EXHIBIT 10.2
SALE AND SERVICING AGREEMENT
Dated as of [ ]
among
Home Equity Loan Trust 200_, Issuer
and
[_________________],
Seller and Master Servicer
and
[_______________________],
Trustee
Relating to the Mortgage Loans
Pledged as Collateral for the Issuer's
Asset Backed Notes and Asset Backed Certificates,
Series 200_,
in the Aggregate Initial
Principal Amount of $[ ]
TABLE OF CONTENTS
Page
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Section 1. Defined Terms..................................................................................1
Section 2. Conveyance of Mortgage Loans; Representations and Warranties..................................16
(a) Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit
Line Agreements...............................................................................16
(b) Acceptance by Trustee; Retransfer of Mortgage Loans...........................................20
(c) Documents, Records and Funds in Possession of Master Servicer to be Held for Trustee..........21
(d) Representations, Warranties and Covenants of the Seller and the Master Servicer...............22
(e) Covenants of the Master Servicer..............................................................24
(f) Covenants of [________].......................................................................24
Section 3. Administration and Servicing of Mortgage Loans................................................25
(a) Master Servicer to Service Mortgage Loans.....................................................25
(b) Subservicing; Enforcement of the Obligations of Servicers.....................................27
(c) Successor Servicers...........................................................................28
(d) Liability of the Master Servicer..............................................................28
(e) No Contractual Relationship Between Subservicers and the Trustees.............................28
(f) Rights of [________] and the Trustees in Respect of the Master Servicer.......................28
(g) Trustee to Act as Master Servicer.............................................................29
(h) Collection of Mortgage Loan Payments; Collection Accounts; Payment Account....................29
(i) Collection of Taxes, Assessments and Similar Items; Escrow Accounts...........................32
(j) Access to Certain Documentation and Information Regarding the Mortgage Loans..................32
(k) Permitted Withdrawals from the Note Account...................................................33
(l) Maintenance of Hazard Insurance; Maintenance of Primary Insurance Policies....................34
(m) Enforcement of Due-On-Sale Clauses; Assumption Agreements.....................................36
(n) Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans...............37
(o) Access to Certain Documentation...............................................................40
(p) Annual Statement as to Compliance.............................................................40
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TABLE OF CONTENTS
(continued)
Page
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(q) Annual Independent Public Accountants' Servicing Statement; Financial Statements..............40
(r) Errors and Omissions Insurance; Fidelity Bonds................................................41
(s) Master Servicer Monthly Data..................................................................41
Section 4. Advances......................................................................................41
Section 5. Servicing Compensation........................................................................41
Section 6. The Master Servicer...........................................................................42
(a) Respective Liabilities of [________] and the Master Servicer..................................42
(b) Merger or Consolidation of [________] or the Master Servicer..................................42
(c) Limitation on Liability of [________], the Seller, Master Servicer and Others.................42
(d) Limitation on Resignation of the Master Servicer..............................................43
Section 7. Default.......................................................................................43
(a) Events of Default.............................................................................43
(b) Trustee to Act; Appointment of Successor......................................................45
(c) Notification to Securityholders...............................................................46
Section 8. Miscellaneous.................................................................................46
(a) Term of Master Servicing Agreement............................................................46
(b) Assignment....................................................................................47
(c) Notices.......................................................................................47
(d) Inspection and Audit Rights...................................................................48
(e) Governing Law.................................................................................48
(f) Amendment.....................................................................................48
(g) Severability of Provisions....................................................................50
(h) No Joint Venture..............................................................................50
(i) Recordation of Agreement; Counterparts........................................................50
(j) Limitation of Liability of [owner trustee]....................................................50
(k) Nonpetition Covenants.........................................................................50
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SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Home Equity Loan Trust 200_ Asset Backed Notes and Asset
Backed Certificates Series 200_
SCHEDULE III [________] Home Equity Loan Trust 200_ Asset Backed Notes and
Asset Backed Certificates Series 200_
SCHEDULE IV Home Equity Loan Trust 200_ Asset Backed Notes and Asset
Backed Certificates Series 200_
EXHIBIT A FORM OF INITIAL CERTIFICATION OF TRUSTEE
EXHIBIT B FORM OF FINAL CERTIFICATION OF TRUSTEE
EXHIBIT C REQUEST FOR RELEASE (for Trustee)
EXHIBIT D REQUEST FOR RELEASE OF DOCUMENTS
iii
SALE AND SERVICING AGREEMENT
THIS SALE AND SERVICING AGREEMENT is made and entered into as of
[_________], by and among Home Equity Loan Trust 200_, a statutory business
trust formed under the laws of the State of [Delaware] (the "Issuer"),
[__________], a [_____________ banking] corporation (the "Master Servicer" or,
in its capacity as seller, the "Seller") and [__________], a [__________]
corporation (in its capacity as trustee under the Indenture referred to below,
the "Trustee").
PRELIMINARY STATEMENT
The Issuer was formed for the purpose of issuing asset backed notes and
asset backed certificates secured by mortgage collateral. The Issuer has entered
into a trust indenture, dated as of [ ] (the "Indenture"), between the Issuer
and the Trustee, pursuant to which the Issuer intends to issue its Home Equity
Loan Asset Backed Notes and Home Equity Loan Asset Backed Certificates, Series
200_, in the aggregate initial principal amount of $[ ] (the "Securities").
Pursuant to the Indenture, as security for the indebtedness represented by such
Securities, the Issuer is and will be pledging to the Trustee, or granting the
Trustee a security interest in, among other things, certain Mortgage Loans and
Additional Balances, its rights under this Agreement, the Payment Account, the
Collection Account [and certain Insurance Policies] (as each such term is
defined herein).
The parties desire to enter into this Agreement to provide, among other
things, for the servicing of the Mortgage Loans by the Master Servicer. The
Master Servicer acknowledges that, in order further to secure the Securities,
the Issuer is and will be granting to the Trustee a security interest in, among
other things, its rights under this Agreement, and the Master Servicer agrees
that all covenants and agreements made by the Master Servicer herein with
respect to the Mortgage Loans shall also be for the benefit and security of the
Trustee and Holders of the Securities. For its services hereunder, the Master
Servicer will receive a Master Servicing Fee (as defined herein) with respect to
each Mortgage Loan serviced hereunder.
Section 1. Defined Terms.
Except as otherwise specified or as the context may otherwise require,
the following terms have the respective meanings set forth below for all
purposes of this Agreement, and the definitions of such terms are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms:
Advance: The payment required to be made by the Master Servicer with
respect to any Distribution Date pursuant to Section 4, the amount of any such
payment being equal to the aggregate of payments of principal and interest (net
of the Master Servicing Fee and net of any net income in the case of any REO
Property) on the Mortgage Loans that were due on the related Due Date and not
received as of the close of business on the related Determination Date, less the
aggregate amount of any such delinquent payments that the Master Servicer has
determined would constitute a Nonrecoverable Advance if advanced.
Additional Balance: With respect to any Mortgage Loan, any future Draw
made by the related Mortgagor pursuant to the related Loan Agreement after the
Cut-off Date in the case of an Initial Loan, or after the Deposit Date in the
case of an Additional Loan; provided, however, that if an Amortization Event
occurs, then any Draw after such Amortization Event shall not be acquired by the
Issuer and shall not be an Additional Balance.
Additional Loans: All home equity line of credit loans sold by
[________] to the Issuer after the Closing Date.
Administration Agreement: The Administration Agreement dated as of
___________, 200_ among the Issuer, the Trustee and [______________], as
Administrator, as it may be amended from time to time.
Administrator: [______________], as administrator under the
Administration Agreement or any successor Administrator appointed pursuant to
the terms of the Administration Agreement.
Agreement: Means this Master Servicing Agreement, as the same may be
amended or supplemented from time to time.
Appraised Value: With respect to any Mortgaged Property, either (x) the
value set forth in an appraisal of such Mortgaged Property made to establish
compliance with the underwriting criteria then in effect in connection with the
later of the application for the Mortgage Loan secured by such Mortgaged
Property or any subsequent increase or decrease in the related Credit Limit or
to reduce or eliminate the amount of any primary insurance, or (y) if the sales
price of the Mortgaged Property is considered in accordance with the
underwriting criteria applicable to the Mortgage Loan, the lesser of (i) the
appraised value referred to in (x) above and (ii) the sales price of such
Mortgaged Property.
Asset Balance: With respect to any Mortgage Loan, other than a
Liquidated Mortgage Loan, and as of any day, the related Cut-off Date Asset
Balance or Deposit Date Asset Balance, [plus (i) any Additional Balances in
respect of such Mortgage Loan conveyed to the Issuer,] minus [(ii)] all
collections credited as principal in respect of any such Mortgage Loan in
accordance with the related Loan Agreement (except for any such collections that
are allocable to the Excluded Amount) and applied in reduction of the Asset
Balance thereof. For purposes of this definition, a Liquidated Mortgage Loan
shall be deemed to have an Asset Balance equal to the Asset Balance of the
related Mortgage Loan immediately prior to the final recovery of all related
Liquidation Proceeds and an Asset Balance of zero thereafter.
Assignment of Mortgage: With respect to any Mortgage, an assignment,
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction in which the related Mortgaged Property is
located to reflect the conveyance of the Mortgage, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction.
Bankruptcy Code: Means the United States Bankruptcy Reform Act of 1978,
as amended.
Basic Documents: The Trust Agreement, the Certificate of Trust, the
Indenture, the Insurance Agreement, the Administration Agreement, the Master
Servicing Agreement, the Custodial Agreement and the other documents and
certificates delivered in connection with any of the above.
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Billing Cycle: With respect to any Mortgage Loan and Due Date, the
calendar month preceding such Due Date.
Business Day: 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
[_____________] are required or authorized by law to be closed.
Certificateholder: The Person in whose name a Certificate is registered
in the Certificate Register except that, any Certificate registered in the name
of the Issuer, the Owner Trustee or the Trustee or any Affiliate of any of them
shall be deemed not to be outstanding and the registered holder will not be
considered a Certificateholder or a holder for purposes of giving any request,
demand, authorization, direction, notice, consent or waiver under the Indenture
or the Trust Agreement provided that, in determining whether the Trustee or the
Owner Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates that the
Trustee or the Owner Trustee knows to be so owned shall be so disregarded.
Owners of Certificates that have been pledged in good faith may be regarded as
Holders if the pledgee establishes to the satisfaction of the Trustee or the
Owner Trustee, as the case may be, the pledgee's right so to act with respect to
such Certificates and that the pledgee is not the Issuer, any other obligor upon
the Certificates or any Affiliate of any of the foregoing Persons.
Certificates: The Home Equity Loan Asset Backed Certificates, Series
200_-_, each evidencing undivided beneficial interests in the Issuer and
executed by the Owner Trustee in substantially the form set forth in Exhibit A
to the Trust Agreement.
Class: The Notes or the Certificates, as the case may be.
Closing Date: ___________, 200_.
Code: The Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
Collateral: The meaning specified in the Granting Clause of the
Indenture.
Collection Account: Means the Eligible Account or Accounts established
and maintained by the Master Servicer in accordance with Section 3(h)(iii).
Collection Period: With respect to any Mortgage Loan and Payment Date
other than the first Payment Date, the calendar month preceding any such Payment
Date and with respect to the first Payment Date, the period from _____________
through [___________].
Combined Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date, the percentage equivalent of a fraction, the numerator of which is the sum
of (i) the greater of (x) the Credit Limit and (y) the Cut-off Date Asset
Balance of such Mortgage Loan and (ii) the outstanding principal balance as of
the date of the origination of such Mortgage Loan (or any subsequent date as of
which such outstanding principal balance may be determined in connection with an
increase or decrease in the Credit Limit or to reduce the amount of primary
insurance for such Mortgage Loan) of any mortgage loan or mortgage loans that
are secured by liens on the Mortgaged Property that are senior or subordinate to
the Mortgage and the denominator of which is the Appraised Value of the related
Mortgaged Property.
3
Corporate Trust Office: The designated office of the Trustee in the
State of ________ at which at any particular time its corporate trust business
with respect to this Agreement shall be administered, which office at the date
of the execution of this Agreement is located at
__________________________________ (Attn:
____________________________________, facsimile no. ________________,
and which is the address to which notices to and correspondence with the
Trustee should be directed.
Credit Limit: With respect to any Mortgage Loan, the maximum Asset
Balance permitted under the terms of the related Loan Agreement.
Custodial Agreement: Any Custodial Agreement between the Custodian, the
Trustee, the Issuer and the Master Servicer relating to the custody of the
Mortgage Loans and the Related Documents.
Custodian: With respect to the Mortgage Loans, [______________], a
[_______________], and its successors and assigns.
Cut-Off Date: With respect to the Initial Loans ________, 200_.
Deleted Mortgage Loan: Has the meaning ascribed thereto in Section 5.
[Deposit Date: The applicable date as of which any Additional Loan is
sold to the Issuer.
Deposit Date Asset Balance: With respect to any Additional Loan, the
Asset Balance thereof as of the Deposit Date.]
Determination Date: As to any Distribution Date, the ____ day of each
month or if such ____ day is not a Business Day the next preceding Business Day;
provided, however, that if such ____ day or such Business Day, whichever is
applicable, is less than two Business Days prior to the related Distribution
Date, the Determination Date shall be the first Business Day which is two
Business Days preceding such Distribution Date.
Distribution Date: The ____ day of each calendar month after the
initial issuance of the Certificates, or if such ____ day is not a Business Day,
the next succeeding Business Day, commencing in ____________, 200_.
Draw: With respect to any Mortgage Loan, a borrowing by the Mortgagor
under the related Loan Agreement.
Due Date: With respect to the Mortgage Loans, the [__]th day of the
month.
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Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Securityholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
(a) the trust department of a federal or state chartered depository institution
or (b) a trust company, acting in its fiduciary capacity or (iv) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
Eligible Substitute Mortgage Loan: A Mortgage Loan substituted by
[________] for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in an Officers' Certificate 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 outstanding principal balance of the Deleted Mortgage Loan (the amount of
any shortfall to be deposited by the Seller in the Collection Account in the
month of substitution); (ii) have a Loan Rate not less than the Loan Rate of the
Deleted Mortgage Loan and not more than __% in excess of the Loan Rate of such
Deleted Mortgage Loan; (iii) have a Loan Rate based on the same index with
adjustments to such Loan Rate made on the same interest rate adjustment date as
that of the Deleted Mortgage Loan; (iv) have a Margin that is not less than the
Margin of the Deleted Mortgage Loan and not more than _____ basis points higher
than the Margin for the Deleted Mortgage Loan; (v) have a mortgage of the same
or higher level of priority as the mortgage relating to the Deleted Mortgage
Loan; (vi) have a remaining term to maturity not more than ____ months earlier
and not more than ____ months later than the remaining term to maturity of the
Deleted Mortgage Loan; (vii) comply with each representation and warranty as to
the Mortgage Loans set forth herein (deemed to be made as of the date of
substitution); (viii) in general, have an original Combined Loan-to-Value Ratio
not greater than that of the Deleted Mortgage Loans; and (ix) satisfy certain
other conditions specified in the Purchase Agreement. To the extent the
Principal Balance of an Eligible Substitute Mortgage Loan is less than the
Principal Balance of the related Deleted Mortgage Loan, the Seller will be
required to make a deposit tot he Collection Account equal to such difference;
and (x) not be __ days or more delinquent.
