Master Servicer. On or after the receipt by the Master
Servicer of such notice, all authority and power of the Master Servicer under
this Agreement, whether with respect to the Certificates (other than as a Holder
thereof) or the Mortgage Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, 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 at the expense of the Master Servicer. The
Master Servicer agrees to cooperate with (and pay any related costs and expenses
of) the Trustee in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the Trustee or the successor Master Servicer for administration by
it of (i) the property and amounts which are then or should be part of the Trust
Fund or which thereafter become part of the Trust Fund; (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; (iii) the rights
and obligations of the Master Servicer under the Subservicing Agreements with
respect to the Mortgage Loans; and (iv) all cash amounts which shall at the time
be deposited by the Master Servicer or should have been deposited to the
Custodial or the Certificate Account or thereafter be received with respect to
the Mortgage Loans. The Trustee shall not be deemed to have breached any
obligation hereunder as a result of a failure to make or delay in making any
distribution as and when required hereunder caused by the failure of the Master
Servicer to remit any amounts received by it or to deliver any documents held by
it with respect to the Mortgage Loans. For purposes of this Section 7.01, the
Trustee shall not be deemed to have knowledge of an Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless notice
of any event which is in fact such an Event of Default is received by the
Trustee as provided in Section 11.05 and such notice references the
Certificates, the Trust Fund or this Agreement.
Section 7.02. Trustee to Act; Appointment of Successor.
Within 90 days of the time the Master Servicer receives a notice of
termination pursuant to Section 7.01(i) - (vi), the Trustee or its appointed
agent shall be the successor in all respects to the Master Servicer in its
capacity as Master Servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject thereafter to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer including the obligation to make Advances which have been or will be
required to be made (except for the responsibilities, duties and liabilities
contained in Section 2.03 and its obligations to deposit amounts in respect of
losses pursuant to 4.01(i)) by the terms and provisions hereof; and provided
further, that any failure to perform such duties or responsibilities caused by
the Master Servicer's failure to provide information required by Section 4.03
shall not be considered a default by the Trustee hereunder. As compensation
therefor, the Trustee shall be entitled to all funds relating to the
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Mortgage Loans which the Master Servicer would have been entitled to charge to
the Custodial Account and the Certificate Account if the Master Servicer had
continued to act hereunder. If the Trustee has become the successor to the
Master Servicer in accordance with Section 6.04 or Section 7.02, then
notwithstanding the above, if the Trustee shall be unwilling to so act, or shall
be unable to so act, the Trustee may appoint, or petition a court of competent
jurisdiction to appoint, any established housing and home finance institution,
which is also a ▇▇▇▇▇▇ Mae- or ▇▇▇▇▇▇▇ Mac-approved mortgage servicing
institution, 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.
Pending appointment of a successor to the Master Servicer hereunder, the Trustee
shall act in such capacity as herein above provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that no such compensation shall be in
excess of that permitted the Master Servicer hereunder. Each of the Company, the
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. In no event
shall the successor Master Servicer be liable for the acts or omissions of the
predecessor Master Servicer.
In connection with the termination or resignation of the Master
Servicer hereunder, either (i) the successor Master Servicer, including the
Trustee if the Trustee is acting as successor Master Servicer, shall represent
and warrant that it is a member of MERS in good standing and shall agree to
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS, in which case the predecessor Master Servicer shall cooperate with the
successor Master Servicer in causing MERS to revise its records to reflect the
transfer of servicing to the successor Master Servicer as necessary under MERS'
rules and regulations, or (ii) the predecessor Master Servicer shall cooperate
with the successor Master Servicer in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS to
the Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS(R) System to the
successor Master Servicer. The predecessor Master Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Master Servicer shall bear any and all fees of MERS, costs of
preparing any assignments of Mortgage, and fees and costs of filing any
assignments of Mortgage that may be required under this Section 7.02. The
successor Master Servicer shall cause such assignment to be delivered to the
Trustee promptly upon receipt of the original with evidence of recording thereon
or a copy certified by the public recording office in which such assignment was
recorded.
Any successor, including the Trustee, to the Master Servicer shall
maintain in force during its term as master servicer hereunder policies and
fidelity bonds to the same extent as the Master Servicer is so required pursuant
to Section 3.18.
Notwithstanding anything else herein to the contrary, in no event shall
the Trustee be liable for any Master Servicing Fee or for any differential in
the amount of the Master Servicing Fee paid hereunder and the amount necessary
to induce any successor Master Servicer to act as
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successor Master Servicer under this Agreement and the transactions set forth or
provided for herein.
Section 7.03. Notification to Certificateholders.
(a) Upon any such termination or appointment of a successor to the
Master Servicer, the Trustee shall give prompt notice thereof to
Certificateholders and to the Rating Agencies.
(b) Within 60 days after the occurrence of any Event of Default,
the Trustee shall transmit by mail to all Holders of Certificates notice of each
such Event of Default hereunder known to the Trustee, unless such Event of
Default shall have been cured or waived.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 51% of the Voting Rights of
Certificates affected by a default or Event of Default hereunder, may waive such
default or Event of Default (other than an Event of Default set forth in Section
7.01(vi)); PROVIDED, HOWEVER, that (a) a default or Event of Default under
clause (i) of Section 7.01 may be waived only by all of the Holders of
Certificates affected by such default or Event of Default and (b) no waiver
pursuant to this Section 7.04 shall affect the Holders of Certificates in the
manner set forth in the second paragraph of Section 11.01 or materially
adversely affect any non-consenting Certificateholder. Upon any such waiver of a
default or Event of Default by the Holders representing the requisite percentage
of Voting Rights of Certificates affected by such default or Event of Default,
such default or Event of Default shall cease to exist and shall be deemed to
have been remedied for every purpose hereunder. No such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon except to the extent expressly so waived. The Master Servicer
shall give notice of any such waiver to the Rating Agencies.
Section 7.05. List of Certificateholders.
Upon written request of three or more Certificateholders of record, for
purposes of communicating with other Certificateholders with respect to their
rights under this Agreement, the Securities Administrator will afford such
Certificateholders access during business hours to the most recent list of
Certificateholders held by the Securities Administrator.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND SECURITIES ADMINISTRATOR
Section 8.01. Duties of Trustee and the Securities Administrator.
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, and the
Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Trustee
and the Securities Administrator, respectively. If an Event of Default occurs,
is continuing and has not been waived, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of the
Trustee enumerated in this Agreement shall not be construed as a duty.
The Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee and the Securities Administrator
which are specifically required to be furnished pursuant to any provision of
this Agreement, the Trustee and the Securities Administrator, respectively,
shall examine them in accordance with the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee or the Securities Administrator, as applicable,
shall take such action as it deems appropriate to have the instrument corrected,
and if the instrument is not corrected to the Trustee's or the Securities
Administrator's, as applicable, satisfaction, the Trustee or the Securities
Administrator, as applicable, will provide notice thereof to the
Certificateholders and to the Insurer. Notwithstanding the foregoing, neither
the Trustee nor the Securities Administrator shall be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Master Servicer hereunder
or any Opinion of Counsel required hereunder.
The Securities Administrator shall prepare and file or cause to be
filed on behalf of the Trust Fund any tax return that is required with respect
to any Trust REMIC pursuant to applicable federal, state or local tax laws.
The Securities Administrator covenants and agrees that it shall perform
its obligations hereunder in a manner so as to maintain the status of any Trust
REMIC under the REMIC Provisions and to prevent the imposition of any federal,
state or local income, prohibited transaction, contribution or other tax on any
of any Trust REMIC to the extent that maintaining such status and avoiding such
taxes are within the control of the Securities Administrator and are reasonably
within the scope of its duties under this Agreement.
No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) The duties and obligations of the Trustee prior to
the occurrence of an Event of Default, and after the curing or waiver
of all such Events of Default which may
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have occurred and the Securities Administrator, at all times, shall be
determined solely by the express provisions of this Agreement, neither
the Trustee nor the Securities Administrator shall be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee or the Securities
Administrator and, in the absence of bad faith on the part of the
Trustee or the Securities Administrator, respectively, the Trustee or
the Securities Administrator 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 or the
Securities Administrator and conforming to the requirements of this
Agreement;
(ii) Neither the Trustee nor the Securities Administrator
shall be liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee or of the
Securities Administrator, as applicable, unless it shall be proved that
the Trustee or Securities Administrator, respectively, was negligent in
ascertaining the pertinent facts; and
(iii) Neither the Trustee nor the Securities Administrator
shall be liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with the direction of the
Holders of Certificates entitled to at least 25% of the Voting Rights
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee or the Securities Administrator,
respectively, or exercising any trust or power conferred upon the
Trustee or the Securities Administrator, respectively, under this
Agreement.
Section 8.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
Except as otherwise provided in Section 8.01:
(a) The Trustee and the Securities Administrator may conclusively
rely upon and shall be fully protected in acting or refraining from acting in
reliance upon any resolution, Officers' Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document reasonably believed
by it to be genuine and to have been signed or presented by the proper party or
parties;
(b) The Trustee and the Securities Administrator may consult with
counsel and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(c) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it by
this Agreement, other than its obligation to give notice 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 or Securities Administrator
security or indemnity satisfactory to it against the costs, expenses and
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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's corporate trust
department has actual knowledge (which has not been waived or cured), 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 man would
exercise or use under the circumstances in the conduct of his own affairs;
(d) Neither the Trustee nor the Securities Administrator shall 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;
(e) Neither the Trustee 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, nor the Securities Administrator, at any time, shall 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 the Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that if the payment within a reasonable time to the
Trustee or Securities Administrator, as applicable, 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 or Securities Administrator, as applicable,
reasonably assured to the Trustee or the Securities Administrator, as
applicable, by the security afforded to it by the terms of this Agreement
reasonable expense of every such examination shall be paid by the
Certificateholders requesting the investigation;
(f) The Trustee and the Securities Administrator may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys appointed
with due care, and shall not be responsible for any willful misconduct or
negligence on the part of any agent, attorney, custodian or nominee so
appointed;
(g) Neither the Trustee nor the Securities Administrator shall be
required to give any bond or surety with respect to the execution of the trust
created hereby or the powers granted hereunder; and
(h) Whenever in the administration of the provisions of this
Agreement the Trustee and the Securities Administrator shall deem it necessary
or desirable that a matter be proved or established prior to taking or suffering
any action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of gross
negligence or bad faith on the part of the Trustee or the Securities
Administrator, as applicable, be deemed to be conclusively proved and
established by a certificate signed and delivered to the Trustee or Securities
Administrator, as applicable, and such certificate, in the absence of gross
negligence or bad faith on the part of the Trustee or Securities Administrator,
as applicable, shall be full warrant to the Trustee or Securities Administrator,
as applicable, for any action taken, suffered or omitted by it under the
provisions of this Agreement upon the faith thereof.
Neither the Trustee nor the Securities Administrator shall have any
obligation to invest and reinvest any cash held. The Trustee and the Securities
Administrator shall have no liability
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in respect of losses incurred as a result of the liquidation of any investment
incurred as a result of the liquidation of any investment prior to its stated
maturity.
Section 8.03. Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
signature of the Securities Administrator, the authentication of the Securities
Administrator on the Certificates, the acknowledgments of the Securities
Administrator contained in Article II) shall be taken as the statements of the
Company and neither the Trustee nor the Securities Administrator assumes any
responsibility for their correctness. Neither the Trustee nor the Securities
Administrator makes any representations or warranties as to the validity or
sufficiency of this Agreement or of the Certificates (other than the signature
and authentication of the Trustee on the Certificates) or of any Mortgage Loan
or related document, or of MERS or the MERS(R) System. Neither the Trustee nor
the Securities Administrator shall be accountable for the use or application by
the Company of any of the Certificates or of the proceeds of such Certificates,
or for the use or application of any funds paid to the Company or the Master
Servicer in respect of the Mortgage Loans or deposited in or withdrawn from the
Custodial Account by the Master Servicer.
Section 8.04. Trustee and Securities Administrator May Own
Certificates.
Each of the Trustee and the Securities Administrator in its individual
or any other capacity (other than as Trustee hereunder) may become the owner or
pledgee of Certificates with the same rights it would have if it were not
Trustee or the Securities Administrator, as applicable, and may otherwise deal
with the parties hereto.
Section 8.05. Trustee's and Securities Administrator's Fees.
Each of the Trustee and Securities Administrator shall be compensated
by the Master Servicer. Such compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
shall be paid for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder or of the Trustee and the Securities Administrator. Except as
otherwise provided in this Agreement, the Trustee and any director, officer,
employee or agent of the Trustee shall be indemnified and held harmless by the
Trust Fund against any claim, loss, liability, fee or expense incurred 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)
relating to the acceptance or administration of its trusts hereunder or the
Trustee's performance under the Certificates, other than any claim, loss,
liability or expense (i) sustained in connection with this Agreement related to
the willful misfeasance, bad faith or negligence of the Master Servicer in the
performance of its duties hereunder or (ii) incurred in connection with a breach
constituting willful misfeasance, bad faith or negligence of the Trustee in the
performance of its duties hereunder or by reason of reckless disregard of its
obligations and duties hereunder.
The Master Servicer shall indemnify the Company, the Trustee and the
Securities Administrator and any director, officer, employee or agent of the
Company, the Trustee or the
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Securities Administrator against any such claim or legal action (including any
pending or threatened claim or legal action), loss, liability, fee or expense
that may be sustained in connection with this Agreement related to the willful
misfeasance, bad faith, or negligence in the performance of the Master
Servicer's duties hereunder.
The provisions of this Section 8.05 shall survive the resignation or
removal of the Trustee or the Securities Administrator or the termination of
this Agreement.
Section 8.06. Eligibility Requirements for Trustee and the Securities
Administrator.
The Trustee and the Securities Administrator hereunder shall at all
times be a corporation or a national banking association organized and doing
business under the laws of any state or the United States of America or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority. In
addition, the Trustee and the Securities Administrator shall at all times be
acceptable to the Rating Agency rating the Certificates. If such corporation
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 the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee or the
Securities Administrator shall cease to be eligible in accordance with the
provisions of this Section, the Trustee or the Securities Administrator, as
applicable, shall resign immediately in the manner and with the effect specified
in Section 8.07. The corporation or national banking association serving as
Trustee or Securities Administrator may have normal banking and trust
relationships with the Seller and their affiliates or the Master Servicer and
its affiliates.
Section 8.07. Resignation and Removal of the Trustee and the
Securities Administrator.
The Trustee and the Securities Administrator may at any time resign and
be discharged from the trusts hereby created by giving written notice thereof to
the Master Servicer; with a copy to the Rating Agencies; PROVIDED, that such
resignation shall not be effective until a successor trustee is appointed and
accepts appointment in accordance with the following provisions; PROVIDED,
HOWEVER, that the resigning Trustee or Securities Administrator, as applicable,
shall not resign and be discharged from the trusts hereby created until such
time as the Rating Agency rating the Certificates approves the successor trustee
or successor securities administrator. Any resignation or removal of the
Securities Administrator shall result in the automatic removal of the Master
Servicer to the extent that ▇▇▇▇▇ Fargo Bank, N.A. is both the Securities
Administrator and Master Servicer. Upon receiving such notice of resignation of
the Trustee, the Master Servicer shall promptly appoint a successor trustee who
meets the eligibility requirements of Section 8.06 by written instrument, in
triplicate, one copy of which instrument shall be delivered to the resigning
Trustee, and to the successor trustee. Upon receiving notice of the resignation
of the Securities Administrator, the Trustee shall promptly appoint a successor
securities administrator who meets the eligibility requirements of Section 8.06
by written instrument, in triplicate, copies of which instrument shall be
delivered to the resigning securities administrator and the successor securities
administrator. If no successor trustee or successor securities administrator
shall have been so appointed and have accepted appointment within 30
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days after the giving of such notice of resignation, the resigning Trustee or
resigning Securities Administrator, as applicable may petition any court of
competent jurisdiction for the appointment of a successor trustee or successor
securities administrator, as applicable.
If at any time the Trustee or the Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 8.06 and shall fail
to resign after written request therefor by the Master Servicer, or if at any
time the Trustee or the Securities Administrator shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or Securities Administrator, as applicable, or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
Securities Administrator, as applicable, or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, the Master Servicer may
remove the Trustee, or the Trustee shall remove the Securities Administrator, as
applicable, and appoint a successor trustee or successor securities
administrator, as applicable, who meets the eligibility requirements of Section
8.06 by written instrument, in triplicate, which instrument shall be delivered
to the Trustee or Securities Administrator, as applicable, so removed and to the
successor trustee or successor securities administrator, as applicable.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee or Securities Administrator and
appoint a successor trustee or successor securities administrator by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Master Servicer (if the Trustee is removed), the Securities
Administrator (if the Trustee is removed), and the Trustee (if the Securities
Administrator is removed), one complete set to the Trustee or Securities
Administrator so removed and one complete set to the successor so appointed. A
copy of such instrument shall be delivered to the Certificateholders and the
Company by the Master Servicer (if the Trustee is removed) and by the Trustee
(if the Securities Administrator is removed).
Any resignation or removal of the Trustee or Securities Administrator
and appointment of a successor trustee or successor securities administrator
pursuant to any of the provisions of this Section shall not become effective
until acceptance of appointment by the successor trustee or successor securities
administrator as provided in Section 8.08.
Section 8.08. Successor Trustee and Successor Securities Administrator.
Any successor trustee or successor securities administrator appointed
as provided in Section 8.07 shall execute, acknowledge and deliver to the Master
Servicer and to its predecessor trustee or predecessor securities administrator
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee or predecessor securities
administrator shall become effective and such successor trustee or successor
securities administrator, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee or predecessor securities administrator shall
after payment of its outstanding fees and expenses, promptly deliver to the
successor trustee or successor securities administrator all assets and records
of the Trust Fund held by it hereunder, and the Master Servicer and the
predecessor trustee or predecessor
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securities administrator shall execute and deliver all such instruments and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee or successor securities
administrator all such rights, powers, duties and obligations.
No successor trustee or successor securities administrator shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor trustee or successor securities administrator shall be eligible
under the provisions of Section 8.06.
Upon acceptance of appointment by a successor trustee or successor
securities administrator as provided in this Section, the Master Servicer (in
the case of a successor trustee) and the Trustee (in the case of a successor
securities administrator) shall mail notice of the succession of such trustee or
securities administrator hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register. If the Master Servicer (in the
case of a successor trustee) and the Trustee (in the case of a successor
securities administrator) fails to mail such notice within ten days after
acceptance of appointment by the successor trustee successor securities
administrator, the successor trustee successor securities administrator shall
cause such notice to be mailed at the expense of the Master Servicer or Trustee,
as the case may be.
Section 8.09. Merger or Consolidation of Trustee or Securities
Administrator.
Any state bank or trust company or corporation or national banking
association into which the Trustee or Securities Administrator 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 or Securities Administrator shall be a party,
or any state bank or trust company or corporation or national banking
association succeeding to all or substantially all of the corporate trust
business of the Trustee or Securities Administrator, shall be the successor of
the Trustee or Securities Administrator hereunder, provided such state bank or
trust company or corporation or national banking association shall be eligible
under the provisions of Section 8.06 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 8.10. Appointment of Co-Trustee or Separate Trustee.
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 Fund or property securing the same may at the time be located, the
Master Servicer 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 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 Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment
without the Master Servicer. No co-trustee or separate trustee
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hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder and no notice to Holders of Certificates of
the appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee and required to be conferred or 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 Fund 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.
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 VIII. 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.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of 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.
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ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans or upon Purchase of Certificates.
Subject to Section 9.03, the respective obligations and
responsibilities of the Company, the Master Servicer, the Securities
Administrator and the Trustee created hereby (other than the obligations of the
Master Servicer to the Trustee pursuant to Section 8.05 and of the Master
Servicer to provide for and the Securities Administrator to make payments to
Certificateholders as hereafter set forth) shall terminate upon payment to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them hereunder following the earlier to occur of (i) the
repurchase by the Servicer, or its designee (or if the Servicer fails to
exercise such option, the Master Servicer) of all Mortgage Loans and each REO
Property in respect thereof remaining in the Trust Fund at a price equal to (a)
100% of the unpaid principal balance of each Mortgage Loan (other than one as to
which a REO Property was acquired) on the day of repurchase together with
accrued interest on such unpaid principal balance at the Net Mortgage Rate to
the first day of the month in which the proceeds of such repurchase are to be
distributed, plus (b) the appraised value of any REO Property (but not more than
the unpaid principal balance of the related Mortgage Loan, together with accrued
interest on that balance at the Net Mortgage Rate to the first day of the month
such repurchase price is distributed), less the good faith estimate of the
Servicer or the Master Servicer, as applicable, of liquidation expenses to be
incurred in connection with its disposal thereof, such appraisal to be conducted
by an appraiser mutually agreed upon by the Servicer or the Master Servicer, as
applicable, and the Master Servicer on behalf of the Trustee at the expense of
the terminating party, and (ii) 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 REO Property in respect thereof); PROVIDED,
HOWEVER, that in no event shall the trust created hereby continue beyond the
earlier of (i) the Distribution Date occurring in January 2035 and (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.
▇▇▇▇▇, living on the date hereof, and PROVIDED FURTHER, that the purchase price
set forth above shall be increased as is necessary, as determined by the
Servicer or the Master Servicer, as applicable, to avoid disqualification of any
of any Trust REMIC as a REMIC. In the case of any repurchase by the Servicer or
the Master Servicer, as applicable, pursuant to clause (i), the Master Servicer
shall exercise reasonable efforts to cooperate fully with the Trustee in
effecting such repurchase and the transfer of the Mortgage Loans and related
Mortgage Files and related records to the Servicer or the Master Servicer, as
applicable; provided, however, such option may only be exercised if (i) the
purchase price is sufficient to pay all interest accrued on, as well as amounts
necessary to retire the principal balance of, each class of notes secured
primarily by the Class C Certificates and the Class P Certificates.
The right of the Servicer or its designee to repurchase all Mortgage
Loans pursuant to (i) above shall be conditioned upon the Aggregate Stated
Principal Balance of such Mortgage Loans at the time of any such repurchase
aggregating an amount equal to or less than 10% of the Aggregate Stated
Principal Balance of the Mortgage Loans at the Cut-off Date; provided, however,
that no such early termination of the Trust Fund with respect to the Mortgage
Loans as provided above will be permitted if it would result in a draw under the
Policy unless the Insurer
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consents to such termination. If such right is exercised, the Servicer upon such
repurchase shall provide to the Trustee and Securities Administrator, notice of
such exercise prior to the Determination Date in the month preceding the month
of purchase and the certification required by Section 3.16.
The right of the Master Servicer, or its designee to repurchase all
Mortgage Loans pursuant to (i) in the second preceding paragraph shall be
conditioned upon the Aggregate Stated Principal Balance of such Mortgage Loans
at the time of any such repurchase aggregating an amount equal to or less than
5% of the Aggregate Stated Principal Balance of the Mortgage Loans at the
Cut-off Date. If such right is exercised, the Master Servicer, upon such
repurchase shall provide to the Trustee and Securities Administrator, notice of
such exercise prior to the Determination Date in the month preceding the month
of purchase and the certification required by Section 3.16.
Written notice of any termination, specifying the Distribution Date
upon which the Certificateholders may surrender their Certificates to the
Securities Administrator for payment of the final distribution and cancellation,
shall be given promptly by the Securities Administrator by letter to the
Certificateholders mailed (a) in the event such notice is given in connection
with the Servicer's or the Master Servicer's, as applicable, election to
repurchase, not earlier than the 15th day and not later than the 25th day of the
month next preceding the month of such final distribution or (b) otherwise
during the month of such final distribution on or before the Determination Date
in such month, in each case specifying (i) the Distribution Date upon which
final payment of the Certificates will be made upon presentation and surrender
of Certificates at the office of the Securities Administrator 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 Certificates at the
office of the Securities Administrator therein specified. In the event such
notice is given in connection with the Servicer or the Master Servicer, as
applicable, or its designee's election to repurchase, the Servicer or the Master
Servicer, as applicable, or its designee shall deliver to the Securities
Administrator for deposit in the Certificate Account on the Business Day
immediately preceding the Distribution Date specified in such notice an amount
equal to the above-described repurchase price payable out of its own funds. Upon
presentation and surrender of the Certificates by the Certificateholders, the
Securities Administrator shall first pay any amounts owing to the Trustee,
Master Servicer, Custodian, Servicer and Securities Administrator, as
applicable, under this Agreement, and second, distribute to the
Certificateholders (i) the amount otherwise distributable on such Distribution
Date, if not in connection with the Servicer's or the Master Servicer's, as
applicable, election to repurchase, or (ii) if the Servicer or the Master
Servicer, as applicable, elected to so repurchase, an amount determined as
follows: with respect to each Regular Certificate, the outstanding Certificate
Principal Balance thereof, plus with respect to each Class A, Class M or Class C
Certificate, one month's interest thereon at the applicable Pass-Through Rate
and any Unpaid Interest Shortfall Amount, plus with respect to each Class M
Certificate, any unpaid Allocated Realized Loss Amount; and with respect to each
Class R Certificate, 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 Regular Certificates,
subject to the priorities set forth in Section 4.01. Notwithstanding the
foregoing, by acceptance of the Class R Certificates, the Holders of the Class R
Certificates agree, in connection with any termination hereunder, to assign and
transfer
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any amounts received in respect of such termination to the Holders of the Class
C Certificates and to pay any such amounts to the Holders of the Class C
Certificates. Upon certification to the Custodian by a Servicing Officer,
following such final deposit, the Custodian shall promptly release the Mortgage
Files as directed by the Servicer or the Master Servicer, as applicable, for the
remaining Mortgage Loans, and the Trustee shall execute all assignments,
endorsements and other instruments required by the Servicer or the Master
Servicer, as applicable, as being necessary to effectuate such transfer.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the time specified
in the above-mentioned notice, the Securities Administrator shall give a second
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 all of the Certificates shall not have been
surrendered for cancellation, the Securities Administrator shall take reasonable
steps as directed by the Company in writing, or appoint an agent to take
reasonable steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain subject hereto. If within nine months after
the second notice all the Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets which remain subject hereto.
Section 9.02. Termination of REMIC 2, REMIC 3 and REMIC 4.
REMIC 2 shall be terminated on the earlier of the Final Distribution
Date and the date on which it is deemed to receive the last deemed distributions
on the REMIC 1 Regular Interests and the last distribution due on the Regular
Certificates and the Class R Certificates (in respect of the Class R-2 Interest)
is made. REMIC 3 shall be terminated on the earlier of the Final Distribution
Date and the date on which it is deemed to receive the last deemed distributions
on the Class C Interest and the last distribution due on the Class C
Certificates and the Class R-X Certificates (in respect of the Class R-3
Interest) is made. REMIC 4 shall be terminated on the earlier of the Final
Distribution Date and the date on which it is deemed to receive the last deemed
distributions on the Class P Interest and the last distribution due on the Class
P Certificates and the Class R-X Certificates (in respect of the Class R-4
Interest) is made.
Section 9.03. Additional Termination Requirements.
(a) In the event the Servicer or the Master Servicer, as
applicable, repurchases the Mortgage Loans as provided in Section 9.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Servicer or the Master Servicer, as applicable, at its
own expense, obtains for the Trustee and the Securities Administrator an Opinion
of Counsel to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 9.03 will not (i) result in the imposition on the
Trust of taxes on "prohibited transactions," as described in Section 860F of the
Code, or (ii) cause either any Trust REMIC to fail to qualify as a REMIC at any
time that any Certificate is outstanding:
(i) The Securities Administrator shall establish a 90-day
liquidation period for REMIC 1, REMIC 2, REMIC 3 and REMIC 4, as the
case may be, and specify the
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first day of such period in a statement attached to the Trust Fund's
final Tax Return pursuant to Treasury regulations Section 1.860F-1. The
Securities Administrator also shall satisfy all of the requirements of
a qualified liquidation for each Trust REMIC, as the case may be, under
Section 860F of the Code and regulations thereunder; and
(ii) The Servicer shall notify the Trustee and the
Securities Administrator at the commencement of such 90-day liquidation
period and, at or prior to the time of making of the final payment on
the Certificates, the Trustee shall sell or otherwise dispose of all of
the remaining assets of the Trust Fund in accordance with the terms
hereof.
(b) Each Holder of a Certificate and the Trustee hereby
irrevocably approves and appoints the Securities Administrator as its
attorney-in-fact to adopt a plan of complete liquidation for each Trust REMIC at
the expense of the Trust Fund in accordance with the terms and conditions of
this Agreement.
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ARTICLE X
REMIC PROVISIONS
Section 10.01. REMIC Administration.
(a) The Securities Administrator shall make an election to treat
the Trust Fund as two REMICs under the Code and, if necessary, under applicable
state law. Each such election will be made on Form 1066 or other appropriate
federal tax or information return (including Form 8811) or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the Certificates are issued. For the purposes of the REMIC elections in respect
of the Trust Fund, (i) the REMIC 1 Regular Interests will represent the "regular
interests" in REMIC 1, the Class R-1 Interest will constitute the sole class of
"residual interests" in REMIC 1, (ii) the Class A and Class M Certificates
(exclusive of any right to receive payments from the Basis Risk Shortfall
Reserve Fund) the Class C Interest and Class P Interest shall be designated as
the "regular interests" in REMIC 2 and the Class R-2 Interest will constitute
the sole class of "residual interests" in REMIC 2, (iii) the Class C
Certificates shall be designated as the "regular interests" in REMIC 3 and the
Class R-3 Interest will constitute the sole class of "residual interests" in
REMIC 3 and (iv) the Class P Certificates shall be designated as the "regular
interests" in REMIC 4 and the Class R-4 Interest will constitute the sole class
of "residual interests" in REMIC 4. The Securities Administrator and the Trustee
shall not permit the creation of any "interests" (within the meaning of Section
860G of the Code) other than the REMIC Regular Interests, the Class R-1
Interest, the Class R-2 Interest, the Class R-3 Interest or the Class R-4
Interest. The Securities Administrator will apply for an Employee Identification
Number from the IRS via form SS-4 or any other acceptable method for each Trust
REMIC.
(b) The Closing Date is hereby designated as the "startup day" of
the Trust Fund within the meaning of Section 860G(a)(9) of the Code.
(c) The Securities Administrator shall pay out of its own funds,
without any right of reimbursement, any and all expenses relating to any tax
audit of the REMICs (including, but not limited to, any professional fees or any
administrative or judicial proceedings with respect to the REMICs that involve
the Internal Revenue Service or state tax authorities), other than the expense
of obtaining any tax-related Opinion of Counsel except as specified herein. The
Securities Administrator, as agent for the REMICs' tax matters person, shall (i)
act on behalf of the REMICs in relation to any tax matter or controversy
involving the Trust Fund and (ii) represent the Trust Fund in any administrative
or judicial proceeding relating to an examination or audit by any governmental
taxing authority with respect thereto. By their acceptance thereof, the Holder
of the largest Percentage Interest of the Class R Certificates hereby agrees to
irrevocably appoint the Securities Administrator or an Affiliate as its agent to
perform all of the duties of the tax matters person for the REMICs.
(d) The Securities Administrator shall prepare and file or cause
to be filed, and the Trustee shall sign, all of the Tax Returns (including Form
8811, which must be filed within 30 days of the Closing Date) in respect of the
REMICs created hereunder. The expenses of preparing and filing such returns
shall be borne by the Securities Administrator without any right of
reimbursement therefor. The Master Servicer shall provide on a timely basis to
the Securities Administrator or its designee such information with respect to
the assets of the REMICs as is in
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its possession and reasonably required by the Securities Administrator to enable
it to perform its obligations under this Article X.
(e) The Securities Administrator shall perform on behalf of the
REMICs all reporting and other tax compliance duties that are the responsibility
of the REMICs under the Code, the REMIC Provisions or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, as required by the Code, the REMIC Provisions or other
such compliance guidance, the Securities Administrator shall provide (i) to any
Transferor of a Class R Certificate or Class R-X Certificate such information as
is necessary for the application of any tax relating to the transfer of a Class
R Certificate or Class R-X Certificate to any Person who is not a Permitted
Transferee, (ii) to the Certificateholders such information or reports as are
required by the Code or the REMIC Provisions including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required) and (iii) to the Internal Revenue Service the
name, title, address and telephone number of the person who will serve as the
representative of the REMICs. The Master Servicer shall provide on a timely
basis to the Securities Administrator such information with respect to the
assets of the REMICs, including, without limitation, the Mortgage Loans, as is
in its possession and reasonably required by the Securities Administrator to
enable it to perform its obligations under this subsection. In addition, the
Company shall provide or cause to be provided to the Securities Administrator,
within ten (10) days after the Closing Date, all information or data that the
Securities Administrator reasonably determines to be relevant for tax purposes
as to the valuations and issue prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flow of
the Certificates.
(f) The Securities Administrator shall take such action and shall
cause the REMICs created hereunder to take such action as shall be necessary to
create or maintain the status thereof as REMICs under the REMIC Provisions (and
the Master Servicer shall assist it, to the extent reasonably requested by it).
The Securities Administrator shall not take any action, cause the Trust Fund 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 1, REMIC 2, REMIC 3 or REMIC 4 as REMICs or
(ii) result in the imposition of a tax upon the REMICs (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) (either such event, an "Adverse REMIC Event") unless the Securities
Administrator has received an Opinion of Counsel, addressed to the Securities
Administrator (at the expense of the party seeking to take such action but in no
event at the expense of the Securities Administrator) to the effect that the
contemplated action will not, with respect to the REMICs created hereunder,
endanger such status or result in the imposition of such a tax, nor shall the
Master Servicer take or fail to take any action (whether or not authorized
hereunder) as to which the Securities Administrator has advised it in writing
that each has received an Opinion of Counsel to the effect that an Adverse REMIC
Event could occur with respect to such action. In addition, prior to taking any
action with respect to the REMICs or the assets of the REMICs, or causing the
REMICs to take any action, which is not contemplated under the terms of this
Agreement, the Master Servicer will consult with the Securities Administrator or
its designee, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur with respect to the Trust Fund, and the Master
Servicer shall not take any such action or cause the
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Trust Fund to take any such action as to which the Securities Administrator has
advised it in writing that an Adverse REMIC Event could occur. The Securities
Administrator may consult with counsel to make such written advice, and the cost
of same shall be borne by the party seeking to take the action not permitted by
this Agreement, but in no event shall such cost be an expense of the Securities
Administrator. At all times as may be required by the Code, the Securities
Administrator will ensure that substantially all of the assets of the REMICs
created hereunder will consist of "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any tax is imposed on "prohibited
transactions" of the REMICs created hereunder as defined in Section 860F(a)(2)
of the Code, on the "net income from foreclosure property" of the REMICs as
defined in Section 860G(c) of the Code, on any contributions to the REMICs after
the Startup Day therefor pursuant to Section 860G(d) of the Code, or any other
tax is imposed by the Code or any applicable provisions of state or local tax
laws, such tax shall be charged (i) to the Securities Administrator pursuant to
Section 10.03 hereof, if such tax arises out of or results from a breach by the
Securities Administrator of any of its obligations under this Article X, (ii) to
the Master Servicer pursuant to Section 10.03 hereof, if such tax arises out of
or results from a breach by the Master Servicer of any of its obligations under
Article III or this Article X, or otherwise, (iii) to the Master Servicer as
provided in Section 3.05, if applicable, (iv) to the Class R Certificateholder
to the extent of any funds distributed to such Certificateholder, (v) otherwise
against amounts on deposit in the Certificate Account and shall be paid by
withdrawal therefrom to the extent not required to be paid by the Master
Servicer, the Securities Administrator or the Class R Certificateholder pursuant
to another provision of this Agreement.
(h) On or before April 15 of each calendar year, commencing April
15, 2005, the Securities Administrator shall deliver to the Master Servicer and
the Rating Agency a Certificate from a Responsible Officer of the Securities
Administrator stating the Securities Administrator's compliance with its
obligations under this Article X.
(i) The Securities Administrator shall, for federal income tax
purposes, maintain books and records with respect to the REMICs on a calendar
year and on an accrual basis.
(j) Following the Startup Day, the Securities Administrator shall
not accept any contributions of assets to the REMICs other than in connection
with any Qualified Substitute Mortgage Loan delivered in accordance with Section
2.04 unless it shall have received an Opinion of Counsel to the effect that the
inclusion of such assets in the REMICs will not cause any Trust REMIC to fail to
qualify as REMICs at any time that any Certificates are outstanding or subject
any Trust REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(k) Neither the Securities Administrator nor the Master Servicer
shall enter into any arrangement by which the REMICs will receive a fee or other
compensation for services nor permit the REMICs to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
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(l) The Securities Administrator shall treat the rights of the
Certificateholders (other than the Class P Certificateholders and Residual
Certificateholders) to receive payments from the Basis Risk Shortfall Reserve
Fund as a notional principal contract between the Holders of the Class C
Certificates, as owner of the Basis Risk Shortfall Reserve Fund and the Holders
of the Class A Certificates and Class M Certificates). For federal tax return
and information reporting, the right of the Holders of the Class A and Class M
Certificates to receive payments from the Carryover Reserve Fund in respect of
any Basis Risk Carry-Forward Amount may be obtained from the Securities
Administrator upon request. For purposes of determining the issue price of the
Class A Certificates and Class M Certificates, the Securities Administrator
shall assume that the Class A Corridor Contract and Class M Corridor Contract
have values of $1,120,000 and $433,000, respectively.
Section 10.02. Prohibited Transactions and Activities.
None of the Company, the Master Servicer, the Securities Administrator
or the Trustee shall sell, dispose of or substitute for any of the Mortgage
Loans (except in connection with (i) the foreclosure of a Mortgage Loan,
including but not limited to, the acquisition or sale of a Mortgaged Property
acquired by deed in lieu of foreclosure, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of any Trust REMIC pursuant to Article IX of this
Agreement, (iv) a substitution pursuant to Article II of this Agreement or (v) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement), nor
acquire any assets for the Trust Fund (other than REO Property acquired in
respect of a defaulted Mortgage Loan), nor sell or dispose of any investments in
the Custodial Account or the Certificate Account for gain, nor accept any
contributions to the REMICs after the Closing Date (other than a Qualified
Substitute Mortgage Loan delivered in accordance with Section 2.04), unless each
such party has received an Opinion of Counsel, addressed to the Trustee and
Securities Administrator (at the expense of the party seeking to cause such
sale, disposition, substitution, acquisition or contribution but in no event at
the expense of the Trustee) that such sale, disposition, substitution,
acquisition or contribution will not (a) affect adversely the status of any
Trust REMIC as REMICs or (b) cause the Trust Fund to be subject to a tax on
"prohibited transactions" or "contributions" pursuant to the REMIC Provisions.
Section 10.03. Master Servicer, Securities Administrator and Trustee
Indemnification.
(a) The Securities Administrator agrees to indemnify the Trust
Fund, the Company and the Master Servicer for any taxes and costs including,
without limitation, any reasonable attorneys' fees imposed on or incurred by the
Trust Fund, the Company or the Master Servicer, as a result of (i) a breach of
the Securities Administrator's covenants set forth in this Article X or (ii) any
state, local or franchise taxes imposed upon the Trust Fund as a result of the
location of the Securities Administrator.
(b) The Master Servicer agrees to indemnify the Trust Fund, the
Company and the Trustee for any taxes and costs including, without limitation,
any reasonable attorneys' fees imposed on or incurred by the Trust Fund, the
Company or the Trustee, as a result of (i) a breach of the Master Servicer's
covenants set forth in Article III or this Article X with respect to compliance
with the REMIC Provisions or (ii) any state, local or franchise taxes imposed
upon the Trust Fund as a result of the location of the Master Servicer.
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(c) The Seller agrees to indemnify the Trust Fund and the Company
for any taxes and costs including, without limitation, any reasonable attorneys'
fees imposed on or incurred by the Trust Fund or the Company, as a result of any
state, local or franchise taxes imposed upon the Trust Fund as a result of the
location of the Trustee, the Servicer or the Subservicers.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
This Agreement may be amended from time to time by the Company, the
Master Servicer, the Securities Administrator and the Trustee, without the
consent of any of the Certificateholders, (i) to cure any ambiguity, (ii) to
correct or supplement any provisions herein which may be defective or
inconsistent with any other provisions herein or to correct any error, (iii) to
amend this Agreement in any respect subject to the provisions in clauses (A) and
(B) below, or (iv) if such amendment, as evidenced by an Opinion of Counsel
(provided by the Person requesting such amendment) delivered to the Trustee, is
reasonably necessary to comply with any requirements imposed by the Code or any
successor or amendatory statute or any temporary or final regulation, revenue
ruling, revenue procedure or other written official announcement or
interpretation relating to federal income tax laws or any proposed such action
which, if made effective, would apply retroactively to the Trust Fund at least
from the effective date of such amendment; PROVIDED that such action (except any
amendment described in (iv) above) shall not adversely affect in any material
respect the interests of any Certificateholder (other than Certificateholders
who shall consent to such amendment), as evidenced by (A) an Opinion of Counsel
(provided by the Person requesting such amendment) delivered to the Trustee, and
(B) a letter from each Rating Agency, confirming that such amendment shall not
cause it to lower its rating on any of the Certificates.
This Agreement may also be amended from time to time by the Company,
the Master Servicer, the Securities Administrator and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights 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 Holders of Certificates; 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)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in (i), without the
consent of the Holders of Certificates of such Class evidencing at least 66-2/3%
of the Voting Rights of such Class, or (iii) 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.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Seller, the Trustee, the Securities Administrator
or the Master Servicer or any affiliate thereof shall be entitled to Voting
Rights with respect to matters described in (i), (ii) and (iii) of this
paragraph.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel (provided by the Person requesting such
amendment) and addressed to the Trustee and the Securities Administrator to the
effect that such amendment will not result in the imposition of any tax on any
Trust REMIC pursuant to the REMIC Provisions or cause any Trust REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding.
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Promptly after the execution of any such amendment the Trustee shall
furnish a copy of such amendment or a written statement describing the amendment
to each Certificateholder, with a copy to the Rating Agencies.
It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Prior to executing any amendment pursuant to this Section, the Trustee
shall be entitled to receive an Opinion of Counsel (provided by the Person
requesting such amendment) to the effect that such amendment is authorized or
permitted by this Agreement. The cost of any Opinion of Counsel delivered
pursuant to this Section 11.01 shall be an expense of the party requesting such
amendment, but in any case shall not be an expense of the Trustee.
Each of the Trustee and the Securities Administrator may, but shall not
be obligated to, enter into any amendment pursuant to this Section that affects
its rights, duties and immunities under this Agreement or otherwise.
Section 11.02. Recordation of Agreement; Counterparts.
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
Master Servicer at the expense of the Certificateholders, but only upon
direction of the Company accompanied by an Opinion of Counsel to the effect that
such recordation materially and beneficially affects 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 11.03. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, 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 Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, 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 constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to
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any third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
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 or under or with respect to this Agreement, unless such Holder previously
shall have given to the Trustee a notice of an Event of Default, or of a default
by the Seller or the Trustee in the performance of any obligation hereunder, and
of the continuance thereof, as hereinbefore provided, and unless also the
Holders of Certificates entitled to at least 51% of the Voting Rights 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, expenses
and liabilities to be incurred therein or thereby, and 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. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, 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, each and every Certificateholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
Section 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
Section 11.05. Notices.
All demands, notices and direction hereunder shall be in writing and
shall be deemed effective upon receipt when delivered to (a) in the case of the
Company, Homestar Mortgage Acceptance Corp., W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, or such other address as may hereafter
be furnished to the other parties hereto in writing; (b) in the case of Master
Servicer, ▇▇▇▇▇ Fargo Bank, N.A., ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or, in
the case of overnight deliveries, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
21045) (Attention: Corporate Trust Services - HMAC 2004-6), facsimile no.: (410)
715-2380, or such other address as may hereafter be furnished to the other
parties hereto in writing; (c) in the case of the securities administrator, the
Corporate Trust Office; (d) in the case of the Trustee, to its Corporate Trust
Office, or such other address as may hereafter be furnished to the other parties
hereto in writing; (e) in the case of the Rating Agencies, Standard & Poor's, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Asset Backed
Surveillance Department; and Moody's, ▇▇▇▇▇'▇ Investors Service, Inc.,
Residential Mortgage Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ or (f) in the case of the Insurer, Ambac Assurance Corporation, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Consumer Asset-Backed
Securities Group or such other address as may be hereafter furnished to
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the Depositor, the Trustee and the Master Servicer in writing by the Insurer.
Any notice required or permitted to be mailed to a Certificateholder shall be
given by first class mail, postage prepaid, at the address of such Holder 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, whether or not the Certificateholder receives such notice.
Section 11.06. 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.
Section 11.07. 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, and all
such provisions shall inure to the benefit of the Trustee and the
Certificateholders.
Section 11.08. 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 11.09. Notice to Rating Agencies.
The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency referred to below and the Insurer with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been
cured;
3. The resignation or termination of the Master Servicer, the
Securities Administrator or the Trustee;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.04;
5. The final payment to Certificateholders;
6. Any change in the location of the Custodial Account or the
Certificate Account; and
7. any Insurer Default that has not been cured.
In addition, the Trustee shall promptly furnish to
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the Rating Agency copies of each report to Certificateholders described in
Section 4.02; and the Master Servicer shall promptly furnish to the Rating
Agency copies of each annual independent public accountants' servicing report
received as described in Section 3.20.
Any such notice pursuant to this Section 11.09 shall be in writing and
shall be deemed to have been duly given if personally delivered or mailed by
first class mail, postage prepaid, or by express delivery service to (i) in the
case of Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Asset Backed Surveillance Department and (ii) in the case of
Moody's, Residential Mortgage Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or, in each case, such other address as either such Rating
Agency may designate in writing to the parties thereto.
Section 11.10. Third Party Rights.
The Seller shall be deemed a third-party beneficiary of Section 3.25
this Agreement to the same extent as if it were a party hereto, and shall have
the right to enforce the provisions of such Section. The Servicer shall be
deemed a third-party beneficiary of Section 3.25 of this Agreement to the same
extent as if it were a party hereto, and shall have the right to enforce the
provisions of such Section. The Insurer shall be an express third-party
beneficiary of this Agreement to the extent of its express subrogation rights,
its rights to receive the Insurer Premium pursuant to Section 3.18 and its
express rights set forth in Article XII of this Agreement and shall have the
right to enforce the related provisions of this Agreement as if it were a party
hereto.
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ARTICLE XII
CERTAIN MATTERS REGARDING THE INSURER
Section 12.01. Rights of the Insurer to Exercise Rights of Insured
Certificateholders.
By accepting its Certificate, each Insured Certificateholder agrees
that unless an Insurer Default exists, the Insurer shall have the right to
exercise all consent, voting, direction and other control rights of the Insured
Certificateholders under this Agreement without any further consent of the
Insured Certificateholders.
Section 12.02. Claims Upon the Policy; Insurance Account.
(a) If, three Business Days prior to any Distribution Date, the
Securities Administrator determines that (i) the funds that will be on deposit
in the Certificate Account on the related Certificate Account Deposit Date, to
the extent distributable to the Insured Certificateholders pursuant to Section
4.01(a)(i), are insufficient to pay the Accrued Certificate Interest for such
Distribution Date, net of (a) any Prepayment Interest Shortfalls allocated to
the Insured Certificates and (b) any shortfalls relating to application of the
Relief Act or (ii) the funds available in connection with an optional
termination of the Trust Fund pursuant to Section 9.01 or on the Final
Distribution Date will be insufficient to reduce the Certificate Principal
Balance of the Insured Certificates to zero, the Master Servicer shall deliver
to the Trustee not later than 1:00 p.m. New York City time three Business Days
prior to the Distribution Date a certificate signed by a Servicing Officer
directing the Trustee to draw on the Policy and stating the amount to be drawn
and stating the Guaranteed Distribution for the Insured Certificates, and the
Securities Administrator, on behalf of the Trustee shall give notice by
telephone or telecopy of the aggregate amount of such deficiency, confirmed in
writing in the form set forth as Exhibit A to the endorsement of the Policy, to
the Insurer at or before 12:00 noon, New York City time, on the Business Day
prior to such Distribution Date. If, subsequent to such notice, and prior to
payment by the Insurer pursuant to such notice, additional amounts are deposited
in the Certificate Account, the Securities Administrator shall reasonably
promptly notify the Insurer and withdraw the notice or reduce the amount
claimed, as appropriate.
(b) The Securities Administrator shall establish a separate
special purpose trust account for the benefit of Holders of the Insured
Certificates and the Insurer referred to herein as the "Insurance Account" over
which the Securities Administrator shall have exclusive control and sole right
of withdrawal. The Securities Administrator shall deposit any amount paid to it
under the Policy in the Insurance Account and distribute such amount only for
purposes of payment to Holders of Insured Certificates of the Guaranteed
Distribution for which a claim was made. Such amount may not be applied to
satisfy any costs, expenses or liabilities of the Master Servicer, the
Securities Administrator, the Trustee or the Trust Fund. It shall not be
necessary for such payments to be made by checks or wire transfers separate from
the checks or wire transfers used to pay the Guaranteed Distribution with other
funds available to make such payment. However, the amount of any payment of
principal of or interest on the Insured Certificates to be paid from funds
transferred from the Insurance Account shall be noted as provided in paragraph
(c) below and in the statement to be furnished to Holders of the Certificates
pursuant to Section 4.02. Funds held in the Insurance Account shall not be
invested by the Securities Administrator.
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On any Distribution Date with respect to which a claim has been made
under the Policy, the amount of any funds received by the Securities
Administrator as a result of any claim under the Policy, to the extent required
to make the Guaranteed Distribution on such Distribution Date, shall be
withdrawn by the Securities Administrator from the Insurance Account and
deposited in the Certificate Account and applied by the Securities
Administrator, together with the other funds to be distributed to the Insured
Certificateholders pursuant to Section 4.01, directly to the payment in full of
the Guaranteed Distribution due on the Insured Certificates. Any funds remaining
in the Insurance Account on the first Business Day following a Distribution Date
shall be remitted by the Securities Administrator to the Insurer, pursuant to
the written in structions of the Insurer, by the end of such Business Day.
(c) The Securities Administrator shall keep a complete and
accurate record of the amount of interest and principal paid into the Insurance
Account in respect of any Insured Certificate from moneys received by the
Securities Administrator under the Policy. The Insurer shall have the right to
inspect such records at reasonable times during normal business hours upon two
Business Day's prior written notice to the Securities Administrator.
Section 12.03. Effect of Payments by the Insurer; Subrogation.
Anything herein to the contrary notwithstanding, for purposes of this
Section 12.03, any payment with respect to principal of or interest on the
Insured Certificates which is made with monies received pursuant to the terms of
the Policy shall not be considered payment of the Insured Certificates from the
Trust Fund. The Master Servicer and the Trustee acknowledge, and each Holder by
its acceptance of an Insured Certificate agrees, that without the need for any
further action on the part of the Insurer, the Master Servicer, the Trustee or
the Securities Administrator, to the extent the Insurer makes payments, directly
or indirectly, on account of principal of or interest on the Insured
Certificates to the Holders of such Certificates, the Insurer will be fully
subrogated to, and each Insured Certificateholder and the Master Servicer hereby
delegate and assign to the Insurer, to the fullest extent permitted by law, the
rights of such Holders to receive such principal and interest from the Trust
Fund; provided that the Insurer shall be paid such amounts only from the sources
and in the manner explicitly provided for herein.
