EXHIBIT 4
================================================================================
SECURITIZED ASSET BACKED RECEIVABLES LLC,
Depositor,
COUNTRYWIDE HOME LOANS SERVICING LP,
Servicer,
HOMEQ SERVICING CORPORATION,
Servicer,
MORTGAGERAMP, INC.,
Loan Performance Advisor,
NC CAPITAL CORPORATION,
Responsible Party,
WMC MORTGAGE CORP.,
Responsible Party,
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
Trustee
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2005
---------------------------------
SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2005-HE1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HE1
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..............
Section 2.03 Representations, Warranties and Covenants of the
Responsible Parties and the Servicers; Remedies for
Breaches of Representations and Warranties with Respect
to the Mortgage Loans.......................................
Section 2.04 Opinions of Internal Counsel of WMC..........................
Section 2.05 Execution and Delivery of Certificates.......................
Section 2.06 REMIC Matters................................................
Section 2.07 Representations and Warranties of the Depositor..............
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans..........................
Section 3.02 Subservicing Agreements between the Servicers and
Subservicers................................................
Section 3.03 Successor Subservicers.......................................
Section 3.04 Liability of the Servicers...................................
Section 3.05 No Contractual Relationship between Subservicers and the
Trustee.....................................................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee.....................................................
Section 3.07 Collection of Certain Mortgage Loan Payments.................
Section 3.08 Subservicing Accounts........................................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.10 Collection Accounts..........................................
Section 3.11 Withdrawals from the Collection Accounts.....................
Section 3.12 Investment of Funds in the Collection Account, Escrow
Accounts and the Distribution Account.......................
Section 3.13 Maintenance of Hazard Insurance and Errors and Omissions
and Fidelity Coverage.......................................
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.15 Realization upon Defaulted Mortgage Loans....................
Section 3.16 Release of Mortgage Files....................................
Section 3.17 Title, Conservation and Disposition of REO Property..........
Section 3.18 Notification of Adjustments..................................
Section 3.19 Access to Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.20 Documents, Records and Funds in Possession of the
Servicers to Be Held for the Trustee........................
Section 3.21 Servicing Compensation.......................................
Section 3.22 Annual Statement as to Compliance............................
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.............................
Section 3.24 Trustee to Act as Servicer...................................
Section 3.25 Compensating Interest........................................
Section 3.26 Credit Reporting; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act.....................
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICERS
Section 4.01 Advances.....................................................
Section 4.02 Priorities of Distribution...................................
Section 4.03 Monthly Statements to Certificateholders.....................
Section 4.04 Certain Matters Relating to the Determination of LIBOR.......
Section 4.05 Allocation of Applied Realized Loss Amounts..................
Section 4.06 The Class A-1B Certificate Insurance Policy..................
Section 4.07 Swap Account.................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates....................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.04 Persons Deemed Owners........................................
Section 5.05 Access to List of Certificateholders' Names and Addresses....
Section 5.06 Maintenance of Office or Agency..............................
Section 5.07 Rights of the Class A-1B Certificate Insurer to Exercise
Rights of Class A-1B Certificateholders.....................
Section 5.08 Class A-1B Certificate Insurer Default.......................
ARTICLE VI
THE DEPOSITOR, THE SERVICERS AND THE LOAN PERFORMANCE ADVISOR
Section 6.01 Respective Liabilities of the Depositor and the Servicers....
Section 6.02 Merger or Consolidation of the Depositor or a Servicer.......
Section 6.03 Limitation on Liability of the Depositor, the Servicers
and Others..................................................
Section 6.04 Limitation on Resignation of the Servicers...................
Section 6.05 Additional Indemnification by the Servicers; Third Party
Claims......................................................
Section 6.06 Duties of the Loan Performance Advisor.......................
Section 6.07 Loan Performance Advisor's Fees..............................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee........................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans........
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Trustee's Fees and Expenses..................................
Section 8.06 Eligibility Requirements for the Trustee.....................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of the Trustee.......................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Tax Matters..................................................
Section 8.12 Periodic Filings.............................................
Section 8.13 Tax Classification of the Excess Reserve Fund Account,
the Swap Account, the Interest Rate Swap Agreement and
the Cap Agreements..........................................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.......................................................
Section 9.02 Final Distribution on the Certificates.......................
Section 9.03 Additional Termination Requirements..........................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment....................................................
Section 10.02 Recordation of Agreement; Counterparts.......................
Section 10.03 Governing Law................................................
Section 10.04 Intention of Parties.........................................
Section 10.05 Notices......................................................
Section 10.06 Severability of Provisions...................................
Section 10.07 Limitation on Rights of Certificateholders...................
Section 10.08 Inspection and Audit Rights..................................
Section 10.09 Certificates Nonassessable and Fully Paid....................
Section 10.10 Third Party Beneficiary......................................
Section 10.11 Assignment; Sales; Advance Facilities........................
Section 10.12 Rule of Construction.........................................
Section 10.13 Waiver of Jury Trial.........................................
Section 10.14 Rights of the Swap Provider..................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of Countrywide, as Servicer
Schedule III Representations and Warranties of HomEq, as Servicer
Schedule IV Representations and Warranties of NC Capital Corporation, as to
the NC Capital Mortgage Loans
Schedule V Representations and Warranties as to NC Capital
Schedule VI Representations and Warranties of WMC Mortgage Corp, as to the
WMC Mortgage Loans
Schedule VII Representations and Warranties as to WMC Mortgage Corp.
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificate
Exhibit C Form of Class R Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Request for Release
Exhibit K Form of Contents for Each Mortgage File
Exhibit L Form of Certification to be provided with Form 10-K
Exhibit M Form of Trustee's Certification to be provided to Depositor
Exhibit N Form of Servicer's Certification to be provided to Depositor
Exhibit O First Franklin Assignment Agreement
Exhibit P First Franklin Purchase Agreement
THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2005,
among SECURITIZED ASSET BACKED RECEIVABLES LLC, a Delaware limited liability
company, as depositor (the "Depositor"), HOMEQ SERVICING CORPORATION, a New
Jersey corporation, as servicer ("HomeEq"), COUNTRYWIDE HOME LOANS SERVICING LP,
a Texas limited partnership, as servicer ("Countrywide" and, together with
HomEq, the "Servicers"), MORTGAGERAMP, INC., as loan performance advisor (the
"Loan Performance Advisor"), NC CAPITAL CORPORATION, a California corporation,
as responsible party ("NC Capital"), WMC MORTGAGE CORPORATION, a California
corporation, as responsible party ("WMC" and, together with NC Capital, the
"Responsible Parties"), and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, as trustee (the "Trustee"),
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that four segregated asset pools within the
Trust Fund (exclusive of (i) the Prepayment Charges, (ii) the Interest Rate Swap
Agreement, (iii) the Swap Account, (iv) the Excess Reserve Fund Account, and (v)
the right of the LIBOR Certificates to receive Upper Tier Carry Forward Amounts
and, without duplication, Basis Risk Carry Forward Amounts and the obligation to
pay Class IO Shortfalls) be treated for federal income tax purposes as
comprising four REMICs (each, a "Trust REMIC" or, in the alternative, Pooling
Tier REMIC-1, Pooling Tier REMIC-2, the Lower Tier REMIC and the Upper Tier
REMIC, respectively). Each Class of Certificates (other than the Class P and
Class R Certificates), other than the right of each Class of LIBOR Certificates
to receive Upper Tier Carry Forward Amounts and, without duplication, Basis Risk
Carry Forward Amounts and the obligation to pay Class IO Shortfalls and the
right of the Class X Certificates to receive payments from the Cap Agreements,
represents ownership of a regular interest in the Upper Tier REMIC for purposes
of the REMIC Provisions. The Class R Certificates represent ownership of the
sole class of residual interest in each of Pooling Tier REMIC-1, Pooling Tier
REMIC-2, the Lower Tier REMIC and the Upper Tier REMIC for purposes of the REMIC
Provisions. The Startup Day for each REMIC described herein is the Closing Date.
The latest possible maturity date for each Certificate is the latest date
referenced in Section 2.06.
The Upper Tier REMIC shall hold as assets the several classes of
uncertificated Lower Tier REMIC Regular Interests, set out below. The Lower Tier
REMIC shall hold as assets the several classes of uncertificated Pooling Tier
REMIC-2 Regular Interests. Pooling Tier REMIC-2 shall hold as assets the several
classes of uncertificated Pooling Tier REMIC-1 Regular Interests. Pooling Tier
REMIC-1 shall hold as assets the assets of the Trust Fund (exclusive of (i) the
Prepayment Premiums, (ii) the Interest Rate Swap Agreement, (iii) the Swap
Account, (iv) the Excess Reserve Fund Account, (v) the Cap Agreements and (vi)
the right of the LIBOR Certificates to receive Upper Tier Carry Forward Amounts
and, without duplication, Basis Risk Carry Forward Amounts and the obligation to
pay Class IO Shortfalls).
For federal income tax purposes, the Class P Certificates represent
beneficial ownership of the Prepayment Charges, each Class of LIBOR Certificates
represents beneficial ownership of a regular interest in the Upper Tier REMIC
and the right to receive Basis Risk Carry Forward Amounts, and the Class X
Certificates represent beneficial ownership of two regular interests in the
Upper Tier REMIC, the Excess Reserve Fund Account, the Swap Account, the
Interest Rate Swap Agreement and the Cap Agreements, which portions of the Trust
Fund shall be treated as a grantor trust.
Pooling Tier REMIC-1
Pooling Tier REMIC-1 shall issue the following interests in Pooling
Tier REMIC-1, and each such interest, other than the Class PT1-R Interest, is
hereby designated as a regular interest in the Pooling Tier REMIC-1. Pooling
Tier REMIC-1 Interests with an "I" in their designation shall relate to the
Group I Mortgage Loans, Pooling Tier REMIC-1 Interests with a "II" in their
designation shall relate to the Group II Mortgage Loans and Pooling Tier REMIC-1
Interests with a "III" in their designation shall relate to the Group III
Mortgage Loans. Pooling Tier REMIC-1 shall also issue the Class PT1-R Interest,
which shall be represented by the Class R Certificates. The Class PT1-R Interest
is hereby designated as the sole class of residual interest in Pooling Tier
REMIC-1.
Pooling Tier Initial Pooling Tier
Pooling Tier REMIC-1 Interest REMIC-1
REMIC-1 Interest Rate Principal Amount
----------------------- -------------------- -----------------------
Class PT1-I-1 (1) (1)
Class PT1-I-2A (2) $ 5,840,210.43
Class PT1-I-2B (3) $ 5,840,210.43
Class PT1-I-3A (2) $ 6,742,464.37
Class PT1-I-3B (3) $ 6,742,464.37
Class PT1-I-4A (2) $ 6,871,499.53
Class PT1-I-4B (3) $ 6,871,499.53
Class PT1-I-5A (2) $ 7,023,348.25
Class PT1-I-5B (3) $ 7,023,348.25
Class PT1-I-6A (2) $ 7,152,512.74
Class PT1-I-6B (3) $ 7,152,512.74
Class PT1-I-7A (2) $ 7,258,539.03
Class PT1-I-7B (3) $ 7,258,539.03
Class PT1-I-8A (2) $ 7,341,103.52
Class PT1-I-8B (3) $ 7,341,103.52
Class PT1-I-9A (2) $ 7,400,016.83
Class PT1-I-9B (3) $ 7,400,016.83
Class PT1-I-10A (2) $ 7,435,128.47
Class PT1-I-10B (3) $ 7,435,128.47
Class PT1-I-11A (2) $ 7,446,348.79
Class PT1-I-11B (3) $ 7,446,348.79
Class PT1-I-12A (2) $ 7,433,108.04
Class PT1-I-12B (3) $ 7,433,108.04
Class PT1-I-13A (2) $ 7,251,765.10
Class PT1-I-13B (3) $ 7,251,765.10
Class PT1-I-14A (2) $ 6,894,000.55
Class PT1-I-14B (3) $ 6,894,000.55
Class PT1-I-15A (2) $ 6,553,989.43
Class PT1-I-15B (3) $ 6,553,989.43
Class PT1-I-16A (2) $ 6,230,899.88
Class PT1-I-16B (3) $ 6,230,899.88
Class PT1-I-17A (2) $ 5,923,875.90
Class PT1-I-17B (3) $ 5,923,875.90
Class PT1-I-18A (2) $ 5,634,720.81
Class PT1-I-18B (3) $ 5,634,720.81
Class PT1-I-19A (2) $ 5,364,220.96
Class PT1-I-19B (3) $ 5,364,220.96
Class PT1-I-20A (2) $ 5,182,815.82
Class PT1-I-20B (3) $ 5,182,815.82
Class PT1-I-21A (2) $ 41,672,045.82
Class PT1-I-21B (3) $ 41,672,045.82
Class PT1-I-22A (2) $ 40,250,547.42
Class PT1-I-22B (3) $ 40,250,547.42
Class PT1-I-23A (2) $ 1,417,497.26
Class PT1-I-23B (3) $ 1,417,497.26
Class PT1-I-24A (2) $ 1,266,729.64
Class PT1-I-24B (3) $ 1,266,729.64
Class PT1-I-25A (2) $ 1,133,925.30
Class PT1-I-25B (3) $ 1,133,925.30
Class PT1-I-26A (2) $ 996,951.71
Class PT1-I-26B (3) $ 996,951.71
Class PT1-I-27A (2) $ 865,736.08
Class PT1-I-27B (3) $ 865,736.08
Class PT1-I-28A (2) $ 761,571.51
Class PT1-I-28B (3) $ 761,571.51
Class PT1-I-29A (2) $ 677,194.07
Class PT1-I-29B (3) $ 677,194.07
Class PT1-I-30A (2) $ 613,841.93
Class PT1-I-30B (3) $ 613,841.93
Class PT1-I-31A (2) $ 559,450.15
Class PT1-I-31B (3) $ 559,450.15
Class PT1-I-32A (2) $ 523,858.37
Class PT1-I-32B (3) $ 523,858.37
Class PT1-I-33A (2) $ 1,311,526.53
Class PT1-I-33B (3) $ 1,311,526.53
Class PT1-I-34A (2) $ 769,700.99
Class PT1-I-34B (3) $ 769,700.99
Class PT1-I-35A (2) $ 301,072.92
Class PT1-I-35B (3) $ 301,072.92
Class PT1-I-36A (2) $ 284,641.04
Class PT1-I-36B (3) $ 284,641.04
Class PT1-I-37A (2) $ 269,430.80
Class PT1-I-37B (3) $ 269,430.80
Class PT1-I-38A (2) $ 255,451.58
Class PT1-I-38B (3) $ 255,451.58
Class PT1-I-39A (2) $ 243,580.12
Class PT1-I-39B (3) $ 243,580.12
Class PT1-I-40A (2) $ 232,275.90
Class PT1-I-40B (3) $ 232,275.90
Class PT1-I-41A (2) $ 221,499.62
Class PT1-I-41B (3) $ 221,499.62
Class PT1-I-42A (2) $ 211,226.40
Class PT1-I-42B (3) $ 211,226.40
Class PT1-I-43A (2) $ 201,432.54
Class PT1-I-43B (3) $ 201,432.54
Class PT1-I-44A (2) $ 192,095.48
Class PT1-I-44B (3) $ 192,095.48
Class PT1-I-45A (2) $ 183,193.73
Class PT1-I-45B (3) $ 183,193.73
Class PT1-I-46A (2) $ 174,706.83
Class PT1-I-46B (3) $ 174,706.83
Class PT1-I-47A (2) $ 166,615.27
Class PT1-I-47B (3) $ 166,615.27
Class PT1-I-48A (2) $ 158,900.50
Class PT1-I-48B (3) $ 158,900.50
Class PT1-I-49A (2) $ 151,544.82
Class PT1-I-49B (3) $ 151,544.82
Class PT1-I-50A (2) $ 144,531.40
Class PT1-I-50B (3) $ 144,531.40
Class PT1-I-51A (2) $ 137,844.17
Class PT1-I-51B (3) $ 137,844.17
Class PT1-I-52A (2) $ 131,467.86
Class PT1-I-52B (3) $ 131,467.86
Class PT1-I-53A (2) $ 125,387.91
Class PT1-I-53B (3) $ 125,387.91
Class PT1-I-54A (2) $ 119,590.43
Class PT1-I-54B (3) $ 119,590.43
Class PT1-I-55A (2) $ 115,464.28
Class PT1-I-55B (3) $ 115,464.28
Class PT1-I-56A (2) $ 108,704.21
Class PT1-I-56B (3) $ 108,704.21
Class PT1-I-57A (2) $ 115,160.08
Class PT1-I-57B (3) $ 115,160.08
Class PT1-I-58A (2) $ 183,534.73
Class PT1-I-58B (3) $ 183,534.73
Class PT1-I-59A (2) $ 1,949,953.62
Class PT1-I-59B (3) $ 1,949,953.62
Class PT1-II-1 (4) (4)
Class PT1-II-2A (5) $ 2,095,633.26
Class PT1-II-2B (6) $ 2,095,633.26
Class PT1-II-3A (5) $ 2,419,387.58
Class PT1-II-3B (6) $ 2,419,387.58
Class PT1-II-4A (5) $ 2,465,689.06
Class PT1-II-4B (6) $ 2,465,689.06
Class PT1-II-5A (5) $ 2,520,176.69
Class PT1-II-5B (6) $ 2,520,176.69
Class PT1-II-6A (5) $ 2,566,524.58
Class PT1-II-6B (6) $ 2,566,524.58
Class PT1-II-7A (5) $ 2,604,569.82
Class PT1-II-7B (6) $ 2,604,569.82
Class PT1-II-8A (5) $ 2,634,196.30
Class PT1-II-8B (6) $ 2,634,196.30
Class PT1-II-9A (5) $ 2,655,336.07
Class PT1-II-9B (6) $ 2,655,336.07
Class PT1-II-10A (5) $ 2,667,935.12
Class PT1-II-10B (6) $ 2,667,935.12
Class PT1-II-11A (5) $ 2,671,961.29
Class PT1-II-11B (6) $ 2,671,961.29
Class PT1-II-12A (5) $ 2,667,210.13
Class PT1-II-12B (6) $ 2,667,210.13
Class PT1-II-13A (5) $ 2,602,139.14
Class PT1-II-13B (6) $ 2,602,139.14
Class PT1-II-14A (5) $ 2,473,763.06
Class PT1-II-14B (6) $ 2,473,763.06
Class PT1-II-15A (5) $ 2,351,757.43
Class PT1-II-15B (6) $ 2,351,757.43
Class PT1-II-16A (5) $ 2,235,823.72
Class PT1-II-16B (6) $ 2,235,823.72
Class PT1-II-17A (5) $ 2,125,654.81
Class PT1-II-17B (6) $ 2,125,654.81
Class PT1-II-18A (5) $ 2,021,897.75
Class PT1-II-18B (6) $ 2,021,897.75
Class PT1-II-19A (5) $ 1,924,834.73
Class PT1-II-19B (6) $ 1,924,834.73
Class PT1-II-20A (5) $ 1,859,741.42
Class PT1-II-20B (6) $ 1,859,741.42
Class PT1-II-21A (5) $ 14,953,112.78
Class PT1-II-21B (6) $ 14,953,112.78
Class PT1-II-22A (5) $ 14,443,038.81
Class PT1-II-22B (6) $ 14,443,038.81
Class PT1-II-23A (5) $ 508,638.25
Class PT1-II-23B (6) $ 508,638.25
Class PT1-II-24A (5) $ 454,538.55
Class PT1-II-24B (6) $ 454,538.55
Class PT1-II-25A (5) $ 406,884.58
Class PT1-II-25B (6) $ 406,884.58
Class PT1-II-26A (5) $ 357,734.57
Class PT1-II-26B (6) $ 357,734.57
Class PT1-II-27A (5) $ 310,650.68
Class PT1-II-27B (6) $ 310,650.68
Class PT1-II-28A (5) $ 273,273.47
Class PT1-II-28B (6) $ 273,273.47
Class PT1-II-29A (5) $ 242,996.45
Class PT1-II-29B (6) $ 242,996.45
Class PT1-II-30A (5) $ 220,263.90
Class PT1-II-30B (6) $ 220,263.90
Class PT1-II-31A (5) $ 200,746.59
Class PT1-II-31B (6) $ 200,746.59
Class PT1-II-32A (5) $ 187,975.25
Class PT1-II-32B (6) $ 187,975.25
Class PT1-II-33A (5) $ 470,612.94
Class PT1-II-33B (6) $ 470,612.94
Class PT1-II-34A (5) $ 276,190.56
Class PT1-II-34B (6) $ 276,190.56
Class PT1-II-35A (5) $ 108,033.51
Class PT1-II-35B (6) $ 108,033.51
Class PT1-II-36A (5) $ 102,137.28
Class PT1-II-36B (6) $ 102,137.28
Class PT1-II-37A (5) $ 96,679.42
Class PT1-II-37B (6) $ 96,679.42
Class PT1-II-38A (5) $ 91,663.28
Class PT1-II-38B (6) $ 91,663.28
Class PT1-II-39A (5) $ 87,403.46
Class PT1-II-39B (6) $ 87,403.46
Class PT1-II-40A (5) $ 83,347.19
Class PT1-II-40B (6) $ 83,347.19
Class PT1-II-41A (5) $ 79,480.35
Class PT1-II-41B (6) $ 79,480.35
Class PT1-II-42A (5) $ 75,794.03
Class PT1-II-42B (6) $ 75,794.03
Class PT1-II-43A (5) $ 72,279.71
Class PT1-II-43B (6) $ 72,279.71
Class PT1-II-44A (5) $ 68,929.31
Class PT1-II-44B (6) $ 68,929.31
Class PT1-II-45A (5) $ 65,735.11
Class PT1-II-45B (6) $ 65,735.11
Class PT1-II-46A (5) $ 62,689.77
Class PT1-II-46B (6) $ 62,689.77
Class PT1-II-47A (5) $ 59,786.29
Class PT1-II-47B (6) $ 59,786.29
Class PT1-II-48A (5) $ 57,018.01
Class PT1-II-48B (6) $ 57,018.01
Class PT1-II-49A (5) $ 54,378.58
Class PT1-II-49B (6) $ 54,378.58
Class PT1-II-50A (5) $ 51,861.97
Class PT1-II-50B (6) $ 51,861.97
Class PT1-II-51A (5) $ 49,462.40
Class PT1-II-51B (6) $ 49,462.40
Class PT1-II-52A (5) $ 47,174.40
Class PT1-II-52B (6) $ 47,174.40
Class PT1-II-53A (5) $ 44,992.74
Class PT1-II-53B (6) $ 44,992.74
Class PT1-II-54A (5) $ 42,912.44
Class PT1-II-54B (6) $ 42,912.44
Class PT1-II-55A (5) $ 41,431.86
Class PT1-II-55B (6) $ 41,431.86
Class PT1-II-56A (5) $ 39,006.16
Class PT1-II-56B (6) $ 39,006.16
Class PT1-II-57A (5) $ 41,322.70
Class PT1-II-57B (6) $ 41,322.70
Class PT1-II-58A (5) $ 65,857.47
Class PT1-II-58B (6) $ 65,857.47
Class PT1-II-59A (5) $ 699,698.70
Class PT1-II-59B (6) $ 699,698.70
Class PT1-III-1 (7) N/A
Class PT1-III-2A (8) $ 8,074,981.82
Class PT1-III-2B (9) $ 8,074,981.82
Class PT1-III-3A (8) $ 9,322,485.52
Class PT1-III-3B (9) $ 9,322,485.52
Class PT1-III-4A (8) $ 9,500,896.32
Class PT1-III-4B (9) $ 9,500,896.32
Class PT1-III-5A (8) $ 9,710,850.34
Class PT1-III-5B (9) $ 9,710,850.34
Class PT1-III-6A (8) $ 9,889,439.95
Class PT1-III-6B (9) $ 9,889,439.95
Class PT1-III-7A (8) $ 10,036,037.47
Class PT1-III-7B (9) $ 10,036,037.47
Class PT1-III-8A (8) $ 10,150,195.47
Class PT1-III-8B (9) $ 10,150,195.47
Class PT1-III-9A (8) $ 10,231,652.11
Class PT1-III-9B (9) $ 10,231,652.11
Class PT1-III-10A (8) $ 10,280,199.31
Class PT1-III-10B (9) $ 10,280,199.31
Class PT1-III-11A (8) $ 10,295,713.11
Class PT1-III-11B (9) $ 10,295,713.11
Class PT1-III-12A (8) $ 10,277,405.75
Class PT1-III-12B (9) $ 10,277,405.75
Class PT1-III-13A (8) $ 10,026,671.48
Class PT1-III-13B (9) $ 10,026,671.48
Class PT1-III-14A (8) $ 9,532,007.41
Class PT1-III-14B (9) $ 9,532,007.41
Class PT1-III-15A (8) $ 9,061,890.17
Class PT1-III-15B (9) $ 9,061,890.17
Class PT1-III-16A (8) $ 8,615,169.58
Class PT1-III-16B (9) $ 8,615,169.58
Class PT1-III-17A (8) $ 8,190,662.09
Class PT1-III-17B (9) $ 8,190,662.09
Class PT1-III-18A (8) $ 7,790,861.07
Class PT1-III-18B (9) $ 7,790,861.07
Class PT1-III-19A (8) $ 7,416,853.76
Class PT1-III-19B (9) $ 7,416,853.76
Class PT1-III-20A (8) $ 7,166,033.49
Class PT1-III-20B (9) $ 7,166,033.49
Class PT1-III-21A (8) $ 57,617,960.22
Class PT1-III-21B (9) $ 57,617,960.22
Class PT1-III-22A (8) $ 55,652,521.85
Class PT1-III-22B (9) $ 55,652,521.85
Class PT1-III-23A (8) $ 1,959,906.20
Class PT1-III-23B (9) $ 1,959,906.20
Class PT1-III-24A (8) $ 1,751,446.97
Class PT1-III-24B (9) $ 1,751,446.97
Class PT1-III-25A (8) $ 1,567,824.70
Class PT1-III-25B (9) $ 1,567,824.70
Class PT1-III-26A (8) $ 1,378,437.82
Class PT1-III-26B (9) $ 1,378,437.82
Class PT1-III-27A (8) $ 1,197,012.20
Class PT1-III-27B (9) $ 1,197,012.20
Class PT1-III-28A (8) $ 1,052,988.78
Class PT1-III-28B (9) $ 1,052,988.78
Class PT1-III-29A (8) $ 936,324.11
Class PT1-III-29B (9) $ 936,324.11
Class PT1-III-30A (8) $ 848,730.10
Class PT1-III-30B (9) $ 848,730.10
Class PT1-III-31A (8) $ 773,525.17
Class PT1-III-31B (9) $ 773,525.17
Class PT1-III-32A (8) $ 724,314.11
Class PT1-III-32B (9) $ 724,314.11
Class PT1-III-33A (8) $ 1,813,385.49
Class PT1-III-33B (9) $ 1,813,385.49
Class PT1-III-34A (8) $ 1,064,229.03
Class PT1-III-34B (9) $ 1,064,229.03
Class PT1-III-35A (8) $ 416,279.24
Class PT1-III-35B (9) $ 416,279.24
Class PT1-III-36A (8) $ 393,559.66
Class PT1-III-36B (9) $ 393,559.66
Class PT1-III-37A (8) $ 372,529.18
Class PT1-III-37B (9) $ 372,529.18
Class PT1-III-38A (8) $ 353,200.78
Class PT1-III-38B (9) $ 353,200.78
Class PT1-III-39A (8) $ 336,786.67
Class PT1-III-39B (9) $ 336,786.67
Class PT1-III-40A (8) $ 321,156.87
Class PT1-III-40B (9) $ 321,156.87
Class PT1-III-41A (8) $ 306,257.02
Class PT1-III-41B (9) $ 306,257.02
Class PT1-III-42A (8) $ 292,052.72
Class PT1-III-42B (9) $ 292,052.72
Class PT1-III-43A (8) $ 278,511.22
Class PT1-III-43B (9) $ 278,511.22
Class PT1-III-44A (8) $ 265,601.31
Class PT1-III-44B (9) $ 265,601.31
Class PT1-III-45A (8) $ 253,293.28
Class PT1-III-45B (9) $ 253,293.28
Class PT1-III-46A (8) $ 241,558.84
Class PT1-III-46B (9) $ 241,558.84
Class PT1-III-47A (8) $ 230,371.03
Class PT1-III-47B (9) $ 230,371.03
Class PT1-III-48A (8) $ 219,704.18
Class PT1-III-48B (9) $ 219,704.18
Class PT1-III-49A (8) $ 209,533.84
Class PT1-III-49B (9) $ 209,533.84
Class PT1-III-50A (8) $ 199,836.70
Class PT1-III-50B (9) $ 199,836.70
Class PT1-III-51A (8) $ 190,590.60
Class PT1-III-51B (9) $ 190,590.60
Class PT1-III-52A (8) $ 181,774.38
Class PT1-III-52B (9) $ 181,774.38
Class PT1-III-53A (8) $ 173,367.91
Class PT1-III-53B (9) $ 173,367.91
Class PT1-III-54A (8) $ 165,352.01
Class PT1-III-54B (9) $ 165,352.01
Class PT1-III-55A (8) $ 159,646.98
Class PT1-III-55B (9) $ 159,646.98
Class PT1-III-56A (8) $ 150,300.15
Class PT1-III-56B (9) $ 150,300.15
Class PT1-III-57A (8) $ 159,226.38
Class PT1-III-57B (9) $ 159,226.38
Class PT1-III-58A (8) $ 253,764.76
Class PT1-III-58B (9) $ 253,764.76
Class PT1-III-59A (8) $ 2,696,108.33
Class PT1-III-59B (9) $ 2,696,108.33
Class PT1-R (7) N/A
------------
(1) This interest shall be disregarded and shall not be treated as an interest
in Pooling-Tier REMIC-1.