Escrow Account: Means the Eligible Account or Accounts established and
maintained pursuant to Section 3(i) hereof.
5
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the Master
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3(k)(i)(C), exceeds (i) the unpaid principal balance of such
Liquidated Mortgage Loan as of the Due Date in the month in which such Mortgage
Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at the
Mortgage Rate from the Due Date as to which interest was last paid or advanced
(and not reimbursed) to Securityholders up to the Due Date applicable to the
Distribution Date immediately following the calendar month during which such
liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
Fitch: Fitch Ratings, or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section 8(c)
the address for notices to Fitch shall be Fitch Ratings, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: _______________________________________, or
such other address as Fitch may hereafter furnish to [________] and the Master
Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Gross Margin: With respect to any Mortgage Loan, the percentage set
forth as the "Gross Margin" for such Mortgage Loan on the Mortgage Loan
Schedule, as adjusted from time to time with respect to any [______________]
Loan in accordance with the terms of this Agreement.
Holder: Any of the Noteholders or Securityholders.
Increased Senior Lien Limitation: shall have the meaning set forth in
Section 3(a).
Indenture: Means the trust indenture, dated as of the date hereof,
between the Issuer and the Trustee, as such Indenture may be amended or
supplemented from time to time in accordance with its terms.
[Insurance Agreement: The insurance and reimbursement agreement dated
as of ______________, 200_ among the Master Servicer, the Seller, [________],
the Issuer and the Credit Enhancer, including any amendments and supplements
thereto.]
Insurance Policy: Means, with respect to any Mortgage Loan, any
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
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Insurance Proceeds: Proceeds paid by any insurer pursuant to any
insurance policy covering a Mortgage Loan which are required to be remitted to
the Master Servicer, or amounts required to be paid by the Master Servicer
pursuant to the last sentence of Section [ ] of the Master Servicing Agreement,
net of any component thereof (i) covering any expenses incurred by or on behalf
of the Master Servicer in connection with obtaining such proceeds, (ii) that is
applied to the restoration or repair of the related Mortgaged Property, (iii)
released to the Mortgagor in accordance with the Master Servicer's normal
servicing procedures or (iv) required to be paid to any holder of a mortgage
senior to such Mortgage Loan.
Interest Period: With respect to any Payment Date other than the first
Payment Date, the period beginning on the preceding Payment Date and ending on
the day preceding such Payment Date, and in the case of the first Payment Date,
the period beginning on the Closing Date and ending on the day preceding the
first Payment Date.
Issuer: Home Equity Loan Trust 200_-_, a Delaware business trust, or
its successor in interest.
Issuer Request: A written order or request signed in the name of the
Issuer by any one of its Authorized Officers and delivered to the Trustee.
Lien: Any mortgage, deed of trust, pledge, conveyance, hypothecation,
assignment, participation, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority right or interest or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC (other than
any such financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing; provided,
however, that any assignment pursuant to Section [ ] of the Master Servicing
Agreement shall not be deemed to constitute a Lien.
Lifetime Rate Cap: With respect to each Mortgage Loan with respect to
which the related Mortgage Note provides for a lifetime rate cap, the maximum
Loan Rate permitted over the life of such Mortgage Loan under the terms of such
Mortgage Note, as set forth on the Mortgage Loan Schedule and initially as set
forth on Exhibit A to the Master Servicing Agreement.
Liquidated Mortgage Loan: With respect to any Payment Date, any
Mortgage Loan in respect of which the Master Servicer has determined, in
accordance with the servicing procedures specified in the Master Servicing
Agreement, as of the end of the related Collection Period that substantially all
Liquidation Proceeds which it reasonably expects to recover with respect to the
disposition of the related REO have been recovered.
Liquidation Expenses: Out-of-pocket expenses (exclusive of overhead)
which are incurred by or on behalf of the Master Servicer in connection with the
liquidation of any Mortgage Loan and not recovered under any insurance policy,
such expenses including, without limitation, legal fees and expenses, any
unreimbursed amount expended (including, without limitation, amounts advanced to
correct defaults on any mortgage loan which is senior to such Mortgage Loan and
amounts advanced to keep current or pay off a mortgage loan that is senior to
such Mortgage Loan) respecting the related Mortgage Loan and any related and
unreimbursed expenditures for real estate property taxes or for property
restoration, preservation or insurance against casualty loss or damage.
7
Liquidation Loss Amounts: With respect to any Payment Date and any
Mortgage Loan that became a Liquidated Mortgage Loan during the related
Collection Period, the unrecovered portion of the related Asset Balance thereof
at the end of such Collection Period, after giving effect to the Net Liquidation
Proceeds applied in reduction of the Asset Balance.
Liquidation Proceeds: Proceeds (including Insurance Proceeds [but not
including amounts drawn under the Credit Enhancement Instrument]) received in
connection with the liquidation of any Mortgage Loan or related REO, whether
through trustee's sale, foreclosure sale or otherwise.
Loan Agreement: With respect to any Mortgage Loan, the credit line
account agreement executed by the related Mortgagor and any amendment or
modification thereof.
Loan Rate: With respect to any Mortgage Loan and any day, the sum of
the Index Rate and the Margin.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to any
date of determination, (i) the principal balance of such Mortgage Loan divided
by (ii) the Collateral Value of the related Mortgaged Property.
Margin: The [spread].
Master Servicer: Means [___________________], a [___________ banking]
corporation, and its successors and assigns, in its capacity as master servicer
hereunder.
Master Servicer Advance Date: Means as to any Distribution Date, 12:30
p.m. Pacific time on the Business Day immediately preceding such Distribution
Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution
Date, an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the Due
Date in the month of such Distribution Date (prior to giving effect to any
Scheduled Payments due on such Mortgage Loan on such Due Date), subject to
reduction as provided in Section 5.
Master Servicing Fee Rate: Means with respect to each Mortgage Loan,
[ ]% per annum.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., or any successor thereto. If
▇▇▇▇▇'▇ is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 8(c) the address for notices to Moody's shall be ▇▇▇▇▇'▇
Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
___________________________________, or such other address as Moody's may
hereafter furnish to [________] or the Master Servicer.
8
Mortgage: The mortgage, deed of trust or other instrument creating a
first or second lien on an estate in fee simple interest in real property
securing a Mortgage Loan.
Mortgage File: The file containing the Related Documents pertaining to
a particular Mortgage Loan and any additional documents required to be added to
the Mortgage File pursuant to the Master Servicing Agreement.
Mortgage Loan Schedule: With respect to any date, the schedule of
Mortgage Loans included in the Trust Estate on such date. The initial schedule
of Mortgage Loans as of the Cut-Off Date is the schedule set forth in Exhibit A
of the Master Servicing Agreement, which schedule sets forth as to each Mortgage
Loan (i) the Cut-Off Date Trust Balance, (ii) the Credit Limit, (iii) the Gross
Margin, (iv) the name of the Mortgagor, (v) the Lifetime Rate Cap, if any, (vi)
the loan number, (vii) an indication as to the applicable Mortgage Loan Group,
and (viii) the lien position of the related Mortgage. The Mortgage Loan Schedule
will be amended from time to time by annex to reflect Additional Loans.
Mortgage: Means the mortgage, deed of trust or other instrument
creating a first lien on an estate in fee simple or leasehold interest in real
property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2(a)(i) hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loans: At any time, collectively, all Initial Loans [and
Additional Loans, in each case including Additional Balances, if any, that have
been sold transferred to the Trust,] in each case together with the Related
Documents, and that remain subject to the terms thereof. Such schedule shall
also set forth the total of the amounts described under (iv) and (v) above for
all of the Mortgage Loans.
Mortgage Note: With respect to a Mortgage Loan, the Loan Agreement
pursuant to which the related mortgagor agrees to pay the indebtedness evidenced
thereby and secured by the related Mortgage as modified or amended.
Mortgaged Property: The underlying property, including real property
and improvements thereon, securing a Mortgage Loan.
Mortgagor: The obligor or obligors under a Loan Agreement.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan,
Liquidation Proceeds net of Liquidation Expenses.
Net Loan Rate: With respect to any Mortgage Loan and any day, the
related Loan Rate less the related Servicing Fee Rate.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
9
Notes: The Notes designated as the "Notes" in the Indenture.
Noteholder or Holder: Means the Person in whose name a Note is
registered in the Note Register (as defined in the Indenture).
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of [________] or the Master Servicer, or (ii), if provided for in
this Agreement, signed by a Servicing Officer, as the case may be, and delivered
to [________] and the Trustee, as the case may be, as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for ______________ or the Master Servicer, including, in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect to
the interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of ______________ and the Master Servicer, (ii) not have
any direct financial interest in ______________ or the Master Servicer or in any
affiliate of either, and (iii) not be connected with ______________ or the
Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Owner Trust Estate: The corpus of the Issuer created by the Trust
Agreement which consists of the Mortgage Loans, such assets as shall from time
to time be deposited in the Collection Account and/or the Payment Account
allocable to the Mortgage Loans in accordance with the Trust Agreement, property
that secured a Mortgage Loan and that has become REO, certain hazard insurance
policies maintained by the Mortgagors or by or on behalf of the Master Servicer
in respect of the Mortgage Loans, [the Credit Enhancement Instrument,] and the
obligation of ______________ to purchase Additional Balances and all proceeds of
each of the foregoing.
Owner Trustee: [______________], and its successors and assigns or any
successor owner trustee appointed pursuant to the terms of the Trust Agreement.
Paying Agent: Any paying agent or co-paying agent appointed pursuant to
Section 3.03 of the Indenture, which initially shall be [______________].
Payment Account: The account established by the Trustee pursuant to
Section 8.02 of the Indenture and Section [ ] of the Master Servicing Agreement.
The Payment Account shall be an Eligible Account.
10
Payment Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3(h) in the name of the Trustee for the
benefit of the Securityholders and designated "_________________________ in
trust for registered holders of Home Equity Loan Trust Asset Backed
Certificates, Series 200_-_." Funds in the Payment Account shall be held in
trust for the Securityholders for the uses and purposes set forth in this
Agreement.
Payment Account Deposit Date: As to any Distribution Date, 12:30 p.m.
Pacific time on the Business Day immediately preceding such Distribution Date.
Payment Date: The [___] day of each month, or if such day is not a
Business Day, then the next Business Day.
Percentage Interest: With respect to any Note, the percentage obtained
by dividing the Security Balance of such Note by the aggregate of the Security
Balances of all Notes of the same Class. With respect to any Certificate, the
percentage obtained by dividing the denomination specified on such Certificate
by the Initial Principal Balance of the Certificates.
Permitted Investments: At any time, any one or more of the following
obligations and securities: (i) obligations of the United States or any agency
thereof, provided such obligations are backed by the full faith and credit of
the United States; (ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving the highest
long-term debt rating of each Rating Agency rating the related Series of
Securities, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Securities by each such Rating
Agency; (iii) commercial or finance company paper (including, without
limitation, commercial paper issued by _____________________ or any of its
affiliates) which is then receiving the highest commercial or finance company
paper rating of each such Rating Agency, or such lower rating as will not result
in the downgrading or withdrawal of the ratings then assigned to the Securities
by each such Rating Agency; (iv) certificates of deposit, demand or time
deposits, or bankers' acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or long term unsecured debt
obligations of such depository institution or trust company (or in the case of
the principal depository institution in a holding company system, the commercial
paper or long-term unsecured debt obligations of such holding company, but only
if ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇") is not a Rating Agency) are then
rated one of the two highest long-term and the highest short-term ratings of
each such Rating Agency for such securities, or such lower ratings as will not
result in the downgrading or withdrawal of the rating then assigned to the
Securities by any such Rating Agency; (iv) demand or time deposits or
certificates of deposit issued by any bank or trust company or savings
institution to the extent that such deposits are fully insured by the FDIC; (v)
guaranteed reinvestment agreements issued by any bank, insurance company or
other corporation containing, at the time of the issuance of such agreements,
such terms and conditions as will not result in the downgrading or withdrawal of
the rating then assigned to the Securities by any such Rating Agency; (vi)
repurchase obligations with respect to any security described in clauses (i) and
(ii) above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above; (vii) securities
(other than stripped bonds, stripped coupons or instruments sold at a purchase
price in excess of 115% of the face amount thereof) bearing interest or sold at
a discount issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment, have one of
the two highest ratings of each Rating Agency (except if the Rating Agency is
Moody's, such rating shall be the highest commercial paper rating of Moody's for
any such securities), or such lower rating as will not result in the downgrading
or withdrawal of the rating then assigned to the Securities by any such Rating
Agency, as evidenced by a signed writing delivered by each such Rating Agency;
and (viii) such other investments having a specified stated maturity and bearing
interest or sold at a discount acceptable to each Rating Agency as will not
result in the downgrading or withdrawal of the rating then assigned to the
Securities of such Series by any such Rating Agency, as evidenced by a signed
writing delivered by each such Rating Agency; provided that no such instrument
shall be a Permitted Investment if such instrument evidences the right to
receive interest only payments with respect to the obligations underlying such
instrument.
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Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
[Policy: The irrevocable and unconditional limited financial guaranty
insurance policy number [__________], dated as of the Closing Date, issued by
the Credit Enhancer to the Trustee for the benefit of the Noteholders and to the
Certificate Paying Agent as agent for the Issuer for the benefit of the
Securityholders.]
Pool Balance: With respect to any date, the aggregate of the Asset
Balances of all Mortgage Loans as of such date.
Prepayment Period: As to any Distribution Date, the period from the
__th day of the calendar month preceding the month of such Distribution Date
(or, in the case of the first Distribution Date, from the Cut-off Date) through
the __th of the month of such Distribution Date.
Principal Balance: With respect to any Payment Date, the Initial
Principal Balance thereof, reduced by all distributions of principal thereon
prior to such Payment Date.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer in accordance with
the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Prospectus Supplement: Means the Prospectus Supplement dated [ ]
relating to the Notes.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to Section 2(a)(ii) or 2(d)(iv) hereof or
purchased at the option of the Master Servicer pursuant to Section 3(n), an
amount equal to the sum of (i) 100% of the unpaid principal balance of the
Mortgage Loan on the date of such purchase, and (ii) accrued interest thereon at
the applicable Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x)
the purchaser is the Master Servicer or (y) if the purchaser is the Seller and
the Seller is the Master Servicer) from the date through which interest was last
paid by the Mortgagor to the Due Date in the month in which the Purchase Price
is to be distributed to Securityholders.