The Trustee, the Securities Administrator and the Master Servicer shall
cooperate in all respects with any reasonable request by the Insurer for action
to preserve or enforce the Insurer's rights or interests under this Agreement
without limiting the rights or affecting the interests of the Holders as
otherwise set forth herein.
Section 12.04. Notices and Information to the Insurer.
(a) All notices, statements, reports, certificates or opinions
required by this Agreement to be sent or made available to any other party
hereto or to the Certificateholders shall also be sent or made available to the
Insurer.
(b) The Master Servicer shall designate a Person who shall be
available to the Insurer to provide reasonable access to information regarding
the Mortgage Loans.
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Section 12.05. Trustee to Hold Policy.
The Trustee will hold the Policy in trust as agent for the Insured
Certificateholders for the purpose of making claims thereon and distributing the
proceeds thereof. Neither the Policy, nor the amounts paid on the Policy will
constitute part of the Trust Fund or assets of any REMIC created by this
Agreement. Each Insured Certificateholder, by accepting its Certificate,
appoints the Trustee as attorney-in-fact for the purpose of making claims on the
Policy. The Trustee shall surrender the Policy to the Insurer for cancellation
upon the expiration of the term of the Policy as provided in the Policy
following the retirement of the Insured Certificates. To the extent that the
Policy constitutes a reserve fund for federal income tax purposes, (1) it shall
be an outside credit support agreement and not an asset of any REMIC and (2) it
shall be owned by the Insurer, all within the meaning of Section 1.860G-2(h) of
the Treasury Regulations.
Section 12.06. Payment of Insurance Premium.
Unless otherwise designated in writing by the President or a Managing
Director of the Insurer to the Securities Administrator, the Insurer Premium to
be paid pursuant to Section 4.01(a)(i) shall be paid by the Securities
Administrator or a Paying Agent on its behalf to the Insurer by wire transfer
with the following details specifically stated in the wire transfer:
Bank: Citibank, N.A.
ABA Number: 021-000089
For the account of: Ambac Assurance Corporation
Account Number: ▇▇▇▇▇▇▇▇
Re: Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
130
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused their names to be signed hereto by their respective officers
thereunto duly authorized all as of the day and year first above written.
HOMESTAR MORTGAGE ACCEPTANCE CORP.,
Company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇ FARGO BANK, N.A.,
Master Servicer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
HSBC BANK USA, NATIONAL ASSOCIATION
Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO BANK, N.A.,
Securities Administrator
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
STATE OF NEW JERSEY )
) ss.:
COUNTY OF BERGEN )
On the _____ day of ________________, 2004, before me, a notary public
in and for said State, personally appeared __________________, known to me to be
the _____________ of Homestar Mortgage Acceptance Corp., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
______________________________
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
) ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the _____ day of _____________, 2004, before me, a notary public in
and for said State, personally appeared ________________, known to me to be a
_____________ of ▇▇▇▇▇ Fargo Bank, N.A., 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 NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of ________________, 2004, before me, a notary public
in and for said State, personally appeared _____________________, known to me to
be a ________________ of HSBC Bank USA, 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 MARYLAND )
) ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the _______ day of _______________, 2004, before me, a notary public
in and for said State, personally appeared ______________, known to me to be a
_____________ of ▇▇▇▇▇ Fargo Bank, N.A., 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]
EXHIBIT A
FORM OF CLASS A-[_] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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").
THIS CERTIFICATE SHALL INITIALLY BE ISSUED AS ONE OR MORE CERTIFICATES
REGISTERED IN THE NAME OF THE DEPOSITORY OR ITS NOMINEE AND, EXCEPT AS PROVIDED
BELOW, REGISTRATION OF SUCH CERTIFICATES MAY NOT BE TRANSFERRED BY THE TRUSTEE
EXCEPT TO ANOTHER DEPOSITORY THAT AGREES TO HOLD SUCH CERTIFICATES FOR THE
RESPECTIVE CERTIFICATE OWNERS WITH OWNERSHIP INTERESTS THEREIN. THE CERTIFICATE
OWNERS SHALL HOLD THEIR RESPECTIVE OWNERSHIP INTERESTS IN AND TO EACH OF SUCH
BOOK-ENTRY CERTIFICATES THROUGH THE BOOK-ENTRY FACILITIES OF THE DEPOSITORY AND,
EXCEPT AS PROVIDED BELOW, SHALL NOT BE ENTITLED TO DEFINITIVE CERTIFICATES IN
RESPECT OF SUCH OWNERSHIP INTERESTS. ALL TRANSFERS BY CERTIFICATE OWNERS OF
THEIR RESPECTIVE OWNERSHIP IN THE BOOK-ENTRY CERTIFICATES SHALL BE MADE IN
ACCORDANCE WITH THE PROCEDURES ESTABLISHED BY THE DEPOSITORY PARTICIPANT OR
BROKERAGE FIRM REPRESENTING SUCH CERTIFICATE OWNER. EACH DEPOSITORY PARTICIPANT
SHALL TRANSFER THE OWNERSHIP INTERESTS ONLY IN THE 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. THE TRUSTEE SHALL
NOT BE REQUIRED TO MONITOR, DETERMINE OR INQUIRE AS TO COMPLIANCE WITH THE
TRANSFER RESTRICTIONS WITH RESPECT TO THE BOOK-ENTRY CERTIFICATES, AND THE
TRUSTEE SHALL HAVE NO LIABILITY FOR TRANSFERS OF OWNERSHIP INTERESTS IN THE
BOOK-ENTRY CERTIFICATES MADE THROUGH THE BOOK-ENTRY FACILITIES OF THE DEPOSITORY
OR BETWEEN OR AMONG DEPOSITORY PARTICIPANTS OR CERTIFICATE OWNERS, MADE IN
VIOLATION OF THE APPLICABLE RESTRICTIONS.
A-1
Certificate No. 1 Adjustable Pass-Through Rate
Class A-[_]
Date of Pooling and Servicing Percentage Interest: 100%
Agreement and Cut-off Date:
November 1, 2004
First Distribution Date: Aggregate Initial Certificate Principal Balance
December 27, 2004 of the Class A-[_] Certificates:
$______________
Master Servicer: Initial Certificate Principal
▇▇▇▇▇ Fargo Bank, N.A. Balance of this Certificate:
$______________
Assumed Final CUSIP:__________
Distribution Date:
[____________], 2034
ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 2004-6
evidencing a percentage interest in the distributions allocable to the
Class A-[_] Certificates with respect to a Trust Fund consisting
primarily of a pool of one- to four-family adjustable and fixed-rate
first lien mortgage loans formed and sold by HOMESTAR MORTGAGE
ACCEPTANCE CORP.
This Certificate is payable solely from the assets of the Trust Fund, and does
not represent an obligation of or interest in Homestar Mortgage Acceptance
Corp., the Master Servicer, the Securities Administrator, the Trustee referred
to below or any of their affiliates. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality or by Homestar Mortgage Acceptance Corp., the Master Servicer,
the Securities Administrator, the Trustee or any of their affiliates. None of
the Company, the Master Servicer, the Securities Administrator 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 Percentage
Interest evidenced by this Certificate (obtained by dividing the Initial
Certificate Principal Balance of this Certificate by the aggregate Initial
Certificate Principal Balance of all Class A-[_] Certificates, both as specified
above) in certain distributions with respect to the Trust Fund consisting
primarily of an interest in a pool of one- to four-family fixed-rate and
adjustable-rate first lien mortgage loans (the "Mortgage Loans"), sold by
Homestar Mortgage Acceptance Corp. (hereinafter called the
A-2
"Company," which term includes any successor entity under the Agreement referred
to below). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as specified above (the "Agreement") among the Company, the
Master Servicer, the Securities Administrator and HSBC Bank USA, 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,
the capitalized terms used herein have the meanings assigned 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 the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such Distribution Date (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any, required to be distributed to Holders of Class A-[_]
Certificates on such Distribution Date.
Distributions on this Certificate will be made by the Securities
Administrator either in immediately available funds (by wire transfer or
otherwise) for the account of the Person entitled thereto if such Person shall
have so notified the Securities Administrator and the Trustee at least 5
Business Days prior to the related Record Date, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Any transferee shall be deemed to have made the representation set
forth in Section 5.02(c) of the Agreement.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose in the City of Minneapolis and
State of Minnesota. The Initial Certificate Principal Balance of this
Certificate is set forth above. The Certificate Principal Balance hereof will be
reduced to the extent of distributions allocable to principal.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Asset-Backed Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
A-3
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Trustee, the Company and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer, the Securities Administrator and the Trustee
and the rights of the Certificateholders under the Agreement at any time by the
Company, the Master Servicer, the Securities Administrator and the Trustee with
the consent of the Holders of Certificates evidencing in the aggregate not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
thereby. 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 exchange herefor or in
lieu hereof whether or not notation of such consent is made upon the
Certificate. The Agreement also permits the amendment thereof in certain
circumstances without the consent of the Holders of any of the Certificates and,
in certain additional circumstances, without the consent of the Holders of
certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Securities Administrator, the
Servicer and the Trustee and any agent of the Company, the Master Servicer, the
Securities Administrator, the Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Master Servicer, the Securities Administrator, the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-4
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the purchase by the Servicer or its designee or the Master Servicer from the
Trust Fund of all remaining Mortgage Loans and each REO Property in respect
thereof remaining in the Trust Fund, thereby effecting early retirement of the
Certificates and (ii) 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 REO Property in respect thereof). The Agreement permits,
but does not require, the Servicer or the Master Servicer to purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all REO
Property; provided, that any such option may only be exercised on or after the
first Distribution Date on which the aggregate unpaid balance of the Mortgage
Loans is less than or equal to ten percent of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date with respect to a purchase
by the Servicer, or on or after the first Distribution Date on which the
aggregate unpaid principal balance of the Mortgage Loans is less than or equal
to five percent of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date with respect to a purchase by the Master Servicer.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
A-5
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: November [___], 2004 ▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
A-6
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 Percentage 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
A-7
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.
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS M CERTIFICATE
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
[THE CLASS M-1 CERTIFICATES] [AND THE CLASS M-2 CERTIFICATES] [AND THE CLASS M-3
CERTIFICATES] [AND THE CLASS M-4 CERTIFICATES] [AND THE CLASS M-5 CERTIFICATES]
[AND THE CLASS M-6 CERTIFICATES] [AND THE CLASS M-7 CERTIFICATES] [AND THE CLASS
M-8 CERTIFICATES] AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW). SOLELY FOR
U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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").
THIS CERTIFICATE SHALL INITIALLY BE ISSUED AS ONE OR MORE CERTIFICATES
REGISTERED IN THE NAME OF THE DEPOSITORY OR ITS NOMINEE AND, EXCEPT AS PROVIDED
BELOW, REGISTRATION OF SUCH CERTIFICATES MAY NOT BE TRANSFERRED BY THE TRUSTEE
EXCEPT TO ANOTHER DEPOSITORY THAT AGREES TO HOLD SUCH CERTIFICATES FOR THE
RESPECTIVE CERTIFICATE OWNERS WITH OWNERSHIP INTERESTS THEREIN. THE CERTIFICATE
OWNERS SHALL HOLD THEIR RESPECTIVE OWNERSHIP INTERESTS IN AND TO EACH OF SUCH
BOOK-ENTRY CERTIFICATES THROUGH THE BOOK-ENTRY FACILITIES OF THE DEPOSITORY AND,
EXCEPT AS PROVIDED BELOW, SHALL NOT BE ENTITLED TO DEFINITIVE CERTIFICATES IN
RESPECT OF SUCH OWNERSHIP INTERESTS. ALL TRANSFERS BY CERTIFICATE OWNERS OF
THEIR RESPECTIVE OWNERSHIP IN THE BOOK-ENTRY CERTIFICATES SHALL BE MADE IN
ACCORDANCE WITH THE PROCEDURES ESTABLISHED BY THE DEPOSITORY PARTICIPANT OR
BROKERAGE FIRM REPRESENTING SUCH CERTIFICATE OWNER. EACH DEPOSITORY PARTICIPANT
SHALL TRANSFER THE OWNERSHIP INTERESTS ONLY IN THE 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. THE TRUSTEE SHALL
NOT BE REQUIRED TO MONITOR, DETERMINE OR INQUIRE AS TO COMPLIANCE WITH THE
TRANSFER RESTRICTIONS WITH RESPECT TO THE BOOK-ENTRY CERTIFICATES, AND THE
TRUSTEE SHALL HAVE NO LIABILITY FOR TRANSFERS OF OWNERSHIP INTERESTS IN THE
BOOK-ENTRY CERTIFICATES MADE THROUGH THE BOOK-ENTRY FACILITIES OF THE DEPOSITORY
OR BETWEEN OR AMONG DEPOSITORY PARTICIPANTS OR CERTIFICATE OWNERS, MADE IN
VIOLATION OF THE APPLICABLE RESTRICTIONS.
B-1-1
ANY TRANSFEREE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION SET
FORTH IN SECTION 5.02(C) OF THE POOLING AND SERVICING AGREEMENT.
B-1-2
Certificate No.______ Adjustable Pass-Through Rate
Class [M-__][Mezzanine] Aggregate Initial Certificate Principal
Balance of the Class [M-__]
Certificates:
$____________
Date of Pooling and Servicing Initial Certificate Principal Balance of this Certificate:
Agreement and Cut-off Date: $__________________
November 1, 2004
First Distribution Date: CUSIP:______________
December 27, 2004
Master Servicer:
▇▇▇▇▇ Fargo Bank, N.A.
Assumed Final Distribution Date:
[__________], 2034
ASSET-BACKED PASS-THROUGH CERTIFICATE
SERIES 2004-6
evidencing a percentage interest in any distributions allocable to the
Class M-__ Certificates with respect to the Trust Fund consisting
primarily of a pool of one- to four-family adjustable and fixed-rate
first lien mortgage loans formed and sold by HOMESTAR MORTGAGE
ACCEPTANCE CORP.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee referred to below or any of their affiliates. Neither
this Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any governmental agency or instrumentality or by Homestar Mortgage Acceptance
Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee or any of their affiliates. None of Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator 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
Percentage Interest evidenced by this Certificate (obtained by dividing the
Initial Certificate Principal Balance of this Certificate by the aggregate
Initial Certificate Principal Balance of all Class M-__ Certificates, both as
specified above) in certain distributions with respect to the Trust Fund
consisting primarily of an interest in a pool of one- to four-family fixed-rate
and adjustable-rate first lien mortgage loans (the "Mortgage Loans"), sold by
Homestar Mortgage Acceptance Corp. (hereinafter called the "Company," which term
includes any successor entity under the Agreement referred to below).
B-1-3
The Trust Fund was created pursuant to a Pooling and Servicing Agreement dated
as specified above (the "Agreement") among the Company, the Master Servicer, the
Securities Administrator and HSBC Bank USA, 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, the capitalized terms
used herein have the meanings assigned 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 the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such Distribution Date (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any, required to be distributed to Holders of Class M-__
Certificates on such Distribution Date.
Distributions on this Certificate will be made by the Securities
Administrator either in immediately available funds (by wire transfer or
otherwise) for the account of the Person entitled thereto if such Person shall
have so notified the Securities Administrator and the Trustee at least 5
Business Days prior to the related Record Date, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Any transferee shall be deemed to have made the representation set
forth in Section 5.02(c) of the Agreement.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose in the City of Minneapolis and
State of Minnesota. The Initial Certificate Principal Balance of this
Certificate is set forth above. The Certificate Principal Balance hereof will be
reduced to the extent of distributions allocable to principal.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Asset-Backed Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
B-1-4
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Trustee, the Company and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer, the Securities Administrator and the Trustee
and the rights of the Certificateholders under the Agreement at any time by the
Company, the Master Servicer, the Securities Administrator and the Trustee with
the consent of the Holders of Certificates evidencing in the aggregate not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
thereby. 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 exchange herefor or in
lieu hereof whether or not notation of such consent is made upon the
Certificate. The Agreement also permits the amendment thereof in certain
circumstances without the consent of the Holders of any of the Certificates and,
in certain additional circumstances, without the consent of the Holders of
certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Securities Administrator, the
Servicer and the Trustee and any agent of the Company, the Master Servicer, the
Securities Administrator, the Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Master Servicer, the Securities Administrator, the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
B-1-5
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the purchase by the Servicer or its designee or the Master Servicer from the
Trust Fund of all remaining Mortgage Loans and each REO Property in respect
thereof remaining in the Trust Fund, thereby effecting early retirement of the
Certificates and (ii) 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 REO Property in respect thereof). The Agreement permits,
but does not require, the Servicer or the Master Servicer to purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all REO
Property; provided, that any such option may only be exercised on or after the
first Distribution Date on which the aggregate unpaid balance of the Mortgage
Loans is less than or equal to ten percent of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date with respect to a purchase
by the Servicer, or on or after the first Distribution Date on which the
aggregate unpaid principal balance of the Mortgage Loans is less than or equal
to five percent of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date with respect to a purchase by the Master Servicer.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
B-1-6
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: November [___], 2004 ▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
B-1-7
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 Percentage 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
B-1-8
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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS C CERTIFICATES
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-[_], AND
CLASS M-[_] CERTIFICATES AS DESCRIBED IN THE AGREEMENT (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
B-2-1
Certificate No. 1
Class C
Date of Pooling and Servicing Initial Notional Amount
Agreement and Cut-off Date: of this Certificate ("Denomination"):
November 1, 2004 $______________
First Distribution Date: Initial Certificate Principal Balance of
December 27, 2004 this Certificate ("Denomination"):
$______________
Master Servicer:
▇▇▇▇▇ Fargo Bank, N.A.
Assumed Final Distribution Date:
[______________], 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-6
evidencing percentage interest in the distributions allocable to the
Class C Certificates with respect to a Trust Fund consisting primarily
of a pool of one- to four- family adjustable and fixed-rate first lien
mortgage loans formed and sold by HOMESTAR MORTGAGE ACCEPTANCE CORP.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee referred to below or any of their affiliates. Neither
this Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any governmental agency or instrumentality or by Homestar Mortgage Acceptance
Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee or any of their affiliates. None of Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator 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
Percentage Interest evidenced by this Certificate (obtained by dividing the
Original Class C Certificate by the Original Class Certificate Principal
Balance) in certain distributions with respect to the Trust Fund consisting
primarily of an interest in a pool of one- to four-family fixed-rate and
adjustable-rate first lien mortgage loans (the "Mortgage Loans"), sold by
Homestar Mortgage Acceptance Corp. (hereinafter called the "Company," which term
includes any successor entity under the Agreement referred to below). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as
specified above (the "Agreement") among the Company, the Master Servicer, the
Securities Administrator and HSBC Bank USA, National Association, as trustee
(the "Trustee"), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the
B-2-2
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class C 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 the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such Distribution Date (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any, required to be distributed to Holders of Class C Certificates
on such Distribution Date.
Distributions on this Certificate will be made by the Securities
Administrator either in immediately available funds (by wire transfer or
otherwise) for the account of the Person entitled thereto if such Person shall
have so notified the Securities Administrator and the Trustee at least 5
Business Days prior to the related Record Date, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose in the City of Minneapolis and
State of Minnesota.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Asset-Backed Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Trustee, the Company and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such laws. In the event
B-2-3
that a transfer is to be made in reliance upon an exemption from the Act and
such laws, in order to assure compliance with the act and such laws, the
Certificateholder desiring to effect such transfer and such Certificateholder's
prospective transferee shall each certify to the Trustee and the Company in
writing the facts surrounding the transfer. In the event that such a transfer is
not to be made pursuant to Rule 144A of the act, there shall be delivered to the
Trustee and the Company of an Opinion of Counsel that such transfer may be made
pursuant to an exemption from the Act, which Opinion of Counsel shall not be
obtained at the expense of the Trustee, the Master Servicer or the Company; or
there shall be delivered to the Trustee and the Company a transferor certificate
by the transferor and an investment letter shall be executed by the transferee.
The Holder hereof desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trustee and the Company against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(c) of the Agreement.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer, the Securities Administrator and the Trustee
and the rights of the Certificateholders under the Agreement at any time by the
Company, the Master Servicer, the Securities Administrator and the Trustee with
the consent of the Holders of Certificates evidencing in the aggregate not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
thereby. 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 exchange herefor or in
lieu hereof whether or not notation of such consent is made upon the
Certificate. The Agreement also permits the amendment thereof in certain
circumstances without the consent of the Holders of any of the Certificates and,
in certain additional circumstances, without the consent of the Holders of
certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
B-2-4
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Securities Administrator, the
Servicer and the Trustee and any agent of the Company, the Master Servicer, the
Securities Administrator, the Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Master Servicer, the Securities Administrator, the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the purchase by the Servicer or its designee or the Master Servicer from the
Trust Fund of all remaining Mortgage Loans and each REO Property in respect
thereof remaining in the Trust Fund, thereby effecting early retirement of the
Certificates and (ii) 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 REO Property in respect thereof). The Agreement permits,
but does not require, the Servicer or the Master Servicer to purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all REO
Property; provided, that any such option may only be exercised on or after the
first Distribution Date on which the aggregate unpaid balance of the Mortgage
Loans is less than or equal to ten percent of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date with respect to a purchase
by the Servicer, or on or after the first Distribution Date on which the
aggregate unpaid principal balance of the Mortgage Loans is less than or equal
to five percent of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date with respect to a purchase by the Master Servicer.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
B-2-5
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: November [___], 2004 ▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned Agreement.
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
B-2-6
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 Percentage 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
B-2-7
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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS P CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A "PLAN") SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), SHALL BE MADE EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
B-3-1
Certificate No. 1
Class P Aggregate Initial Certificate Principal
Balance of the Class P Certificates:
$100.00
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement and Cut-off Date: of this Certificate ("Denomination"):
November 1, 2004 $100.00
First Distribution Date: Percentage Interest of this Certificate:
December 27, 2004 100.00%
Master Servicer:
▇▇▇▇▇ Fargo Bank, N.A.
Assumed Final Distribution Date:
[_______________], 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-6
evidencing a percentage interest in any distributions allocable to the
Class P Certificates with respect to the Trust Fund consisting
primarily of a pool of one- to four-family adjustable and fixed-rate
first lien mortgage loans formed and sold by HOMESTAR MORTGAGE
ACCEPTANCE CORP.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee referred to below or any of their affiliates. Neither
this Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any governmental agency or instrumentality or by Homestar Mortgage Acceptance
Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee or any of their affiliates. None of Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator 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
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the Denomination of this Class P Certificate by the Original Class Certificate
Principal Balance) in certain distributions with respect to the Trust Fund
consisting primarily of an interest in a pool of one- to four-family fixed-rate
and adjustable-rate first lien mortgage loans (the "Mortgage Loans"), sold by
Homestar Mortgage Acceptance Corp. (hereinafter called the "Company," which term
includes any successor entity under the Agreement referred to below). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as
specified above (the "Agreement") among the Company, the Master Servicer, the
Securities Administrator and HSBC Bank USA, National
B-3-2
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,
the capitalized terms used herein have the meanings assigned 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 the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such Distribution Date (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any, required to be distributed to Holders of Class P Certificates
on such Distribution Date.
Distributions on this Certificate will be made by the Securities
Administrator either in immediately available funds (by wire transfer or
otherwise) for the account of the Person entitled thereto if such Person shall
have so notified the Securities Administrator and the Trustee at least 5
Business Days prior to the related Record Date, or by check mailed to the
address of the Person entitled thereto, as such name and address shall appear on
the Certificate Register.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose in the City of Minneapolis and
State of Minnesota. The Initial Certificate Principal Balance of this
Certificate is set forth above. The Certificate Principal Balance hereof will be
reduced to the extent of distributions allocable to principal. This Certificate
is one of a duly authorized issue of Certificates issued in several Classes
designated as Asset-Backed Pass-Through Certificates of the Series specified
hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Trustee, the Company and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
No transfer of a Certificate of this Class shall be made unless such
transfer is made pursuant to an effective registration statement under the Act
and any applicable state securities
B-3-3
laws or is exempt from the registration requirements under said Act and such
laws. In the event that a transfer is to be made in reliance upon an exemption
from the Act and such laws, in order to assure compliance with the Act and such
laws, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee and
the Company in writing the facts surrounding the transfer. In the event that
such a transfer is not to be made pursuant to Rule 144A of the Act, there shall
be delivered to the Trustee and the Company of an Opinion of Counsel that such
transfer may be made pursuant to an exemption from the Act, which Opinion of
Counsel shall not be obtained at the expense of the Trustee, the Master Servicer
or the Company; or there shall be delivered to the Trustee and the Company a
transferor certificate by the transferor and an investment letter shall be
executed by the transferee. The Holder hereof desiring to effect such transfer
shall, and does hereby agree to, indemnify the Trustee and the Company against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of this Certificate to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate shall be
made except in accordance with Section 5.02(c) of the Agreement.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Company, the Master
Servicer and the Trustee with the consent of the Holders of Certificates
evidencing in the aggregate not less than 66-2/3% of the Percentage Interests of
each Class of Certificates affected thereby. 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 exchange herefor or in lieu hereof whether or not notation
of such consent is made upon the Certificate. The Agreement also permits the
amendment thereof in certain circumstances without the consent of the Holders of
any of the Certificates and, in certain additional circumstances, without the
consent of the Holders of certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of
B-3-4
authorized denominations evidencing the same Class and aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Securities Administrator, the
Servicer and the Trustee and any agent of the Company, the Master Servicer, the
Securities Administrator, the Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Master Servicer, the Securities Administrator, the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the purchase by the Servicer or its designee or the Master Servicer from the
Trust Fund of all remaining Mortgage Loans and each REO Property in respect
thereof remaining in the Trust Fund, thereby effecting early retirement of the
Certificates and (ii) 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 REO Property in respect thereof). The Agreement permits,
but does not require, the Servicer or the Master Servicer to purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all REO
Property; provided, that any such option may only be exercised on or after the
first Distribution Date on which the aggregate unpaid balance of the Mortgage
Loans is less than or equal to ten percent of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date with respect to a purchase
by the Servicer, or on or after the first Distribution Date on which the
aggregate unpaid principal balance of the Mortgage Loans is less than or equal
to five percent of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date with respect to a purchase by the Master Servicer.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
B-3-5
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: November [___], 2004 ▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
B-3-6
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)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee 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
B-3-7
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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON
OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS 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").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(C) OF THE AGREEMENT OR
AN OPINION OF COUNSEL AS PROVIDED IN SECTION 5.02(C) THAT THE PURCHASE OF THIS
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR,
THE COMPANY OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT (THE "AGREEMENT").
THIS CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER SERVICER
AND THE TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE
OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY
ORGANIZATION (OTHER THAN A COOPERATIVE 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, (C) ANY
ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE, (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREIN REFERRED TO AS A
"DISQUALIFIED ORGANIZATION") OR (D) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2)
NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND
(3)
B-4-1
SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. 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, 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.
B-4-2
Certificate No. 1
Class R
Date of Pooling and, Servicing Percentage Interest: 100%
Agreement and Cut-off Date:
November 1, 2004
First Distribution Date:
December 27, 2004
Master Servicer:
▇▇▇▇▇ Fargo Bank, N.A.
Assumed Final Distribution Date:
________________
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-6
evidencing a percentage interest in any distributions allocable to the
Class R Certificates with respect to a Trust Fund consisting primarily
of a pool of one- to four-family adjustable and fixed-rate first lien
mortgage loans formed and sold by HOMESTAR MORTGAGE ACCEPTANCE CORP.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee referred to below or any of their affiliates. Neither
this Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any governmental agency or instrumentality or by Homestar Mortgage Acceptance
Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee or any of their affiliates. None of Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator 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.
B-4-3
This certifies that ___________________ is the registered owner of the
Percentage Interest evidenced by this Certificate in certain distributions with
respect to the Trust Fund consisting primarily of an interest in a pool of one-
to four-family fixed-rate and adjustable-rate first lien mortgage loans (the
"Mortgage Loans"), sold by Homestar Mortgage Acceptance Corp. (hereinafter
called the "Company," which term includes any successor entity under the
Agreement referred to below). The Trust Fund was created pursuant to a Pooling
and Servicing Agreement dated as specified above (the "Agreement") among the
Company, the Master Servicer, the Securities Administrator and HSBC Bank USA,
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, the capitalized terms used herein have the meanings assigned 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 the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such Distribution Date (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any, required to be distributed to Holders of Class R Certificates
on such Distribution Date.
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
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 Company 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 Company, which purchaser may be
the Company, or any affiliate of the Company, on such terms and conditions as
the Company may choose.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose in the City of Minneapolis and
State of Minnesota.
In connection with any transfer of this Certificate, the Trustee will
also require either (i) an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee with
B-4-4
respect to the permissibility of such transfer under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and Section 4975 of the
Internal Revenue Code (the "Code") and stating, among other things, that the
transferee's acquisition of a Class R Certificate will not constitute or result
in a non-exempt prohibited transaction under Section 406 of ERISA or Section
4975 of the Code or (ii) a representation letter, in the form as described by
the Agreement, stating that the transferee is not an employee benefit or other
plan subject to the prohibited transaction provisions of ERISA or Section 4975
of the Code (a "Plan"), or any other person (including an investment manager, a
named fiduciary or a trustee of any Plan) acting, directly or indirectly, on
behalf of or purchasing any Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Asset-Backed Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Trustee, the Company and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer, the Securities Administrator and the Trustee
and the rights of the Certificateholders under the Agreement at any time by the
Company, the Master Servicer, the Securities Administrator and the Trustee with
the consent of the Holders of Certificates evidencing in the aggregate not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
thereby. 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 exchange herefor or in
lieu hereof whether or not notation of such consent is made upon the
Certificate. The Agreement also permits the amendment thereof in certain
circumstances without the consent of the Holders of any of the Certificates and,
in certain additional circumstances, without the consent of the Holders of
certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator, duly
endorsed by, or accompanied by an assignment in the form below or other
B-4-5
written instrument of transfer in form satisfactory to the Trustee and the
Securities Administrator duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of authorized denominations evidencing the same Class and aggregate Percentage
Interest will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of authorized denominations
evidencing the same Class and aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Securities Administrator, the
Servicer and the Trustee and any agent of the Company, the Master Servicer, the
Securities Administrator, the Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Master Servicer, the Securities Administrator, the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the purchase by the Servicer or its designee or the Master Servicer from the
Trust Fund of all remaining Mortgage Loans and each REO Property in respect
thereof remaining in the Trust Fund, thereby effecting early retirement of the
Certificates and (ii) 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 REO Property in respect thereof). The Agreement permits,
but does not require, the Servicer or the Master Servicer to purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all REO
Property; provided, that any such option may only be exercised on or after the
first Distribution Date on which the aggregate unpaid balance of the Mortgage
Loans is less than or equal to ten percent of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date with respect to a purchase
by the Servicer, or on or after the first Distribution Date on which the
aggregate unpaid principal balance of the Mortgage Loans is less than or equal
to five percent of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date with respect to a purchase by the Master Servicer.
B-4-6
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purpose
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
B-4-7
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated: November [___], 2004 ▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
B-4-8
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)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee 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
B-4-9
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.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS R-X CERTIFICATE
THIS CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED
STATES PERSON OR A DISQUALIFIED ORGANIZATION (AS DEFINED BELOW).
SOLELY FOR U S FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS
A "RESIDUAL INTEREST" IN ONE OR MORE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE").
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE
TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION 5.02(C) OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE MASTER SERVICER, THE
SECURITIES ADMINISTRATOR, THE COMPANY AND THE TRUSTEE THAT THE PURCHASE OF THIS
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE CODE AND WILL NOT SUBJECT THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR,
THE COMPANY OR THE TRUSTEE TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT (THE "AGREEMENT").
THIS CLASS R-X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR
INTEREST AND WILL NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR AND THE TRUSTEE THAT (1) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY
FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING, (B) ANY ORGANIZATION (OTHER THAN A
COOPERATIVE 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, (C) ANY, ORGANIZATION DESCRIBED IN SECTION
1381(A)(2)(C) OF THE CODE, (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREIN REFERRED TO AS A
B-5-1
"DISQUALIFIED ORGANIZATION") OR (D) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2)
NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND
(3) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL CONDITIONS RELATING TO THE
FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE. 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, 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.
B-5-2
Certificate No. 1
Class R-X Senior
Date of Pooling and Servicing Percentage Interest: 100%
Agreement and Cut-off Date:
November 1, 2004
First Distribution Date:
December 27, 2004 CUSIP: [____]
Master Servicer
▇▇▇▇▇ Fargo Bank, N.A.
Assumed Final Distribution Date:
[____], 2034
ASSET-BACKED PASS-THROUGH CERTIFICATE,
SERIES 2004-6
evidencing a percentage interest in any distributions allocable to the
Class R-X Certificates with respect to the Trust Fund consisting
primarily of a pool of one- to four-family fixed-rate and
adjustable-rate first lien mortgage loans sold by HOMESTAR MORTGAGE
ACCEPTANCE CORP.
This Certificate is payable solely from the assets of the Trust Fund,
and does not represent an obligation of or interest in Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee referred to below or any of their affiliates. Neither
this Certificate nor the underlying Mortgage Loans are guaranteed or insured by
any governmental agency or instrumentality or by Homestar Mortgage Acceptance
Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator, the Trustee or any of their affiliates. None of Homestar Mortgage
Acceptance Corp., the Master Servicer, the Servicer, the Seller, the Securities
Administrator 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
Percentage Interest evidenced by this Certificate in certain distributions with
respect to the Trust Fund consisting primarily of an interest in a pool of one-
to four-family fixed-rate and adjustable-rate first lien mortgage loans (the
"Mortgage Loans"), sold by Homestar Mortgage Acceptance Corp. (hereinafter
called the "Company," which term includes any successor entity under the
Agreement referred to below). The Trust Fund was created pursuant to a Pooling
and Servicing Agreement dated as specified above (the "Agreement") among the
Company, the Master Servicer, the Securities Administrator
B-5-3
and HSBC Bank USA, 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, the capitalized terms used herein have the meanings
assigned 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 the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the Distribution Date"), commencing as
described in the Agreement, to the Person in whose name this Certificate is
registered at the close of business on the last Business Day of the month
immediately preceding the month of such Distribution Date (the "Record Date"),
from the Available Distribution Amount in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount of interest and
principal, if any , required to be distributed to Holders of Class R-X
Certificates on such Distribution Date.
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
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 Company 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 Company, which purchaser may be
the Company, or any affiliate of the Company, on such terms and conditions as
the Company may choose.
Notwithstanding the above, the final distribution on this Certificate
will be made after due notice of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose in the City of Minneapolis and
State of Minnesota.
In connection with any transfer of this Certificate, the Trustee will
also require either (i) an opinion of counsel acceptable to and in form and
substance satisfactory to the Trustee with respect to the permissibility of such
transfer under the Employee Retirement Income Security Act of 1974, as amended
("ERISA") and Section 4975 of the Internal Revenue Code (the "Code") and
stating, among other things, that the transferee's acquisition of a Class R-X
Certificate will not constitute or result in a non-exempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code or (ii) a representation
letter, in the form as described by the Agreement, stating that the transferee
is not an employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person
(including an
B-5-4
investment manager, a named fiduciary or a trustee of any Plan) acting, directly
or indirectly, on behalf of or purchasing any Certificate with "plan assets" of
any Plan.
This Certificate is one of a duly authorized issue of Certificates
issued in several Classes designated as Asset-Backed Pass-Through Certificates
of the Series specified hereon (herein collectively called the "Certificates").
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. In the event Master Servicer funds are advanced
with respect to any Mortgage Loan, such advance is reimbursable to the Master
Servicer, to the extent provided in the Agreement, from related recoveries on
such Mortgage Loan or from other cash that would have been distributable to
Certificateholders.
As provided in the Agreement, withdrawals from the Custodial Account
and/or the Certificate Account created for the benefit of Certificateholders may
be made by the Master Servicer from time to time for purposes other than
distributions to Certificateholders, such purposes including without limitation
reimbursement to the Trustee, the Company and the Master Servicer of advances
made, or certain expenses incurred, by either of them.
The Agreement permits, with certain exceptions therein provided, the
amendment of the Agreement and the modification of the rights and obligations of
the Company, the Master Servicer, the Securities Administrator and the Trustee
and the rights of the Certificateholders under the Agreement at any time by the
Company, the Master Servicer, the Securities Administrator and the Trustee with
the consent of the Holders of Certificates evidencing in the aggregate not less
than 66-2/3% of the Percentage Interests of each Class of Certificates affected
thereby. 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 exchange herefor or in
lieu hereof whether or not notation of such consent is made upon the
Certificate. The Agreement also permits the amendment thereof in certain
circumstances without the consent of the Holders of any of the Certificates and,
in certain additional circumstances, without the consent of the Holders of
certain Classes of Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer at
the offices or agencies maintained by the Securities Administrator, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee and the Securities
Administrator duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same Class and aggregate Percentage Interest will
be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in Classes and in denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of
B-5-5
authorized denominations evidencing the same Class and aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Master Servicer, the Securities Administrator, the
Servicer and the Trustee and any agent of the Company, the Master Servicer, the
Securities Administrator, the Servicer or the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Company, the Master Servicer, the Securities Administrator, the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Certificate shall be governed by and construed in accordance with
the laws of the State of New York.
The obligations created by the Agreement in respect of the Certificates
and the Trust Fund created thereby shall terminate upon the payment to
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be paid to them pursuant to the Agreement following the earlier of
(i) the purchase by the Servicer or its designee or the Master Servicer from the
Trust Fund of all remaining Mortgage Loans and each REO Property in respect
thereof remaining in the Trust Fund, thereby effecting early retirement of the
Certificates and (ii) 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 REO Property in respect thereof). The Agreement permits,
but does not require, the Servicer or the Master Servicer to purchase at a price
determined as provided in the Agreement all remaining Mortgage Loans and all REO
Property; provided, that any such option may only be exercised on or after the
first Distribution Date on which the aggregate unpaid balance of the Mortgage
Loans is less than or equal to ten percent of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date with respect to a purchase
by the Servicer, or on or after the first Distribution Date on which the
aggregate unpaid principal balance of the Mortgage Loans is less than or equal
to five percent of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date with respect to a purchase by the Master Servicer.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purpose
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
B-5-6
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated: November [___], 2004 ▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Certificates referred to in the within-mentioned
Agreement.
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:________________________
Authorized Signatory
B-5-7
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 Percentage
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
B-5-8
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.
B-5-9
EXHIBIT C
FORM OF INITIAL CERTIFICATION
November 1, 2004
HSBC Bank USA, National Association Homestar Mortgage Acceptance Corp.
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Ambac Assurance Corporation
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Homestar Mortgage Acceptance Corp.,
HMAC Mortgage Trust 2004-6, Asset-Backed Pass-Through Certificates,
Series 2004-6
Re: Custodial Agreement, dated as of November 19, 2004, by and
among HSBC Bank USA, National Association, Homestar Mortgage
Acceptance Corp. and ▇▇▇▇▇ Fargo Bank, N.A. relating to HMAC
Mortgage Trust 2004-6, ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2004-6
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement and subject to Section 2.02 of the Pooling and Servicing Agreement,
dated as of November 1, 2004 among Homestar Mortgage Acceptance Corp., HSBC Bank
USA, National Association, and ▇▇▇▇▇ Fargo Bank, N.A., the undersigned, as
custodian (the "Custodian"), hereby certifies that as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or listed on the attachment hereto) it has reviewed the Mortgage File, and has
determined that: (1) all documents required to be included in the Mortgage File
are in its possession and (2) such documents have been reviewed by it and appear
regular on their face and relate to such Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Custodial and Pooling and Servicing Agreements. The Custodian
makes no representations as to and shall not be responsible to verify: (i) the
validity, legality, sufficiency, enforceability, due authorization,
recordability or genuineness of any of the documents contained in each Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan, or (iii) the existence of any assumption, modification, written
assurance or substitution agreement with respect to any Mortgage File if no such
documents appear in the Mortgage File delivered to the Custodian.
C-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Custodial Agreement.
▇▇▇▇▇ FARGO BANK, N.A., as Custodian
By:__________________________________
Name:
Title:
C-2
EXHIBIT D
FORM OF FINAL CERTIFICATION
_______, 20__
HSBC Bank USA, National Association Homestar Mortgage Acceptance Corp.
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Ambac Assurance Corporation
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Homestar Mortgage Acceptance Corp.,
HMAC Mortgage Trust 2004-6, Mortgage Pass-Through Certificates,
Series 2004-6
Re: Custodial Agreement, dated as of November 19, 2004, by and
among HSBC Bank USA, National Association, Homestar Mortgage
Acceptance Corp. and ▇▇▇▇▇ Fargo Bank, N.A. relating to HMAC
Mortgage Trust 2004-6, ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2004-6
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement and subject to Section 2.02 of the Pooling and Servicing Agreement,
the undersigned, as Custodian, hereby certifies that it has received a Mortgage
File with respect to each Mortgage Loan listed in the Mortgage Loan Schedule
containing with respect to each Mortgage Loan:
(i) the original Mortgage Note (including all riders
thereto) bearing all intervening endorsements necessary to show a
complete chain of endorsements from the original payee, endorsed "Pay
to the order of _____without recourse", via original signature, and, if
previously endorsed, signed in the name of the last endorsee by a duly
qualified officer of the last endorsee or, with respect to any Mortgage
Loan as to which the original Mortgage Note has been permanently lost
or destroyed and has not been replaced, a Lost Note Affidavit. If the
Mortgage Loan was acquired by the last endorsee in a merger, the
endorsement must be by "[name of last endorsee], successor by merger to
[name of the predecessor]." If the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another
name, the endorsement must be by "[name of last endorsee], formerly
known as [previous name]." The Custodian has endorsed the Mortgage Note
in the name of "HSBC Bank USA, National Association, as trustee under
the Pooling and Servicing Agreement relating to Homestar Mortgage
Acceptance Corp., Asset-Backed Pass-Through Certificates, Series
2004-6" for each Mortgage Note;
D-1
(ii) The original recorded Mortgage, noting the presence
of the MIN of the Mortgage Loan and either language indicating that the
Mortgage Loan is a MOM loan or if the Mortgage Loan was not a MOM loan
at origination, the original Mortgage and the assignment thereof to
MERS, with evidence of recording indicated thereon; provided that if
such document is not included because of a delay by the public
recording office where such document has been delivered for recordation
or such office as a matter of policy does not return the original of
such document or if such original Mortgage has been lost, the Seller
shall include or cause to be included a copy thereof certified by the
appropriate recording office, if available;
(iii) the original Assignment of Mortgage in blank, in form
and substance acceptable for recordation in the jurisdiction in which
the related mortgage property is located and signed in the name of the
Last Endorsee by an authorized officer; unless the Mortgage Loan is
registered on the MERS system;
(iv) The original intervening Assignments, if any and if
available, with evidence of recording thereon, showing an unbroken
chain of title to the Mortgage from the originator thereof to Person
assigning it to the Trustee (or to MERS, if the Mortgage Loan is
registered on the MERS(R) System); provided that if such document is
not included because of a delay by the public recording office where
such document has been delivered for recordation or such office as a
matter of policy does not return the original of such document, the
Seller shall include or cause to be included a copy thereof certified
by the appropriate recording office, if available;
(v) The originals of each assumption, modification or
substitution agreement, if any and if available, relating to the
Mortgage Loan; and
(vi) the original title insurance policy, or, if such
policy has not been issued, any one of an original or a copy of the
preliminary title report, title binder or title commitment on the
Mortgaged Property with the original policy of the insurance to be
delivered promptly following the receipt thereof;
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, N.A., as Custodian
By:__________________________________
Name:
Title:
D-2
EXHIBIT E
FORM OF REMITTANCE REPORT
(Provided Upon Request)
E-1
EXHIBIT F
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: HSBC Bank USA, National Association
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of November 1, 2004,
by and among HSBC Bank USA, National Association, Homestar
Mortgage Acceptance Corp. and ▇▇▇▇▇ Fargo Bank, N.A. relating
to HMAC Mortgage Trust 2004-6, Asset-Backed Pass-Through
CERTIFICATES, SERIES 2004-6
In connection with the administration of the Mortgage Loans held by you
pursuant to the above-captioned Pooling and Servicing Agreement, we request the
release, and hereby acknowledge receipt, of the Mortgage File for the Mortgage
Loan described below, for the reason indicated.
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:________________________________
F-1
EXHIBIT G-1
FORM OF INVESTOR REPRESENTATION LETTER
_____________,200__
Homestar Mortgage Acceptance Corp.
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
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HSBC Bank USA, National Association
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Attention: Homestar Mortgage Acceptance Corp. Series 2004-6
Re: Homestar Mortgage Acceptance Corp. ASSET-BACKED PASS-THROUGH
CERTIFICATES SERIES 2004-6, CLASS [___]
Ladies and Gentlemen:
______________ (the "Purchaser") intends to purchase from
______________ (the "Seller") $_________ Initial Certificate Principal Balance
of Asset-Backed Pass-Through Certificates, Series 2004-6, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of November 1, 2004 among Homestar
Mortgage Acceptance Corp., as company (the "Company"), ▇▇▇▇▇ Fargo Bank, N.A.,
as master servicer (in such capacity, the "Master Servicer") and as securities
administrator (in such capacity, the "Securities Administrator") and HSBC Bank
USA, National Association, as trustee (the "Trustee"). All terms used herein and
not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Purchaser hereby certifies, represents and warrants to,
and covenants with, the Company and the Trustee that:
1. The Purchaser understands that (a) the Certificates
have not been and will not be registered or qualified under the
Securities Act of 1933, as amended (the "Act") or any state securities
law, (b) the Company is not required to so register or qualify the
Certificates, (c) the Certificates may be resold only if registered and
qualified pursuant to the provisions of the Act or any state securities
law, or if an exemption from such registration and qualification is
available, (d) the Pooling and Servicing Agreement contains
restrictions regarding the transfer of the Certificates and (e) the
Certificates will bear a legend to the foregoing effect.
2. The Purchaser is acquiring the Certificates for its
own account for investment only and not with a view to or for sale in
connection with any distribution thereof in any manner that would
violate the Act or any applicable state securities laws.
G-1-1
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and experience in
financial and business matters, and, in particular, in such matters
related to securities similar to the Certificates, such that it is
capable of evaluating the merits and risks of investment in the
Certificates, (b) able to bear the economic risks of such an investment
and (c) an "accredited investor" within the meaning of Rule 501 (a)
promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an
opportunity to review a copy of the Pooling and Servicing Agreement and
such other information concerning the Certificates, the Mortgage Loans
and the Company as has been requested by the Purchaser from the Company
or the Seller and is relevant to the Purchaser's decision to purchase
the Certificates. The Purchaser has had any questions arising from such
review answered by the Company or the Seller to the satisfaction of the
Purchaser.
5. The Purchaser has not and will not nor has it
authorized or will it authorize any person to (a) offer, pledge, sell,
dispose of or otherwise transfer any Certificate, any interest in any
Certificate or any other similar security to any person in any manner,
(b) solicit any offer to buy or to accept a pledge, disposition of
other transfer of any Certificate, any interest in any Certificate or
any other similar security from any person in any manner, (c) otherwise
approach or negotiate with respect to any Certificate, any interest in
any Certificate or any other similar security with any person in any
manner, (d) make any general solicitation by means of general
advertising or in any other manner or (e) take any other action, that
(as to any of (a) through (e) above) would constitute a distribution of
any Certificate under the Act, that would render the disposition of any
Certificate a violation of Section 5 of the Act or any state securities
law, or that would require registration or qualification pursuant
thereto. The Purchaser will not sell or otherwise transfer any of the
Certificates, except in compliance with the provisions of the Pooling
and Servicing Agreement.
Very truly yours,
_____________________________________
(Purchaser)
By:__________________________________
Name:________________________________
Title:_______________________________
G-1-2
EXHIBIT G-2
FORM OF TRANSFEROR REPRESENTATION LETTER
______________,200___
Homestar Mortgage Acceptance Corp.
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
HSBC Bank USA, National Association
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Homestar Mortgage Acceptance Corp. Series 2004-6
Re: Homestar Mortgage Acceptance Corp. ASSET-BACKED PASS-THROUGH
CERTIFICATES, SERIES 2004-6, CLASS __
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________
(the "Purchaser") of $_________ Initial Certificate Principal Balance of
Asset-Backed Pass-Through Certificates, Series 2004-6, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of November 1, 2004 among Homestar
Mortgage Acceptance Corp., as company (the "Company"), ▇▇▇▇▇ Fargo Bank, N.A.,
as master servicer (in such capacity, the "Master Servicer") and as securities
administrator (in such capacity, the "Securities Administrator") and HSBC Bank
USA, National Association, as trustee (the "Trustee"). The Seller hereby
certifies, represents and warrants to, and covenants with, the Company and the
Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
G-2-1
Very truly yours,
_____________________________________
(Seller)
By:__________________________________
Name:________________________________
Title:_______________________________
G-2-2
EXHIBIT G-3
FORM OF RULE 144A INVESTMENT REPRESENTATION
Description of Rule 144A Securities, including numbers:
Homestar Mortgage Acceptance Corp.
Asset-Backed Pass-Through Certificates
Series 2004-6, Class ____, No. ____
The undersigned seller, as registered holder (the "Transferor"),
intends to transfer the Rule 144A Securities described above to the undersigned
buyer (the "Buyer").
1. In connection with such transfer and in accordance with the
agreements pursuant to which the Rule 144A Securities were issued, the
Transferor hereby certifies the following facts: Neither the Transferor nor
anyone acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Rule 144A Securities, any interest in the Rule 144A Securities
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Rule 144A Securities, or otherwise
approached or negotiated with respect to the Rule 144A Securities, any interest
in the Rule 144A Securities 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 Rule 144A Securities under the Securities Act of 1933, as
amended (the "1933 Act"), or which would render the disposition of the Rule 144A
Securities a violation of Section 5 of the 1933 Act or require registration
pursuant thereto, and that the Transferor has not offered the Rule 144A
Securities to any person other than the Buyer or another "qualified
institutional buyer" as defined in Rule 144A under the ▇▇▇▇ ▇▇▇.
2. The Buyer warrants and represents to, and covenants with, the
Transferor, the Trustee and the Master Servicer pursuant to Section 5.02 of the
Pooling and Servicing Agreement as follows:
a. The Buyer understands that the Rule 144A Securities
have not been registered under the 1933 Act or the securities laws of
any state.
b. The Buyer considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The Buyer has been furnished with all information
regarding the Rule 144A Securities that it has requested from the
Transferor, the Trustee or the Master Servicer.
d. Neither the Buyer nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Rule
144A Securities, any
G-3-1
interest in the Rule 144A Securities or any other similar security to,
or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Rule 144A Securities, any interest in the Rule 144A
Securities or any other similar security from, or otherwise approached
or negotiated with respect to the Rule 144A Securities, any interest in
the Rule 144A Securities 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, that
would constitute a distribution of the Rule 144A Securities under the
1933 Act or that would render the disposition of the Rule 144A
Securities 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 Rule 144A Securities.
e. The Buyer is a "qualified institutional buyer" as
that term is defined in Rule 144 under the 1933 Act and has completed
either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. The Buyer is aware that the sale to it is being
made in reliance on Rule 144A. The Buyer is acquiring the Rule 144A
Securities for its own account or the account of other qualified
institutional buyers, understands that such Rule 144 Securities may be
resold, pledged or transferred only (i) to 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 on Rule 144A, or (ii) pursuant to another exemption from
registration under the 1933 Act.