(2) For any Distribution Date (and the related Interest Accrual Period) this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate"), equal to the product of
(i) 2 and (ii) the Pooling Tier REMIC-1 Loan Group I WAC Rate, subject to
a maximum rate of 9.5250%.
(3) For any Distribution Date (and the related Interest Accrual Period) this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate"), equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling Tier REMIC-1 Loan
Group I WAC Rate over (B) 9.5250%.
(4) This interest shall be disregarded and shall not be treated as an interest
in Pooling-Tier REMIC-1.
(5) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling Tier REMIC-1 Loan Group II WAC Rate, subject to
a maximum rate of 9.5250%.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling Tier REMIC-1 Loan
Group II WAC Rate over (B) 9.5250%.
(7) This interest shall be disregarded and shall not be treated as an interest
in Pooling-Tier REMIC-1.
(8) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling Tier REMIC-1 Loan Group III WAC Rate, subject
to a maximum rate of 9.5250%.
(9) For any Distribution Date (and the related Interest Accrual Period), this
Pooling Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling Tier REMIC-1 Loan
Group III WAC Rate over (B) 9.5250%.
(10) The Class PT1-R Interest shall not have a principal balance and shall not
bear interest.
On each Distribution Date, the Trustee shall first pay from the
Trust Fund and charge as an expense of Pooling Tier REMIC-1 all expenses of the
Trust for such Distribution Date. Such expense, other than Servicing Fees, the
Custodian Fees, the Premium Amount and Trustee Fees, shall be allocated in the
same manner as Realized Losses.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans from the related Loan Group for such Distribution Date shall
be deemed to be distributed to the Pooling Tier REMIC-1 Regular Interests at the
rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the outstanding Pooling Tier REMIC-1 Regular Interest relating to
the Group I Mortgage Loans with the lowest numerical denomination until the
Pooling Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling Tier REMIC-1 Regular Interests relating
to The Group I Mortgage Loans with the same numerical denomination, such
Realized Losses and payments of principal shall be allocated pro rata between
such Pooling Tier REMIC-1 Regular Interests until the Pooling-Tier REMIC-1
Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling Tier REMIC-1 Regular Interest relating to
the Group II Mortgage Loans with the lowest numerical denomination until the
Pooling Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling Tier REMIC-1 Regular Interests relating
to the Group II Mortgage Loans with the same numerical denomination, such
Realized Losses, Subsequent Recoveries and payments of principal shall be
allocated pro rata between such Pooling Tier REMIC-1 Regular Interests until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group III Mortgage Loans shall be
allocated to the outstanding Pooling Tier REMIC-1 Regular Interest relating to
the Group III Mortgage Loans with the lowest numerical denomination until the
Pooling Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling Tier REMIC-1 Regular Interests relating
to the Group III Mortgage Loans with the same numerical denomination, such
Realized Losses, Subsequent Recoveries and payments of principal shall be
allocated pro rata between such Pooling Tier REMIC-1 Regular Interests until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero.
Pooling-Tier REMIC-2
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the Class PT2-R
Interest, is hereby designated as a regular interest in Pooling-Tier REMIC-2.
Pooling Tier REMIC-2 Interests with an "I" in their designation shall relate to
the Group I Mortgage Loans, Pooling Tier REMIC-2 Interests with a "II" in their
designation shall relate to the Group II Mortgage Loans, and Pooling Tier
REMIC-2 Interests with a "III" in their designation shall relate to the Group
III Mortgage Loans. The Class PT2-R Interest is hereby designated as the sole
class of residual interest in Pooling-Tier REMIC-2 and shall be represented by
the Class R Certificates.
Corresponding
Corresponding Scheduled
Pooling-Tier Pooling-Tier Corresponding Pooling-Tier Crossover
Pooling-Tier REMIC-2 REMIC-2 Initial Pooling-Tier REMIC-1 Distribution
REMIC-2 Interest Interest Rate Principal Amount REMIC-2 IO Interest Regular Interest Date
------------------ ---------------- ------------------ ------------------- ---------------- -------------
Class PT2-I-1 (1) N/A N/A N/A N/A
Class PT2-I-2A (2) $ 5,840,210.43 Class PT2-I-IO-2 N/A N/A
Class PT2-I-2B (3) $ 5,840,210.43 N/A N/A N/A
Class PT2-I-3A (2) $ 6,742,464.37 Class PT2-I-IO-3 N/A N/A
Class PT2-I-3B (3) $ 6,742,464.37 N/A N/A N/A
Class PT2-I-4A (2) $ 6,871,499.53 Class PT2-I-IO-4 N/A N/A
Class PT2-I-4B (3) $ 6,871,499.53 N/A N/A N/A
Class PT2-I-5A (2) $ 7,023,348.25 Class PT2-I-IO-5 N/A N/A
Class PT2-I-5B (3) $ 7,023,348.25 N/A N/A N/A
Class PT2-I-6A (2) $ 7,152,512.74 Class PT2-I-IO-6 N/A N/A
Class PT2-I-6B (3) $ 7,152,512.74 N/A N/A N/A
Class PT2-I-7A (2) $ 7,258,539.03 Class PT2-I-IO-7 N/A N/A
Class PT2-I-7B (3) $ 7,258,539.03 N/A N/A N/A
Class PT2-I-8A (2) $ 7,341,103.52 Class PT2-I-IO-8 N/A N/A
Class PT2-I-8B (3) $ 7,341,103.52 N/A N/A N/A
Class PT2-I-9A (2) $ 7,400,016.83 Class PT2-I-IO-9 N/A N/A
Class PT2-I-9B (3) $ 7,400,016.83 N/A N/A N/A
Class PT2-I-10A (2) $ 7,435,128.47 Class PT2-I-IO-10 N/A N/A
Class PT2-I-10B (3) $ 7,435,128.47 N/A N/A N/A
Class PT2-I-11A (2) $ 7,446,348.79 Class PT2-I-IO-11 N/A N/A
Class PT2-I-11B (3) $ 7,446,348.79 N/A N/A N/A
Class PT2-I-12A (2) $ 7,433,108.04 Class PT2-I-IO-12 N/A N/A
Class PT2-I-12B (3) $ 7,433,108.04 N/A N/A N/A
Class PT2-I-13A (2) $ 7,251,765.10 Class PT2-I-IO-13 N/A N/A
Class PT2-I-13B (3) $ 7,251,765.10 N/A N/A N/A
Class PT2-I-14A (2) $ 6,894,000.55 Class PT2-I-IO-14 N/A N/A
Class PT2-I-14B (3) $ 6,894,000.55 N/A N/A N/A
Class PT2-I-15A (2) $ 6,553,989.43 Class PT2-I-IO-15 N/A N/A
Class PT2-I-15B (3) $ 6,553,989.43 N/A N/A N/A
Class PT2-I-16A (2) $ 6,230,899.88 Class PT2-I-IO-16 N/A N/A
Class PT2-I-16B (3) $ 6,230,899.88 N/A N/A N/A
Class PT2-I-17A (2) $ 5,923,875.90 Class PT2-I-IO-17 N/A N/A
Class PT2-I-17B (3) $ 5,923,875.90 N/A N/A N/A
Class PT2-I-18A (2) $ 5,634,720.81 Class PT2-I-IO-18 N/A N/A
Class PT2-I-18B (3) $ 5,634,720.81 N/A N/A N/A
Class PT2-I-19A (2) $ 5,364,220.96 Class PT2-I-IO-19 N/A N/A
Class PT2-I-19B (3) $ 5,364,220.96 N/A N/A N/A
Class PT2-I-20A (2) $ 5,182,815.82 Class PT2-I-IO-20 N/A N/A
Class PT2-I-20B (3) $ 5,182,815.82 N/A N/A N/A
Class PT2-I-21A (2) $ 41,672,045.82 Class PT2-I-IO-21 N/A N/A
Class PT2-I-21B (3) $ 41,672,045.82 N/A N/A N/A
Class PT2-I-22A (2) $ 40,250,547.42 Class PT2-I-IO-22 N/A N/A
Class PT2-I-22B (3) $ 40,250,547.42 N/A N/A N/A
Class PT2-I-23A (2) $ 1,417,497.26 Class PT2-I-IO-23 N/A N/A
Class PT2-I-23B (3) $ 1,417,497.26 N/A N/A N/A
Class PT2-I-24A (2) $ 1,266,729.64 Class PT2-I-IO-24 N/A N/A
Class PT2-I-24B (3) $ 1,266,729.64 N/A N/A N/A
Class PT2-I-25A (2) $ 1,133,925.30 Class PT2-I-IO-25 N/A N/A
Class PT2-I-25B (3) $ 1,133,925.30 N/A N/A N/A
Class PT2-I-26A (2) $ 996,951.71 Class PT2-I-IO-26 N/A N/A
Class PT2-I-26B (3) $ 996,951.71 N/A N/A N/A
Class PT2-I-27A (2) $ 865,736.08 Class PT2-I-IO-27 N/A N/A
Class PT2-I-27B (3) $ 865,736.08 N/A N/A N/A
Class PT2-I-28A (2) $ 761,571.51 Class PT2-I-IO-28 N/A N/A
Class PT2-I-28B (3) $ 761,571.51 N/A N/A N/A
Class PT2-I-29A (2) $ 677,194.07 Class PT2-I-IO-29 N/A N/A
Class PT2-I-29B (3) $ 677,194.07 N/A N/A N/A
Class PT2-I-30A (2) $ 613,841.93 Class PT2-I-IO-30 N/A N/A
Class PT2-I-30B (3) $ 613,841.93 N/A N/A N/A
Class PT2-I-31A (2) $ 559,450.15 Class PT2-I-IO-31 N/A N/A
Class PT2-I-31B (3) $ 559,450.15 N/A N/A N/A
Class PT2-I-32A (2) $ 523,858.37 Class PT2-I-IO-32 N/A N/A
Class PT2-I-32B (3) $ 523,858.37 N/A N/A N/A
Class PT2-I-33A (2) $ 1,311,526.53 Class PT2-I-IO-33 N/A N/A
Class PT2-I-33B (3) $ 1,311,526.53 N/A N/A N/A
Class PT2-I-34A (2) $ 769,700.99 Class PT2-I-IO-34 N/A N/A
Class PT2-I-34B (3) $ 769,700.99 N/A N/A N/A
Class PT2-I-35A (2) $ 301,072.92 Class PT2-I-IO-35 N/A N/A
Class PT2-I-35B (3) $ 301,072.92 N/A N/A N/A
Class PT2-I-36A (2) $ 284,641.04 Class PT2-I-IO-36 N/A N/A
Class PT2-I-36B (3) $ 284,641.04 N/A N/A N/A
Class PT2-I-37A (2) $ 269,430.80 Class PT2-I-IO-37 N/A N/A
Class PT2-I-37B (3) $ 269,430.80 N/A N/A N/A
Class PT2-I-38A (2) $ 255,451.58 Class PT2-I-IO-38 N/A N/A
Class PT2-I-38B (3) $ 255,451.58 N/A N/A N/A
Class PT2-I-39A (2) $ 243,580.12 Class PT2-I-IO-39 N/A N/A
Class PT2-I-39B (3) $ 243,580.12 N/A N/A N/A
Class PT2-I-40A (2) $ 232,275.90 Class PT2-I-IO-40 N/A N/A
Class PT2-I-40B (3) $ 232,275.90 N/A N/A N/A
Class PT2-I-41A (2) $ 221,499.62 Class PT2-I-IO-41 N/A N/A
Class PT2-I-41B (3) $ 221,499.62 N/A N/A N/A
Class PT2-I-42A (2) $ 211,226.40 Class PT2-I-IO-42 N/A N/A
Class PT2-I-42B (3) $ 211,226.40 N/A N/A N/A
Class PT2-I-43A (2) $ 201,432.54 Class PT2-I-IO-43 N/A N/A
Class PT2-I-43B (3) $ 201,432.54 N/A N/A N/A
Class PT2-I-44A (2) $ 192,095.48 Class PT2-I-IO-44 N/A N/A
Class PT2-I-44B (3) $ 192,095.48 N/A N/A N/A
Class PT2-I-45A (2) $ 183,193.73 Class PT2-I-IO-45 N/A N/A
Class PT2-I-45B (3) $ 183,193.73 N/A N/A N/A
Class PT2-I-46A (2) $ 174,706.83 Class PT2-I-IO-46 N/A N/A
Class PT2-I-46B (3) $ 174,706.83 N/A N/A N/A
Class PT2-I-47A (2) $ 166,615.27 Class PT2-I-IO-47 N/A N/A
Class PT2-I-47B (3) $ 166,615.27 N/A N/A N/A
Class PT2-I-48A (2) $ 158,900.50 Class PT2-I-IO-48 N/A N/A
Class PT2-I-48B (3) $ 158,900.50 N/A N/A N/A
Class PT2-I-49A (2) $ 151,544.82 Class PT2-I-IO-49 N/A N/A
Class PT2-I-49B (3) $ 151,544.82 N/A N/A N/A
Class PT2-I-50A (2) $ 144,531.40 Class PT2-I-IO-50 N/A N/A
Class PT2-I-50B (3) $ 144,531.40 N/A N/A N/A
Class PT2-I-51A (2) $ 137,844.17 Class PT2-I-IO-51 N/A N/A
Class PT2-I-51B (3) $ 137,844.17 N/A N/A N/A
Class PT2-I-52A (2) $ 131,467.86 Class PT2-I-IO-52 N/A N/A
Class PT2-I-52B (3) $ 131,467.86 N/A N/A N/A
Class PT2-I-53A (2) $ 125,387.91 Class PT2-I-IO-53 N/A N/A
Class PT2-I-53B (3) $ 125,387.91 N/A N/A N/A
Class PT2-I-54A (2) $ 119,590.43 Class PT2-I-IO-54 N/A N/A
Class PT2-I-54B (3) $ 119,590.43 N/A N/A N/A
Class PT2-I-55A (2) $ 115,464.28 Class PT2-I-IO-55 N/A N/A
Class PT2-I-55B (3) $ 115,464.28 N/A N/A N/A
Class PT2-I-56A (2) $ 108,704.21 Class PT2-I-IO-56 N/A N/A
Class PT2-I-56B (3) $ 108,704.21 N/A N/A N/A
Class PT2-I-57A (2) $ 115,160.08 Class PT2-I-IO-57 N/A N/A
Class PT2-I-57B (3) $ 115,160.08 N/A N/A N/A
Class PT2-I-58A (2) $ 183,534.73 Class PT2-I-IO-58 N/A N/A
Class PT2-I-58B (3) $ 183,534.73 N/A N/A N/A
Class PT2-I-59A (2) $ 1,949,953.62 Class PT2-I-IO-59 N/A N/A
Class PT2-I-59B (3) $ 1,949,953.62 N/A N/A N/A
Class PT2-I-IO-2 (4) (4) N/A Class PT1-I-2A December 2005
Class PT2-I-IO-3 (4) (4) N/A Class PT1-I-3A January 2006
Class PT2-I-IO-4 (4) (4) N/A Class PT1-I-4A February 2006
Class PT2-I-IO-5 (4) (4) N/A Class PT1-I-5A March 2006
Class PT2-I-IO-6 (4) (4) N/A Class PT1-I-6A April 2006
Class PT2-I-IO-7 (4) (4) N/A Class PT1-I-7A May 2006
Class PT2-I-IO-8 (4) (4) N/A Class PT1-I-8A June 2006
Class PT2-I-IO-9 (4) (4) N/A Class PT1-I-9A July 2006
Class PT2-I-IO-10 (4) (4) N/A Class PT1-I-10A August 2006
Class PT2-I-IO-11 (4) (4) N/A Class PT1-I-11A September 2006
Class PT2-I-IO-12 (4) (4) N/A Class PT1-I-12A October 2006
Class PT2-I-IO-13 (4) (4) N/A Class PT1-I-13A November 2006
Class PT2-I-IO-14 (4) (4) N/A Class PT1-I-14A December 2006
Class PT2-I-IO-15 (4) (4) N/A Class PT1-I-15A January 2007
Class PT2-I-IO-16 (4) (4) N/A Class PT1-I-16A February 2007
Class PT2-I-IO-17 (4) (4) N/A Class PT1-I-17A March 2007
Class PT2-I-IO-18 (4) (4) N/A Class PT1-I-18A April 2007
Class PT2-I-IO-19 (4) (4) N/A Class PT1-I-19A May 2007
Class PT2-I-IO-20 (4) (4) N/A Class PT1-I-20A June 2007
Class PT2-I-IO-21 (4) (4) N/A Class PT1-I-21A July 2007
Class PT2-I-IO-22 (4) (4) N/A Class PT1-I-22A August 2007
Class PT2-I-IO-23 (4) (4) N/A Class PT1-I-23A September 2007
Class PT2-I-IO-24 (4) (4) N/A Class PT1-I-24A October 2007
Class PT2-I-IO-25 (4) (4) N/A Class PT1-I-25A November 2007
Class PT2-I-IO-26 (4) (4) N/A Class PT1-I-26A December 2007
Class PT2-I-IO-27 (4) (4) N/A Class PT1-I-27A January 2008
Class PT2-I-IO-28 (4) (4) N/A Class PT1-I-28A February 2008
Class PT2-I-IO-29 (4) (4) N/A Class PT1-I-29A March 2008
Class PT2-I-IO-30 (4) (4) N/A Class PT1-I-30A April 2008
Class PT2-I-IO-31 (4) (4) N/A Class PT1-I-31A May 2008
Class PT2-I-IO-32 (4) (4) N/A Class PT1-I-32A June 2008
Class PT2-I-IO-33 (4) (4) N/A Class PT1-I-33A July 2008
Class PT2-I-IO-34 (4) (4) N/A Class PT1-I-34A August 2008
Class PT2-I-IO-35 (4) (4) N/A Class PT1-I-35A September 2008
Class PT2-I-IO-36 (4) (4) N/A Class PT1-I-36A October 2008
Class PT2-I-IO-37 (4) (4) N/A Class PT1-I-37A November 2008
Class PT2-I-IO-38 (4) (4) N/A Class PT1-I-38A December 2008
Class PT2-I-IO-39 (4) (4) N/A Class PT1-I-39A January 2009
Class PT2-I-IO-40 (4) (4) N/A Class PT1-I-40A February 2009
Class PT2-I-IO-41 (4) (4) N/A Class PT1-I-41A March 2009
Class PT2-I-IO-42 (4) (4) N/A Class PT1-I-42A April 2009
Class PT2-I-IO-43 (4) (4) N/A Class PT1-I-43A May 2009
Class PT2-I-IO-44 (4) (4) N/A Class PT1-I-44A June 2009
Class PT2-I-IO-45 (4) (4) N/A Class PT1-I-45A July 2009
Class PT2-I-IO-46 (4) (4) N/A Class PT1-I-46A August 2009
Class PT2-I-IO-47 (4) (4) N/A Class PT1-I-47A September 2009
Class PT2-I-IO-48 (4) (4) N/A Class PT1-I-48A October 2009
Class PT2-I-IO-49 (4) (4) N/A Class PT1-I-49A November 2009
Class PT2-I-IO-50 (4) (4) N/A Class PT1-I-50A December 2009
Class PT2-I-IO-51 (4) (4) N/A Class PT1-I-51A January 2010
Class PT2-I-IO-52 (4) (4) N/A Class PT1-I-52A February 2010
Class PT2-I-IO-53 (4) (4) N/A Class PT1-I-53A March 2010
Class PT2-I-IO-54 (4) (4) N/A Class PT1-I-54A April 2010
Class PT2-I-IO-55 (4) (4) N/A Class PT1-I-55A May 2010
Class PT2-I-IO-56 (4) (4) N/A Class PT1-I-56A June 2010
Class PT2-I-IO-57 (4) (4) N/A Class PT1-I-57A July 2010
Class PT2-I-IO-58 (4) (4) N/A Class PT1-I-58A August 2010
Class PT2-I-IO-59 (4) (4) N/A Class PT1-I-59A September 2010
Class PT2-II-1 (5) (5) N/A N/A N/A
Class PT2-II-2A (6) $ 2,095,633.26 Class PT2-II-IO-2 N/A N/A
Class PT2-II-2B (7) $ 2,095,633.26 N/A N/A N/A
Class PT2-II-3A (6) $ 2,419,387.58 Class PT2-II-IO-3 N/A N/A
Class PT2-II-3B (7) $ 2,419,387.58 N/A N/A N/A
Class PT2-II-4A (6) $ 2,465,689.06 Class PT2-II-IO-4 N/A N/A
Class PT2-II-4B (7) $ 2,465,689.06 N/A N/A N/A
Class PT2-II-5A (6) $ 2,520,176.69 Class PT2-II-IO-5 N/A N/A
Class PT2-II-5B (7) $ 2,520,176.69 N/A N/A N/A
Class PT2-II-6A (6) $ 2,566,524.58 Class PT2-II-IO-6 N/A N/A
Class PT2-II-6B (7) $ 2,566,524.58 N/A N/A N/A
Class PT2-II-7A (6) $ 2,604,569.82 Class PT2-II-IO-7 N/A N/A
Class PT2-II-7B (7) $ 2,604,569.82 N/A N/A N/A
Class PT2-II-8A (6) $ 2,634,196.30 Class PT2-II-IO-8 N/A N/A
Class PT2-II-8B (7) $ 2,634,196.30 N/A N/A N/A
Class PT2-II-9A (6) $ 2,655,336.07 Class PT2-II-IO-9 N/A N/A
Class PT2-II-9B (7) $ 2,655,336.07 N/A N/A N/A
Class PT2-II-10A (6) $ 2,667,935.12 Class PT2-II-IO-10 N/A N/A
Class PT2-II-10B (7) $ 2,667,935.12 N/A N/A N/A
Class PT2-II-11A (6) $ 2,671,961.29 Class PT2-II-IO-11 N/A N/A
Class PT2-II-11B (7) $ 2,671,961.29 N/A N/A N/A
Class PT2-II-12A (6) $ 2,667,210.13 Class PT2-II-IO-12 N/A N/A
Class PT2-II-12B (7) $ 2,667,210.13 N/A N/A N/A
Class PT2-II-13A (6) $ 2,602,139.14 Class PT2-II-IO-13 N/A N/A
Class PT2-II-13B (7) $ 2,602,139.14 N/A N/A N/A
Class PT2-II-14A (6) $ 2,473,763.06 Class PT2-II-IO-14 N/A N/A
Class PT2-II-14B (7) $ 2,473,763.06 N/A N/A N/A
Class PT2-II-15A (6) $ 2,351,757.43 Class PT2-II-IO-15 N/A N/A
Class PT2-II-15B (7) $ 2,351,757.43 N/A N/A N/A
Class PT2-II-16A (6) $ 2,235,823.72 Class PT2-II-IO-16 N/A N/A
Class PT2-II-16B (7) $ 2,235,823.72 N/A N/A N/A
Class PT2-II-17A (6) $ 2,125,654.81 Class PT2-II-IO-17 N/A N/A
Class PT2-II-17B (7) $ 2,125,654.81 N/A N/A N/A
Class PT2-II-18A (6) $ 2,021,897.75 Class PT2-II-IO-18 N/A N/A
Class PT2-II-18B (7) $ 2,021,897.75 N/A N/A N/A
Class PT2-II-19A (6) $ 1,924,834.73 Class PT2-II-IO-19 N/A N/A
Class PT2-II-19B (7) $ 1,924,834.73 N/A N/A N/A
Class PT2-II-20A (6) $ 1,859,741.42 Class PT2-II-IO-20 N/A N/A
Class PT2-II-20B (7) $ 1,859,741.42 N/A N/A N/A
Class PT2-II-21A (6) $ 14,953,112.78 Class PT2-II-IO-21 N/A N/A
Class PT2-II-21B (7) $ 14,953,112.78 N/A N/A N/A
Class PT2-II-22A (6) $ 14,443,038.81 Class PT2-II-IO-22 N/A N/A
Class PT2-II-22B (7) $ 14,443,038.81 N/A N/A N/A
Class PT2-II-23A (6) $ 508,638.25 Class PT2-II-IO-23 N/A N/A
Class PT2-II-23B (7) $ 508,638.25 N/A N/A N/A
Class PT2-II-24A (6) $ 454,538.55 Class PT2-II-IO-24 N/A N/A
Class PT2-II-24B (7) $ 454,538.55 N/A N/A N/A
Class PT2-II-25A (6) $ 406,884.58 Class PT2-II-IO-25 N/A N/A
Class PT2-II-25B (7) $ 406,884.58 N/A N/A N/A