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Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and each
state having jurisdiction over such insurer in connection with the insurance
policy issued by such insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a
FNMA-approved mortgage insurer and having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
Rating Agency: Any nationally recognized statistical rating
organization, or its successor, that rated the Securities at the request of
[________] at the time of the initial issuance of the Securities. Initially,
[________] or [__________]. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, designated by [________],
notice of which designation shall be given to the Trustee. References herein to
the highest short term unsecured rating category of a Rating Agency shall mean
[___] or better in the case of [__________]and [___] or better in the case of
[_____] and in the case of any other Rating Agency shall mean such equivalent
ratings. References herein to the highest long-term rating category of a Rating
Agency shall mean "[___]" in the case of [__________] and [_____] in the case of
[________] and in the case of any other Rating Agency, such equivalent rating.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Securityholders up to
the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan which has become
the subject of a Deficient Valuation, if the principal amount due under the
related Mortgage Note has been reduced, 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. With respect to each Mortgage Loan which has become the
subject of a Debt Service Reduction and any Distribution Date, the amount, if
any, by which the principal portion of the related Scheduled Payment has been
reduced.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
13
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month is
less than (ii) interest accrued thereon for such month pursuant to the Mortgage
Note.
REO Property: A Mortgaged Property acquired by the Issuer through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan required to be
repurchased on any date pursuant hereto or purchased by the Master Servicer
pursuant to the Master Servicing Agreement, an amount equal to the sum of (i)
100% of the Asset Balance thereof (without reduction for any amounts charged
off) and (ii) unpaid accrued interest at the Loan Rate on the outstanding
principal balance thereof from the Due Date to which interest was last paid by
the Mortgagor to the first day of the month following the month of purchase. No
portion of any Repurchase Price shall be included in the Excluded Amount for any
Payment Date.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits C and D, as
appropriate.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under this
Agreement.
SAIF: Means the Savings Association Insurance Fund, or any successor
thereto.
S&P: Means Standard & Poor's, A Division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
If S&P is designated as a Rating Agency in the Indenture, for purposes of
Section 8(c) the address for notices to S&P shall be Standard & Poor's, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [__________________], or such other
address as S&P may hereafter furnish to the Issuer and the Master Servicer.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
Security: Any of the Certificates or Notes.
Securityholder or Holder: Any Noteholder or any Certificateholder.
Seller: [__________________], and its successors and assigns.
Servicer Advance: Means the meaning ascribed to such term in Section
3(h)(iv).
Servicing Account: Means the separate Eligible Account or Accounts
created and maintained pursuant to Section 3(h)(ii).
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer of
its servicing obligations, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3(n) and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3(l).
14
Servicing Default: Means a servicing default as described under Section
7(a) of this Agreement.
Servicing Fee: Means, as to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the applicable Servicing Fee
Rate on the Stated Principal Balance of such Mortgage Loan.
Servicing Fee Rate: Means, with respect to any Mortgage Loan, the per
annum rate set forth in the Mortgage Loan Schedule for such Mortgage Loan.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Subservicer: Any Person with whom the Master Servicer has entered into
a Subservicing Agreement as a Subservicer by the Master Servicer pursuant to
Section 3(b).
Subservicing Agreement: The written contract between the Master
Servicer and any Subservicer relating to servicing and administration of certain
Mortgage Loans as provided in Section [ ] of the Master Servicing Agreement.
Subservicing Fee: With respect to any Mortgage Loan and any Collection
Period, the fee retained monthly by the Subservicer (or, in the case of a
nonsubserviced Mortgage Loan, by the Master Servicer) equal to the product of
(i) the Subservicing Fee Rate divided by 12 and (ii) the aggregate Asset Balance
of the Mortgage Loans as of the first day of such Collection Period.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for
a Deleted Mortgage Loan which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit C, (i)
have a Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
more than 10% less than the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) be accruing interest at a rate no lower than and not more than 1% per
annum higher than, that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value
Ratio no higher than that of the Deleted Mortgage Loan; (iv) have a remaining
term to maturity no greater than (and not more than one year less than that of)
the Deleted Mortgage Loan; and (v) comply with each representation and warranty
set forth in Section 2(d) hereof.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2(d)(iv).
Trust Agreement: Means the Trust Agreement, dated as of [ ], between
[________] and the Owner Trustee, as such Trust Agreement may be amended or
supplemented from time to time.
15
Trustee: Shall mean [______________], and its successors and assigns or
any successor trustee appointed pursuant to the terms of the Indenture.
Trustees: Shall mean the Trustee and the Owner Trustee.
Trust Estate: Shall have the meaning ascribed to such term in the
Indenture.
UCC: The Uniform Commercial Code, as amended from time to time, as in
effect in any specified jurisdiction.
Withdrawal Date: Means the ____ day of each month, or if such day is
not a Business Day, the next preceding Business Day.
Section 2. Conveyance of Mortgage Loans; Representations and
Warranties.
(a) Conveyance of Mortgage Loans; Retention of Obligation to Fund
Advances Under Credit Line Agreements.
[________], concurrently with the execution and delivery of this
Agreement, does hereby transfer, assign, set over and otherwise convey to the
Trust without recourse (subject to Sections 2(b)and 2(d) all of its right, title
and interest in and to (i) each Mortgage Loan, including its Asset Balance
(including all Additional Balances) and all collections in respect thereof
received on or after the Cut-off Date (excluding payments in respect of accrued
interest due prior to the Cut-off Date or due in the month of ____________);
(ii) property that secured a Mortgage Loan that is acquired by foreclosure or
deed in lieu of foreclosure; (iii) [[________]'s rights under the hazard
insurance policies,] (iv) the Collection Account (excluding net earnings
thereon); (vii) the Policy, (viii) the Payment Account and (ix) all other assets
included or to be included in the Trust for the benefit of Securityholders;
provided, however, neither the Trustee nor the Trust assumes the obligation
under any Credit Line Agreement that provides for the funding of future advances
to the Mortgagor thereunder, and neither the Trust nor the Trustee shall be
obligated or permitted to fund any such future advances. Additional Balances
shall be part of the related Asset Balance and are hereby transferred to the
Trust on the Closing Date pursuant to this Section 2(a), and therefore part of
the Trust property. In addition, on or prior to the Closing Date, [________]
shall cause the Credit Enhancer to deliver the Policy to the Trustee for the
benefit of the Securityholders. The foregoing transfer, assignment, set-over and
conveyance to the Trust shall be made to the Trustee, on behalf of the Trust,
and each reference in this Agreement to such transfer, assignment, set-over and
conveyance shall be construed accordingly.
[________] agrees to take or cause to be taken such actions and execute
such documents (including without limitation the filing of all necessary
continuation statements for the UCC-1 financing statements filed in the State of
__________ (which shall have been filed within 90 days of the Closing Date)
describing the Cut-off Date Asset Balances and Additional Balances and naming
[________] as debtor and the Trustee as secured party and any amendments to
UCC-1 financing statements required to reflect a change in the name or corporate
structure of [________] or the filing of any additional UCC-1 financing
statements due to the change in the principal office of [________] (within 90
days of any event necessitating such filing) as are necessary to perfect and
protect the Securityholders' and Credit Enhancer's interests in each Cut-off
Date Asset Balance and Additional Balances and the proceeds thereof (other than
maintaining possession by the Trustee of the Mortgage Loans and the Mortgage
Files, which possession will, subject to the terms hereof, be maintained by the
Master Servicer as custodian and bailee of the Trustee).
16
In connection with such transfer and assignment by [________], the
Master Servicer acknowledges that it is holding as custodian and bailee for the
Trustee the following documents or instruments (the "Related Documents") with
respect to each Mortgage Loan:
(A) the original Mortgage Note endorsed in blank;
(B) an original Assignment of Mortgage in blank in recordable
form;
(C) the original recorded Mortgage or, if, in connection with
any Mortgage Loan, the original recorded Mortgage with evidence of
recording thereon cannot be delivered on or prior to the Closing
Date because of a delay caused by the public recording office where
such original Mortgage has been delivered for recordation or because
such original Mortgage has been lost, [________], shall deliver or
cause to be delivered to the Custodian, as agent for the Trustee, a
true and correct copy of such Mortgage, together with (i) in the
case of a delay caused by the public recording office, an Officer's
Certificate of [________] stating that such original Mortgage has
been dispatched to the appropriate public recording official or (ii)
in the case of an original Mortgage that has been lost, a
certificate by the appropriate county recording office where such
Mortgage is recorded;
(D) if applicable, the original intervening assignments, if
any ("Intervening Assignments"), with evidence of recording thereon,
showing a complete chain of title to the Mortgage from the
originator to [________] or, if any such original Intervening
Assignment has not been returned from the applicable recording
office or has been lost, a true and correct copy thereof, together
with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Seller stating that such
original Intervening Assignment has been dispatched to the
appropriate public recording official for recordation or (ii) in the
case of an original Intervening Assignment that has been lost, a
certificate by the appropriate county recording office where such
Mortgage is recorded;
(E) either (1) for each Mortgage Loan with a Credit Limit in
excess of $_________, a title policy or (2) for all other Mortgage
Loans, either a title policy, a title search or guaranty of title
with respect to the related Mortgaged Property;
(F) the original of any guaranty executed in connection with
the Mortgage Note;
17
(G) the original of each assumption, modification,
consolidation or substitution agreement, if any, relating to the
Mortgage Loan; and
(H) any security agreement, chattel mortgage or equivalent
instrument executed in connection with the Mortgage;
provided, however, that as to any Mortgage Loan, if (a) as evidenced by an
Opinion of Counsel delivered to and in form and substance satisfactory to the
Trustee and the Credit Enhancer, (x) an optical image or other representation of
the related documents specified in clauses (i) through (viii) above are
enforceable in the relevant jurisdictions to the same extent as the original of
such document and (y) such optical image or other representation does not impair
the ability of an owner of such Mortgage Loan to transfer its interest in such
Mortgage Loan, and (b) the retention of such documents in such format will not
result in a reduction in the then current rating of the Notes or Certificates,
without regard to the Policy, such optical image or other representation may be
held by the Master Servicer, as custodian for the Trustee or assignee in lieu of
the physical documents specified above.
The Seller hereby confirms to the Trustee that it has caused the
portions of its electronic ledgers relating to the Mortgage Loans to be clearly
and unambiguously marked, and has made the appropriate entries in its general
accounting records, to indicate that such Mortgage Loans have been transferred
to the Trust at the direction of [________]. The Master Servicer hereby confirms
to the Trustee that it has clearly and unambiguously made appropriate entries in
its general accounting records indicating that such Mortgage Loans constitute
part of the Trust and are serviced by it on behalf of the Trust in accordance
with the terms hereof.
The parties hereto intend that the transaction set forth herein be a
sale by [________] to the Trust of all [________]'s right, title and interest in
and to the Mortgage Loans and other property described above. In the event the
transaction set forth herein is deemed not to be a sale, [________] hereby
grants to the Trust a security interest in all of [________]'s right, title and
interest in, to and under the Mortgage Loans whether now existing or hereafter
created, all monies due or to become due on the Mortgage Loans and all proceeds
of any thereof; and this Agreement shall constitute a security agreement under
applicable law.
Except as hereinafter provided, the Master Servicer shall be entitled
to maintain possession of all of the foregoing documents and instruments and
shall not be required to deliver any of them to the Trustee or the Owner
Trustee. In the event, however, that possession of any of such documents or
instruments is required by any Person (including any such Trustee) acting as
successor servicer pursuant to Section 6(d) or 7(b) in order to carry out the
duties of Master Servicer hereunder, then such successor shall be entitled to
request delivery, at the expense of the Master Servicer, of such documents or
instruments by the Master Servicer and to retain such documents or instruments
for servicing purposes; provided that the Trustee or such servicers shall
maintain such documents at such offices as may be required by any regulatory
body having jurisdiction over such Mortgage Loans.
18
The Master Servicer's right to maintain possession of the documents
enumerated above shall continue so long as the long term unsecured debt of [ ]
is assigned ratings of at least "____" by __________________ and "____" by
_______________. At such time as the condition specified in the preceding
sentence is not satisfied, as promptly as practicable but in no event more than
__ days in the case of clause (i) below and __ days in the case of clause (ii)
below following the occurrence of such event (a "Delivery Event"), the Master
Servicer shall, at its expense, (i) either (x) record an assignment of Mortgage
in favor of the Trustee (which may be a blanket assignment if permitted by
applicable law) in the appropriate real property or other records or (y) deliver
to the Trustee the assignment of such Mortgage in favor of the Trustee in form
for recordation, together with an Opinion of Counsel addressed to the Trustee
and the Credit Enhancer to the effect that recording is not required to protect
the Trustee's right, title and interest in and to the related Mortgage Loan or,
in case a court should recharacterize the sale of the Mortgage Loans as a
financing, to perfect a first priority security interest in favor of the Trustee
in the related Mortgage Loan, which Opinion of Counsel also shall be reasonably
acceptable to each of the Rating Agencies (as evidenced in writing) and the
Credit Enhancer, and (ii) unless an Opinion of Counsel, reasonably acceptable to
the Trustee, the Rating Agencies (as evidenced in writing) and the Credit
Enhancer, is delivered to the Trustee and the Credit Enhancer to the effect that
delivery of the Mortgage Files is not necessary to protect the Trustee's right,
title and interest in the related Mortgage Loans; provided that the lack of
delivery will not result in a reduction in the then current rating of the "Notes
or Certificates", without regard to the Policy, deliver the related Mortgage
Files to the Trustee or to a custodian located in the State of [California]
appointed by the Trustee and acceptable to the Rating Agencies and the Credit
Enhancer to be held by the Custodian on behalf of the Trustees in trust, upon
the terms herein set forth, for the use and benefit of all present and future
Securityholders and the Custodian on behalf of the Trustee shall retain
possession thereof except to the extent the Master Servicer requires any
Mortgage Files for normal servicing as contemplated by Section _____. The
Trustee is hereby appointed as the attorney-in-fact of the Master Servicer with
the power to prepare, execute and record Assignments of Mortgages in the event
that the Master Servicer fails to do so on a timely basis as provided in this
paragraph.
Within 90 days following delivery, if any, of the Mortgage Files to the
Trustee pursuant to the preceding paragraph, the Trustee shall review each such
Mortgage File to ascertain that all required documents set forth in this Section
2(a) have been executed and received, and that such documents relate to the
Mortgage Loans identified on the Mortgage Loan Schedule and in so doing the
Trustee may rely on the purported due execution and genuineness of any signature
thereon. If within such 90-day period the Trustee finds any document
constituting a part of a Mortgage File not to have been executed or received or
to be unrelated to the Mortgage Loans identified in said Mortgage Loan Schedule
or, if in the course of its review, the Trustee determines that such Mortgage
File is otherwise defective in any material respect, the Trustee shall promptly
upon the conclusion of its review notify the Issuer and the Credit Enhancer, and
the Seller shall have a period of 90 days after such notice within which to
correct or cure any such defect.
The Trustee shall have no responsibility for reviewing any Mortgage
File except as expressly provided in this Section 2(a). In reviewing any
Mortgage File pursuant to this Section, the Trustee shall have no responsibility
for determining whether any document is valid and binding, whether the text of
any assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Trustee is the assignee or endorsee), whether
any document has been recorded in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction, whether any Person executing any document is authorized
to do so or whether any signature thereon is genuine, but shall only be required
to determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
19
(b) Acceptance by Trustee; Retransfer of Mortgage Loans.