3. The Buyer warrants and represents to, and covenants with, the
Transferor, the Servicer and the Company that either (1) the Buyer is not an
employee benefit plan within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") ("Plan"), or a plan
within the meaning of Section 4975(e)(1) of the Internal Revenue Code of 1986
(the "Code") (also a "Plan"), and the Buyer is not directly or indirectly
purchasing the Rule 144A Securities on behalf of, as investment manager of, as
named fiduciary of, as trustee of, or with assets of a Plan, or (2) the Buyer
has provided the Trustee with the opinion letter required by section 5.02(c) of
the Pooling and Servicing Agreement.
4. This document 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 document.
G-3-2
IN WITNESS WHEREOF, each of the parties has executed this document as
of the date set forth below.
___________________________________ _______________________________
Print Name of Transferor Print Name of Buyer
By:__________________________________ By:____________________________
Name: Name:
Title: Title:
Taxpayer Identification: Taxpayer Identification:
No.__________________________________ No.____________________________
Date:________________________________ Date:__________________________
G-3-3
ANNEX 1 TO EXHIBIT G-3
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers Other Than Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned and/or invested
on a discretionary basis $____________________1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and (ii)
the Buyer satisfies the criteria in the category marked below.
____ CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code.
____ BANK. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar
official or is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statement, a copy of which is attached hereto.
____ SAVINGS AND LOAN. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association
or similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements.
____ BROKER-DEALER. The Buyer is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
______________________________
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
G-3-4
____ INSURANCE COMPANY. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of Columbia.
____ STATE OR LOCAL PLAN. The Buyer is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality
of the State or its political subdivisions, for the benefit of its
employees.
____ ERISA PLAN. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
____ INVESTMENT ADVISER. The Buyer is an investment adviser registered under
the Investment Advisers Act of 1940.
____ SBIC. The Buyer is 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.
____ BUSINESS DEVELOPMENT COMPANY. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisers Act
of 1940.
____ TRUST FUND. The Buyer is a trust fund whose trustee is a bank or trust
company and whose participants are exclusively (a) plans established
and maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees, or (b) employee benefit plans within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, but is not a trust fund that includes as participants individual
retirement accounts or H.R. 10 plans.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934.
G-3-5
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
___ ___ Will the Buyer be purchasing the Rule 144A
Yes No Securities only for the Buyer's own account?
6. If the answer to the foregoing question is "no", the Buyer
agrees that, in connection with any purchase of securities sold to the Buyer for
the account of a third party (including any separate account) in reliance on
Rule 144A, the Buyer will only purchase for the account of a third party that at
the time is a "qualified institutional buyer" within the meaning of Rule 144A.
In addition, the Buyer agrees that the Buyer will not purchase securities for a
third party unless the Buyer has obtained a current representation letter from
such third party or taken other appropriate steps contemplated by Rule 144A to
conclude that such third party independently meets the definition of "qualified
institutional buyer" set forth in Rule 144A.
7. The Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of Rule 144A Securities will
constitute a reaffirmation of this certification as of the date of such
purchase.
G-3-6
_____________________________________
Print Name of Buyer
By:__________________________________
Name:
Title:
Date:________________________________
G-3-7
ANNEX 2 TO EXHIBIT G-3
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Buyers That Are Registered Investment Companies]
The undersigned hereby certifies as follows in connection with the Rule
144A Investment Representation to which this Certification is attached:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used.
____ The Buyer owned $_______________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Buyer is part of a Family of Investment Companies which owned in
the aggregate $____________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that each
of the parties to which this certification is made are relying and will continue
to rely on the statements made
G-3-8
herein because one or more sales to the Buyer will be in reliance on Rule 144A.
In addition, the Buyer will only purchase for the Buyer's own account.
6. The undersigned will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Buyer's purchase of Rule 144A Securities will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
G-3-9
_____________________________________
Print Name of Buyer
By:__________________________________
Name:
Title:
IF AN ADVISER:
_____________________________________
Print Name of Buyer
Date:________________________________
G-3-10
EXHIBIT G-4
FORM OF TRANSFEROR CERTIFICATE
______________, 200__
Homestar Mortgage Acceptance Corp.
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
HSBC Bank USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Homestar Mortgage Acceptance Corp. Series 2004-6
Re: Homestar Mortgage Acceptance Corp. Asset-Backed Pass-Through
Certificates SERIES 2004-6, CLASS R
Ladies and Gentlemen:
This letter is delivered to you in connection with the sale by
________________________ (the "Seller") to
__________________________________________ (the "Purchaser") of a ____%
Percentage Interest in the Asset-Backed Pass-Through Certificates, Series
2004-6, Class R Certificates (the "Certificates"), issued pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of November 1, 2004, among Homestar Mortgage Acceptance
Corp., as company (the "Company"), ▇▇▇▇▇ Fargo Bank, N.A., as master servicer
(in such capacity, the "Master Servicer") and as securities administrator (in
such capacity, the "Securities Administrator") and HSBC Bank USA, National
Association, as trustee (the "Trustee"). All terms used herein and not otherwise
defined shall have the meaning set forth in the Pooling and Servicing Agreement.
The Seller hereby certifies, represents and warrants to, and covenants with, the
Company and the Trustee that:
1. No purpose of the Seller relating to the sale of the
Certificates by the Seller to the Purchaser is or will be to impede the
assessment or collection of any tax.
2. The Seller understands that the Purchaser has delivered to the
Trustee and the Master Servicer a transfer affidavit and agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit E-5. The Seller does
not know or believe that any representation contained therein is false.
3. The Seller has at the time of the transfer conducted a
reasonable investigation of the financial condition of the Purchaser as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Seller has determined that the Purchaser has
historically paid its debts as they have become due and has found no significant
evidence to indicate that the Purchaser will not continue to pay its debts as
they become due in the future. The Seller understands that the transfer of the
Certificates may not be respected for United States income tax purposes (and the
Seller may continue to be liable for United States income taxes associated
therewith) unless the Seller has conducted such an investigation.
G-4-1
4. The Seller has no actual knowledge that the proposed
Transferee is a Disqualified Organization, an agent of a Disqualified
Organization or a Non-United States Person.
Very truly yours,
_____________________________________
(Seller)
By:__________________________________
Name:________________________________
Title:_______________________________
G-4-2
EXHIBIT G-5
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
STATE OF )
:ss.:
COUNTY OF )
___________________, being first duly sworn, deposes, represents and
warrants:
1. That he/she is [Title of Officer] of [Name of Owner], a
[savings institution] [corporation] duly organized and existing under the laws
of [the State of __________] [the United States], (the "Owner"), (record or
beneficial owner of the Class R Certificates (the "Class R Certificates") on
behalf of which he/she makes this affidavit and agreement). This Class R
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") dated as of November 1, 2004 among Homestar
Mortgage Acceptance Corp., as company, ▇▇▇▇▇ Fargo Bank, N.A., as master
servicer (in such capacity, the "Master Servicer") and as securities
administrator (in such capacity, the "Securities Administrator"), and HSBC Bank
USA, National Association, as trustee (the "Trustee").
2. That the Owner (i) is and will be a "Permitted Transferee" as
of ___________, and (ii) is acquiring the Class R Certificates for its own
account or for the account of another owner from which it has received an
affidavit in substantially the same form as this affidavit. A "Permitted
Transferee" is any person other than a "disqualified organization" or a
Non-United States Person. For this purpose, a "disqualified organization" means
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 FHLMC, a majority
of its board of directors is not selected by such governmental unit), (ii) a
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 (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 138 1(a)(2)(C) of the Code and (v) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R Certificate by such Person may cause the related real
estate mortgage investment conduit or any Person having an Ownership Interest in
any Class of Certificates, 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 Class R 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.
3. That the Owner is aware (i) of the tax that would be imposed
on transfers of any Class R Certificates to disqualified organizations under the
Internal Revenue Code of 1986
G-5-1
that applies to all transfers of any of the Class R Certificates after March 31,
1988; (ii) that such tax would be on the transferor, or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for a
disqualified organization, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is not a disqualified
organization and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false and; (iv) that the Class R Certificates
may be "noneconomic residual interests" within the meaning of Treasury
regulation section 1.860E-1(c)(2) and that the transferor of a "noneconomic
residual interest" will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding any Class R Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. For this purpose, a "pass through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.
5. That the Owner is aware that the Trustee will not register the
transfer of any Class R Certificates unless the transferee, or the transferee's
agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Class R Certificates will only be
owned, directly or indirectly, by Owners that are Permitted Transferees.
7. That the Owner's taxpayer identification number is
#______________.
8. That the Owner has reviewed the restrictions set forth on the
face of the Class R Certificates and the provisions of Section 5.02 of the
Pooling and Servicing Agreement under which the Class R Certificates were issued
(and, in particular, the Owner is aware that such Section authorizes the Trustee
to deliver payments to a person other than the Owner and negotiate a mandatory
sale by the Trustee in the event that the Owner holds such Certificate in
violation of Section 5.02); and that the Owner expressly agrees to be bound by
and to comply with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer any
Class R Certificates in order to impede the assessment or collection of any tax.
10. That the Owner anticipates that it will, so long as it holds
any Class R Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class R Certificates.
G-5-2
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds any
Class R Certificates.
12. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the Person from whom it acquired the Class R Certificates
that the Owner intends to pay taxes associated with holding the Class R
Certificates as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class R Certificates.
13. That the Owner is not acquiring the Class R Certificates with
the intent to transfer the Class R Certificates to any person or entity that
will not have sufficient assets to pay any taxes owed by the holder of any such
Class R Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain outstanding.
14. That the Owner will, in connection with any transfer that it
makes of the Class R Certificates, obtain from its transferee the
representations required by Section 5.02(e) of the Pooling and Servicing
Agreement under which the Class R Certificates were issued and will not
consummate any such transfer if it knows, or knows facts that should lead it to
believe, that any such representations are false.
15. That the Owner will, in connection with any Transfer that it
makes of any Class R Certificates, deliver to the Trustee an affidavit, which
represents and warrants that it is not transferring any such Class R
Certificates to impede the assessment or collection of any tax and that it has
no actual knowledge that the proposed transferee: (i) has insufficient assets to
pay any taxes owed by such transferee as holder of any Class R Certificates;
(ii) may become insolvent or subject to a bankruptcy proceeding, for so long as
any Class R Certificates remain outstanding and; (iii) is not a "Permitted
Transferee".
16. The Owner is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, provided that
with respect to any partnership or other entity treated as a partnership for
United States federal income tax purposes, 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 required by the applicable
operative agreement to be United States Persons, or an estate or trust whose
income from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States.
G-5-3
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed
on its behalf, by its [Title of Officer] this ______ day of _____________,
_____.
[NAME OF OWNER]
By:____________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
___________________________________
[Assistant] Secretary
G-5-4
ATTEST:
____________________________
State of [____________] )
) ss.:
County of [__________] )
On __________, ____ personally appeared before me the above-named
person, known or proved to me to be the same person who executed the foregoing
instrument and to be the __________________ of the Owner, and acknowledged to me
that he executed the same as his free act and deed and the free act and deed of
the Owner.
Subscribed and sworn before me this ____ day of __________, ____.
_____________________________________
NOTARY PUBLIC
COUNTY OF____________________________
STATE OF_____________________________
My Commission expires the ___ day of
__________, ____.
G-5-5
EXHIBIT H
MORTGAGE LOAN SCHEDULE
(Filed Manually)
(In accordance with Rule 202 of Regulation S-T, this Mortgage Loan Schedule, is
being filed in paper pursuant to a continuing hardship exemption.)
H-1
EXHIBIT I
[RESERVED]
I-1
EXHIBIT J
[RESERVED]
J-1
EXHIBIT K
FORM OF ASSIGNMENT AGREEMENT
This Assignment, Assumption and Recognition Agreement (the "AAR
Agreement") is made and entered into as of November 19, 2004 (the "Closing
Date"), among Homestar Mortgage Acceptance Corp. (the "Assignor"), HSBC Bank
USA, National Association, as trustee for the holders of Homestar Mortgage
Acceptance Corp., Asset-Backed Pass-Through Certificates, Series 2004-6 (the
"Assignee") and Opteum Financial Services, LLC, f/k/a Home Star Mortgage
Services, LLC (the "Company").
Whereas, ▇▇▇▇▇ Fargo Bank, N.A. (the "Master Servicer") and the Company
entered into that certain Servicing Agreement, dated as of March 5, 2004 (the
"Cenlar Servicing Agreement"), pursuant to which the Company agreed to service
certain mortgage loans (the "Cenlar Mortgage Loans") for the benefit of the
Assignee; and
Whereas, the Assignor and the Company entered into that certain
Servicing Agreement, dated as of March 5, 2004 (the "Option One Servicing
Agreement", together with the Cenlar Servicing Agreement, the "Servicing
Agreements"), pursuant to which the Company agreed to service certain other
mortgage loans (the "Option One Mortgage Loans", together with the Cenlar
Mortgage Loans, the "Mortgage Loans") on behalf of the Assignor.
In consideration of the mutual promises and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Mortgage Loans listed on ATTACHMENT 1 annexed hereto (the "Assigned Loans")
shall be subject to the terms of this AAR Agreement. Any capitalized term used
and not otherwise defined herein shall have the meaning assigned to such term in
the Servicing Agreements or the Pooling and Servicing Agreement (as defined
below).
Assignment and Assumption
-------------------------
1. Except as expressly provided for herein, the Assignor hereby
grants, transfers and assigns to the Assignee all of its right, title and
interest as in, to and under the Assigned Loans, and as they relate to the
Assigned Loans, the Servicing Agreements. Notwithstanding anything to the
contrary contained herein, the Assignor is not assigning to the Assignee any of
its right, title and interest, to and under the Servicing Agreements with
respect to any other mortgage loan other than the Assigned Loans. Except as is
otherwise expressly provided herein, the Assignor makes no representations,
warranties or covenants to the Assignee and the Assignee acknowledges that the
Assignor has no obligations to the Assignee under the terms of the Servicing
Agreements or otherwise relating to the transaction contemplated herein
(including, but not limited to, any obligation to indemnify the Assignee).
Assignor acknowledges and agrees that upon execution of this Agreement,
with respect to the Assigned Loans, all representations, warranties and
covenants by the Company under the Servicing Agreements shall accrue to Assignee
by virtue of this Agreement.
Representations, Warranties and Covenants
-----------------------------------------
K-1
2. Assignor warrants and represents to, and covenants with,
Assignee and Company as of the date hereof that:
a. Attached hereto as ATTACHMENT 2 are true and correct
copies of the Servicing Agreements, which Servicing
Agreements are in full force and effect as of the
date hereof and the provisions of which have not been
waived, amended or modified in any respect, nor has
any notice of termination been given thereunder;
b. Assignor was the lawful owner of the Assigned Loans
with full right to transfer the Assigned Loans and
any and all of its interests, rights and obligations
under the Servicing Agreements as they relate to the
Assigned Loans, free and clear from any and all
claims and encumbrances; and upon the transfer of the
Assigned Loans to Assignee as contemplated herein,
Assignee shall have good title to each and every
Assigned Loan, as well as any and all of Assignee's
interests, rights and obligations under the Servicing
Agreements as they relate to the Assigned Loans, free
and clear of any and all liens, claims and
encumbrances;
c. There are no offsets, counterclaims or other defenses
available to the Company with respect to the
Servicing Agreements;
d. Assignor has no knowledge of, and has not received
notice of, any waivers under, or any modification of,
any Assigned Loan;
e. Assignor is duly organized, validly existing and in
good standing under the laws of the jurisdiction of
its incorporation, and has all requisite power and
authority to acquire, own and sell the Assigned
Loans;
f. Assignor has full corporate power and authority to
execute, deliver and perform its obligations under
this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of
the transactions contemplated by this AAR Agreement
is in the ordinary course of Assignor's business and
will not conflict with, or result in a breach of, any
of the terms, conditions or provisions of Assignor's
charter or by-laws or any legal restriction, or any
material agreement or instrument to which Assignor is
now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order,
judgment or decree to which Assignor or its property
is subject. The execution, delivery and performance
by Assignor of this AAR Agreement and the
consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary
corporate action on part of Assignor. This AAR
Agreement has been duly executed and delivered by
Assignor and, upon the due authorization, execution
and delivery by Assignee and the parties hereto, will
constitute the valid and legally binding obligation
of Assignor enforceable against Assignor in
accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or
hereafter in effect relating to
K-2
creditors' rights generally, and by general
principles of equity regardless of whether
enforceability is considered in a proceeding in
equity or at law;
g. No consent, approval, order or authorization of, or
declaration, filing or registration with, any
governmental entity is required to be obtained or
made by Assignor in connection with the execution,
delivery or performance by Assignor of this AAR
Agreement, or the consummation by it of the
transactions contemplated hereby. Neither Assignor
nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of
the Assigned Loans or any interest in the Assigned
Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Assigned
Loans, or any interest in the Assigned Loans or
otherwise approached or negotiated with respect to
the Assigned Loans, or any interest in the Assigned
Loans 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 Assigned
Loans under the Securities Act of 1933, as amended
(the "1933 Act") or which would render the
disposition of the Assigned Loans a violation of
Section 5 of the 1933 Act or require registration
pursuant thereto; and
h. There is no action, suit, proceeding, investigation
or litigation pending or, to Assignor's knowledge,
threatened, which either in any instance or in the
aggregate, if determined adversely to Assignor, would
adversely affect Assignor's execution or delivery of,
or the enforceability of, this AAR Agreement, or the
Assignor's ability to perform its obligations under
this AAR Agreement.
3. The Assignee warrants and represents to, and covenants with,
the Assignor and the Company as of the date hereof that:
a. Assignee is duly organized, validly existing and in
good standing under the laws of the jurisdiction of
its organization and has all requisite power and
authority to hold the Assigned Loans as trustee on
behalf of the holders of Homestar Mortgage Acceptance
Corp., Asset-Backed Pass-Through Certificates, Series
2004-6;
b. Assignee has full power and authority to execute,
deliver and perform its obligations under this AAR
Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary
course of Assignee's business and will not conflict
with, or result in a breach of, any of the terms,
conditions or provisions of Assignee's charter or
by-laws or any legal restriction, or any material
agreement or instrument to which Assignee is now a
party or by which it is bound, or result in the
violation of any law, rule, regulation, order,
judgment or decree to which Assignee or its property
is subject. The execution, delivery and performance
by Assignee of this AAR Agreement and the
consummation by it of the transactions contemplated
hereby, have been
K-3
duly authorized by all necessary corporate action on
part of Assignee. This AAR Agreement has been duly
executed and delivered by Assignee and, upon the due
authorization, execution and delivery by Assignor and
the parties hereto, will constitute the valid and
legally binding obligation of Assignee enforceable
against Assignee in accordance with its terms except
as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to
creditors' rights generally, and by general
principles of equity regardless of whether
enforceability is considered in a proceeding in
equity or at law;
c. No consent, approval, order or authorization of, or
declaration, filing or registration with, any
governmental entity is required to be obtained or
made by Assignee in connection with the execution,
delivery or performance by Assignee of this AAR
Agreement, or the consummation by it of the
transactions contemplated hereby;
d. There is no action, suit, proceeding, investigation
or litigation pending or, to Assignee's knowledge,
threatened, which either in any instance or in the
aggregate, if determined adversely to Assignee, would
adversely affect Assignee's execution or delivery of,
or the enforceability of, this AAR Agreement, or the
Assignee's ability to perform its obligations under
this AAR Agreement; and
e. Assignee assumes for the benefit of each of Assignor
and Company all of Assignor's rights under the
Servicing Agreements but solely with respect to the
Assigned Loans.
4. Company warrants and represents to, and covenants with,
Assignee and Assignor, as of the date hereof, that:
a. Attached hereto as ATTACHMENT 2 are true and accurate
copies of the Servicing Agreements, which agreements
are in full force and effect as of the date hereof
and the provisions of which have not been waived,
amended or modified in any respect, nor has any
notice of termination been given thereunder;
b. Company is duly organized, validly existing and in
good standing under the laws of the jurisdiction of
its formation, and has all requisite power and
authority to service the Assigned Loans and otherwise
to perform its obligations under the Servicing
Agreements;
c. Company has full power and authority to execute,
deliver and perform its obligations under this AAR
Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary
course of Company's business and will not conflict
with, or result in a breach of, any of the terms,
conditions or provisions of Company's charter or
by-laws or any legal restriction, or any
K-4
material agreement or instrument to which Company is
now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order,
judgment or decree to which Company or its property
is subject. The execution, delivery and performance
by Company of this AAR Agreement and the consummation
by it of the transactions contemplated hereby, have
been duly authorized by all necessary corporate
action on part of Company. This AAR Agreement has
been duly executed and delivered by Company, and,
upon the due authorization, execution and delivery by
Assignor and Assignee, will constitute the valid and
legally binding obligation of Company, enforceable
against Company in accordance with its terms except
as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to
creditors' rights generally, and by general
principles of equity regardless of whether
enforceability is considered in a proceeding in
equity or at law;
d. No consent, approval, order or authorization of, or
declaration, filing or registration with, any
governmental entity is required to be obtained or
made by Company in connection with the execution,
delivery or performance by Company of this AAR
Agreement, or the consummation by it of the
transactions contemplated hereby;
e. Company shall establish a Custodial Account and an
Escrow Account under the Servicing Agreements in
favor of Assignee with respect to the Assigned Loans
separate from the Custodial Account and Escrow
Account previously established under the Servicing
Agreements in favor of Assignor;
f. Pursuant to Section 6.01 of the Cenlar Servicing
Agreement, the Company hereby restates the
representations and warranties set forth in Section
6.01 of the Cenlar Servicing Agreement with respect
to the Company; and
g. Neither this AAR Agreement nor any certification,
statement, report or other agreement, document or
instrument furnished or to be furnished by the
Company pursuant to this AAR Agreement contains or
will contain any materially untrue statement of fact
or omits or will omit to state a fact necessary to
make the statements contained therein not misleading.
5. Assignor hereby agrees to indemnify and hold the Assignee (and
its successors and assigns) harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments, and any
other costs, fees and expenses that Assignee (and its successors and assigns)
may sustain in any way related to any breach of the representations or
warranties of Assignor set forth in this AAR Agreement or the breach of any
covenant or condition contained herein.
Recognition of Assignee
-----------------------
6. From and after the date hereof, Company shall recognize
Assignee as owner of the Assigned Loans, and acknowledges that the Assigned
Loans will be part of a REMIC, and
K-5
will service the Assigned Loans in accordance with the Servicing Agreements but
in no event in a manner that would (i) cause any REMIC to fail to qualify as a
REMIC or (ii) result in the imposition of a tax upon any 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 contributions to a REMIC set forth in
Section 860G(d) of the Code). It is the intention of Assignor, Company and
Assignee that this AAR Agreement shall be binding upon and for the benefit of
the respective successors and assigns of the parties hereto. Neither Company nor
Assignor shall amend or agree to amend, modify, waiver, or otherwise alter any
of the terms or provisions of the Servicing Agreements which amendment,
modification, waiver or other alteration would in any way affect the Assigned
Loans without the prior written consent of Assignee.
7. Modification of Servicing Agreements:
------------------------------------
The Company and Assignor hereby amend the Option One Servicing
Agreement as follows:
a. The definition of "Custodial Account" shall be deleted and
replaced with the following definition:
CUSTODIAL ACCOUNT: The separate demand account or accounts
created and maintained pursuant to Section 4.04 which shall be
entitled "Opteum Financial Services, LLC Custodial Account in
trust for HSBC Bank USA, National Association, as trustee for
the holders of Homestar Mortgage Acceptance Corp.,
Asset-Backed Pass-Through Certificates, Series 2004-6" and
shall be established at a Qualified Depository.
b. The definition of "Custodial Agreement" shall be amended by
deleting the date "March 1, 2004" and replacing it with the date "November 1,
2004".
c. The definition of "Effective Date"shall be amended by deleting
the date "March 5, 2004" and replacing it with the date "November 19, 2004".
d. The definition of "Escrow Account" shall be deleted and
replaced with the following definition:
ESCROW ACCOUNT: The separate trust account or accounts created
and maintained pursuant to Section 4.06 which shall be
entitled "Opteum Financial Services, LLC Escrow Account in
trust for HSBC Bank USA, National Association, as trustee for
the holders of Homestar Mortgage Acceptance Corp.,
Asset-Backed Pass-Through Certificates, Series 2004-6" and
shall be established at a Qualified Depository.
e. The definition of "Mortgage Loan Schedule" shall be deleted
and replaced with the following definition:
MORTGAGE LOAN SCHEDULE: The schedule of Mortgage Loans
attached as Attachment 1 to the Assignment, Assumption and
Recognition Agreement, dated as of November 19, 2004, among
Homestar Mortgage Acceptance Corp., HSBC Bank USA, National
Association, as trustee for
K-6
the holders of Homestar Mortgage Acceptance Corp.,
Asset-Backed Pass-Through Certificates, Series 2004-6 and
Opteum Financial Services, LLC.
f. The definition of "Remittance Date" shall be amended by
deleting the date "April 16, 2004" and replacing it with the date "December 17,
2004".
g. The following definitions shall be added to Section 1.01 of
the Option One Servicing Agreement:
BALLOON MORTGAGE LOAn: A Mortgage Loan that provides for the
payment of the unamortized principal balance of such Mortgage
Loan in a single payment at the maturity of such Mortgage Loan
that is substantially greater than the preceding monthly
payment.
BALLOON PAYMENT: A payment of the unamortized principal
balance of a Mortgage Loan in a single payment at the maturity
of such Mortgage Loan that is substantially greater than the
preceding Monthly Payment.
h. The following sentence shall be added following the first
sentence in Section 5.03 of the Option One Servicing Agreement:
For purposes of the preceding sentence, the Monthly Payment on
each Balloon Mortgage Loan with a delinquent Balloon Payment
is equal to the assumed monthly payment that would have been
due on the related Due Date based on the original principal
amortization schedule for the such Balloon Mortgage Loan.
i. Section 10.02 of the Option One Servicing Agreement shall be
deleted in its entirety.
The Company and Assignor hereby amend the Cenlar Servicing Agreement as
follows:
a. The following sentence shall be added following the first
sentence in Section 4.03 of the Cenlar Servicing Agreement:
For purposes of the preceding sentence, the Monthly Payment on
each Balloon Securitized Loan with a delinquent Balloon
Payment is equal to the assumed monthly payment that would
have been due on the related Due Date based on the original
principal amortization schedule for the such Balloon
Securitized Loan.
b. Subsection 7.04(d) of the Cenlar Servicing Agreement shall be
deleted in its entirety.
MISCELLANEOUS
-------------
8. All demands, notices and communications related to the
Assigned Loans, the Servicing Agreements and this AAR Agreement shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by registered mail, postage prepaid, as follows:
K-7
a. In the case of Company,
Opteum Financial Services, LLC
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
b. In the case of Assignor,
Homestar Mortgage Acceptance Corp.
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
c. In the case of Assignee,
HSBC Bank USA, National Association as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: HMAC 2004-6
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
9. The Company hereby acknowledges that ▇▇▇▇▇ Fargo Bank, N.A.
(the "Master Servicer") has been appointed as the master servicer of the
Assigned Loans pursuant to the Pooling and Servicing Agreement, dated as of
November 1, 2004, among the Assignor, the Assignee and the Master Servicer, and
therefor has the right to enforce all obligations of the Company, as they relate
to the Assigned Loans, under the Servicing Agreements. Each reference to the
Owner in the Option One Servicing Agreement shall be a reference to the
Assignee. Such right will include, without limitation, the right to terminate
the Company under the Servicing Agreements upon the occurrence of an event of
default thereunder, the right to receive all remittances required to be made by
the Company under the Servicing Agreements, the right to receive all monthly
reports and other data required to be delivered by the Company under the
Servicing Agreements, the right to examine the books and records of the Company,
indemnification rights, and the right to exercise certain rights of consent and
approval relating to actions taken by the Company. The Company shall make all
distributions under the Servicing Agreements, as they relate to the Assigned
Loans, to the Master Servicer by wire transfer of immediately available funds
to:
HMAC Trust 2004-6
▇▇▇▇▇ Fargo Bank, National Association
ABA# ▇▇▇▇▇▇▇▇▇
SAS Clearing
Account # ▇▇▇▇▇▇▇▇▇▇
For Further Credit to: HMAC 2004-6, Account # ▇▇▇▇▇▇▇▇
and the Company shall deliver all reports required to be delivered under the
Servicing Agreements, as they relate to the Assigned Loans, to the Assignee at
the address set forth in Section 8 herein and to the Master Servicer at:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: HMAC 2004-6
10. THIS AAR AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
11. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
12. This AAR Agreement shall inure to the benefit of the
successors and assigns of the parties hereto. Any entity into which Assignor,
Assignee or Company may be merged or consolidated shall, without the requirement
for any further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
13. This AAR Agreement shall survive the conveyance of the
Assigned Loans, the assignment of the Servicing Agreements to the extent of the
Assigned Loans by Assignor to Assignee and the termination of the Servicing
Agreements.
14. This AAR Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be an original and
all such counterparts shall constitute one and the same instrument.
15. In the event that any provision of this AAR Agreement
conflicts with any provision of the Servicing Agreements with respect to the
Assigned Loans, the terms of this AAR Agreement shall control.
K-9
IN WITNESS WHEREOF, the parties hereto have executed this AAR Agreement on the
date first above written.
HOMESTAR MORTGAGE ACCEPTANCE CORP., HSBC BANK USA, NATIONAL ASSOCIATION,
THE ASSIGNOR AS TRUSTEE FOR THE HOLDERS OF
HOMESTAR MORTGAGE ACCEPTANCE CORP.,
ASSET-BACKED PASS-THROUGH
CERTIFICATES, SERIES 2004-6,
THE ASSIGNEE
By:_______________________________ By:__________________________________
Its:______________________________ Its:_________________________________
OPTEUM FINANCIAL SERVICES, LLC,
THE COMPANY
By:_______________________________
Its:______________________________
ACKNOWLEDGED AND AGREED:
▇▇▇▇▇ FARGO BANK, N.A.
By:_______________________________
Its:______________________________
K-10
ATTACHMENT I
------------
Assigned Loans
K-11
ATTACHMENT II
-------------
Servicing Agreements
K-12
EXHIBIT L-1
FORM CERTIFICATION TO BE PROVIDED BY THE MASTER SERVICER
WITH FORM 10-K
Re: Homestar Mortgage Acceptance Corp.,
Mortgage Pass-Through Certificates, Series 2004-6
I, [Identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K, and all
reports on Form 8-K containing distribution or servicing reports filed in
respect of periods included in the year covered by this annual report, of
Homestar Mortgage Acceptance Corp.;
2. Based on my knowledge, the information in these reports, 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 light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the trustee by the servicer under the
pooling and servicing, or similar, agreement, for inclusion in these reports is
included in these reports;
4. I am responsible for reviewing the activities performed by the
servicer under the pooling and servicing, or similar, agreement and based upon
my knowledge and the annual compliance review required under that agreement, and
except as disclosed in the reports, the servicer has fulfilled its obligations
under that agreement; and
5. The reports disclose all significant deficiencies relating to
the servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the pooling and servicing, or similar,
agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [the Trustee
and Sub-Servicers]
Date: __________________
________________________
[Signature]
[Title]
[Company]
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM CERTIFICATION TO BE
PROVIDED TO MASTER SERVICER BY THE TRUSTEE
Re: Homestar Mortgage Acceptance Corp.,
Mortgage Pass-Through Certificates, Series 2004-6
I, [Identify the certifying individual], a [______________] of HSBC
Bank USA, National Association, as Trustee, hereby certify to ▇▇▇▇▇ Fargo Bank,
N.A. and its officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [__], and all reports on Form 8-K containing distribution reports filed in
respect of periods included in the year covered by that annual report, of the
Issuer relating to the above-referenced trust;
2. Based on my knowledge, the information in these distribution
reports prepared by the Trustee, 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 light of the circumstances under which such statements
were made, not misleading as of the last day of the period covered by that
annual report; and
3. Based on my knowledge, the distribution information required
to be provided by the Trustee under the Agreement is included in these
distribution reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated November 1, 2004
(the "Agreement"), among Homestar Mortgage Acceptance Corp., as Company, ▇▇▇▇▇
Fargo Bank, N.A., (in such capacity, the "Master Servicer") and as securities
administrator (in such capacity, the "Securities Administrator"), and HSBC Bank
USA, National Association, as Trustee.
HSBC Bank USA, National Association, as
Trustee
By:__________________________
Name:
Title:
Date:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM CERTIFICATION TO BE
PROVIDED TO MASTER SERVICER BY THE TRUSTEE
Re: Homestar Mortgage Acceptance Corp.,
Mortgage Pass-Through Certificates, Series 2004-6
I, [Identify the certifying individual], a [_________________] of HSBC
Bank USA, National Association, as Trustee, hereby certify to ▇▇▇▇▇ Fargo Bank,
N.A. and its officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification, that:
1. Based on my knowledge, the distribution information required
to be provided by the Trustee under the Agreement is included in these
distribution reports.
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated November 1, 2004
(the "Agreement"), among Homestar Mortgage Acceptance Corp., as Company, ▇▇▇▇▇
Fargo Bank, N.A., (in such capacity, the "Master Servicer") and as securities
administrator (in such capacity, the "Securities Administrator"), and HSBC Bank
USA, National Association, as Trustee.
HSBC Bank USA, National Association, as
Trustee
By:__________________________
Name:
Title:
Date:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
SERVICING AGREEMENT FOR ALT-A LOANS
THIS SERVICING AGREEMENT (this "Agreement"), entered into as of the 5th
day of March, 2004, by and among HOME STAR MORTGAGE SERVICES, LLC, a Delaware
corporation ("Home Star"), in its capacity as seller (the "Seller"), Home Star,
in its capacity as servicer (the "Servicer") and ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), recites and provides as
follows:
RECITALS
WHEREAS, Home Star owns and services certain residential Mortgage Loans
(the "Mortgage Loans");
WHEREAS, CENLAR FSB, a federal savings bank (the "Sub-Servicer")
sub-services certain of the Mortgage Loans for Home Star pursuant to that
certain [Sub-Servicing Agreement, dated as of March 1, 2004], by and between
Home Star and the Sub-Servicer, (the "Superseded Sub-Servicing Agreement");
WHEREAS, Home Star, as Seller, from time to time may convey certain of
the Mortgage Loans, on a servicing-retained basis, to one or more Trusts, as
defined herein, under one or more Trust Agreements, as defined herein, in
connection with a Pass-Through Transfer, as defined herein, with ▇▇▇▇▇ Fargo
Bank, National Association as the Master Servicer;
WHEREAS, upon the Effective Date, as defined herein, of any such
Pass-Through Transfer, the Mortgage Loans shall become Securitized Loans, as
defined herein;
WHEREAS, in connection with any such Pass-Through Transfer, the Seller
and the Master Servicer desire that the Servicer service any Securitized Loans
pursuant to this Agreement, and the Servicer has agreed to do so, subject to the
rights of the Seller and the Master Servicer to terminate the rights and
obligations of the Servicer hereunder as provided herein;
WHEREAS, the Master Servicer shall be obligated under each Trust
Agreement, among other things, to supervise the servicing of the Securitized
Loans subject to the Trust Agreement on behalf of the related Trust, and shall
have the right to terminate the rights and obligations of the Servicer under
this Agreement or under the Agreement relating to specified Securitized Loans
upon the occurrence and continuance of an Event of Default as provided herein;
WHEREAS, the Seller, the Servicer and the Master Servicer intend that
the NIMs Insurer and each Trustee be a third party beneficiary of this
Agreement;
WHEREAS, the Seller and the Servicer acknowledge and agree that the
Seller will assign all of its rights and delegate all of its obligations
hereunder with regard to specified Securitized
M-1-1
Loans (exclusive of the Seller's rights and obligations as owner of the
servicing rights relating to such Securitized Loans) to the related Trust or
Trustee, and that each reference herein to the Seller with regard to specified
Securitized Loans is intended, unless otherwise specified, to mean the Seller or
such Trust or Trustee, as assignee of the specified Securitized Loans;
WHEREAS, this Agreement shall supersede the Superseded Sub-Servicing
Agreement in its entirety with respect to any Securitized Loans;
WHEREAS, the parties hereto mutually acknowledge and agree that,
pursuant to Section 7.04 of this Agreement, the Sub-Servicer will
contemporaneously herewith enter into a Sub-Servicing Acknowledgment Agreement
(the "Sub-Servicing Agreement") of even date herewith, pursuant to which the
Sub-Servicer will sub-service the Securitized Loans on behalf of the Servicer in
accordance with the terms of this Agreement and will have the benefit of certain
rights of the Servicer under this Agreement, other than those under Section 7.04
hereof.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Master Servicer, the Seller and
the Servicer hereby agree as follows:
ARTICLE I.
DEFINITIONS
The following terms are defined as follows (except as otherwise agreed
in writing by the parties):
Accepted Servicing Practices: With respect to any Securitized Loan,
those mortgage servicing practices that prudent mortgage lending institutions
would employ in servicing their own portfolio of mortgage loans of the same type
as the Securitized Loans in the jurisdiction where the related Mortgaged
Property is located, giving due consideration to customary and usual standards
of practice of mortgage lenders and loan servicers administering similar
mortgage loans.
Adjustable Rate Securitized Loan: A Securitized Loan under which the
Mortgage Interest Rate is adjusted from time to time in accordance with the
terms and provisions of the related Mortgage Note.
Adverse REMIC Event: Taking (or causing to be taken) any action, or
failure to take (or failure 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 such REMIC as a REMIC or (ii) result in the imposition of a tax
upon such 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 prohibited
contributions set forth on Section 860G(d) of the Code).
Advancing Person: As defined in Section 4.03 hereof.
M-1-2
Agreement: This Servicing Agreement and all amendments hereof and
supplements hereto.
Ancillary Income: All income derived from the Securitized Loans (other
than the (i) Servicing Fee or (ii) Prepayment Charges or Servicer Prepayment
Charge Payment Amounts attributable to the Securitized Loans), including but not
limited to late charges, penalty interest, any interest paid on funds deposited
in the Custodial Account and Escrow Account (other than interest on escrowed
funds required by law to be paid to the Mortgagor), fees received with respect
to checks or bank drafts returned by the related bank for non-sufficient funds,
assumption fees, modification fees, optional insurance administrative fees and
all other incidental fees and charges.
Assignment of Mortgage: An assignment of a 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
transfer of such Mortgage to the party indicated therein, which assignment,
notice of transfer or equivalent instrument may be in the form of one or more
blanket assignments covering the Securitized Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
Balloon Securitized Loan: Any Securitized Loan that by its original
terms or by virtue of any modification provides for an amortization schedule
extending beyond its originally scheduled Maturity Date and which has a final
scheduled payment that is proportionately large in comparison to other scheduled
payments.
Balloon Payment: The final scheduled payment in respect of a Balloon
Securitized Loan.
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 of New York,
Maryland, Minnesota and, with respect to any Trust, the jurisdiction in which
the related Trustee conducts its trust business, are authorized or obligated by
law or executive order to be closed.
Certificates: Any or all of the certificates or other securities issued
pursuant to a Trust Agreement.
Certificate Registrar: The registrar appointed pursuant to the Trust
Agreement.
Closing Date: The actual date of closing of any Pass-Through Transfer,
without regard to the Effective Date thereof.
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.
Condemnation Proceeds: All awards of settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain
M-1-3
or condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Securitized Loan documents.
Conventional Loan: A conventional residential first or second lien
fixed or adjustable rate Securitized Loan that is neither FHA insured nor VA
guaranteed.
Costs: For any Person, any claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses of such Person.
Credit Risk Manager: With respect to Securitized Loans covered by a
Trust Agreement, any credit risk manager or loss mitigation advisor under such
Trust Agreement.
Custodial Account: The account created and maintained by the Servicer
pursuant to Section 3.03.
Custodial Agreement: With respect to Securitized Loans covered by a
Trust Agreement, the custodial agreement relating to custody of such Securitized
Loans between a Custodian and the related Trustee, as acknowledged by the
Servicer, dated as of the related Effective Date.
Custodian: A custodian of Securitized Loans under any Custodial
Agreement.
Delinquent: For reporting purposes, a Securitized Loan is "delinquent"
when any payment contractually due thereon has not been made by the close of
business on the Due Date therefor. Such Securitized Loan is "30 days Delinquent"
if such payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which such
payment was first due, or, if there is not such corresponding day (e.g., as when
a 30-day month follows a 31-day month in which a payment was due on the 31st day
of such month), then on the last day of such immediately succeeding month.
Similarly for "60 days Delinquent" and the second immediately succeeding month
and "90 days Delinquent" and the third immediately succeeding month.
Determination Date: With respect to each Remittance Date, the 15th day
of the month in which such Remittance Date occurs, or, if such 15th day is not a
Business Day, the immediately preceding Business Day.
Depositor: With respect to Securitized Loans covered by a Trust
Agreement , the Person to which the Seller transfers Mortgage Loans, or any
successor in interest to such Person, which Person in turn transfers such
Mortgage Loans to a Trustee in a Pass-Through Transfer.
Distressed Securitized Loan: As of any Effective Date, any related
Securitized Loan that was Delinquent in payment for a period of 90 days or more
as of the first calendar day of the month in which such Effective Date occurs,
without giving effect to any grace period permitted by the related Mortgage Note
or for which the Servicer has accepted a deed in lieu of
M-1-4
foreclosure. No Securitized Loan shall be considered delinquent for the purpose
of this definition by virtue of the related Mortgagor having made payment to the
prior servicer.
Due Date: The day of the calendar month on which the Monthly Payment is
due on a Securitized Loan, exclusive of any days of grace. With respect to the
Securitized Loans for which payment from the Mortgagor is due on a day other
than the first day of the calendar month, such Securitized Loans will be treated
as if the Monthly Payment is due on the first day of the immediately succeeding
month.
Due Period: With respect to each Remittance Date, the period commencing
on the second day of the month immediately preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Effective Date: The effective date of any Pass-Through Transfer as set
forth in the Transfer Notice.
Eligible Investments: Any one or more of the obligations and securities
listed below which investment provides for a date of maturity not later than the
Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America or any
agency or instrumentality of the United States of America the obligations of
which are backed by the full faith and credit of the United States of America,
including Federal Housing Administration debentures, but excluding any of such
securities whose terms do not provide for a payment of a fixed dollar amount
upon maturity or call for redemption ("Direct Obligations") and ▇▇▇▇▇▇▇ Mac
senior debt obligations;
(ii) federal funds, or demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository institution or
trust company (including U.S. subsidiaries of foreign depositories, a Trustee,
the Master Servicer or any agent of a Trustee or the Master Servicer, acting in
its respective commercial capacity) incorporated or organized under the laws of
the United States of America or any state thereof and subject to supervision and
examination by federal or state banking authorities, so long as at the time of
investment or the contractual commitment providing for such investment the
commercial paper or other short term debt obligations of such depository
institution or trust company (or, in the case of a depository institution or
trust company which is the principal subsidiary of a holding company, the
commercial paper or other short term debt or deposit obligations of such holding
company or deposit institution, as the case may be) have been rated by each
related Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase agreements collateralized by direct obligations of,
or securities guaranteed by, ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac with any registered
broker/dealer subject to Securities Investors' Protection Corporation
jurisdiction or any commercial bank insured by the
M-1-5
FDIC, if such broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation rated by each related Rating Agency in its highest short-term rating
category;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of America or
any state thereof which have a credit rating from each related Rating Agency, at
the time of investment or the contractual commitment providing for such
investment, at least equal to one of the two highest long term credit rating
categories of each related Rating Agency; provided, however, that securities
issued by any particular corporation will not be Eligible Investments to the
extent that investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held as part of the Custodial
Account to exceed 20% of the aggregate principal amount of all Eligible
Investments in the Custodial Account; provided, further, that such securities
will not be Eligible Investments if they are published as being under review
with negative implications from any Rating Agency;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest bearing obligations payable on demand or on a specified
date not more than 180 days after the date of issuance thereof) rated by each
related Rating Agency in its highest short-term rating category;
(vi) a Qualified GIC (as defined in the Trust Agreement);
(vii) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of the United
States of America or its agencies or instrumentalities (which obligations are
backed by the full faith and credit of the United States of America) held by a
custodian in safekeeping on behalf of the holders of such receipts; and
(viii) any other demand, money market, common trust fund or time
deposit or obligation, or interest bearing or other security or investment,
rated in the highest rating category by each related Rating Agency. Such
investments in this subsection (viii) may include money market mutual funds or
common trust funds, including any fund for which a Trustee, the Master Servicer
or any affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the related Trustee, the Master Servicer or any affiliate thereof
charges and collects fees and expenses from such funds for services rendered,
(y) a Trustee, the Master Servicer or any affiliate thereof charges and collects
fees and expenses for services rendered pursuant to this Agreement or a Trust
Agreement, and (z) services performed for such funds and pursuant to this
Agreement may converge at any time;
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
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Errors and Omissions Insurance: Errors and Omissions Insurance to be
maintained by the Servicer in accordance with the Master Servicing Guide.
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 3.05.
Escrow Payments: With respect to any Securitized 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 of the events which may result in a termination
for cause set forth in Section 8.01.
▇▇▇▇▇▇ Mae: The Federal National Mortgage Association, or any successor
thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within HUD or any
successor thereto and including the Federal Housing Commissioner and the
Secretary of HUD where appropriate under the FHA Regulation.
Fidelity Bond: A fidelity bond to be maintained by the Servicer in
accordance with the Master Servicing Guide.
Fixed Rate Securitized Loan: Any Securitized Loan as to which the
Mortgage Interest Rate set forth in the Mortgage Note is fixed for the term of
such Securitized Loan.
Final Recovery Determination: With respect to any defaulted Securitized
Loan or any REO Property (other than any Securitized Loan or REO Property
repurchased from the Trust), a determination made by the Servicer that all
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries which
the Servicer, in its reasonable good faith judgment, expect to be finally
recoverable in respect thereof have been so recovered.
Fitch: Fitch, Inc., or any successor in interest.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
▇▇▇▇▇▇ Mae: The Government National Mortgage Association, or any
successor thereto.
Holder or Certificateholder: The registered owner of any Certificate as
recorded on the books of the Certificate Registrar provided for in the related
Trust Agreement.
Home Star: As defined in the first paragraph of this Agreement.
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Homestar Mortgage Securities Trusts: One or more trusts to be formed by
a Trust Agreement as part of a Pass-Through Transfer, pursuant to each of which
a numbered series of Certificates will be issued.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the functions
thereof with regard to FHA Mortgage Insurance. The term "HUD," for purposes of
this Agreement, is also deemed to include subdivisions thereof such as the FHA
and ▇▇▇▇▇▇ ▇▇▇.
Insurance Proceeds: With respect to each Securitized Loan, proceeds of
insurance policies insuring the Securitized Loan or the related Mortgaged
Property, including, but not limited to, proceeds from any PMI Policy, to the
extent any such proceeds are not to be applied to the restoration and repair of
the related Mortgaged Property or released to the Mortgagor in accordance with
the procedures that the Servicer would follow in servicing mortgage loans for
its own account, subject to the terms and conditions of the related Mortgage
Note and Mortgage.
Issuer: The issuer of any Certificates pursuant to the Trust Agreement.
LIBOR: The three-month London InterBank Offered Rate as published in
the Wall Street Journal on the first Business Day of the month of any Remittance
Date.
Liquidation Proceeds: Cash received in connection with the liquidation
of a defaulted Securitized Loan, whether through the sale or assignment of such
Securitized Loan, trustee's sale, foreclosure sale or otherwise, or the sale of
the related REO Property, if the Mortgaged Property is acquired in satisfaction
of the Securitized Loan.
Master Servicer: With respect to each Trust Agreement, ▇▇▇▇▇ Fargo
Bank, National Association, or any successor in interest, or if any successor
Master Servicer shall be appointed as provided in such Trust Agreement, then
such successor Master Servicer.
Master Servicing Guide: The ▇▇▇▇▇ Fargo Bank, N.A. Master Servicing
Guide, original dated January, 1997, as amended July, 2001, and all amendments
or additions thereto, including as amended hereby.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Eligible Securitized Loan: Any Securitized Loan that has been
designated by the Servicer as recordable in the name of MERS, as nominee.
MERS Securitized Loan: Any Securitized Loan as to which the related
Mortgage, or an Assignment of Mortgage, has been or will be recorded in the name
of MERS, as nominee for the holder from time to time of the related Mortgage
Note.
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Monthly Advance: With respect to each Remittance Date and each
Securitized Loan, an amount equal to the Monthly Payment (with the interest
portion of such Monthly Payment adjusted to the Securitized Loan Remittance
Rate) that was due on the Securitized Loan, and that was Delinquent at the close
of business on the first day of the month in which such Remittance Date occurs,
but only to the extent that such amount is expected, in the reasonable judgment
of the Servicer, to be recoverable from collections or other recoveries
(including Liquidation Proceeds and Insurance Proceeds) in respect of such
Securitized Loan. To the extent that the Servicer determines that any such
amount is not recoverable from collections or other recoveries in respect of
such Securitized Loan, such determination shall be evidenced by a certificate of
a Servicing Officer delivered to the Master Servicer setting forth such
determination and the procedures and considerations of the Servicer forming the
basis of such determination.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Securitized Loan.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or any successor in interest.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien on a fee simple estate in
real property securing the Mortgage Note.
Mortgage Interest Rate: The annual rate of interest borne on a Mortgage
Note net of any Relief Act Reduction.
Mortgage Note: The original, executed 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.
Mortgagor: The obligor on a Mortgage Note.
Net Sale Proceeds: The proceeds from the sale of REO Property, net of
all expenses and advances incurred by the Servicer in connection with such sale,
including, without limitation, legal fees and expenses, referral fees, brokerage
commissions, conveyance taxes and any other related expense.
Non-MERS Eligible Securitized Loan: Any Securitized Loan other than a
MERS Eligible Securitized Loan.
Non-MERS Securitized Loan: Any Securitized Loan other than a MERS
Securitized Loan.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the President or a vice president (however denominated), and by the
Treasurer, the Secretary, or one of the
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assistant treasurers or assistant secretaries of the Servicer, the Master
Servicer or the Seller, as applicable.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer, reasonably acceptable to the related Trustee, the
Master Servicer, and the Seller, provided that any Opinion of Counsel relating
to qualification of the Securitized Loans in a REMIC or compliance with the
REMIC Provisions must be an opinion of counsel acceptable to the related
Trustee, the Master Servicer, and the Seller, who (i) is in fact independent of
the Seller and the Servicer, (ii) does not have any material direct or indirect
financial interest in either the Seller or the Servicer or any affiliate of any
such entity and (iii) is not connected with either the Seller or the Servicer as
an officer, employee, director or person performing similar functions.
Pass-Through Transfer: The sale or transfer by Home Star of some or all
of the Securitized Loans to a Depositor for transfer to a Trust to be formed as
part of a publicly-issued and/or privately placed, rated or unrated, mortgage
pass-through transaction or similar transaction, in each case in which Home Star
is retained as a Servicer thereunder, with ▇▇▇▇▇ Fargo Bank, National
Association as the Master Servicer.