Class PT2-II-26A (6) $ 357,734.57 Class PT2-II-IO-26 N/A N/A
Class PT2-II-26B (7) $ 357,734.57 N/A N/A N/A
Class PT2-II-27A (6) $ 310,650.68 Class PT2-II-IO-27 N/A N/A
Class PT2-II-27B (7) $ 310,650.68 N/A N/A N/A
Class PT2-II-28A (6) $ 273,273.47 Class PT2-II-IO-28 N/A N/A
Class PT2-II-28B (7) $ 273,273.47 N/A N/A N/A
Class PT2-II-29A (6) $ 242,996.45 Class PT2-II-IO-29 N/A N/A
Class PT2-II-29B (7) $ 242,996.45 N/A N/A N/A
Class PT2-II-30A (6) $ 220,263.90 Class PT2-II-IO-30 N/A N/A
Class PT2-II-30B (7) $ 220,263.90 N/A N/A N/A
Class PT2-II-31A (6) $ 200,746.59 Class PT2-II-IO-31 N/A N/A
Class PT2-II-31B (7) $ 200,746.59 N/A N/A N/A
Class PT2-II-32A (6) $ 187,975.25 Class PT2-II-IO-32 N/A N/A
Class PT2-II-32B (7) $ 187,975.25 N/A N/A N/A
Class PT2-II-33A (6) $ 470,612.94 Class PT2-II-IO-33 N/A N/A
Class PT2-II-33B (7) $ 470,612.94 N/A N/A N/A
Class PT2-II-34A (6) $ 276,190.56 Class PT2-II-IO-34 N/A N/A
Class PT2-II-34B (7) $ 276,190.56 N/A N/A N/A
Class PT2-II-35A (6) $ 108,033.51 Class PT2-II-IO-35 N/A N/A
Class PT2-II-35B (7) $ 108,033.51 N/A N/A N/A
Class PT2-II-36A (6) $ 102,137.28 Class PT2-II-IO-36 N/A N/A
Class PT2-II-36B (7) $ 102,137.28 N/A N/A N/A
Class PT2-II-37A (6) $ 96,679.42 Class PT2-II-IO-37 N/A N/A
Class PT2-II-37B (7) $ 96,679.42 N/A N/A N/A
Class PT2-II-38A (6) $ 91,663.28 Class PT2-II-IO-38 N/A N/A
Class PT2-II-38B (7) $ 91,663.28 N/A N/A N/A
Class PT2-II-39A (6) $ 87,403.46 Class PT2-II-IO-39 N/A N/A
Class PT2-II-39B (7) $ 87,403.46 N/A N/A N/A
Class PT2-II-40A (6) $ 83,347.19 Class PT2-II-IO-40 N/A N/A
Class PT2-II-40B (7) $ 83,347.19 N/A N/A N/A
Class PT2-II-41A (6) $ 79,480.35 Class PT2-II-IO-41 N/A N/A
Class PT2-II-41B (7) $ 79,480.35 N/A N/A N/A
Class PT2-II-42A (6) $ 75,794.03 Class PT2-II-IO-42 N/A N/A
Class PT2-II-42B (7) $ 75,794.03 N/A N/A N/A
Class PT2-II-43A (6) $ 72,279.71 Class PT2-II-IO-43 N/A N/A
Class PT2-II-43B (7) $ 72,279.71 N/A N/A N/A
Class PT2-II-44A (6) $ 68,929.31 Class PT2-II-IO-44 N/A N/A
Class PT2-II-44B (7) $ 68,929.31 N/A N/A N/A
Class PT2-II-45A (6) $ 65,735.11 Class PT2-II-IO-45 N/A N/A
Class PT2-II-45B (7) $ 65,735.11 N/A N/A N/A
Class PT2-II-46A (6) $ 62,689.77 Class PT2-II-IO-46 N/A N/A
Class PT2-II-46B (7) $ 62,689.77 N/A N/A N/A
Class PT2-II-47A (6) $ 59,786.29 Class PT2-II-IO-47 N/A N/A
Class PT2-II-47B (7) $ 59,786.29 N/A N/A N/A
Class PT2-II-48A (6) $ 57,018.01 Class PT2-II-IO-48 N/A N/A
Class PT2-II-48B (7) $ 57,018.01 N/A N/A N/A
Class PT2-II-49A (6) $ 54,378.58 Class PT2-II-IO-49 N/A N/A
Class PT2-II-49B (7) $ 54,378.58 N/A N/A N/A
Class PT2-II-50A (6) $ 51,861.97 Class PT2-II-IO-50 N/A N/A
Class PT2-II-50B (7) $ 51,861.97 N/A N/A N/A
Class PT2-II-51A (6) $ 49,462.40 Class PT2-II-IO-51 N/A N/A
Class PT2-II-51B (7) $ 49,462.40 N/A N/A N/A
Class PT2-II-52A (6) $ 47,174.40 Class PT2-II-IO-52 N/A N/A
Class PT2-II-52B (7) $ 47,174.40 N/A N/A N/A
Class PT2-II-53A (6) $ 44,992.74 Class PT2-II-IO-53 N/A N/A
Class PT2-II-53B (7) $ 44,992.74 N/A N/A N/A
Class PT2-II-54A (6) $ 42,912.44 Class PT2-II-IO-54 N/A N/A
Class PT2-II-54B (7) $ 42,912.44 N/A N/A N/A
Class PT2-II-55A (6) $ 41,431.86 Class PT2-II-IO-55 N/A N/A
Class PT2-II-55B (7) $ 41,431.86 N/A N/A N/A
Class PT2-II-56A (6) $ 39,006.16 Class PT2-II-IO-56 N/A N/A
Class PT2-II-56B (7) $ 39,006.16 N/A N/A N/A
Class PT2-II-57A (6) $ 41,322.70 Class PT2-II-IO-57 N/A N/A
Class PT2-II-57B (7) $ 41,322.70 N/A N/A N/A
Class PT2-II-58A (6) $ 65,857.47 Class PT2-II-IO-58 N/A N/A
Class PT2-II-58B (7) $ 65,857.47 N/A N/A N/A
Class PT2-II-59A (6) $ 699,698.70 Class PT2-II-IO-59 N/A N/A
Class PT2-II-59B (7) $ 699,698.70 N/A N/A N/A
Class PT2-II-IO-2 (4) (4) N/A Class PT1-II-2A December 2005
Class PT2-II-IO-3 (4) (4) N/A Class PT1-II-3A January 2006
Class PT2-II-IO-4 (4) (4) N/A Class PT1-II-4A February 2006
Class PT2-II-IO-5 (4) (4) N/A Class PT1-II-5A March 2006
Class PT2-II-IO-6 (4) (4) N/A Class PT1-II-6A April 2006
Class PT2-II-IO-7 (4) (4) N/A Class PT1-II-7A May 2006
Class PT2-II-IO-8 (4) (4) N/A Class PT1-II-8A June 2006
Class PT2-II-IO-9 (4) (4) N/A Class PT1-II-9A July 2006
Class PT2-II-IO-10 (4) (4) N/A Class PT1-II-10A August 2006
Class PT2-II-IO-11 (4) (4) N/A Class PT1-II-11A September 2006
Class PT2-II-IO-12 (4) (4) N/A Class PT1-II-12A October 2006
Class PT2-II-IO-13 (4) (4) N/A Class PT1-II-13A November 2006
Class PT2-II-IO-14 (4) (4) N/A Class PT1-II-14A December 2006
Class PT2-II-IO-15 (4) (4) N/A Class PT1-II-15A January 2007
Class PT2-II-IO-16 (4) (4) N/A Class PT1-II-16A February 2007
Class PT2-II-IO-17 (4) (4) N/A Class PT1-II-17A March 2007
Class PT2-II-IO-18 (4) (4) N/A Class PT1-II-18A April 2007
Class PT2-II-IO-19 (4) (4) N/A Class PT1-II-19A May 2007
Class PT2-II-IO-20 (4) (4) N/A Class PT1-II-20A June 2007
Class PT2-II-IO-21 (4) (4) N/A Class PT1-II-21A July 2007
Class PT2-II-IO-22 (4) (4) N/A Class PT1-II-22A August 2007
Class PT2-II-IO-23 (4) (4) N/A Class PT1-II-23A September 2007
Class PT2-II-IO-24 (4) (4) N/A Class PT1-II-24A October 2007
Class PT2-II-IO-25 (4) (4) N/A Class PT1-II-25A November 2007
Class PT2-II-IO-26 (4) (4) N/A Class PT1-II-26A December 2007
Class PT2-II-IO-27 (4) (4) N/A Class PT1-II-27A January 2008
Class PT2-II-IO-28 (4) (4) N/A Class PT1-II-28A February 2008
Class PT2-II-IO-29 (4) (4) N/A Class PT1-II-29A March 2008
Class PT2-II-IO-30 (4) (4) N/A Class PT1-II-30A April 2008
Class PT2-II-IO-31 (4) (4) N/A Class PT1-II-31A May 2008
Class PT2-II-IO-32 (4) (4) N/A Class PT1-II-32A June 2008
Class PT2-II-IO-33 (4) (4) N/A Class PT1-II-33A July 2008
Class PT2-II-IO-34 (4) (4) N/A Class PT1-II-34A August 2008
Class PT2-II-IO-35 (4) (4) N/A Class PT1-II-35A September 2008
Class PT2-II-IO-36 (4) (4) N/A Class PT1-II-36A October 2008
Class PT2-II-IO-37 (4) (4) N/A Class PT1-II-37A November 2008
Class PT2-II-IO-38 (4) (4) N/A Class PT1-II-38A December 2008
Class PT2-II-IO-39 (4) (4) N/A Class PT1-II-39A January 2009
Class PT2-II-IO-40 (4) (4) N/A Class PT1-II-40A February 2009
Class PT2-II-IO-41 (4) (4) N/A Class PT1-II-41A March 2009
Class PT2-II-IO-42 (4) (4) N/A Class PT1-II-42A April 2009
Class PT2-II-IO-43 (4) (4) N/A Class PT1-II-43A May 2009
Class PT2-II-IO-44 (4) (4) N/A Class PT1-II-44A June 2009
Class PT2-II-IO-45 (4) (4) N/A Class PT1-II-45A July 2009
Class PT2-II-IO-46 (4) (4) N/A Class PT1-II-46A August 2009
Class PT2-II-IO-47 (4) (4) N/A Class PT1-II-47A September 2009
Class PT2-II-IO-48 (4) (4) N/A Class PT1-II-48A October 2009
Class PT2-II-IO-49 (4) (4) N/A Class PT1-II-49A November 2009
Class PT2-II-IO-50 (4) (4) N/A Class PT1-II-50A December 2009
Class PT2-II-IO-51 (4) (4) N/A Class PT1-II-51A January 2010
Class PT2-II-IO-52 (4) (4) N/A Class PT1-II-52A February 2010
Class PT2-II-IO-53 (4) (4) N/A Class PT1-II-53A March 2010
Class PT2-II-IO-54 (4) (4) N/A Class PT1-II-54A April 2010
Class PT2-II-IO-55 (4) (4) N/A Class PT1-II-55A May 2010
Class PT2-II-IO-56 (4) (4) N/A Class PT1-II-56A June 2010
Class PT2-II-IO-57 (4) (4) N/A Class PT1-II-57A July 2010
Class PT2-II-IO-58 (4) (4) N/A Class PT1-II-58A August 2010
Class PT2-II-IO-59 (4) (4) N/A Class PT1-II-59A September 2010
Class PT2-III-1 (8) (8) N/A N/A N/A
Class PT2-III-2A (9) $ 8,074,981.82 Class PT2-III-IO-2 N/A N/A
Class PT2-III-2B (10) $ 8,074,981.82 N/A N/A N/A
Class PT2-III-3A (9) $ 9,322,485.52 Class PT2-III-IO-3 N/A N/A
Class PT2-III-3B (10) $ 9,322,485.52 N/A N/A N/A
Class PT2-III-4A (9) $ 9,500,896.32 Class PT2-III-IO-4 N/A N/A
Class PT2-III-4B (10) $ 9,500,896.32 N/A N/A N/A
Class PT2-III-5A (9) $ 9,710,850.34 Class PT2-III-IO-5 N/A N/A
Class PT2-III-5B (10) $ 9,710,850.34 N/A N/A N/A
Class PT2-III-6A (9) $ 9,889,439.95 Class PT2-III-IO-6 N/A N/A
Class PT2-III-6B (10) $ 9,889,439.95 N/A N/A N/A
Class PT2-III-7A (9) $ 10,036,037.47 Class PT2-III-IO-7 N/A N/A
Class PT2-III-7B (10) $ 10,036,037.47 N/A N/A N/A
Class PT2-III-8A (9) $ 10,150,195.47 Class PT2-III-IO-8 N/A N/A
Class PT2-III-8B (10) $ 10,150,195.47 N/A N/A N/A
Class PT2-III-9A (9) $ 10,231,652.11 Class PT2-III-IO-9 N/A N/A
Class PT2-III-9B (10) $ 10,231,652.11 N/A N/A N/A
Class PT2-III-10A (9) $ 10,280,199.31 Class PT2-III-IO-10 N/A N/A
Class PT2-III-10B (10) $ 10,280,199.31 N/A N/A N/A
Class PT2-III-11A (9) $ 10,295,713.11 Class PT2-III-IO-11 N/A N/A
Class PT2-III-11B (10) $ 10,295,713.11 N/A N/A N/A
Class PT2-III-12A (9) $ 10,277,405.75 Class PT2-III-IO-12 N/A N/A
Class PT2-III-12B (10) $ 10,277,405.75 N/A N/A N/A
Class PT2-III-13A (9) $ 10,026,671.48 Class PT2-III-IO-13 N/A N/A
Class PT2-III-13B (10) $ 10,026,671.48 N/A N/A N/A
Class PT2-III-14A (9) $ 9,532,007.41 Class PT2-III-IO-14 N/A N/A
Class PT2-III-14B (10) $ 9,532,007.41 N/A N/A N/A
Class PT2-III-15A (9) $ 9,061,890.17 Class PT2-III-IO-15 N/A N/A
Class PT2-III-15B (10) $ 9,061,890.17 N/A N/A N/A
Class PT2-III-16A (9) $ 8,615,169.58 Class PT2-III-IO-16 N/A N/A
Class PT2-III-16B (10) $ 8,615,169.58 N/A N/A N/A
Class PT2-III-17A (9) $ 8,190,662.09 Class PT2-III-IO-17 N/A N/A
Class PT2-III-17B (10) $ 8,190,662.09 N/A N/A N/A
Class PT2-III-18A (9) $ 7,790,861.07 Class PT2-III-IO-18 N/A N/A
Class PT2-III-18B (10) $ 7,790,861.07 N/A N/A N/A
Class PT2-III-19A (9) $ 7,416,853.76 Class PT2-III-IO-19 N/A N/A
Class PT2-III-19B (10) $ 7,416,853.76 N/A N/A N/A
Class PT2-III-20A (9) $ 7,166,033.49 Class PT2-III-IO-20 N/A N/A
Class PT2-III-20B (10) $ 7,166,033.49 N/A N/A N/A
Class PT2-III-21A (9) $ 57,617,960.22 Class PT2-III-IO-21 N/A N/A
Class PT2-III-21B (10) $ 57,617,960.22 N/A N/A N/A
Class PT2-III-22A (9) $ 55,652,521.85 Class PT2-III-IO-22 N/A N/A
Class PT2-III-22B (10) $ 55,652,521.85 N/A N/A N/A
Class PT2-III-23A (9) $ 1,959,906.20 Class PT2-III-IO-23 N/A N/A
Class PT2-III-23B (10) $ 1,959,906.20 N/A N/A N/A
Class PT2-III-24A (9) $ 1,751,446.97 Class PT2-III-IO-24 N/A N/A
Class PT2-III-24B (10) $ 1,751,446.97 N/A N/A N/A
Class PT2-III-25A (9) $ 1,567,824.70 Class PT2-III-IO-25 N/A N/A
Class PT2-III-25B (10) $ 1,567,824.70 N/A N/A N/A
Class PT2-III-26A (9) $ 1,378,437.82 Class PT2-III-IO-26 N/A N/A
Class PT2-III-26B (10) $ 1,378,437.82 N/A N/A N/A
Class PT2-III-27A (9) $ 1,197,012.20 Class PT2-III-IO-27 N/A N/A
Class PT2-III-27B (10) $ 1,197,012.20 N/A N/A N/A
Class PT2-III-28A (9) $ 1,052,988.78 Class PT2-III-IO-28 N/A N/A
Class PT2-III-28B (10) $ 1,052,988.78 N/A N/A N/A
Class PT2-III-29A (9) $ 936,324.11 Class PT2-III-IO-29 N/A N/A
Class PT2-III-29B (10) $ 936,324.11 N/A N/A N/A
Class PT2-III-30A (9) $ 848,730.10 Class PT2-III-IO-30 N/A N/A
Class PT2-III-30B (10) $ 848,730.10 N/A N/A N/A
Class PT2-III-31A (9) $ 773,525.17 Class PT2-III-IO-31 N/A N/A
Class PT2-III-31B (10) $ 773,525.17 N/A N/A N/A
Class PT2-III-32A (9) $ 724,314.11 Class PT2-III-IO-32 N/A N/A
Class PT2-III-32B (10) $ 724,314.11 N/A N/A N/A
Class PT2-III-33A (9) $ 1,813,385.49 Class PT2-III-IO-33 N/A N/A
Class PT2-III-33B (10) $ 1,813,385.49 N/A N/A N/A
Class PT2-III-34A (9) $ 1,064,229.03 Class PT2-III-IO-34 N/A N/A
Class PT2-III-34B (10) $ 1,064,229.03 N/A N/A N/A
Class PT2-III-35A (9) $ 416,279.24 Class PT2-III-IO-35 N/A N/A
Class PT2-III-35B (10) $ 416,279.24 N/A N/A N/A
Class PT2-III-36A (9) $ 393,559.66 Class PT2-III-IO-36 N/A N/A
Class PT2-III-36B (10) $ 393,559.66 N/A N/A N/A
Class PT2-III-37A (9) $ 372,529.18 Class PT2-III-IO-37 N/A N/A
Class PT2-III-37B (10) $ 372,529.18 N/A N/A N/A
Class PT2-III-38A (9) $ 353,200.78 Class PT2-III-IO-38 N/A N/A
Class PT2-III-38B (10) $ 353,200.78 N/A N/A N/A
Class PT2-III-39A (9) $ 336,786.67 Class PT2-III-IO-39 N/A N/A
Class PT2-III-39B (10) $ 336,786.67 N/A N/A N/A
Class PT2-III-40A (9) $ 321,156.87 Class PT2-III-IO-40 N/A N/A
Class PT2-III-40B (10) $ 321,156.87 N/A N/A N/A
Class PT2-III-41A (9) $ 306,257.02 Class PT2-III-IO-41 N/A N/A
Class PT2-III-41B (10) $ 306,257.02 N/A N/A N/A
Class PT2-III-42A (9) $ 292,052.72 Class PT2-III-IO-42 N/A N/A
Class PT2-III-42B (10) $ 292,052.72 N/A N/A N/A
Class PT2-III-43A (9) $ 278,511.22 Class PT2-III-IO-43 N/A N/A
Class PT2-III-43B (10) $ 278,511.22 N/A N/A N/A
Class PT2-III-44A (9) $ 265,601.31 Class PT2-III-IO-44 N/A N/A
Class PT2-III-44B (10) $ 265,601.31 N/A N/A N/A
Class PT2-III-45A (9) $ 253,293.28 Class PT2-III-IO-45 N/A N/A
Class PT2-III-45B (10) $ 253,293.28 N/A N/A N/A
Class PT2-III-46A (9) $ 241,558.84 Class PT2-III-IO-46 N/A N/A
Class PT2-III-46B (10) $ 241,558.84 N/A N/A N/A
Class PT2-III-47A (9) $ 230,371.03 Class PT2-III-IO-47 N/A N/A
Class PT2-III-47B (10) $ 230,371.03 N/A N/A N/A
Class PT2-III-48A (9) $ 219,704.18 Class PT2-III-IO-48 N/A N/A
Class PT2-III-48B (10) $ 219,704.18 N/A N/A N/A
Class PT2-III-49A (9) $ 209,533.84 Class PT2-III-IO-49 N/A N/A
Class PT2-III-49B (10) $ 209,533.84 N/A N/A N/A
Class PT2-III-50A (9) $ 199,836.70 Class PT2-III-IO-50 N/A N/A
Class PT2-III-50B (10) $ 199,836.70 N/A N/A N/A
Class PT2-III-51A (9) $ 190,590.60 Class PT2-III-IO-51 N/A N/A
Class PT2-III-51B (10) $ 190,590.60 N/A N/A N/A
Class PT2-III-52A (9) $ 181,774.38 Class PT2-III-IO-52 N/A N/A
Class PT2-III-52B (10) $ 181,774.38 N/A N/A N/A
Class PT2-III-53A (9) $ 173,367.91 Class PT2-III-IO-53 N/A N/A
Class PT2-III-53B (10) $ 173,367.91 N/A N/A N/A
Class PT2-III-54A (9) $ 165,352.01 Class PT2-III-IO-54 N/A N/A
Class PT2-III-54B (10) $ 165,352.01 N/A N/A N/A
Class PT2-III-55A (9) $ 159,646.98 Class PT2-III-IO-55 N/A N/A
Class PT2-III-55B (10) $ 159,646.98 N/A N/A N/A
Class PT2-III-56A (9) $ 150,300.15 Class PT2-III-IO-56 N/A N/A
Class PT2-III-56B (10) $ 150,300.15 N/A N/A N/A
Class PT2-III-57A (9) $ 159,226.38 Class PT2-III-IO-57 N/A N/A
Class PT2-III-57B (10) $ 159,226.38 N/A N/A N/A
Class PT2-III-58A (9) $ 253,764.76 Class PT2-III-IO-58 N/A N/A
Class PT2-III-58B (10) $ 253,764.76 N/A N/A N/A
Class PT2-III-59A (9) $ 2,696,108.33 Class PT2-III-IO-59 N/A N/A
Class PT2-III-59B (10) $ 2,696,108.33 N/A N/A N/A
Class PT2-III-IO-2 (4) (4) N/A Class PT1-III-2A December 2005
Class PT2-III-IO-3 (4) (4) N/A Class PT1-III-3A January 2006
Class PT2-III-IO-4 (4) (4) N/A Class PT1-III-4A February 2006
Class PT2-III-IO-5 (4) (4) N/A Class PT1-III-5A March 2006
Class PT2-III-IO-6 (4) (4) N/A Class PT1-III-6A April 2006
Class PT2-III-IO-7 (4) (4) N/A Class PT1-III-7A May 2006
Class PT2-III-IO-8 (4) (4) N/A Class PT1-III-8A June 2006
Class PT2-III-IO-9 (4) (4) N/A Class PT1-III-9A July 2006
Class PT2-III-IO-10 (4) (4) N/A Class PT1-III-10A August 2006
Class PT2-III-IO-11 (4) (4) N/A Class PT1-III-11A September 2006
Class PT2-III-IO-12 (4) (4) N/A Class PT1-III-12A October 2006
Class PT2-III-IO-13 (4) (4) N/A Class PT1-III-13A November 2006
Class PT2-III-IO-14 (4) (4) N/A Class PT1-III-14A December 2006
Class PT2-III-IO-15 (4) (4) N/A Class PT1-III-15A January 2007
Class PT2-III-IO-16 (4) (4) N/A Class PT1-III-16A February 2007
Class PT2-III-IO-17 (4) (4) N/A Class PT1-III-17A March 2007
Class PT2-III-IO-18 (4) (4) N/A Class PT1-III-18A April 2007
Class PT2-III-IO-19 (4) (4) N/A Class PT1-III-19A May 2007
Class PT2-III-IO-20 (4) (4) N/A Class PT1-III-20A June 2007
Class PT2-III-IO-21 (4) (4) N/A Class PT1-III-21A July 2007
Class PT2-III-IO-22 (4) (4) N/A Class PT1-III-22A August 2007
Class PT2-III-IO-23 (4) (4) N/A Class PT1-III-23A September 2007
Class PT2-III-IO-24 (4) (4) N/A Class PT1-III-24A October 2007
Class PT2-III-IO-25 (4) (4) N/A Class PT1-III-25A November 2007
Class PT2-III-IO-26 (4) (4) N/A Class PT1-III-26A December 2007
Class PT2-III-IO-27 (4) (4) N/A Class PT1-III-27A January 2008
Class PT2-III-IO-28 (4) (4) N/A Class PT1-III-28A February 2008
Class PT2-III-IO-29 (4) (4) N/A Class PT1-III-29A March 2008
Class PT2-III-IO-30 (4) (4) N/A Class PT1-III-30A April 2008
Class PT2-III-IO-31 (4) (4) N/A Class PT1-III-31A May 2008
Class PT2-III-IO-32 (4) (4) N/A Class PT1-III-32A June 2008
Class PT2-III-IO-33 (4) (4) N/A Class PT1-III-33A July 2008
Class PT2-III-IO-34 (4) (4) N/A Class PT1-III-34A August 2008
Class PT2-III-IO-35 (4) (4) N/A Class PT1-III-35A September 2008
Class PT2-III-IO-36 (4) (4) N/A Class PT1-III-36A October 2008
Class PT2-III-IO-37 (4) (4) N/A Class PT1-III-37A November 2008
Class PT2-III-IO-38 (4) (4) N/A Class PT1-III-38A December 2008
Class PT2-III-IO-39 (4) (4) N/A Class PT1-III-39A January 2009
Class PT2-III-IO-40 (4) (4) N/A Class PT1-III-40A February 2009
Class PT2-III-IO-41 (4) (4) N/A Class PT1-III-41A March 2009
Class PT2-III-IO-42 (4) (4) N/A Class PT1-III-42A April 2009
Class PT2-III-IO-43 (4) (4) N/A Class PT1-III-43A May 2009
Class PT2-III-IO-44 (4) (4) N/A Class PT1-III-44A June 2009
Class PT2-III-IO-45 (4) (4) N/A Class PT1-III-45A July 2009
Class PT2-III-IO-46 (4) (4) N/A Class PT1-III-46A August 2009
Class PT2-III-IO-47 (4) (4) N/A Class PT1-III-47A September 2009
Class PT2-III-IO-48 (4) (4) N/A Class PT1-III-48A October 2009
Class PT2-III-IO-49 (4) (4) N/A Class PT1-III-49A November 2009
Class PT2-III-IO-50 (4) (4) N/A Class PT1-III-50A December 2009
Class PT2-III-IO-51 (4) (4) N/A Class PT1-III-51A January 2010
Class PT2-III-IO-52 (4) (4) N/A Class PT1-III-52A February 2010