The Trustee hereby acknowledges its receipt of the Policy and the
Mortgage Loans, and declares that the Trustee holds and will hold such
instrument, and to the extent that any documents are delivered to it pursuant to
Section 2(a), will hold such documents, and all amounts received by it
thereunder and hereunder, in trust, upon the terms herein set forth, for the use
and benefit of all present and future Securityholders and the Credit Enhancer.
If the time to cure any defect in respect of any Mortgage Loan of which the
Trustee has notified the Issuer and Provient, following the review pursuant to
Section 2(a) has expired or if at any time any loss is suffered by the Trustee
on behalf of the Securityholders or the Credit Enhancer, in respect of any
Mortgage Loan as a result of (i) a defect in any document constituting a part of
its Mortgage File or (ii) an Assignment of Mortgage to the Trustee not having
been recorded as required by Section 2(a),then on the next succeeding Business
Day upon satisfaction of the applicable conditions described herein, all right,
title and interest of the Trust in and to such Mortgage Loan shall be deemed to
be retransferred, reassigned and otherwise reconveyed, without recourse,
representation or warranty, to [________] on such Business Day and the Asset
Balance of such Mortgage Loan shall be deducted from the Pool Balance; provided,
however, that interest accrued on the Asset Balance of such Mortgage Loan to the
end of the related Collection Period shall be the property of the Trust. Upon
receipt of any Eligible Substitute Mortgage Loan or then as promptly as
practicable following such deemed transfer, the Trustee shall execute such
documents and instruments of transfer presented by the Seller, in each case
without recourse, representation or warranty, and take such other actions as
shall reasonably be requested by the Seller to effect such transfer by the Trust
of such Defective Mortgage Loan pursuant to this Section.
The Master Servicer, promptly following the transfer of a Defective
Mortgage Loan from or to the Trust pursuant to this Section, shall amend the
Mortgage Loan Schedule and make appropriate entries in its general account
records to reflect such transfer. The Master Servicer shall, following such
retransfer, appropriately ▇▇▇▇ its records to indicate that it is no longer
servicing such Mortgage Loan on behalf of the Trust. The Seller, promptly
following such transfer, shall appropriately ▇▇▇▇ its electronic ledger and make
appropriate entries in its general account records to reflect such transfer.
As to any Eligible Substitute Mortgage Loan or Loans, the Seller shall,
if a Delivery Event has occurred, deliver to the Trustee with respect to such
Eligible Substitute Mortgage Loan or Loans such documents and agreements as are
required to be held by the Trustee in accordance with Section 2(a). For any
Collection Period during which the Seller substitutes one or more Eligible
Substitute Mortgage Loans, the Master Servicer shall determine the Substitution
Adjustment Deposit Amount which amount shall be deposited by the Seller in the
Collection Account at the time of substitution. All amounts received in respect
of the Eligible Substitute Mortgage Loan or Loans during the Collection Period
in which the circumstances giving rise to such substitution occur shall not be a
part of the Issuer and shall not be deposited by the Master Servicer in the
Collection Account. All amounts received by the Master Servicer during the
Collection Period in which the circumstances giving rise to such substitution
occur in respect of any Defective Mortgage Loan so removed by the Issuer shall
be deposited by the Master Servicer in the Collection Account. Upon such
substitution, the Eligible 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 with respect to such Eligible Substitute Mortgage Loan or Loans, as of
the date of substitution, the covenants, representations and warranties set
forth in Section 2(d). The procedures applied by the Seller in selecting each
Eligible Substitute Mortgage Loan shall not be materially adverse to the
interests of the Trustees, the Securityholders and the Credit Enhancer.
20
(c) Documents, Records and Funds in Possession of Master Servicer to
be Held for Trustee.
(i) Notwithstanding any other provisions of this Agreement,
the Master Servicer shall transmit to the Trustee as required by this
Agreement all documents and instruments in respect of a Mortgage Loan
coming into the possession of the Master Servicer from time to time and
shall account fully to the Trustees for any funds received by the
Master Servicer or which otherwise are collected by the Master Servicer
as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan. 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, including but not limited to, any funds
on deposit in the Collection Account, shall be held by the Master
Servicer for and on behalf of the Trustees and shall be and remain the
sole and exclusive property of the Trustees, subject to the applicable
provisions of this Agreement. The Master Servicer also agrees that it
shall not create, incur or subject any Mortgage File or any funds that
are deposited in the Collection Account, Payment Account or any Escrow
Account, or any funds that otherwise are or may become due or payable
to the Trustee for the benefit of the Securityholders, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right
of setoff against any Mortgage File or any funds collected on, or in
connection with, a Mortgage Loan, except, however, that the Master
Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Master
Servicer under this Agreement.
(ii) The Master Servicer hereby acknowledges that concurrently
with the execution of this Agreement, the Trustee has acquired and
holds a security interest in the Trustee Mortgage Files and in all
Mortgage Loans represented by such Mortgage Files and in all funds now
or hereafter held by, or under the control of, the Master Servicer that
are collected by the Master Servicer in connection with the Mortgage
Loans, whether as Scheduled Payments, as Principal Prepayments, or as
Liquidation Proceeds or Insurance Proceeds, and in all proceeds of the
foregoing and proceeds of proceeds (but excluding any Master Servicing
Fees, Servicing Fees, Trustee Fees and any other amounts or
reimbursements to which the Master Servicer is entitled under this
Agreement). The Master Servicer agrees that so long as the Mortgage
Loans are assigned to the Trustee, all Master Servicer Mortgage Files
and Trustee Mortgage Files (and any documents or instruments
constituting a part of such files), and such funds which come into the
possession or custody of, or which are subject to the control of, the
Master Servicer shall be held by the Master Servicer for and on behalf
of the Trustee as the Trustee's agent and bailee for purposes of
perfecting the Trustee's security interest therein, as provided by
Section 9-305 of the Uniform Commercial Code of the state in which such
property is located, or by other laws, as specified in Section _____ of
the Indenture. The Master Servicer hereby accepts such agency and
acknowledges that the Trustee, as secured party, will be deemed to have
possession at all times of all Mortgage Files and any other documents
or instruments constituting a part of such files, such funds and other
items for purposes of Section 9-305 of the Uniform Commercial Code of
the state in which such property is held by the Master Servicer.
21
(d) Representations, Warranties and Covenants of the Seller and the
Master Servicer.
(i) [_________________-], in its capacities as Seller and
Master Servicer, hereby makes the representations and warranties set
forth in Schedule II hereto, and by this reference incorporated herein,
to [________] and the Trustee, as of the Closing Date, or if so
specified therein, as of the Cut-off Date.
(ii) The Seller, in its capacity as Seller, hereby makes the
representations and warranties set forth in Schedule III hereto, and by
this reference incorporated herein, to [________] and the Trustee, as
of the Closing Date, or if so specified therein, as of the Cut-off
Date.
(iii) Upon discovery by any of the parties hereto of a breach
of a representation or warranty made pursuant to Section 2(d)(ii) that
materially and adversely affects the interests of the Securityholders
in any Mortgage Loan, the party discovering such breach shall give
prompt notice thereof to the other parties. The Seller hereby covenants
that within 90 days of the earlier of its discovery or its receipt of
written notice from any party of a breach of any representation or
warranty made pursuant to Section 2(d)(ii) which materially and
adversely affects the interests of the Securityholders in any Mortgage
Loan, it shall cure such breach in all material respects, and if such
breach is not so cured, shall, (i) if such 90-day period expires prior
to the second anniversary of the Closing Date, remove such Mortgage
Loan (a "Deleted Mortgage Loan") from the Issuer and substitute in its
place a Substitute Mortgage Loan, in the manner and subject to the
conditions set forth in this Section; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price
in the manner set forth below; provided, however, that any such
substitution pursuant to (i) above shall not be effected prior to the
delivery to the Trustees of the Opinion of Counsel required by [Section
____ {delivery of opinion}] hereof, if any, and any such substitution
pursuant to (i) above shall not be effected prior to the additional
delivery to the Trustee of a Request for Release substantially in the
form of Exhibit D and the Mortgage File for any such Substitute
Mortgage Loan. The Seller shall promptly reimburse the Master Servicer
and the Trustee for any expenses reasonably incurred by the Master
Servicer or any Trustee in respect of enforcing the remedies for such
breach. With respect to the representations and warranties described in
this Section which are made to the best of the Seller's knowledge, if
it is discovered by either [________], the Seller or any Trustee that
the substance of such representation and warranty is inaccurate and
such inaccuracy materially and adversely affects the value of the
related Mortgage Loan or the interests of the Securityholders therein,
notwithstanding the Seller's lack of knowledge with respect to the
substance of such representation or warranty, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
22
With respect to any Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee for the benefit of the Securityholders the Mortgage Note,
the Mortgage, the related assignment of the Mortgage, and such other documents
and agreements as are required by Section 2(a), with the Mortgage Note endorsed
and the Mortgage assigned as required by Section 2(a). No substitution is
permitted to be made in any calendar month after the Determination Date for such
month. Scheduled Payments due with respect to Substitute Mortgage Loans in the
month of substitution shall not be part of the Issuer and will be retained by
the Seller on the next succeeding Distribution Date. For the month of
substitution, distributions to Securityholders will include the monthly payment
due on any 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 Master Servicer shall amend the Mortgage Loan Schedule for the benefit
of the Securityholders to reflect the removal of such Deleted Mortgage Loan and
the substitution of the Substitute Mortgage Loan or Loans and the Master
Servicer shall deliver the amended Mortgage Loan Schedule to the Trustees. Upon
such substitution, the 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 with respect to such Substitute Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to Section
2(d)(ii) with respect to such Mortgage Loan. Upon any such substitution and the
deposit to the Collection Account of the amount required to be deposited therein
in connection with such substitution as described in the following paragraph,
the Trustee shall release the Mortgage File held for the benefit of the
Securityholders relating to such Deleted Mortgage Loan to the Seller and shall
execute and deliver at the Seller's direction such instruments of transfer or
assignment prepared by the Seller, in each case without recourse, as shall be
necessary to vest title in the Seller, or its designee, the Trustee's interest
in any Deleted Mortgage Loan substituted for pursuant to this Section 2(d).
For any month in which the Seller substitutes one or more 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 Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed
Advances with respect to such Deleted Mortgage Loans shall be deposited in the
Collection Account by the Seller on or before the Payment Account Deposit Date
for the Distribution Date in the month succeeding the calendar month during
which the related Mortgage Loan became required to be purchased or replaced
hereunder.
In the event that the Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Collection Account
pursuant to Section 3(h) on or before the Payment Account Deposit Date for the
Distribution Date in the month following the month during which the Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and upon
such deposit of the Purchase Price, the delivery of the Opinion of Counsel
required by Section 2(d) and receipt of a Request for Release in the form of
Exhibit D hereto, the Trustee shall release the related Mortgage File held for
the benefit of the Securityholders to such Person, and the Trustee shall execute
and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. It is understood and agreed that
the obligation under this Agreement of any Person to cure, repurchase or replace
any Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedy against such Persons respecting such breach available
to Securityholders, [________] or the Trustees on their behalf.
23
The representations and warranties made pursuant to this Section 2(d)
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Securityholders.
(e) Covenants of the Master Servicer.
The Master Servicer hereby covenants to [________] and the Trustees as
follows:
(i) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and
requirements of the insurer under each Required Insurance Policy; and
(ii) no written information, certificate of an officer,
statement furnished in writing or written report delivered to
[________], any affiliate of [________] or any Trustee and prepared by
the Master Servicer pursuant to this Agreement will contain any untrue
statement of a material fact or omit to state a material fact necessary
to make such information, certificate, statement or report not
misleading.
(f) Covenants of [________].
[________] hereby covenants that, except for the transfer under the
Indenture, [________] will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on any
Mortgage Loan, whether now existing or hereafter created, or any interest
therein; [________] will notify the Trustee of the existence of any Lien on any
Mortgage Loan immediately upon discovery thereof; and [________] will defend the
right, title and interest of the Trust in, to and under the Mortgage Loans,
whether now existing or hereafter created, against all claims of third parties
claiming through or under [________]; provided, however, that nothing in this
Section 2(e) shall prevent or be deemed to prohibit [________] from suffering to
exist upon any of the Mortgage Loans any Liens for municipal or other local
taxes and other governmental charges if such taxes or governmental charges shall
not at the time be due and payable or if [________] shall currently be
contesting the validity thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves with respect thereto.
Section 3. Administration and Servicing of Mortgage Loans.
The parties agree that, subject to the provisions of Section 7 hereof,
the Master Servicer shall service the Mortgage Loans in the manner and on the
terms and conditions set forth below:
24
(a) Master Servicer to Service Mortgage Loans.
(i) The Master Servicer shall service and administer the
Mortgage Loans in a manner consistent with the terms of this Agreement
and with general industry practice and shall have full power and
authority, acting alone or through a subservicer, to do any and all
things in connection with such servicing and administration which it
may deem necessary or desirable, it being understood, however, that the
Master Servicer shall at all times remain responsible to the Trustees,
the Securityholders and the Credit Enhancer for the performance of its
duties and obligations hereunder in accordance with the terms hereof.
Any amounts received by any subservicer in respect of a Mortgage Loan
shall be deemed to have been received by the Master Servicer whether or
not actually received by it. Without limiting the generality of the
foregoing, the Master Servicer shall continue, and is hereby authorized
and empowered by the Trustee, to execute and deliver, on behalf of
itself, the Securityholders and the Trustee, or any of them, any and
all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect
to the Mortgage Loans and with respect to the Mortgaged Properties. The
Trustee shall, upon the written request of a Servicing Officer, furnish
the Master Servicer with any powers of attorney and other documents
necessary or appropriate to enable the Master Servicer to carry out its
servicing and administrative duties hereunder. The Master Servicer in
such capacity may also consent to the placing of a lien senior to that
of any Mortgage on the related Mortgaged Property, provided that (x)
such Mortgage succeeded to a first lien position after the related
Mortgage Loan was conveyed to the Trust and, immediately following the
placement of such senior lien, such Mortgage is in a second lien
position and the outstanding principal amount of the mortgage loan
secured by such subsequent senior lien is no greater than the
outstanding principal amount of the senior mortgage loan secured by the
Mortgaged Property as of the date the related Mortgage Loan was
originated; or (y) the Mortgage relating to such Mortgage Loan was in a
second lien position as of the Cut-off Date and the new senior lien
secures a mortgage loan that refinances an existing first mortgage loan
and the outstanding principal amount of the replacement first mortgage
loan immediately following such refinancing is not greater than the
outstanding principal amount of such existing first mortgage loan at
the date of origination of such Mortgage Loan;
provided, further, that such senior lien does not secure a note that provides
for negative amortization. Notwithstanding the foregoing, the Master Servicer
can consent to the placing of liens senior to that of a Mortgage on the related
Mortgaged Property which have a principal balance in excess of the principal
balance of the senior lien it replaces on Mortgage Loans having in the aggregate
Asset Balances not in excess of ___% of the Cut-off Date Pool Balance; provided,
however, that, with respect to Mortgage Loans which as of the Cut-off Date had
Combined Loan-to-Value Ratios in excess of ___%, the aggregate Asset Balance of
such Mortgage Loans with respect to which the senior lien may be so modified
shall not exceed _____% of the Cut-off Date Pool Balance (such ___% and _____%
herein referred to as the "Increased Senior Lien Limitation"). Any such increase
to the principal balance of the senior lien shall not exceed the greater of
$_______ and _____% of the principal balance of the senior lien prior to such
increase.