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.
PMI Insurer: Any Qualified Insurer issuing a PMI Policy with respect to
a Securitized Loan.
PMI Policy: A policy of primary mortgage guaranty insurance issued by a
Qualified Insurer, as required by this Agreement and the Trust Agreement with
respect to certain Securitized Loans.
Prepayment Charge: With respect to any Securitized Loan and Remittance
Date, the charges or premiums, as specified in the Prepayment Charge Schedule,
if any, due in connection with a full or partial prepayment of such Securitized
Loan during the immediately preceding Prepayment Period in accordance with the
terms thereof (but excluding any Servicer Prepayment Charge Payment Amount).
Prepayment Charge Schedule: A data field in the schedule of Securitized
Loans to be attached to the Transfer Notice, the form of which is attached
hereto as Exhibit A, which sets forth the amount of the Prepayment Charge and
the term during which the Prepayment Charge is imposed with respect to a
Securitized Loan.
Prepayment Interest Shortfall Amount: With respect to any Securitized
Loan that was subject to a Principal Prepayment in full or in part during any
Due Period, which Principal Prepayment was applied to such Securitized Loan
prior to such Securitized Loan's Due Date in such Due Period, the amount of
interest that would have accrued on the amount of such Principal
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Prepayment during the period commencing on the date as of which such Principal
Prepayment was applied to such Securitized Loan and ending on the day
immediately preceding such Due Date, inclusive.
Prepayment Period: With respect to each Remittance Date and any full or
partial Principal Prepayments, the calendar month immediately preceding the
month in which the related Remittance Date occurs.
Principal Prepayment: Any payment by a Mortgagor of principal (other
than a Balloon Payment) or other recovery of principal on a Securitized Loan
that is recognized as having been received or recovered in advance of its
scheduled Due Date and applied to reduce the principal balance of the
Securitized Loan in accordance with the terms of the Mortgage Note.
Qualified Depository: With respect to each Pass-Through Transfer, any
of (i) a depository the accounts of which are insured by the FDIC (to the limits
established by such corporation) and the debt obligations of which are rated P-1
(or its equivalent) or better by each Rating Agency rating the related
Certificates; or (ii) the corporate trust department of any bank the debt
obligations of which are rated A-2 (or its equivalent) or better by each such
Rating Agency.
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 ▇▇▇▇▇▇▇ Mac and ▇▇▇▇▇▇ Mae.
Qualifying Substitute Mortgage Loan: A mortgage loan permitted under
the terms of a Trust Agreement to be substituted for a related Securitized Loan.
Rating Agency: With respect to Certificates issued by or in connection
with a Trust, any of Fitch, Moody's or S&P which assigns a rating to such
Certificates, and their successors. If such agencies or their successors are no
longer in existence, "Rating Agencies" shall be such nationally recognized
statistical rating agencies, or other comparable Person, designated by the
Seller, written notice of which designation shall be given to the related
Trustee, the Master Servicer and the Servicer.
Relief Act Reduction: With respect to any Securitized Loan as to which
there has been a reduction in the amount of the interest collectible thereon as
a result of the application of the Servicemembers Civil Relief Act, any amount
by which interest collectible on such Securitized Loan for the Due Date in the
related Due Period is less than the interest accrued thereon for the applicable
one-month period at the Mortgage Interest Rate without giving effect to such
reduction.
REMIC: A "real estate mortgage investment conduit" within the meaning
of Section 860D of the Code.
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Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately preceding Business Day) of any calendar
month.
REO Disposition: The final sale or other disposition by the Servicer of
any REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 3.12.
REO Property: A Mortgaged Property acquired by the Servicer on behalf
of the Trust through foreclosure or by deed in lieu of foreclosure pursuant to
Section 3.12 hereof.
Residual Certificate: Any residual certificate or "Class R" Certificate
issued under any Trust Agreement.
S&P: Standard & Poor's Rating Services, a division of The McGraw Hill
Companies, Inc., or any successor in interest.
Securitized Loan: An individual Mortgage Loan that from time to time
becomes subject to this Agreement pursuant to a Pass-Through Transfer, each
Securitized Loan subject to this Agreement being identified on a schedule to the
Transfer Notice, the form of which is attached as Exhibit A hereto, which
Securitized Loan includes without limitation the Securitized 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
Securitized Loan.
Securitized Loan Remittance Rate: With respect to each Securitized
Loan, the annual rate of interest remitted to the Master Servicer, which shall
be equal to the Mortgage Interest Rate minus the Servicing Fee Rate.
Securitized Loan Schedule: The schedule of Securitized Loans to be
attached to the Transfer Notice, a form of which is attached hereto as Exhibit
A, setting forth information with respect to such Securitized Loans as agreed to
by the Seller, the Servicer and the Master Servicer, including, but not limited
to (i) any MERS identification number (if available) with respect to each MERS
Securitized Loan or MERS Eligible Securitized Loan, (ii) a data field indicating
whether such Securitized Loan is insured under a PMI Policy and identifying the
related Qualified Insurer, (iii) a Prepayment Charge Schedule and (iv) the
Servicing Fee Rate.
Servicer: Home Star or its successor in interest or assigns or any
successor to the Servicer under this Agreement as herein provided.
Servicer Prepayment Charge Payment Amount: The amount payable by the
Servicer in respect of any waived Prepayment Charges pursuant to Section 3.15
hereof.
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Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses other than Monthly Advances (including reasonable
attorneys' fees and disbursements) incurred in the performance by the Servicer
of its servicing obligations, including, but not limited to, the cost of (a) the
preservation, inspection, restoration and protection of the Mortgaged Property,
(b) any enforcement of administrative or judicial proceedings, including
foreclosures, (c) the management and liquidation of the Mortgaged Property
(including costs incurred in connection with environmental inspections or other
related costs of foreclosure of Mortgaged Property potentially contaminated by
hazardous or toxic substance or wastes in accordance with Section 3.12 hereof)
if the Mortgaged Property is acquired in satisfaction of the Mortgage, (d)
taxes, assessments, water rates, sewer rents and other charges which are or may
become a lien upon the Mortgaged Property, and PMI Policy premiums and fire and
hazard insurance coverage and (e) any losses sustained by the Servicer with
respect to the liquidation of the Mortgaged Property.
Servicing Fee: With respect to each Due Period and any Securitized
Loan, an amount equal to one-twelfth the product of (i) the Servicing Fee Rate
and (ii) the Scheduled Balance of such Securitized Loan as of the related
Determination Date. The obligation of the Trustee 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 3.02 of this Agreement) of such Monthly Payments
collected by the Servicer, or as otherwise provided under this Agreement, and
the Servicing Fee is subject to reduction for compensating interest under
Section 4.04 hereof.
Servicing Fee Rate: The servicing fee rate, stated as either a number
of basis points or as a percentage, for each Securitized Loan, as reflected in
the schedule of Securitized Loans to be attached to the Transfer Notice, the
form of which is attached hereto as Exhibit A.
Servicing File: The items pertaining to a particular Securitized Loan
including, but not limited to, the computer files, data disks, books, records,
data tapes, notes, and all additional documents generated as a result of or
utilized in originating and/or servicing each Securitized Loan, which are held
in trust for the related Trust by the Servicer.
Servicing Officer: Any officer of the Servicer involved in or
responsible for, the administration and servicing of the Securitized Loans whose
name appears on a list of servicing officers furnished by the Servicer to the
Master Servicer upon request, as such list may from time to time be amended.
Sub-Servicer: Cenlar FSB, a federal savings bank, pursuant to the
Sub-Servicing Agreement, or its successor in interest.
Sub-Servicing Agreement: That certain Sub-Servicing Acknowledgment
Agreement of even date with this Agreement, by and between the Servicer and the
Sub-Servicer.
Superseded Sub-Servicing Agreement: That certain Sub-Servicing
Agreement, dated as of [March 1, 2004], by and between Home Star and the
Sub-Servicer.
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Transfer Notice: The Transfer Notice referred to in Section 2.01
hereof, in the form attached hereto as Exhibit A.
Trust: The trust established by the Trust Agreement, the assets of
which consist of the transferred Securitized Loans and any other assets provided
for in the related Trust Agreement.
Trust Agreement: Any trust agreement, pooling and servicing agreement,
indenture or comparable documents by and among some or all of the Issuer, the
Master Servicer, the Depositor and a Trustee (and which may include other
parties) creating a Trust and/or otherwise effectuating a Pass-Through Transfer.
Trustee: Any trustee or trust with respect to the transferred
Securitized Loans in any Pass-Through Transfer, or any successor in interest, or
if any successor trustee or co-trustee shall be appointed as provided in the
Trust Agreement, then such successor trustee or such co-trustee, as the case may
be.
VA: The Veterans Administration, an agency of the United States of
America, or any successor thereto, including the Administration of Veterans
Affairs.
ANY CAPITALIZED TERMS USED AND NOT DEFINED IN THIS AGREEMENT SHALL HAVE
THE MEANINGS ASCRIBED TO SUCH TERMS IN THE RELATED TRUST AGREEMENT SPECIFIED IN
THE TRANSFER NOTICE.
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ARTICLE II.
PASS- THROUGH TRANSFERS; SELLER'S ENGAGEMENT OF SERVICER TO
PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Pass-Through Transfers.
(a) The Seller and the Servicer agree that from time to time the
Seller shall effect the sale or transfer of some or all of the Mortgage Loans to
a Trust to be formed as part of a Pass-Through Transfer. The Servicer shall
cooperate with the Seller in connection with any Pass-Through Transfer
contemplated by the Seller pursuant to this Section 2.01, including without
limitation providing requested information and reports to, and otherwise
cooperating with, any Credit Risk Manager. In connection therewith, the Servicer
shall provide to the Seller and any Trustee, Trust, Depositor, underwriter,
initial purchaser, NIMs Insurer or Credit Risk Manager in connection with a
Pass-Through Transfer, as the case may be: (i) any and all information and
appropriate verification of information which may be reasonably available to the
Servicer, including the Servicer's foreclosure, delinquency experience and the
Servicer's underwriting standards, whether through letters of its auditors and
counsel or otherwise, as such parties shall reasonably request; and (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 believed necessary by the Seller and any Trustee, Trust,
Depositor, underwriter, initial purchaser, NIMs Insurer or Credit Risk Manager,
as the case may be, in connection with such Pass-Through Transfer. The Servicer
shall indemnify the Depositor for any material misstatements or omissions or
alleged material misstatements or omissions contained in the information
provided pursuant to this Section 2.01(a). The Seller shall provide the Servicer
with a Transfer Notice with respect to any such Pass-Through Transfer, including
a schedule of Mortgage Loans which have been transferred, the Effective Date of
the Pass-Through Transfer and the name and address of the related Trustee. Upon
the Effective Date of such a Pass-Through Transfer, (A) the Servicer and the
Seller agree that the provisions of this Agreement shall go into effect with
respect to the Securitized Loans to which the Transfer Notice relates, and (B)
the Servicer agrees to recognize the Trustee and Trust with respect to the
transferred Mortgage Loans in the Pass-Through Transfer, or the Master Servicer
acting on their behalf, as having the same rights under this Agreement as the
Seller with respect to such transferred Mortgage Loans, including without
limitation the right to terminate the Servicer under this Agreement.
Section 2.02 Contract for Servicing; Possession of Servicing Files.
The Seller, by execution and delivery of this Agreement, does hereby
contract with the Servicer, subject to the terms of this Agreement, for the
servicing of the Securitized Loans. On or before each Closing Date, the Seller
shall cause to be delivered to the Servicer or to the Sub-Servicer the Servicing
Files with respect to the Securitized Loans listed in the schedule attached to
the applicable Transfer Notice. Each Servicing File delivered to the Servicer
shall be held in trust by the Servicer for the benefit of the Trust; provided,
however, that the Servicer
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shall have no liability for any Servicing Files (or portions thereof) not
delivered by the Seller. The Servicer's possession of any portion of the
Securitized Loan documents shall be on behalf of the Trust for the sole purpose
of facilitating servicing of the related Securitized Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and the
contents of the Servicing File shall be vested in the Trust and the ownership of
all records and documents with respect to the related Securitized Loan prepared
by or which come into the possession of the Servicer shall immediately vest in
the Trust and shall be retained and maintained, in trust, by the Servicer on
behalf of the Trust in such custodial capacity only. The portion of each
Servicing File retained by the Servicer pursuant to this Agreement shall be
segregated from the other books and records of the Servicer and shall be
appropriately marked to clearly reflect the ownership of the related Securitized
Loan by the Trust. The Servicer shall release from its custody the contents of
any Servicing File retained by it only in accordance with this Agreement.
Section 2.03 Books and Records.
(a) Subject to Section 3.01(a) hereof, as soon as practicable
after the Closing Date or the date on which a Qualifying Substitute Mortgage
Loan is delivered pursuant to a Trust Agreement, as applicable (but in no event
more than 90 days thereafter except to the extent delays are caused by the
applicable recording office), the Servicer, at the expense of the Seller, shall
cause the Mortgage or Assignment of Mortgage, as applicable, with respect to
each related MERS Eligible Securitized Loan, to be properly recorded in the name
of MERS in the public recording office in the applicable jurisdiction, or shall
ascertain that such have previously been so recorded.
(b) Subject to Section 3.01(a) hereof, an Assignment of Mortgage
in favor of the Trustee on behalf of the Trust shall be recorded as to each
Non-MERS Securitized Loan, unless instructions to the contrary are delivered to
the Servicer, in writing, by the Trustee, or the Servicer obtains an Opinion of
Counsel that recordation of such Assignment of Mortgage is not required. Subject
to the preceding sentence, as soon as practicable after the Closing Date (but in
no event more than 90 days thereafter except to the extent delays are caused by
the applicable recording office), the Servicer, at the expense of the Seller,
shall cause such related Assignment of Mortgage to be properly recorded in each
public recording office where such Non-MERS Eligible Securitized Loans are
recorded, unless the Servicer obtains an Opinion of Counsel that recordation of
such an Assignment of Mortgage is not required.
(c) Additionally, the Servicer shall prepare and execute, at the
direction of the Trustee, any note endorsements relating to any of the related
Non-MERS Securitized Loans.
(d) All rights arising out of the Securitized Loans shall be
vested in the related Trust, subject to the Servicer's right to service and
administer the Securitized Loans hereunder in accordance with the terms of this
Agreement. All funds received on or in connection with a Securitized Loan, other
than the Servicing Fee and other compensation to which the Servicer is entitled
as set forth herein, including but not limited to that compensation as set forth
in Section
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5.01 below, shall be received and held by the Servicer in trust for the benefit
of the related Trust pursuant to the terms of this Agreement.
(e) Any out-of-pocket costs incurred by the Servicer pursuant to
this Section 2.03 and Section 3.01(a), including any recording or other fees in
connection with the Servicer's obtaining the necessary powers of attorney (and
which are specified herein to be an expense of the Seller), shall be reimbursed
to the Servicer by the Seller within five (5) Business Days of receipt by the
Seller of an invoice for reimbursement. The Trust shall not reimburse the Seller
for any such reimbursement to the Servicer.
ARTICLE III.
SERVICING OF THE SECURITIZED LOANS
Section 3.01 Servicer to Service.
The Servicer, as an independent contractor, shall service and
administer the Securitized Loans from and after the Closing Date and shall have
full power and authority, acting alone, to do any and all things in connection
with such servicing and administration which the Servicer may deem necessary or
desirable, consistent with the terms of this Agreement and with Accepted
Servicing Practices. The Servicer may designate the sub-servicer to perform the
obligations hereunder, provided that such designation shall not relieve the
Servicer of such obligations.
The Seller and the Servicer additionally agree as follows:
(a) The Servicer shall (A) record or cause to be recorded the
Mortgage or the Assignment of Mortgage, as applicable, with respect to all MERS
Eligible Securitized Loans, in the name of MERS, or shall ascertain that such
have previously been so recorded; (B) prepare or cause to be prepared all
Assignments of Mortgage with respect to all Non-MERS Eligible Securitized Loans;
(C) prepare for recording or cause to be recorded, subject to Section 2.03(b)
hereof, all Assignments of Mortgage with respect to Non-MERS Securitized Loans
in the name of the related Trust; (D) pay the recording costs pursuant to
Section 2.03 hereof; and/or (E) track such Mortgages and Assignments of Mortgage
to ensure they have been recorded. The Servicer shall be entitled to be paid by
the Seller its out-of-pocket costs for the preparation and recordation of the
Mortgages and Assignments of Mortgage. After the expenses of such recording
costs pursuant to Section 2.03 hereof shall have been paid by the Servicer, the
Servicer shall submit to the Seller a reasonably detailed invoice for
reimbursement of recording costs it incurred hereunder.
(b) If applicable, the Servicer shall, in accordance with the
relevant provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ National Affordable Housing Act of
1990, as the same may be amended from time to time, and the regulations provided
in accordance with the Real Estate Settlement Procedures Act, provide notice to
the Mortgagor of each Securitized Loan of the transfer of the servicing thereto
to the Servicer.
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(c) The Servicer shall be responsible for the preparation of and
costs associated with notifications to Mortgagors of the assumption of servicing
by the Servicer.
Consistent with the terms of this Agreement and except as provided in
Section 3.15 hereof, the Servicer may waive any late payment charge, assumption
fee or other fee (other than a Prepayment Charge) that may be collected in the
ordinary course of servicing the Securitized Loans. The Servicer shall not make
any future advances to any Mortgagor under any Securitized Loan, and (unless the
Mortgagor is in default with respect to the Securitized Loan or such default is,
in the judgment of the Servicer, reasonably foreseeable) the Servicer shall not
permit any modification of any material term of any Securitized Loan, including
any modification that would change the Mortgage Interest Rate, defer or 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 Securitized Loan. The NIMs Insurer's prior written consent
shall be required for any modification, waiver or amendment if the aggregate
number of outstanding Securitized Loans which have been modified, waived or
amended exceeds 5% of the number of Securitized Loans in the related Trust as of
the Effective Date. In the event of any such modification which permits the
deferral of interest or principal payments on any Securitized Loan, the Servicer
shall, on the Business Day immediately preceding the Remittance Date in any
month in which any such principal or interest payment has been deferred, make a
Monthly Advance in accordance with Section 4.03, in an amount equal to the
difference between (a) such month's principal and one month's interest at the
Securitized Loan Remittance Rate on the unpaid principal balance of such
Securitized Loan and (b) the amount paid by the Mortgagor. The Servicer shall be
entitled to reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 4.03. The Servicer may permit modifications to
a Securitized Loan, with the consent of the NIMs Insurer, which are authorized
by the express terms of either an allonge to the related Mortgage Note or an
addendum to the related Mortgage in existence as of the Effective Date. If Home
Star wishes to make a modification to a Securitized Loan which is not permitted
under this Section 3.01, then Home Star must repurchase such Securitized Loan
from the related Trust on the terms and conditions provided in the Trust
Agreement. Without limiting the generality of the foregoing, the Servicer shall
continue, and is hereby authorized and empowered, to execute and deliver on
behalf of itself and the related Trust, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Securitized Loans and with respect to the
Mortgaged Properties. Upon the written request of the Servicer, the Trustee
shall execute and deliver to the Servicer, within the later of fifteen days from
the Closing Date or within fifteen days of such Servicer request, any powers of
attorney (one for each county in which any of the Mortgaged Properties are
located) and other documents, furnished to it by the Servicer and reasonably
satisfactory to the Trustee, necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties under this Agreement.
Notwithstanding anything in this Agreement to the contrary, the
Servicer (a) shall not permit any modification with respect to any Mortgage Loan
that would change the Mortgage Interest Rate and (b) shall not (unless the
Mortgagor is in default with respect to the Mortgage Loan or such default is, in
the judgment of the Servicer, reasonably foreseeable) make or permit
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any modification, waiver or amendment of any term of any Mortgage Loan that
would both (i) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or Treasury regulations promulgated thereunder) and
(ii) cause the Trust Fund to fail to qualify as a REMIC under the Code or the
imposition of any tax on "prohibited transactions" or "contributions" after the
startup date under the REMIC Provisions.
Prior to taking any action with respect to the Mortgage Loans which is
not contemplated under the terms of this Agreement, the Servicer will obtain an
Opinion of Counsel acceptable to the NIMs Insurer and the Trustee or the Master
Servicer on its behalf with respect to whether such action could 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 contributions to a REMIC set forth in Section 860G(d) of the Code) (either
such event, an "Adverse REMIC Event"), and the Servicer shall not take any such
action or cause the Trust Fund to take any such action as to which it has been
advised that an Adverse REMIC Event could occur.
The Servicer shall not permit the creation of any "interests" (within
the meaning of Section 860G of the Code) in the REMIC. The Servicer shall not
enter into any arrangement by which the REMIC will receive a fee or other
compensation for services nor permit the REMIC to receive any income from assets
other than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
Section 3.02 Collection of Securitized Loan Payments.
Continuously from the Closing Date until the date each Securitized Loan
ceases to be subject to this Agreement, the Servicer shall proceed diligently to
collect all payments due under each of the Securitized 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 Securitized Loans and each related Mortgaged
Property, to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
Section 3.03 Establishment of and Deposits to Custodial Account.
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to the Securitized Loans separate and apart from any of its
own funds and general assets and shall establish and maintain for each related
Trust a Custodial Account, in the form of a time deposit or demand account,
titled "Home Star Mortgage Services, LLC in trust for [Name of Trust]." The
Custodial Account shall be established with a Qualified Depository. Any funds
deposited in the Custodial Account may be invested in Eligible Investments
subject to the provisions of Section 3.11 hereof. Funds deposited in the
Custodial Account may be drawn on by the Servicer in accordance with Section
3.04 hereof. The creation of the Custodial Account shall be evidenced by a
letter agreement in the form of Exhibit B. A copy of such letter agreement shall
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be furnished to each Trustee, each NIMS Insurer and the Master Servicer. The
NIMs Insurer and the Trustee shall also be notified of any change in the
location of the Custodial Account.
(b) The Servicer shall deposit in the Custodial Account on a daily
basis, and retain therein, the following collections received by the Servicer
and payments made by the Servicer after the Closing Date:
(i) all payments on account of principal received on the
Securitized Loans, including all Principal Prepayments;
(ii) all payments on account of interest received on the
Securitized Loans adjusted to the applicable Securitized Loan Remittance Rate;
(iii) all Prepayment Charges received or any Servicer Prepayment
Charge Payment Amounts to be paid by the Servicer to the related Trust;
(iv) all Liquidation Proceeds;
(v) all Insurance Proceeds (other than any amounts immediately
applied to the restoration or repair of the Mortgaged Property or immediately
released to the Mortgagor);
(vi) all Condemnation Proceeds that are not applied to the
restoration or repair of the Mortgaged Property or released to the Mortgagor;
(vii) any Prepayment Interest Shortfall Amount required to be paid
by the Servicer pursuant to Section 4.04;
(viii) all Monthly Advances made by the Servicer or an Advancing
Person pursuant to Section 4.03;
(ix) any amounts required to be deposited by the Servicer 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 or REO Disposition Proceeds;
(xi) any amounts required to be deposited pursuant to Section 3.11
in connection with any losses realized on Eligible Investments with respect to
funds held in the Custodial Account;
(xii) any amounts required to be deposited by the Servicer pursuant
to Section 3.16(a) in connection with any unpaid claims that are a result of a
breach by the Servicer or any sub-servicer of its obligations hereunder or under
a PMI Policy;
(xiii) any amounts received by it under any PMI Policy; and
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(xiv) any other amount required hereunder to be deposited by the
Servicer in the Custodial Account.
Notwithstanding the foregoing clause (viii), no Monthly Advances or
Servicing Advances shall be required to be made by the Servicer if such Monthly
Advance or Servicing Advance would, if made, be, in the Servicer's reasonable
judgment, nonrecoverable. The determination by the Servicer that it has made a
nonrecoverable Monthly Advance or Servicing Advance, or that any proposed
Monthly Advance or Servicing Advance would be a nonrecoverable advance, shall be
evidenced by an Officer's Certificate of the Servicer delivered to the Master
Servicer and the NIMs Insurer.
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 (i) late payment charges,
penalty interest and insufficient fund charges, (ii) assumption and modification
fees, (iii) other Ancillary Income and (iv) the Servicing Fee need not be
deposited by the Servicer 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 Servicer as additional
servicing compensation and the Servicer shall be entitled to retain and withdraw
such interest from the Custodial Account pursuant to Section 3.04 of this
Agreement. Additionally, any other benefit derived from the Custodial Account
associated with the receipt, disbursement and accumulation of principal,
interest, taxes, hazard insurance, mortgage insurance, etc. shall accrue for the
benefit of the Servicer.
Section 3.04 Permitted Withdrawals From Custodial Account.
The Servicer shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Master Servicer in the amounts and in
the manner provided for in Section 4.01;
(ii) in the event the Servicer has elected not to retain the
Servicing Fee out of any Mortgagor payments on account of interest or other
recovery of interest with respect to a particular Securitized Loan (including
late collections of interest on such Securitized Loan, or interest portions of
Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds) prior to the
deposit of such Mortgagor payment or recovery in the Custodial Account, to pay
to itself the related Servicing Fee from all such Mortgagor payments on account
of interest or other such recovery for interest with respect to that Securitized
Loan;
(iii) to pay itself investment earnings on funds deposited in the
Custodial Account;
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(iv) to transfer funds to another Qualified Depository in
accordance with Section 3.11 hereof;
(v) to invest funds in certain Eligible Investments in accordance
with Section 3.11 hereof;
(vi) to reimburse itself to the extent of funds held in the
Custodial Account for Monthly Advances of the Servicer's funds made pursuant to
Section 4.03. The Servicer's right to reimburse itself pursuant to this
subclause (vi) with respect to any Securitized Loan shall be limited to amounts
received on or in respect of the related Securitized Loan which represent late
recoveries of payments of principal or interest with respect to which a Monthly
Advance was made, it being understood that in the case of any such reimbursement
the Servicer's right thereto shall be prior to the rights of the related Trust;
provided, however, that following the final liquidation of a Securitized Loan,
the Servicer may reimburse itself for previously unreimbursed Monthly Advances
in excess of Liquidation Proceeds or Insurance Proceeds with respect to such
Securitized Loan from any funds in the Custodial Account relating to Securitized
Loans in the same Trust, it being understood, in the case of any such
reimbursement, that the Servicer's right thereto shall be prior to the rights of
the related Trust. The Servicer may recover at any time from amounts on deposit
in the Custodial Account with respect to Securitized Loans in the same Trust the
amount of any Monthly Advances that the Servicer deems nonrecoverable or that
remain unreimbursed to the Servicer from related Liquidation Proceeds after the
final liquidation of the related Securitized Loan. In addition, the Servicer
may, at any time, withdraw from the Custodial Account funds that are held for
future distribution (i.e., were not included in the principal and interest for
the preceding Remittance Date) to reimburse itself for Monthly Advances
previously made by the Servicer;
(vii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Servicing Fees, the Servicer's right to reimburse itself pursuant
to this subclause (vii) with respect to any Securitized Loan being limited to
related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and other amounts received in respect of the related REO
Property, and such other amounts as may be collected by the Servicer from the
Mortgagor or otherwise relating to the Securitized Loan, it being understood
that, in the case of any such reimbursement, the Servicer's right thereto shall
be prior to the rights of the related Trust;
(viii) to reimburse the Servicer for expenses incurred by, and
reimbursable to, the Servicer pursuant to Section 6.03, but only to extent such
amounts are determined to be reimbursable by the related Trust pursuant to
Section 6.03;
(ix) to reimburse itself for expenses incurred or reimbursable to
the Servicer pursuant to Section 3.12 from funds with respect to Securitized
Loans in the same Trust to the extent not previously reimbursed under clause
(vii) of this Section 3.04;
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(x) to withdraw funds with respect to Securitized Loans in the
same Trust necessary for the operation, management and maintenance of any REO
related property to the extent not previously reimbursed under clause (vii) of
this Section 3.04;
(xi) to withdraw any funds deposited to the Custodial Account in
error; and,
(xii) to clear and terminate the Custodial Account upon the
termination of this Agreement;
(xiii) to reimburse the Trustee or the NIMs Insurer for enforcement
expenses incurred in respect of a breach of a representation or warranty.
Section 3.05 Establishment of and Deposits to Escrow Account.
The Servicer shall segregate and hold all funds collected and received
pursuant to a Securitized Loan constituting Escrow Payments separate and apart
from any of its own funds and general assets and shall establish and maintain an
Escrow Account, in the form of a time deposit or demand account, titled "Home
Star Mortgage Services, LLC in trust for one or more Homestar Mortgage
Securities Trusts." The Escrow Account shall be established with a Qualified
Depository in a manner that shall provide maximum available insurance
thereunder. Funds deposited in the Escrow Account may be drawn on by the
Servicer in accordance with Section 3.06. The creation of the Escrow Account
shall be evidenced by a letter agreement in the form of Exhibit C. A copy of
such certification or letter agreement shall be furnished to each Trustee and
the Master Servicer.
The Servicer shall deposit in the Escrow Account or Accounts on a daily
basis, and retain therein:
(i) all Escrow Payments collected on account of the Securitized
Loans, for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds that are to be applied to the restoration or repair of any Mortgaged
Property.
The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 3.06. The Servicer shall 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 related Mortgagor.
Additionally, any other benefit derived from the Escrow Account associated with
the receipt, disbursement and accumulation of principal, interest, taxes, hazard
insurance, mortgage insurance, etc. shall accrue to the Servicer. To the extent
required by law, the Servicer shall pay interest on escrowed funds to the
related Mortgagor notwithstanding that the Escrow Account may be non-interest
bearing or that interest paid thereon is insufficient for such purposes.
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Section 3.06 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Servicer only:
(i) to effect payments of ground rents, taxes, assessments, water
rates, sewer rents, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for the
related Mortgage;
(ii) to refund to any related Mortgagor any funds found to be in
excess of the amounts required under the terms of the related Securitized Loan;
(iii) as permitted by applicable state law, for transfer to the
Custodial Account and application to reduce the principal balance of the related
Securitized Loan in accordance with the terms of the related Mortgage and
Mortgage Note;
(iv) for application to restore or repair the related Mortgaged
Property in accordance with the Master Servicing Guide;
(v) to pay to the Servicer, or the related Mortgagor to the extent
required by law, any interest paid on the funds with respect to a Securitized
Loan deposited in the Escrow Account; and
(vi) to reimburse itself for any Servicing Advances made with
respect to Escrow Payments for a Securitized Loan or the related Mortgaged
Properties, but only from amounts received on the related Securitized Loan which
represent late collections of Escrow Payments thereunder;
(vii) to withdraw any funds deposited into the Escrow Account in
error; and
(viii) to clear and terminate the Escrow Account on the termination
of this Agreement.
The Servicer will be responsible for the administration of the Escrow
Accounts and will be obligated to make Servicing Advances to the Escrow Account
in respect of its obligations under this Section 3.06, reimbursable from the
Escrow Accounts or Custodial Account to the extent not collected from a
Mortgagor, anything to the contrary notwithstanding, when and as necessary to
avoid the lapse of insurance coverage on the related Mortgaged Property, or
which the Servicer knows, or in the exercise of the required standard of care of
the Servicer hereunder should know, is necessary to avoid the loss of such
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien. If any such payment has not been made and the Servicer receives notice of
a tax lien with respect to such Mortgaged Property being imposed, the Servicer
will, within ten (10) Business Days of such notice, advance or cause to be
advanced funds necessary to discharge such lien on such Mortgaged Property.
Section 3.07 Restoration of Mortgaged Property.
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The Servicer need not obtain the approval of the Master Servicer prior
to releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to
be applied to the restoration or repair of the related Mortgaged Property if
such release is in accordance with Accepted Servicing Practices. At a minimum,
with respect to claims of $10,000 or more, the Servicer shall comply with the
following conditions in connection with any such release of Insurance Proceeds
or Condemnation Proceeds:
(i) the Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required approvals
with respect thereto;
(ii) the Servicer shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to requiring
waivers with respect to mechanics' and materialmen's liens.
(iii) the Servicer shall verify that the Securitized Loan is not 60
or more days delinquent; and
(iv) pending repairs or restoration, the Servicer shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
With respect to claims of less than $10,000, the Servicer shall comply
with the following conditions in connection with any such release of Insurance
Proceeds or Condemnation Proceeds:
(v) the related Mortgagor shall provide an affidavit verifying the
completion of repairs and issuance of any required approvals with respect
thereto;
(vi) the Servicer shall verify the total amount of the claim with
the applicable insurance company; and
(vii) pending repairs or restoration, the Servicer shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Trustee is named as an additional loss payee, the Servicer is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the related Trust.
Section 3.08 Fidelity Bond and Errors and Omissions Insurance.
The Servicer shall keep in force and shall cause each sub-servicer to
keep in force during the term of this Agreement a Fidelity Bond and Errors and
Omissions Insurance the minimum coverage of which shall be at least equal to the
coverage required by the Master Servicer in the Master Servicing Guide (unless a
waiver of such requirement has been obtained by the Servicer from the Master
Servicer and NIMs Insurer). Such Fidelity Bond and Errors and Omissions
Insurance shall be maintained with recognized insurers, shall be in such form
and amount as would permit the Servicer to be qualified with the Master Servicer
as a servicer, and shall by its
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terms not be cancelable without thirty days' prior written notice to the
Trustee, the NIMs Insurer and the Master Servicer. The Servicer and each
sub-servicer shall be deemed to have complied with this provision if an
affiliate of the Servicer has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. The Servicer shall furnish
and shall cause each sub-servicer to furnish to the Trustee, each NIMs Insurer
(upon reasonable request) and the Master Servicer a copy of each such bond and
insurance policy upon their request.
Section 3.09 Notification of Adjustments.
With respect to each Adjustable Rate Securitized Loan, the Servicer
shall adjust the Mortgage Interest Rate on the related interest rate adjustment
date and shall adjust the Monthly Payment on the related mortgage payment
adjustment date, if applicable, in compliance with the 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 and Monthly Payment adjustments. The Servicer shall promptly, upon
written request therefor, deliver to the Master Servicer 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 Master Servicer that the Servicer has failed
to adjust a Mortgage Interest Rate or Monthly Payment in accordance with the
terms of the related Mortgage Note, the Servicer shall immediately deposit in
the Custodial Account from its own funds the amount of any interest loss or
deferral caused thereby and shall indemnify the Trust in respect of any
liability as a result of such shortfall.
Section 3.10 Payment of Taxes, Insurance and Other Charges.
With respect to each Securitized 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 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 regulations. The Servicer assumes full responsibility for the
payment of all such bills and shall effect 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 shall employ Accepted Servicing Practices to
ensure that the related Mortgaged Property is not subjected to a tax lien as a
result of nonpayment and that such Mortgaged Property is not left uninsured.
Section 3.11 Protection of Accounts.
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The Servicer may transfer the Custodial Account or the Escrow Account
to a different Qualified Depository from time to time. The Servicer shall give
written notice to the Trustee and the NIMs Insurer and the Master Servicer of
the location of the Custodial Account maintained by it with respect to the
Securitized Loans when established and prior to any change thereof.
The Servicer shall bear any expenses, losses or damages sustained by
the Trustee or the Master Servicer if the Custodial Account and/or the Escrow
Account are not demand deposit accounts.
Amounts on deposit in the Custodial Account and the Escrow Account may
at the option of the Servicer be invested in Eligible Investments; provided that
in the event that amounts on deposit in the Custodial Account or the Escrow
Account exceed the amount fully insured by the FDIC (the "Insured Amount"), the
Servicer shall be obligated to invest the excess amount over the Insured Amount
in Eligible Investments on the same Business Day as such excess amount becomes
present in the Custodial Account or the Escrow Account. Any such Eligible
Investment shall mature no later than the Business Day immediately preceding the
related Remittance Date or other date on which funds are needed to be disbursed.
Any such Eligible Investment shall be made in the name of the Servicer in trust
for the benefit of one or more Homestar Mortgage Securities Trusts, as their
interests may appear. All income on or gain realized from any such Eligible
Investment shall be for the benefit of the Servicer and may be withdrawn at any
time by the Servicer. Any losses incurred in respect of any such investment
shall be deposited in the Custodial Account or the Escrow Account by the
Servicer out of its own funds immediately as realized.
Section 3.12 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 related Trust, or in the event the related
Trust is not authorized or permitted to hold title to real property in the state
where the REO Property is located, or would be adversely affected under the
"doing business" or tax laws of such state by so holding title, the deed or
certificate of sale shall be taken in the name of such Person or Persons as
shall be consistent with an Opinion of Counsel obtained by the Servicer 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 related Trust
shall acknowledge in writing that such title is being held as nominee for the
related Trust.
The Servicer shall manage, conserve, protect and operate each REO
Property for the related Trust solely for the purpose of its prompt disposition
and sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate such REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt to
sell the same (and may temporarily rent the same for a period not greater than
one year, except as otherwise provided
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below) on such terms and conditions as the Servicer deems to be in the best
interest of the related Trust.
Notwithstanding anything to the contrary contained in this Section
3.12, 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 Master Servicer otherwise requests, an environmental inspection or
review of such Mortgaged Property to be conducted by a qualified inspector shall
be arranged by the Servicer. Upon completion of the inspection, the Servicer
shall provide the Master Servicer and the NIMs Insurer with a written report of
such environmental inspection. In the event that the environmental inspection
report indicates that the Mortgaged Property is contaminated by hazardous or
toxic substances or wastes, the Servicer shall not proceed with foreclosure or
acceptance of a deed in lieu of foreclosure. In the event that the environmental
inspection report is inconclusive as to the whether or not the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, the
Servicer shall not, without the prior written approval of the Master Servicer
and the NIMs Insurer, proceed with foreclosure or acceptance of a deed in lieu
of foreclosure. The Servicer shall be reimbursed for all Servicing Advances made
pursuant to this paragraph with respect to the related Mortgaged Property from
the amounts on deposit in the Custodial Account with respect to Securitized
Loans in the same Trust.
In the event that a Trust which has made one or more REMIC elections
acquires any REO Property in connection with a default or imminent default on a
Securitized Loan, the Servicer shall dispose of such REO Property not later than
the end of the third taxable year after the year of its acquisition by the
related Trust unless the Servicer has applied for and received a grant of
extension from the Internal Revenue Service (and provides a copy of the same to
the Master Servicer) to the effect that, under the REMIC Provisions and any
relevant proposed legislation and under applicable state law, a REMIC elected by
such Trust may hold REO Property for a longer period without adversely affecting
the REMIC status of such REMIC or causing the imposition of a federal or state
tax upon such REMIC. If the Servicer has received such an extension (and
provided a copy of the same to the Master Servicer), then the Servicer shall
continue to attempt to sell the REO Property for its fair market value for such
period longer than three years as such extension permits (the "Extended
Period"). If the Servicer has not received such an extension, and the Servicer
is unable to sell the REO Property within the period ending 3 months before the
end of such third taxable year after its acquisition by the related Trust or if
the Servicer has received such an extension, and the Servicer is unable to sell
the REO Property within the period ending three months before the close of the
Extended Period, the Servicer shall, before the end of the three-year period or
the Extended Period, as applicable, (i) purchase such REO Property at a price
equal to the REO Property's fair market value or (ii) auction the REO Property
to the highest bidder (which may be the Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of the three-year
period or the Extended Period, as the case may be. The related Trustee shall
sign any document or take any other action reasonably requested by the Servicer
which would enable the Servicer, on behalf of the related Trust, to request such
grant of extension.
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Notwithstanding any other provisions of this Agreement, no REO Property
acquired by a Trust shall be rented (or allowed to continue to be rented) or
otherwise used by or on behalf of such Trust in such a manner or pursuant to any
terms that would: (i) cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code; or (ii) subject
any REMIC elected by such Trust to the imposition of any federal income taxes on
the income earned from such REO Property, including any taxes imposed by reason
of Sections 860F or 860G(c) of the Code, unless the Servicer has agreed to
indemnify and hold harmless such Trust with respect to the imposition of any
such taxes.
The Servicer shall also maintain on each REO Property hazard insurance
with extended coverage in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the outstanding Principal Balance of the Securitized Loan at
the time it becomes REO Property, 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 Servicer at
such price, and upon such terms and conditions, as the Servicer deems to be in
the best interests of the related Trust. The proceeds of sale of the REO
Property shall be promptly deposited in the Custodial Account. After the
expenses of such disposition shall have been paid, the Servicer shall reimburse
itself pursuant to Section 3.04 hereof for any Servicing Advances it incurred
with respect to such REO Property.
The Servicer shall withdraw from the amounts on deposit in the
Custodial Account with respect to Securitized Loans in the same Trust funds
necessary for the proper operation, management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to the
Master Servicing Guide. The Servicer shall make monthly distributions on each
Remittance Date to the Trustee of the net cash flow from the REO Property (which
shall equal the revenues from such REO Property net of the expenses described in
this Section 3.12 and of any reserves reasonably required from time to time to
be maintained to satisfy anticipated liabilities for such expenses).
Section 3.13 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 4.02, the
Servicer shall furnish by electronic transmission to the Master Servicer and the
NIMs Insurer 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 Servicer'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 Master Servicer shall reasonably request.
Section 3.14 MERS.
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(a) The Servicer shall take such actions as are necessary to cause
the related Trust to be clearly identified as the owner of each MERS Securitized
Loan on the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS.
(b) The Servicer shall maintain in good standing its membership in
MERS. In addition, the Servicer shall comply with all rules, policies and
procedures of MERS, including the Rules of Membership, as amended, and the MERS
Procedures Manual, as amended.
(c) With respect to all MERS Securitized Loans serviced hereunder,
the Servicer shall promptly notify MERS as to any transfer of beneficial
ownership or release of any security interest in such Securitized Loans.
(d) With respect to all MERS Securitized Loans serviced hereunder,
the Servicer shall notify MERS as to any transfer of servicing pursuant to
Section 9.01 within 10 Business Days of such transfer of servicing. The Servicer
shall cooperate with each Trustee and any successor servicer to the extent
necessary to ensure that such transfer of servicing is appropriately reflected
on the MERS system.
Section 3.15 Waiver of Prepayment Penalties.
Except as provided below, the Servicer or any designee of the Servicer
shall not waive any Prepayment Charge with respect to any Securitized Loan. If
the Servicer or its designee fails to collect a Prepayment Charge at the time of
the related prepayment of any Securitized Loan subject to such Prepayment
Charge, the Servicer shall pay to the Trust at such time (by deposit to the
Custodial Account) an amount equal to the amount of the Prepayment Charge not
collected. The Seller warrants that the schedule of Prepayment Charges listed in
each Transfer Notice shall be complete, true and accurate and may be relied on
by the Servicer in its calculation of Prepayment Charges. Notwithstanding the
above, the Servicer or its designee may waive a Prepayment Charge only if (i)
the related prepayment is not the result of a refinancing by the Servicer or its
designee, (ii) such waiver relates to a defaulted Securitized Loan or a
reasonably foreseeable default, (iii) such waiver is standard and customary in
servicing similar mortgage loans to the Securitized Loans, and (iv) such waiver,
in the reasonable judgment of the Servicer, would maximize recovery of total
proceeds from the Securitized Loan, taking into account the amount of such
Prepayment Charge and the related Securitized Loan. If a Prepayment Charge is
waived as permitted by meeting the standards described above, then the Servicer
is required to pay the amount of such waived Prepayment Charge, for the benefit
of the holders of the Class P Certificates (as defined in the related Trust
Agreement), by depositing such amount into the Custodial Account together with
and at the time that the amount prepaid on the related Securitized Loan is
required to be deposited into the Custodial Account.
Within 90 days of the earlier of discovery by the Servicer or receipt
of notice by the Servicer of the breach of the representation or covenant of the
Servicer set forth in this Section 3.15 which materially and adversely affects
the interests of the Holders of the Class P Certificates in any Prepayment
Charge, the Servicer shall remedy such breach as follows: if any
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of the covenants made by the Servicer in this Section 3.15 is breached, the
Servicer must pay the amount of such waived Prepayment Charge, for the benefit
of the Holders of the Class P Certificates, by depositing such amount into the
Custodial Account.
Section 3.16 Servicing and Administration of PMI Policies.
(a) The Servicer shall take all such actions on behalf of the
Trustee as are necessary to service, maintain and administer PMI Policies and to
perform and enforce the rights under such Policies for the benefit of the
related Trust. Except as expressly set forth herein, the Servicer shall have
full authority on behalf of the related Trust to do anything it reasonably deems
appropriate or desirable in connection with the servicing, maintenance and
administration of the PMI Policies. The Servicer shall not take, or permit any
sub-servicer to modify or assume a Securitized Loan covered by a PMI Policy or
take any other action with respect to such Securitized Loan which would result
in non-coverage under any PMI Policy of any loss which, but for the actions of
the Servicer or the Sub-Servicer, would have been covered thereunder. If a PMI
Insurer fails to pay a claim under a PMI Policy as a result of breach by the
Servicer or a sub-servicer of its obligations hereunder or under a PMI Policy,
the Servicer shall be required to deposit in the Custodial Account on or prior
to the next succeeding Remittance Date an amount equal to such unpaid claim from
its own funds without any right to reimbursement from the related Trust. To the
extent coverage is available, the Servicer shall keep or cause to be kept in
full force and effect the Insurance Policies for as long as any Certificates
issued by the related Trust are outstanding. The Servicer shall cooperate with
each PMI Insurer and shall use its best efforts to furnish all reasonable aid,
evidence and information in the possession of the Servicer to which the Servicer
has access with respect to any Securitized Loan; provided, however,
notwithstanding anything to the contrary contained in a PMI Policy, the Servicer
shall not be required to submit any reports to a PMI Insurer until a reporting
date that is at least 15 days after the Servicer has received sufficient loan
level information from the Seller to appropriately code its servicing system in
accordance with such PMI Insurer's requirements.
(b) The Servicer shall deposit into the Custodial Account pursuant
to Section 3.03(xiii) hereof all Insurance Proceeds received from the PMI
Insurer under the terms of a PMI Policy.
(c) Notwithstanding the provisions of (a) and (b) above, the
Servicer shall not take any action in regard to any PMI Policy inconsistent with
the interests of the related Trust or the related Certificateholders or with the
rights and interests of the related Trust or the related Certificateholders
under this Agreement.
(d) The related Trustee shall furnish the Servicer with any powers
of attorney and other documents (within fifteen (15) days upon request from the
Servicer) in form as provided to it necessary or appropriate to enable the
Servicer to service and administer any PMI Policy; provided, however, that the
related Trustee shall not be liable for the actions of the Servicer under such
powers of attorney.
Section 3.17 Maintenance of Hazard Insurance.
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The Servicer shall cause to be maintained for each Securitized Loan
hazard insurance such that all buildings upon the related Mortgaged Property are
insured by a generally acceptable insurer against loss by fire, hazards of
extended coverage and such other hazards as are customary in the area where such
Mortgaged Property is located in an amount which is at least equal to the lesser
of (i) the current principal balance of such Securitized Loan and (ii) the
amount necessary to fully compensate for any damage or loss to the improvements
that are a part of such property on a replacement cost basis, in each case in an
amount not less than the amount as is necessary to avoid the application of any
co-insurance clause contained in the related hazard insurance policy.
Any payments by the Servicer for hazard insurance, other than as set
forth in the last paragraph of this Section 3.17, shall be deemed Servicing
Advances, reimbursable in accordance with Section 3.04(vii) or (x), to the
extent not collected from the related Mortgagor. The Servicer will comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any such hazard policies. Any amounts to be collected by the
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property or amounts to be released to the Mortgagor
subject to the terms and conditions of the related Mortgage and Mortgage Note)
shall be deposited in the Custodial Account, subject to withdrawal pursuant to
Section 3.04, if received in respect of a Securitized Loan. Any cost incurred by
the Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to Certificateholders, be added to the unpaid
principal balance of the related Securitized Loan, notwithstanding that the
terms of such Securitized Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any time
be in force and as shall require such additional insurance. If a Mortgaged
Property or REO Property is at any time in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards and flood insurance has been made available, the Servicer will cause to
be maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the unpaid principal balance of
the related Securitized Loan and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located is
participating in such program).
In the event that the Servicer or the Sub-Servicer shall obtain and
maintain a blanket policy with an insurer having a General Policy Rating of
B:III or better in Best's Key Rating Guide (or such other rating that is
comparable to such rating) insuring against hazard losses on all of the
Securitized Loans in a Trust, it shall conclusively be deemed to have satisfied
its obligations as set forth in the first two sentences of this Section 3.17
with respect to the Securitized Loans in such Trust, 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 the first two
sentences of this Section 3.17, and there shall have been one or more losses
which would have been covered by such policy, deposit to the Custodial Account
from its own funds without right of reimbursement the amount not otherwise
payable under the blanket policy because of
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such deductible clause for the benefit of the related Trust. In connection with
its activities as administrator and servicer of the Securitized Loans, the
Servicer agrees to prepare and present, on behalf of itself, the Trust and the
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy. Copies of such claims shall be
provided to the NIMs Insurer.
Section 3.18 Realization Upon Defaulted Securitized Loans.
(a) The Servicer shall use its best efforts and, consistent with
Accepted Servicing Practices, foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Securitized Loans (including
selling any such Securitized Loans other than converting the ownership of the
related properties) as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments. The
Servicer shall be responsible for all costs and expenses incurred by it in any
such proceedings; provided, however, that such costs and expenses will be
recoverable as Servicing Advances by the Servicer as contemplated in Section
3.04. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an uninsured cause, the
Servicer shall not be required to expend its own funds toward the restoration of
such Mortgaged Property unless it has determined that such restoration will
increase the proceeds of liquidation of the related Securitized Loan after
reimbursement to itself for such expenses. In instituting foreclosures or other
similar proceedings, the Servicer shall institute such proceedings in its own
name on behalf of the related Trust, unless otherwise required by applicable law
or otherwise appropriate.
(b) If the Servicer determines that it is in the best economic
interest of a Trust and the Certificateholders to sell a Distressed Securitized
Loan rather than foreclosing, the Servicer may effect such a sale. The net
proceeds of such sale shall be Liquidation Proceeds.
(c) Proceeds received in connection with any Final Recovery
Determination, as well as any recovery resulting from a partial collection of
Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, in respect of
any Securitized Loan, will be applied in the following order of priority: first,
to unpaid Servicing Fees; second, to reimburse the Servicer or any sub-servicer
for any related unreimbursed Servicing Advances and Monthly Advances pursuant to
Section 3.04; third, to accrued and unpaid interest on the Securitized Loan, to
the date of the Final Recovery Determination, or to the Due Date prior to the
Remittance Date on which such amounts are to be remitted to the Master Servicer
if not in connection with a Final Recovery Determination; and fourth, as a
recovery of principal of the Securitized Loan. The portion of the recovery so
allocated to any unpaid Servicing Fee shall be reimbursed to the Servicer or any
sub-servicer pursuant to Section 3.04.
Section 3.19 Enforcement of Due-On-Sale Clauses; Assumption Agreement.