Class PT2-III-IO-53 (4) (4) N/A Class PT1-III-53A March 2010
Class PT2-III-IO-54 (4) (4) N/A Class PT1-III-54A April 2010
Class PT2-III-IO-55 (4) (4) N/A Class PT1-III-55A May 2010
Class PT2-III-IO-56 (4) (4) N/A Class PT1-III-56A June 2010
Class PT2-III-IO-57 (4) (4) N/A Class PT1-III-57A July 2010
Class PT2-III-IO-58 (4) (4) N/A Class PT1-III-58A August 2010
Class PT2-III-IO-59 (4) (4) N/A Class PT1-III-59A September 2010
Class PT2-R (11) (4) N/A N/A N/A
-------------
(1) This interest shall be disregarded and shall not be treated as an interest
in Pooling-Tier REMIC-2.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group I Mortgage Loans and
having an "A" in their class designation, provided that, on each
Distribution Date on which interest is distributable on the Corresponding
Pooling-Tier REMIC-2 IO Interest, this Pooling-Tier REMIC-2 Regular
Interest shall bear interest at a per annum rate equal to Swap LIBOR
subject to a maximum rate equal to the weighted average of the
Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier REMIC-1 Regular
Interests relating to the Group I Mortgage Loans and having an "A" in
their class designation.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group I Mortgage Loans and
having a "B" in their class designation.
(4) Each Pooling-Tier REMIC-2 IO Interest is an interest-only interest and
does not have a principal balance but has a notional balance
("Pooling-Tier REMIC-2 IO Notional Balance") equal to the Pooling-Tier
REMIC-1 Principal Amount of the Corresponding Pooling-Tier REMIC-1 Regular
Interest. From the Closing Date through and including the Corresponding
Actual Crossover Distribution Date, each Pooling-Tier REMIC-2 IO Interest
shall be entitled to receive interest that accrues on the Corresponding
Pooling-Tier REMIC-1 Regular Interest at a rate equal to the excess, if
any, of (i) the Pooling-Tier REMIC-1 Interest Rate for the Corresponding
Pooling-Tier REMIC-1 Regular Interest over (ii) Swap LIBOR. After the
related Corresponding Actual Crossover Distribution Date, the Pooling-Tier
REMIC-2 IO Interest shall not accrue interest.
(5) This interest shall be disregarded and shall not be treated as an interest
in Pooling-Tier REMIC-2.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group II Mortgage Loans and
having an "A" in their class designation, provided that, on each
Distribution Date on which interest is distributable on the Corresponding
Pooling-Tier REMIC-2 IO Interest, this Pooling-Tier REMIC-2 Regular
Interest shall bear interest at a per annum rate equal to Swap LIBOR
subject to a maximum rate equal to the weighted average of the
Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier REMIC-1 Regular
Interests relating to the Group II Mortgage Loans and having an "A" in
their class designation.
(7) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group II Mortgage Loans and
having a "B" in their class designation.
(8) This interest shall be disregarded and shall not be treated as an interest
in Pooling-Tier REMIC-2.
(9) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group III Mortgage Loans and
having an "A" in their class designation, provided that, on each
Distribution Date on which interest is distributable on the Corresponding
Pooling-Tier REMIC-2 IO Interest, this Pooling-Tier REMIC-2 Regular
Interest shall bear interest at a per annum rate equal to Swap LIBOR
subject to a maximum rate equal to the weighted average of the
Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier REMIC-1 Regular
Interests relating to the Group III Mortgage Loans and having an "A" in
their class designation.
(10) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to the Group III Mortgage Loans and
having a "B" in their class designation.
(11) The Class PT2-R Interest shall not have a principal balance and shall not
bear interest.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be distributed to the
Pooling-Tier REMIC-2 Regular Interests at the Pooling-Tier REMIC-2 Interest
Rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the then outstanding Pooling-Tier REMIC-2 Regular Interests (other
than the Pooling-Tier REMIC-2 IO Interests) relating to the Group I Mortgage
Loans with the lowest numerical denomination until the Pooling-Tier REMIC-2
Principal Amount of such interest is reduced to zero, provided that, for
Pooling-Tier REMIC-2 Regular Interests relating to the Group I Mortgage Loans
with the same numerical denomination, such Realized Losses, Subsequent
Recoveries and payments of principal shall be allocated pro rata between such
Pooling-Tier REMIC-2 Regular Interests, until the Pooling-Tier REMIC-2 Principal
Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans to the
outstanding Pooling-Tier REMIC-2 Regular Interests (other than the Pooling-Tier
REMIC-2 IO Interests) relating to the Group II Mortgage Loans with the lowest
numerical denomination until the Pooling-Tier REMIC-2 Principal Amount of such
interest is reduced to zero, provided that, for Pooling-Tier REMIC-2 Regular
Interests relating to the Group II Mortgage Loans with the same numerical
denomination, such Realized Losses, Subsequent Recoveries and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests until the Pooling-Tier REMIC-2 Principal Amount of such interest is
reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group III Mortgage Loans to the
outstanding Pooling-Tier REMIC-2 Regular Interests (other than the Pooling-Tier
REMIC-2 IO Interests) relating to the Group III Mortgage Loans with the lowest
numerical denomination until the Pooling-Tier REMIC-2 Principal Amount of such
interest is reduced to zero, provided that, for Pooling-Tier REMIC-2 Regular
Interests relating to the Group III Mortgage Loans with the same numerical
denomination, such Realized Losses, Subsequent Recoveries and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests until the Pooling-Tier REMIC-2 Principal Amount of such interest is
reduced to zero.
Lower Tier REMIC
The Lower Tier REMIC shall issue the following interests, and each
such interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in the Lower Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower Tier REMIC and
shall be represented by the Class R Certificates.
Corresponding
Lower Tier Lower Tier Upper Tier
REMIC REMIC Initial Lower Tier REMIC Regular
Class Designation Interest Rate REMIC Principal Amount Interest
--------------------- --------------- --------------------------------- ----------------
Class LT-A-1A (1) 1/4 Corresponding Upper Tier A-1A
REMIC Regular Interest initial
Class Principal Balance
Class LT-A-1B (1) 1/4 Corresponding Upper Tier A-1B
REMIC Regular Interest initial
Class Principal Balance
Class LT-A-2 (1) 1/4 Corresponding Upper Tier A-2
REMIC Regular Interest initial
Class Principal Balance
Class LT-A-3A (1) 1/4 Corresponding Upper Tier A-3A
REMIC Regular Interest initial
Class Principal Balance
Class LT-A-3B (1) 1/4 Corresponding Upper Tier A-3B
REMIC Regular Interest initial
Class Principal Balance
Class LT-A-3C (1) 1/4 Corresponding Upper Tier A-3C
REMIC Regular Interest initial
Class Principal Balance
Class LT-M-1 (1) 1/4 Corresponding Upper Tier M-1
REMIC Regular Interest initial
Class Principal Balance
Class LT-M-2 (1) 1/4 Corresponding Upper Tier M-2
REMIC Regular Interest initial
Class Principal Balance
Class LT-M-3 (1) 1/4 Corresponding Upper Tier M-3
REMIC Regular Interest initial
Class Principal Balance
Class LT-B-1 (1) 1/4 Corresponding Upper Tier B-1
REMIC Regular Interest initial
Class Principal Balance
Class LT-B-2 (1) 1/4 Corresponding Upper Tier B-2
REMIC Regular Interest initial
Class Principal Balance
Class LT-B-3 (1) 1/4 Corresponding Upper Tier B-3
REMIC Regular Interest initial
Class Principal Balance
Class LT-B-4 (1) 1/4 Corresponding Upper Tier B-4
REMIC Regular Interest initial
Class Principal Balance
Class LT-Accrual (1) 1/4 Pool Stated Principal Balance N/A
plus 1/4 Subordinated Amount
Class LT- (1) 0.01% initial Group Subordinate N/A
Group I(SUB) Amount of the Group I Mortgage
Loans (7)
Class LT- (2) 0.01% initial aggregate Stated N/A
Group I Principal Balance of the Group I
Mortgage Loans (7)
Class LT- (1) 0.01% initial Group Subordinate N/A
Group II(SUB) Amount of the Group II Mortgage
Loans (7)
Class LT- (3) 0.01% initial aggregate Stated N/A
Group II Principal Balance of the Group II
Mortgage Loans(7)
Class LT- (1) 0.01% initial Group Subordinate N/A
Group III(SUB) Amount of the Group III Mortgage
Loans (7)
Class LT- (4) 0.01% initial aggregate Stated N/A
Group III Principal Balance of the Group
III Mortgage Loans(7)
Class LT-XX (1) 1/2 initial aggregate Stated N/A
Principal Balance of the Mortgage
Loans, less aggregate Initial
Lower Tier REMIC Principal
Amounts of Class LT-Group I(SUB),
Class LT-Group I,
Class LT-Group II(SUB),
Class LT-Group II,
Class LT-Group III(SUB), and
Class LT-Group III, Interests
Class LT-IO (5) (5) N/A
Class LT-R (6) (6) N/A
-------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the Lower Tier REMIC WAC
Cap.
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests)
relating to the Group I Mortgage Loans.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests)
relating to the Group II Mortgage Loans.
(4) The interest rate with respect to any Distribution Date for the Class
LT-Group III Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests)
relating to the Group III Mortgage Loans.
(5) This Lower Tier Regular Interest is an interest-only interest and does not
have a Lower Tier REMIC Principal Amount. On each Distribution Date, this
Lower Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling-Tier REMIC-2 IO Interests.
(6) The Class LT-R Interest is the sole class of residual interest in the
Lower Tier REMIC and it does not have a principal amount or an interest
rate.
(7) For all Distribution Dates, the Lower Tier Principal Amount of these Lower
Tier REMIC Regular Interests shall be rounded to eight decimal places.
Each Lower Tier REMIC Regular Interest is hereby designated as a
regular interest in the Lower Tier REMIC. The Class LT-A-1A, Class LT-A-1B,
Class LT-A-2, Class LT-A-3A, Class LT-A-3B, Class LT-M-1, Class LT-M-2, Class
LT-M-3, Class LT-B-1, Class LT-B-2, Class LT-B-3 and Class LT-B-4 Interests are
hereby designated the LT Accretion Directed Classes (the "LT Accretion Directed
Classes").
On each Distribution Date, 25% of the increase in the Subordinated
Amount shall be payable as a reduction of the Lower Tier REMIC Principal Amount
of the LT Accretion Directed Classes (each such Class will be reduced by an
amount equal to 25% of any increase in the Subordinated Amount that is
attributable to a reduction in the Class Certificate Balance of its
Corresponding Class) and shall be accrued and added to the Lower Tier REMIC
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower Tier REMIC Principal Amount of the Class LT-Accrual
Interest may not exceed interest accruals for such Distribution Date for the
Class LT-Accrual Interest. All payments of scheduled principal and prepayments
of principal generated by the Mortgage Loans and all Subsequent Recoveries
allocable to principal shall be allocated (i) 25% to the Class LT-Accrual
Interest, (ii) 25% to the LT Accretion Directed Classes (such principal payments
and Subsequent Recoveries shall be allocated among such LT Accretion Directed
Classes in an amount equal to 25% of the principal amounts and Subsequent
Recoveries allocated to their respective Corresponding Classes), until paid in
full and (iii) 50% to Class LT-Group I(SUB) Interest, Class LT-Group I Interest,
Class LT-Group II(SUB) Interest, Class LT-Group II Interest, Class LT-Group
III(SUB) Interest, Class LT-Group III Interest and Class LT-XX Interest (and
further allocated among these Lower Tier REMIC Regular Interests in the manner
described in the next sentence). As among the Class LT-Group I(SUB) Interest,
Class LT-Group I Interest, Class LT-Group II(SUB) Interest, Class LT-Group II
Interest, Class LT-Group III(SUB) Interest, Class LT-Group III Interest and
Class LT-XX Interest, all payments of scheduled principal and prepayments of
principal generated by the Mortgage Loans and Subsequent Recoveries referred to
in clause (iii) of the previous sentence shall be allocated (i) first, to the
Class LT-Group I(SUB) Interest, Class LT-Group II(SUB) Interest, and Class
LT-Group III(SUB) Interest each from the related Loan Group, so that their
respective Lower Tier REMIC Principal Amount (computed to at least eight decimal
places) is equal to 0.01% of the related Group Subordinate Amount (except that
if any such amount is a larger number than in the preceding distribution period,
the least amount of principal shall be distributed to the Class LT-Group I(SUB)
Interest, Class LT-Group II(SUB) Interest, and Class LT-Group III(SUB) Interest,
as applicable, such that the Lower Tier REMIC Subordinated Balance Ratio is
maintained); (ii) second, to the Class LT-Group I Interest, Class LT-Group II
Interest and the Class LT-Group III Interest 0.01% of the principal collected in
respect of the related Loan Group; and (iii) third, any remaining amounts of
principal shall be distributed to the Class LT-XX Interest. Notwithstanding the
above, principal payments allocated to the Class X Interest that result in the
reduction in the Subordinated Amount shall be allocated (i) 50% to the Class
LT-Accrual Interest (until paid in full) and (ii) 50% to the Class LT-Group
I(SUB) Interest, the Class LT-Group II(SUB) Interest, the Class LT-Group
III(SUB) Interest, the Class LT-Group I Interest, the Class LT-Group II
Interest, the Class LT-Group III Interest and the Class LT-XX Interest (and
allocated among these Lower Tier REMIC Regular Interests in a manner similar to
that described in the immediately preceding sentence).
Reductions to Lower Tier REMIC Principal Amounts as a result of
Realized Losses and increases in Lower Tier REMIC Principal Amounts as a result
of Subsequent Recoveries shall be applied so that after all distributions have
been made on each Distribution Date (i) the Lower Tier REMIC Principal Amount of
each LT Accretion Directed Class is equal to 25% of the Class Certificate
Balance of its Corresponding Class, (ii) the Class LT-Accrual Interest is equal
to 25% of the aggregate Stated Principal Balance of the Mortgage Loans plus 25%
of the Subordinated Amount, (iii) the Class LT-Group I(SUB) Interest is equal to
0.01% of the Group Subordinate Amount of the Group I Mortgage Loans, (iv) the
Class LT-Group II(SUB) Interest is equal to 0.01% of the Group Subordinate
Amount of the Group II Mortgage Loans, (v) the Class LT-Group III(SUB) Interest
is equal to 0.01% of the Group Subordinate Amount of the Group III Mortgage
Loans, (vi) the Class LT-Group I Interest is equal to 0.01% of the aggregate
Stated Principal Balance of the Group I Mortgage Loans, (vii) the Class LT-Group
II Interest is equal to 0.01% of the aggregate Stated Principal Balance of the
Group II Mortgage Loans, (viii) the Class LT-Group III Interest is equal to
0.01% of the aggregate Stated Principal Balance of the Group III Mortgage Loans
and (ix) the remainder shall be applied to the Class LT-XX Interest.
Upper Tier REMIC
The Upper Tier REMIC shall issue the following classes of Upper Tier
REMIC Regular Interests and each such interest, other than the Class UT-R
Interest, is hereby designated as a regular interest in the Upper Tier REMIC.
The Class UT-R Interest is hereby designated as the sole class of residual
interests in the Upper Tier REMIC and shall be represented by the Class R
Certificates.
Initial Upper Tier
Upper Tier REMIC Upper Tier REMIC REMIC Principal Corresponding
Class Designation Interest Rate Amount Class of Certificates
------------------------ ------------------- -------------------- ---------------------
Class A-1A (1) $ 470,210,000 Class A-1A
Class A-1B (1) $ 117,553,000 Class A-1B
Class A-2 (2) $ 198,202,000 Class A-2
Class A-3A (3) $ 283,651,000 Class A-3A
Class A-3B (3) $ 106,663,000 Class A-3B
Class A-3C (3) $ 88,518,000 Class A-3C
Class M-1 (4) $ 80,793,000 Class M-1
Class M-2 (4) $ 52,312,000 Class M-2
Class M-3 (4) $ 10,463,000 Class M-3
Class B-1 (4) $ 9,881,000 Class B-1
Class B-2 (4) $ 9,881,000 Class B-2
Class B-3 (4) $ 9,300,000 Class B-3
Class B-4 (4) $ 11,625,000 Class B-4
Class IO (5) (5)
Class X (6) $ 34,293,625 Class X(6)
Class UT-R (7) $0 Class R
-------------
(1) For any Distribution Date (and the related Interest Accrual Period) this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the Group I Loan Cap) for the Corresponding
Class of Certificates and (ii) the Lower Tier Interest Rate for the Class
LT-Group I Interest (the "Upper Tier REMIC Loan Group I Rate").