25
The Master Servicer may also, without prior approval from the Rating
Agencies or the Credit Enhancer, increase the Credit Limits on Mortgage Loans
provided that (i) new appraisals are obtained and the Combined Loan-to-Value
Ratios of the Mortgage Loans after giving effect to such increase are less than
or equal to the Combined Loan-to-Value Ratios or the Mortgage Loans as of the
Cut-off Date and (ii) such increases are consistent with the Master Servicer's
underwriting policies. In addition, the Master Servicer may increase the Credit
Limits on Mortgage Loans having aggregate balances of up to ____% of the
aggregate Cut-off Date Pool Balance, without obtaining new appraisals provided
that (i) the increase in the Credit Limit does not cause the Combined
Loan-to-Value Ratios of the Mortgage Loans to exceed _____% and (ii) the
increase is consistent with the Master Servicer's underwriting policies.
Furthermore, the Master Servicer may, without prior approval from the
Rating Agencies and the Credit Enhancer solicit Mortgagors for a reduction in
Loan Rates; provided that the Master Servicer can only reduce such Loan Rates on
up to ____% of the Mortgage Loans by Cut-off Date Pool Balance. Any such
solicitations shall not result in a reduction in the weighted average Gross
Margin of the Mortgage Loans in the pool by more than ____ basis points taking
into account any such prior reductions.
In addition, the Master Servicer may agree to changes in the terms of a
Mortgage Loan at the request of the Mortgagor provided that such changes (i) do
not materially and adversely affect the interests of Securityholders or the
Credit Enhancer and (ii) are consistent with prudent and customary business
practice as evidenced by a certificate signed by a Servicing Officer delivered
to the Trustee and the Credit Enhancer.
In addition to the foregoing, the Master Servicer may solicit
Mortgagors to change any other terms of the related Mortgage Loans, provided
that such changes (i) do not materially and adversely affect the interest of
Securityholders or the Credit Enhancer and (ii) are consistent with prudent and
customary business practice as evidenced by a certificate signed by a Servicing
Officer delivered to the Trustee and the Credit Enhancer. Nothing herein shall
limit the right of the Master Servicer to solicit Mortgagors with respect to new
loans (including mortgage loans) that are not Mortgage Loans.
The relationship of the Master Servicer (and of any successor to the
Master Servicer as servicer under this Agreement) to the Trustee under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or agent.
(ii) In the event that the rights, duties and obligations of
the Master Servicer are terminated hereunder, any successor to the
Master Servicer in its sole discretion may, to the extent permitted by
applicable law, terminate the existing subservicer arrangements with
any subservicer or assume the terminated Master Servicer's rights under
such subservicing arrangements which termination or assumption will not
violate the terms of such arrangements.
26
(b) Subservicing; Enforcement of the Obligations of Servicers.
(i) The Master Servicer may arrange for the subservicing of
any Mortgage Loan by a Subservicer pursuant to a subservicing
agreement; provided, however, that such subservicing arrangement and
the terms of the related subservicing agreement must provide for the
servicing of such Mortgage Loans in a manner consistent with the
servicing arrangements contemplated hereunder. Unless the context
otherwise requires, references in this Agreement to actions taken or to
be taken by the Master Servicer in servicing the Mortgage Loans include
actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of any subservicing agreement,
any of the provisions of this Agreement relating to agreements or
arrangements between the Master Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Master
Servicer shall remain obligated and liable to [________], the Trustees
and the Securityholders for the servicing and administration of the
Mortgage Loans in accordance with the provisions of this Agreement
without diminution of such obligation or liability by virtue of such
subservicing agreements or arrangements or by virtue of indemnification
from the Subservicer and to the same extent and under the same terms
and conditions as if the Master Servicer alone were servicing and
administering the Mortgage Loans. All actions of each Subservicer
performed pursuant to the related subservicing agreement shall be
performed as an agent of the Master Servicer with the same force and
effect as if performed directly by the Master Servicer.
(ii) For purposes of this Agreement, the Master Servicer shall
be deemed to have received any collections, recoveries or payments with
respect to the Mortgage Loans that are received by a Subservicer
regardless of whether such payments are remitted by the Subservicer to
the Master Servicer.
(iii) As part of its servicing activities hereunder, the
Master Servicer, for the benefit of the Trustees and the
Securityholders, shall use its best reasonable efforts to enforce the
obligations of each Subservicer under the related Subservicing
Agreement, to the extent that the non-performance of any such
obligation would have material and adverse effect on a Mortgage Loan.
Such enforcement, including, without limitation, the legal prosecution
of claims, termination of Subservicing 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, and shall be reimbursed therefor only
(i) from a general recovery resulting from such enforcement to the
extent, if any, that such recovery exceeds all amounts due in respect
of the related Mortgage Loan or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party against whom such
enforcement is directed.
(c) Successor Servicers.
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the Subservicer, the Master Servicer shall
either act as servicer of the related Mortgage Loan or enter into a Subservicing
Agreement with a successor Subservicer which will be bound by the terms of the
related Subservicing Agreement. If the Master Subservicer or any affiliate of
the Master Servicer acts as Subservicer, it will not assume liability for the
representations and warranties of the Subservicer which it replaces. If the
Master Subservicer enters into a Subservicing Agreement with a successor
Subservicer, the Master Servicer shall use reasonable efforts to have the
successor Subservicer assume liability for the representations and warranties
made by the terminated Subservicer in respect of the related Mortgage Loans and,
in the event of any such assumption by the successor Subservicer, the Master
Servicer may, in the exercise of its business judgment, release the terminated
Servicer from liability for such representations and warranties.
27
(d) Liability of the Master Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or a Subservicer or references to actions taken through a Subservicer
or otherwise, the Master Servicer shall remain obligated and liable to the
Trustees and Securityholders for the servicing and administering of the Pledged
Mortgages in accordance with the provisions of Section 3(a) without diminution
of such obligation or liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms and conditions as if the Master Servicer
alone were servicing and administering the Pledged Mortgages. The Master
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Master Servicer and nothing contained in this Agreement
shall be deemed to limit or modify such indemnification.
(e) No Contractual Relationship Between Subservicers and the
Trustees.
Any Servicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Servicer in
its capacity as such and not as an originator shall be deemed to be between the
Subservicer and the Master Servicer alone and the Trustees and Securityholders
shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the Subservicer in its
capacity as such except as set forth in Section 3(g).
(f) Rights of [________] and the Trustees in Respect of the Master
Servicer.
[________] may, but is not obligated to, enforce the obligations of the
Master Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer hereunder
and in connection with any such defaulted obligation to exercise the related
rights of the Master Servicer hereunder; provided that the Master Servicer shall
not be relieved of any of its obligations hereunder by virtue of such
performance by [________] or its designee. Neither the Trustees nor [________]
shall have any responsibility or liability for any action or failure to act by
the Master Servicer nor shall the Trustees or [________] be obligated to
supervise the performance of the Master Servicer hereunder or otherwise.
(g) Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer hereunder (including by reason of an Event of Default), the
Trustee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that the
Trustee shall not be (i) liable for losses of the Master Servicer pursuant to
Section 3(l) hereof or any acts or omissions of the predecessor Master Servicer
hereunder), (ii) obligated to make Advances if it is prohibited from doing so by
applicable law, (iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder including, but not limited to, repurchases or
substitutions of Mortgage Loans pursuant to Section 2(c)(ii) or 2(d) hereof,
(iv) responsible for expenses of the Master Servicer pursuant to Section 2(d) or
(v) deemed to have made any representations and warranties of the Master
Servicer hereunder). Any such assumption shall be subject to Section 7(b)
hereof. If the Master Servicer shall for any reason no longer be the Master
Servicer (including by reason of any Event of Default), the Trustee or its
successor shall succeed to any rights and obligations of the Master Servicer
under each subservicing agreement.
28
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents and
records relating to each subservicing agreement or substitute subservicing
agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best efforts
to effect the orderly and efficient transfer of the substitute subservicing
agreement to the assuming party.
(h) Collection of Mortgage Loan Payments; Collection Accounts;
Payment Account.
(i) The Master Servicer shall make reasonable efforts in
accordance with the customary and usual standards of practice of
prudent mortgage servicers to collect all payments called for under the
terms and provisions of the Mortgage Loans to the extent such
procedures shall be consistent with this Agreement and the terms and
provisions of any related Required Insurance Policy. Consistent with
the foregoing, the Master Servicer may in its discretion (i) waive any
late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the
due dates for payments due on a Mortgage Note for a period not greater
than 180 days; provided, however, that the Master Servicer cannot
extend the maturity of any such Mortgage Loan past the date on which
the final payment is due on the latest maturing Mortgage Loan as of the
Cut-off Date. In the event of any such arrangement, the Master Servicer
shall make Advances on the related Mortgage Loan in accordance with the
provisions of Section 4 during the scheduled period in accordance with
the amortization schedule of such Mortgage Loan without modification
thereof by reason of such arrangements. The Master Servicer shall not
be required to institute or join in litigation with respect to
collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect
to a taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which
such payment is required is prohibited by applicable law.
(ii) The Master Servicer shall establish and maintain a
Collection Account into which the Master Servicer shall deposit or
cause to be deposited on a daily basis within one Business Day of
receipt, except as otherwise specifically provided herein, the
following payments and collections remitted by Subservicers or received
by it in respect of Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the Mortgage
Loans on or before the Cut-off Date) and the following amounts required
to be deposited hereunder:
29
(A) all collections on account of principal on the
Mortgage Loans;
(B) all collections on account of interest on the
Mortgage Loans, net of the related Master Servicing Fee;
(C) all Insurance Proceeds and Liquidation Proceeds,
other than proceeds to be applied to the restoration or repair
of the Mortgaged Property or released to the Mortgagor in
accordance with the Master Servicer's normal servicing
procedures;
(D) any amount required to be deposited by the Master
Servicer pursuant to Section 3(h)(v) in connection with any
losses on Permitted Investments;
(E) any amounts required to be deposited by the Master
Servicer pursuant to Section 3(l)(ii), 3(l)(iv), and in
respect of net monthly rental income from REO Property
pursuant to Section 3(n) hereof;
(F) all Substitution Adjustment Amounts;
(G) all Advances made by the Master Servicer pursuant to
Section 4; and
(H) any other amounts required to be deposited
hereunder.
The foregoing requirements for remittance by the Master Servicer shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of prepayment penalties,
late payment charges or assumption fees, if collected, need not be remitted by
the Master Servicer. In the event that the Master Servicer shall remit any
amount not required to be remitted, it may at any time withdraw or direct the
institution maintaining the Collection Account to withdraw such amount from the
Collection Account, any provision herein to the contrary notwithstanding. Such
withdrawal or direction may be accomplished by delivering written notice thereof
to the Trustee or such other institution maintaining the Collection Account
which describes the amounts deposited in error in the Collection Account. The
Master Servicer shall maintain adequate records with respect to all withdrawals
made pursuant to this Section. All funds deposited in the Collection Account
shall be held in trust for the Securityholders until withdrawn in accordance
with Section 3(k).
(iii) The Trustee shall establish and maintain, on behalf of
the Securityholders, the Payment Account. The Trustee shall, promptly
upon receipt, deposit in the Payment Account and retain therein the
following:
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(A) the aggregate amount remitted by the Master Servicer
to the Trustee pursuant to Section 3(k)(i)(I);
(B) any amount deposited by the Master Servicer pursuant
to Section 3(h)(iv) in connection with any losses on Permitted
Investments; and
(C) any other amounts deposited hereunder which are
required to be deposited in the Payment Account.
In the event that the Master Servicer shall remit any amount not
required to be remitted, it may at any time direct the Trustee to withdraw such
amount from the Payment Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in the
Payment Account. All funds deposited in the Payment Account shall be held by the
Trustee in trust for the Securityholders until disbursed in accordance with this
Agreement or withdrawn in accordance with Section 3(k). In no event shall the
Trustee incur liability for withdrawals from the Payment Account at the
direction of the Master Servicer.
(iv) Each institution at which the Collection Account or the
Payment Account is maintained shall invest the funds therein as
directed in writing by the Master Servicer in Permitted Investments,
which shall mature not later than (i) in the case of the Collection
Account, the second Business Day next preceding the related Payment
Account Deposit Date (except that if such Permitted Investment is an
obligation of the institution that maintains such account, then such
Permitted Investment shall mature not later than the Business Day next
preceding such Payment Account Deposit Date) and (ii) in the case of
the Payment Account, the Business Day next preceding the Distribution
Date (except that if such Permitted Investment is an obligation of the
institution that maintains such fund or account, then such Permitted
Investment shall mature not later than such Distribution Date) and, in
each case, shall not be sold or disposed of prior to its maturity. All
such Permitted Investments shall be made in the name of the Trustee,
for the benefit of the Securityholders. All income and gain net of any
losses realized from any such investment of funds on deposit in the
Collection Account or the Payment Account shall be for the benefit of
the Master Servicer as servicing compensation and shall be remitted to
it monthly as provided herein. The amount of any realized losses in the
Collection Account or the Payment Account incurred in any such account
in respect of any such investments shall promptly be deposited by the
Master Servicer in the Collection Account or paid to the Trustee for
deposit into the Payment Account, as applicable. The Trustee in its
fiduciary capacity shall not be liable for the amount of any loss
incurred in respect of any investment or lack of investment of funds
held in the Collection Account or the Payment Account and made in
accordance with this Section 3(h).
(v) The Master Servicer shall give notice to the Trustee, the
Seller, each Rating Agency and [________] of any proposed change of the
location of the Collection Account prior to any change thereof. The
Trustee shall give notice to the Master Servicer, the Seller, each
Rating Agency and [________] of any proposed change of the location of
the Payment Account prior to any change thereof.
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(i) Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(i) To the extent required by the related Mortgage Note and
not violative of current law, the Master Servicer shall establish and
maintain one or more accounts (each, an "Escrow Account") and deposit
and retain therein all collections from the Mortgagors (or advances by
the Master Servicer) for the payment of taxes, assessments, hazard
insurance premiums or comparable items for the account of the
Mortgagors. Nothing herein shall require the Master Servicer to compel
a Mortgagor to establish an Escrow Account in violation of applicable
law.
(ii) Withdrawals of amounts so collected from the Escrow
Accounts may be made only to effect timely payment of taxes,
assessments, hazard insurance premiums, condominium or PUD association
dues, or comparable items, to reimburse the Master Servicer out of
related collections for any payments made pursuant to Sections 3(a)
hereof (with respect to taxes and assessments and insurance premiums)
and 3(l) hereof (with respect to hazard insurance), to refund to any
Mortgagors any sums determined to be overages, to pay interest, if
required by law or the terms of the related Mortgage or Mortgage Note,
to Mortgagors on balances in the Escrow Account or to clear and
terminate the Escrow Account at the termination of this Agreement in
accordance with Section 8(a) hereof. The Escrow Accounts shall not be a
part of the Issuer.