The Servicer will, to the extent it has knowledge of any conveyance or
prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the
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Mortgage Note and/or the Mortgage), exercise its rights to accelerate the
maturity of such Securitized Loan under the "due-on-sale" clause, if any,
applicable thereto; provided, however, that the Servicer shall not be required
to take such action if in its sole business judgment the Servicer believes it is
not in the best interests of the related Trust and shall not exercise any such
rights if prohibited by law from doing so. If the Servicer reasonably believes
it is unable under applicable law to enforce such "due-on-sale" clause, or if
any of the other conditions set forth in the proviso to the preceding sentence
apply, the Servicer will enter into an assumption and modification agreement
from or with the person to whom such property has been conveyed or is proposed
to be conveyed, pursuant to which such person becomes liable under the Mortgage
Note and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. The Servicer is also authorized to enter into a substitution of
liability agreement with such person, pursuant to which the original Mortgagor
is released from liability and such person is substituted as the Mortgagor and
becomes liable under the Mortgage Note, provided that no such substitution shall
be effective unless such person satisfies the underwriting criteria of the
Servicer and has a credit risk rating at least equal to that of the original
Mortgagor. In connection with any assumption or substitution, the Servicer shall
apply such underwriting standards and follow such practices and procedures as
shall be normal and usual in its general mortgage servicing activities and as it
applies to other mortgage loans owned solely by it. The Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy. Any fee collected by the Servicer in respect of an assumption,
modification or substitution of liability agreement shall be retained by the
Servicer as additional servicing compensation. In connection with any such
assumption, no material term of the Mortgage Note (including but not limited to
the related Mortgage Interest Rate and the amount of the Monthly Payment) may be
amended or modified, except as otherwise required pursuant to the terms thereof.
The Servicer shall notify the related Trustee that any such substitution,
modification or assumption agreement has been completed by the Servicer, and the
Servicer shall deliver to the Custodian the executed original of such
substitution, modification 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, and the Servicer shall also deliver to
the Trustee a copy of the executed substitution, modification or assumption
agreement.
Notwithstanding the foregoing paragraph or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Securitized Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatever. For purposes of this Section 3.19, 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 3.20 Credit Risk Manager.
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The Servicer acknowledges and agrees that, under any Trust Agreement, a
Credit Risk Manager may be required to provide certain credit risk management
services as provided therein. If so, the Servicer hereby agrees to cooperate
with the Credit Risk Manager in connection with all reasonable requests made by
the Credit Risk Manager, including, without limitation, promptly providing
copies of any servicing reports and remittance advices required under this
Agreement to the Credit Risk Manager.
Section 3.21 Compliance with Applicable Laws.
All requirements of any federal, state or local law (including usury,
truth in lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure or recording, predatory and abusive lending
laws) applicable to the servicing of the Mortgage Loans will be complied with by
the Servicer in all material respects.
ARTICLE IV.
PAYMENTS TO MASTER SERVICER
Section 4.01 Remittances.
On each Remittance Date, no later than 3:00 p.m. New York City time,
the Servicer shall remit on a scheduled/scheduled basis by wire transfer of
immediately available funds to the Master Servicer (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
3.04), plus (b) all Monthly Advances, if any, which the Servicer or other
Advancing Person is obligated to make pursuant to Section 4.03, minus (c) any
amounts attributable to Principal Prepayments, Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds or REO Disposition Proceeds received after the
applicable Due 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 3.03 (iii) and (vii), and minus (d) any amounts
attributable to Monthly Payments collected but due on a Due Date or Due Dates
subsequent to the first day of the month in which such Remittance Date occurs,
which amounts shall be remitted on the Remittance Date next succeeding the Due
Date related to such Monthly Payment.
With respect to any remittance received by the Master Servicer after
the Business Day on which such payment was due, the Servicer shall pay to the
Master Servicer interest on any such late payment at an annual rate equal to
LIBOR, adjusted as of the date of each change, plus four (4) percentage points,
but in no event greater than the maximum amount permitted by applicable law.
Such interest shall be deposited in the Custodial Account by the Servicer on the
date such late payment is made and shall cover the period commencing with the
day following the Remittance Date and ending with the Business Day on which such
payment is made, both inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Remittance Date. The payment by the
Servicer of any such interest shall not be
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deemed an extension of time for payment or a waiver of any Event of Default by
the Master Servicer or any applicable Trustee.
All remittances required to be made to the Master Servicer shall be
made on a scheduled/scheduled basis to the following wire account or to such
other account as may be specified by the Master Servicer from time to time:
▇▇▇▇▇ Fargo Bank, National Association
Minneapolis, Minnesota
ABA# ▇▇▇▇▇▇▇▇▇
Account Name: SAS Clearing ▇▇▇▇▇▇▇▇▇▇
For further credit to: Collection Account No. ▇▇▇▇▇▇▇▇
Section 4.02 Statements to Master Servicer.
Not later than the 10th calendar day of each month (or if such calendar
day is not a Business Day, the immediately succeeding Business Day), the
Servicer shall furnish to the Master Servicer and the NIMs Insurer with respect
to each related Trust, or as the Servicer and the Master Servicer may otherwise
agree (a) a monthly remittance advice in the format set forth at Exhibit D
hereto with regard to monthly loan remittance data, Exhibit E with regard to
default mortgage loans, and Exhibit F with regard to realized losses or gains
for the period ending on the first day of such calendar month (i.e., the Due
Period) and (b) all such information required pursuant to clause (a) above in an
electronic file or other similar media reasonably acceptable to the Master
Servicer. The Servicer shall also furnish to the Master Servicer and the NIMs
Insurer (in such format mutually agreed to by the Servicer and the Master
Servicer) a monthly report detailing loan level Prepayment Charges collected
and/or waived by the Servicer in accordance with Section 3.15.
Such monthly remittance advice shall also be accompanied with a
supplemental report provided to the Master Servicer which includes on an
aggregate basis for the previous Due Period (i) the amount of claims filed, (ii)
the amount of any claim payments made, (iii) the amount of claims denied or
curtailed and (iv) policies cancelled with respect to those Securitized Loans
covered by any PMI Policy or any other provider of primary mortgage insurance
purchased by the Trust. Notwithstanding anything to the contrary contained in a
PMI Policy, the Servicer shall not be required to submit any supplemental
reports including the foregoing data with respect to a PMI Policy until a
reporting date that is at least 15 days after the Servicer has received
sufficient loan level information from the Seller to appropriately code its
servicing system in accordance with requirements.
In addition, not more than 60 days after the end of each calendar year,
commencing December 31, 2004, the Servicer shall provide (as such information
becomes reasonably available to the Servicer) to the Master Servicer such
information concerning the Securitized Loans and annual remittances to the
Master Servicer with respect to the Securitized Loans in each Trust as is
necessary for each Certificateholder and the NIMs Insurer to prepare its federal
income tax return. Such obligation of the Servicer shall be deemed to have been
satisfied to the
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extent that substantially comparable information shall be provided by the
Servicer to the Master Servicer and pursuant to any requirements of the Code as
from time to time are in force.
Beginning with calendar year 2004, the Servicer shall provide the
Master Servicer and each Trustee with such information concerning the related
Securitized Loans as is necessary for such Trustee to prepare the related
Trust's federal income tax return and for any investor in the related
Certificates to prepare any required tax return.
Section 4.03 Monthly Advances by Servicer.
On the Business Day immediately preceding each Remittance Date, the
Servicer shall deposit in the Custodial Account from its own funds or from
amounts held for future distribution, or both, an amount equal to the aggregate
of all Monthly Advances relating to Monthly Payments which were due on the
Securitized Loans during the applicable Due Period and which were delinquent at
the close of business on the immediately preceding Determination Date. Any
amounts held for future distribution and so used shall be replaced by the
Servicer 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 remittances to the Master Servicer required to be made on such Remittance
Date. The Servicer shall keep appropriate records of such amounts and will
provide such records to the Master Servicer upon request. No provision in this
Agreement shall be construed as limiting the Servicer's right to (i) pass
through late collections on the related Securitized Loans in lieu of making
Monthly Advances (ii) reimburse itself for such Monthly Advances from late
collections on the related Securitized Loans or (iii) utilize an Advancing
Person (as defined below).
The Servicer'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 Servicer determines, in its
sole reasonable opinion, that advances with respect to such Mortgage Loan are
non-recoverable by the Servicer from Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, or otherwise with respect to a particular Mortgage Loan.
The Servicer, with the consent of the NIMs Insurer, may enter into a
facility with any person including the Sub-Servicer which provides that such
person (an "Advancing Person") may fund Monthly Advances required under this
Section 4.03 and/or Servicing Advances, although no such facility shall reduce
or otherwise affect the Servicer's obligation to fund such Monthly Advances
and/or Servicing Advances. Any Monthly Advances and/or Servicing Advances made
by an Advancing Person shall be reimbursed to the Advancing Person in the same
manner as reimbursements would be made to the Servicer under Section 3.04 if
such Monthly Advances or Servicing Advance were funded by the Servicer.
Section 4.04 Compensating Interest.
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The Servicer shall be required to deposit in the Custodial Account, and
retain therein with respect to each Principal Prepayment, the Prepayment
Interest Shortfall Amount, if any, for the related Due Period. Such deposit
shall be made from the Servicer's own funds, without reimbursement therefor, up
to an amount equal to the lesser of with respect to the Securitized Loans in
each Trust (i) the Prepayment Interest Shortfall Amount or (ii) the Servicing
Fee, in each case, with respect to the Securitized Loans in such Trust. The
Servicer shall not be obligated to pay any Prepayment Interest Shortfall Amount
with respect to any Relief Act Reduction or bankruptcy.
Section 4.05 Credit Reporting.
For each Securitized Loan, in accordance with its current servicing
practices, the Servicer will accurately and fully report its underlying borrower
credit files to each of the following credit repositories or their successors:
Equifax Credit Information Services, Inc., Trans Union, LLC and Experian
Information Solution, Inc., on a monthly basis in a timely manner.
ARTICLE V.
GENERAL SERVICING PROCEDURES
Section 5.01 Servicing Compensation.
As consideration for servicing the Securitized Loans subject to this
Agreement, the Servicer shall retain (a) the Servicing Fee for each Securitized
Loan remaining subject to this Agreement during any month and (b) Ancillary
Income. The Servicing Fee shall be payable monthly.
The aggregate of the Servicing Fees for any month with respect to the
Securitized Loans in a Trust shall be reduced by any Prepayment Interest
Shortfall Amount with respect to the Securitized Loans in such Trust with
respect to such month. The Servicer shall be entitled to recover any unpaid
Servicing Fee out of Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds to the extent permitted in Section 3.04 and out of amounts derived from
the operation and sale of an REO Property to the extent permitted by Section
3.12.
Additional servicing compensation in the form of Ancillary Income shall
be retained by the Servicer only to the extent such fees or charges are received
by the Servicer. The Servicer shall also be entitled pursuant to Section 3.04
and Section 3.06 to withdraw from the Custodial Account and Escrow Account,
respectively, as additional servicing compensation, interest or other income
earned on deposits therein, subject to Section 3.11.
The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder, including any fees due to
sub-servicers, and shall not be entitled to reimbursement thereof except as
specifically provided for herein.
Section 5.02 Annual Audit Report.
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The Servicer shall, at its own expense, using its best efforts by
February 28 of each year, but in no event later than May 1 of each year, cause a
firm of independent public accountants (who may also render other services to
Servicer), which is a member of the American Institute of Certified Public
Accountants, to furnish to the Seller and the Master Servicer (i) year-end
audited (if available) financial statements of the Servicer and (ii) a statement
to the effect that such firm has examined certain documents and records for the
preceding fiscal year (or during the period from the date of commencement of
such Servicer's duties hereunder until the end of such preceding fiscal year in
the case of the first such certificate) and that, on the basis of such
examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, such firm is of the opinion that
Servicer's overall servicing operations have been conducted in compliance with
the Uniform Single Attestation Program for Mortgage Bankers except for such
exceptions that, in the opinion of such firm, the Uniform Single Attestation
Program for Mortgage Bankers requires it to report, in which case such
exceptions shall be set forth in such statement.
Section 5.03 Annual Officer's Certificate.
The Servicer, at its own expense, will, using its best efforts by
February 28 of each year, but in no event later than May 1 of each year, deliver
to the Seller and the Master Servicer a Servicing Officer's certificate stating,
as to each signer thereof, that (i) a review of the activities of the Servicer
during such 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 Servicer has fulfilled all its
obligations under this Agreement for such year, or, if there has been a default
in the fulfillment of all such obligations, specifying each such default known
to such officers and the nature and status thereof including the steps being
taken by the Servicer to remedy such default.
Section 5.04. Servicer's Certification.
(a) An officer of the Servicer shall, using its best efforts by
February 28 of each year, but no later than May 1 of each year, (or if not a
Business Day, the immediately preceding Business Day), or at any other time upon
thirty (30) days written request, execute and deliver an Officer's Certificate
to the Master Servicer for the benefit of such Master Servicer and its officers,
directors, agents and affiliates, certifying as to the following matters:
(i) Based on my knowledge, the information in the annual statement
of compliance furnished pursuant to Section 5.03, the annual independent public
accountant's servicing report furnished pursuant to Section 5.02 and all
servicing reports, officer's certificates and other information relating to the
servicing of the Securitized Loans submitted to the Master Servicer 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 light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
(ii) The servicing information required to be provided to the
Master Servicer by the Servicer under this Agreement has been provided to the
Master Servicer;
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(iii) I am responsible for reviewing the activities performed by the
Servicer under the Agreement and based upon the review required by the
Agreement, and except as disclosed in the annual statement of compliance, the
annual independent public accountant's servicing report and all servicing
reports, officer's certificates and other information relating to the servicing
of the Securitized Loans submitted to the Master Servicer, the Servicer has, as
of the date of this certification fulfilled its obligations under the Agreement;
and
(iv) I have disclosed to the Master Servicer all significant
deficiencies relating to the Servicer's compliance with the minimum servicing
standards in accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set forth
in the Agreement.
(b) 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 Sections 5.02, 5.03 or 5.04 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 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 Sections 5.02, 5.03 or 5.04 or the
Servicer's negligence, bad faith or willful misconduct in connection therewith.
Section 5.05 Access to Servicer Records.
The Seller or the NIMs Insurer 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 Seller, the NIMs Insurer and any
supervisory agents or examiners representing a state or federal governmental
agency having jurisdiction over the Seller 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.
ARTICLE VI.
REPRESENTATIONS, WARRANTIES
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AND AGREEMENTS
Section 6.01 Representations, Warranties and Agreements of the
Servicer.
The Servicer, as a condition to the consummation of the transactions
contemplated hereby, hereby makes the following representations and warranties
to the Seller, the Depositor, the Trustee and the Master Servicer as of the
Closing Date:
(a) Due Organization and Authority. The Servicer is duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all licenses necessary to carry on its business as now being
conducted and either it or its designated sub-servicer 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 a
servicing business of the type provided for herein, and in any event the
Servicer or its designated sub-servicer is in compliance with the laws of any
such state to the extent necessary to ensure the enforceability of the terms of
this Agreement; the Servicer has the full power and authority to execute and
deliver this Agreement and, together with such sub-servicer, 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 Servicer 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 Servicer and all requisite
action has been taken by the Servicer to make this Agreement valid and binding
upon the Servicer in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement, taking into account the role of its
sub-servicer, is in the ordinary course of business of the Servicer;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the servicing responsibilities by the Servicer 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, conditions or provisions of the Servicer's
organizational documents or 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, taking into
account the role of its designated sub-servicer, result in the violation of any
law, rule, regulation, order, judgment or decree to which the Servicer or its
property is subject, or impair the ability of the Servicer to service the
Securitized Loans, or impair the value of the Securitized Loans;
(d) Ability to Perform. The Servicer does not believe, nor does it
have any reason or cause to believe, that it, together with the Sub-Servicer,
cannot perform each and every covenant contained in this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of our knowledge, threatened against the
Servicer which, either in any one
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instance or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of the Servicer,
or in any material impairment of the right or ability of the Servicer to carry
on its business substantially as now conducted, or in any material liability on
the part of the Servicer, or which would draw into question the validity of this
Agreement or of any action taken or to be taken in connection with the
obligations of the Servicer contemplated herein, or which would be likely to
impair materially the ability of the Servicer together with the Sub-Servicer to
perform under the terms of this Agreement;
(f) 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 Servicer together with the Sub-Servicer of or
compliance by the Servicer together with the Sub-Servicer with this Agreement;
(g) Ability to Service. The Servicer is an approved
seller/servicer of conventional residential Securitized Loans for ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇▇▇ Mac, and, together with those of its designated sub-servicer, shall
ensure that there are the facilities, procedures, and experienced personnel
necessary for the sound servicing of the Securitized Loans. The Servicer is in
good standing to service Securitized Loans for ▇▇▇▇▇▇▇ Mac. The Servicer is a
member in good standing of the MERS system, if applicable;
(h) No Untrue Information. Neither this Agreement nor any
statement, report or other document furnished or to be furnished by the Servicer
pursuant to this Agreement or in connection with the transactions contemplated
hereby contains any untrue material statement of fact or omits to state a
material fact necessary to make the statements contained therein not misleading;
(i) No Commissions to Third Parties. The Servicer has not dealt
with any broker or agent or anyone else, other than the Sub-Servicer, who might
be entitled to a fee or commission in connection with this transaction other
than the Seller; and
(j) No Waiver of Prepayment Charges. The Servicer will not waive
any Prepayment Charge unless it is waived in accordance with the standard set
forth in Section 3.15.
Section 6.02 Remedies for Breach of Representations and Warranties of
the Servicer.
It is understood and agreed that the representations and warranties set
forth in Section 6.01 shall survive the engagement of the Servicer to perform
the servicing responsibilities as of any Closing Date hereunder and the delivery
of the Servicing Files to the Servicer and shall inure to the benefit of the
Seller, any Depositor, the Master Servicer and each Trust, NIMs Insurer and
Trustee. Upon discovery by any of the Servicer, the Master Servicer, the
Trustee, NIMs Insurer, any Depositor or the Seller of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the ability of the Servicer, together with its designated sub-servicer, to
perform its duties and obligations under this Agreement or otherwise materially
and adversely affects the value of the Securitized Loans, the Mortgaged
Property, the priority of the security interest on such Mortgaged Property or
the interest of the Seller, any Depositor, the
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Master Servicer, NIMs Insurer, the related Trust or the related Trustee, the
party discovering such breach shall give prompt written notice to the others.
Within 60 days of the earlier of either discovery by or notice to the
Servicer of a breach of a representation or warranty set forth in Section 6.01
which materially and adversely affects the ability of the Servicer, together
with its designated sub-servicer, to perform its duties and obligations under
this Agreement or otherwise materially and adversely affects the value of the
Securitized Loans, the Mortgaged Property or the priority of the security
interest on such Mortgaged Property, the Servicer shall use its best efforts
promptly to cure such breach in all material respects and, if such breach cannot
be cured, the Servicer shall, at the option of the Trustee, assign the
Servicer's rights and obligations under this Agreement (or respecting the
affected Securitized Loans) with respect to a Trust to a successor servicer
selected by the related Trustee with the prior consent and approval of the
Master Servicer. Such assignment shall be made in accordance with Section 9.01
and 9.02.
In addition, the Servicer shall indemnify the Seller, the Master
Servicer, NIMs Insurer, any Depositor and each Trustee and hold each of them
harmless against any Costs resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
Servicer's representations and warranties contained in this Agreement. It is
understood and agreed that the remedies set forth in this Section 6.02
constitute the sole remedies of the Seller, the Master Servicer, any Depositor,
and each Trust and Trustee hereunder respecting a breach of the foregoing
representations and warranties.
Any cause of action against the Servicer relating to or arising out of
the breach of any representations and warranties made in Section 6.01 shall
accrue upon (i) discovery of such breach by the Servicer or notice thereof by
the Seller, the Master Servicer, NIMs Insurer, any Depositor or a Trustee to the
Servicer, (ii) failure by the Servicer to cure such breach within the applicable
cure period, and (iii) demand upon the Servicer by the Seller, any Depositor,
NIMs Insurer, the Master Servicer or a Trustee for compliance with this
Agreement.
Section 6.03 Additional Indemnification by the Servicer; Third Party
Claims.
The Servicer shall indemnify the Seller, any Depositor, NIMs Insurer,
each Trustee, the Master Servicer and each Trust and hold them harmless against
any and all Costs that any such indemnified party may sustain in any way related
to (i) the failure of the Servicer to perform its duties and service the related
Securitized Loans in material compliance with the terms of this Agreement or
(ii) the failure of the Servicer to cause any event to occur which would have
occurred if the Servicer were applying Accepted Servicing Practices under this
Agreement. The Servicer shall immediately notify the Seller, any related
Depositor, NIMs Insurer, the Master Servicer, the related Trustee or any other
relevant party if a claim is made by a third party with respect to this
Agreement or the related Securitized Loans, assume (with the prior written
consent of the indemnified party) the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
any indemnified party in respect of such claim and
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follow any written instructions received from such indemnified party in
connection with such claim. The Servicer shall be promptly reimbursed by the
related Trust or Trusts for all amounts advanced by it pursuant to the preceding
sentence except when the claim is in any way related to the Servicer's
indemnification pursuant to Section 6.02, or the failure of the Servicer,
together with its designated sub-servicer, to service and administer the
Securitized Loans in material compliance with the terms of this Agreement. In
the event a dispute arises between an indemnified party and the Servicer with
respect to any of the rights and obligations of the parties pursuant to this
Agreement, and such dispute is adjudicated in a court of law, by an arbitration
panel or any other judicial process, then the losing party shall indemnify and
reimburse the winning party for all attorneys' fees and other costs and expenses
related to the adjudication of said dispute.
Section 6.04 Indemnification with Respect to Certain Taxes and Loss
of REMIC Status.
In the event that any REMIC elected by a Trust fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due to the negligent performance by the Servicer of its duties and
obligations set forth herein, the Servicer shall indemnify the Holder of the
related Residual Certificate, the Master Servicer, the related Trustee and the
related Trust against any and all losses, claims, damages, liabilities or
expenses ("Losses") resulting from such negligence; provided, however, that the
Servicer shall not be liable for any such Losses attributable to the action or
inaction of the related Trustee, any related Depositor, the Master Servicer or
the Holder of such Residual Certificate, as applicable, nor for any such Losses
resulting from misinformation provided by the Holder of such Residual
Certificate or any such other party on which the Servicer has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holder of such Residual Certificate or the related Trust now or hereafter
existing at law or in equity or otherwise. Notwithstanding the foregoing,
however, in no event shall the Servicer have any liability (1) for any action or
omission that is taken in accordance with and in compliance with the express
terms of, or which is expressly permitted by the terms of, this Agreement, (2)
for any Losses other than arising out of a negligent performance by the Servicer
of its duties and obligations set forth herein, and (3) for any special or
consequential damages to the related Certificateholders.
ARTICLE VII.
THE SERVICER
Section 7.01 Merger or Consolidation of the Servicer.
The Servicer shall keep in full effect its existence, rights and
franchises as a limited liability company, and shall obtain and preserve its
qualification to do business as a foreign entity in each jurisdiction in which
such qualification is or shall be necessary to perform its obligations as
contemplated by this Agreement.
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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, shall, with the prior written consent of the Master Servicer, 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 net worth of not less than
$25,000,000, and (ii) which is a ▇▇▇▇▇▇▇ Mac-approved or ▇▇▇▇▇▇ Mae-approved
servicer in good standing.
Section 7.02 Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Seller, the Master
Servicer, any Depositor, any Trust or any Trustee hereunder for any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such person against any 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 any breach of the
terms and conditions of this Agreement. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Securitized Loans in accordance with this Agreement and
which in its opinion may involve it in any expense or liability; provided,
however, that the Servicer may, with the consent of the related Trustee, NIMs
Insurer and the Master Servicer, undertake any such action which it deems
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto. In such event, the Servicer shall be entitled to
reimbursement from the related Trust for the reasonable legal expenses and costs
of such action.
Section 7.03 Limitation on Resignation and Assignment by the Servicer.
The Servicer shall neither assign its rights under this Agreement or
the servicing hereunder nor delegate its duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets without, in each case, the prior written consent of the
Seller, the Master Servicer and the related Trustee and the NIMs Insurer, which
consent, in the case of an assignment of rights or delegation of duties, shall
be granted or withheld in the discretion of the Seller, the Master Servicer and
the related Trustee, and which consent, in the case of a sale or disposition of
all or substantially all of the property or assets of the Servicer, shall not be
unreasonably withheld; provided, that in each case, there must be delivered to
the Seller, the Master Servicer and the related Trustee and NIMs Insurer a
letter from the applicable Rating Agency or Rating Agencies to the effect that
such transfer of servicing or sale or disposition of assets will not result in a
qualification, withdrawal or downgrade of the then-current rating of any of the
Certificates, and provided further, without any consent or notice
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the Servicer may delegate its servicing duties hereunder to the Sub-Servicer
pursuant to the Sub-Servicing Agreement. Notwithstanding the foregoing, the
Servicer, without the consent of the Seller, the Master Servicer and the related
Trustee, may retain third-party contractors to perform certain servicing and
loan administration functions, including without limitation, hazard insurance
administration, tax payment and administration, flood certification and
administration, collection services and similar functions; provided, however,
that the retention of such contractors by Servicer shall not limit the
obligation of the Servicer to service the Securitized Loans pursuant to the
terms and conditions of this Agreement.
The Servicer shall not resign from the obligations and duties hereby
imposed on it with respect to the Securitized Loans in a Trust except by mutual
consent of the Seller, the Master Servicer and the related Trustee, with the
consent of the NIMs Insurer, 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 Seller, the Master Servicer and the related Trustee and NIMs Insurer which
Opinion of Counsel shall be in form and substance acceptable to the Seller, the
Master Servicer and the related Trustee and NIMs Insurer. No such resignation
shall become effective until a successor acceptable to the Master Servicer shall
have assumed the Servicer's responsibilities and obligations hereunder in the
manner provided in Section 9.01.
Without in any way limiting the generality of this Section 7.03, in the
event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its 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 consent of the Seller, the Master Servicer
and the Trustee and NIMs Insurer (except as provided by the first paragraph of
this Section 7.03 and Section 7.04), then such parties shall have the right to
terminate this Agreement upon notice given as set forth in Section 8.01, without
any payment of any penalty or damages and without any liability whatsoever to
the Servicer or any third party.
Section 7.04 Sub-Servicing Agreements; Sub-Servicing Acknowledgment
Agreement; Successor Sub-Servicer.
(a) The Servicer may enter into sub-servicing agreements, with the
consent of the NIMs Insurer, for any servicing and administration of the
Securitized Loans with any institution which (i) is an approved ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac Seller/Servicer as indicated in writing, and (ii) represents and
warrants that it is in compliance with the laws of each state as necessary to
enable it to perform its obligations under such sub-servicing agreement. For
this purpose, sub-servicing shall not be deemed to include the use of a tax
service, or services for reconveyance, insurance or brokering REO Property. The
Servicer shall give prior written notice to the Master Servicer, the Trustee and
NIMs Insurer of the appointment of any sub-servicer and shall furnish to the
Master Servicer, the Trustee and NIMs Insurer a copy of such sub-servicing
agreement. For purposes of this Agreement, the Servicer shall be deemed to have
received payments on Securitized Loans immediately upon receipt by any
sub-servicer of such payments.
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Any such sub-servicing agreement shall be acceptable to the Master Servicer and
the related Trustee and NIMs Insurer and shall be consistent with and not
violate the provisions of this Agreement. Each sub-servicing agreement shall
provide that a successor servicer shall have the option to terminate such
agreement without payment of any fees if the predecessor Servicer is terminated
or resigns.
(b) The Servicer, with the consent of the NIMs Insurer, may
terminate any sub-servicing agreement to which it is a party in accordance with
the terms and conditions of such sub-servicing agreement and either itself
directly service the related Securitized Loans or enter into a sub-servicing
agreement with a successor sub-servicer that qualifies under Section 7.04(a).
(c) Notwithstanding any sub-servicing agreement or the provisions
of this Agreement relating to agreements or arrangements between the Servicer
and a sub-servicer or reference to actions taken through a sub-servicer or
otherwise, the Servicer shall remain obligated and primarily liable to the
Trustee, the Master Servicer, the Trust and the Certificateholders for the
servicing and administering of the Securitized Loans in accordance with the
provisions hereof without diminution of such obligation or liability by virtue
of such sub-servicing agreements or arrangements or by virtue of indemnification
from the sub-servicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the
Securitized Loans. The Servicer shall be entitled to enter into any agreement
with a sub-servicer for indemnification of the Servicer by such sub-servicer and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
(d) In the event of a Subservicer Termination Trigger, the
Servicer shall terminate the related Subservicer at the direction of the NIMS
Insurer. Following such termination, the Servicer shall have the right to
service such Securitized Loans without the use of a Subservicer or to engage a
new Subservicer acceptable to the NIMS Insurer pursuant to a Subservicing
Agreement, which is not in conflict with the terms of this Agreement.
Notwithstanding the foregoing, the Servicer shall retain the ownership of all
servicing rights with respect to the related Securitized Loans and no such
direction of termination of a Subservicer shall be deemed to diminish such
ownership.
Section 7.05 Inspection.
The Servicer shall offer each Trustee, NIMs Insurer and the Master
Servicer, upon reasonable advance notice, during normal business hours, access
to all records maintained by the Servicer in respect of its rights and
obligations hereunder and access to officers of the Servicer responsible for
such obligations. Upon request, the Servicer shall furnish to each Trustee, NIMs
Insurer and the Master Servicer its most recent publicly available financial
statements and such other information relating to its capacity to perform its
obligations under this Agreement.
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ARTICLE VIII.
TERMINATION
Section 8.01 Termination for Cause.
This Agreement shall be terminable at the option of the Master Servicer
or the related Trustee if any of the following events of default exist on the
part of the Servicer:
(i) any failure by the Servicer to remit to the Master Servicer
any payment required to be made under the terms of this Agreement which
continues unremedied for a period of one Business Day after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been received by the Servicer from the Master Servicer, the NIMs Insurer or a
related Trustee; or
(ii) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement (except with respect to its obligations
under Section 5.02, 5.03 or 5.04) which continues unremedied for a period of 15
days following the Servicer's receipt of written notice of such failure from the
Master Servicer, the NIMs Insurer or a related Trustee; or
(iii) failure by the Servicer to maintain its license or to cause
its designated sub-servicer to do business or service residential Securitized
Loans in any jurisdiction, if required by such jurisdiction, where a Mortgaged
Property is located; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, including bankruptcy,
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 60 days; or
(v) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Servicer or
of or relating to all or substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency, bankruptcy or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its obligations
or cease its normal business operations for three Business Days; or
(vii) the Servicer ceases to meet or to cause its designated
sub-servicer to meet the qualifications of a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac
seller/servicer; or
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(viii) the Servicer attempts to assign the servicing of the
Securitized Loans or its right to servicing compensation hereunder or the
Servicer attempts 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, in each case without complying fully with the provisions of Section
7.03 or Section 7.04; or
(ix) failure by the Servicer to duly perform, within the required
time period, its obligations under Sections 5.02, 5.03 or 5.04 which failure
continues unremedied for a period of fifteen (15) days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by any party to this Servicing Agreement, by the NIMs
Insurer or by any master servicer responsible for master servicing the
Securitized Loans pursuant to a securitization of such Securitized Loans.
In each and every such case, so long as an event of default shall not
have been remedied within the applicable cure period, in addition to whatever
rights the Master Servicer or a related Trustee may have at law or equity to
damages, including injunctive relief and specific performance, the Trustee or
the Master Servicer, by notice in writing to the Servicer, and with the consent
of the other party, may (and, at the request of the NIMs Insurer, shall)
terminate all the rights and obligations of the Servicer under this Agreement
and in and to the servicing contract established hereby and the proceeds
thereof.
Upon receipt by the Servicer of such written notice, all authority and
power of the Servicer under this Agreement, whether with respect to the
Securitized Loans or otherwise, shall pass to and be vested in a successor
servicer appointed by the Trustee or the Master Servicer, as the case may be,
with the consent of the other party and the NIMs Insurer. Upon written request
from the Master Servicer, the Servicer shall prepare, execute and deliver to the
successor servicer or the Trustee any and all documents and other instruments,
place in such successor's possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes of
such notice of termination, including but not limited to the transfer and
endorsement or assignment of the Securitized Loans and related documents, at the
Servicer's sole expense. The Servicer shall cooperate with the Master Servicer
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 Securitized Loans.
By a written notice, the Trustee or the Master Servicer, with the
consent of the other parties and the NIMs Insurer, may waive any default by the
Servicer in the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 8.02 Termination Without Cause.
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(a) This Agreement shall terminate upon: (i) the later of (a) the
distribution of the final payment or liquidation proceeds on the last
Securitized Loan to the Master Servicer or the Trust, and (b) the disposition of
all REO Property acquired upon foreclosure of the last Securitized Loan and the
remittance of all funds due hereunder or (ii) mutual consent of the Servicer and
the Master Servicer in writing, provided such termination is also acceptable to
the applicable Rating Agency or Rating Agencies and the NIMs Insurer. In
addition, with the prior written consent of the Master Servicer and the NIMs
Insurer, the Seller or its designee may terminate this Agreement with respect to
all of the Securitized Loans, without cause, provided, that the Seller or its
designee gives the Servicer 30 days' notice. Any such notice of termination
shall be in writing and delivered to the Servicer, NIMs Insurer and the Master
Servicer by registered mail to the address set forth in Section 9.03. The Seller
or its designee and the Servicer shall comply with the termination procedures
set forth in Section 9.01 hereof. All unreimbursed Servicing Fees, Servicing
Advances and Monthly Advances still owing the Servicer shall be paid by the
Seller or its designee or the successor servicer from its own funds within 5
Business Days of the date of such termination without right of reimbursement
from the Trust. In connection with any termination pursuant to clause (ii) of
the first sentence of this Section 8.02(a), all unreimbursed Servicing Fees,
Servicing Advances and Monthly Advances still owing the Servicer shall be paid
at the time of such termination by the Trust.
Upon a termination of the Servicer for cause pursuant to Section 8.01,
all unreimbursed Servicing Fees, Servicing Advances and Monthly Advances still
owing the Servicer shall be paid by the Trust as such amounts are received from
the related Securitized Loans. In connection with any termination pursuant to
the second sentence of this Section 8.02(a), the Seller or its designee or the
successor servicer will be responsible for reimbursing the Servicer for all
unreimbursed out-of-pocket Servicing Advances, Monthly Advances and Servicing
Fees and other reasonable and necessary out-of-pocket costs associated with any
transfer of servicing at the time of such transfer of servicing. Any invoices
received by the Servicer after termination will be forwarded to the Seller or
its designee, and the Seller or its designee or the successor servicer shall pay
such invoices within five (5) Business Days upon receipt from the Servicer.
(b) In the event that the Servicer decides to terminate its
obligations under this Agreement as set forth in clause (ii) of Section 8.02(a),
the Servicer agrees that it will continue to service the Securitized Loans
beyond the prescribed termination date until such time as the Trustee, using
reasonable commercial efforts, is able to appoint, with the consent of the NIMs
Insurer, a successor servicer acceptable to the NIMs Insurer and the Master
Servicer and otherwise meeting the characteristics of Sections 7.01 and 9.01.
ARTICLE IX.
MISCELLANEOUS PROVISIONS
Section 9.01 Successor to the Servicer.
Simultaneously with the termination of the Servicer's responsibilities
and duties under this Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or
8.02(a)(ii), the Master Servicer shall
M-1-50
(i) within 90 days of the Servicer's receipt of notice of such termination,
succeed to and assume all of the Servicer's responsibilities, rights, duties and
obligations under this Agreement (except that the Master Servicer shall
immediately assume all of the obligations of the Servicer to make Monthly
Advances), or (ii) appoint a successor acceptable to the NIMs Insurer having the
characteristics set forth in clauses (i) and (ii) of Section 7.01 and which
shall succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement simultaneously with the
termination of the Servicer's responsibilities, duties and liabilities under
this Agreement; or (b) as a result of termination of the Servicer without cause
by the Seller pursuant to Section 8.02 hereof, the Seller shall appoint a
successor acceptable to the NIMs Insurer having the characteristics set forth in
clauses (i) and (ii) of Section 7.01 and which shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Servicer under
this Agreement simultaneously with the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement. If the NIMs
Insurer requests, the Master Servicer shall appoint a successor servicer as
provided in the preceding sentence. Any successor to the Servicer shall be
subject to the approval of the Master Servicer and the Trustee and, to the
extent required by the Trust Agreement, shall be a member in good standing of
the MERS system (if any of the Securitized Loans are MERS Eligible Securitized
Loans, unless such Securitized Loans are withdrawn from MERS and Assignments of
Mortgage are recorded in favor of the Trust at the expense of the successor
servicer). The final approval of a successor servicer shall be conditioned upon
the receipt by the Trustee, the Master Servicer, NIMs Insurer and the Seller of
a letter from the applicable Rating Agency or Rating Agencies to the effect that
such transfer of servicing will not result in a qualification, withdrawal or
downgrade of the then-current rating of any of the Certificates. In connection
with such appointment and assumption, the Master Servicer or the Seller, as
applicable, may make such arrangements for the compensation of such successor
out of payments on Securitized Loans as it and such successor shall agree,
provided, however, that no such compensation shall be in excess of the Servicing
Fee permitted under this Agreement. 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 servicer shall be appointed pursuant to this Section
9.01, or until the Master Servicer succeeds to and assumes all of the Servicer's
responsibilities, rights, duties and obligations pursuant to this Section 9.01,
and shall in no event relieve the Servicer of the representations and warranties
made pursuant to Section 6.01 and the remedies available to the Trustee, the
Trust, the Master Servicer, NIMs Insurer and the Seller under Section 6.02 and
6.03, it being understood and agreed that the provisions of such Sections 6.01,
6.02 and 6.03 shall be applicable not only to such successor servicer but also
to the Servicer notwithstanding any such resignation or termination of the
Servicer, or the termination of this Agreement. Notwithstanding the foregoing,
the Master Servicer, in its capacity as successor servicer, shall not be
responsible for the lack of information and/or documents that it cannot obtain
through reasonable efforts.
M-1-51
Within a reasonable period of time, but in no event longer than 30 days
after the appointment of a successor entity, the Servicer shall prepare, execute
and deliver to the successor entity any and all documents and other instruments,
place in such successor's possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes of
such notice of termination, including but not limited to the transfer and
endorsement of the Mortgage Notes and related documents, and the preparation and
recordation of Assignments of Mortgage. The Servicer shall cooperate with the
Master Servicer or the Seller, as applicable, and such successor in effecting
the termination of the Servicer's responsibilities and rights hereunder and the
transfer of servicing responsibilities to the successor servicer, including
without limitation, the transfer to such successor for administration by it of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to the
Securitized Loans.
Any successor servicer appointed as provided herein shall execute,
acknowledge and deliver to the Trustee, the Servicer, the Master Servicer, NIMs
Insurer and the Seller an instrument (i) accepting such appointment, wherein the
successor shall make the representations and warranties set forth in Section
6.01 (including a representation that the successor servicer is a member of
MERS, unless none of the Securitized Loans are MERS Securitized Loans or MERS
Eligible Securitized Loans or any such Securitized Loans have been withdrawn
from MERS and Assignments of Mortgage are recorded in favor of the Trust) and
provide for the same remedies set forth in Section 6.02 and Section 6.03 herein
(ii) an assumption of the due and punctual performance and observance of each
covenant and condition to be performed and observed by the Servicer under this
Agreement, whereupon such successor servicer shall become fully vested with all
the rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Servicer or termination of this Agreement
pursuant to Sections 6.02, 7.03, 8.01 or 8.02 shall not affect any claims that
the Seller, the Depositor, the Master Servicer, NIMs Insurer or the Trustee may
have against the Servicer arising out of the Servicer's actions or failure to
act prior to any such termination or resignation. In addition, in the event any
successor servicer is appointed pursuant to Section 8.03 of this Agreement, such
successor servicer must satisfy the conditions relating to the transfer of
servicing set forth in the Trust Agreement.
The Servicer shall deliver promptly to the successor servicer the funds
in the Custodial Account and Escrow Account and all Securitized Loan documents
and related documents and statements held by it hereunder and the Servicer shall
account for all funds and shall execute and deliver such instruments and do such
other things as may reasonably be required to more fully and definitively vest
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Servicer.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify the Trustee, the Master Servicer, NIMs Insurer, the Seller and the
Depositor of such appointment in accordance with the procedures set forth in
Section 9.03.
Section 9.02 Costs.
M-1-52
The Seller shall pay any legal fees and expenses of its attorneys.
Costs and expenses incurred in connection with the transfer of the servicing
responsibilities pursuant to Section 9.01 or pursuant to any other provision of
this Agreement, including fees for delivering Servicing Files, shall be paid by
the Seller. Subject to Sections 2.03 and 3.01(a), the Seller shall pay the costs
associated with the preparation, delivery and recording of Assignments of
Mortgages.
Section 9.03 Notices.
All demands, notices, consents, reports, directions, instructions,
statements and other communications hereunder shall be in writing and shall be
deemed to have been duly given if sent by facsimile or mailed by overnight
courier, addressed as follows (or such other address as may hereafter be
furnished to the other parties by like notice):
(i) if to the Seller:
Home Star Mortgage Services, LLC W.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Servicer:
Home Star Mortgage Services, LLC
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to the Master Servicer:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services --
Home Star Master Servicing
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) if to the Trustee:
The address shown in the Transfer Notice
Any such communication hereunder shall be deemed to have been received
on the date delivered to or received at the premises of the addressee.
Section 9.04 Severability Clause.
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,
M-1-53
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 Securitized
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 as close as
possible to the economic effect of this Agreement without regard to such
invalidity.
Section 9.05 No Personal Solicitation.
From and after the related Closing Date, the Servicer hereby 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 or
independent mortgage brokerage companies on the Servicer's behalf, to
personally, by telephone or mail, solicit the Mortgagor under any Securitized
Loan for the purpose of refinancing such Securitized Loan; provided, that the
Servicer may solicit any Mortgagor for whom the Servicer has received a request
for verification of mortgage status, a request for demand for payoff, a
mortgagor initiated written or verbal communication indicating a desire to
prepay the related Securitized Loan, or the mortgagor initiates a title search,
provided further, it is understood and agreed that promotions undertaken by the
Servicer or any of its affiliates which (i) concern optional insurance products
or other additional projects or (ii) are directed to mailing lists or customers
of affiliated companies or 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 9.05 nor is the Servicer prohibited from responding to
unsolicited requests or inquiries made by a Mortgagor or an agent of a
Mortgagor.
Section 9.06 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 9.07 Place of Delivery and Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR OTHER CHOICE OF LAW RULES TO THE
CONTRARY.
M-1-54
Section 9.08 Further Agreements.
The Seller and the Servicer each agree to execute and deliver to the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section 9.09 Intention of the Parties.
It is the intention of the parties that the Seller is conveying, and
the Servicer is receiving, only a contract for servicing the Securitized Loans.
Accordingly, the parties hereby acknowledge that each Trust remains the sole and
absolute owner of the related Securitized Loans and all rights (other than the
servicing rights) related thereto.
Section 9.10 Successors and Assigns; Assignment of Servicing Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Servicer, the Seller , each Trustee (with respect to related
Securitized Loans), the NIMs Insurer and the Master Servicer and their
respective successors and assigns. This Agreement shall not be assigned, pledged
or hypothecated by the Servicer to a third party except in accordance with
Section 7.03 and shall not be assigned, pledged or hypothecated by the Seller
except as and to the extent provided in Section 9.11.
Section 9.11 Assignment by Seller.
The Seller shall have the right, with the consent of the NIMs Insurer,
upon notice to but without the consent of the Servicer, to assign, in whole or
in part (but exclusive of such Seller's rights and obligations as owner of the
servicing rights relating to Securitized Loans), its interest under this
Agreement with respect to Securitized Loans which will be owned by the related
Trust to the related Depositor, which in turn shall assign such rights to such
Trust, and such Trust then shall succeed to all such rights of the Seller under
this Agreement. All references to the Seller in this Agreement shall be deemed
to include its assignee or designee and any subsequent assignee or designee,
specifically including, with respect to each Securitized Loan, the related Trust
and the related Trustee.
Section 9.12 Amendment.
This Agreement may be amended in writing from time to time by the
parties, with the prior written consent of the Trustee and the NIMs Insurer;
provided that the party requesting such amendment shall, at its own expense,
provide the other parties and such Trustee and the NIMs Insurer with an Opinion
of Counsel that (i)such amendment is permitted under the terms of this
Agreement, (ii) the Servicer has complied with all applicable requirements of
this Agreement, and (iii)) such amendment will not materially adversely affect
the interest of any Trust or the related Certificateholders in the Securitized
Loans.
M-1-55
Any such amendment shall be deemed not to adversely affect in any
material respect any of the interest of Certificateholders in the Securitized
Loans if each related Trustee and the NIMs Insurer receives written confirmation
from the applicable Rating Agency or Rating Agencies that such amendment will
not cause such Rating Agency or Rating Agencies to reduce, qualify or withdraw
the then current rating assigned to the related Certificates (and any Opinion of
Counsel requested by a party in connection with any such amendment may rely
expressly on such confirmation as the basis therefor).
Section 9.13 Waivers.
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing, signed by the party against whom such
waiver or modification is sought to be enforced.
Section 9.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 9.15 Intended Third Party Beneficiary.
Notwithstanding any provision herein to the contrary, the parties to
this Agreement agree that it is appropriate, in furtherance of the intent of
such parties as set forth herein, that each Trustee, each Trust and each NIMs
Insurer receive the benefit of the provisions of this Agreement as an intended
third party beneficiary of this Agreement to the extent of such provisions with
respect to the related Securitized Loans. The Servicer shall have the same
obligations to the related Trustee, the related Trust and the related NIMs
Insurer as if it were a party to this Agreement, and each Trustee, Trust and
NIMs Insurer shall have the same rights and remedies to enforce the provisions
of this Agreement as if it were a party to this Agreement. The Servicer shall
only take direction from the Master Servicer or NIMs Insurer (if direction by
the Master Servicer or NIMs Insurer, as applicable, is required under this
Agreement) unless otherwise directed by this Agreement. Notwithstanding the
foregoing, all rights and obligations of a Trust, the related Trustee, the
related NIMs Insurer and the Master Servicer hereunder (other than the right to
indemnification) with respect to the related Securitized Loans shall terminate
upon the termination of such Trust pursuant to the related Trust Agreement.
Section 9.16 Confidentiality.
The Trustee and the Master Servicer hereby agree to hold and treat all
Confidential Information (as defined below) in confidence and in accordance with
this Section 9.16. Such Confidential Information will not, without the prior
written consent of the Servicer, be disclosed or used by any Trustee or the
Master Servicer or by its subsidiaries, affiliates, directors, officers,
employees, agents or controlling persons (collectively, the "Information
Recipients") other than for the purposes of this Agreement or for the purposes
specified in the related Trust Agreement. Disclosure that is not in violation of
the Right to Financial Privacy Act of 1978, as amended, the
M-1-56
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 (the "G-L-B Act") or other applicable law by the
Trustee or the Master Servicer of any Confidential Information at the request of
its outside auditors or governmental regulatory authorities in connection with
an examination of any Trustee or the Master Servicer by any such authority or
for the purposes specified in any Trust Agreement or this Agreement shall not
constitute a breach of its obligations under this Section 9.19, and shall not
require the prior consent of the Servicer.
As used herein, "Confidential Information" means non-public personal
information (as defined in the G-L-B Act and its enabling regulations issued by
the Federal Trade Commission) regarding borrowers. Confidential Information
shall not include information which (i) is or becomes generally available to the
public other than as a result of disclosure by a Trustee or the Master Servicer
or any of its Information Recipients; (ii) was available to the related Trustee
or the Master Servicer on a non-confidential basis from a person or entity other
than the Servicer prior to its disclosure by the Servicer to such Trustee; (iii)
is required to be disclosed by a governmental authority or related governmental
agencies or as otherwise required by law; (iv) becomes available to the related
Trustee or the Master Servicer on a non-confidential basis from a person or
entity other than the Servicer who, to the best knowledge of the related Trustee
or the Master Servicer, is not otherwise bound by a confidentiality agreement
with the Servicer, and is not otherwise prohibited from transmitting the
information to such Trustee or the Master Servicer, or (v) is released pursuant
to the Trust Agreement or this Agreement.
Section 9.17 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) 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;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(c) 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;
(d) 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;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean by reason of
enumeration; and
M-1-57
(g) this Agreement shall be construed as a separate agreement with
respect to the Securitized Loans held by each Trust, and references to the
rights of the Master Servicer, Trustee or any NIMs Insurer shall apply
separately with respect to each Trust.
Section 9.18 Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by any party at the closing, and (c) 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 as 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.
M-1-58
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
date first above written.
HOME STAR MORTGAGE SERVICES, LLC,
as Seller
By:
Name:
Title:
HOME STAR MORTGAGE SERVICES, LLC,
as Servicer
By:
Name:
Title:
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
as Master Servicer
By:
Name:
Title:
M-1-59
EXHIBIT A
FORM OF TRANSFER NOTICE
[Date]
Home Star Mortgage Services, LLC, as Servicer
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Cenlar FSB, as Sub-Servicer
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
You are hereby notified that as of [date] (the "Effective Date"), the
undersigned has transferred the Securitized Loans listed on the attached
schedule (the "Securitized Loans") to Homestar Mortgage Securities Trust 200_ -
__ (the "Trust"). The attached schedule also contains a field which sets forth
the Servicing Fee Rate(s) and the Prepayment Charge Schedule. You agree to
service such Securitized Loans as Securitized Loans under that certain Servicing
Agreement dated as of March 5, 2004 (the "Servicing Agreement"), by and among
Home Star Mortgage Services, LLC ("Home Star"), as servicer (the "Servicer"),
Home Star, as seller (the "Seller") and ▇▇▇▇▇ Fargo Bank, National Association,
as master servicer (the "Master Servicer"), and that certain Sub-Servicing
Acknowledgment Agreement dated of even date therewith (the "Sub-Servicing
Agreement"), by and between the Servicer and Cenlar FSB (the "Sub-Servicer"). In
addition, you shall recognize the Trust or the Master Servicer or
____________________ (the "Trustee"), acting as agents for the Trust, as having
the same rights as Home Star as Seller under the Servicng Agreement with respect
to such transferred Securitized Loans. The address for notice for the Trustee
for these Securitized Loans is __________________________________.
HOME STAR MORTGAGE SERVICES, LLC, as
Seller
By:
Acknowledged by:
HOME STAR MORTGAGE SERVICES, LLC, as Servicer
By:
Name:
Title:
CENLAR FSB, as Sub-Servicer
By:
Name:
A-1
Title:
A-2
EXHIBIT B
CUSTODIAL ACCOUNT LETTER AGREEMENT
_______ __, 20__
To: ___________________________
___________________________
___________________________
(the "Depository")
As Servicer under the Servicing Agreement, dated as of March 5, 2004,
by and among Home Star Mortgage Services, LLC ("Home Star"), as servicer (the
"Servicer"), Home Star, as seller (the "Seller") and ▇▇▇▇▇ Fargo Bank, National
Association, as master servicer (the "Master Servicer") (the "Agreement"), we
hereby authorize and request you to establish an account as the Custodial
Account pursuant to Section 3.03 of the Agreement, to be designated as "Home
Star Mortgage Services, LLC, as Servicer for ▇▇▇▇▇ Fargo Bank, National
Association, as Master Servicer, and in trust for one or more Homestar Mortgage
Securities Trusts." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. This letter is submitted to you in
duplicate. Please execute and return one original to us.