(2) For any Distribution Date (and the related Interest Accrual Period) this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the Group II Loan Cap) for the Corresponding
Class of Certificates and (ii) the Lower Tier Interest Rate for the Class
LT-Group II Interest (the "Upper Tier REMIC Loan Group II Rate").
(3) For any Distribution Date (and the related Interest Accrual Period) this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the Group III Loan Cap) for the
Corresponding Class of Certificates and (ii) the Lower Tier Interest Rate
for the Class LT-Group III Interest (the "Upper Tier REMIC Loan Group III
Rate").
(4) For any Distribution Date (and the related Interest Accrual Period) this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the applicable WAC Cap) for the
Corresponding Class of Certificates and (ii) the Upper Tier REMIC Pool Cap
Rate.
(5) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class IO Interest shall be
entitled to receive all interest distributable on the Class LT-IO
Interest. This interest shall be beneficially owned by the holders of the
Class X Certificates and shall be held as an asset of the Swap Account.
(6) The Class X Interest has an initial principal balance of $47,886,070 but
it will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class X
Interest shall have a notional principal balance equal to the aggregate of
the Lower Tier Principal Amounts of the Lower Tier REMIC Regular Interests
as of the first day of the related Interest Accrual Period. With respect
to any Interest Accrual Period, the Class X Interest shall bear interest
at a rate equal to the excess, if any, of the Lower Tier REMIC WAC Cap
over the product of (i) 2 and (ii) the weighted average Lower Tier REMIC
Interest Rate of the Lower Tier REMIC Regular Interests (other than Class
LT-Group I(SUB), Class LT-Group I, Class LT-Group II(SUB), Class LT-Group
II, Class LT-Group III(SUB), Class LT-Group III, Class LT-XX and Class
LT-IO Interests), where the Lower Tier REMIC Interest Rate on the Class
LT-Accrual Interest is subject to a cap equal to zero and each
LT-Accretion Directed Class is subject to a cap equal to the Upper Tier
Interest Rate on its Corresponding Class of Upper Tier Regular Interest.
With respect to any Distribution Date, interest that so accrues on the
notional principal balance of the Class X Interest shall be deferred in an
amount equal to any increase in the Subordinated Amount on such
Distribution Date. Such deferred interest shall not itself bear interest.
(7) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Lower Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper Tier REMIC at the rates shown above,
provided that the Class IO Interest shall be entitled to receive interest before
any other interest in the Upper Tier REMIC.
On each Distribution Date, all Realized Losses, Subsequent
Recoveries and all payments of principal shall be allocated to the Upper Tier
Interests until the outstanding principal balance of each such interest equals
the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Certificates
Class Pass-Through Class Certificate
Class Designation Rate Balance
--------------------- --------------------- -------------------
Class A-1A(8) (1) $ 470,210,000
Class A-1B(8) (2) $ 117,553,000
Class A-2(8) (3) $ 198,202,000
Class A-3A(8) (4) $ 283,651,000
Class A-3B(8) (4) $ 106,663,000
Class A-3C(8) (4) $ 88,518,000
Class M-1(8) (5) $ 80,793,000
Class M-2(8) (5) $ 52,312,000
Class M-3(8) (5) $ 10,463,000
Class B-1(8) (5) $ 9,881,000
Class B-2(8) (5) $ 9,881,000
Class B-3(8) (5) $ 9,300,000
Class B-4(8) (5) $ 11,625,000
Class X (6) $ 34,293,625
Class R (7) $0
-------------
(1) The Class A-1A Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (i) LIBOR plus
the applicable Pass-Through Margin and (ii) the Group I Loan Cap.
(2) The Class A-1B Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (i) LIBOR plus
the applicable Pass-Through Margin and (ii) the Group I Loan Cap.
(3) The Class A-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR plus the
applicable Pass-Through Margin and (ii) the Group II Loan Cap.
(4) The Class A-3A, Class A-3B and Class A-3C Certificates will bear interest
during each Interest Accrual Period at a per annum rate equal to the
lesser of (i) LIBOR plus the applicable Pass-Through Margin and (ii) the
Group III Loan Cap.
(5) The Class M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3 and
Class B-4 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR plus the
applicable Pass-Through Margin and (ii) the Pool Cap.
(6) The Class X Certificates will represent beneficial ownership of the Class
X Interest, the Class IO Interest, the right to receive Class IO
Shortfalls, the Cap Agreements, amounts in the Swap Account, subject to
the obligation to pay Net Swap Payments and Upper Tier Carry Forward
Amounts and, without duplication, Basis Risk Carry Forward Amounts and
amounts in the Excess Reserve Fund Account, subject to the obligation to
make payments from the Excess Reserve Fund Account in respect of Basis
Risk Carry Forward Amounts. For federal income tax purposes, the Trustee
will treat a Class X Certificateholder's obligation to make payments of
Upper Tier Carry Forward Amounts and, without duplication, Basis Risk
Carry Forward Amounts to the LIBOR Certificates from the Excess Reserve
Fund Account and the Swap Account to the LIBOR Certificateholders as
payments made pursuant to an interest rate cap contract written by the
Class X Certificateholders in favor of each Class of LIBOR Certificates.
Such rights of the Class X Certificateholders and LIBOR Certificateholders
shall be treated as held in a portion of the Trust Fund that is treated as
a grantor trust under subpart E, Part I of subchapter J of the Code.
(7) The Class R Certificates do not have a principal balance or an interest
rate.
(8) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper Tier REMIC Regular Interest but also the
right to receive payments from the Excess Reserve Fund Account and Swap
Account in respect of any Basis Risk Carry Forward Amounts. Each of these
Certificates will also be subject to the obligation to pay Class IO
Shortfalls as described in Section 8.13. For federal income tax purposes,
any amount distributed on the LIBOR Certificates on any such Distribution
Date in excess of the amount distributable on their Corresponding Class of
Upper Tier Regular Interest on such Distribution Date shall be treated as
having been paid from the Excess Reserve Fund Account or the Swap Account,
as applicable, and any amount distributable on such Corresponding Class of
Upper Tier Regular Interest on such Distribution Date in excess of the
amount distributable on the LIBOR Certificates on such Distribution Date
shall be treated as having been paid to the Swap Account, all pursuant to,
and as further provided in Section 8.13. For federal income tax purposes,
the Trustee will treat a LIBOR Certificateholder's right to receive
payments from the Excess Reserve Fund Account and Swap Account as payments
made pursuant to an interest rate cap contract written by the Class X
Certificateholders.
The minimum denomination for each Class of Certificates, other than
the Class P, Class R and the Class X Certificates, will be $25,000 with integral
multiples of $1 in excess thereof except that one Certificate in each Class may
be issued in a different amount. The minimum denomination for each of the Class
P and Class X Certificates will be a 1% Percentage Interest in such Class, and
the minimum denomination for the Class R Certificates shall be 100% Percentage
Interest in such Class.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates...... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates......... Class A-1A, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇, Class A-3A,
Class A-3B and Class A-3C Certificates.
Class B Certificates......... Class B-1, Class B-2, Class B-3 and Class B-4
Certificates.
Class M Certificates......... Class M-1, Class M-2 and Class M-3
Certificates.
Delay Certificates........... None.
ERISA-Restricted
Certificates............... Class R, Class P and Class X Certificates; any
certificate with a rating below the lowest
applicable permitted rating under the
Underwriters' Exemption.
LIBOR Certificates........... Class A and Subordinated Certificates.
Non-Delay Certificates....... Class A, Class X and Subordinated Certificates.
Offered Certificates......... All Classes of Certificates other than the
Private Certificates.
Physical Certificates........ Class P, Class X and Class R Certificates.
Private Certificates......... Class A-1A, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇,
Class P, Class X and Class R Certificates.
Rating Agencies.............. Moody's, Fitch, Standard & Poor's and DBRS.
Regular Certificates......... All Classes of Certificates other than the
Class P and Class R Certificates.
Residual Certificates........ Class R Certificates.
Subordinated Certificates.... Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2, Class B-3 and Class B-4
Certificates.
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices set forth in Section 3.01(a) of this
Agreement.
Account: Any of the Collection Account, the Distribution Account,
any Escrow Account or the Excess Reserve Fund Account. Each Account shall be an
Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of LIBOR Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.02.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and at any
time, the per annum rate equal to the Mortgage Rate less the Expense Fee Rate.
Adjustment Date: As to any Mortgage Loan, the first Due Date on
which the related Mortgage Rate adjusts as set forth in the related Mortgage
Note and each Due Date thereafter on which the Mortgage Rate adjusts as set
forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described in
Section 10.11.
Advancing Person: The Person to whom a Servicer's rights under this
Agreement to be reimbursed for any P&I Advances or Servicing Advances have been
assigned pursuant to Section 10.11.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on any
Distribution Date, the aggregate amount held in the Collection Account at the
close of business on the related Determination Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and
Subsequent Recoveries on the Mortgage Loans received after the end of the
related Prepayment Period and (ii) all Scheduled Payments on the Mortgage Loans
due after the end of the related Due Period.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
LIBOR Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received by the Servicers on or prior to the related Determination Date,
together with any P&I Advances in respect thereof; (ii) all Condemnation
Proceeds, Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries
received by the Servicers during the related Prepayment Period (in each case,
net of unreimbursed expenses incurred in connection with a liquidation or
foreclosure and unreimbursed Advances, if any); (iii) all partial or full
prepayments on the Mortgage Loans received by the Servicers during the related
Prepayment Period together with all Compensating Interest paid by the Servicers
in connection therewith (excluding any Prepayment Charges); (iv) all
Substitution Adjustment Amounts with respect to the substitutions of Mortgage
Loans that occur on or prior to the related Determination Date; (v) all amounts
received with respect to such Distribution Date as the Repurchase Price in
respect of a Mortgage Loan repurchased by a Responsible Party or the Depositor
on or prior to the related Determination Date; (vi) the Closing Date Deposit
Amount; and (vii) the proceeds with respect to the termination of the Trust Fund
pursuant to clause (a) of Section 9.01; reduced by (y) amounts in reimbursement
for Advances previously made with respect to the Mortgage Loans and other
amounts as to which the Servicers, the Depositor or the Trustee are entitled to
be paid or reimbursed pursuant to this Agreement.
Balloon Loan: Any Mortgage Loan that requires only payments of
interest until the stated maturity date of the Mortgage Loan or Scheduled
Payments of principal (not including the payment due on its stated maturity
date) that are based on an amortization schedule that would be insufficient to
fully amortize the principal thereof by the stated maturity date of the Mortgage
Loan.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Subordinated Amount, if any, for such
Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon a Group Loan Cap or the Pool Cap, as applicable, the excess of (i)
the amount of interest such Class of Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
LIBOR and the applicable Pass-Through Margin on such Class of Certificates for
such Distribution Date, over (ii) the amount of interest payable on such Class
of Certificates at, with respect to the Class A-1A and Class A-1B Certificates,
the Group I Loan Cap, with respect to the Class A-2 Certificates, the Group II
Loan Cap, with respect to the Class A-3A, Class A-3B and Class A-3C
Certificates, the Group III Loan Cap, and with respect to each other Class of
LIBOR Certificates, the Pool Cap, as applicable, for such Distribution Date and
(B) the portion of any such excess described in clause (A) for such Class of
Certificates from all previous Distribution Dates not previously paid, together
with interest thereon at a rate equal to the sum of LIBOR and the applicable
Pass-Through Margin for such Class of Certificates for such Distribution Date.
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments from the Excess Reserve Fund Account or any
Defaulted Swap Termination Payment).
Best's: Best's Key Rating Guide, as the same shall be amended from
time to time.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the State of New
York, California, New Jersey or Delaware, (b) the State in which either
Servicer's servicing operations are located, or (c) any State in which the
Trustee's Corporate Trust Office is located, are authorized or obligated by law
or executive order to be closed.
Cap Agreements: The Class M Cap Agreement and the Class B Cap
Agreement.
Cap Provider: Barclays Bank PLC, a bank authorized and regulated by
the United Kingdom's Financial Services Authority and a member of the London
Stock Exchange, and its successors in interest.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Certificates,
other than the Class X, Class P or Class R Certificates, at any date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the Denomination thereof minus all
distributions of principal previously made (including without limitation
principal amounts paid under the Class A-1B Certificate Insurance Policy with
respect to the Class A-1B Certificates) with respect thereto and in the case of
any Subordinated Certificates, reduced by any Applied Realized Loss Amounts
allocated to such Class of Certificates pursuant to Section 4.05; provided,
however, that immediately following the Distribution Date on which a Subsequent
Recovery is distributed, the Class Certificate Balances of any Class or Classes
of Certificates that have been previously reduced by Applied Realized Loss
Amounts will be increased, in order of seniority, by the amount of the
Subsequent Recovery distributed on such Distribution Date (up to the amount of
Unpaid Realized Loss Amounts for such Class or Classes for such Distribution
Date). The Class P, Class X and Class R Certificates have no Certificate
Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Trustee is entitled to rely conclusively
on a certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of the
Depositor.
Certification: As defined in Section 8.12(b).
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificate Group: The Group I Class A Certificates, the
Group II Class A Certificates or the Group III Class A Certificates, as
applicable.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Allocation Percentage: With respect to any
Distribution Date, the percentage equivalent of a fraction, determined as
follows: (A) with respect to the Group I Class A Certificates, a fraction, the
numerator of which is (x) the portion of the Principal Remittance Amount for
such Distribution Date that is attributable to the principal received or
advanced on the Group I Mortgage Loans and the denominator of which is (y) the
Principal Remittance Amount for such Distribution Date; (B) with respect to the
Group II Class A Certificates, a fraction, the numerator of which is (x) the
portion of the Principal Remittance Amount for such Distribution Date that is
attributable to the principal received or advanced on the Group II Mortgage
Loans and the denominator of which is (y) the Principal Remittance Amount for
such Distribution Date; and (C) with respect to the Group III Class A
Certificates, a fraction, the numerator of which is (x) the portion of the
Principal Remittance Amount for such Distribution Date that is attributable to
the principal received or advanced on the Group III Mortgage Loans and the
denominator of which is (y) the Principal Remittance Amount for such
Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 52.80% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over $6,218,880.
Class A-1A Certificates: All Certificates bearing the class
designation of "Class A-1A".
Class A-1B Available Funds: With respect to any Distribution Date,
(a) for any portion of the Class A-1B Certificate Required Distributions for
such Distribution Date attributable to interest, funds available for payment of
such interest pursuant to Sections 4.02(a)(i)(B)(1), 4.02(a)(iv), 4.02(a)(v) and
4.02(a)(vi) and 4.07(ii), and (b) for any portion of the Class A-1B Certificate
Required Distributions for such Distribution Date attributable to principal,
funds available for payment of such principal pursuant to Section
4.02(a)(ii)(A)(a) or 4.02(a)(ii)(B)(a), as applicable, and Section 4.07(v),
subject in each such case to Section 4.02(c).
Class A-1B Certificate Insurance Policy: The Certificate Guaranty
Insurance Policy No. CA02554A, and all endorsements thereto, dated the Closing
Date, issued by the Class A-1B Certificate Insurer for the benefit of the Class
A-1B Certificates.
Class A-1B Certificate Insurer: XL Capital Assurance Inc., a New
York stock insurance company, and its successors in interest.
Class A-1B Certificate Insured Payment: (i) As of any Distribution
Date, any Deficiency Amount and (ii) any Preference Amount.
Class A-1B Certificate Insurer Default: The existence and
continuance of any of the following:
(a) the Class A-1B Certificate Insurer shall have failed to make a
required payment when due under the Class A-1B Certificate Insurance Policy in
accordance with its terms;
(b) the Class A-1B Certificate Insurer shall have (i) filed a
petition or commenced any case or proceeding under any provision or chapter of
the United States Bankruptcy Code, the New York State Insurance Law or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization, (ii) made a general assignment for the benefit
of its creditors or (iii) had an order for relief entered against it under the
United States Bankruptcy Code, the New York State Insurance Law or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization that is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of
Insurance or any other competent regulatory authority shall have entered a final
and nonappealable order, judgment or decree (i) appointing a custodian, trustee,
agent, or receiver for the Class A-1B Certificate Insurer or for all or any
material portion of its property or (ii) authorizing the taking of possession by
a custodian, trustee, agent, or receiver of the Class A-1B Certificate Insurer
(or the taking of possession of all or any material portion of property of the
Class A-1B Certificate Insurer).
Class A-1B Certificate Required Distributions: (a) With respect to
any Distribution Date, the sum, without duplication, of (i) the Accrued
Certificate Interest Distribution Amount for the Class A-1B Certificates for
such Distribution Date and (ii) at the election of the Class A-1B Certificate
Insurer in its sole discretion, the amount equal to the product of (x) a
fraction, the numerator of which is equal to the Class Certificate Balance of
the Class A-1B Certificates (after giving effect to all distributions to be made
on such Distribution Date from sources other than the Class A-1B Certificate
Insurance Policy), and the denominator of which is equal to the aggregate Class
Certificate Balance of the Group I Class A Certificates (after giving effect to
all distributions to be made on such Distribution Date from sources other than
the Class A-1B Certificate Insurance Policy), and (y) the amount, if any, by
which the aggregate Class Certificate Balance of the Group I Class A
Certificates (after giving effect to all distributions to be made on such
Distribution Date from sources other than the Class A-1B Certificate Insurance
Policy) exceeds the aggregate Stated Principal Balance of the Group I Mortgage
Loans and (b) on the Final Scheduled Distribution Date, the Class Certificate
Balance of the Class A-1B Certificates (after giving effect to all distributions
to be made on such Distribution Date from sources other than the Class A-1B
Certificate Insurance Policy).
Class A-1B Certificates: All Certificates bearing the class
designation of "Class A-1B".
Class A-2 Certificates: All Certificates bearing the class
designation of "Class A-2".
Class A-3A Certificates: All Certificates bearing the class
designation of "Class A-3A".
Class A-3B Certificates: All Certificates bearing the class
designation of "Class A-3B".
Class A-3C Certificates: All Certificates bearing the class
designation of "Class A-3C".
Class B Cap Agreement: The interest rate cap agreement, dated
November 30, 2005, between the Cap Provider and the Trustee, relating to the
Class B Certificates.
Class B Certificates: As specified in the Preliminary Statement.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1".
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date) and (E) the Class Certificate Balance of the Class B-1
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(A) 85.40% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over
$6,218,880.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2".
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (E) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount for such Distribution Date), and (F) the Class
Certificate Balance of the Class B-2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 87.80% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over $6,218,880.
Class B-3 Certificates: All Certificates bearing the class
designation of "Class B-3".
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (E) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount for such Distribution Date), (F) the Class
Certificate Balance of the Class B-2 Certificates (after taking into account the
distribution of the Class B-2 Principal Distribution Amount for such
Distribution Date) and (G) the Class Certificate Balance of the Class B-3
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(A) 90.10% of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over
$6,218,880.
Class B-4 Certificates: All Certificates bearing the class
designation of "Class B-4".
Class B-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (E) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount for such Distribution Date), (F) the Class
Certificate Balance of the Class B-2 Certificates (after taking into account the
distribution of the Class B-2 Principal Distribution Amount for such
Distribution Date), (G) the Class Certificate Balance of the Class B-3
Certificates (after taking into account the distribution of the Class B-3
Principal Distribution Amount for such Distribution Date) and (H) the Class
Certificate Balance of the Class B-4 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 92.30% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over $6,218,880.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfalls: As defined in Section 8.13. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class X Certificates in respect of amounts due to the Swap
Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class X Interest (prior to
reduction for any Basis Risk Payment or Swap Termination Payments) on such
Distribution Date, all as further provided in Section 8.13.
Class LT-R Interest: The sole class of "residual interest" in the
Lower Tier REMIC evidenced by the Class R Certificates.
Class M Cap Agreement: The interest rate cap agreement, dated
November 30, 2005, between the Cap Provider and the Trustee, relating to the
Class M Certificates.
Class M Certificates: As specified in the Preliminary Statement.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1".
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 67.30%
of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over $6,218,880.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2".
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) 79.40% of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date and (B) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date over
$6,218,880.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3".
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount for such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount for such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date) and (D) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 82.40% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over $6,218,880.
Class P Certificates: All Certificates bearing the class designation
of "Class P".
Class PT1-R Interest: The residual interest in Pooling-Tier REMIC-1
as described in the Preliminary Statement and the related footnote thereto.
Class PT2-R Interest: The residual interest in Pooling-Tier REMIC-2
as described in the Preliminary Statement and the related footnote thereto.
Class R Certificates: All Certificates bearing the class designation
of "Class R".
Class UT-R Interest: The sole class of "residual interest" in the
Upper Tier REMIC evidenced by the Class R Certificate.
Class X Certificates: All Certificates bearing the class designation
of "Class X".
Class X Distributable Amount: On any Distribution Date, the sum of
(i) as a distribution in respect of interest, the amount of interest that has
accrued on the Class X Interest (as set forth in the Preliminary Statement) and
not applied as an Extra Principal Distribution Amount on such Distribution Date,
plus any such accrued interest remaining undistributed from prior Distribution
Dates, plus (without duplication) (ii) as a distribution in respect of
principal, any portion of the principal balance of the Class X Interest which is
distributable as a Subordination Reduction Amount, minus (iii) any amounts paid
as a Basis Risk Payment from the Excess Reserve Fund Account or any Swap
Termination Payment.
Class X Interest: The Upper Tier REMIC Regular Interest represented
by the Class X Certificates as specified and described in the Preliminary
Statement and the related footnote thereto.
Closing Date: November 30, 2005.
Closing Date Deposit Amount: $3,637,282 (all of which is allocable
to principal) deposited by the Depositor into the Distribution Account on the
Closing Date. $1,666,334 of the Closing Date Deposit Amount shall be
attributable to the Group I Mortgage Loans $685,218 of the Closing Date Deposit
Amount shall be attributable to the Group II Mortgage Loans, and $1,285,730 of
the Closing Date Deposit Amount shall be attributable to the Group III Mortgage
Loans.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Combined Loan-to-Value Ratio or CLTV: As of any date and as to any
Second-Lien Mortgage Loan, the ratio (expressed as a percentage) of the (a) sum
of (i) the outstanding principal balance of the Second-Lien Mortgage Loan and
(ii) the outstanding principal balance as of such date of any mortgage loan or
mortgage loans that are senior or equal in priority to the Second-Lien Mortgage
Loan and which are secured by the same Mortgaged Property to (b) (i) in the case
of a purchase, the lesser of (A) the sale price of the Mortgaged Property and
(B) its appraised value at the time of sale, or (ii) in the case of a
refinancing or modification, the appraised value of the Mortgaged Property at
the time of the refinancing or modification.
Compensating Interest: For any Distribution Date and each Servicer,
the lesser of (a) the amount, if any, by which the Prepayment Interest
Shortfall, if any, for such Distribution Date, with respect to voluntary
Principal Prepayments in Full (excluding any payments made upon liquidation of
any Mortgage Loan) exceeds all Prepayment Interest Excesses for such
Distribution Date on the Mortgage Loans serviced by the applicable Servicer, and
(b) the amount of the Servicing Fee payable to the applicable Servicer for such
Distribution Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan which contains a provision whereby the Mortgagor is permitted to convert
the Adjustable Rate Mortgage Loan to a Fixed Rate Mortgage Loan in accordance
with the terms of the related Mortgage Note.
Corporate Trust Office: The designated office of the Trustee at
which at any particular time its corporate trust business with respect to this
Agreement is administered, which office at the date of the execution of this
Agreement is located (i) for purposes of Certificate transfers, at ▇▇▇▇▇ Fargo
Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Services - SABR 2005-HE1 and (ii) for all other
purposes, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Client Manager-SABR 2005-HE1, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, and which is the
address to which notices to and correspondence with the Trustee should be
directed.