(iii) The Master Servicer shall advance any payments referred
to in Section 3(i)(i) that are not timely paid by the Mortgagors on the
date when the tax, premium or other cost for which such payment is
intended is due, but the Master Servicer shall be required so to
advance only to the extent that such advances, in the good faith
judgment of the Master Servicer, will be recoverable by the Master
Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise.
(j) Access to Certain Documentation and Information Regarding the
Mortgage Loans.
The Master Servicer shall afford [________] and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Securityholder which is a savings and loan association, bank or
insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans sufficient to permit such
Securityholder to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates; provided
that the Master Servicer shall be entitled to be reimbursed by each such
Securityholder for actual expenses incurred by the Master Servicer in providing
such reports and access.
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(k) Permitted Withdrawals from the Note Account.
(i) The Master Servicer may from time to time make withdrawals
from the Collection Account for the following purposes:
(A) to pay to the Master Servicer (to the extent not
previously retained by the Master Servicer) the servicing
compensation to which it is entitled pursuant to Section 5, and to
pay to the Master Servicer, as additional servicing compensation,
earnings on or investment income with respect to funds in or
credited to the Collection Account;
(B) to reimburse the Master Servicer for unreimbursed
Advances made by it, such right of reimbursement pursuant to this
subclause (ii) being limited to amounts received on the Mortgage
Loan(s) in respect of which any such Advance was made;
(C) to reimburse the Master Servicer for any
Nonrecoverable Advance previously made;
(D) to reimburse the Master Servicer for Insured
Expenses from the related Insurance Proceeds;
(E) to reimburse the Master Servicer for (a)
unreimbursed Servicing Advances, the Master Servicer's right to
reimbursement pursuant to this clause (a) with respect to any
Mortgage Loan being limited to amounts received on such Mortgage
Loan(s) which represent late recoveries of the payments for which
such advances were made pursuant to Section 3(a) or Section 3(i)
and (b) for unpaid Master Servicing Fees as provided in Section
3(n) hereof;
(F) to pay to the purchaser, with respect to each
Mortgage Loan or property acquired in respect thereof that has
been purchased pursuant to Section 2(c)(ii), 2(d) or 3(n), all
amounts received thereon after the date of such purchase;
(G) to reimburse the Seller, the Master Servicer or
[________] for expenses incurred by any of them and reimbursable
pursuant to Section 6(c) hereof;
(H) to withdraw any amount deposited in the Collection
Account and not required to be deposited therein;
(I) on or prior to the Payment Account Deposit Date, to
withdraw an amount equal to the related Available Funds and the
Trustees Fees for such Distribution Date and remit such amount to
the Trustee for deposit in the Payment Account; and
(J) to clear and terminate the Collection Account upon
termination of this Agreement pursuant to Section 8 (a) hereof.
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The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Collection Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(ii) The Trustee shall withdraw funds from the Payment Account
for distributions to Securityholders in the manner specified in this
Agreement (and to withhold from the amounts so withdrawn, the amount of
any taxes that it is authorized to withhold pursuant to the last
paragraph of [Section 8.11/trustee]). In addition, the Trustee may from
time to time make withdrawals from the Payment Account for the
following purposes:
(A) to pay to itself the Trustee Fee for the related
Distribution Date;
(B) to pay to the Master Servicer as additional
servicing compensation earnings on or investment income with
respect to funds in the Payment Account;
(C) to withdraw and return to the Master Servicer any
amount deposited in the Payment Account and not required to be
deposited therein; and
(D) to clear and terminate the Payment Account upon
termination of the Agreement pursuant to 8(a) hereof.
(l) Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(i) The Master Servicer shall cause to be maintained, for each
Mortgage Loan, hazard insurance with extended coverage in an amount
that is at least equal to the lesser of (i) the maximum insurable value
of the improvements securing such Mortgage Loan or (ii) the greater of
(y) the outstanding principal balance of the Mortgage Loan and (z) an
amount such that the proceeds of such policy shall be sufficient to
prevent the Mortgagor and/or the mortgagee from becoming a co-insurer.
Each such policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause.
Any amounts collected by the Master Servicer under any such policies
(other than the amounts to be applied to the restoration or repair of
the related Mortgaged Property or amounts released to the Mortgagor in
accordance with the Master Servicer's normal servicing procedures)
shall be deposited in the Collection Account. Any cost incurred by the
Master Servicer in maintaining any such insurance shall not, for the
purpose of calculating monthly distributions to the Securityholders or
remittances to the Trustee for their benefit, be added to the principal
balance of the Mortgage Loan, notwithstanding that the terms of the
Mortgage Loan so permit. Such costs shall be recoverable by the Master
Servicer out of late payments by the related Mortgagor or out of
Liquidation Proceeds to the extent permitted by Section 3(k) hereof. It
is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor or maintained on property
acquired in respect of a Mortgage other than pursuant to such
applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Mortgaged Property is
located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating in
the national flood insurance program, the Master Servicer shall cause
flood insurance to be maintained with respect to such Mortgage Loan.
Such flood insurance shall be in an amount equal to the least of (i)
the original principal balance of the related Mortgage Loan, (ii) the
replacement value of the improvements which are part of such Mortgaged
Property, and (iii) the maximum amount of such insurance available for
the related Mortgaged Property under the national flood insurance
program.
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(ii) In the event that the Master Servicer shall obtain and
maintain a blanket policy insuring against hazard losses on all of the
Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section, it
being understood and agreed that such policy may contain a deductible
clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers. If such policy
contains a deductible clause, the Master Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged
Property a policy complying with the first sentence of this Section,
and there shall have been a loss that would have been covered by such
policy, deposit in the Collection Account the amount not otherwise
payable under the blanket policy because of such deductible clause. In
connection with its activities as Master Servicer of the Mortgage
Loans, the Master Servicer agrees to present, on behalf of itself,
[________], and the Trustee for the benefit of the Securityholders,
claims under any such blanket policy.
(iii) The Master Servicer shall not take any action which
would result in non-coverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of the Master Servicer,
would have been covered thereunder. The Master Servicer shall not
cancel or refuse to renew any such Primary Insurance Policy that is in
effect at the date of the initial issuance of the Notes and the
Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for such canceled or non-renewed
policy is maintained with a Qualified Insurer. The Master Servicer
shall not be required to maintain any Primary Insurance Policy with
respect to any Mortgage Loan with a Loan-to-Value Ratio less than or
equal to 80% as of any date of determination or, based on a new
appraisal, the principal balance of such Mortgage Loan represents 80%
or less of the new appraised value. The Master Servicer agrees to
effect the timely payment of the premiums on each Primary Insurance
Policy, and such costs not otherwise recoverable shall be recoverable
by the Master Servicer from the related liquidation proceeds.
(iv) In connection with its activities as Master Servicer of
the Mortgage Loans, the Master Servicer agrees to present on behalf of
itself, the Trustee and Securityholders, claims to the insurer under
any Primary Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any
Primary Insurance Policies respecting defaulted Mortgage Loans. Any
amounts collected by the Master Servicer under any Primary Insurance
Policies shall be deposited in the Collection Account.
35
(m) Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(i) Except as otherwise provided in this Section, when any
property subject to a Mortgage has been conveyed by the Mortgagor, the
Master Servicer shall to the extent that it has knowledge of such
conveyance, enforce any due-on-sale clause contained in any Mortgage
Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that such enforcement
will not adversely affect or jeopardize coverage under any Required
Insurance Policy. Notwithstanding the foregoing, the Master Servicer is
not required to exercise such rights with respect to a Mortgage Loan if
the Person to whom the related Mortgaged Property has been conveyed or
is proposed to be conveyed satisfies the terms and conditions contained
in the Mortgage Note and Mortgage related thereto and the consent of
the mortgagee under such Mortgage Note or Mortgage is not otherwise so
required under such Mortgage Note or Mortgage as a condition to such
transfer. In the event that the Master Servicer is prohibited by law
from enforcing any such due-on-sale clause, or if coverage under any
Required Insurance Policy would be adversely affected, or if
nonenforcement is otherwise permitted hereunder, the Master Servicer is
authorized, subject to Section 3(m)(ii), to take or enter into an
assumption and modification agreement from or with the person to whom
such property has been or is about to be conveyed, pursuant to which
such person becomes liable under the Mortgage Note and, unless
prohibited by applicable state law, the Mortgagor remains liable
thereon, provided that the Mortgage Loan shall continue to be covered
(if-so covered before the Master Servicer enters such agreement) by the
applicable Required Insurance Policies. The Master Servicer, subject to
Section 3(m)(ii), is also authorized with the prior approval of the
insurers under any Required Insurance Policies 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 Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed
to be in default under this Section by reason of any transfer or
assumption which the Master Servicer reasonably believes it is
restricted by law from preventing, for any reason whatsoever.
(ii) Subject to the Master Servicer's duty to enforce any
due-on-sale clause to the extent set forth in Section 3(m)(i) hereof,
in any case in which a Mortgaged Property has been conveyed to a Person
by a Mortgagor, and such Person is to enter into an assumption
agreement or modification agreement or supplement to the Mortgage Note
or Mortgage that requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Master Servicer
shall prepare and deliver or cause to be prepared and delivered to the
Trustee for signature and shall direct, in writing, the Trustee to
execute the assumption agreement with the Person to whom the Mortgaged
Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding
assumptions or the transfer of the Mortgaged Property to such Person.
In connection with any such assumption, no material term of the
Mortgage Note may be changed. In addition, the substitute Mortgagor and
36
the Mortgaged Property must be acceptable to the Master Servicer in
accordance with its underwriting standards as then in effect. Together
with each such substitution, assumption or other agreement or
instrument delivered to the Trustee for execution by it, the Master
Servicer shall deliver an Officer's Certificate signed by a Servicing
Officer stating that the requirements of this subsection have been met
in connection therewith. The Master Servicer shall notify the Trustee
that any such substitution or assumption agreement has been completed
by forwarding to the Trustee the original of such substitution or
assumption agreement, which in the case of the original 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. Any fee collected by the
Master Servicer for entering into an assumption or substitution of
liability agreement will be retained by the Master Servicer as
additional servicing compensation.
(n) Realization Upon Defaulted Mortgage Loans; Repurchase of Certain
Mortgage Loans.
The Master Servicer shall use reasonable efforts 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. In connection with such foreclosure
or other conversion, the Master Servicer shall follow such practices
and procedures as it shall deem necessary or advisable and as shall be
normal and usual in its general mortgage servicing activities and meet
the requirements of the insurer under any Required Insurance Policy;
provided, however, that the Master Servicer shall not be required to
expend its own funds in connection with any foreclosure or towards the
restoration of any property unless it shall determine (i) that such
restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan after reimbursement to itself of such
expenses and (ii) that such expenses will be recoverable to it through
Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Collection Account). The Master
Servicer shall be responsible for all other costs and expenses incurred
by it in any such proceedings; provided, however, that it shall be
entitled to reimbursement thereof from the liquidation proceeds with
respect to the related Mortgaged Property, as provided in the
definition of Liquidation Proceeds. If the Master Servicer has
knowledge that a Mortgaged Property which the Master Servicer is
contemplating acquiring in foreclosure or by deed in lieu of
foreclosure is located within a one mile radius of any site listed in
the Expenditure Plan for the Hazardous Substance Clean Up Bond Act of
1984 or other site with environmental or hazardous waste risks known to
the Master Servicer, the Master Servicer will, prior to acquiring the
Mortgaged Property, consider such risks and only take action in
accordance with its established environmental review procedures.
37
With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trustee for the benefit of the Securityholders, or
its nominee, on behalf of the Securityholders. The Trustee's name shall be
placed on the title to such REO Property solely as the Trustee under the
Indenture and not in its individual capacity. The Master Servicer shall ensure
that the title to such REO Property references the Indenture and the Trustee's
capacity thereunder. Pursuant to its efforts to sell such REO Property, the
Master Servicer shall either itself or through an agent selected by the Master
Servicer protect and conserve such REO Property in the same manner and to such
extent as is customary in the locality where such REO Property is located and
may, incident to its conservation and protection of the interests of the
Securityholders, rent the same, or any part thereof, as the Master Servicer
deems to be in the best interest of the Securityholders for the period prior to
the sale of such REO Property. The Master Servicer shall prepare for and deliver
to the Trustee a statement with respect to each REO Property that has been
rented showing the aggregate rental income received and all expenses incurred in
connection with the management and maintenance of such REO Property at such
times as is necessary to enable the Trustee to comply with the reporting
requirements of the REMIC Provisions. The net monthly rental income, if any,
from such REO Property shall be deposited in the Collection Account no later
than the close of business on each Determination Date. [The Master Servicer
shall perform the tax reporting and withholding required by Sections 1445 and
6050J of the Code with respect to foreclosures and abandonments, the tax
reporting required by Section 6050H of the Code with respect to the receipt of
mortgage interest from individuals and any tax reporting required by Section
6050P of the Code with respect to the cancellation of indebtedness by certain
financial entities, by preparing such tax and information returns as may be
required, in the form required, and delivering the same to the Trustee for
filing.]
In the event that the Issuer acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property
prior to two years after its acquisition by the Issuer unless the Trustee shall
have been supplied with an Opinion of Counsel to the effect that the holding by
the Issuer of such Mortgaged Property subsequent to such two-year period will
not result in the imposition of taxes on "prohibited transactions" of the REMIC
defined in Section 860F of the Code or cause the REMIC to fail to qualify as a
REMIC at any time that any Notes or Certificates are outstanding, in which case
the Issuer may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel). Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the Issuer shall
be rented (or allowed to continue to be rented) or otherwise used for the
production of income by or on behalf of the Issuer in such a manner or pursuant
to any terms that would (i) cause such Mortgaged Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
(ii) subject the REMIC to the imposition of any federal, state or local income
taxes on the income earned from such Mortgaged Property under Section 860G(c) of
the Code or otherwise, unless the Master Servicer has agreed to indemnify and
hold harmless the Issuer with respect to the imposition of any such taxes.
38
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any REO Properties,
net of reimbursement to the Master Servicer for expenses incurred (including any
property or other taxes) in connection with such management and net of
unreimbursed Master Servicing Fees, Advances and Servicing Advances, shall be
applied to the payment of principal of and interest on the related defaulted
Mortgage Loans (with interest accruing as though such Mortgage Loans were still
current) and all such income shall be deemed, for all purposes in this
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Collection Account. To the extent
the net income received during any calendar month is in excess of the amount
attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related Mortgage Loan for such calendar month, such excess
shall be considered to be a partial prepayment of principal of the related
Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the Master Servicer for any related unreimbursed Servicing
Advances and Master Servicing Fees; second, to reimburse the Master Servicer for
any unreimbursed Advances; third, to reimburse the Collection Account for any
Nonrecoverable Advances (or portions thereof) that were previously withdrawn by
the Master Servicer pursuant to Section 3(k)(i)(C) that related to such Mortgage
Loan; fourth, to accrued and unpaid interest (to the extent no Advance has been
made for such amount or any such Advance has been reimbursed) on the Mortgage
Loan or related REO Property, at the Adjusted Net Mortgage Rate to the Due Date
occurring in the month in which such amounts are required to be distributed; and
fifth, as a recovery of principal of the Mortgage Loan. Excess Proceeds, if any,
from the liquidation of a Liquidated Mortgage Loan will be retained by the
Master Servicer as additional servicing compensation pursuant to Section 5.