HOME STAR MORTGAGE SERVICES, LLC,
as Servicer
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.
Depository
By:
Name:
Title:
Date:
B-1
EXHIBIT C
ESCROW ACCOUNT LETTER AGREEMENT
_______ __, 20__
To: ___________________________
___________________________
___________________________
(the "Depository")
As Servicer under the Servicing Agreement, dated as of March 5, 2004,
by and among Home Star Mortgage Services, LLC ("Home Star"), as servicer (the
"Servicer"), Home Star, as seller (the "Seller") and ▇▇▇▇▇ Fargo Bank, National
Association, as master servicer (the "Master Servicer") (the "Agreement"), we
hereby authorize and request you to establish an account as the Escrow Account
pursuant to Section 3.05 of the Agreement, to be designated as "Home Star
Mortgage Services, LLC, as Servicer for ▇▇▇▇▇ Fargo Bank, National Association,
as Master Servicer, and in trust for one or more Homestar Mortgage Securities
Trusts." All deposits in the account shall be subject to withdrawal therefrom by
order signed by the Servicer. This letter is submitted to you in duplicate.
Please execute and return one original to us.
HOME STAR MORTGAGE SERVICES, LLC,
as Servicer
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.
Depository
By:
Name:
Title:
Date:
C-1
EXHIBIT D
MONTHLY SERVICER REPORTING FORMAT
The format should be:
1. Record length of 240
2. ASCII
3. All dates should have DD of "01".
COBOL
# M/O Field Name Position Length "Picture" Justify
1. O Master Servicer No. 001-002 2
2. O Unit Code 003-004 2
3. M Loan Number 005-014 10 X(10)
4. O Borrower Name 015-034 20 X(20)
5. O Old Payment Amount 035-045 11 S(9)V9(02)
6. O Old Loan Rate 046-051 6 9(2)V9(04)
7. O Servicer Fee Rate 052-057 6 9(2)V9(04)
8. M Servicer Ending Balance 058-068 11 S9(9)V9(02)
9. M Servicer Next Due Date 069-076 8 CCYYMMDD
10. O Curtail Amt 1 - Before 077-087 11 S9(9)V9(02)
11. O Curtail Date 1 088-095 8 CCYYMMDD
12. O Curtail Amt 1 - After 096-106 11 S9(9)V9(02)
13 O Curtail Amt 2 - Before 107-117 11 S9(9)V9(02)
14. O Curtail Date 118-125 8 CCYYMMDD
15. O Curtail Amt 2 - After 126-136 11 9(9)V9(02)
16. O Curtail Amt 3 - Before 137-147 11 9(9)V9(02)
17. O Curtail Date 148-155 8 CCYYMMDD
18 O Curtail Amt 3 - After 156-166 11 9(9)V9(02)
19 O New Payment Amount 167-177 11 9(9)V9(02)
20. O New Loan Rate 178-183 6 (2)V9(04)
21. O Index Rate 184-189 6 (2)V9(04)
22. O Remaining Term 190-192 3 (3)
23. O Liquidation Amount 193-203 11 9(9)V9(02)
24. O Action Code 204-205 2 (02)
25. O Scheduled Principal 206-216 11 9(9)V9(02)
26. O Scheduled Interest 217-227 11 9(9)V9(02)
27. O Scheduled Ending Balance 228-238 11 9(9)V9(02)
28. O FILLER 239-240 2 (02)
Trailer Record
1. O Number of Records 001-006 6 9(06)
2. O FILLER 007-240 234 X(234)
Field Names and Descriptions:
D-1
Field Name Description
Master Servicer No. Hard code as "01" used internally
Unit Code Hard code as " " used internally
Loan Number Investor's loan number
Borrower Name Last name of borrower
Old Payment Amount P&I amount used for the applied payment
Old Loan Rate Gross interest rate used for the applied payment
Servicer Fee Rate Servicer's fee rate
Servicer Ending Balance Ending actual balance after a payment has been applied
Servicer Next Due Date Borrower's next due date for a payment
Curtailment Amount 1 - Before Amount of curtailment applied before the payment
Curtailment Date 1 Date of curtailment
should coincide with the
payment date applicable
to the curtailment
Curtailment Amount 1 - After Amount of curtailment applied after the payment
Curtailment Amount 2 - Before Amount of curtailment applied before the payment
Curtailment Date 2 Date of curtailment
should coincide with the
payment date applicable
to the curtailment
Curtailment Amount 2 - After Amount of curtailment applied after the payment
Curtailment Amount 3 - Before Amount of curtailment applied before the payment
Curtailment Date 3 Date of curtailment
should coincide with the
payment date applicable
to the curtailment
Curtailment Amount 3 - After Amount of curtailment applied after the payment
New Payment Amount For ARM, Equal, or
Buydown loans, when a
payment change occurs,
this is the scheduled
payment
New Loan Rate For ARM loans, when the
gross interest rate
change occurs, this is
the scheduled rate
D-2
Index Rate For ARM loans, the index
rate used in calculating
the new gross interest
rate
Remaining Term For ARM loans, the
number of months left on
the loan used to
determine the new P&I
amount
Liquidation Amount The payoff amount of the loan
Action Code For delinquent loans:
12 -- Relief Provisions
15 -- Bankruptcy/Litigation
20 -- Referred for Deed-in-lieu, short sale
30 -- Referred to attorney to begin
foreclosure
60 -- Loan Paid in full
70 -- Real Estate Owned
Scheduled Principal Amount of principal from
borrower payment due to
bondholder
Scheduled Interest Amount of interest from borrower payment due to
bondholder
Scheduled Ending Balance Ending scheduled balance of loan
FILLER Should be filled with spaces
D-3
EXHIBIT E
▇▇▇▇▇ Fargo Bank Master Servicing Default Reporting
DATA FIELD REQUIREMENTS
Data must be submitted to ▇▇▇▇▇ Fargo Bank in an Excel spreadsheet format with
fixed field names and data type. The Excel spreadsheet should be used as a
template consistently every month when submitting data.
Table: Delinquency
Name Type Character Size
Servicer Loan # Number (Double) 10
Investor Loan # Number (Double) 10
Servicer Investor # Text 3
Borrower Name Text 20
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇ 10
Due Date Date/Time 8
▇▇▇▇▇ Fargo Action Code Text 2
FC Approval Date Date/Time 8
File Referred to Attorney Date/Time 8
NOD Date/Time 8
Complaint Filed Date/Time 8
Sale Published Date/Time 8
Target Sale Date Date/Time 8
Actual Sale Date Date/Time 8
Loss Mit Approval Date Date/Time 8
Loss Mit Type Text 5
Loss Mit Code Number 2
Loss Mit Estimated Completion Date Date/Time 8
Loss Mit Actual Completion Date Date/Time 8
Loss Mit Broken Plan Date Date/Time 8
BK Chapter Text 6
BK Filed Date Date/Time 8
Post Petition Due Date/Time 8
Motion for Relief Date/Time 8
Lift of Stay Date/Time 8
Reason For Delinquency Text 10
Occupant Code Text 10
Eviction Start Date Date/Time 8
Eviction Completed Date Date/Time 8
List Price Currency 8
E-1
List Date Date/Time 8
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
Estimated REO Effective Date Date/Time 8
Actual REO Sale Date Date/Time 8
Servicer Comments Text 200
Modification Exp. Date Date/Time 8
▇▇▇▇▇▇ Mae Del. Status Code Text 2
▇▇▇▇▇▇ ▇▇▇ Del. Reason Code Text 2
BK Discharge/Dismissal Date Date/Time 8
Property Damage Date Date/Time 8
Property Repair Amount Currency 8
BK Hearing Date Date/Time 8
POC Date Date/Time 8
POC Amount Currency 8
BK Case Number Text 30 Maximum
F/C Sale Amount Currency 8
Redemption Exp. Date Date/Time 8
Property Value Date Date/Time 8
Current Property Value Currency 8
Repaired Property Value Currency 8
BPO Y/N Text 1
Current LTV Currency 8
Property Condition Code Text 2
Property Inspection Date Date/Time 8
MI Cancellation Date Date/Time 8
MI Claim Filed Date Date/Time 8
MI Claim Amount Currency 8
MI Claim Reject Date Date/Time 8
MI Claim Resubmit Date Date/Time 8
MI Claim Paid Date Date/Time 8
MI Claim Amount Paid Currency 8
Pool Claim Filed Date Date/Time 8
Pool Claim Amount Currency 8
Pool Claim Reject Date Date/Time 8
Pool Claim Paid Date Date/Time 8
Pool Claim Amount Paid Currency 8
Pool Claim Resubmit Date Date/Time 8
FHA Part A Claim Filed Date Date/Time 8
FHA Part A Claim Amount Currency 8
FHA Part A Claim Paid Date Date/Time 8
FHA Part A Claim Paid Amount Currency 8
FHA Part B Claim Filed Date Date/Time 8
FHA Part B Claim Amount Currency 8
E-2
FHA Part B Paid Date Date/Time 8
FHA Part B Claim Paid Amount Currency 8
V A Claim Filed Date Date/Time 8
V A Claim Paid Date Date/Time 8
V A Claim Paid Amount Currency 8
The Action Code Field should show the applicable numeric code to indicate that a
special action is being taken. The Action Codes are the following:
12-Relief Provisions (i.e. Sailors & Soldiers Relief Act)
15-Bankruptcy/Litigation
20-Loss Mitigation-Workout
30-Referred for Foreclosure
▇▇-▇▇▇▇▇▇
▇▇-▇▇▇▇▇▇▇▇▇▇
▇▇-▇▇▇-▇▇▇▇ for Sale
71- Third Party Sale/Condemnation
72-REO-Pending Conveyance-Pool Insurance claim filed
▇▇▇▇▇ Fargo Bank will accept alternative Action Codes to those above, provided
that the Codes are consistent with industry standards. If Action Codes other
than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank with a
description of each of the Action Codes prior to sending the file.
Description of Action Codes:
Action Code 12- To report a Securitized Loan for which the Borrower has been
granted relief for curing a delinquency.
Action Code 15 - To report a borrower filing bankruptcy and for all active
bankruptcies.
Action Code 20 - To report that the Borrower has agreed to some form of loss
mitigation/workout. Examples of these include Short Sale, Deed-in-Lieu of
Foreclosure, Formal Forbearance Agreements, Modifications, etc.
Action Code 30 - To report a loan that has been referred to attorney for
foreclosure.
Action Code 60 - To report that a Securitized Loan has been paid in full either
at, or prior to, maturity.
Action Code 65- To report that the Servicer is repurchasing the Securitized
Loan.
Action Code 70 -To report that a Securitized Loan has been foreclosed or a
deed-in-lieu of foreclosure has been accepted, and the Servicer, on behalf of
the owner of the Securitized Loan, has acquired the property and may dispose of
it.
E-3
Action Code 71 -To report that a Securitized Loan has been foreclosed and a
third party acquired the property, or a total condemnation of the property has
occurred.
Action Code 72 -To report that a Securitized Loan has been foreclosed, or a
deed-in-lieu has been accepted, and the property may be conveyed to the mortgage
insurer and the pool insurance claim has been filed. Also to be used for
completed HUDNA foreclosures where the property is pending conveyance to HUDNA.
The Loss Mit Type field should show the approved Loss Mitigation arrangement.
The following are acceptable:
*******
o ASU M - Approved Assumption
o BAP - Borrower Assistance Program
o CO - Charge Off
o DIL - Deed-in-Lieu
o FFA - Formal Forbearance Agreement
o MOD - Loan Modification
o PRE - Pre-Sale
o SS - Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
▇▇▇▇▇ 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. The
acceptable codes are:
o Mortgagor
o Tenant
o Unknown
o Vacant
E-4
The RFD field should show the Reason for Default. The acceptable codes are
below, or we can accept ▇▇▇▇▇▇ ▇▇▇ Delinquency Reason Codes.
Delinquency Code Delinquency Description
AB Abandonment of property
AA Arm Adjustment Problem
BK Bankruptcy
06 Borrower Complaint
BOC Borrower Out of Country
BU Business Failure
CL Casualty Loss
JC Change in Job
CD Chronic Delinquent
CSP Chronic Slow Pay
CI Commission Income
DIF Death in Family
08 Deceased
00 Defective Loan
DT Delinquent Property Tax
FIRE Disability
DS Disregard
Dl Divorce
DD Domestic Difficulties
EA Earthquake
ENV Environmental
ECO Excessive Credit Obligation
FA Family Death
FE Family Emergency
FI Family Illness
FD Financial Difficulty
05 Foreclosure or Borrower moved or skipped
FFP Formal Forbearance Plan
FR Fraud
G Garnishment
HU Hurricane
IT Illegal Transfer
B1 Illness of Borrower
IP Inability to Sell Property
IC Incarcerated
IN Income Reduction
LIT Involved in Litigation
IRS IRS ▇▇▇▇
▇▇ Judgment
LB Language Barrier
E-5
LM Legal Matter
LS Legal Separation
MA Marital Difficulties
ME Medical
03 Medical/Illness in Family
MD Mortgagor Death
ND Natural Disaster
NC No Contact with borrower
NSF Non Sufficient Funds
09 Other
01 Over Obligated
OV Overextended
PAD Payment Dispute
PP Payment Plan Established
POP Payoff Pending
PE Pending Sale
PS Previous Servicer Problem
PB Promise to Pay Broken
PR Property Damage
PD Property Devaluation
REFI Refinance Pending
RELO Relocation (Job Related)
JRP Relocation (Personal)l
RE Rental
10 REO
SI Seasonal Income
SE Self Employed
SP Servicing Problems
SR Slow Receivables
02 Unemployed/Reduced Income
UE Unemployment
UK Unknown
UTP Unwilling to Pay
E-6
EXHIBIT F
▇▇▇▇▇ FARGO BANK, N.A.
Form 332
Calculation of Realized Loss
Purpose
To provide the Servicer with a form for the calculation of any Realized Loss (or
gain) as a result of a Securitized Loan having been foreclosed and Liquidated.
Distribution
The Servicer will prepare the form in duplicate and send the original together
with evidence of conveyance of title and appropriate supporting documentation to
the Master Servicer with the Monthly Accounting Reports which supports the
Securitized Loan's removal from the Securitized Loan Activity Report. The
Servicer will retain the duplicate for its own records.
Due Date
With respect to any liquidated Securitized Loan, the form will be submitted to
the Master Servicer no later than the date on which statements are due to the
Master Servicer under Section 4.02 of this Agreement (the "Statement Date") in
the month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Securitized Loan; provided, that if
such Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Securitized
Loan, then the form will be submitted on the first Statement Date occurring
after the 30th day following receipt of final liquidation proceeds and
supporting documentation.
Preparation Instructions
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Securitized Loan.
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.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, canceled checks, etc., to
document the expense. Entries not properly documented will not be
reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Securitized Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
Credits
F-1
11-17. Complete as necessary. All line entries must be supported by copies of
the appropriate claims forms, statements, payment checks, etc. to
document the credit. If the Securitized Loan is subject to a Bankruptcy
Deficiency, the difference between the Unpaid Principal Balance of the
Note prior to the Bankruptcy Deficiency and the Unpaid Principal
Balance as reduced by the Bankruptcy Deficiency should be input on line
16.
18. The total of lines 11 through 17.
Total Realized Loss (or Amount of Any Gain)
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis ( )
F-2
▇▇▇▇▇ FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS
▇▇▇▇▇ FARGO BANK, N.A. Trust: ___________________________
Prepared by: __________________ Date: _______________
Phone: ______________________
Servicer Loan No. Servicer Name Servicer Address
▇▇▇▇▇ FARGO BANK, N.A.
Loan No._____________________________
Borrower's Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation and Acquisition Expenses:
Actual Unpaid Principal Balance of Securitized Loan $ _______________(1)
Interest accrued at Net Rate ________________(2)
Attorney's Fees ________________(3)
Taxes ________________(4)
Property Maintenance ________________(5)
MI/Hazard Insurance Premiums ________________(6)
Hazard Loss Expenses ________________(7)
Accrued Servicing Fees ________________(8)
Other (itemize) ________________(9)
_________________________________________ $ _________________
_________________________________________ __________________
_________________________________________ __________________
_________________________________________ __________________
Total Expenses $ ______________(10)
Credits:
Escrow Balance $ ______________(11)
HIP Refund ________________(12)
Rental Receipts ________________(13)
Hazard Loss Proceeds ________________(14)
Primary Mortgage Insurance Proceeds ________________(15)
Proceeds from Sale of Acquired Property ________________(16)
Other (itemize) ________________(17)
_________________________________________ ___________________
_________________________________________ ___________________
Total Credits $________________(18)
Total Realized Loss (or Amount of Gain) $________________(19)
F-3
EXHIBIT M-2
SERVICING AGREEMENT FOR SUBPRIME LOANS
THIS IS A SERVICING AGREEMENT, dated as of March 5, 2004 (the "Agreement"), and
is executed between Homestar Mortgage Acceptance Corp. (the "Owner") and Home
Star Mortgage Services LLC (the "Servicer").
W I T N E S S E T H:
WHEREAS, the Owner and the Servicer desire that, from and after the
Effective Date, the Mortgage Loans which are subject to this Agreement will be
serviced by the Servicer on behalf of the Owner in accordance with the terms and
provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are 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 meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, all
applicable federal, state and local laws and regulations and the standards
employed by the Servicer in servicing similar mortgage loans for its own
account, giving due consideration to those mortgage servicing practices and
procedures (including collection practices and procedures) of 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, giving due
consideration to customary and usual standards of practice of mortgage lenders
and loan servicers administering similar mortgage loans.
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 and Mortgage.
Agreement: This Servicing Agreement including all exhibits hereto,
amendments hereof and supplements hereto.
Ancillary Income: All income derived from the Mortgage Loans (other
than the (i) Servicing Fee or (ii) prepayment charges attributable to the
Mortgage Loans), including but not limited to late charges, any interest paid on
funds deposited in the Custodial Account and Escrow Account (other than interest
on escrowed funds required by law to be paid to the Mortgagor), fees
M-2-1
received with respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, optional insurance administrative fees
and all other incidental fees and charges.
ARM Loan: A first lien, conventional, 1-4 family residential Mortgage
Loan with an interest rate which adjusts from time to time in accordance with
the related Index and is subject to a Periodic Rate Cap and a Lifetime Rate Cap
and which may permit conversion to a fixed interest rate.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
legal holiday in the State of New York or the jurisdiction in which the Servicer
conducts its servicing activities, or (iii) a day on which banking and savings
and loan institutions in the State of 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.
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: The separate demand account or accounts created and
maintained pursuant to Section 4.04 which shall be entitled "HMAC 2004-1
Custodial Account in trust for [Owner], Owner of Whole Loan Mortgages" and shall
be established at a Qualified Depository.
Custodial Agreement: The Custodial Agreement dated as of March 1, 2004
among HSBC Bank (USA), the Owner and ▇▇▇▇▇ Fargo Bank, N.A., providing for the
custody of Mortgage Loan Documents.
Custodian: ▇▇▇▇▇ Fargo Bank, N.A, or such other Custodian as the Owner
shall designate.
Determination Date: The 15th day of any month, or if such 15th day is
not a Business Day, the first Business Day immediately preceding such 15th day.
Due Date: With respect to any Mortgage Loan, 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 such Remittance Date.
M-2-2
Effective Date: March 5, 2004.
Escrow Account: The separate trust account or accounts created and
maintained pursuant to Section 4.06 which shall be entitled "HMAC 2004-1 Escrow
Account, in trust for [Owner], Owner of Whole Loan Mortgages and various
Mortgagors" and shall be established at a Qualified Depository.
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
Mortgage Loan Document.
Escrow Mortgage Loan: The Mortgage Loans for which the Servicer has
established an Escrow Account for items constituting Escrow Payments.
Event of Default: Any one of the conditions or circumstances enumerated
in Section 9.01.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, 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.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, 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 principles and procedures,
consistently applied.
HUD: The United States Department of Housing and Urban Development or
any successor thereto.
Index: With respect to each ARM Loan, the index, as specified in the
related Mortgage Note, used to determine the Mortgage Interest Rate on each
Adjustment Date on such ARM Loan.
Index Rate: With respect to each ARM Loan, on each Adjustment Date, the
rate per annum equal to the Index, calculated as provided in the related
Mortgage Note.
M-2-3
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: 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, 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 the related Mortgage Note which is added to the Index in order to
determine the related Mortgage Interest Rate.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related Mortgage,
or an Assignment of Mortgage, has been or will be recorded in the name of MERS,
as nominee for the holder from time to time of the related Mortgage Note.
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 Servicer pursuant to Section 5.03 on the
Business Day immediately preceding the Remittance Date of the related month.
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 lien on 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 Rate 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.
M-2-4
Mortgage Loan Documents: With respect to each Mortgage Loan, the
original mortgage loan legal documents held by the Owner or by a Custodian on
the Owner's behalf.
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.
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
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Non-Escrow Mortgage Loan: Any Mortgage Loan which is not an Escrow
Mortgage Loan.
Nonrecoverable Advance: Any Monthly Advance previously made by the
Servicer pursuant to Section 5.03 or any Servicing Advance which, in the good
faith judgment of the Servicer, will not be ultimately recoverable by the
Servicer from Liquidation Proceeds or other proceeds of the related Mortgage
Loan. The determination by the Servicer that is has made a Nonrecoverable
Advance, shall be evidenced by an Officer's Certificate of the Servicer
delivered to the Owner and the NIMs Insurer and detailing the reasons for such
determination.
Officers' Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Vice President or an
Assistant 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 other party.
Owner: Homestar Mortgage Acceptance Corp., its successors in interest
and assigns.
Partial Principal Prepayment: A Principal Prepayment by a Mortgagor in
part but not in full of the outstanding principal balance of a Mortgage Loan.
Periodic Rate Cap: With respect to each ARM Loan, the maximum number of
percentage points by which the Mortgage Interest Rate may increase or decrease
on any Adjustment Date.
Permitted Investments: Any one or more of the following obligations or
securities:
M-2-5
(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 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 FDIC;
(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;
(iv) securities bearing interest or sold at a discount issued by
any corporation incorporated under the laws of the United States of America or
any state thereof that are rated in the highest rating categories by 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 Permitted Investments to exceed 10% of the
aggregate outstanding principal balances and amounts of all the Permitted
Investments;
(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) which are rated
in the 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 the NIMs
Insurer; 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
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 (which may
include repurchase obligations secured by collateral described in clause (i))
and which money market funds are rated in one of the two highest rating
categories by each Rating Agency;
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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; and
provided further that any such instrument or security must be payable on demand
or on a specified date not later than the Remittance Date on which amounts held
therein are required to be distributed.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
Prepayment Interest Shortfall: With respect to any Mortgage Loan that
was subject to a Full Principal Prepayment or Partial Principal Prepayment
during any Due Period, which Full Principal Prepayment or Partial Principal
Prepayment was applied to such Mortgage Loan prior to such Mortgage Loan's Due
Date in such Due Period, the amount of interest (adjusted to the applicable
Mortgage Loan Remittance Rate) that would have accrued on the amount of such
Full Principal Prepayment or Partial Principal Prepayment during the period
commencing on the date as of which such Full Principal Prepayment or Partial
Principal Prepayment was applied to such Mortgage Loan and ending on the day
immediately preceding such Due Date, inclusive.
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 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.
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-2 by Standard & Poor's Ratings Services or
Prime-1 by ▇▇▇▇▇'▇ Investors Service, Inc. (or a comparable rating if another
rating agency is specified by the Owner by written notice to the Servicer) at
the time any deposits are held on deposit therein.
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.
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Rating Agency: Standard & Poor's Ratings Service, a division of The
McGraw Hill Companies Inc., ▇▇▇▇▇'▇ Investors Service, Inc. or Fitch, Inc.
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 Subchapter M of Chapter
1, Subtitle A 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 18th day of any month, or if such 18th day is not
a Business Day, the first Business Day immediately preceding such 18th day. The
first Remittance Date shall occur on April 16, 2004.
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.
Servicer: Home Star Mortgage Services LLC, 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 the cost of (a) the
inspection, 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
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 Fee: With respect to each Mortgage Loan, the amount of the
annual 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 such Mortgage
Loan. Such fee shall be payable monthly, computed on the
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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 Payments, Liquidation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and Condemnation Proceeds collected by the
Servicer or as otherwise provided under Section 4.05.
Servicing Fee Rate: 0.50%.
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.
Trust Agreement: Any trust agreement, pooling and servicing agreement,
indenture or comparable documents by and among some or all of the Owner, the
Master Servicer and a Trustee (and which may include other parties) creating a
trust and/or otherwise effectuating a pass-through transfer.
Any capitalized terms used and not defined herein shall have the
meanings ascribed to such terms in the related Trust Agreement.
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, from and
after the Effective Date, pursuant to the terms of this Agreement. The Mortgage
Loans subject to this Agreement are described in the Mortgage Loan Schedule
attached hereto.
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 related
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 is vested in the Owner. All rights arising out of the Mortgage
Loans including 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 for the sole purpose of servicing the Mortgage Loans
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and such retention and possession by the Servicer is in a custodial capacity
only 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
reflect clearly 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
▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac, as applicable, including 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 optical imagery
techniques . The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by the Owner or its designee, upon
reasonable prior notice, 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 Section 11.10; 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 also 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 such assignee's
ownership of the related Mortgage Loans, and the previous Owner shall be deemed
released from its obligations hereunder with respect to such
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Mortgage Loans from and after the date of such sale or transfer without the
necessity of any action on the part of the Servicer. If the Servicer receives
notification of a transfer, including a final loan schedule, less than five (5)
Business Days before the last Business Day of the month, the Servicer's duties
to remit and report as required by Section 5 shall begin with the next Due
Period.
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 promptly after 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 promptly 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 promptly after receipt thereof, but in no event
later than 240 days after its execution, provided, however, that if delivery is
not completed within 240 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 obtain such documents and effect delivery as soon as possible after
its receipt thereof.
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. During the time that any such documentation is held by the Servicer,
such possession is in trust for the benefit of the Owner, and the Servicer shall
return such documentation to the Custodian upon the request of the Owner or when
the Servicer's need therefore no longer exists.
Section 2.06 Tax Service Contracts.
In the event that a Mortgage Loan is not subject to a fully assignable
life of loan tax servicer contract with Fidelity National Real Estate Tax
Service which is assignable to the Servicer or any subsequent Servicer without
the payment of any cost or fee, the Servicer shall acquire a tax service
contract for any such Mortgage Loan. The Servicer shall deliver an invoice to
the Owner with respect to the costs of acquiring such tax service contracts, and
Owner shall remit the cost of such tax service contracts to the Servicer within
ten business days of receipt of invoice.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SERVICER AND THE OWNER
Section 3.01 Representations of the Servicer.
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The Servicer hereby represents, warrants and covenants to the Owner
that, as of the Effective Date:
(a) The Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization 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 Servicer, and in any
event the Servicer 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 Servicer has the full corporate 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 Servicer 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 Servicer; and all requisite corporate action has been taken by
the Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its terms;
(b) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer, who is in the
business of servicing loans;
(c) There is no action, suit, proceeding or investigation pending
or threatened against the Servicer 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 Servicer, or in any
material impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted, or in any material liability on the
part of the Servicer, 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
Servicer to perform under the terms of this Agreement;
(d) 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 if required, such approval has been obtained prior to the
Effective Date;
(e) The Servicer is an approved seller/servicer of conventional
residential mortgage loans for ▇▇▇▇▇▇ Mae 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 Servicer is a HUD
approved mortgagee and is in good standing to 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 Servicer unable to comply
with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac eligibility requirements or which would require
notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
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(f) 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, in light of the circumstances under which they were made, not
misleading; and
(g) No Waiver of prepayment charges. The Servicer will not waive
any prepayment charge unless it is waived in accordance with the standard set
forth in Section 4.16.
Section 3.02 Representations of the Owner.
The Owner represents, warrants and covenants to the Servicer as of the
Effective Date:
(a) The Owner is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization;
(b) The Owner 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 Owner 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 Owner; and all requisite action has been taken by the Owner to
make this Agreement valid and binding upon the Owner in accordance with its
terms; and
(c) The Owner holds the entire legal and beneficial title to each
Mortgage Loan. The information provided to Servicer by Owner, and each Mortgage
File, is complete, true and accurate in all material respects.
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. If
reasonably required by the Servicer, the Owner shall furnish the Servicer with
any powers of attorney and other documents necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties under this
Agreement.
Consistent with the terms of this Agreement, the Servicer may, with the
consent of the NIMs Insurer, waive, modify or vary any term of any Mortgage Loan
or consent to the
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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 unless the related Mortgagor is in default with respect
to the Mortgage Loan or such default is, in the judgment of the Servicer,
reasonably foreseeable, 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) or change the final
maturity date on such Mortgage Loan, and, provided further, that the NIMs
Insurer's prior written consent shall be required for any modification, waiver
or amendment if the aggregate number of outstanding Mortgage Loans which have
been modified, waived or amended exceeds 5% of the number of Mortgage Loans
subject to this Agreement as of the Effective Date. In the event of any such
modification which permits the deferral of interest or principal payments on any
Mortgage Loan, the Servicer shall, on the Business Day immediately preceding the
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.
Notwithstanding anything in this Agreement to the contrary, if a REMIC
election is made, the Servicer shall not (unless the related Mortgagor is in
default with respect to the Mortgage Loan or such default is, in the judgment of
the Servicer, reasonably foreseeable) make or permit any modification, waiver or
amendment of any term of any Mortgage Loan that would both (i) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or
Treasury regulations promulgated thereunder) and (ii) cause the related REMIC to
fail to qualify as a REMIC under the Code or the imposition of any tax on
"prohibited transactions" or "contributions" after the "startup date" of such
REMIC under the REMIC Provisions.
The Servicer shall perform all of its servicing responsibilities
hereunder or may, with the consent of the NIMs Insurer, 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 approved 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 seller/servicers imposed by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac, or which would require
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notification to ▇▇▇▇▇▇ Mae 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, with the consent of the NIMs Insurer,
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, with the consent of the NIMs
Insurer, 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 or the NIMs Insurer, 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. Each subservicing agreement shall provide that a
successor servicer shall have the option to terminate such agreement with
payment of any fees if the predecessor Servicer is terminated or resigns.
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.
Continually from the date hereof until the date each Mortgage Loan
ceases to be subject to this Agreement, the Servicer shall proceed with
reasonable diligence and in accordance with Accepted Servicing Practices, to
collect all payments due under each Mortgage Loan when the same shall become due
and payable. Further, the Servicer shall 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 Loan Documents, will become due and payable to
the end that the installments payable
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by the Mortgagors will be sufficient to pay such charges as and when they become
due and payable.
Section 4.03 Realization Upon Defaulted Mortgage Loans.
The Servicer shall use its reasonable efforts, consistent with Accepted
Servicing Practices, 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. 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 any
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 and the NIMs Insurer with a written report of the
environmental inspection. After reviewing the environmental inspection report,
the Owner (with the consent of the NIMs Insurer) shall direct the Servicer as to
how the Servicer shall proceed with respect to the Mortgaged Property, and the
Servicer shall follow the Owner's directions with respect thereto.
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.
Any funds in a Custodial Account may be invested in Permitted Investments for
the benefit of the Owner (with any income earned thereon for the benefit of the
Servicer), provided that in the event that amounts on deposit in the Custodial
Account exceed the amount fully insured by the FDIC (the "Insured Amount"), the
Servicer shall be obligated to invest the excess amount over the Insured Amount
in Permitted Investments on the same Business Day as such excess amount becomes
present in the Custodial Account. Any such Permitted Investment shall mature no
later than the Business Day immediately preceding the related Remittance Date.
Funds deposited in the Custodial Account may be drawn on by the Servicer only in
accordance with Section 4.05. The creation of any Custodial Account shall be
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evidenced by an account certification in the form shown in Exhibit B hereto. The
original of such account certification shall be furnished to the Owner, or a
copy to the NIMs Insurer, upon reasonable request. The NIMs Insurer, Master
Servicer and the Trustee shall be notified of any change in the location of the
Custodial Account. 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 the Custodial Account within two (2)
Business Days of Servicer's receipt, and retain therein, the following
collections:
(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 related Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) any net amounts received by the Servicer 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 a restricted 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
other than proceeds to be held in a restricted 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;
(vii) any Monthly Advances as provided in Section 5.03;
(viii) any amounts required to be deposited in the Custodial Account
pursuant to Sections 4.01, 4.14, 6.01 and 6.02; and
(ix) with respect to each Full Principal Prepayment or Partial
Principal Prepayment, any Prepayment Interest Shortfall, to the extent of the
Servicer's aggregate Servicing Fee received with respect to the related Due
Period (the "Compensating Interest Amount").
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 Servicing Fees and
Ancillary Income need not be deposited by the Servicer in the Custodial Account
and may be retained by the Servicer as compensation.
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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 Monthly Advance was made;
(iii) to reimburse itself for unreimbursed Servicing Advances and
Monthly Advances and unpaid Servicing Fees, 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
and REO Disposition Proceeds 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) any Servicing Fee to which
the Servicer is entitled in accordance with the terms hereof to the extent such
Servicing Fee has not been paid to or retained by the Servicer;
(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 remove funds deposited in the Custodial Account in error by
the Servicer; and
(viii) 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. Any funds deposited in an Escrow Account
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 an account certification in the form
shown in Exhibit C. The original of such account certification 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
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deposited by the Servicer in the Escrow Account out of the Servicer's own funds,
with no right to reimbursement therefor.
The Servicer shall deposit in the Escrow Account or Accounts within two
(2) Business Days of Servicer'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 items as are required
under the terms of this Agreement; and
(ii) 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 the Servicer for any Servicing Advance made by
the 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 the
liquidation of a Mortgage Loan or an acquisition of REO Property;
(v) 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;
(vi) to remove funds placed in an Escrow Account in error by the
Servicer; and
(vii) 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.
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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, with regard to Escrow Mortgage Loans, 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 use commercially reasonable efforts
consistent with Accepted Servicing Practices to determine that any such payments
are made by the Mortgagor when due. With regard to Escrow Mortgage Loans, 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. With regard to Non-Escrow Mortgage Loans, the Servicer shall make
Servicing Advances to effect such payments within such time period as to avoid
the loss of the related Mortgaged Property by foreclosure of a tax or other lien
and to ensure that the Mortgaged Property is not uninsured for any reason.
The Servicer shall maintain in full force and effect each Primary
Mortgage Insurance Policy, that as of the Effective Date, was in full force and
effect with respect to any Mortgage Loan. Such coverage will be maintained and
will not be waived by the Servicer except in accordance with applicable law. The
Servicer shall not cancel, except in accordance with applicable law, or refuse
to renew any Primary Mortgage Insurance Policy that is in force as of the
Effective Date 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
noncoverage 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,
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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 and the NIMs Insurer of any such transfer.
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
and (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 and (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 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, 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 a restricted
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 as provided for under 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
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companies unless such companies currently reflect a General Policy Rating in
Best's Key Rating Guide of B:III or better and are licensed to do business in
the state wherein the property subject to the policy is located. All insurance
policies maintained pursuant to this Section 4.10 shall be maintained with a
Qualified Insurer.
Section 4.11 Blanket Hazard Insurance.
In the event that the Servicer shall obtain and maintain a blanket
policy with a Qualified Insurer insuring against fire and hazards of extended
coverage on all of the Mortgage Loans and provides coverage in an amount equal
to the amount required under Section 4.10, and otherwise complies with the
requirements of Section 4.10, the Servicer shall be deemed conclusively to have
satisfied its obligations under Section 4.10, it being understood and agreed
that such blanket 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 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 difference, if any, between the amount that would have
been payable under a policy complying with Section 4.10 and the amount paid
under such blanket policy. Upon the 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 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, with a Qualified
Insurer, a blanket Fidelity Bond and an errors and omissions insurance policy,
with broad coverage with responsible companies that meet the requirements of
▇▇▇▇▇▇ ▇▇▇ on all officers, employees and 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 acceptable to ▇▇▇▇▇▇
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Servicer shall, upon request of Owner and the NIMs Insurer, deliver to the Owner
and the NIMs Insurer 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
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written notice to the Owner and the NIMs Insurer. The Servicer shall notify the
Owner and the NIMs Insurer within five Business Days of receipt of notice that
such Fidelity Bond or insurance policy will be, or has been, materially modified
or terminated.
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 if a REMIC election has been made with respect to the
arrangement under which the Mortgage Loans and REO Property are held, unless (i)
the Servicer shall have delivered to the Owner an Opinion of Counsel acceptable
to the Owner and the NIMs Insurer, 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 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 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.
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The Servicer shall, either itself or through an agent selected by the
Servicer and in accordance with Accepted Servicing Practices, manage, conserve,
protect and operate each REO Property. 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 and the related terms and
conditions are results of arm's-length negotiation. 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,
Monthly Advances, made pursuant to Section 5.03, and unpaid Servicing Fees.
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 a frequency consistent with Accepted Servicing Practices. 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, upon reasonable request, 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 electronic data
received on the 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 electronic data received on the Mortgage Note and Mortgage
regarding the Mortgage Interest Rate adjustments. The Servicer shall promptly,
upon written request by the Owner, 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 and shall indemnify the Owner in respect of any liability as a
result of such shortfall; provided, however, that the Servicer shall not have an
obligation to pay any interest loss if the failure to appropriately adjust such
Mortgage Interest Rate is the direct result of inaccurate or incomplete
information in the electronic file provided in accordance with Section 2.01(iii)
hereof.
Section 4.15 Compliance with Applicable Laws.
All requirements of any federal, state or local law applicable to the
servicing of the Mortgage Loans will be complied with by the Servicer in all
material respects.
Section 4.16 Waiver of Prepayment Penalties.
Except as provided below, the Servicer or any designee of the Servicer
shall not waive any prepayment charge with respect to any Mortgage Loan. If the
Servicer or its designee fails to collect a prepayment charge at the time of the
related prepayment of any Mortgage Loan subject
M-2-24
to such prepayment charge, the Servicer shall pay to the Owner at such time (by
deposit to the Custodial Account) an amount equal to the amount of the
prepayment charge not collected. The Owner warrants that the schedule of
prepayment charges provided to the Servicer shall be complete, true and accurate
and may be relied on by the Servicer in its calculation of prepayment charges.
Notwithstanding the above, the Servicer or its designee may waive a prepayment
charge only if (i) the related prepayment is not the result of a refinancing by
the Servicer or its designee, (ii) such waiver relates to a defaulted Mortgage
Loan or a reasonably foreseeable default, (iii) such waiver is standard and
customary in servicing similar mortgage loans to the Mortgage Loans, and (iv)
such waiver, in the reasonable judgment of the Servicer, would maximize recovery
of total proceeds from the Mortgage Loan, taking into account the amount of such
prepayment charge and the related Mortgage Loan. If a prepayment charge is
waived as permitted by meeting the standards described above, then the Servicer
is required to pay the amount of such waived prepayment charge, for the benefit
of the holders of the Class P Certificates (as defined in the related Trust
Agreement), by depositing such amount into the Custodial Account together with
and at the time that the amount prepaid on the related Mortgage Loan is required
to be deposited into the Custodial Account.
Within 90 days of the earlier of discovery by the Servicer or receipt
of notice by the Servicer of the breach of the representation or covenant of the
Servicer set forth in this Section 4.16 which materially and adversely affects
the interests of the Holders of the Class P Certificates in any prepayment
charge, the Servicer shall remedy such breach as follows: if any of the
covenants made by the Servicer in this Section 4.16 is breached, the Servicer
must pay the amount of such waived prepayment charge, for the benefit of the
Holders of the Class P Certificates, by depositing such amount into the
Custodial Account.
ARTICLE V
PAYMENTS TO THE OWNER
Section 5.01 Remittances.
On each Remittance Date the Servicer shall remit, by wire transfer of
immediately available funds, to the Owner (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 Servicer is obligated to
distribute pursuant to Section 5.03, minus (c) any amounts attributable to
Principal Prepayments received after the end of the preceding month which
amounts shall be remitted on the following Remittance Date, together with the
Compensating Interest Amount required to be deposited in the Custodial Account
in connection with such Principal Prepayment in accordance with Section
4.04(ix); 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, which amounts shall be remitted on the related
Remittance Date next succeeding the Due Period for such amounts.
M-2-25
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
deposited in the Custodial Account 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. Such interest shall be remitted along with the distribution
payable on the next succeeding related Remittance Date. 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.
Not later than the tenth (10) calendar day, or if such day is not a
Business Day, the first Business Day immediately preceding the tenth calendar
day of the month of the related Remittance Date, the Servicer shall furnish to
the Owner and the NIMs Insurer, a monthly remittance advice in the format set
forth in Exhibit F attached hereto (or in such other electronic format mutually
agreed to by the Servicer and Owner), with regard to monthly loan remittance
data and Exhibit G (or in such other electronic format mutually agreed to by the
Servicer and Owner) with respect to defaulted mortgage loans, with a trial
balance report attached thereto, and such other loan level information
reasonably available to the Servicer and requested by the Owner. The Servicer
shall also furnish to the Owner and the NIMs Insurer (in such format mutually
agreed to by the Servicer and the Owner) a monthly report detailing loan level
prepayment charge collected and/or waived by the Servicer in accordance with
Section 4.16.
Section 5.03 Monthly Advances by the Servicer.
On the Business Day immediately preceding each Remittance Date, the
Servicer 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 Servicer 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 Owner
required to be made on such Remittance Date. The Servicer'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 Servicer determines, in its sole reasonable
opinion, that advances with respect to such Mortgage Loan are non-recoverable by
the Servicer from Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds, or otherwise with respect to a particular Mortgage Loan.
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In the event that the Servicer determines that any such advances are
non-recoverable, the Servicer shall provide the Owner with a certificate signed
by an officer of the Servicer evidencing such determination.
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 and the NIMs Insurer a liquidation report in the
format set forth in Exhibit H attached hereto (or in such other format mutually
agreed to by the Servicer and Owner) with respect to such Mortgaged Property.
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 shall, 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 shall 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. If 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 its underwriting practices and procedures. 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
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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, or shall cause, the Custodian to
release, in accordance with the terms of the Custodial Agreement, the related
Mortgage Loan Documents to the Servicer and the Servicer shall prepare and
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 to the Owner within
two Business Days the then outstanding principal balance of the related Mortgage
Loan by deposit thereof in the Custodial Account. The Servicer shall maintain
the Fidelity Bond and errors and omissions insurance 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, all as provided
in the Custodial Agreement, the Servicer may request the Custodian to release to
the Servicer 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
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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.
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 Ancillary Income
shall be retained by the Servicer. 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.
The Servicer shall deliver to the Owner and the Master Servicer, on or
before May 15, each year beginning May 15, 2005, an Officer's Certificate,
stating that (i) a review of the activities of the Servicer during the preceding
calendar year and of performance under this Agreement or similar agreements 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 its
responsibilities and obligations under this Agreement throughout such year, or,
if there has been a default in the fulfillment of any such responsibilities and
obligation, specifying each such default known to such officer and the nature
and status thereof and the action being taken by the Servicer to cure such
default.
Section 6.05 Annual Independent Certified Public Accountants'
Servicing Report.
On or before May 15th of each year beginning May 15, 2005, the Servicer
shall, or shall cause each related subservicer to, at its expense, 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 Owner 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 in compliance with
the Uniform 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 Owner and the Master Servicer a copy of a
Uniform Single Attestation Program Report from their independent public
accountant's on an annual basis, Servicer shall be considered to have fulfilled
its obligations under this Section 6.05.
Section 6.06 Owner's Right to Examine Servicer Records.
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The Owner or the NIMs Insurer 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, the NIMs Insurer 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 conduct any solicitation 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 mass mailings based
on commercially acquired mailing lists, newspaper, radio and television
advertisements, shall not constitute solicitation under this Section 6.08 nor is
the Servicer prohibited from responding to unsolicited requests or inquiries
made by a Mortgagor or an agent of a Mortgagor.
Section 6.09 Annual Certification and Indemnification.
(a) With respect to any Mortgage Loans that are subject to a
pass-through transfer or other securitization (a "Securitization") in which the
filing of a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification directly with the Securities and
Exchange Commission is required, by May 15th of each year or in connection with
any additional ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification required to be filed upon thirty
(30) days written request, an officer of the Servicer shall execute and deliver
an Officer's Certification substantially in the form attached hereto as Exhibit
E, to the entity filing the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
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Certification directly with the Securities and Exchange Commission (the
"Sarbanes Certifying Party") for the benefit of such entity and such entity's
affiliates and the officers, directors and agents of such entity.
(b) The Servicer shall indemnify and hold harmless the Sarbanes
Certifying Party 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 Sections 6.04, 6.05 and 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 Sarbanes Certifying Party, then the Servicer
agrees that it shall contribute to the amount paid or payable by the Sarbanes
Certifying Party as a result of the losses, claims, damages or liabilities of
the Sarbanes Certifying Party in such proportion as is appropriate to reflect
the relative fault of the Sarbanes Certifying Party on the one hand and the
Servicer on the other in connection with a breach of the Servicer's obligations
under Sections 6.04, 6.05 and 6.09 or the Servicer's negligence, bad faith or
willful misconduct in connection therewith.
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 or the NIMs Insurer upon
reasonable 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 or the NIMs Insurer 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 or
the NIMs Insurer. The Servicer agrees to execute and deliver all such
instruments and take all such action as the Owner, or the NIMs Insurer, 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,
and any agent of the Owner, and the NIMs Insurer (each an "Indemnified Person")
and hold each such Indemnified Person 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
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Indemnified Person may sustain in any way related to the failure of the Servicer
to perform its duties and service the Mortgage Loans in strict compliance with
the terms of this Agreement and for breach of any representation, warranty or
covenant of the Servicer contained herein. The Servicer shall notify the Owner
and the NIMs Insurer in accordance with Section 11.04 herein of any claim made
by a third party against the Servicer, the Owner or both, with respect to this
Agreement, the Mortgage Loans and/or any alleged act by Owner. The Owner shall
assume the defense of any such claim and pay all costs and expenses (including
reasonable legal fees and expenses) of defending the Servicer and itself against
any such claim other than (i) any loss, liability or expense related to the
Servicer's failure to perform Servicer's duties in strict compliance with this
Agreement; and (ii) any loss, liability or expense incurred by reason of the
Servicer's willful misfeasance, bad faith or negligence in the performance of
its duties hereunder or by reason of reckless disregard of its obligations and
duties hereunder. The Owner shall promptly pay, discharge and satisfy any
judgment or decree that may be entered against it in respect of such claim. If
in any event, the Servicer incurred any expenses or fees related to the above,
the Owner shall reimburse the Servicer within thirty (30) Business Days upon
receipt of an invoice from the Servicer of all amounts advanced by the Servicer
pursuant to the preceding sentence.
Section 8.02 Merger or Consolidation of the Servicer.
The Servicer shall 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
1-4 family mortgage loans, and (iii) which is a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac
approved seller/servicer in good standing. Furthermore, in the event the
Servicer transfers or otherwise disposes of all or substantially all of its
assets to an affiliate of the Servicer, such affiliate shall satisfy the
condition above, and shall also be fully liable to the Owner for all of the
Servicer's obligations and liabilities hereunder.
Section 8.03 Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors, 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
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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 its obligations in compliance with any
standard of care set forth in this Agreement, or any liability which would
otherwise be imposed under this Agreement. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer shall 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 and the
NIMs Insurer, 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, the Owner shall reimburse the Servicer within thirty
days of receipt by the Owner of a billing statement from the Servicer providing
reasonable detail with respect thereto, unless the Owner is disputing such
charges, in which event the Owner shall reimburse the Company as promptly as
feasible upon resolution of such dispute.
Section 8.04 Servicer Not to Resign.
The Servicer shall not assign this Agreement or resign from the
obligations and duties hereby imposed on it except by mutual consent of the
Servicer and the Owner, with the consent of the NIMs Insurer 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 and the NIMs Insurer
which Opinion of Counsel shall be in form and substance acceptable to the Owner
and the NIMs Insurer. 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. Notwithstanding the
foregoing, the Servicer, without the consent of the Owner, may retain
third-party contractors to perform certain servicing and loan administration
functions, including without limitation hazard insurance administration, tax
payment and administration, flood certification and administration, collection
services and similar functions, provided, however, that the retention of such
contractors by Servicer shall not limit the obligation of the Servicer to
service the Mortgage Loans pursuant to the terms and conditions of this
Agreement.
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 and the NIMs Insurer
have 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
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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 and
the NIMs Insurer.
ARTICLE IX
DEFAULT
Section 9.01 Events of Default.
Each of the following shall constitute an Event of Default on the part
of the Servicer:
(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 a period of two (2) Business Days after written notice thereof from the
Owner or the NIMs Insurer (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 by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement (other than with respect to Sections, 6.04,
6.05 and 6.09), the breach of which has a material adverse effect and which
continue unremedied for a period of sixty 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 the NIMs Insurer; 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, bankruptcy or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its obligations
or cease its normal business operations for two Business Days; or
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(vi) the Servicer ceases to meet the qualifications of a ▇▇▇▇▇▇ ▇▇▇
or ▇▇▇▇▇▇▇ Mac servicer; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or the Servicer attempts, without the consent of the
Owner and the NIMs Insurer, 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;
(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, Section 6.05 or Section 6.09 of
this Agreement which failure continues unremedied for a period of fifteen (15)
days after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by any party to this
Agreement, the NIMs Insurer or by any master servicer responsible for master
servicing the Mortgage Loans pursuant to a securitization of such Mortgage
Loans.
In each and every such case, so long as an Event of Default shall not
have been remedied, the Owner with the consent of the NIMs Insurer, by notice in
writing to the Servicer may (and at the request of the NIMs Insurer, shall), 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 under this Agreement
and in and to the Mortgage Loans and the proceeds thereof without compensating
the Servicer for the same.
From and 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 reasonably necessary or appropriate to
effect the purposes of such notice of termination, including, but not limited
to, notification to MERS 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, net
of unreimbursed Servicing Advances and Monthly Advances, 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.
Section 9.02 Waiver of Defaults.
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The Owner with the consent of the NIMs Insurer 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 the earliest to occur of the following: (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 any REO Property and the remittance of
all funds due hereunder; (ii) by 30 days' written mutual consent of the Servicer
and the Owner with the consent of the NIMs Insurer; (iii) termination by the
Owner pursuant to Section 9.01; and (iv) upon resignation of the Servicer in
accordance with Section 8.04;. Simultaneously with any such termination and, in
the case of (ii), (iii) or (iv) of the preceding sentence, the transfer of
servicing hereunder, the Servicer shall be entitled to be reimbursed for any
outstanding Servicing Advances and Monthly Advances as such amounts are received
from the related Mortgage Loans or as otherwise provided herein for a servicer
that has not been terminated. In no event shall the Servicer be entitled to any
termination fee or other compensation with respect to any termination of this
Agreement or the Servicer's rights hereunder, in whole or in part.
Section 10.02 Subservicing Termination Trigger.