Corresponding Actual Crossover Distribution Date: For each
Pooling-Tier REMIC-2 IO Interest, the related Corresponding Scheduled Crossover
Distribution Date, unless on such date two times the aggregate Pooling-Tier
REMIC-2 IO Notional Balance of each other Pooling-Tier REMIC-2 IO Interest then
outstanding is less than the scheduled swap notional amount of the Interest Rate
Swap Agreement applicable for such Distribution Date, in which case the
Corresponding Actual Crossover Distribution Date for such Pooling-Tier REMIC-2
IO Interest shall be the first Distribution Date thereafter on which two times
the Pooling-Tier REMIC-2 IO Notional Balance of each other Pooling-Tier REMIC-2
IO Interest then outstanding is greater than or equal to the scheduled swap
notional amount of the Interest Rate Swap Agreement.
Corresponding Class: The class of interests in the Lower Tier REMIC
or Upper Tier REMIC created under this Agreement that corresponds to the Class
of interests in the other such REMIC, as applicable, or to a Class of
Certificates in the manner set out below:
Corresponding
Corresponding Upper Tier
Lower Tier REMIC REMIC Regular Corresponding Class of
Class Designation Interest Certificates
------------------- ----------------- -------------------------
Class LT-A-1A Class A-1A Class A-1A
Class LT-A-1B Class ▇-▇▇ ▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇ ▇▇-▇-▇ Class A-2 Class A-2
Class LT-A-3A Class A-3A Class A-3A
Class LT-A-3B Class A-3B Class A-3B
Class LT-A-3C Class A-3C Class A-3C
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
Class LT-B-4 Class B-4 Class B-4
N/A Class X Class X
Corresponding Pooling-Tier REMIC-1 Regular Interest: As described in
the Preliminary Statement.
Corresponding Pooling-Tier REMIC-2 IO Interest: As described in the
Preliminary Statement.
Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Pooling-Tier REMIC-2 IO Interest.
Corresponding Upper Tier REMIC Regular Interest: As defined in the
Preliminary Statement.
Countrywide: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors in interest.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Cumulative Loss Percentage: With respect to any Distribution Date,
the percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses incurred from the Cut-off Date to the last day of the
calendar month preceding the month in which such Distribution Date occurs and
the denominator of which is the Cut-off Date Pool Principal Balance of the
Mortgage Loans.
Cumulative Loss Trigger Event: If, with respect to any Distribution
Date, the quotient (expressed as a percentage) of (x) the aggregate amount of
Realized Losses incurred since the Cut-off Date through the last day of the
related Due Period, divided by (y) the Cut-off Date Pool Principal Balance,
exceeds the applicable Cumulative Loss Percentages set forth below with respect
to such Distribution Date:
Distribution Date Occurring In Cumulative Loss Percentage
------------------------------------- ------------------------------------------------------------
December 2007 through November 2008 1.500% for the first month, plus an additional 1/12th of
1.800% for each month thereafter (e.g., 2.400% in June 2008)
December 2008 through November 2009 3.300% for the first month, plus an additional 1/12th of
1.850% for each month thereafter (e.g., 4.225% in June 2009)
December 2009 through November 2010 5.150% for the first month, plus an additional 1/12th of
1.450% for each month thereafter (e.g., 5.875% in June 2010)
December 2010 through November 2011 6.600% for the first month, plus an additional 1/12th of
0.400% for each month thereafter (e.g., 6.800% in June 2011)
December 2011 and thereafter 7.000%
Custodial Agreement: The Custodial Agreement among the Purchaser, NC
Capital, New Century Mortgage Corporation and Deutsche Bank National Trust
Company, dated as of January 1, 2004.
Custodial File: With respect to each Mortgage Loan, the file
retained by the Trustee consisting of items (a) - (h) as listed on Exhibit K
hereto.
Cut-off Date: November 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date plus
the portion of the Closing Date Deposit Amount allocable to principal.
Data Tape Information: With respect to each Mortgage Loan, the
following information as of the Cut-off Date provided by the Responsible Parties
to the Purchaser: (1) the applicable Originator's Mortgage Loan identifying
number; (2) the Mortgagor's name; (3) the street address of the Mortgaged
Property including the city, state and zip code; (4) a code indicating whether
the Mortgagor is self-employed; (5) as to each Mortgage Loan, the Stated
Principal Balance as of the Cut-off Date; (6) the Index; (7) a code indicating
whether the Mortgaged Property is owner-occupied; (8) the number and type of
residential units constituting the Mortgaged Property; (9) the original stated
months to maturity; (10) the original amortization months to maturity; (11) the
stated maturity date; (12) the amount of the Scheduled Payment as of the Cut-off
Date; (13) the first date on which the Scheduled Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date; (14) the "paid through date" based on payments received from the
related Mortgagor; (15) the original principal amount of the Mortgage Loan; (16)
with respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Rate;
(17) with respect to each Adjustable Rate Mortgage Loan, the Maximum Mortgage
Rate; (18) with respect to each Adjustable Rate Mortgage Loan, the initial
Periodic Mortgage Rate Cap; (19) with respect to each Adjustable Rate Mortgage
Loan, the subsequent Periodic Mortgage Rate Cap; (20) with respect to each
Adjustable Rate Mortgage Loan, the first payment Adjustment Date immediately
following the Cut-off Date; (21) with respect to each Adjustable Rate Mortgage
Loan, the first Interest Rate Adjustment Date immediately following the Cut-off
Date; (22) with respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(23) with respect to each Adjustable Rate Mortgage Loan, the Mortgage Rate
adjustment period; (24) the type of Mortgage Loan (i.e., Fixed Rate or
Adjustable Rate Mortgage Loan); (25) lien position (i.e., First-Lien or
Second-Lien Mortgage Loan); (26) a code indicating the purpose of the loan
(i.e., purchase, rate and term refinance, equity take-out refinance); (27) the
credit risk score (FICO score); (28) the loan credit grade classification (as
described in the underwriting guidelines); (29) the Mortgage Rate at
origination; (30) the Mortgage Rate at origination; (31) the value of the
Mortgaged Property; (32) a code indicating the term and amount of Prepayment
Charges applicable to such Mortgage Loan (including any prepayment penalty
term), if any; (33) with respect to each First-Lien Mortgage Loan, the
Loan-to-Value Ratio at origination, and with respect to each Second-Lien
Mortgage Loan, the Combined Loan-to-Value Ratio at origination; (34) the
documentation level; (35) the date of origination; (36) a code indicating
whether the Mortgage Loan is a Balloon Loan; (37) the Due Date for the first
Scheduled Payment; (38) the original Scheduled Payment due; (39) the
debt-to-income ratio with respect to the Mortgage Loan; (40) the Mortgage Rate
calculation method (i.e., 30/360, simple interest, other); (41) a code
indicating whether the Mortgage Loan is Home Loan; (42) appraisal verification
(Y/N); (43) type of appraisal verification, if any; (44) the applicable
Originator's name; (45) the applicable Servicer's name; and (46) with respect to
Second-Lien Mortgage Loans, the outstanding principal balance of the superior
lien at origination. With respect to the Mortgage Loans in the aggregate, the
Data Tape Information shall set forth the following information, as of the
Cut-off Date: (1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted average
Mortgage Rate of the Mortgage Loans; and (4) the weighted average maturity of
the Mortgage Loans.
DBRS: Dominion Bond Rating Service. If DBRS is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 10.05(c) the
address for notices to DBRS shall be Dominion Bond Rating Service, ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇, or such other
address as DBRS may hereafter furnish to the Depositor, the Trustee and the
Servicers.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non-appealable, except such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an Event of Default (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement )) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
Deficiency Amount: With respect to any Distribution Date, the
excess, if any, of Class A-1B Certificate Required Distributions for such
Distribution Date over the aggregate Class A-1B Available Funds for such
Distribution Date.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: As defined in Section 2.03.
Delinquency Trigger Event: With respect to any Distribution Date,
the circumstances in which the quotient (expressed as a percentage) of (x) the
rolling three month average of the Stated Principal Balances of 60+ Day
Delinquent Mortgage Loans, divided by (y) the aggregate Stated Principal Balance
of the Mortgage Loans, as of the last day of the related Due Period, equals or
exceeds 33.00% of the prior period's Senior Enhancement Percentage.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: Securitized Asset Backed Receivables LLC, a Delaware
limited liability company, and its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated "P-1" by Moody's, "F1+" by Fitch, "A-1" by Standard & Poor's and "R-1"
by DBRS (to the extent rated by DBRS).
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Remittance Date, the 18th
day (or if such day is not a Business Day, the immediately preceding Business
Day) in the calendar month in which such Remittance Date occurs.
Disqualified Non-U.S. Person: With respect to a Class R Certificate,
any Non-U.S. Person or agent thereof other than (i) a Non-U.S. Person that holds
the Class R or Class LR Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Trustee with an effective IRS Form W-8ECI or (ii) a Non-U.S. Person that has
delivered to both the transferor and the Trustee an opinion of a nationally
recognized tax counsel to the effect that the transfer of the Class R
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R
Certificate will not be disregarded for federal income tax purposes.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.07(d) in the name of the Trustee
for the benefit of the Certificateholders and designated "▇▇▇▇▇ Fargo Bank,
National Association in trust for registered holders of Securitized Asset Backed
Receivables LLC Trust 2005-HE1 Mortgage Pass-Through Certificates, Series
2005-HE1". Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date,
12:00 noon New York City time on the third Business Day immediately preceding
such Distribution Date.
Distribution Date: The 25th 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 December 2005.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
such Distribution Date occurs and ending on the first day of the calendar month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) 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.
Each Eligible Account shall be a separate account.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated "A-1+" by Standard & Poor's if
the amounts on deposit are to be held in the account for no more than 365 days
(or at least "A-2" by Standard & Poor's if the amounts on deposit are to be held
in the account for no more than 30 days), or the long-term unsecured debt
obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations or other short-term deposits
of which are rated at least "P-1" by Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Servicers and the Trustee) (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement).
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b).
Event of Default: As defined in Section 7.01.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Sections 3.07(b) and 3.07(c) in the
name of the Trustee for the benefit of the Regular Certificateholders and
designated "▇▇▇▇▇ Fargo Bank, National Association in trust for registered
holders of Securitized Asset Backed Receivables LLC Trust 2005-HE1, Mortgage
Pass-Through Certificates, Series 2005-HE1". Funds in the Excess Reserve Fund
Account shall be held in trust for the Regular Certificateholders for the uses
and purposes set forth in this Agreement. Amounts on deposit in the Excess
Reserve Fund Account shall not be invested.
Excess Subordinated Amount: With respect to any Distribution Date,
the excess, if any, of (a) the Subordinated Amount on such Distribution Date
over (b) the Specified Subordinated Amount for such Distribution Date.
Exchange Act: As defined in Section 8.12(a).
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate, the Trustee Fee Rate and the Loan
Performance Advisor Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing
Fee, the Trustee Fee and the Loan Performance Advisor Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Subordination Deficiency for such Distribution Date.
▇▇▇▇▇▇ Mae: The Federal National Mortgage Association, or any
successor thereto.
▇▇▇▇▇▇ ▇▇▇ Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇ ▇▇▇
Servicers' Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Final Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by a Responsible Party as contemplated by this Agreement), a determination made
by the applicable Servicer that all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and other payments or recoveries which the applicable
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. Each Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
October 2035.
First Franklin: First Franklin Financial Corporation, a Delaware
corporation.
First Franklin Assignment Agreement: The Assignment and Recognition
Agreement, dated as of the Closing Date, between the Purchaser and the
Depositor, relating to the First Franklin Mortgage Loans, a copy of which is
attached hereto as Exhibit O.
First Franklin Mortgage Loans: The Mortgage Loans purchased by the
Purchaser pursuant to the First Franklin Purchase Agreement for which First
Franklin is identified as Originator on the Mortgage Loan Schedule.
First Franklin Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated as of March 1, 2004, as amended by Amendment No. 1, dated as of
August 30, 2004, each between the Purchaser and First Franklin, a copy of which
is attached hereto as Exhibit P.
First-Lien Mortgage Loan: A Mortgage Loan secured by a first-lien
Mortgage on the related Mortgaged Property.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(c) the address for notices to Fitch shall be Fitch, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: MBS Monitoring - Securitized Asset
Backed Receivables LLC Trust 2005-HE1, or such other address as Fitch may
hereafter furnish to the Depositor, the Trustee and the Servicers.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
▇▇▇▇▇▇▇ Mac: 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.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note to be added
to the applicable Index to determine the Mortgage Rate.
Group I Class A Certificates: The Class A-1A Certificates and the
Class A-1B Certificates, collectively.
Group I Loan Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) the weighted
average of the Adjusted Net Mortgage Rates (minus the Premium Amount) then in
effect on the beginning of the related Due Period on the Group I Mortgage Loans
minus the product of (A) the Net Swap Payment plus any Swap Termination Payment
(other than a Defaulted Swap Termination Payment) made to the Swap Provider, if
any, expressed as a percentage equal to a fraction, the numerator of which is
equal to the Net Swap Payment plus any Swap Termination Payment (other than a
Defaulted Swap Termination Payment) made to the Swap Provider and the
denominator of which is equal to the aggregate Stated Principal Balance of the
Mortgage Loans at the beginning of such Due Period and (B) 12 and (ii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Interest Accrual Period.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group I Sequential Trigger Event: With respect to any Distribution
Date exists if (i) for any Distribution Date prior to December 2007, the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related Due Period divided by the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date exceeds 1.50%, or (ii) for
any Distribution Date in or after December 2007, a Trigger Event exists.
Group II Class A Certificates: The Class A-2 Certificates.
Group II Loan Cap: With respect to the Group II Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) the weighted
average of the Adjusted Net Mortgage Rates then in effect on the beginning of
the related Due Period on the Group II Mortgage Loans minus the product of (A)
the Net Swap Payment plus any Swap Termination Payment (other than a Defaulted
Swap Termination Payment) made to the Swap Provider, if any, expressed as a
percentage equal to a fraction, the numerator of which is equal to the Net Swap
Payment plus any Swap Termination Payment (other than a Defaulted Swap
Termination Payment) made to the Swap Provider and the denominator of which is
equal to the aggregate Stated Principal Balance of the Mortgage Loans at the
beginning of such Due Period and (B) 12 and (ii) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
related Interest Accrual Period.
Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
Group III Class A Certificates: The Class A-3A Certificates, Class
A-3B and the Class A-3C Certificates, collectively.
Group III Loan Cap: With respect to the Group III Mortgage Loans as
of any Distribution Date, a per annum rate equal to the product of (i) the
weighted average of the Adjusted Net Mortgage Rates then in effect on the
beginning of the related Due Period on the Group III Mortgage Loans minus the
product of (A) the Net Swap Payment plus any Swap Termination Payment (other
than a Defaulted Swap Termination Payment) made to the Swap Provider, if any,
expressed as a percentage equal to a fraction, the numerator of which is equal
to the Net Swap Payment plus any Swap Termination Payment (other than a
Defaulted Swap Termination Payment) made to the Swap Provider and the
denominator of which is equal to the aggregate Stated Principal Balance of the
Mortgage Loans at the beginning of such Due Period and (B) 12 and (ii) a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the related Interest Accrual Period.
Group III Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group III Mortgage Loans.
Group Loan Cap: The Group I Loan Cap, the Group II Loan Cap or the
Group III Loan Cap, as applicable.
Group Subordinate Amount: For any Distribution Date and (i) for the
Group I Mortgage Loans, the excess of the aggregate Stated Principal Balance of
the Group I Mortgage Loans as of the beginning of the related Due Period over
the aggregate Class Certificate Balance of the Class A-1A and Class A-1B
Certificates immediately prior to the current Distribution Date; (ii) for the
Group II Mortgage Loans, the excess of the aggregate Stated Principal Balance of
the Group II Mortgage Loans as of the beginning of the related Due Period over
the aggregate Class Certificate Balance of the Class A-2 Certificates
immediately prior to such Distribution Date; and (iii) for the Group III
Mortgage Loans, the excess of the aggregate Stated Principal Balance of the
Group III Mortgage Loans as of the beginning of the related Due Period over the
aggregate Class Certificate Balance of the Class A-3A, Class A-3B and Class A-3C
Certificates immediately prior to such Distribution Date.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," "high risk home," "predatory," or similar loan under any
other applicable federal, state or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (c) a Mortgage Loan categorized as High
Cost pursuant to Appendix E of Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
HomEq: HomEq Servicing Corporation, a New Jersey corporation, and
its successors in interest.
Indenture Trustee: The trustee for the NIM Securities.
Index: As to each Adjustable Rate Mortgage Loan, the index from time
to time in effect for the adjustment of the Mortgage Rate set forth as such on
the related Mortgage Note.
Initial Certification: As defined in Section 2.02.
Insurance Agreement: The Insurance and Indemnity Agreement, dated as
of November 30, 2005, among the Class A-1B Certificate Insurer, the Purchaser,
the Depositor, the Servicers and the Trustee.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Class of Non-Delay
Certificates and the Corresponding Class of Lower Tier REMIC Regular Interests
and any Distribution Date, the period commencing on the Distribution Date
occurring in the month preceding the month in which the current Distribution
Date occurs and ending on the day immediately preceding the current Distribution
Date (or, in the case of the first Distribution Date, the period from and
including the Closing Date to but excluding such first Distribution Date). For
purposes of computing interest accruals on each Class of Non-Delay Certificates,
each Interest Accrual Period has the actual number of days in such month and
each year is assumed to have 360 days.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the Mortgage
Loan Schedule, on which the Mortgage Rate is adjusted.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of November 30, 2005 between the Swap Provider and the Trustee.
Interest Rate Cap Payment: (a) With respect to the Class M
Certificates, for the first 38 Distribution Dates, the amount, if any, equal to
the product of (i) the excess, if any, of the lesser of (A) the one-month LIBOR
rate as of the related reset date under the Class M Cap Agreement and (B) the
applicable cap ceiling rate set forth on Schedule A to such Cap Agreement for
such Distribution Date, over the applicable cap strike rate set forth on
Schedule A to such Cap Agreement for such Distribution Date, calculated on an
"actual/360" basis, (ii) the applicable Class M cap notional amount set forth on
Schedule A to such Cap Agreement for such Distribution Date, and (iii) the
multiplier set forth on Schedule A to such Cap Agreement; and (b) with respect
to the Class B Certificates, for the first 38 Distribution Dates, the amount, if
any, equal to the product of (i) the excess, if any, of the lesser of (A) the
one-month LIBOR rate as of the related reset date under the Class B Cap
Agreement and (B) the applicable cap ceiling rate set forth on Schedule A to
such Cap Agreement for such Distribution Date, over the applicable cap strike
rate set forth on Schedule A to such Cap Agreement for such Distribution Date,
calculated on an "actual/360" basis, (ii) the applicable Class B cap notional
amount set forth on Schedule A to such Cap Agreement for such Distribution Date,
and (iii) the multiplier set forth on Schedule A to such Cap Agreement.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest relating to Mortgage Loans in that Loan Group.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
IRS: The Internal Revenue Service.
Late Collections: With respect to any Mortgage Loan and any Due
Period, all amounts received after the Determination Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds, Subsequent Recoveries or
otherwise, which represent late payments or collections of principal and/or
interest due (without regard to any acceleration of payments under the related
Mortgage and Mortgage Note) but delinquent for such Due Period and not
previously recovered.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar loans to leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
applicable Servicer has certified to the Trustee that it has received all
amounts it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a Liquidated Mortgage Loan, whether through a trustee's sale,
foreclosure sale or otherwise.
Loan Group: The Group I Mortgage Loans, the Group II Mortgage Loans
or the Group III Mortgage Loans, as applicable.
Loan Performance Advisor: MortgageRamp, Inc., a Delaware
corporation, and its successors in interest, and if a successor loan performance
advisor is appointed hereunder, such successor.
Loan Performance Advisor Agreement: The Loan Performance Advisor
Agreement, dated as of February 1, 2005, by and between the Purchaser and the
Loan Performance Advisor.
Loan Performance Advisor Fee: As to any Distribution Date, an amount
equal to the product of (a) one-twelfth of the Loan Performance Advisor Fee Rate
and (b) the aggregate Stated Principal Balance of the Mortgage Loans as of the
preceding Distribution Date or, in the case of the first Distribution Date, the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date;
provided, however that the Loan Performance Advisor Fee for any Distribution
Date shall not be lower than $1,500.
Loan Performance Advisor Fee Rate: With respect to each Mortgage
Loan, either (a) 0.015% per annum or (b) if the Loan Performance Advisor Fee is
the amount calculated pursuant to the proviso in the definition of "Loan
Performance Advisor Fee", a per annum rate determined by dividing such fee by
the average of the aggregate Stated Principal Balance of the Mortgage Loans as
of the preceding Distribution Date.
Loan-to-Value Ratio or LTV: As of any date and as to any First-Lien
Mortgage Loan, the ratio (expressed as a percentage) of the outstanding
principal balance of the First-Lien Mortgage Loan to (a) in the case of a
purchase, the lesser of (i) the sale price of the Mortgaged Property and (ii)
its appraised value at the time of sale or (b) in the case of a refinancing or
modification, the appraised value of the Mortgaged Property at the time of the
refinancing or modification.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower Tier REMIC Interest Rate: As described in the Preliminary
Statement.
Lower Tier REMIC Regular Interest: Each of the Class LT-A-1A, Class
LT-A-1B, Class LT-A-2, Class LT-A-3A, Class LT-A-3B, Class LT-A-3C, Class
LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-B-1, Class LT-B-2, Class LT-B-3,
Class LT-B-4, Class LT-Group I (SUB), Class LT-Group I, Class LT-Group II (SUB),
Class LT-Group II, Class LT-Group III (SUB), Class LT-Group III, Class LT-XX,
Class LT-IO and Class LT-Accrual Interests as described in the Preliminary
Statement.
Lower Tier REMIC: As described in the Preliminary Statement.
Lower Tier REMIC Principal Amount: The principal balance of each
Lower Tier REMIC Regular Interest, determined as set forth in the Preliminary
Statement. The Lower Tier REMIC Principal Amount shall be computed to at least
eight (8) decimal places.
Lower Tier REMIC Subordinated Balance Ratio: The ratio among the
Lower Tier REMIC Principal Amounts of the Class LT-Group I(SUB) Interest, Class
LT-Group II(SUB) Interest and Class LT-Group III(SUB) Interest, equal to the
ratio between the Group Subordinate Amount of the Group I Mortgage Loans, the
Group Subordinate Amount of the Group II Mortgage Loans and the Group
Subordinate Amount of the Group III Mortgage Loans, respectively.
Lower Tier REMIC WAC Cap: A per annum variable rate equal to the
weighted average of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier
REMIC-2 Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests).
Maximum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, a rate that (i) is set forth on the Data Tape Information and in the
related Mortgage Note and (ii) is the maximum interest rate to which the
Mortgage Rate on such Adjustable Rate Mortgage Loan may be increased during the
lifetime of such Adjustable Rate Mortgage Loan.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) a
Responsible Party has designated or will designate MERS as, and has taken or
will take such action as is necessary to cause MERS to be, the mortgagee of
record, as nominee for such Responsible Party, in accordance with the MERS
Procedure Manual and (b) such Responsible Party has designated or will designate
the Purchaser as the Investor on the MERS System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Minimum Mortgage Rate: With respect to each Adjustable Rate Mortgage
Loan, a rate that (i) is set forth on the Data Tape Information and in the
related Mortgage Note and (ii) is the minimum interest rate to which the
Mortgage Rate on such Adjustable Rate Mortgage Loan may be decreased during the
lifetime of such Adjustable Rate Mortgage Loan.
Monthly Statement: The statement made available to
Certificateholders and the Class A-1B Certificate Insurer pursuant to Section
4.03.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. If ▇▇▇▇▇'▇ is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 10.05(c)
the address for notices to Moody's shall be ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage
Pass-Through Group, or such other address as Moody's may hereafter furnish to
the Depositor, the Trustee and the Servicers.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Loan: An individual Mortgage Loan that is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes,
without limitation, the Mortgage File, the Scheduled Payments, Principal
Prepayments, Liquidation Proceeds, Subsequent Recoveries, Condemnation Proceeds,
Insurance Proceeds, REO Disposition proceeds, Prepayment Charges, and all other
rights, benefits, proceeds and obligations arising from or in connection with
such Mortgage Loan, excluding replaced or repurchased Mortgage Loans.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered to
the Trustee and referred to as Schedule I, such schedule setting forth, for each
Loan Group, the Data Tape Information with respect to each Mortgage Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne on a Mortgage Note,
which shall be adjusted from time to time in the case of an Adjustable Rate
Mortgage Loan.