The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Issuer any Mortgage Loan which is 91 days
or more delinquent at a price equal to the Purchase Price. The Purchase Price
for any Mortgage Loan purchased hereunder shall be deposited in the Collection
Account and the Trustee, upon receipt of a certificate from the Master Servicer
in the form of Exhibit D hereto, shall release or cause to be released to the
purchaser of such Mortgage Loan the related Mortgage File and shall execute and
deliver such instruments of transfer or assignment prepared by the purchaser of
such Mortgage Loan, in each case without recourse, as shall be necessary to vest
in the purchaser of such Mortgage Loan any Mortgage Loan released pursuant
hereto and the purchaser of such Mortgage Loan shall succeed to all the
Trustee's right, title and interest in and to such Mortgage Loan and all
security and documents related thereto. Such assignment shall be an assignment
outright and not for security. The purchaser of such Mortgage Loan shall
thereupon own such Mortgage Loan, and all security and documents, free of any
further obligation to the Trustee or the Securityholders with respect thereto.
(o) Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of subordinated Notes or
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation regarding the Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Such access shall be
afforded without charge, but only upon reasonable and prior written request and
during normal business hours at the offices designated by the Master Servicer.
Nothing in this Section shall limit the obligation of the Master Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the Master Servicer to provide access as provided
in this Section as a result of such obligation shall not constitute a breach of
this Section.
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(p) Annual Statement as to Compliance.
The Master Servicer shall deliver to [________] and the Trustees on or
before 120 days after the end of the Master Servicer's fiscal year, commencing
with its 200_ fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer during the
preceding calendar year and of the performance of the Master Servicer under this
Agreement has been made under such officer's supervision and (ii) to the best of
such officer's knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof. The
Trustee shall forward a copy of each such statement to each Rating Agency.
(q) Annual Independent Public Accountants' Servicing Statement;
Financial Statements.
On or before 120 days after the end of the Master Servicer's fiscal
year, commencing with its 200_ fiscal year, the Master Servicer at its expense
shall cause a nationally or regionally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, the
Seller or any affiliate thereof) which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Trustees and
[________] to the effect that-such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement or
of mortgage loans under pooling and servicing agreements substantially similar
to this Agreement (such statement to have attached thereto a schedule setting
forth the pooling and servicing agreements covered thereby) and that, on the
basis of such examination, conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FNMA and FHLMC, such servicing has been conducted in
compliance with such pooling and servicing agreements except for such
significant exceptions or errors in records that, in the opinion of such firm,
the Uniform Single Attestation Program for Mortgage Bankers or the Audit Program
for Mortgages serviced for FNMA and FHLMC requires it to report. In rendering
such statement, such firm may rely, as to matters relating to direct servicing
of mortgage loans by Subservicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Audit Program for
Mortgage Bankers or the Audit Program for Mortgages serviced for FNMA and FHLMC
(rendered within one year of such statement) of independent public accountants
with respect to the related Subservicer. Copies of such statement shall be
provided by the Trustee to any Securityholder upon request at the Master
Servicer's expense, provided such statement is delivered by the Master Servicer
to the Trustee.
(r) Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall for so long as it acts as master servicer
under this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations as
Master Servicer hereunder and (b) a fidelity bond in respect of its officers,
employees and agents. Each such policy or policies and bond shall, together,
comply with the requirements from time to time of FNMA or FHLMC for persons
performing servicing for mortgage loans purchased by FNMA or FHLMC. In the event
that any such policy or bond ceases to be in effect, the Master Servicer shall
obtain a comparable replacement policy or bond from an insurer or issuer,
meeting the requirements set forth above as of the date of such replacement.
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(s) Master Servicer Monthly Data.
On or before noon California time on the Determination Date, the Master
Servicer shall provide by modem to the Trustee with respect to the Mortgage
Loans, an electronic data file (accompanied by a hardcopy report) in a format
which is mutually agreed upon by the Master Servicer and the Trustee. The
Trustee shall be under no duty to recalculate, verify or recompute the
information provided to it by the Master Servicer hereunder.
Section 4. Advances.
The Master Servicer shall determine on or before each Master Servicer
Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to make an
Advance, it shall, on or before the Master Servicer Advance Date, deposit into
the Collection Account an amount equal to the Advance. The Master Servicer shall
be entitled to be reimbursed from the Collection Account for all Advances of its
own funds made pursuant to this Section as provided in Section 3(k). The
obligation to make Advances with respect to any Mortgage Loan shall continue if
such Mortgage Loan has been foreclosed or otherwise terminated and the related
Mortgaged Property has not been liquidated.
Section 5. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer shall
be entitled to retain or withdraw from the Collection Account an amount equal to
the Master Servicing Fee for each Mortgage Loan, provided that the aggregate
Master Servicing Fee with respect to any Distribution Date shall be reduced (i)
by an amount equal to the aggregate of the Prepayment Interest Shortfalls, if
any, with respect to such Distribution Date, but not below an amount equal to
one-half of the aggregate Master Servicing Fee for such Distribution Date before
reduction thereof in respect of such Prepayment Interest Shortfalls, and (ii)
with respect to the first Distribution Date, an amount equal to any amount to be
deposited into the Payment Account by [________] pursuant to Section 2(a)(i) and
not so deposited.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, prepayment penalties, assumption fees, late payment
charges and all income and gain net of any losses realized from Permitted
Investments shall be retained by the Master Servicer to the extent not required
to be deposited in the Collection Account pursuant to Section 3(h) hereof. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its master servicing activities hereunder (including payment of
any premiums for hazard insurance and any Primary Insurance Policy and
maintenance of the other forms of insurance coverage required by this Agreement)
and shall not be entitled to reimbursement therefor except as specifically
provided in this Agreement.
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Section 6. The Master Servicer.
(a) Respective Liabilities of [________] and the Master Servicer.
The Master Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by it herein.
(b) Merger or Consolidation of [________] or the Master Servicer.
[________] and the Master Servicer will each keep in full effect its
existence, rights and franchises as a corporation under the laws of the United
States or under the laws of one of the states thereof and will each 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 respective duties under this Agreement.
Any Person into which [________] or the Master Servicer may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which [________] or the Master Servicer shall be a party, or any person
succeeding to the business of [________] or the Master Servicer, shall be the
successor of [________] 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
shall be qualified to sell mortgage loans to, and to service mortgage loans on
behalf of, FNMA or FHLMC.
(c) Limitation on Liability of [________], the Seller, Master
Servicer and Others.
None of [________], the Seller, the Master Servicer or any of the
directors, officers, employees or agents of [________], the Seller or the Master
Servicer shall be under any liability to the Securityholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect [________], the Seller, the Master Servicer or any
such Person against any breach of representations or warranties made by it
herein or protect [________], the Seller, the Master Servicer or any such Person
from any liability which would otherwise be imposed by reasons 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 Seller, the Master Servicer and any director, officer, employee or agent of
[________], the Seller or the Master Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. [________], the Seller, the Master
Servicer and any director, officer, employee or agent of [________], the Seller
or the Master Servicer shall be indemnified by the Issuer and held harmless
against any loss, liability or expense incurred in connection with any audit,
controversy or judicial proceeding relating to a governmental taxing authority
or any legal action relating to this Agreement, the Notes or the Certificates,
other than any loss, liability or expense related to any specific Mortgage Loan
or Mortgage Loans (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) and any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross negligence
in the performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. None of [________], the Seller or the Master
Servicer shall be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its respective duties hereunder and which
in its opinion may involve it in any expense or liability; provided, however,
that any of [________], the Seller or the Master Servicer may in its discretion
undertake any such action that it may deem necessary or desirable in respect of
this Agreement and the rights and duties of the parties hereto and interests of
the Trustees and the Securityholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Issuer, and [________], the Seller and
the Master Servicer shall be entitled to be reimbursed therefor out of the
Collection Account.
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(d) 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 servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates, or (b) upon determination that its duties hereunder are
no longer permissible under applicable law. Any such determination under clause
(b) permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
shall become effective until the Trustee or a successor master servicer shall
have assumed the Master Servicer's responsibilities, duties, liabilities and
obligations hereunder.
Section 7. Default.
(a) 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 in the
Collection Account or remit to the Trustee any payment (other than a
payment required to be made under Section 4 hereof) required to be made
with respect to any Class of Certificates under the terms of this
Agreement, which failure shall continue unremedied for five days after
the date upon which written notice of such failure shall have been
given to the Master Servicer by the Trustee or [________] or to the
Master Servicer, [________] and the Trustee by the Holders of Notes or
Certificates of such Class evidencing not less than 25% of the total
distributions allocated to such Class; or
(ii) any failure by 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 this
Agreement, which failure shall continue unremedied for a period of
thirty days after the date on which written notice of such failure
shall have been given to the Master Servicer by the Trustee or
[________], or to the Master Servicer, [________] and the Trustee by
the Holders of Notes or Certificates of any Class evidencing not less
than 25% of the total distributions allocated to such Class; or
43
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceeding, 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
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; 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 commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(vi) [ so long as the Master Servicer is the Seller, any
failure by the Seller to observe or perform in any material respect any
other of the covenants or agreements on the part of the Seller
contained in this Agreement, which failure shall continue unremedied
for a period of 60 days after the date on which written notice of such
failure shall have been given to the Seller by the Trustee or
[________], or to the Seller and the Trustee by the Holders of Notes or
Certificates of any Class evidencing not less than 25% of the total
distributions allocated to such Class; or]
(vii) any failure of the Master Servicer to make any Advance
in the manner and at the time required to be made pursuant to Section 4
which continues unremedied for a period of one Business Day after the
date of such failure.
If an Event of Default described in clauses (i) to (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 Trustee may, or at the direction of
the Holders of Notes or Certificates of any Class evidencing more than 50% of
the total distributions allocated to such Class, the Trustee shall by notice in
writing to the Master Servicer (with a copy to each Rating Agency), terminate
all of the rights and obligations of the Master Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof, other than its rights
as a Securityholder. If an Event of Default described in clause (vii) hereof
shall occur, the Trustee shall, by notice in writing to the Master Servicer and
[________], terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Securityholder. On and after the receipt by the
Master Servicer of such written notice, all authority and power of the Master
Servicer hereunder, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee. [The Trustee shall thereupon make
any Advance described in clause (vii) hereof subject to Section 3(g) hereof.]
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. Unless expressly provided in such
written notice, no such termination shall affect any obligation of the Master
Servicer to pay amounts owed pursuant to Article VIII. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee of all cash amounts which shall at the time be
credited to the Collection Account, or thereafter be received with respect to
the Mortgage Loans.
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Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of any
late collection of a Scheduled Payment on a Mortgage Loan which was due prior to
the notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to which
such Master Servicer would have been entitled pursuant to Sections 3(k)(i)(A)
through (H),and any other amounts payable to such Master Servicer hereunder the
entitlement to which arose prior to the termination of its activities hereunder.
(b) Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7(a) hereof, the Trustee shall, subject to and
to the extent provided in Section 3(g), be the successor 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 to all the responsibilities,
duties and liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof and applicable law including the obligation to make
Advances pursuant to Section 4. As compensation therefor, the Trustee shall be
entitled to all funds relating to the Mortgage Loans that the Master Servicer
would have been entitled to charge to the Collection Account or Payment Account
if the Master Servicer had continued to act hereunder. Notwithstanding the
foregoing, if the Trustee has become the successor to the Master Servicer in
accordance with Section 7(a) hereof, the Trustee may, if it shall be unwilling
to so act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4 hereof or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Securities by each Rating Agency 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. Any
successor to the Master Servicer shall be an institution which is a FNMA and
FHLMC approved seller/servicer in good standing, which has a net worth of at
least $10,000,000, and which is willing to service the Mortgage Loans and
executes and delivers to [________] and the Trustees an agreement accepting such
delegation and assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer (other than liabilities of the Master Servicer under Section
6(c) hereof incurred prior to termination of the Master Servicer under Section
7(a)), with like effect as if originally named as a party to this Agreement; and
provided further that each Rating Agency acknowledges that its rating of the
Securities in effect immediately prior to such assignment and delegation will
not be qualified or reduced as a result of such assignment and delegation.
Pending appointment of a successor to the Master Servicer hereunder, the
Trustee, unless the Trustee is prohibited by law from so acting, shall, subject
to Section 3(g) hereof, act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of the Master Servicing Fee permitted the Master
Servicer hereunder. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Trustee nor any other successor master servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused by the failure of the Master Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
45
Any successor to the Master Servicer as master servicer shall give
notice to the Mortgagors of such change of servicer and shall, during the term
of its service as master servicer maintain in force the policy or policies that
the Master Servicer is required to maintain pursuant to 3(r).
(c) Notification to Securityholders.
(i) Upon any termination of or appointment of a successor to
the Master Servicer, the Trustee shall give prompt written notice
thereof to Securityholders and to each Rating Agency.
(ii) Within 60 days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to all Securityholders
notice of each such Event of Default hereunder known to the Trustee,
unless such Event of Default shall have been cured or waived.
Section 8. Miscellaneous.
(a) Term of Master Servicing Agreement.
The obligations to be performed by the Master Servicer under this
Agreement shall commence on and as of the date on which the Issuer issues the
Securities and shall terminate as to each Mortgage Loan upon (i) the payment in
full of all principal and interest due under such Mortgage Loan or other
liquidation of such Mortgage Loan as contemplated by this Agreement, (ii) the
termination of the Master Servicer's rights and powers under this Agreement by
the Trustee as provided in Section 7(a) of this Agreement, or (iii) the release
by the Trustee of its security interest in any Mortgage Loan.
(b) Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6(b), this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and
[________].
46
(c) Notices.
(i) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency 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
or the Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans
pursuant to Section 2(d); and
5. The final payment to Securityholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Securityholders described in the
Indenture;
2. Each annual statement as to compliance described in
Section 3(p);
3. Each annual independent public accountants' servicing
report described in Section 3(q); and
4. Any notice of a purchase of a Mortgage Loan pursuant
to Section 2(c)(ii), 2(d) or 3(n).