In the event of a Subservicer Termination Trigger (as defined in the
related Trust Agreement), the Servicer shall terminate the related Subservicer
at the direction of the NIMS Insurer. Following such termination, the Servicer
shall have the right to service such Mortgage Loans without the use of a
Subservicer or to engage a new Subservicer acceptable to the NIMS Insurer
pursuant to a Subservicing Agreement, which is not in conflict with the terms of
this Agreement. Notwithstanding the foregoing, the Servicer shall retain the
ownership of all servicing rights with respect to the related Mortgage Loans and
no such direction of termination of a Subservicer shall be deemed to diminish
such ownership.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Successor to the Servicer.
Upon termination of the Servicer's responsibilities and duties under
this Agreement pursuant to Sections 8.04, 8.05 or 9.01, 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
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successor acceptable to the NIMs Insurer having the characteristics set forth in
Section 8.02 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. If the NIMs Insurer requests, the Master
Servicer shall appoint a successor servicer as provided in the preceding
sentence. 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 with the consent of the NIMs Insurer 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 termination of this Agreement
pursuant to Section 8.04, 8.05 or 9.01 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. All unreimbursed Monthly Advances and Servicing Advances shall be
paid by the Owner to the replaced servicer as such amounts are received from the
related Mortgage Loans or are otherwise reimbursable hereunder. The Servicer
shall execute and deliver such instruments and do such other things 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. In addition, the Servicer shall promptly take all
other actions reasonably requested by Owner or the NIMs Insurer with respect to
MERS Mortgage Loans and MERS to effectuate and evidence the transfer of
servicing and/or ownership thereof in accordance with the terms of this
Agreement.
Upon a successor's acceptance of appointment as such, the Owner shall
notify the Servicer of such appointment.
Section 11.02 Amendment.
M-2-37
This Agreement may be amended from time to time by the Servicer and the
Owner, with the consent of the NIMs Insurer, by written agreement signed by the
Servicer and the Owner.
Section 11.03 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE 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 11.04 Notices.
Any demands, notices or other communications permitted or required
hereunder shall be in writing and shall be deemed to have been duly 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 with respect to servicing issues:
Home Star Mortgage Services LLC
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
(ii) if to the Owner:
Homestar Mortgage Acceptance Corp.
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
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 11.05 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
M-2-38
Section 11.06 Exhibits and Schedules.
The exhibits, schedules and other addenda and supplements to this
Agreement are hereby incorporated and made a part hereof and are an integral
part of this Agreement.
Section 11.07 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
(vii) to the extent that some, but not all, of the Mortgage Loans
are transferred pursuant to Section 11.10 hereof, this Agreement shall be
construed as a separate agreement with respect to such Mortgage Loans and
references to the rights of the Owner shall apply separately with respect to
each Owner.
Section 11.08 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
M-2-39
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 11.09 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. Additionally, with respect to each
Mortgage Loan and the related Mortgagor, the Servicer and the Owner shall comply
with Title V of the Gramm ▇▇▇▇▇ ▇▇▇▇▇▇ Act of 1999 and all applicable
regulations promulgated thereunder.
Section 11.10 Assignment by the Owner.
The Owner shall have the right, with the consent of the NIMs Insurer,
without the consent of the Servicer but subject to the limits set forth in this
Agreement hereof, to assign 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 and the assignee or designee shall accede to the
rights and obligations hereunder of the Owner with respect to such Mortgage
Loans. The Servicer shall not be obligated to recognize any such assignee or
designee unless such person executes an assignment and assumption agreement
reasonably acceptable to the Servicer. All references to the Owner in this
Agreement shall be deemed to include its assignees or designees.
Section 11.11 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 11.12 Counterparts; 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, the NIMs Insurer
and the Owner and their respective successors and assigns.
Section 11.13 Entire Agreement.
Each of the Servicer and the Owner acknowledges 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 with respect to the matters set forth
herein, and shall be binding upon all successors of both parties.
M-2-40
Section 11.14 Further Agreements.
The Servicer and the Owner each agrees to execute and deliver to the
other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purpose of this
Agreement.
Section 11.15 Third Party Beneficiary.
For purposes of this Agreement, any Master Servicer and the NIMs
Insurer shall be considered a third party beneficiary to this Agreement entitled
to all the rights and benefits accruing to any Master Servicer and the NIMs
Insurer herein as if it were a direct party to this Agreement.
M-2-41
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.
HOMESTAR MORTGAGE ACCEPTANCE CORP.
By:
Name:
Title:
HOMESTAR MORTGAGE SERVICES, LLC
By:
Name:
Title:
M-2-42
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Available Upon Request
A-1
EXHIBIT B
FORMS OF CUSTODIAL ACCOUNT CERTIFICATIONS
CUSTODIAL ACCOUNT CERTIFICATION
, 20
Home Star Mortgage Services LLC hereby certifies that it has
established the account described below as a Custodial Account pursuant to
Section 4.04 of the Servicing Agreement, dated as of March 5, 2004.
Title of Account: HMAC 2004-_ in trust for the Purchaser and/or subsequent
purchasers of Mortgage Loans, and various Mortgagors - P & I
Address of office or branch of the Servicer at which Account is maintained:
HOME STAR MORTGAGE SERVICES LLC
Servicer
By:
Name:
Title:
B-1
EXHIBIT C
FORMS OF ESCROW ACCOUNT CERTIFICATIONS
ESCROW ACCOUNT CERTIFICATION
, 20
Home Star Mortgage Services LLC hereby certifies that it has
established the account described below as an Escrow Account pursuant to Section
4.06 of the Servicing Agreement, dated as of March 5, 2004.
Title of Account: HMAC 2004-_ in trust for the Purchaser and/or subsequent
purchasers of Mortgage Loans, and various Mortgagors - T & I
Address of office or branch of the Servicer at which Account is maintained:
HOME STAR MORTGAGE SERVICES LLC
Servicer
By:
Name:
Title:
C-1
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: ▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇., ▇▇ ▇▇▇▇▇
Attn: ________________
Re: Custodial Agreement dated as of March 1, 2004, among HSBC Bank
(USA), Homestar Mortgage Acceptance Corp. and ▇▇▇▇▇ Fargo
Bank, N.A., 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, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
____________________________________ _________________
D-1
Signature Date
Documents returned to Custodian:
____________________________________ _________________
Custodian
D-2
EXHIBIT E
FORM OF ▇▇▇▇▇▇▇▇-▇▇▇▇▇ CERTIFICATION
I, __________________________, certify to ▇▇▇▇▇ Fargo Bank, N.A., and
its officers, directors, agents and affiliates (the "Sarbanes Certifying
Party"), and with the knowledge and intent that they will rely upon this
certification, that:
(i) Based on my knowledge, the information relating to the
Mortgage Loans and the servicing thereof submitted by the Servicer to the
Sarbanes Certifying Party which is used in connection with preparation of the
reports on Form 8-K and the annual report on Form 10-K filed with the Securities
and Exchange Commission with respect to the Securitization, 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 light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
(ii) The servicing information required to be provided to the
Sarbanes Certifying Party by the Servicer under the Agreement has been provided
to the Sarbanes Certifying Party;
(iii) I am responsible for reviewing the activities performed by the
Servicer and by each related subservicer under the Agreement and based upon the
review required by the Agreement, and except as disclosed in the Annual
Statement of Compliance, the Annual Independent Public Accountant's Servicing
Report and all servicing reports, officer's certificates and other information
relating to the servicing of the Mortgage Loans submitted to the Sarbanes
Certifying Party, the Servicer and each related subservicer has, as of the date
of this certification, fulfilled its obligations under the Agreement; and
(iv) I have disclosed to the Sarbanes Certifying Party all
significant deficiencies relating to the Servicer's and/or each related
subservicer's compliance with the minimum servicing standards in accordance with
a review conducted in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar standard as set forth in the Agreement.
Capitalized words not otherwise defined herein have the meaning
assigned to them in the Servicing Agreement dated March 5, 2004 by and between
Homestar Mortgage Acceptance Corp. as Owner and Home Star Mortgage Services LLC
as Servicer.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Servicer.
Dated: By:
Name:
Title:
E-1
EXHIBIT F
MONTHLY SERVICER REPORTING FORMAT
(▇▇▇▇▇▇) FORMAT, SERVICER PERIOD REPORTING
The format should be:
1. Record length of 240
2. ASCII
3. All dates should have DD of "01".
COBOL
# M/O Field Name Position Length "Picture" Justify
1. O Master Servicer No. 001-002 2
2. O Unit Code 003-004 2
3. M Loan Number 005-014 10 X(10)
4. O Borrower Name 015-034 20 X(20)
5. O Old Payment Amount 035-045 11 S(9)V9(02)
6. O Old Loan Rate 046-051 6 9(2)V9(04)
7. O Servicer Fee Rate 052-057 6 9(2)V9(04)
8. M Servicer Ending Balance 058-068 11 S9(9)V9(02)
9. M Servicer Next Due Date 069-076 8 CCYYMMDD
10. O Curtail Amt 1 - Before 077-087 11 S9(9)V9(02)
11. O Curtail Date 1 088-095 8 CCYYMMDD
12. O Curtail Amt 1 - After 096-106 11 S9(9)V9(02)
13 O Curtail Amt 2 - Before 107-117 11 S9(9)V9(02)
14. O Curtail Date 118-125 8 CCYYMMDD
15. O Curtail Amt 2 - After 126-136 11 9(9)V9(02)
16. O Curtail Amt 3 - Before 137-147 11 9(9)V9(02)
17. O Curtail Date 148-155 8 CCYYMMDD
18 O Curtail Amt 3 - After 156-166 11 9(9)V9(02)
19 O New Payment Amount 167-177 11 9(9)V9(02)
20. O New Loan Rate 178-183 6 (2)V9(04)
21. O Index Rate 184-189 6 (2)V9(04)
22. O Remaining Term 190-192 3 (3)
23. O Liquidation Amount 193-203 11 9(9)V9(02)
24. O Action Code 204-205 2 (02)
25. O Scheduled Principal 206-216 11 9(9)V9(02)
26. O Scheduled Interest 217-227 11 9(9)V9(02)
27. O Scheduled Ending Balance 228-238 11 9(9)V9(02)
28. O FILLER 239-240 2 (02)
Trailer Record
1. O Number of Records 001-006 6 9(06)
2. O FILLER 007-240 234 X(234)
F-1
Field Names and Descriptions:
Field Name Description
Master Servicer No. Hard code as "01" used internally
Unit Code Hard code as " " used internally
Loan Number Investor's loan number
Borrower Name Last name of borrower
Old Payment Amount P&I amount used for the applied payment
Old Loan Rate Gross interest rate used for the applied payment
Servicer Fee Rate Servicer's fee rate
Servicer Ending Balance Ending actual balance after a payment has been applied
Servicer Next Due Date Borrower's next due date for a payment
Curtailment Amount 1 - Before Amount of curtailment applied before the payment
Curtailment Date 1 Date of curtailment should coincide with the
payment date applicable to the curtailment
Curtailment Amount 1 - After Amount of curtailment applied after the payment
Curtailment Amount 2 - Before Amount of curtailment applied before the payment
Curtailment Date 2 Date of curtailment should coincide with the
payment date applicable to the curtailment
Curtailment Amount 2 - After Amount of curtailment applied after the payment
Curtailment Amount 3 - Before Amount of curtailment applied before the payment
Curtailment Date 3 - Date of curtailment should coincide with the payment date
applicable to the curtailment
Curtailment Amount 3 - After Amount of curtailment applied after the payment
New Payment Amount For ARM,
Equal, or Buydown loans,
when a payment change
occurs, this is the
scheduled payment
F-2
New Loan Rate For ARM loans,
when the gross interest
rate change occurs, this is
the scheduled rate
Index Rate For ARM loans, the index rate used in
calculating the newgross interest rate
Remaining Term For ARM loans, the number of months left on
the loan used todetermine the new P&I amount
Liquidation Amount The payoff amount of the loan
Action Code For delinquent loans:
12 -- Relief Provisions
15 -- Bankruptcy/Litigation
20 -- Referred for Deed-in-lieu, short sale
30 -- Referred to attorney to begin foreclosure
60 -- Loan Paid in full
70 -- Real Estate Owned
Scheduled Principal Amount of principal from borrower payment due to
bondholder
Scheduled Interest Amount of interest from borrower payment due to
bondholder
Scheduled Ending Balance Ending scheduled balance of loan
FILLER Should be filled with spaces
F-3
EXHIBIT G
Data must be submitted to ▇▇▇▇▇ Fargo Bank in an Excel spreadsheet format with
fixed field names and data type. The Excel spreadsheet should be used as a
template consistently every month when submitting data for all loans that are 60
days + delinquent and/or in bankruptcy, foreclosure or REO.
Table: Delinquency
Name Type Max Character Size
---- ---- ------------------
Servicer Loan # Number 10
Investor Loan # Number 10
Servicer Investor # Text 3
Borrower Name Text 20
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇ 5
Due Date Date/Time 8
Loan Type Text 8
BK Filed Date Date/Time 8
BK Chapter Text 6
BK Case Number Text 30 Maximum
Post Petition Due Date/Time 8
Motion for Relief Date/Time 8
Lift of Stay Date/Time 8
BK Discharge/Dismissal Date Date/Time 8
Loss Mit Approval Date Date/Time 8
Loss Mit Type Text 5
Loss Mit Code Number 2
Loss Mit Estimated Completion Date Date/Time 8
Loss Mit Actual Completion Date Date/Time 8
FC Approval Date Date/Time 8
File Referred to Attorney Date/Time 8
NOD Date/Time 8
Complaint Filed Date/Time 8
Scheduled Sale Date Date/Time 8
Actual Sale Date Date/Time 8
F/C Sale Amount Currency 8
Eviction Start Date Date/Time 8
Eviction Completed Date Date/Time 8
List Price Currency 8
List Date Date/Time 8
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
G-1
Estimated REO Closing Date Date/Time 8
Actual REO Sale Date Date/Time 8
Occupant Code Text 10
Property Condition Code Text 2
Property Inspection Date Date/Time 8
Property Value Date Date/Time 8
Current Property Value Currency 8
Repaired Property Value Currency 8
Current LTV Currency 8
FNMA Delinquent Status Code Text 2
FNMA Delinquent Reason Code Text 3
If applicable:
MI Cancellation Date Date/Time 8
MI Claim Filed Date Date/Time 8
MI Claim Amount Currency 8
MI Claim Reject Date Date/Time 8
MI Claim Resubmit Date Date/Time 8
MI Claim Paid Date Date/Time 8
MI Claim Amount Paid Currency 8
Pool Claim Filed Date Date/Time 8
Pool Claim Amount Currency 8
Pool Claim Reject Date Date/Time 8
Pool Claim Paid Date Date/Time 8
Pool Claim Amount Paid Currency 8
Pool Claim Resubmit Date Date/Time 8
FHA Part A Claim Filed Date Date/Time 8
FHA Part A Claim Amount Currency 8
FHA Part A Claim Paid Date Date/Time 8
FHA Part A Claim Paid Amount Currency 8
FHA Part B Claim Filed Date Date/Time 8
FHA Part B Claim Amount Currency 8
FHA Part B Claim Paid Date Date/Time 8
FHA Part B Claim Paid Amount Currency 8
VA Claim Filed Date Date/Time 8
VA Claim Paid Date Date/Time 8
VA Claim Paid Amount Currency 8
G-2
The Loss Mit Type field should show the approved Loss Mitigation arrangement.
The following are acceptable:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
▇▇▇▇▇ 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. The
acceptable codes are:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property. The acceptable codes are:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
G-3
The FNMA Delinquent Reason Code field should show the Reason for Default. The
following FNMA Delinquency Reason Codes to be used are below.
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
G-4
The FNMA Delinquent Status Code field should show the Status of Default. The
following FNMA Delinquency Status Codes to be used are below.
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
G-5
EXHIBIT H
▇▇▇▇▇ FARGO BANK, N.A.
Form 332
Calculation of Realized Loss
Purpose
To provide the Servicer with a form for the calculation of any Realized Loss (or
gain) as a result of a Mortgage Loan having been foreclosed and Liquidated.
Distribution
The Servicer will prepare the form in duplicate and send the original together
with evidence of conveyance of title and appropriate supporting documentation to
the Master Servicer with the Monthly Accounting Reports which supports the
Mortgage Loan's removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
Due Date
With respect to any liquidated Mortgage Loan, the form will be submitted to the
Master Servicer no later than the date on which statements are due to the Master
Servicer under Section 4.02 of this Agreement (the "Statement Date") in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if such
Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Mortgage Loan,
then the form will be submitted on the first Statement Date occurring after the
30th day following receipt of final liquidation proceeds and supporting
documentation.
Preparation Instructions
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
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.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, canceled checks, etc., to
document the expense. Entries not properly documented will not be
reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
Credits
H-1
11-17. Complete as necessary. All line entries must be supported by copies of
the appropriate claims forms, statements, payment checks, etc. to
document the credit. If the Mortgage Loan is subject to a Bankruptcy
Deficiency, the difference between the Unpaid Principal Balance of the
Note prior to the Bankruptcy Deficiency and the Unpaid Principal
Balance as reduced by the Bankruptcy Deficiency should be input on line
16.
18. The total of lines 11 through 17.
Total Realized Loss (or Amount of Any Gain)
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis ( ).
▇-▇
▇▇▇▇▇ ▇▇▇▇▇ BANK, N.A.
CALCULATION OF REALIZED LOSS
▇▇▇▇▇ FARGO BANK, N.A. Trust: ___________________________
Prepared by: __________________ Date: _______________
Phone: ______________________
Servicer Loan No. Servicer Name Servicer Address
▇▇▇▇▇ FARGO BANK, N.A.
Loan No._____________________________
Borrower's Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation and Acquisition Expenses:
Actual Unpaid Principal Balance of Mortgage Loan $ _______________(1)
Interest accrued at Net Rate ________________(2)
Attorney's Fees ________________(3)
Taxes ________________(4)
Property Maintenance ________________(5)
MI/Hazard Insurance Premiums ________________(6)
Hazard Loss Expenses ________________(7)
Accrued Servicing Fees ________________(8)
Other (itemize) ________________(9)
_________________________________________ $ _________________
_________________________________________ __________________
_________________________________________ __________________
_________________________________________ __________________
Total Expenses $ ______________(10)
Credits:
Escrow Balance $ ______________(11)
HIP Refund ________________(12)
Rental Receipts ________________(13)
Hazard Loss Proceeds ________________(14)
Primary Mortgage Insurance Proceeds ________________(15)
Proceeds from Sale of Acquired Property ________________(16)
Other (itemize) ________________(17)
_________________________________________ ___________________
_________________________________________ ___________________
Total Credits $________________(18)
Total Realized Loss (or Amount of Gain) $________________(19)
H-3
EXHIBIT N
CUSTODIAL AGREEMENT
THIS CUSTODIAL AGREEMENT (as amended and supplemented from time to
time, the "Agreement"), dated as of November 19, 2004, by and among HSBC Bank
USA, 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"), HOMESTAR
MORTGAGE ACCEPTANCE CORP., as depositor (together with any successor in
interest, the "Company"), ▇▇▇▇▇ FARGO BANK, N.A., as master servicer and
securities administrator (together with any successor in interest or successor
under the Pooling and Servicing Agreement referred to below, the "Master
Servicer") and ▇▇▇▇▇ FARGO BANK, N.A., as custodian (together with any successor
in interest or any successor appointed hereunder, the "Custodian").
WITNESSETH THAT:
---------------
WHEREAS, the Company, the Master Servicer, the Securities Administrator
and the Trustee have entered into a Pooling and Servicing Agreement, dated as of
November 1, 2004, relating to the issuance of HMAC Mortgage Trust 2004-6,
Asset-Backed Pass-Through Certificates, Series 2004-6 (as in effect on the date
of this Agreement, the "Original Pooling and Servicing Agreement," and as
amended and supplemented from time to time, the "Pooling and Servicing
Agreement'); and
WHEREAS, the Custodian has agreed to act as agent for the Trustee for
the purposes of receiving and holding certain documents and other instruments
delivered by the Company or the Master Servicer under the Pooling and Servicing
Agreement, all upon the terms and conditions and subject to the limitations
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Trustee, the Company, the
Master Servicer and the Custodian hereby agree as follows:
SECTION 1.
DEFINITIONS
1.1 Capitalized terms used in this Agreement and not defined herein
shall have the meanings assigned in the Original Pooling and Servicing
Agreement, unless otherwise required by the context herein.
SECTION 2.
CUSTODY OF MORTGAGE DOCUMENTS
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
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(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.
2.2 RECORDATION OF ASSIGNMENTS. Within 30 days after the Closing Date,
the Company shall complete or cause to be completed the Assignments in the name
of "HSBC Bank USA, National Association, as trustee under the Pooling and
Servicing Agreement relating to Homestar Mortgage Acceptance Corp., Asset-Backed
Pass-Through Certificates, Series 2004-6" (or shall prepare or cause to be
prepared new forms of Assignment in the name of the Trustee). For each Mortgaged
Property in a state, if any, which is specifically excluded from the Opinion of
Counsel delivered by the Company to the Trustee and the Custodian, each such
Assignment shall be recorded in the appropriate public office for real property
records, and returned to the Custodian, at no expense to the Custodian.
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 the Trustee
and the Insurer 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 the Schedule attached hereto (the
"Mortgage Loan Schedule").
(b) Not later than 180 days after the Closing Date, the Custodian shall
review the Mortgage Files as provided in Section 2.02 of the Pooling and
Servicing Agreement and deliver to the Company, the Trustee and the Insurer a
Final Certification in the form annexed hereto as Exhibit Three evidencing the
completeness of the Mortgage Files.
(c) 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 collectibility,
insurability, effectiveness or suitability of any of the documents in any
Mortgage File.
Upon receipt of written request from the Trustee, the Custodian shall
as soon as practicable supply the Trustee with a list of all of the documents
relating to the Mortgage Loans missing from the Mortgage Files.
2.4 CUSTODIAN TO COOPERATE: RELEASE OF MORTGAGE FILES. Upon receipt of
notice from the Trustee or the Master Servicer of a repurchase of a Mortgage
Loan pursuant to the Mortgage Loan Purchase Agreement or the Pooling and
Servicing Agreement, and that the purchase price therefore has been deposited in
the Custodial Account or the Certificate Account, then the Custodian agrees to
promptly release the related Mortgage File to the Seller or other party at the
direction of the Trustee.
Upon the Custodian's receipt of a request for release (a "Request for
Release") substantially in the form of Exhibit F to the Pooling and Servicing
Agreement signed by a servicing officer of the Servicer or a Servicing Officer
of the Master Servicer stating that it has received payment in full of a
Mortgage Loan or that payment in full will be escrowed in a
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manner customary for such purposes, the Custodian agrees promptly to release to
the Servicer or the Master Servicer the related Mortgage File. The Company shall
deliver to the Custodian and the Custodian agrees to accept 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 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 the Mortgage File be released to
the 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 Servicer. The
Servicer shall cause the Mortgage File or any document therein so released to be
returned to the Custodian when the need therefore by the 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 Custodial
Account or the Certificate 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 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 Servicer is required to deliver to the Custodian a
Request for Release, the Servicer shall deliver two copies of the Request for
Release if delivered in hard copy or the Servicer may furnish such Request for
Release electronically in a form acceptable 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 and the related Mortgage Note shall be
endorsed without recourse by the Trustee and be returned to the Seller. 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 Servicer.
2.5 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, to the extent provided in the Servicing Agreement, shall enforce the
obligation of the Servicer 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.
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2.6 ENDORSEMENT OF MORTGAGE NOTES. Within 45 days after the Closing
Date, the Custodian shall endorse each Mortgage Note in the name of "HSBC Bank
USA, National Association, as trustee under the Pooling and Servicing Agreement
relating to Homestar Mortgage Acceptance Corp., Asset-Backed Pass-Through
Certificates, Series 2004-6".
SECTION 3.
CONCERNING THE CUSTODIAN
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 Company, the Servicer or the Master Servicer or otherwise
released from the possession of the Custodian.
3.2 CUSTODIAN MAY OWN CERTIFICATES. The Custodian in its individual or
any other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not Custodian.
3.3 MASTER SERVICER TO PAY CUSTODIAN'S FEES AND EXPENSES. The Master
Servicer 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, and the Master Servicer will pay or reimburse the
Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Custodian in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith or to the extent that such cost or expense is
indemnified by the Trust Fund pursuant to the Pooling and Servicing Agreement.
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 Company, the Master Servicer, the Securities Administrator 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.
N-4
The Trustee may, with or without cause, upon at least 60 days notice
remove and discharge the Custodian from the performance of its duties 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 hereof and shall be
unaffiliated with the Servicer or the Company.
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 Company 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 Company and the
Master Servicer.
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.
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.
3.7 STANDARD OF CARE; INDEMNIFICATION. Neither the Custodian nor any
parent, affiliate, subsidiaries, directors, officers, agents or employees shall
have any liability arising from or related to this Custodial Agreement or any
related document or agreement, except for any such liability resulting from the
Custodian's negligence or willful misconduct. The Custodian shall be indemnified
and held harmless from the Trust Fund to the extent provided in Section 6.03 of
the Pooling and Servicing Agreement.
3.8 RELIANCE; LIMITATION OF CUSTODIAN'S DUTIES. The Custodian shall
have no duties or obligations other than those specifically set forth herein or
as may subsequently be agreed to in writing by the parties hereto. The
Custodian: (a) may consult with counsel and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel; and shall not be liable for any error of judgment, or for
any act done or step taken or omitted by it, in good faith, except for any such
liability resulting from the Custodian's negligence or willful misconduct; (b)
shall use the same degree of care and skill as is reasonably expected of
financial institutions acting in comparable capacities, provided that this
subsection shall not be interpreted to impose upon the Custodian a higher
standard of care than that set forth above; (c) will be regarded as making no
representations and having no responsibilities (except as expressly set forth
herein) as to the validity, sufficiency, value, genuineness, ownership or
transferability of the Mortgage Loans, and will not be required to and will not
make any
N-5
representations as to the validity, value, genuineness, ownership or
transferability of the Mortgage Loans; (d) may rely on and shall be protected in
acting upon any certificate, instrument, opinion, notice, letter, telegram,
facsimile or other document delivered to it and in good faith believed by it to
be genuine and to have been signed by the proper party or parties; and (e) may
rely on and shall be protected in acting upon the written instructions of the
Company or the Trustee and such employees and representatives of the Company or
the Trustee as the Company or the Trustee may hereinafter designate in writing.
SECTION 4.
MISCELLANEOUS PROVISIONS
4.1. 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),
in which case the notice will be deemed delivered when received. Any notice to
the Insurer shall be delivered at Ambac Assurance Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
4.2. 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 Company, the Master Servicer, the
Securities Administrator, 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.
4.3. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
4.4. 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 Company and at the Trust's expense, but only upon
direction accompanied by an Opinion of Counsel reasonably satisfactory to the
Company 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.
N-6
4.5 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.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
Address: HSBC Bank USA, National Association,
not individually but solely as Trustee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By:______________________________
Attention: Name:
Telecopy: Title:
Confirmation:
Address: HOMESTAR MORTGAGE ACCEPTANCE CORP.
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ By:______________________________
Name:
Title:
Address: ▇▇▇▇▇ FARGO BANK, N.A., as Master
Servicer
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By:______________________________
Name:
Title:
Address: ▇▇▇▇▇ FARGO BANK, N.A., as Custodian
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇:_____________________________
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name:
Title:
N-8
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the ___ day of November 2004 before me, a notary public in and for
said State, personally appeared ____________________, known to me to be a
_______________ of HSBC Bank USA, National Association, a national banking
association that executed the within instrument, and also known to me to be the
person who executed it on behalf of said corporation and acknowledged to me that
such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
[SEAL]
N-9
STATE OF MARYLAND )
) ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the ___ day of November 2004 before me, a notary public in and for
said State, personally appeared ______________, known to me to be an
___________________ of ▇▇▇▇▇ Fargo Bank, N.A., a national banking association
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said 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]
N-10
STATE OF NEW JERSEY )
)ss.:
COUNTY OF BERGEN )
On the ___ day of November 2004 before me, a notary public in and for
said State, personally appeared _______________, known to me to be a
_____________ of Homestar Mortgage Acceptance Corp., one of the corporations
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public
[Notarial Seal]
N-11
STATE OF MARYLAND )
)ss.:
COUNTY OF ▇▇▇▇▇▇ )
On the ___ day of November 2004 before me, a notary public in and for
said State, personally appeared ______________, known to me to be an
___________________ of ▇▇▇▇▇ Fargo Bank, N.A., a national banking association
that executed the within instrument, and also known to me to be the person who
executed it on behalf of said 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
[Notarial Seal]
N-12
EXHIBIT ONE
FORM OF INITIAL CERTIFICATION
November 1, 2004
HSBC Bank USA, National Association Homestar Mortgage Acceptance Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Homestar Mortgage Acceptance Corp.,
HMAC Mortgage Trust 2004-6, Asset-Backed Pass-Through Certificates,
Series 2004-6
Re: Custodial Agreement, dated as of November 19, 2004, by and
among HSBC Bank USA, National Association, Homestar Mortgage
Acceptance Corp. and ▇▇▇▇▇ Fargo Bank, N.A. relating to HMAC
Mortgage Trust 2004-6, ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2004-6
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement and subject to Section 2.02 of the Pooling and Servicing Agreement,
dated as of November 1, 2004 among Homestar Mortgage Acceptance Corp., HSBC Bank
USA, National Association, and ▇▇▇▇▇ Fargo Bank, N.A., the undersigned, as
custodian (the "Custodian"), hereby certifies that as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or listed on the attachment hereto) it has reviewed the Mortgage File, and has
determined that: (1) all documents required to be included in the Mortgage File
are in its possession and (2) such documents have been reviewed by it and appear
regular on their face and relate to such Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Custodial and Pooling and Servicing Agreements. The Custodian
makes no representations as to and shall not be responsible to verify: (i) the
validity, legality, sufficiency, enforceability, due authorization,
recordability or genuineness of any of the documents contained in each Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan, or (iii) the existence of any assumption, modification, written
assurance or substitution agreement with respect to any Mortgage File if no such
documents appear in the Mortgage File delivered to the Custodian.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Custodial Agreement.
▇▇▇▇▇ FARGO BANK, N.A., as Custodian
By:__________________________
Name:
Title:
EXHIBIT TWO
FORM OF CUSTODIAN INTERIM CERTIFICATION
_______________, 2004
HSBC Bank USA, National Association Homestar Mortgage Acceptance Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Homestar Mortgage Acceptance Corp.,
HMAC Mortgage Trust 2004-6, Asset-Backed Pass-Through Certificates,
Series 2004-6
Re: Custodial Agreement, dated as of November 19, 2004, by and
among HSBC Bank USA, National Association, Homestar Mortgage
Acceptance Corp. and ▇▇▇▇▇ Fargo Bank, N.A. relating to HMAC
Mortgage Trust 2004-6, ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2004-6
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement, the undersigned, as Custodian, hereby certifies that it has received
a Mortgage File to the extent required pursuant to Section 2.01(b) of the
Pooling 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, N.A., as Custodian
By:________________________
Name:
Title:
EXHIBIT THREE
FORM OF FINAL CERTIFICATION
_______, 20__
HSBC Bank USA, National Association Homestar Mortgage Acceptance Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Homestar Mortgage Acceptance Corp.,
HMAC Mortgage Trust 2004-6, Mortgage Pass-Through Certificates, Series
2004-6
Re: Custodial Agreement, dated as of November 19, 2004, by and
among HSBC Bank USA, National Association, Homestar Mortgage
Acceptance Corp. and ▇▇▇▇▇ Fargo Bank, N.A. relating to HMAC
Mortgage Trust 2004-6, ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2004-6
Ladies and Gentlemen:
In accordance with Section 2.3 of the above-captioned Custodial
Agreement and subject to Section 2.02 of the Pooling and Servicing Agreement,
the undersigned, as Custodian, hereby certifies that it has received a Mortgage
File with respect to each Mortgage Loan listed in the Mortgage Loan Schedule
containing with respect to each Mortgage Loan:
(i) the original Mortgage Note (including all riders thereto)
bearing all intervening endorsements necessary to show a complete chain
of endorsements from the original payee, endorsed "Pay to the order of
_____without recourse", via original signature, and, if previously
endorsed, signed in the name of the last endorsee by a duly qualified
officer of the last endorsee or, with respect to any Mortgage Loan as
to which the original Mortgage Note has been permanently lost or
destroyed and has not been replaced, a Lost Note Affidavit. If the
Mortgage Loan was acquired by the last endorsee in a merger, the
endorsement must be by "[name of last endorsee], successor by merger to
[name of the predecessor]." If the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another
name, the endorsement must be by "[name of last endorsee], formerly
known as [previous name]." The Custodian has endorsed the Mortgage Note
in the name of "HSBC Bank USA, National Association, as trustee under
the Pooling and Servicing Agreement relating to Homestar Mortgage
Acceptance Corp., Asset-Backed Pass-Through Certificates, Series
2004-6" for each Mortgage Note;
(ii) The original recorded Mortgage, noting the presence of
the MIN of the Mortgage Loan and either language indicating that the
Mortgage Loan is a MOM loan or if the Mortgage Loan was not a MOM loan
at origination, the original Mortgage and the assignment thereof to
MERS, with evidence of recording indicated thereon; provided that if
such document is not included because of a delay by the public
recording office where such document has been delivered for recordation
or such office as a matter of policy does not return the original of
such document or if such original Mortgage has been lost, the Seller
shall include or cause to be included a copy thereof certified by the
appropriate recording office, if available;
(iii) the original Assignment of Mortgage in blank, in form
and substance acceptable for recordation in the jurisdiction in which
the related mortgage property is located and signed in the name of the
Last Endorsee by an authorized officer; unless the Mortgage Loan is
registered on the MERS system;
(iv) The original intervening Assignments, if any and if
available, with evidence of recording thereon, showing an unbroken
chain of title to the Mortgage from the originator thereof to Person
assigning it to the Trustee (or to MERS, if the Mortgage Loan is
registered on the MERS(R) System); provided that if such document is
not included because of a delay by the public recording office where
such document has been delivered for recordation or such office as a
matter of policy does not return the original of such document, the
Seller shall include or cause to be included a copy thereof certified
by the appropriate recording office, if available;
(v) The originals of each assumption, modification or
substitution agreement, if any and if available, relating to the
Mortgage Loan; and
(vi) the original title insurance policy, or, if such policy
has not been issued, any one of an original or a copy of the
preliminary title report, title binder or title commitment on the
Mortgaged Property with the original policy of the insurance to be
delivered promptly following the receipt thereof;
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, N.A., as Custodian
By:_____________________________
Name:
Title:
EXHIBIT O
[RESERVED]
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EXHIBIT P
form of mortgage loan purchase agreement
This MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement"), dated as of
November 1, 2004 "(the Cut-off Date"), is made between Opteum Financial
Services, LLC (the "Seller") and Homestar Mortgage Acceptance Corp. (the
"Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller owns the Mortgage Loans indicated on the Mortgage
Loan Schedule attached as Exhibit 1 hereto (the "Mortgage Loans"), including
rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise, and (b) the proceeds of any insurance policies
covering the Mortgage Loans;
WHEREAS, the parties hereto desire that the Seller sell the Mortgage
Loans to the Purchaser (other than the servicing rights with respect thereto),
and that the Seller make certain representations and warranties and undertake
certain obligations with respect to the Mortgage Loans;
WHEREAS, pursuant to the terms of a Pooling and Servicing Agreement, to
be dated as of the Cut-off Date (the "Pooling and Servicing Agreement"), among
the Purchaser, as seller, HSBC Bank USA, National Association, as trustee (the
"Trustee") and ▇▇▇▇▇ Fargo Bank, N.A., as master servicer and securities
administrator (the "Master Servicer"), the Purchaser will issue Asset-Backed
Pass-Through Certificates, Series 2004-6 (the "Certificates");
NOW, THEREFORE, inconsideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. For all purposes of this Mortgage Loan
Purchase Agreement, except as otherwise expressly provided herein or unless the
context otherwise requires, capitalized terms not otherwise defined herein shall
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
All other capitalized terms used herein shall have the meanings specified
herein.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1. Sale of Mortgage Loans.
(a) The Seller, by the execution and delivery of this
Agreement, does hereby sell, assign, set over, and otherwise convey to
the Purchaser, without recourse but subject to the terms of this
Agreement, (i) all of its right, title and interest in the Mortgage
Loans
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identified on Exhibit 1 as of the Closing Date, including the related
Cut-off Date Principal Balance, all interest accruing thereon on and
after the Cut-off Date, and all collections of interest and principal
due after the Cut-off Date, other than the servicing rights with
respect thereto, (ii) the Seller's interest in any insurance policies
and (iii) all proceeds of the foregoing.
(b) In connection with any transfer pursuant to this Section
2.1, the Seller agrees (i) to cause the books and records of the Seller
to indicate that the Mortgage Loans have been sold to the Purchaser
pursuant to this Agreement and (ii) to deliver to the Purchaser the
Mortgage Loan Schedule which is attached as Exhibit 1 to this
Agreement, and to the Pooling and Servicing Agreement, as which is
incorporated by reference herein.
(c) In connection with such conveyances by the Seller, the
Seller shall on behalf of the Purchaser deliver to, and deposit with
the Trustee, on or before the Closing Date, the following documents or
instruments with respect to each Mortgage Loan:
(i) the original Mortgage Note (including all riders
thereto) bearing all intervening endorsements necessary to
show a complete chain of endorsements from the original payee,
endorsed "Pay to the order of _____without recourse", via
original signature, and, if previously endorsed, signed in the
name of the last endorsee by a duly qualified officer of the
last endorsee or, with respect to any Mortgage Loan as to
which the original Mortgage Note has been permanently lost or
destroyed and has not been replaced, a Lost Note Affidavit
with indemnity. If the Mortgage Loan was acquired by the last
endorsee in a merger, the endorsement must be by "[name of
last endorsee], successor by merger to [name of the
predecessor]." If the Mortgage Loan was acquired or originated
by the last endorsee while doing business under another name,
the endorsement must be by "[name of last endorsee], formerly
known as [previous name]." Within 45 days after the Closing
Date, the Seller shall endorse or cause to be endorsed the
Mortgage Note in the name of "HSBC Bank USA, National
Association, as trustee under the Pooling and Servicing
Agreement relating to Homestar Mortgage Acceptance Corp.,
Asset-Backed Pass-Through Certificates, Series 2004-6" for
each Mortgage Note;
(ii) The original recorded Mortgage, noting the
presence of the MIN of the Mortgage Loan and language
indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan, with evidence of recording
indicated thereon; provided that if such document is not
included because of a delay by the public recording office
where such document has been delivered for recordation or such
office as a matter of policy does not return the original of
such document or if such original Mortgage has been lost, the
Seller shall include or cause to be included a copy thereof
certified by the appropriate recording office, if available;
(iii) unless the Mortgage Loan is registered on the
MERS(R) System, an original duly executed Assignment of the
Mortgage in recordable form from the Seller or the originator,
as applicable, to "HSBC Bank USA, National Association, as
trustee under the Pooling and Servicing Agreement relating to
Homestar Mortgage Acceptance Corp., Asset-Backed Pass-Through
Certificates, Series 2004-6" for each Mortgage Note;
(iv) The original intervening Assignments, if any and
if available, with evidence of recording thereon, showing an
unbroken chain of title to the Mortgage from the originator
thereof to Person assigning it to the Trustee (or to MERS, if
the Mortgage Loan is registered on the MERS(R) System and
noting the presence of a MIN); provided that if such document
is not included because of a delay by the public recording
office where such document has been delivered for recordation
or such office as a matter of policy does not return the
original of such document, the Seller shall include or cause
to be included a copy thereof certified by the appropriate
recording office, if available;
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(v) The originals of each assumption, modification or
substitution agreement, if any and if available, relating to
the Mortgage Loan; and
(vi) the original title insurance policy, or, if such
policy has not been issued, any one of an original or a copy
of the preliminary title report, title binder or title
commitment on the Mortgaged Property with the original
policy of the insurance to be delivered promptly following
the receipt thereof;
The Seller need not cause to be recorded any Assignment in any
jurisdiction under the laws of which, as evidenced by an Opinion of Counsel
delivered by the Seller to the Trustee, the Certificate Insurer and the Rating
Agencies, the recordation of such Assignment is not necessary to protect the
Trustee's interest in the related Mortgage Loan; PROVIDED, HOWEVER,
notwithstanding the delivery of any Opinion of Counsel, each Assignment shall be
submitted for recording by the Seller, at no expense to the Trust or the
Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders
of Certificates evidencing at least 25% of the Voting Rights, (ii) the
occurrence of a Event of Default under the Pooling and Servicing Agreement,
(iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the
Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02
of the Pooling and Servicing Agreement and (v) if the Seller is not the Master
Servicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to
the Mortgagor under the related Mortgage. Upon receipt of written notice from
the Trustee that recording of the Assignments is required pursuant to one or
more of the conditions set forth in the preceding sentence, the Seller shall be
required to deliver such Assignments for recording as provided above, promptly
and in any event within 30 days following receipt of such notice. The Seller
shall furnish the Trustee, or its designated agent, with a copy of each
Assignment submitted for recording. In the event that any such Assignment is
lost or returned unrecorded because of a defect therein, the Seller shall
promptly have a substitute Assignment prepared or have such defect cured, as the
case may be, and thereafter cause each such Assignment to be duly recorded.
To the extent an Assignment referred to in clause (c)(iii)
above is required to be recorded (including, without limitation, Assignments for
states which are not covered by the
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Opinion of Counsel in the prior paragraph), the Seller at its own expense shall
complete and submit it for recording in the appropriate public office for real
property records, with such Assignment completed in favor of the Trustee. While
such Assignment to be recorded is being recorded, the Trustee shall retain a
photocopy of such Assignment. If any Assignment is lost or returned unrecorded
to the Trustee because of any defect therein, the Seller is required to prepare
a substitute Assignment or cure such defect, as the case may be, and the Seller
shall cause such substitute Assignment to be recorded in accordance with this
paragraph.
Notwithstanding anything to the contrary contained in this
Section 2.1, in those instances where the public recording office retains the
original Mortgage after it has been recorded, the Seller shall be deemed to have
satisfied its obligations hereunder upon delivery to the Trustee of a copy of
such Mortgage certified by the public recording office to be a true and complete
copy of the recorded original thereof.
If any Assignment is lost or returned unrecorded to the
Trustee because of any defect therein, the Seller shall prepare a substitute
Assignment or cure such defect, as the case may be, and the Seller shall cause
such Assignment to be recorded in accordance with this Section 2.1.
If a defect in any Mortgage File is discovered which
materially and adversely affects the value of the related Mortgage Loan, or the
interests of the Certificateholders in such Mortgage Loan, including if any
document required to be delivered to the Trustee has not been delivered
(provided that a Mortgage File will not be deemed to contain a defect for an
unrecorded Assignment under clause (c) (iii) above if the Seller has submitted
such Assignment for recording pursuant to the terms of the following paragraph),
the Seller shall either (i) purchase such Mortgage Loan from the Trust Fund at
the Purchase Price within 90 days after the date on which the Seller was
notified of such defect; 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, or cure such defect, or (ii) substitute a Qualified
Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and
conditions set forth in Section 3.1 hereof for substitutions.
The Seller shall exercise its best reasonable efforts to
deliver or cause to be delivered to the Custodian on behalf of the Trustee
within 120 days of the Closing Date, with respect to the Mortgage Loans, the
original or a photocopy of the title insurance policy with respect to each such
Mortgage Loan assigned to the Purchaser pursuant to this Section 2.1.
In connection with the assignment of any Mortgage Loan
registered on the MERS(R) System, the Seller further agrees that it will cause,
at the Seller's own expense, as of the Closing Date, the MERS(R) System to
indicate that such Mortgage Loans have been assigned by the Seller 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 and the
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Purchaser further agree that they will not, and will not permit the Master
Servicer to, alter the codes referenced in this paragraph with respect to any
Mortgage Loan during the term of this Agreement unless and until such Mortgage
Loan is repurchased in accordance with the terms of this Agreement.
The Purchaser hereby acknowledges its acceptance of all right,
title and interest to the Mortgage Loans and other property, now existing and
hereafter created, conveyed to it pursuant to this Section 2.1, other than with
respect to servicing rights with respect to the Mortgage Loans. 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.
(i) The parties hereto intend that the transaction
set forth herein constitutes a sale by the Seller to the Purchaser of
all the Seller's right, title and interest in and to the Mortgage Loans
(other than with respect to the related servicing rights) and other
property as and to the extent described above. In the event the
transaction set forth herein is deemed not to be a sale, the Seller
hereby grants to the Purchaser a security interest in (i) all of the
Seller's right, title and interest in, to and under the Mortgage Loans
(other than with respect to the related servicing rights), (ii) all of
Seller's interest in any insurance policies and (iii) all proceeds of
the foregoing and such other property, to secure all of the Seller's
obligations hereunder, and this Agreement shall constitute a security
agreement under applicable law. The Seller agrees to take or cause to
be taken such actions and to execute such documents, including without
limitation the filing of all necessary UCC-1 financing statements filed
in the State of Delaware (which shall have been submitted for filing as
of the Closing Date with respect to the aggregate Stated Principal
Balance of the Mortgage Loans), any continuation statements with
respect thereto and any amendments thereto required to reflect a change
in the name or corporate structure of the Seller or the filing of any
additional UCC-1 financing statements due to the change in the
principal office of the Seller, as are necessary to perfect and protect
the Purchaser's interests in each Mortgage Loan and the proceeds
thereof.
Payment of Purchase Price for the Mortgage Loans.
The purchase price for the Mortgage Loans (other than
with respect to the servicing rights thereto) shall be the sum of (1)
$[____________] and (2) a 100% Percentage Interest in the Class P,
Class C, Class R and Class R-X Certificates.
In consideration of the sale of the Mortgage Loans
from the Seller to the Purchaser on the Closing Date, the Purchaser
shall (1) pay to the Seller on the Closing Date by wire transfer of
immediately available funds to a bank account designated by the Seller,
the amount specified above in clause (a)(1) and (2) cause the transfer
to the Seller of the Certificates in clause (a)(2).
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ARTICLE I
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 1.1. SELLER REPRESENTATIONS AND WARRANTIES. The Seller hereby
represents and warrants to the Purchaser as of the Closing Date (or if otherwise
specified below, as of the date so specified) that:
(a) with respect to the Seller:
(i) the Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware;
(ii) the Seller has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and
perform its obligations under this Agreement;
(iii) the execution and delivery by the Seller of this Agreement
have been duly authorized by all necessary corporate action on the
part of the Seller; and neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein
contemplated hereby, 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 certificate of incorporation 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;
(iv) 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;
(v) 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);
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(vi) to the best of the Seller's knowledge, there are no actions,
litigation, suits or proceedings pending or 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 if determined adversely to
the Seller would reasonably be expected to 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
(vii) the Seller's chief executive office and principal place of
business are located in the County of Bergen in the State of New
Jersey.
(b) with respect to the Mortgage Loans:
(i) as of the Cut-off Date, the information set forth in the
Mortgage Loan Schedule hereto is true and correct in all material
respects;
(ii) immediately prior to the transfer to the Purchaser, the
Seller was the sole owner of beneficial title and holder of, and had
good title to, 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, the Mortgage
Loans and Mortgage Notes were not subject to any assignment or pledge
and the Seller has full right and authority to sell or assign the same
pursuant to this Agreement;
(iii) no selection procedure reasonably believed by the Seller to
be adverse to the interests of the Certificateholders or the Trust was
utilized in selecting the Mortgage Loans;
(iv) 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);
(v) the information set forth under the caption "The Mortgage
Pool--General" and "--Mortgage Loan Characteristics" in the Prospectus
Supplement is true and correct in all material respects;
(vi) as of the Cut-off Date, no Mortgage Loan is 30 or more days
past due. The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property, directly or indirectly, for
the payment of any amount required by the Mortgage Note or Mortgage;
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(vii) there are no delinquent taxes or assessment liens against
the related Mortgaged Property;
(viii) no default, breach, violation or waiver exists under the
mortgage documents, and no modifications to the mortgage documents
have been made that have not been reflected in the Mortgage Loan
Schedule;
(ix) all buildings upon, or comprising part of, the Mortgaged
Property are insured by an insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇▇▇ 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, and such insurer is licensed to do business in
the state where the Mortgaged Property is located. All such insurance
policies contain a standard mortgagee clause naming the originator,
its successors and assigns as mortgagee and Seller has received no
notice that all premiums thereon have not been paid. The amount of the
Mortgage Loan covered by these insurance policies is in accordance
with the standards of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. If upon origination
of the Mortgage Loan, the Mortgaged Property was, or was subsequently
deemed to be, in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards
(and such flood insurance has been made available), which require
under applicable law that a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance
Administration (or any successor thereto) be obtained, such flood
insurance policy is in effect which policy is with a generally
acceptable carrier in an amount representing coverage not less than
the least of (A) the principal balance of the related Mortgage Loan,
(B) the minimum amount required to compensate for damage or loss on a
replacement cost basis, or (C) the maximum amount of insurance that is
available under the Flood Disaster Protection Act of 1973. The
Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at 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 Mortgagor's cost and expense and to obtain
reimbursement therefor from the Mortgagor;
(x) 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) in
compliance with any and all applicable "doing business" and licensing
requirements of the state wherein the Mortgaged Property is located;
(xi) as of the Closing Date, there is no mechanics' lien or claim
for work, labor or material affecting the Mortgaged Property except
those which are insured against by the title insurance policy;
(xii) as of the Closing Date, there is no valid offset, defense
or counterclaim to any Mortgage Note or Mortgage, and, to the best of
the Seller's
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knowledge or the knowledge of the related servicer, no such offset, defense
or counterclaim has been asserted with respect thereto;
(xiii) as of the Closing Date, the physical property subject to
any Mortgage is free of material damage and is in good repair and, to
the best of the Seller's knowledge or the knowledge of the related
servicer, there is no proceeding for the total or partial condemnation
thereof and no eminent domain proceedings are pending;
(xiv) all improvements which were considered in determining the
appraised value of the related 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, except as allowed by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
guidelines;
(xv) at the time of origination, no improvement located on or
being part of the Mortgaged Property was in violation of any
applicable zoning and subdivision laws or ordinances;
(xvi) to the best of the Seller's knowledge, 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, have been made or obtained from the
appropriate authorities;
(xvii) as of the origination date of each Mortgage Loan, the
related Mortgaged Property is lawfully permitted to be occupied under
applicable law;
(xviii) each Mortgage Loan is and will be a mortgage loan arising
out of the originator's practice in accordance with the underwriting
guidelines of the related originator. The Seller has no knowledge of
any fact that should have led it to expect at the time of the initial
creation of an interest in the Mortgage Loan that such Mortgage Loan
would not be paid in full when due;
(xix) each original Mortgage has been recorded or is in the
process of being recorded in the appropriate jurisdictions wherein
such recordation is required to perfect the lien thereof for the
benefit of the Trust Fund;
(xx) if an Assignment is included in the Mortgage File, such
Assignment is in recordable form and is acceptable for recording under
the laws of the jurisdiction in which the Mortgaged Property is
located;
(xxi) the related Mortgage File contains each of the documents
and instruments specified;
(xxii) the Mortgage Loans are being serviced according to the
guidelines of the servicer;
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(xxiii) the Mortgage Note and the Mortgage have not been altered
or modified in any material respect, except by a written instrument
which has been recorded, and the substance of any such alteration or
modification has been approved by the title insurer, to the extent
required by the related policy. No instrument of alteration or
modification has been executed by the Seller or any other person in
the chain of title from the Seller, and no Mortgagor has been
released, in whole or in part, except in connection with an assumption
agreement approved by the title insurer to the extent required by the
related policy;
(xxiv) the Mortgage has not been satisfied, subordinated,
rescinded or canceled, 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
satisfaction, subordination, rescission, cancellation or release;
(xxv) a lender's title policy or binder, or other assurance of
title insurance customary in a form acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac was issued at origination and each policy or binder is
valid and remains in full force and effect;
(xxvi) the Mortgaged Property consists of a contiguous parcel of
real property with single-family residence erected thereon, or a two-
to four- family dwelling, or an individual condominium unit, or an
individual unit in a planned unit development or a de minimis planned
unit development. To the best of the Seller's knowledge, the Mortgaged
Property does not consist of any of the following property types: (a)
co-operative units, (b) mobile homes and (c) manufactured homes (as
defined in the ▇▇▇▇▇▇ ▇▇▇ Originator-Servicer's Guide), except when
the appraisal indicates that the home is of comparable construction to
a stick or beam construction home, is readily marketable, has been
permanently affixed to the site and is not in a mobile home "park."