Mortgage Rate Caps: With respect to an Adjustable Rate Mortgage
Loan, the Periodic Mortgage Rate Cap, the Maximum Mortgage Rate, and the Minimum
Mortgage Rate for such Mortgage Loan.
Mortgaged Property: With respect to each Mortgage Loan, the real
property (or leasehold estate, if applicable) identified on the Mortgage Loan
Schedule as securing repayment of the debt evidenced by the related Mortgage
Note.
Mortgagor: The obligor(s) on a Mortgage Note.
NC Capital: NC Capital Corporation, a California corporation, and
its successors in interest.
NC Capital Mortgage Loans: The Mortgage Loans purchased by the
Purchaser pursuant to the NC Capital Purchase Agreement for which NC Capital is
identified as Originator on the Mortgage Loan Schedule.
NC Capital Purchase Agreement: The Mortgage Loan Purchase and
Agreement, dated as of January 1, 2004, as amended by Amendment No. 1, dated as
of August 26, 2004, each by and between NC Capital and the Purchaser.
Net Monthly Excess Cash Flow: For any Distribution Date, the amount
remaining for distribution pursuant to subsection 4.02(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the sum of (i) all Prepayment Interest Excesses for
such Distribution Date and (ii) Compensating Interest payments made with respect
to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class X and Class P Certificates that are rated by any Rating
Agency.
NIM Trustee: The trustee for the NIM Securities.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Permitted Transferee: A Person other than a Permitted
Transferee.
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the applicable Servicer, will not or, in the
case of a proposed P&I Advance, would not be ultimately recoverable from related
Late Collections on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in accordance with Accepted Servicing Practices, will not or, in the case
of a proposed Servicing Advance, would not be ultimately recoverable from
related Late Collections.
Non-U.S. Person: A person that is not a U.S. Person.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of either
Servicer with responsibility for the servicing of the Mortgage Loans required to
be serviced by such Servicer and listed on a list delivered to the Trustee,
pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for a Servicer or any Subservicer, reasonably acceptable to the
Trustee; provided, that any Opinion of Counsel relating to (a) qualification of
any Trust REMIC or (b) compliance with the REMIC Provisions, must be (unless
otherwise stated in such Opinion of Counsel) an opinion of counsel who (i) is in
fact independent of such Servicer of the Mortgage Loans, (ii) does not have any
material direct or indirect financial interest in such Servicer of the Mortgage
Loans or in an affiliate of either Servicer and (iii) is not connected with such
Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10% or less of the Cut-off Date Pool
Principal Balance.
Originator: New Century Mortgage Corporation, a California
corporation, and its successors in interest and WMC Mortgage Corp., a California
corporation, and its successors in interest, and First Franklin Financial
Corporation, a Delaware corporation, and its successors in interest.
OTS: Office of Thrift Supervision, and any successor thereto.
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.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any advance
made by the applicable Servicer in respect of any Remittance Date representing
the aggregate of all payments of principal and interest, net of the Servicing
Fee, that were due during the related Due Period on the Mortgage Loans and that
were delinquent on the related Determination Date, plus certain amounts
representing assumed payments not covered by any current net income on the
Mortgaged Properties acquired by foreclosure or deed in lieu of foreclosure as
determined pursuant to Section 4.01.
Pass-Through Margin: With respect to each Class of Regular
Certificates, the following percentages: Class A-1A Certificates, 0.300%; Class
A-1B Certificates, 0.280%; Class A-2 Certificates, 0.305%; Class A-3A
Certificates, 0.110%; Class A-3B Certificates, 0.230%; Class A-3C Certificates,
0.330%; Class M-1 Certificates, 0.430%; Class M-2 Certificates, 0.650%; Class
M-3 Certificates, 0.690%; Class B-1 Certificates, 1.500%; Class B-2
Certificates, 2.000%; Class B-3 Certificates, 2.250%; and Class B-4
Certificates, 2.250%. On the first Distribution Date after the Optional
Termination Date, the Pass-Through Margins shall increase to: Class A-1A
Certificates, 0.600%; Class A-1B Certificates, 0.560%; Class A-2 Certificates,
0.610%; Class A-3A Certificates, 0.220%; Class A-3B Certificates, 0.460%; Class
A-3C Certificates, 0.660%; Class M-1 Certificates, 0.645%; Class M-2
Certificates, 0.975%; Class M-3 Certificates, 1.035%; Class B-1 Certificates,
2.250%; Class B-2 Certificates, 3.000%; Class B-3 Certificates, 3.375%; and
Class B-4 Certificates, 3.375%.
Pass-Through Rate: For each Class of Certificates, each Class of
Upper Tier REMIC Regular Interest and each Class of Lower Tier REMIC Regular
Interest, the per annum rate set forth or calculated in the manner described in
the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the periodic limit on each Mortgage Rate adjustment as set forth
in the related Mortgage Note.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicers, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances (which shall each have an original maturity
of not more than 90 days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or
a remaining maturity of more than 30 days) denominated in United
States dollars and issued by, any Depository Institution and rated
"F1+" by Fitch, "A-1+" by S&P and "P-1" by Moody's;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the
United States of America or any state thereof and that are rated by
S&P and Moody's (in each case, to the extent they are designated as
Rating Agencies in the Preliminary Statement), and by each other
Rating Agency that rates such securities, in its highest long-term
unsecured rating categories at the time of such investment or
contractual commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date
of acquisition thereof) that is rated by S&P and Moody's (in each
case, to the extent they are designated as Rating Agencies in the
Preliminary Statement), and by each other Rating Agency that rates
such securities, in its highest short-term unsecured debt rating
available at the time of such investment;
(vi) units of money market funds, including money market funds
managed or advised by the Depositor or the Trustee or an Affiliate
thereof, that have been rated "Aaa" by Moody's, "AAAm" by Standard &
Poor's and, if rated by Fitch, at least "AAA" by Fitch (to the
extent they are Rating Agencies hereunder); and
(vii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to each of the Rating
Agencies as a permitted investment of funds backing "Aaa" or "AAA"
rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is a
Disqualified Non-U.S. Person or a U.S. Person with respect to whom income from a
Residual Certificate is attributable to a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of ▇▇▇▇▇▇▇ Mac, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Policy Payment Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06(c) in the name of the Trustee
for the benefit of the Class A-1B Certificateholders and the Class A-1B
Certificate Insurer and designated "▇▇▇▇▇ Fargo Bank, National Association, in
trust for XL Capital Assurance Inc. and the registered holders of Securitized
Asset Receivables LLC Trust 2005-HE1, Mortgage Pass Through Certificates, Series
2005 HE1, Class A-1B".
Pool Cap: With respect to the Mortgage Loans as of any Distribution
Date, the product of a per annum rate equal to (i) the weighted average of (x)
the Adjusted Net Mortgage Rates (minus the Premium Amount) for the Group I
Mortgage Loans, (y) the Adjusted Net Mortgage Rates for the Group II Mortgage
Loans, and (z) the Adjusted Net Mortgage Rates for the Group III Mortgage Loans
then in effect on the beginning of the related Due Period, in each case weighted
on the basis of the related Group Subordinate Amount, minus the product of (A)
the Net Swap Payment plus any Swap Termination Payment (other than a Defaulted
Swap Termination Payment) made to the Swap Provider, if any, expressed as a
percentage equal to a fraction, the numerator of which is equal to the Net Swap
Payment plus any Swap Termination Payment (other than a Defaulted Swap
Termination Payment) made to the Swap Provider and the denominator of which is
equal to the aggregate Stated Principal Balance of the Mortgage Loans at the
beginning of such Due Period and (B) 12 and (ii) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
related Interest Accrual Period. For federal income tax purposes, the economic
equivalent of the Pool Cap shall be expressed as the weighted average of the
Lower Tier REMIC Interest Rate on (a) the Class LT-Group I(SUB), subject to a
cap and floor equal to the Lower Tier REMIC Interest Rate of the Class LT-Group
I Interest, (b) the Class LT-Group II(SUB), subject to a cap and floor equal to
the Lower Tier REMIC Interest Rate of the Class LT-Group II Interest, and (c)
the Class LT-Group III(SUB), subject to a cap and floor equal to the Lower Tier
REMIC Interest Rate of the Class LT-Group III Interest, weighted on the basis of
the respective Lower Tier REMIC Principal Amounts of the Class LT-Group I(SUB),
Class LT-Group II(SUB) and Class LT-Group III(SUB), respectively.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Pooling-Tier Interest Rate: As specified in the Preliminary
Statement.
Pooling-Tier REMIC-1: As described in the Preliminary Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Loan Group I WAC Rate: With respect to the
Group I Mortgage Loans as of any Distribution Date, the weighted average of the
Adjusted Net Mortgage Rates then in effect on the beginning of the related Due
Period on the Group I Mortgage Loans multiplied by (b) 30 divided by the actual
number of days in the related Interest Accrual Period.
Pooling-Tier REMIC-1 Loan Group II WAC Rate: With respect to the
Group II Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Adjusted Net Mortgage Rates then in effect on
the beginning of the related Due Period on the Group II Mortgage Loans
multiplied by (b) 30 divided by the actual number of days in the related
Interest Accrual Period.
Pooling-Tier REMIC-1 Loan Group III WAC Rate: With respect to the
Group III Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Adjusted Net Mortgage Rates then in effect on
the beginning of the related Due Period on the Group III Mortgage Loans
multiplied by (b) 30 divided by the actual number of days in the related
Interest Accrual Period.
Pooling-Tier REMIC-2: As described in the Preliminary Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-2 IO Interest: Any of the Pooling-Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling-Tier REMIC-2 IO Notional Balance: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
Preference Amount: Any amount previously distributed to a Class A-1B
Certificateholder on the Class A-1B Certificates that is recoverable and sought
to be recovered as a voidable preference by a trustee in bankruptcy pursuant to
the United States Bankruptcy Code (11 U.S.C.), as amended from time to time, in
accordance with a final nonappealable order of a court having competent
jurisdiction.
Preference Claim: As defined in Section 4.06(f).
Premium Amount: For any Distribution Date, the product of the
Premium Rate and the Class Certificate Balance of the Class A-1B Certificates
immediately prior to such Distribution Date.
Premium Letter: The letter agreement, dated November 30, 2005, among
the Class A-1B Certificate Insurer, Barclays Bank PLC, the Depositor and the
Trustee.
Premium Rate: The rate set forth in the Premium Letter.
Prepayment Charge: Any prepayment premium, penalty or charge
collected by either Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any Principal Prepayment pursuant to the terms of the related
Mortgage Note.
Prepayment Interest Excess: With respect to any Distribution Date,
any interest collected by a Servicer with respect to any Mortgage Loan serviced
by such Servicer as to which a Principal Prepayment in Full occurs from the 1st
day of the month through the 15th day of the month in which such Distribution
Date occurs and that represents interest that accrues from the 1st day of such
month to the date of such Principal Prepayment in Full.
Prepayment Interest Shortfall: With respect to any Distribution
Date, the sum of, for each Mortgage Loan that was, during the portion of the
Prepayment Period from and including the 16th day of the month preceding the
month in which such Distribution Date occurs (or from the day following the
Cut-off Date, in the case of the first Distribution Date) through the last day
of such month, the subject of a Principal Prepayment which is not accompanied by
an amount equal to one month of interest that would have been due on such
Mortgage Loan on the Due Date that occurs during such Prepayment Period and
which was applied by the applicable Servicer to reduce the outstanding principal
balance of such Mortgage Loan on a date preceding such Due Date an amount equal
to the product of (a) the Mortgage Rate net of the Servicing Fee Rate for such
Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the calendar
month in which the related Prepayment Period begins.
Prepayment Period: With respect to any Distribution Date, either (a)
in the case of any Mortgage Loan serviced by Countrywide, with respect to any
Principal Prepayments (including all unscheduled receipts of principal on the
Mortgage Loans), the period from and including the 16th day of the month
preceding the month in which such Distribution Date occurs (or, in the case of
the first Distribution Date, from the Cut off Date) to and including the 15th
day of the month in which such Distribution Date occurs, or (b) in the case of
any Mortgage Loan serviced by HomEq, either (i) with respect to any voluntary
Principal Prepayments in Full (including all unscheduled receipts of principal
on the Mortgage Loans other than voluntary partial Principal Prepayments), the
period from and including the 16th day of the month preceding the month in which
such Distribution Date occurs (or, in the case of the first Distribution Date,
from and including the Cut-off Date) to and including the 15th day of the month
in which such Distribution Date occurs, or (ii) with respect to any voluntary
partial Principal Prepayments or any involuntary Principal Prepayments, the
calendar month preceding the month in which such Distribution Date occurs.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, excluding any Prepayment
Charge thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each scheduled payment of principal on a
Mortgage Loan due during such Due Period and received by the applicable Servicer
on or prior to the related Determination Date or advanced by the applicable
Servicer for the related Remittance Date, (ii) all Principal Prepayments
received during the related Prepayment Period; (iii) all net Liquidation
Proceeds, Condemnation Proceeds and Insurance Proceeds on the Mortgage Loans
allocable to principal, and all Subsequent Recoveries, actually collected by the
Servicers during the related Prepayment Period; (iv) the portion of the
Repurchase Price allocable to principal with respect to each Mortgage Loan
repurchased by a Responsible Party, the Depositor or the Purchaser that was
repurchased on or prior to the related Determination Date; (v) all Substitution
Adjustment Amounts allocable to principal with respect to the substitutions of
Mortgage Loans that occur on or prior to the related Determination Date; (vi)
with respect to the Distribution Date in December 2005 only, the portion of the
Closing Date Deposit Amount allocable to principal; and (vii) the allocable
portion of the proceeds received with respect to the termination of the Trust
Fund pursuant to clause (a) of Section 9.01 (to the extent such proceeds relate
to principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated November 23,
2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreements: Together, the NC Capital Purchase Agreement and
the WMC Purchase Agreement.
Purchaser: Barclays Bank PLC, a public limited company registered in
England and Wales under company number 1026167, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. 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, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(c), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Servicers.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the applicable Servicer in connection with the
liquidation of such Liquidated Mortgage Loan and net of the amount of
unreimbursed Servicing Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the Business Day immediately preceding such Distribution Date;
provided, however, that, for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
preceding the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, the third
Business Day immediately preceding such Distribution Date.
REO Disposition: The final sale by the applicable Servicer of any
REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Rate net of the Servicing Fee
Rate that would have been applicable to the related Mortgage Loan had it been
outstanding) on the unpaid principal balance of the Mortgage Loan as of the date
of acquisition thereof (as such balance is reduced pursuant to Section 3.17 by
any income from the REO Property treated as a recovery of principal).
REO Mortgage Loan: A Mortgage Loan where title to the related
Mortgaged Property has been obtained by the applicable Servicer in the name of
the Trustee on behalf of the Certificateholders.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan, an amount equal
to the sum of (i) the unpaid principal balance of such Mortgage Loan as of the
date of repurchase, (ii) interest on such unpaid principal balance of such
Mortgage Loan at the Mortgage Rate from the last date through which interest has
been paid to the date of repurchase, (iii) all unreimbursed Servicing Advances
and (iv) all expenses incurred by the Trustee arising out of the Trustee's
enforcement of a Responsible Party's repurchase obligation hereunder.
Request for Release: The Request for Release submitted by the
applicable Servicer to the Trustee, substantially in the form of Exhibit J.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any associate, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Responsible Party: NC Capital Corporation, a California corporation,
and its successors in interest, and WMC Mortgage Corp., a California
corporation, and its successors in interest, as applicable.
Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Second-Lien Mortgage Loan: A Mortgage Loan secured by a second-lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the Subordinated
Amount (in each case after taking into account the distribution of the Principal
Distribution Amount for such Distribution Date) by (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 47.20%.
Servicer: Each of HomEq and Countrywide, as applicable, and if a
successor to either Servicer is appointed hereunder, such successor. When the
term "Servicer" is used in this Agreement in connection with the administration
of servicing obligations with respect to any Mortgage Loan, Mortgaged Property,
REO Property or Mortgage File, "Servicer" shall mean the Person identified as
the Servicer of such Mortgage Loan on the Mortgage Loan Schedule.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the applicable Servicer in the
performance of its servicing obligations in connection with a default,
delinquency or other unanticipated event, including, but not limited to, the
cost of (i) the preservation, restoration, inspection and protection of a
Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures and litigation, in respect of a particular Mortgage Loan, (iii) the
management (including reasonable fees in connection therewith) and liquidation
of any REO Property and (iv) the performance of its obligations under Sections
3.01, 3.09, 3.13 and 3.15. The Servicing Advances shall also include any
reasonable "out-of-pocket" costs and expenses (including legal fees) incurred by
the applicable Servicer in connection with executing and recording instruments
of satisfaction, deeds of reconveyance or Assignments of Mortgage in connection
with any satisfaction or foreclosure in respect of any Mortgage Loan to the
extent not recovered from the Mortgagor or otherwise payable under this
Agreement. Neither Servicer shall be required to make any Nonrecoverable
Servicing Advances.
Servicing Fee: With respect to each Servicer, each Mortgage Loan
serviced by such Servicer and for any calendar month, an amount equal to one
month's interest (or in the event of any payment of interest which accompanies a
Principal Prepayment in Full made by the Mortgagor during such calendar month,
interest for the number of days covered by such payment of interest) at the
Servicing Fee Rate on the applicable Stated Principal Balance of such Mortgage
Loan as of the first day of such calendar month. Such fee shall be payable
monthly, and shall be prorated for any portion of a month during which the
Mortgage Loan is serviced by such Servicer under this Agreement. The Servicing
Fee is payable solely from the interest portion (including recoveries with
respect to interest from Liquidation Proceeds, Subsequent Recoveries, Insurance
Proceeds, Condemnation Proceeds and proceeds received with respect to REO
Properties) of such Scheduled Payment collected by such Servicer, or as
otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the applicable Servicer consisting of originals or copies of all
documents in the Mortgage File which are not delivered to the Trustee in the
Custodial File and copies of the Mortgage Loan Documents set forth in Exhibit K
hereto.
Servicing Officer: Any officer of a 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 such Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
Servicing Transfer Date: With respect to each Mortgage Loan, October
28, 2005 or November 1, 2005, as applicable.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, each Mortgage Loan related to REO Property
and each Mortgage Loan where the related Mortgagor has filed for bankruptcy.
Specified Subordinated Amount: Prior to the Stepdown Date, an amount
equal to 3.85% of the Cut-off Date Pool Principal Balance. On and after the
Stepdown Date, an amount equal to 7.70% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of LIBOR Certificates has been reduced
to zero, to a minimum amount equal to 0.50% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date; provided, however, that
if, on any Distribution Date, a Trigger Event exists, the Specified Subordinated
Amount shall not be reduced to the applicable percentage of the then current
aggregate Stated Principal Balance of the Mortgage Loans until the Distribution
Date on which a Trigger Event no longer exists. When the Class Certificate
Balance of each Class of LIBOR Certificates has been reduced to zero, the
Specified Subordinated Amount will thereafter equal zero.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. If Standard & Poor's is designated as a Rating
Agency in the Preliminary Statement, for purposes of Section 10.05(c) the
address for notices to Standard & Poor's shall be Standard & Poor's, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage Surveillance
Group - Securitized Asset Backed Receivables LLC Trust 2005-HE1, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the Trustee
and the Servicers.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date (whether or not received), minus (ii) all amounts previously remitted to
the Trustee with respect to the related Mortgage Loan representing payments or
recoveries of principal including advances in respect of scheduled payments of
principal. For purposes of any Distribution Date, the Stated Principal Balance
of any Mortgage Loan will give effect to any scheduled payments of principal
received by the related Servicer on or prior to the related Determination Date
or advanced by the related Servicer for the related Remittance Date and any
unscheduled principal payments and other unscheduled principal collections
received during the related Prepayment Period, and the Stated Principal Balance
of any Mortgage Loan that has prepaid in full or has become a Liquidated
Mortgage Loan during the related Prepayment Period shall be zero.
Stepdown Date: The later to occur of (i) the earlier to occur of (a)
the Distribution Date in December 2008 and (b) the Distribution Date following
the Distribution Date on which the aggregate Class Certificate Balances of the
Class A Certificates have been reduced to zero and (ii) the first Distribution
Date on which the Senior Enhancement Percentage (calculated for this purpose
only after taking into account payments of principal on the Mortgage Loans
applied to reduce the Stated Principal Balance of the Mortgage Loans for the
applicable Distribution Date but prior to any applications of Principal
Distribution Amount to the Certificates on such Distribution Date) is greater
than or equal to the Senior Specified Enhancement Percentage.
Subordinated Amount: As of any Distribution Date, the excess, if
any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the LIBOR Certificates as of such Distribution Date (after giving effect to
the payment of the Principal Remittance Amount on such Certificates on such
Distribution Date).
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordination Deficiency: With respect to any Distribution Date, the
excess, if any, of (a) the Specified Subordinated Amount applicable to such
Distribution Date over (b) the Subordinated Amount applicable to such
Distribution Date.
Subordination Reduction Amount: With respect to any Distribution
Date, an amount equal to the lesser of (a) the Excess Subordinated Amount and
(b) the Net Monthly Excess Cash Flow.
Subsequent Recovery: With respect to any Mortgage Loan or related
Mortgaged Property that became a Liquidated Mortgage Loan or was otherwise
disposed of, all amounts received in respect of such Liquidated Mortgage Loan
after an Applied Realized Loss Amount related to such Mortgage Loan or Mortgaged
Property is allocated to reduce the Class Certificate Balance of any Class of
Subordinated Certificates. Any Subsequent Recovery that is received during a
Prepayment Period will be included as part of the Principal Remittance Amount
for the related Distribution Date.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by the
applicable Responsible Party 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 J, (i) have a Stated Principal Balance, after deduction of
all Scheduled Payments due in the month of substitution, not in excess of the
Stated Principal Balance of the Deleted Mortgage Loan; (ii) be accruing interest
at a rate not lower than and not more than 1% higher than that of the Deleted
Mortgage Loan; (iii) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Deleted Mortgage Loan; (iv) be of the
same type as the Deleted Mortgage Loan; and (v) comply with each representation
and warranty set forth in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Swap Account: The trust account created pursuant to Section 4.07 of
this Agreement.
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the
Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the LIBOR Certificates
divided by (b) 30.
Swap Provider: Barclays Bank PLC, a bank authorized and regulated by
the United Kingdom's Financial Services Authority and a member of the London
Stock Exchange, and its successors in interest.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the Class R Certificates
designated as "tax matters person" of each Trust REMIC in the manner provided
under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess, if any, of (i) the interest on the Mortgage Loans (other
than Prepayment Interest Excesses) received by the Servicers on or prior to the
related Determination Date or advanced by the Servicers for the related
Remittance Date (net of Expense Fees) over (ii) the sum of (A) the amounts
payable to the Certificates and the Class A-1B Certificate Insurer pursuant to
Section 4.02(a)(i) on such Distribution Date and (B) any Net Swap Payments to
the Swap Provider.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: Either a Cumulative Loss Trigger Event or a
Delinquency Trigger Event.
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal with respect thereto
received on or after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or prior to the related Cut-off Date; (ii) the
Collection Accounts, Excess Reserve Fund Account, the Distribution Account, and
all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the Cap Agreements;
(v) the Interest Rate Swap Agreement; (vi) the Swap Account; (vii) the Insurance
Policy; (viii) with respect to the Class A-1B Certificates only, the rights of
the Trustee under the Class A-1B Certificate Insurance Policy; (ix) the Closing
Date Deposit Amount; (x) the Depositor's rights under the First Franklin
Assignment Agreement; (xi) the Purchaser's rights with respect to the Mortgage
Loans under the Custodial Agreement; and (xii) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing.
Trust REMIC: Any of Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the
Lower Tier REMIC or the Upper Tier REMIC, as applicable.
Trustee: ▇▇▇▇▇ Fargo Bank, National Association, and its successors
in interest and, if a successor trustee is appointed hereunder, such successor.