(ii) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to
(a) in the case of [________], [____________], ___________________,
Attention: _______________, (b) in the case of the Master Servicer,
_____________________________________________, Attention:
_________________ or such other address as may be hereafter furnished to
[________] and the Trustees by the Master Servicer in writing, (c) in the case
of the Trustees, ____________________________, Attention:
__________________________________________________, or such other address as the
Trustee may hereafter furnish to [________] or Master Servicer and (d) in the
case of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Securityholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
47
(d) Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit and will cause each Subservicer to permit any representative of
[________] or the Trustee during the Master Servicer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Master Servicer relating to the Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by independent certified public
accountants selected by [________] or the Trustee and to discuss its affairs,
finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Master
Servicer hereby authorizes said accountants to discuss with such representative
such affairs, finances and accounts), all at such reasonable times and as often
as may be reasonably requested. Any out-of-pocket expense incident to the
exercise by [________] or the Trustee of any right under this Section 8(d) shall
be borne by the party requesting such inspection; all other such expenses shall
be borne by the Master Servicer or the related Subservicer.
(e) Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE SECURITYHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
(f) Amendment.
This Agreement may be amended from time to time by the Issuer, the
Master Servicer and the Trustee without the consent of any of the
Securityholders to cure any ambiguity, or to correct or supplement any
provisions herein, or to make such other provisions with respect to matters or
questions arising under this Agreement as shall not be inconsistent with any
other provisions herein; provided that such action shall not, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Issuer), adversely affect in any material respect the interests
of any Securityholder; provided, however, that the amendment shall not be deemed
to adversely affect in any material respect the interests of the Securityholders
if the Person requesting the amendment obtains a letter from each Rating Agency
stating that the amendment would not result in the downgrading or withdrawal of
the respective ratings then assigned to the Securities; it being understood and
agreed that any such letter in and of itself will not represent a determination
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. The Trustee, [________]
and the Master Servicer also may at any time and from time to time amend this
Agreement without the consent of the Securityholders to modify, eliminate or add
to any of its provisions to such extent as shall be necessary or helpful to
maintain the qualification of the Issuer as a REMIC under the Code or to avoid
or minimize the risk of the imposition of any tax on the REMIC pursuant to the
Code that would be a claim at any time prior to the final redemption of the
Securities, provided that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Issuer, to the effect
that such action is necessary or helpful to maintain such qualification or to
avoid or minimize the risk of the imposition of such a tax.
48
This Agreement may also be amended from time to time by [________], the
Master Servicer and the Trustee with the consent of the Holders of a Majority in
Interest of each Class of Notes or Certificates affected thereby 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 Notes or Certificates; provided, however, that no such amendment
shall (i) reduce in any manner the amount of, or delay the timing of, payments
required to be distributed on any Certificate without the consent of the Holder
of such Note or Certificate, (ii) adversely affect in any material respect the
interests of the Holders of any Class of Notes or Certificates in a manner other
than as described in (i), without the consent of the Holders of Notes or
Certificates of such Class evidencing, as to such Class, Percentage Interests
aggregating 66%, or (iii) reduce the aforesaid percentages of Notes or
Certificates the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all such Notes or Certificates then
outstanding.
[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, which opinion shall not be an expense of the
Trustee or the Issuer, to the effect that such amendment will not cause the
imposition of any tax on the REMIC or the Securityholders or cause the Issuer to
fail to qualify as a REMIC at any time that any Certificates are outstanding.]
Promptly after the execution of any amendment to this Agreement
requiring the consent of Securityholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each Securityholder
and each Rating Agency.
It shall not be necessary for the consent of Securityholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Securityholders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Issuer, satisfactory to the Trustee that (i) such
amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Securityholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 8(f).
(g) 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.
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(h) No Joint Venture.
The Master Servicer and the Issuer are not partners or joint venturers
with each other and nothing herein shall be construed to make them such partners
or joint venturers or impose any liability as such of either of them.
(i) Recordation of Agreement; Counterparts.
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 its expense, but only
upon direction by the Trustee accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of the
Securityholders.
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.
(j) Limitation of Liability of [owner trustee].
It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by [owner trustee], not individually or
personally but solely as owner trustee of Home Equity Loan Trust 200_ under the
Trust Agreement, in the exercise of the powers and authority conferred and
vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by [owner trustee] but is made and
intended for the purpose for binding only the Issuer, (c) nothing herein
contained shall be construed as creating any liability on [owner trustee], other
than any liability arising out of its gross negligence, bad faith or willful
misconduct, and (d) under no circumstances shall [owner trustee] be personally
liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Issuer under this Agreement or the other
Operative Documents.
(k) Nonpetition Covenants.
Notwithstanding any prior termination of this Agreement, the Master
Servicer shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Issuer or [________],
acquiesce, petition or otherwise invoke or cause the Issuer or [________] (or
any assignee) to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Issuer or [________]
under any federal or state bankruptcy, insolvency or similar law, or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or [________] or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Issuer
or
[________].
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IN WITNESS WHEREOF, each party has caused this Master Servicing
Agreement to be executed by its duly authorized officer or officers as of the
day and year first above written.
Home Equity Loan Trust 200_,
as issuer
By: [owner trustee] not in its individual
capacity but solely as Owner Trustee
By:_______________________
Name:
Its:
[__________________________],
as Seller and Master Servicer
By:___________________________
Name:
Its:
[___________________________].
as Trustee
By:___________________________
Name:
Its:
SCHEDULE I
Mortgage Loan Schedule
I-1
SCHEDULE II
Home Equity Loan Trust 200_
Asset Backed Notes and Asset Backed Certificates
Series 200_
Representations and Warranties of the Master Servicer
_____________________________
____________________________ ("Seller-Master Servicer") hereby makes
the representations and warranties set forth in this Schedule II to the Issuer,
[________] and the Trustees, as of the Closing Date, or if so specified herein,
as of the Cut-off Date. Capitalized terms used but not otherwise defined in this
Schedule II shall have the meanings ascribed thereto in the Indenture (the
"Indenture") relating to the above-referenced Series, among Seller-Master
Servicer, as seller and master servicer, and _____________________, as trustee.
(i) The Master Servicer is a [______________ banking] corporation,
validly existing and in good standing under the laws of the State of
[______________], and has the corporate power to own its assets and to transact
the business in which it is currently engaged. The Master Servicer is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business transacted by it or any
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Master Servicer;
(ii) The Master Servicer has the power and authority to make, execute,
deliver and perform this Agreement and all of the transactions contemplated
under the Agreement, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of the Master Servicer enforceable in accordance with its terms,
except as enforcement of such terms may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable remedies;
(iii) The Master Servicer is not required to obtain the consent of any
other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consent, license, approval or
authorization, or registration or declaration, as shall have been obtained or
filed, as the case may be, prior to the Closing Date;
(iv) The execution, delivery and performance of this Agreement by the
Master Servicer will not violate any provision of any existing law or regulation
or any order or decree of any court applicable to the Master Servicer or any
provision of the Certificate of Incorporation or Bylaws of the Master Servicer,
or constitute a material breach of any mortgage, indenture, contract or other
agreement to which the Master Servicer is a party or by which the Master
Servicer may be bound; and
(v) No litigation or administrative proceeding of or before any court,
tribunal or governmental body is currently pending, or to the knowledge of the
Master Servicer threatened, against the Master Servicer or any of its properties
or with respect to this Agreement or the Certificates which in the opinion of
the Master Servicer has a reasonable likelihood of resulting in a material
adverse effect on the transactions contemplated by this Agreement.
II-1
SCHEDULE III
[________] Home Equity Loan Trust 200_
Asset Backed Notes and Asset Backed Certificates
Series 200_
Representations and Warranties as to the Mortgage Loans
___________________________
____________________________ ("Seller") hereby makes the
representations and warranties set forth in this Schedule III to [________] and
the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this Schedule
III shall have the meanings ascribed thereto in the Indenture (the "Indenture")
relating to the above-referenced Series, among Seller, as seller and master
servicer, and ________________________, as trustee.
[insert representations and warranties]
III-1
SCHEDULE IV
Home Equity Loan Trust 200_
Asset Backed Notes and Asset Backed Certificates
Series 200_
Representations and Warranties of the Issuer.
______________________________
Home Equity Loan Trust 200_ (the "Issuer") hereby makes the
representations and warranties set forth in this Schedule IV to the Master
Servicer and the Trustee, as of the Closing Date. Capitalized terms used but not
otherwise defined in this Schedule IV shall have the meanings ascribed thereto
in the Master Servicing Agreement (the "Master Servicing Agreement") relating to
the above-referenced Series, among [___________], as Master Servicer, Home
Equity Loan Trust 200_, as Issuer, and [ ], as Trustee.
(i) The Issuer is a statutory business trust duly organized, validly
existing and in good standing under the laws of the State of [Delaware], and
possesses all requisite authority, power, licenses, permits and franchises to
conduct any and all business contemplated by the Master Servicing Agreement and
to comply with its obligations under the terms of this Agreement, the
performance of which have been duly authorized by all necessary action.
(ii) Neither the execution and delivery of the Master Servicing
Agreement by the Issuer, nor the performance and compliance with the terms
thereof by the Issuer will (A) result in a material breach of any term or
provision of the instruments creating the Issuer or governing its operations, or
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of any other
material agreement or instrument to which the Issuer is a party or by which it
may be bound, or (C) constitute a material violation of any statute, order or
regulation applicable to the Issuer of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the Issuer;
and the Issuer is not in breach or violation of any material indenture or other
material agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it which breach or violation may materially impair
the Issuer's ability to perform or meet any of its obligations under the Master
Servicing Agreement.
(iii) This Agreement, and all documents and instruments contemplated
hereby, which are executed and delivered by the Issuer, will, assuming due
authorization, execution by and delivery to the other parties hereto and
thereto, constitute valid, legal and binding obligations of the Issuer,
enforceable in accordance with their respective terms, except that (a) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iv) No litigation is pending or, to the best of the Issuer's
knowledge, threatened against the Issuer that would materially and adversely
affect the execution, delivery or enforceability of the Master Servicing
Agreement or the ability of the Issuer to perform its obligations thereunder.
(v) Immediately prior to the transfer and assignment of the Mortgage
Loans to the Trustee, the Issuer had good title to, and was the sole owner of,
each Mortgage Loan free and clear of any liens, charges or encumbrances or any
ownership or participation interests in favor of any other Person.
IV-1
EXHIBIT A
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Master Servicer]
[Issuer]
____________________
____________________
Re: Master Servicing Agreement among Home Equity Loan Trust 200_,
as Issuer, [__________________], as Master Servicer, and [ ],
as Trustee, Asset Backed Notes and Asset Backed Certificates,
Series 200_
Gentlemen:
In accordance with Section 2(b) of the above-captioned Master Servicing
Agreement (the "Master Servicing Agreement"), the undersigned, as Trustee,
hereby certifies that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan listed in the attached schedule), it has
received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Master Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability 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 correctness
of any information set forth in the Mortgage Loan Schedule, other than the
information specified in items (i) through (iv) and (vi) thereof.
A-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Master Servicing Agreement.
[_______________________]
as Trustee
By:______________________________
Name:____________________________
Title:___________________________
A-2
EXHIBIT B
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Master Servicer]
[Issuer]
___________________
___________________
Re: Master Servicing Agreement among Home Equity Loan Trust 200_, as
Issuer, [_________________], as Master Servicer, and [ ], as Trustee,
Asset Backed Notes and Asset Backed Certificates, Series 200_
Gentlemen:
In accordance with Section 2(b) of the above-captioned Master Servicing
Agreement (the "Master Servicing Agreement"), the undersigned, as Trustee,
hereby certifies that as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2(a) of the Master Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to the
Issuer.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided
in Section 2(a) of the Master Servicing Agreement, or, if the Master Servicer
has certified or the Trustee otherwise knows that the related Mortgage has not
been returned from the applicable recording office, a copy of the assignment of
the Mortgage (excluding information to be provided by the recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Issuer.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof certified by the
title company.
B-1
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(iv), (vi) and (xi) of the definition of the "Mortgage Loan Schedule" in Section
1 of the Master Servicing Agreement accurately reflects information set forth in
the Trustee Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Master Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement is
sufficient to transfer all right, title and interest of the party so endorsing,
as noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Master Servicing Agreement.
[_______________________]
as Trustee
By:______________________________
Name:____________________________
Title:___________________________
B-2
EXHIBIT C
REQUEST FOR RELEASE
(for Trustee)
Home Equity Loan Trust 200_
Asset Backed Notes and Asset Backed Certificates
Series 200_
Loan Information
----------------
Name of Mortgagor: __________________________________________________
Servicer Loan No.: __________________________________________________
Trustee
Name: __________________________________________________
Address: __________________________________________________
Trustee Mortgage
File No.: __________________________________________________
The undersigned Master Servicer hereby acknowledges that it has
received from [ ], as Trustee for the Holders of Notes of the above-referenced
Series, the documents referred to below (the "Documents"). All capitalized terms
not otherwise defined in this Request for Release shall have the meanings given
them in the Master Servicing Agreement (the "Master Servicing Agreement")
relating to the above-referenced Series among the Trustee, [_________________],
as Master Servicer, and Home Equity Loan Trust 200_, as Issuer.
(i) Mortgage Note dated ___________ , ____, in the original principal
sum of $__________, made by _________________. payable to, or endorsed to the
order of, the Trustee.
(ii) Mortgage recorded on _________________ as instrument no._________
in the County Recorder's Office of the County of ___________________, State of
_______________ in book/reel/docket ________________ of official records at
page/image ________________.
(iii) Deed of Trust recorded on __________________ as instrument no.
__________ in the County Recorder's Office of the County of ________________,
State of _______________ in book/reel/docket _______________ of official records
at page/image ________________.
C-1
(iv) Assignment of Mortgage or Deed of Trust to the Trustee, recorded
on ______________ as instrument no. ___________ in the County Recorder's Office
of the County of __________, State of ________________ in book/reel/docket
__________ of official records at page/image __________.
(v) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the purposes
provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens, security
interest, charges, writs of attachment or other impositions nor shall the Master
Servicer assert or seek to assert any claims or rights of setoff to or against
the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document previously
requested from the Mortgage File to the Trustee when the need therefor no longer
exists, unless the Mortgage Loan relating to the Documents has been liquidated
and the proceeds thereof have been remitted to the Note Account and except as
expressly provided in the Master Servicing Agreement.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Master Servicer shall at
all times be earmarked for the account of the Trustee, and the Master Servicer
shall keep the Documents and any proceeds separate and distinct from all other
property in the Master Servicer's possession, custody or control.
[_____________________]
By: __________________________
Its:__________________________
Date: ____________, 200_
C-2
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: [Trustee]
Attn: Mortgage Custody Services
Re: The Master Servicing Agreement dated [ ] among [___________]
("[_______]"), as Master Servicer, Home Equity Loan Trust 200_, as
Issuer, and [ ], as Trustee
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you
as Trustee for Home Equity Loan Trust 200_, as Issuer, we request the release of
the Mortgage File for the Mortgage Loan(s) described below, for the reason
indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
_______1. Mortgage Loan paid in full ([_________] hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated ([_________] hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation have been finally
received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
D-1
If item 1 or 2 above is checked, and if all or part of the Trustee
Mortgage File was previously released to us, please release to us our previous
receipt on file with you, as well as an additional documents in your possession
relating to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon
return of all of the above documents to you as Trustee, please acknowledge your
receipt by signing in the space indicated below, and returning this form.
[____________________________]
[address]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
D-2