The Mortgaged Property is either a fee simple estate or a residential
lease. If any of the Mortgage Loans are secured by a leasehold
interest, with respect to each leasehold interest: the use of
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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;
(xxvii) the Mortgage File contains an appraisal of the related
Mortgaged Property which satisfied the standards of ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇ Mac and was made and signed, prior to the approval of the
Mortgage Loan application, by a qualified appraiser, duly appointed by
the Seller, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof, whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan and who met the minimum qualifications of ▇▇▇▇▇▇ Mae and
▇▇▇▇▇▇▇ Mac. Each appraisal of the Mortgage Loan was made in
accordance with the relevant provisions of the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989;
(xxviii) 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
Purchaser to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor;
(xxix) none of the Mortgage Loans are "buydown" mortgage loans or
graduated payment mortgage loans;
(xxx) the Mortgage is a legal, valid, existing and enforceable
first lien on the Mortgaged Property, including all improvements on
the Mortgaged Property, if any, 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
being 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 which do not
materially and adversely affect the Appraised Value of the Mortgaged
Property and (3) other matters to which like properties are commonly
subject which do not materially and adversely affect the benefits of
the security intended to be provided by the Mortgage. The Seller has
full right to sell and assign the Mortgage to the Purchaser;
(xxxi) each Mortgagor who is a party to the Mortgage Note is a
natural person;
(xxxii) all requirements of any federal, state or local law
(including usury, truth in lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity, disclosure or
recording, predatory and abusive lending laws) applicable to the
acquisition, origination and servicing of such Mortgage Loan have been
complied with in all material respects;
(xxxiii) 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
("HOEPA"), (b) loans subject to, or in violation of, any applicable
state or local law, ordinance or regulation similar to HOEPA or (c)
classified and/or defined as a "high cost home loan" under any
federal, state or local law or ordinance or regulation;
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(xxxiv) none of the Mortgage Loans secured by Mortgaged Property
in the States of Georgia, New York, Arkansas, Kentucky and Florida is
a "high cost home loan" as defined in the Georgia Fair Lending Act, as
amended (the "Georgia Act"), the Arkansas Home Loan Protection Act, as
amended (the "Arkansas Act"), Kentucky Revised Statutes ss.360.100, as
amended (the "Kentucky Act"), the Florida Home Loan Protection Act
ss.494.007 (the "Florida Act"), and the New York Predatory Lending
Law, codified as N.Y. Banking Law ss.6-I, N.Y. Gen. Bus. Law ss.771-a,
and N.Y. Real Prop. Acts LAW ss.1302 (together, the "New York Act"),
respectively;
(xxxv) none of the Mortgage Loans are subject to the New York
Act; none of the Mortgage Loans secured by Mortgaged Property in the
District of Columbia is a "covered loan" as defined in the District of
Columbia Home Loan Protection Act ss.26-1151.01 (the "D.C. Act"); none
of the Mortgage Loans secured by Mortgaged Property in Maine is a
"high-rate, high-fee mortgage" as defined in Maine Consumer Credit
Code -- Truth In Lending ss.8-103 (the "Maine Act"); none of the
Mortgage LoanS secured by Mortgaged Property in Nevada is a "home
loan" as defined in Nevada Revised Statutes title 52, as amended by
Assembly ▇▇▇▇ No. 284, 72nd Session (Nevada 2003) (the "Nevada Act");
and all the Mortgage Loans that are subject to the Georgia Act, the
New York Act, the Arkansas Act, the Kentucky Act, the Florida Act, the
D.C. Act, the Maine Act and the Nevada Act comply with the
requirements of each such legislation;
(xxxvi) the information set forth in the Mortgage Loan Schedule
with respect to the Prepayment Charges is true and correct in all
material respects and each Prepayment Charge is enforceable and was
originated in compliance with all applicable federal, state, and local
laws;
(xxxvii) no Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in Standard & Poor's LEVELS(R)
Glossary, Version 5.6 Revised, Appendix E, attached hereto as Exhibit
2) and no Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the "Georgia Fair Lending Act";
(xxxviii) to the best of the Seller's knowledge, there is no
breach, default, 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;
(xxxix) the related Mortgage Note and Mortgage are genuine and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally
and by general equity principles (regardless of whether such
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enforcement is considered in a proceeding in equity or at law). To the
best of Seller's knowledge, all parties to the Mortgage Note and
Mortgage had legal capacity to execute the Mortgage Note and Mortgage
and each Mortgage Note and Mortgage have been duly and properly
executed by such parties;
(xl) the proceeds of each Mortgage Loan have been fully
disbursed, and except with respect to any escrow holdbacks as set
forth in the underwriting guidelines of the related originator, 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 disbursement from any escrow funds therefore have been
complied with;
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(xli) the related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including (1) in the case of Mortgage
designated as a deed of trust, by trustee's sale, and (2) otherwise by
judicial foreclosure;
(xlii) the Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee
thereunder, except as may be limited by applicable law; and
(xliii) with respect to each adjustable-rate Mortgage Loan, all
adjustments to the Mortgage Rate and monthly payment have been done in
accordance with the terms of the related Mortgage Note.
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive the sale of the Mortgage Loans from the
Seller to the Purchaser and shall 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. It is understood by the parties hereto that a breach of the
representations and warranties made Section 3.1(b) (xxxii), (xxxiii), (xxxiv),
(xxxv), (xxxvi), (xxxvii) or (xliii) will be deemed to materially and adversely
affect the value of the related Mortgage Loan or the interest of the Purchaser.
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
clause (b) above which breach materially and adversely affects the value of the
Mortgage Loans or the interests of the Purchaser, the Certificateholders, the
Certificate Insurer 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 clause (b) above,
the Seller shall, within 90 days from the date that the Seller was notified or
otherwise obtained knowledge of such breach, either (i) cure such breach in all
material respects or (ii) purchase such Mortgage Loan from the Trust Fund at the
Purchase Price; provided that if such breach would cause the Mortgage Loan to be
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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; and provided, further, that (A) in the case of a breach of the
representation and warranty concerning the Mortgage Loan Schedule contained in
clause (b)(i), if such breach relates to any field on the Mortgage Loan Schedule
which identifies any Prepayment Charge or (B) in the case of a breach of
representation (xxxvi) or the unenforceability of any Prepayment Charge due to
subsequent changes in law, 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), and the Seller
shall have no right to repurchase (or, as detailed below, substitute for) such
Mortgage Loan. However, subject to the approval of the Purchaser and except as
specified above, the Seller shall have the option to substitute a Qualified
Substitute Mortgage Loan or Loans for such Mortgage Loan if such substitution
occurs within two years following the Closing Date, except 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 substitution must occur within 90
days from the date the breach was discovered if such 90 day period expires
before two years following the Closing Date. If the breach of representation and
warranty that gave rise to the obligation to repurchase or substitute a Mortgage
Loan pursuant to this Section 3.1 was the representation set forth in clause
(xxxii) of this Section 3.1(b), then the Seller shall pay to the Trust Fund,
concurrently with and in addition to the remedies provided in the third
preceding sentence, an amount equal to any liability, penalty or the expense
that was actually incurred and paid out of or on behalf of the Trust Fund, and
that directly resulted from such breach, or if incurred and paid by the Trust
Fund thereafter, concurrently with such payment. The obligations of the Seller
to cure, purchase or substitute a Qualified Substitute Mortgage Loan shall
constitute the Purchaser's, the Trustee's and the Certificateholders' sole and
exclusive remedy under this Agreement or otherwise respecting a breach of
representations or warranties hereunder with respect to the Mortgage Loans.
In the event that the Seller elects to substitute a Qualified Substitute
Mortgage Loan or Loans for a Deleted Mortgage Loan pursuant to this Section
3.1(b), the Seller shall deliver to the Trustee and the Master Servicer, as
appropriate, with respect to such Qualified Substitute Mortgage Loan or Loans,
the original Mortgage Note, the Mortgage, an Assignment of the Mortgage in
recordable form, and such other documents and agreements as are required by
Section 2.1, with the Mortgage Note endorsed as required by Section 2.1. No
substitution will be made in any calendar month after the Determination Date for
such month. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution, to the extent received by the Master
Servicer, will be retained by the Master Servicer and remitted by the Master
Servicer to the Seller on the next succeeding Distribution Date. After the month
of substitution, the Seller shall be entitled to retain all amounts received in
respect of such Deleted Mortgage Loan. Upon such substitution, the Mortgage Loan
Schedule shall be amended to reflect the addition of the Qualified Substituted
Mortgage Loan or Loans, the Qualified Substitute Mortgage Loan or Loans shall be
subject to the terms of this Agreement in all respects, and the Seller shall be
deemed to have made the non-statistical representations and warranties with
respect to the Qualified Substitute Mortgage Loan contained in Section 3.1(b) as
of the date of substitution.
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In connection with the substitution of one or more Qualified Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(in each case after application of the principal portion of the Monthly Payments
due in the month of substitution that are to be distributed to
Certificateholders in the month of substitution). The Seller shall provide the
Master Servicer on the day of substitution for immediate deposit into the
Custodial Account the amount of such shortfall, without any reimbursement
therefor. The Seller shall give notice in writing to the Trustee of such event,
which notice shall be accompanied by an Officer's Certificate as to the
calculation of such shortfall and by an Opinion of Counsel to the effect that
such substitution will not cause (a) any federal tax to be imposed on any REMIC
created pursuant to the Pooling and Servicing Agreement, including without
limitation, any federal tax imposed on "prohibited transactions" under Section
860F(a)(1) of the Code or on "contributions after the startup date" under
Section 860G(d)(1) of the Code or (b) any portion of any REMIC created pursuant
to the Pooling and Servicing Agreement to fail to qualify as a REMIC at any time
that any Certificate is outstanding. The costs of any substitution as described
above, including any related assignments, opinions or other documentation in
connection therewith shall be borne by the Seller.
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 clause (b)
above 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 Qualified Substitute Mortgage Loan pursuant to the terms hereof.
Section 3.2. THE PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Purchaser
hereby represents and warrants to the Seller as of the Closing Date (or if
otherwise specified below, as of the date so specified) that:
(a) the Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(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 hereby, 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 certificate 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;
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(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 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
Purchaser and, assuming due authorization, execution and delivery by the
Purchaser, 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); and
(f) except as previously disclosed to the Purchaser in the Prospectus
Supplement, there are no actions, suits or proceedings pending or, to the
best of the Purchaser's knowledge, 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 if determined adversely to the Purchaser or would reasonably be
expected to 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.
ARTICLE IV
SELLER'S COVENANTS
Section 4.1. COVENANTS OF THE SELLER. The Seller hereby covenants that,
except for the transfer hereunder with respect to the Mortgage Loans, the Seller
will not sell, pledge, assign or transfer to any other Person, or grant, create,
incur or assume any Lien on, any Mortgage Loan, whether now existing or
hereafter created, or any interest therein (other than the servicing rights with
respect thereto); the Seller will notify the Trustee, as assignee of the
Purchaser, of the existence of any Lien (other than as provided above) on any
Mortgage Loan immediately upon discovery thereof; and the Seller will defend the
right, title and interest of the Trustee, on behalf of the Trust Fund, in, to
and under the Mortgage Loans, whether now existing or hereafter created, against
all claims of third parties claiming through or under the Seller.
ARTICLE V
LIMITATION ON LIABILITY OF THE SELLER
Section 5.1. LIMITATION ON LIABILITY OF THE SELLER. None of the directors,
officers, employees or agents of the Seller shall be under any liability to the
Purchaser hereunder, it being expressly understood that all such liability is
expressly waived and released as a
P-16
condition of, and as consideration for, the execution of this Agreement. Except
as and to the extent expressly provided in the Pooling and Servicing Agreement,
the Custodial Agreement and this Agreement, the Seller shall not be under any
liability to the Trust Fund, the Trustee or the Certificateholders thereunder.
The Seller and any director, officer, employee or agent of the Seller 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.
ARTICLE VI
TERMINATION
Section 6.1 TERMINATION. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate
upon the termination of the Trust Fund pursuant to the terms of the Pooling and
Servicing Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 AMENDMENT. This Agreement may be amended from time
to time by the Seller and the Purchaser by written agreement signed by the
Seller and the Purchaser.
Section 7.2 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 7.3 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, postage prepaid, addressed
as follows:
(i) if to the Seller:
Opteum Financial Services, LLC
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or, such other address as may hereafter be furnished to the Purchaser in writing
by the Seller.
(ii) if to the Purchaser:
Homestar Mortgage Acceptance Corp.
W. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
P-17
Section 7.4 SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 7.5 RELATIONSHIP OF PARTIES. Nothing herein contained
shall be deemed or construed to create a partnership or joint venture between
the parties hereto, and the services of the Seller shall be rendered as an
independent contractor and not as agent for the Purchaser.
Section 7.6 COUNTERPARTS. This Agreement may be executed in
two 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
and such counterparts together shall constitute one and the same Agreement.
Section 7.7 SURVIVAL. The representations and warranties made
herein by the Seller and the provisions of Article V hereof shall survive the
purchase of the Mortgage Loans hereunder.
Section 7.8 FURTHER AGREEMENTS. The Purchaser and the Seller
each agree to execute and deliver to the other such additional documents,
instruments or agreements as may be necessary or appropriate to effectuate the
purposes of this Agreement. Each of the Purchaser and the Seller agrees to use
its best reasonable efforts to take all actions necessary to be taken by it to
cause the Certificates to be issued and rated in the highest rating category by
each of the Rating Agencies, with the Certificates to be offered pursuant to the
Purchaser's shelf registration statement, and each party will cooperate with the
other in connection therewith.
Section 7.9 INTENTION OF THE PARTIES. It is the intention of
the parties that the Purchaser is purchasing, and the Seller is selling, the
Mortgage Loans (other than the servicing rights with respect thereto), rather
than a loan by the Purchaser to the Seller secured by the Mortgage Loans.
Accordingly, the parties hereto each intend to treat this transaction with
respect to the Mortgage Loans for federal income tax purposes as a sale by the
Seller, and a purchase by the Purchaser, of the Mortgage Loans (other than the
servicing rights with respect thereto). The Purchaser will have the right to
review the Mortgage Loans and the Related Documents to determine the
characteristics of the Mortgage Loans which will affect the federal income tax
consequences of owning the Mortgage Loans and the Seller will cooperate with all
reasonable requests made by the Purchaser in the course of such review.
Section 7.10 SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE
AGREEMENT. This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller, the Purchaser and their respective successors and
assigns. The obligations of the Seller under this Agreement cannot be assigned
or delegated to a third party without the consent of the Purchaser, which
consent shall be at the Purchaser's sole discretion. The parties hereto
acknowledge that the Purchaser is acquiring the Mortgage Loans for the purpose
of assigning the Mortgage Loans to the Trustee, on behalf of the Trust Fund, for
the benefit of the Certificateholders. As an inducement to the Purchaser to
purchase the Mortgage Loans, the Seller acknowledges and
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consents to the assignment by the Purchaser to the Trustee, on behalf of the
Trust Fund of all of the Purchaser's rights against the Seller pursuant to this
Agreement and to the enforcement or exercise of any right or remedy against the
Seller pursuant to this Agreement by the Purchaser. Such enforcement of a right
or remedy by the Trustee, on behalf of the Trust Fund, shall have the same force
and effect as if the right or remedy had been enforced or exercised by the
Purchaser directly.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed to this Mortgage Loan Purchase Agreement by their
respective officers thereunto duly authorized as of the day and year first above
written.
HOMESTAR MORTGAGE ACCEPTANCE CORP.
as Purchaser
By:_______________________________
Name:
Title:
OPTEUM FINANCIAL SERVICES, LLC
as Seller
By:_______________________________
Name:
Title:
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Exhibit 1
MORTGAGE LOAN SCHEDULE
Exh 1-1
EXHIBIT ▇
▇▇▇▇▇▇▇▇ ▇ of the Standard & Poor's Glossary For File Format
FOR LEVELS(R) Version 5.6 Revised
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.
Exh 2-1
STANDARD & POOR'S
HIGH COST LOAN CATEGORIZATION
State/Jurisdiction Name of Anti-Predatory Category under
Lending Law/Effective Date Applicable Anti-Predatory Lending
Law
-------------------------------------------------- ------------------------------------- ----------------------------
Arkansas Arkansas Home Loan Protection Act, High Cost Home Loan
Ark. Code ▇▇▇. ▇▇.▇▇. ▇▇-▇▇-▇▇▇ et seq.
Effective July 16, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
Cleveland Heights, OH OH Ordinance No. 72-2003 (PSH), Covered Loan
Mun. Code ▇▇.▇▇. 757.01 et seq.
Effective June 2, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
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
-------------------------------------------------- ------------------------------------- ----------------------------
Connecticut Connecticut Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn. Gen.
Stat. ▇▇.▇▇. 36a-746 et seq.
Effective October 1, 2001
-------------------------------------------------- ------------------------------------- ----------------------------
District of Columbia Home Loan Protection Act, D.C. Code Covered Loan
▇▇.▇▇. 26-1151.01 et seq.
Effective for loans closed on or
after January 28, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
Florida Fair Lending Act, Fla. Stat. ▇▇▇. High Cost Home Loan
▇▇.▇▇. 494.0078 et seq.
Effective October 2, 2002
-------------------------------------------------- ------------------------------------- ----------------------------
Georgia (Oct 1, 2002 - Mar 6, 2003) Georgia Fair Lending Act, Ga. Code High Cost Home Loan
▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
Effective October 1, 2002 -
March
6, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
Georgia as amended (Mar 7, 2003 - current) Georgia Fair Lending Act, Ga. Code High Cost Home Loan
Exh 2-2
-------------------------------------------------- ------------------------------------- ----------------------------
▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
Effective for loans closed on or
after March 7, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
HOEPA Section 32 Home Ownership and Equity High Cost Loan
Protection Act of 1994, 15
U.S.C. ss.
1639, 12 C.F.R. ▇▇.▇▇. 226.32 and
226.34 Effective October 1, 1995,
amendments October 1, 2002
-------------------------------------------------- ------------------------------------- ----------------------------
Illinois High Risk Home Loan Act, Ill. Comp. High Risk Home Loan
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)
-------------------------------------------------- ------------------------------------- ----------------------------
Indiana Indiana Home Loan Practices Act, High Cost Home Loan
Ind. Code ▇▇▇. ▇▇.▇▇.
24-9-1-1 ET SEQ. Effective
for loans originated on or
after January 1, 2005.
-------------------------------------------------- ------------------------------------- ----------------------------
Kansas Consumer Credit Code, Kan. Stat. High Loan to Value
▇▇▇. ▇▇.▇▇. 16a-1-101 et seq. Consumer Loan and;
Sections 16a-1-301 and 16a-3-207 High APR Consumer Loan
became effective April 14, 1999;
Section 16a-3-308a became effective
July 1, 1999
-------------------------------------------------- ------------------------------------- ----------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. ▇▇.▇▇. 360.100
et seq. Effective June 24, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
Maine Truth in Lending, Me. Rev. Stat. High Rate High Fee Mortgage
tit. 9-A, ▇▇.▇▇. 8-101 et
seq. Effective September 29,
1995 and as amended from time
to time
-------------------------------------------------- ------------------------------------- ----------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. High Cost Home Loan
▇▇.▇▇. 32.00 ET SEQ. and 209
Exh 2-3
-------------------------------------------------- ------------------------------------- ----------------------------
C.M.R. ▇▇.▇▇. 40.01 ET SEQ.
Effective March 22, 2001
and amended from time to time
-------------------------------------------------- ------------------------------------- ----------------------------
Massachusetts Predatory Home Loan High Cost Home Mortgage
Practices Act Loan
Mass. Gen. Laws ch. 183C,
▇▇.▇▇. 1 ET SEQ.
Effective November 7, 2004
-------------------------------------------------- ------------------------------------- ----------------------------
Nevada Assembly ▇▇▇▇ No. 284, Nev. Rev. Home Loan
Stat. ▇▇.▇▇. 598D.010 et seq.
Effective October 1, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
New Jersey New Jersey Home Ownership Security High Cost Home Loan
Act of 2002, N.J. Rev. Stat. ▇▇.▇▇.
46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made on
or after April 1, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
New Mexico Home Loan Protection Act, N.M. Rev. High Cost Home Loan
Stat. ▇▇.▇▇. 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
-------------------------------------------------- ------------------------------------- ----------------------------
North Carolina Restrictions and Limitations on High Cost Home Loan
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)
-------------------------------------------------- ------------------------------------- ----------------------------
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code), Ohio
Rev. Code ▇▇▇. ▇▇.▇▇. 1349.25 et seq.
Exh 2-4
Effective May 24, 2002
-------------------------------------------------- ------------------------------------- ----------------------------
Oklahoma Consumer Credit Code (codified in Subsection 10 Mortgage
various sections of Title 14A)
Effective July 1, 2000; amended
effective January 1, 2004
-------------------------------------------------- ------------------------------------- ----------------------------
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C. Code
▇▇▇. ▇▇.▇▇. 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
-------------------------------------------------- ------------------------------------- ----------------------------
West Virginia West Virginia Residential Mortgage West Virginia Mortgage
Lender, Broker and Servicer Act, W. Loan Act Loan
Va. Code ▇▇▇. ▇▇.▇▇. 31-17-1 et seq.
Effective June 5, 2002
-------------------------------------------------- ------------------------------------- ----------------------------
STANDARD & POOR'S
-----------------
COVERED LOAN CATEGORIZATION
---------------------------
State/Jurisdiction Name of Anti-Predatory Category under
Lending Law/Effective Date Applicable Anti-Predatory Lending
Law
-------------------------------------------------- ------------------------------------- ----------------------------
Georgia (Oct 1, 2002 - Mar 6, 2003) Georgia Fair Lending Act, Ga. Code Covered Loan
▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
Effective October 1, 2002 -
March
6, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
New Jersey New Jersey Home Ownership Security Covered Home Loan
Act of 2002, N.J. Rev. Stat. ▇▇.▇▇.
46:10B-22 et seq.
Effective November 27, 2003 - July
5, 2004
-------------------------------------------------- ------------------------------------- ----------------------------
STANDARD & POOR'S
-----------------
HOME LOAN CATEGORIZATION
------------------------
Exh 2-5
State/Jurisdiction Name of Anti-Predatory Category under
Lending Law/Effective Date Applicable Anti-Predatory Lending
Law
-------------------------------------------------- ------------------------------------- ----------------------------
Georgia (Oct 1, 2002 - Mar 6, 2003) Georgia Fair Lending Act, Ga. Code Home Loan
▇▇▇. ▇▇.▇▇. 7-6A-1 et seq. Effective
October 1, 2002 - March 6, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
Indiana Indiana Home Loan Practices Act, Home Loan
Ind. Code ▇▇▇. ▇▇.▇▇. 24-9-1-1 ET SEQ.
Effective for loans
originated on or after
January 1, 2005.
-------------------------------------------------- ------------------------------------- ----------------------------
New Jersey New Jersey Home Ownership Security Home Loan
Act of 2002, N.J. Rev. Stat. ▇▇.▇▇.
46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
-------------------------------------------------- ------------------------------------- ----------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Home Loan
Stat. ▇▇.▇▇. 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
-------------------------------------------------- ------------------------------------- ----------------------------
North Carolina Restrictions and Limitations on Consumer Home Loan
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)
-------------------------------------------------- ------------------------------------- ----------------------------
South Carolina South Carolina High Cost and Consumer Home Loan
Consumer Home Loans Act, S.C. Code
▇▇▇. ▇▇.▇▇. 37-23-10 et seq. Effective
for loans taken on or after January
1, 2004
-------------------------------------------------- ------------------------------------- ----------------------------
Exh 2-6
EXHIBIT Q
CERTIFICATE GUARANTY INSURANCE POLICY
Ambac
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
CERTIFICATE GUARANTY INSURANCE POLICY
Insured Obligations: Policy Number:
Homestar Mortgage Acceptance Corp. AB0826BE
Asset-Backed Pass-Through Certificates,
Series 2004-6, Class A-3B Premium: As specified in the
endorsement attached hereto.
AMBAC ASSURANCE CORPORATION (AMBAC), a Wisconsin stock insurance corporation, in
consideration of the payment of the premium and subject to the terms of this
Policy, hereby agrees unconditionally and irrevocably to pay to the Trustee for
the benefit of the Holders of the Insured Obligations, that portion of the
Insured Amounts which shall become Due for Payment but shall be unpaid by reason
of Nonpayment.
Ambac will make such payments to the Trustee from its own funds on the later of
(a) one (1) Business Day following notification to Ambac of Nonpayment or (b)
the Business Day on which the Insured Amounts are Due for Payment. Such payments
of principal or interest shall be made only upon presentation of an instrument
of assignment in form and substance satisfactory to Ambac, transferring to Ambac
all rights under such insured Obligations to receive the principal of and
Interest on the Insured Obligation. Ambac shall be subrogated to all the
Holders' rights to payment on the Insured Obligations to the extent of the
insurance disbursements so made. Once payments of the Insured Amounts have been
made to the Trustee, Ambac shall have no further obligation hereunder in respect
of such Insured Amounts.
In the event the Trustee for the Insured Obligations has notice that any payment
of principal or interest on an Insured Obligation which has become Due for
Payment and which is made to a Holder by or on behalf of the Trustee has been
deemed a preferential transfer and theretofore recovered from its Holder
pursuant to the United States Bankruptcy Code in accordance with a final,
nonappealable order of a court of competent jurisdiction, such Holder will be
entitled to payment from Ambac to the extent of such recovery if sufficient
funds are not otherwise available.
This Policy is noncancelable by Ambac for any reason, including failure to
receive payment of any premium due hereunder. The premium on this Policy is not
refundable for any reason. This Policy does not insure against loss of any
prepayment or other acceleration payment which at
Q-1
any time may become due in respect of any Insured Obligation, other than at the
sole option of Ambac, nor against any risk other than Nonpayment, including
failure of the Trustee to make any payment due Holders of Insured Amounts.
To the fullest extent permitted by applicable law, Ambac hereby waives and
agrees not to assert any and all rights and defenses, to the extent such rights
and defenses may be available to Ambac, to avoid payment of its obligations
under this Policy in accordance with the express provisions hereof.
Any capitalized terms not defined herein shall have the meaning given such terms
in the endorsement attached hereto or in the Agreement.
In witness whereof, Ambac has caused this Policy to be affixed with its
corporate seal and to be signed by its duly authorized officers in facsimile to
become effective as their original signatures and binding upon Ambac by virtue
of the countersignature of its duly authorized representative.
President Secretary
[Seal]
Effective Date: November 19, 2004 Authorized Representative
Q-2
CERTIFICATE GUARANTY INSURANCE POLICY ENDORSEMENT
Attached to and forming Effective Date of Endorsement:
part of Policy No. AB0826BE November 19, 2004
issued to:
HSBC Bank USA, National Association,
as Trustee for the Holders of the
Homestar Mortgage Acceptance Corp.
Asset-Backed Pass-Through Certificates,
Series2004-6, Class A-3B
For all purposes of this Policy, the following terms shall have the
following meanings:
"Agreement" shall mean the Pooling and Servicing Agreement, dated as of
November 1, 2004, among Homestar Mortgage Acceptance Corp., as the Company,
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and Securities Administrator, and
HSBC Bank USA, National Association, as Trustee, as such Agreement may be
amended, modified or supplemented from time to time as set forth in the
Agreement, provided that any such amendment, modification or supplement shall
have been approved in writing by the Insurer.
"Business Day" shall mean any day other than (i) a Saturday or a Sunday
or (ii) a day on which banking institutions in the State of New York or the city
in which the corporate office of the Trustee under the Agreement or the Insurer
is located are authorized or obligated by law or executive order to be closed.
"Certificate Guarantee Insurance Policy" or "Policy" shall mean this
Certificate Guaranty Insurance Policy together with each and every endorsement
hereto.
"Class A-3B Certificates" shall mean any one of the Certificates
designated as a Class A-3B Certificate, substantially in the form set forth in
Exhibit A-1 to the Agreement.
"Distribution Date" shall mean the 25th day of any month (or if such
25th day is not a Business Day, the first Business Day immediately following)
beginning with the First Distribution Date.
"Due for Payment" shall mean with respect to any Insured Amounts, such
amount that is due and payable pursuant to the terms of the Agreement on the
related Distribution Date.
"Final Distribution Date" shall mean January 2035.
"First Distribution Date" shall mean December 27, 2004.
"Guaranteed Distribution" shall mean, with respect to the Insured
Certificates as of any Distribution Date, the distribution to be made to the
Holders of the Insured Certificates in an aggregate amount equal to the sum of
(1) any shortfall in amounts available in the Certificate Account to pay
interest for the related Interest Accrual Period on the Certificate Principal
Q-3
Balance of the Insured Certificates at the Pass Through Rate, net of any
Prepayment Interest Shortfalls allocated to the Insured Certificates and net of
any interest shortfalls relating to the Relief Act or similar legislation
allocated to the Insured Certificates, (2) the principal portion of any Realized
Losses allocated to the Insured Certificates on such Distribution Date, and (3)
the Certificate Principal Balance of the Insured Certificates to the extent
unpaid on the Final Distribution Date or earlier termination of the Trust Fund
pursuant to the terms of the Agreement. A Guaranteed Distribution shall not
include any interest shortfalls resulting from the Relief Act or similar
legislation or any Group I Net WAC Cap Shortfalls.
"Holder" shall mean any person who is the registered owner or
beneficial owner of any Insured Certificate.
"Insured Amounts" shall mean, with respect to any Distribution Date,
the Guaranteed Distribution for such Distribution Date.
"Insured Certificates" shall mean the Class A-3B Certificates.
"Insured Payments" shall mean, with respect to any Distribution Date,
the aggregate amount actually paid by the Insurer to the Trustee in respect of
(i) Insured Amounts for such Distribution Date and (ii) Preference Amounts for
any given Business Day.
"Insurer" shall mean Ambac Assurance Corporation, or any successor
thereto, as issuer of the Certificate Guaranty Insurance Policy.
"Insurer Premium Rate" shall mean 0.09% per annum.
"Late Payment Rate" shall mean the lesser of (a) the greater of (i) the
per annum rate of interest publicly announced from time to time by Citibank,
N.A. as its prime or base lending rate (any change in such rate of interest to
be effective on the date such change is announced by Citibank, N.A.), and (ii)
the rate of interest on the Class A-3B Certificates and (b) the maximum rate
permissible under applicable usury or similar laws limiting interest rates. The
Late Payment Rate shall be computed on the basis of the actual number of days
elapsed over a year of 360 days for any Distribution Date.
"Nonpayment" shall mean, with respect to any Distribution Date, an
Insured Amount which is Due for Payment but has not been and will not be paid in
respect of such Distribution Date pursuant to the Agreement.
"Notice" shall mean the telephonic or telegraphic notice, promptly
confirmed in writing by telecopy substantially in the form of Exhibit A to the
Policy, the original of which is subsequently delivered by registered or
certified mail, from the Trustee specifying the Insured Amount which shall be
due and owing on the applicable Distribution Date.
"Preference Amount" means any payment of Insured Amounts on an Insured
Certificate which has become Due for Payment and which is made to a Holder by or
on behalf of the Trustee which has been deemed a preferential transfer and
theretofore recovered from its Holder
Q-4
pursuant to the United States Bankruptcy Code in accordance with a final, non
appealable order of a court of competent jurisdiction.
"Term of the Policy" shall mean the period from and including the date
of issuance of the Policy to and including the date on which (i) the Certificate
Principal Balance of the Insured Certificates is reduced to zero, (ii) any
period during which any payment of the Insured Certificates could have been
avoided in whole or in part as a preference payment under applicable bankruptcy,
insolvency, receivership or similar law has expired, and (iii) if any
proceedings requisite to avoidance as a preference payment have been commenced
prior to the occurrence of (i) and (ii), a final and nonappealable order in
resolution of each such proceeding has been entered.
"Trustee" shall mean HSBC Bank USA, National Association, or its
successor in interest, in its capacity as trustee under the Agreement, or if any
successor trustee or any co trustee shall be appointed as provided therein, then
"Trustee" shall also mean such successor trustee or such co-trustee, as the case
may be, subject to the provisions thereof.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Agreement as of the date of execution of the
Policy, without giving effect to any subsequent amendment to or modification of
the Agreement unless such amendment or modification has been approved in writing
by the Insurer.
As provided by the Policy, the Insurer will pay any amount payable
hereunder, other than Preference Amounts, no later than 12:00 noon, New York
City time, on the later of the Distribution Date on which the related Insured
Amount is due or the Business Day following receipt in New York, New York on a
Business Day by the Insurer of a Notice; provided that, if such Notice is
received after 12:00 noon, New York City time, on such Business Day, it will be
deemed to be received on the following Business Day. If any such Notice is not
in proper form or is otherwise insufficient for the purpose of making a claim
under the Policy, it shall be deemed not to have been received for purposes of
this paragraph, and the Insurer shall promptly so advise the Trustee and the
Trustee may submit an amended Notice.
The Insurer shall pay any Preference Amount when due to be paid
pursuant to the Order referred to below, but in any event on the Distribution
Date next following receipt on a Business Day by the Insurer of (i) a certified
copy of a final, non appealable order of a court or other body exercising
jurisdiction in such insolvency proceeding to the effect that the Trustee or the
Holder is required to return such Preference Amount paid during the term of this
Policy because such payments were avoided as a preferential transfer or
otherwise rescinded or required to be restored by the Trustee or the Holder (the
"Order"), (ii) a certificate by or on behalf of the Trustee that the Order has
been entered and is not subject to any stay, (iii) an assignment, in form and
substance satisfactory to the Insurer, duly executed and delivered by the
Trustee, irrevocably assigning to the Insurer all rights and claims of the
Trustee or the Holder relating to or arising under the Agreement against the
estate of the Trustee or otherwise with respect to such Preference Amount and
(iv) a Notice of Nonpayment (attached hereto as Exhibit A) appropriately
completed and executed by the Trustee. Such payment shall be disbursed to the
receiver, conservator, debtor in possession or trustee in bankruptcy named in
the Order, and not
Q-5
to the Trustee or the Holder, as applicable, directly, unless the Trustee or the
Holder, as applicable, has made a payment of the Preference Amount to the court
or such receiver, conservator, debtor in possession or trustee in bankruptcy
named in the Order, in which case the Insurer will pay the Trustee on behalf of
the Holder, subject to the delivery of (a) the items refereed to in clauses (i),
(ii), (iii) and (iv) above to the Insurer and (b) evidence satisfactory to the
Insurer that payment has been made to such court or receiver, conservator,
debtor in possession or trustee in bankruptcy named in the Order.
The Insurer hereby agrees that it shall be subrogated to the rights of
Holders by virtue of any previous payment under this Policy provided that no
recovery of such payment will occur unless the full amount of the Holders'
allocable distributions for such Distribution Date can be made. In so doing, the
Insurer does not waive its rights to seek full payment of all amounts owed to it
under the Agreement.
The terms and provisions of the Agreement constitute the instrument of
assignment referred to in the second paragraph of the face of this Policy.
A premium will be payable on this Policy on each Distribution Date as
provided in Section 4.02(c) of the Agreement, beginning with the First
Distribution Date, in an amount, with respect to each Distribution Date, equal
to the Insurer Premium (as defined in the Agreement).
The Policy to which this Endorsement is attached and of which it forms
a part is hereby amended to provide that there shall be no acceleration payment
due under the Policy unless such acceleration is at the sole option of the
Insurer. The Policy is further hereby amended, to the extent necessary, to
clarify that the reference to "loss of any prepayment or any other acceleration
payment" in the fourth paragraph of the face of the Policy does not refer to
that portion of any shortfall, if any, in interest on any mortgage loan in any
month in which such mortgage loan is paid prior to its stated maturity.
This Policy does not cover shortfalls, if any, attributable to the
liability of the Trust Fund, any REMIC or the Trustee for withholding taxes, if
any (including interest and penalties in respect of any such liability) or any
other taxes, withholding or other charge imposed by any governmental authority.
Nothing herein contained shall be held to vary, alter, waive or extend
any of the terms, conditions, provisions, agreements or limitations of the above
mentioned Policy other than as above stated.
On and after the completion of the Term of the Policy, the Policy shall
be void and of no force and effect whatsoever.
Q-6
This Policy is issued under and pursuant to, and shall be construed
under, the laws of the State of New York (without giving effect to the conflict
of laws provisions thereof).
THIS POLICY IS NOT COVERED BY THE PROPERTY/CASUALTY INSURANCE SECURITY
FUND SPECIFIED IN ARTICLE 76 OF THE NEW YORK INSURANCE LAW.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Q-7
IN WITNESS WHEREOF, Ambac Assurance Corporation has caused this
Endorsement to the Policy to be signed by its duly authorized officers.
Managing Director Assistant Secretary
--------------------------------- ---------------------------------------
Q-8
EXHIBIT A
TO THE CERTIFICATE GUARANTY INSURANCE POLICY
Policy No. AB0826BE
NOTICE OF NONPAYMENT AND DEMAND
FOR PAYMENT OF INSURED AMOUNTS
Date: [ ]
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Reference is made to Certificate Guaranty Insurance Policy No. AB0826BE
(the "Policy") issued by Ambac Assurance Corporation ("Ambac"). Terms
capitalized herein and not otherwise defined shall have the meanings specified
in the Policy and the Pooling and Servicing Agreement, dated as of November 1,
2004, among Homestar Mortgage Acceptance Corp., as the Company, ▇▇▇▇▇ Fargo
Bank, N.A., as Master Servicer and Securities Administrator, and HSBC Bank USA,
National Association, as Trustee (without regard to any amendment or supplement
thereto unless such amendment or supplement has been approved in writing by
Ambac) (the "Agreement"), as the case may be, unless the context otherwise
requires.
The Trustee (or the Securities Administrator, acting on behalf of and
with the authorization of the Trustee) hereby certifies as follows:
1. The Trustee is the Trustee under the Agreement for the Holders.
2. The relevant Distribution Date is [date].
3. Payment on the Insured Certificates in respect of the Distribution Date
is due to be received on _____________________________ under the
Agreement, in an amount equal to $____________.
4. There is a shortfall of $_______________ in a Guaranteed Distribution
in respect of the Insured Certificates, which amount is an Insured
Amount pursuant to the terms of the Agreement.
5. The Trustee has not heretofore made a demand for the Insured Amount in
respect of the Distribution Date.
6. The Trustee hereby requests the payment of the Insured Amount that is
Due for Payment be made by Ambac under the Policy and directs that
payment under the Policy be made to the following account by bank wire
transfer of federal or other immediately available funds in accordance
with the terms of the Policy to:
______________________________________ Trustee's account number.
A-1
7. The Trustee hereby agrees that, following receipt of the Insured Amount
from Ambac, it shall (a) hold such amounts in trust and apply the same
directly to the distribution of payment on the Insured Certificates
when due; (b) not apply such funds for any other purpose; (c) deposit
such funds to the Insurance Account and not commingle such funds with
other funds held by the Trustee and (d) maintain an accurate record of
such payments with respect to each Insured Certificate and the
corresponding claim on the Policy and proceeds thereof.
ANY PERSON WHO KNOWINGLY AND WITH INTENT TO DEFRAUD ANY INSURANCE
COMPANY OR OTHER PERSON FILES AN APPLICATION FOR INSURANCE OR STATEMENT OF CLAIM
CONTAINING ANY MATERIALLY FALSE INFORMATION; OR CONCEALS FOR THE PURPOSE OF
MISLEADING, INFORMATION CONCERNING ANY FACT MATERIAL THERETO, COMMITS A
FRAUDULENT INSURANCE ACT, WHICH IS AND SHALL ALSO BE SUBJECT TO A CIVIL PENALTY
NOT TO EXCEED FIVE THOUSAND DOLLARS AND THE STATED VALUE OF THE CLAIM FOR EACH
SUCH VIOLATION.
[Name of Trustee]
By: ________________________________
Title: _______________________________
(Officer)
A-2
EXHIBIT R
SCHEDULE OF YIELD MAINTENANCE AGREEMENT NOTIONAL BALANCES
Class A Monthly Notional Class M Monthly Notional
Distribution Date Balance Balance
December 25, 2004 680,293,000.00 74,573,000.00
January 25, 2005 674,790,095.26 74,573,000.00
February 25, 2005 667,924,918.18 74,573,000.00
March 25, 2005 659,703,329.49 74,573,000.00
April 25, 2005 650,138,335.52 74,573,000.00
May 25, 2005 639,250,682.83 74,573,000.00
June 25, 2005 627,068,973.99 74,573,000.00
July 25, 2005 613,629,715.94 74,573,000.00
August 25, 2005 598,977,347.30 74,573,000.00
September 25, 2005 583,164,232.82 74,573,000.00
October 25, 2005 566,410,985.04 74,573,000.00
November 25, 2005 549,806,666.12 74,573,000.00
December 25, 2005 533,648,458.12 74,573,000.00
January 25, 2006 517,923,959.96 74,573,000.00
February 25, 2006 502,621,123.09 74,573,000.00
March 25, 2006 487,728,241.36 74,573,000.00
April 25, 2006 473,233,941.12 74,573,000.00
May 25, 2006 459,127,171.69 74,573,000.00
June 25, 2006 445,397,195.99 74,573,000.00
July 25, 2006 432,033,581.60 74,573,000.00
August 25, 2006 419,026,191.89 74,573,000.00
September 25, 2006 406,365,728.14 74,573,000.00
October 25, 2006 394,046,365.98 74,573,000.00
November 25, 2006 382,064,053.69 74,573,000.00
December 25, 2006 370,399,387.74 74,573,000.00
January 25, 2007 359,043,622.84 74,573,000.00
February 25, 2007 347,988,260.70 74,573,000.00
March 25, 2007 337,225,042.99 74,573,000.00
April 25, 2007 326,745,944.39 74,573,000.00
May 25, 2007 316,543,165.96 74,573,000.00
June 25, 2007 306,609,128.60 74,573,000.00
July 25, 2007 296,936,466.81 74,573,000.00
August 25, 2007 287,518,022.50 74,573,000.00
September 25, 2007 278,346,839.11 74,573,000.00
October 25, 2007 269,416,155.79 74,573,000.00
November 25, 2007 260,719,401.82 74,573,000.00
December 25, 2007 252,250,191.16 74,573,000.00
January 25, 2008 252,250,191.16 67,218,151.22
February 25, 2008 249,505,152.81 62,059,141.03
R-1
Class A Monthly Notional Class M Monthly Notional
Distribution Date Balance Balance
March 25, 2008 243,340,517.38 60,525,818.07
April 25, 2008 237,336,431.37 59,032,428.39
May 25, 2008 231,488,613.44 57,577,907.09
June 25, 2008 225,792,733.09 56,161,177.07
July 25, 2008 220,244,666.94 54,781,212.70
August 25, 2008 214,840,407.01 53,437,017.10
September 25, 2008 209,576,019.29 52,127,611.76
October 25, 2008 204,447,757.15 50,852,064.78
November 25, 2008 199,451,939.29 49,609,460.52
December 25, 2008 194,584,877.44 48,398,881.61
January 25, 2009 189,843,083.00 47,219,460.31
February 25, 2009 185,223,307.63 46,026,491.56
March 25, 2009 180,722,263.35 44,815,560.17
April 25, 2009 176,336,707.22 43,635,698.96
May 25, 2009 172,063,504.21 42,486,064.50
June 25, 2009 167,899,714.60 41,365,865.90
July 25, 2009 163,842,415.53 40,274,316.81
August 25, 2009 159,888,735.99 39,210,644.85
September 25, 2009 156,035,899.63 38,174,103.06
October 25, 2009 152,281,205.50 37,163,964.82
November 25, 2009 148,622,021.22 36,179,521.92
December 25, 2009 145,055,805.24 35,220,090.61
January 25, 2010 141,580,076.44 34,285,003.36
February 25, 2010 138,192,422.39 33,373,611.18
March 25, 2010 134,890,497.38 32,485,282.96
April 25, 2010 131,672,020.50 31,619,405.09
May 25, 2010 128,534,773.87 30,775,380.86
June 25, 2010 125,476,600.77 29,952,630.07
July 25, 2010 122,495,404.00 29,150,588.48
August 25, 2010 119,589,144.14 28,368,707.42
September 25, 2010 116,755,837.92 27,606,453.32
October 25, 2010 113,993,556.66 26,863,307.32
November 25, 2010 111,300,424.68 26,138,764.79
December 25, 2010 108,674,617.89 25,432,334.98
January 25, 2011 106,114,362.23 24,743,540.62
February 25, 2011 103,617,932.32 24,071,917.52
March 25, 2011 101,183,650.10 23,417,014.22
April 25, 2011 98,809,883.45 22,778,391.64
May 25, 2011 96,495,044.93 22,155,622.69
June 25, 2011 94,237,590.50 21,548,291.98
July 25, 2011 92,036,018.33 20,955,995.47
August 25, 2011 89,888,867.58 20,378,340.14
September 25, 2011 87,794,717.27 19,814,943.69
R-2
Class A Monthly Notional Class M Monthly Notional
Distribution Date Balance Balance
October 25, 2011 85,752,185.14 19,265,434.27
November 25, 2011 83,759,926.58 18,729,450.12
December 25, 2011 81,816,633.59 18,206,639.34
January 25, 2012 79,921,033.71 17,696,659.60
February 25, 2012 78,071,889.05 17,199,177.87
March 25, 2012 76,267,995.31 16,713,870.15
April 25, 2012 74,508,180.87 16,240,421.23
May 25, 2012 72,791,305.85 15,778,524.45
June 25, 2012 71,116,261.19 15,327,881.45
July 25, 2012 69,481,967.88 14,888,201.91
August 25, 2012 67,887,376.01 14,459,203.39
September 25, 2012 66,331,464.05 14,040,611.06
October 25, 2012 64,813,238.01 13,632,157.50
November 25, 2012 63,331,730.69 13,233,582.50
December 25, 2012 61,886,000.90 12,844,632.86
January 25, 2013 60,474,864.97 12,464,990.12
R-3
EXHIBIT S
SCHEDULE OF MONTHLY STRIKE RATES
Distribution Date Class A Monthly Strike Rate Class M Monthly Strike Rate
December 25, 2004 4.61 3.72
January 25, 2005 5.41 4.52
February 25, 2005 5.41 4.52
March 25, 2005 6.03 5.14
April 25, 2005 5.41 4.52
May 25, 2005 5.61 4.72
June 25, 2005 5.41 4.52
July 25, 2005 5.61 4.72
August 25, 2005 5.42 4.53
September 25, 2005 5.42 4.53
October 25, 2005 5.62 4.73
November 25, 2005 5.44 4.55
December 25, 2005 5.63 4.74
January 25, 2006 5.44 4.55
February 25, 2006 5.45 4.56
March 25, 2006 6.11 5.22
April 25, 2006 5.49 4.60
May 25, 2006 5.79 4.90
June 25, 2006 5.72 4.83
July 25, 2006 6.06 5.17
August 25, 2006 5.87 4.98
September 25, 2006 6.10 5.21
October 25, 2006 6.83 5.94
November 25, 2006 6.64 5.75
December 25, 2006 6.92 6.03
January 25, 2007 6.73 5.84
February 25, 2007 6.74 5.85
March 25, 2007 7.61 6.72
April 25, 2007 7.00 6.11
May 25, 2007 7.29 6.40
June 25, 2007 7.09 6.20
July 25, 2007 7.38 6.49
August 25, 2007 7.14 6.25
September 25, 2007 7.23 6.34
October 25, 2007 7.65 6.76
November 25, 2007 7.43 6.54
December 25, 2007 7.73 6.84
January 25, 2008 7.51 6.62
February 25, 2008 7.51 6.62
S-1
Distribution Date Class A Monthly Strike Rate Class M Monthly Strike Rate
March 25, 2008 8.14 7.25
April 25, 2008 7.77 6.88
May 25, 2008 8.05 7.16
June 25, 2008 7.80 6.91
July 25, 2008 8.29 7.40
August 25, 2008 8.11 7.22
September 25, 2008 8.17 7.28
October 25, 2008 8.47 7.58
November 25, 2008 8.19 7.30
December 25, 2008 8.62 7.73
January 25, 2009 8.38 7.49
February 25, 2009 8.39 7.50
March 25, 2009 9.32 8.43
April 25, 2009 8.40 7.51
May 25, 2009 8.68 7.79
June 25, 2009 8.41 7.52
July 25, 2009 8.82 7.93
August 25, 2009 8.52 7.63
September 25, 2009 8.51 7.62
October 25, 2009 8.80 7.91
November 25, 2009 8.50 7.61
December 25, 2009 8.78 7.89
January 25, 2010 8.50 7.61
February 25, 2010 8.48 7.59
March 25, 2010 9.41 8.52
April 25, 2010 8.46 7.57
May 25, 2010 8.74 7.85
June 25, 2010 8.43 7.54
July 25, 2010 8.71 7.82
August 25, 2010 8.40 7.51
September 25, 2010 8.39 7.50
October 25, 2010 8.67 7.78
November 25, 2010 8.36 7.47
December 25, 2010 8.64 7.75
January 25, 2011 8.33 7.44
February 25, 2011 8.32 7.43
March 25, 2011 9.24 8.35
April 25, 2011 8.29 7.40
May 25, 2011 8.57 7.68
June 25, 2011 8.27 7.38
July 25, 2011 8.54 7.65
August 25, 2011 8.24 7.35
September 25, 2011 8.23 7.34
S-2
Distribution Date Class A Monthly Strike Rate Class M Monthly Strike Rate
October 25, 2011 8.50 7.61
November 25, 2011 8.20 7.31
December 25, 2011 8.47 7.58
January 25, 2012 8.17 7.28
February 25, 2012 8.16 7.27
March 25, 2012 8.73 7.84
April 25, 2012 8.13 7.24
May 25, 2012 8.40 7.51
June 25, 2012 8.11 7.22
July 25, 2012 8.37 7.48
August 25, 2012 8.08 7.19
September 25, 2012 8.07 7.18
October 25, 2012 8.33 7.44
November 25, 2012 8.04 7.15
December 25, 2012 8.31 7.42
January 25, 2013 8.01 7.12
S-3