Trustee Fee: As to any Distribution Date, an amount equal to the
product of (a) one-twelfth of the Trustee Fee Rate and (b)(i) the aggregate
Stated Principal Balance of the Mortgage Loans as of the preceding Distribution
Date and (ii) with respect to the Distribution Date in December 2005 only, the
portion of the Closing Date Deposit Amount allocable to principal.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.002% per
annum.
Underwriters' Exemption: Any exemption listed under footnote 1 of,
and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from Distribution Dates prior to the current Distribution
Date remaining unpaid immediately prior to the current Distribution Date and (b)
interest on the amount in clause (a) above at the applicable Pass-Through Rate
(to the extent permitted by applicable law).
Unpaid Realized Loss Amount: With respect to any Class of
Subordinated Certificates and as to any Distribution Date, is the excess of (i)
the Applied Realized Loss Amount with respect to such Class over (ii) the sum of
(a) all distributions in reduction of such Applied Realized Loss Amounts on all
previous Distribution Dates, and (b) the amount by which the Class Certificate
Balance of such Class has been increased due to the distribution of any
Subsequent Recovery on all previous Distribution Dates. Any amounts distributed
to a Class of Subordinated Certificates in respect of any Unpaid Realized Loss
Amount will not be applied to reduce the Class Certificate Balance of such
Class.
Upper Tier Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Upper Tier Interest Rate for the Class of Corresponding
Upper Tier REMIC Regular Interest is based upon the Upper Tier REMIC Loan Group
I Rate, Upper Tier REMIC Loan Group II Rate or Upper Tier REMIC Loan Group III
Rate or the Upper Tier REMIC Pool Cap Rate, as and if applicable, the excess, if
any, of (i) the amount of interest such Class of Upper Tier Regular Interest
would otherwise be entitled to receive on such Distribution Date had such Upper
Tier REMIC Regular Interest not been subject to the Upper Tier REMIC Loan Group
I Rate, Upper Tier REMIC Loan Group II Rate or Upper Tier REMIC Loan Group III
Rate or the Upper Tier REMIC Pool Cap Rate, as and if applicable, over (ii) the
amount of interest payable on such Class of Certificates on such Distribution
Date taking into account the Upper Tier REMIC Loan Group I Rate, Upper Tier
REMIC Loan Group II Rate or Upper Tier REMIC Loan Group III Rate or the Upper
Tier REMIC Pool Cap Rate, as and if applicable, and (B) the Upper Tier Carry
Forward Amount for such Class of Certificates for all previous Distribution
Dates not previously paid, together with interest thereon at a rate equal to the
applicable Upper Tier Interest Rate for such Class of Certificates for such
Distribution Date, without giving effect to the Upper Tier REMIC Loan Group I
Rate, Upper Tier REMIC Loan Group II Rate or Upper Tier REMIC Loan Group III
Rate or the Upper Tier REMIC Pool Cap Rate, as and if applicable.
Upper Tier REMIC: As described in the Preliminary Statement.
Upper Tier REMIC Loan Group I Rate: As described in the Preliminary
Statement.
Upper Tier REMIC Loan Group II Rate: As described in the Preliminary
Statement.
Upper Tier REMIC Loan Group III Rate: As described in the
Preliminary Statement.
Upper Tier REMIC Pool Cap Rate: For any Distribution Date, the
weighted average of the Lower Tier REMIC Interest Rate on (a) the Class LT-Group
I(SUB), subject to a cap and floor equal to the Lower Tier REMIC Interest Rate
of the Class LT-Group I Interest, (b) the Class LT-Group II(SUB), subject to a
cap and floor equal to the Lower Tier REMIC Interest Rate of the Class LT-Group
II Interest and (c) the Class LT-Group III(SUB), subject to a cap and floor
equal to the Lower Tier REMIC Interest Rate of the Class LT-Group III Interest,
weighted on the basis of the respective Lower Tier REMIC Principal Amounts of
the Class LT-Group I(SUB), Class LT-Group II(SUB) and Class LT-Group III(SUB),
respectively.
Upper Tier REMIC Regular Interest: As described in the Preliminary
Statement.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any State
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
WMC Mortgage Loans: The Mortgage Loans purchased by the Purchaser
pursuant to the WMC Mortgage Corp. Purchase Agreement for which WMC Mortgage
Corp. is identified as Originator in the Mortgage Loan Schedule.
WMC Original Sale Date: August 31, 2005.
WMC Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of August 1, 2005, between the Purchaser, as purchaser, and
WMC, as seller.
WMC Servicing Transfer Date: October 28, 2005.
WMC Underwriting Guidelines: The underwriting guidelines attached to
the WMC Purchase Agreement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) subject to Section 5.07, the remaining Voting
Rights shall be allocated among Holders of the remaining Classes of Certificates
in proportion to the Certificate Balances of their respective Certificates on
such date.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund. On the Closing Date, the Depositor shall
pay, without any right of reimbursement from the Trust, to the Cap Provider the
"Fixed Amount" (as defined in the related Cap Agreement) due and payable to the
Cap Provider pursuant to the terms of each Cap Agreement.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Trustee for
the benefit of the Certificateholders the following documents or instruments
with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note bearing all intervening endorsements
showing a complete chain of endorsement from the originator to the last
endorsee, endorsed "Pay to the order of _____________, without recourse"
and signed (which may be by facsimile signature) in the name of the last
endorsee by an authorized officer. To the extent that there is no room on
the face of the Mortgage Notes for endorsements, the endorsement may be
contained on an allonge, if state law so allows and the Trustee is so
advised in writing by the applicable Responsible Party that state law so
allows;
(ii) the original of any guaranty executed in connection with the
Mortgage Note;
(iii) the original Mortgage with evidence of recording thereon. If,
in connection with any Mortgage Loan, the original Mortgage cannot be
delivered with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, the applicable Responsible Party shall deliver or cause
to be delivered to the Trustee a photocopy of such Mortgage, together with
(A) in the case of a delay caused by the public recording office, an
Officer's Certificate of the applicable Responsible Party (or certified by
the title company, escrow agent, or closing attorney) stating that such
Mortgage has been dispatched to the appropriate public recording office
for recordation and that the original recorded Mortgage or a copy of such
Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered
to the Trustee upon receipt thereof by the applicable Responsible Party;
or (B) in the case of a Mortgage where a public recording office retains
the original recorded Mortgage or in the case where a Mortgage is lost
after recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy
of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation
and extension agreements, if any, with evidence of recording thereon;
(v) the original Assignment of Mortgage for each Mortgage Loan
endorsed in blank (except with respect to MERS Designated Loans);
(vi) the originals of all intervening assignments of Mortgage (if
any) evidencing a complete chain of assignment from the applicable
originator to the last endorsee (or, in the case of a MERS Designated
Loan, MERS) with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording office or
has been lost or if such public recording office retains the original
recorded assignments of Mortgage, the applicable Responsible Party shall
deliver or cause to be delivered a photocopy of such intervening
assignment, together with (A) in the case of a delay caused by the public
recording office, an Officer's Certificate of the applicable Responsible
Party or a certificate from an escrow company, a title company or a
closing attorney stating that such intervening assignment of Mortgage has
been dispatched to the appropriate public recording office for recordation
and that such original recorded intervening assignment of Mortgage or a
copy of such intervening assignment of Mortgage certified by the
appropriate public recording office to be a true and complete copy of the
original recorded intervening assignment of Mortgage will be promptly
delivered to the Trustee upon receipt thereof by the applicable
Responsible Party; or (B) in the case of an intervening assignment where a
public recording office retains the original recorded intervening
assignment or in the case where an intervening assignment is lost after
recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and
complete copy of the original recorded intervening assignment;
(vii) the original mortgagee title insurance policy or, in the event
such original title policy is unavailable, a certified true copy of the
related policy binder or commitment for title certified to be true and
complete by the title insurance company;
(viii) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection
with the Mortgage (if provided); and
(ix) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power
certified by the applicable Responsible Party to be a true and correct
copy of the original.
To the extent not previously delivered to the Purchaser pursuant to
the applicable Purchase Agreement, the applicable Responsible Party shall
promptly upon receipt from the respective recording office cause to be delivered
to the Trustee the original recorded document described in (iii), (iv) and (vi)
above.
From time to time, the applicable Responsible Party, the Depositor
or the applicable Servicer, as applicable, shall forward to the Trustee,
additional original documents, additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan, in accordance with
the terms of this Agreement upon receipt of such documents. All such mortgage
documents held by the Trustee as to each Mortgage Loan shall constitute the
"Custodial File".
To the extent not previously delivered to the Purchaser pursuant to
this Agreement, on or prior to the Closing Date, each Responsible Party shall
deliver to the Trustee, Assignments of Mortgage, in blank, for each Mortgage
Loan that is not a MERS Designated Loan. No later than thirty (30) Business Days
following the later of the Closing Date and the date of receipt by the
applicable Servicer of the complete recording information for a Mortgage, the
applicable Servicer shall promptly submit or cause to be submitted for
recording, at the expense of the applicable Responsible Party and at no expense
to the Trust Fund, the Trustee, the applicable Servicer, the Class A-1B
Certificate Insurer or the Depositor, in the appropriate public office for real
property records, each Assignment of Mortgage referred to in Section 2.01(b)(v).
Notwithstanding the foregoing, however, for administrative convenience and
facilitation of servicing and to reduce closing costs, the Assignments of
Mortgage shall not be required to be completed and submitted for recording with
respect to any Mortgage Loan (i) if the Trustee and each Rating Agency have
received an Opinion of Counsel, satisfactory in form and substance to the
Trustee and each Rating Agency to the effect that the recordation of such
Assignments of Mortgage in any specific jurisdiction is not necessary to protect
the Trustee's interest in the related Mortgage Note, (ii) if such Mortgage Loan
is a MERS Designated Mortgage Loan or (iii) if the Rating Agencies have each
notified the Depositor and the applicable Servicer in writing that not recording
any such Assignments of Mortgage would not cause the initial ratings on any
LIBOR Certificates to be downgraded or withdrawn; provided, however, that no
Servicer shall be held responsible or liable for any loss that occurs because an
Assignment of Mortgage was not recorded, but only to the extent the applicable
Servicer does not have prior knowledge of the act or omission that causes such
loss. In addition to the foregoing, the related Servicer shall cause each
Assignment of Mortgage to be recorded in accordance with Accepted Servicing
Practices in order to convey, upon foreclosure, the title of any Mortgaged
Property to the Trust as set forth in Section 3.17 hereof. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned by the applicable
Responsible Party, at the expense of such Responsible Party, to "▇▇▇▇▇ Fargo
Bank, National Association, as trustee under the Pooling and Servicing Agreement
dated as of November 1, 2005, Securitized Asset Backed Receivables LLC Trust
2005-HE1". In the event that any such Assignment of Mortgage is lost or returned
unrecorded because of a defect therein, the applicable Responsible Party shall
promptly cause to be delivered a substitute Assignment of Mortgage to cure such
defect and thereafter cause each such assignment to be duly recorded at no
expense to the Trust Fund.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Trustee within 180 days (or such other time period as may be required by
any Rating Agency) following the Closing Date, and in the event that the
applicable Responsible Party does not cure such failure within 30 days of
discovery or receipt of written notification of such failure from the Depositor,
the related Mortgage Loan shall, upon the request of the Depositor, be
repurchased by the applicable Responsible Party at the price and in the manner
specified in Section 2.03. The foregoing repurchase obligation shall not apply
in the event that the applicable Responsible Party cannot deliver such original
or copy of any document submitted for recordation to the appropriate public
recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction; provided, that the applicable
Responsible Party shall instead deliver a recording receipt of such recording
office or, if such recording receipt is not available, an officer's certificate
of an officer of the applicable Responsible Party, confirming that such document
has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
each Responsible Party shall be deemed to have been satisfied upon delivery by
such Responsible Party to the Trustee, prior to the Closing Date of a copy of
such Mortgage or assignment, as the case may be, certified (such certification
to be an original thereof) by the public recording office to be a true and
complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "Securitized Asset Backed
Receivables LLC Trust 2005-HE1" and ▇▇▇▇▇ Fargo Bank, National Association is
hereby appointed as Trustee in accordance with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans and the Interest Rate Swap
Agreement) pursuant to Section 2.01(a). The Trustee on behalf of the Trust is
hereby authorized to enter into the Cap Agreements and the Interest Rate Swap
Agreement.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Depositor shall cause the Custodial Files with respect to the Mortgage Loans
held under the Custodial Agreement to be transferred the Trustee within 30 days
of the Closing Date and the Trustee agrees to accept the custodial certification
provided by Deutsche Bank National Trust Company. The Trustee shall acknowledge,
on the Closing Date, receipt by the Trustee, of the documents identified in the
Initial Certification in the form annexed hereto as Exhibit E ("Initial
Certification"), and declares that it holds and will hold such documents and the
other documents delivered to it pursuant to Section 2.01, and that it holds or
will hold such other assets as are included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Trustee shall maintain possession of the related Mortgage Notes in the States of
Texas, Minnesota, California or Utah, unless otherwise permitted by the Rating
Agencies.
In connection with the Closing Date, the Trustee shall be required
to deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification prior to the Closing Date, or, as the
Depositor agrees on the Closing Date, certifying receipt of a Mortgage Note and
Assignment of Mortgage for each Mortgage Loan. The Trustee shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
Within 90 days after the Closing Date, the Trustee shall ascertain
that all documents identified in the Document Certification and Exception Report
in the form attached hereto as Exhibit F are in its possession, and shall
deliver to the Depositor and each Servicer a Document Certification and
Exception Report, in the form annexed hereto as Exhibit F, to the effect that,
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in such
certification as an exception and not covered by such certification): (i) all
documents identified in the Document Certification and Exception Report and
required to be reviewed by it are in its possession; (ii) such documents have
been reviewed by it and appear regular on their face and relate to such Mortgage
Loan; (iii) based on its examination and only as to the foregoing documents, the
information set forth in items (1), (2), (3), (15), (22) and (30) of the Data
Tape Information respecting such Mortgage Loan is correct; and (iv) each
Mortgage Note has been endorsed as provided in Section 2.01 of this Agreement.
The Trustee shall not be responsible to verify the validity, sufficiency or
genuineness of any document in any Custodial File.
The Trustee shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The applicable Servicer shall promptly deliver to the Trustee, upon the
execution or receipt thereof, the originals of such other documents or
instruments constituting the Custodial File as come into the possession of such
Servicer from time to time.
Each Responsible Party shall deliver to the applicable Servicer
copies of all trailing documents required to be included in the Custodial File
at the same time the original or certified copies thereof are delivered to the
Trustee, including but not limited to such documents as the title insurance
policy and any other Mortgage Loan documents upon return from the public
recording office. The documents shall be delivered by the applicable Responsible
Party at the applicable Responsible Party's expense to such Servicer.
Section 2.03 Representations, Warranties and Covenants of the
Responsible Parties and the Servicers; Remedies for Breaches of Representations
and Warranties with Respect to the Mortgage Loans. (a) Countrywide hereby makes
the representations and warranties set forth in Schedule II hereto to the
Depositor and the Trustee, as of the Closing Date. HomEq hereby makes the
representations and warranties set forth in Schedule III hereto to the Depositor
and the Trustee, as of the Closing Date.
(b) NC Capital hereby makes the representations and warranties, set
forth in Schedule IV and Schedule V hereto, to the Depositor, the Servicers and
the Trustee, as of the Closing Date. WMC hereby makes the representations and
warranties, set forth in Schedule VI and Schedule VII hereto, to the Depositor,
the Servicers and the Trustee, as of the Closing Date.
(c) It is understood and agreed by the Servicers and the Responsible
Parties that the representations and warranties set forth in this Section 2.03
shall survive the transfer of the Mortgage Loans by the Depositor to the Trustee
on the Closing Date, and shall inure to the benefit of the Depositor and the
Trustee notwithstanding any restrictive or qualified endorsement on any Mortgage
Note or Assignment of Mortgage or the examination or failure to examine any
Mortgage File. Upon discovery by any of the Responsible Parties, the Depositor,
the Trustee or the Servicers of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the others.
(d) Within 30 days of the earlier of either discovery by or notice
to the applicable Responsible Party that any Mortgage Loan does not conform to
the requirements as determined in the Trustee's review of the related Custodial
File or within 60 days of the earlier of either discovery by or notice to the
applicable Responsible Party of any breach of a representation or warranty set
forth in Section 2.03(b) that materially and adversely affects the value of any
Mortgage Loan or the interest of the Trustee, the Class A-1B Certificate Insurer
or the Certificateholders therein, the applicable Responsible Party shall use
its best efforts to cause to be remedied a material defect in a document
constituting part of a Mortgage File or promptly to cure such breach in all
material respects and, if such defect or breach cannot be remedied, the
applicable Responsible Party shall, at the Depositor's option as specified in
writing and provided to the applicable Responsible Party and the Trustee, (i) if
such 30- or 60-day period, as applicable, expires prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage
Loan") from the Trust Fund and substitute in its place a Substitute Mortgage
Loan, in the manner and subject to the conditions set forth in this Section
2.03; or (ii) repurchase such Mortgage Loan at the Repurchase Price; provided,
however, that any such substitution pursuant to clause (i) above shall not be
effected prior to the delivery to the Trustee of a Request for Release
substantially in the form of Exhibit J, and the delivery of the Mortgage File to
the Trustee for any such Substitute Mortgage Loan. Notwithstanding the
foregoing, a breach (i) which causes a Mortgage Loan not to constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii)
by NC Capital of any of the representations and warranties set forth in clause
(zz), (aaa), (bbb), (ccc), (jjj), (kkk), (lll), (mmm), (nnn), (ooo), (ppp),
(qqq), (rrr) and (sss) of Schedule IV, or (iii) by WMC of any of the
representations and warranties set forth in clause (zz), (aaa), (bbb), (ccc),
(jjj), (kkk), (lll), (mmm), (nnn), (ooo), (ppp), (qqq), (rrr) and (sss) of
Schedule VI in each case, will be deemed automatically to materially and
adversely affect the value of such Mortgage Loan and the interests of the
Trustee, the Class A-1B Certificate Insurer and Certificateholders in such
Mortgage Loan. In the event that the Trustee receives notice of a breach (i) by
NC Capital of any of the representations and warranties set forth in clause
(zz), (aaa), (bbb), (ccc), (jjj), (kkk), (lll), (mmm), (nnn), (ooo), (ppp),
(qqq), (rrr) and (sss) of Schedule IV, or (ii) by WMC of any of the
representations and warranties set forth in clause (zz), (aaa), (bbb), (ccc),
(jjj), (kkk), (lll), (mmm), (nnn), (ooo), (ppp), (qqq), (rrr) and (sss) of
Schedule VI, the Trustee shall give notice of such breach to the applicable
Responsible Party and request the applicable Responsible Party to repurchase the
Mortgage Loan at the Repurchase Price within sixty (60) days of receipt by the
applicable Responsible Party of such notice. The applicable Responsible Party
shall repurchase each such Mortgage Loan within 60 days of the earlier of
discovery or receipt of notice with respect to each such Mortgage Loan.
(e) With respect to any Substitute Mortgage Loan or Loans, the
applicable Responsible Party shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No substitution is permitted to be made with respect to any
Distribution Date after the end of the related Prepayment Period. Scheduled
Payments due with respect to Substitute Mortgage Loans in the Due Period of
substitution shall not be part of the Trust Fund and will be retained by the
applicable Responsible Party on the next succeeding Distribution Date. For the
Due Period of substitution, distributions to Certificateholders will include the
Scheduled Payment due on any Deleted Mortgage Loan for such Due Period and
thereafter the applicable Responsible Party shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan.
(f) The applicable Servicer, based upon information provided by the
Depositor or the applicable Responsible Party, shall amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Substitute Mortgage Loan
or Loans and such Servicer shall deliver the amended Mortgage Loan Schedule to
the Trustee. Upon such substitution, the Substitute Mortgage Loan or Loans shall
be subject to the terms of this Agreement in all respects, and the applicable
Responsible Party 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 2.03(b) with respect to such Mortgage Loan.
Upon any such substitution and the deposit into the related 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 Certificateholders relating to
such Deleted Mortgage Loan to the applicable Responsible Party and shall execute
and deliver at the applicable Responsible Party's direction such instruments of
transfer or assignment prepared by such Responsible Party, in each case without
recourse, as shall be necessary to vest title in such Responsible Party, of the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
(g) For any month in which a Responsible Party substitutes one or
more Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
applicable Servicer will determine the amount (if any) by which the aggregate
unpaid principal balance of all such Substitute Mortgage Loans as of the date of
substitution is less than the aggregate unpaid principal balance of all such
Deleted Mortgage Loans. The amount of such shortage plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans (collectively, the "Substitution Adjustment Amount") shall be remitted by
the applicable Responsible Party to the applicable Servicer for deposit into the
related Collection Account on or before the Distribution Account Deposit Date
for the Distribution Date following the Prepayment Period during which the
related Mortgage Loan became required to be purchased or replaced hereunder.
(h) In addition to such repurchase or substitution obligation
referred to in Section 2.03(d), each Responsible Party, severally not jointly,
shall indemnify the Depositor, any of its Affiliates, the Servicers, the Trustee
and the Trust and hold such parties harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses (including, without limitation,
any taxes payable by the Trust) resulting from any third party claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach by
such Responsible Party of any of its representations and warranties or
obligations contained in this Agreement. This indemnity shall survive the
termination of this Agreement.
(i) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Agreement, the proceeds from such repurchase shall be deposited
by the applicable Servicer into the related Collection Account pursuant to
Section 3.10 on or before the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which the applicable
Responsible Party became obligated to repurchase or replace such Mortgage Loan
and upon such deposit of the Repurchase Price, and receipt of a Request for
Release in the form of Exhibit J hereto, the Trustee shall release the related
Custodial File held for the benefit of the Certificateholders to such Person as
directed by the applicable Servicer, 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. In accordance with Section 10.05(b), the Trustee shall
promptly notify each Rating Agency of a purchase of a Mortgage Loan pursuant to
this Section 2.03.
It is understood and agreed that the obligation of each Responsible
Party under this Agreement to cure, repurchase or substitute any Mortgage Loan
as to which a breach of a representation and warranty has occurred and is
continuing, together with any related indemnification obligations of each
Responsible Party set forth in Section 2.03(h), shall constitute the sole
remedies against such Person respecting such breach available to
Certificateholders, the Depositor and any of its Affiliates, or the Trustee on
their behalf.
The provisions of this Section 2.03 shall survive delivery of the
respective Custodial Files to the Trustee for the benefit of the
Certificateholders.
(j) With respect to each First Franklin Mortgage Loan, in the event
of any breach of any of the representations and warranties made by First
Franklin under the First Franklin Purchase Agreement or by the Purchaser under
the First Franklin Assignment Agreement, the Trustee, upon receipt of notice of
such breach, shall enforce its rights and remedies with respect to such breach
under such agreement. If any such breach by the Purchaser is also a breach by
First Franklin of any of its representations and warranties set forth in the
First Franklin Purchase Agreement, the Trustee shall first proceed against First
Franklin to enforce the rights and remedies it may have against First Franklin
under the First Franklin Purchase Agreement. If First Franklin fails to cure,
repurchase or substitute for the affected First Franklin Mortgage Loan within
the time permitted under the First Franklin Purchase Agreement, the Trustee
shall then enforce the obligations of the Purchaser under the First Franklin
Assignment Agreement to cure such breach or to repurchase the related First
Franklin Mortgage Loan from the Trust. In the event of a repurchase of any First
Franklin Mortgage Loan by the Purchaser, the Trustee shall promptly deliver to
the Purchaser or its designee the related Mortgage File and shall assign to the
Purchaser all of the rights under the First Franklin Purchase Agreement, solely
insofar as such rights relate to such First Franklin Mortgage Loans.
Section 2.04 Opinions of Internal Counsel of WMC. WMC acknowledges
and agrees that, in connection with any legal opinions delivered by any internal
counsel of WMC in connection with the execution, delivery and/or performance by
WMC of this Agreement (including any opinions rendered on the Closing Date), WMC
shall be liable to the addressees thereon for any and all claims or demands
arising out of or based upon any such legal opinion.
Section 2.05 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates and for
the benefit of the Class A-1B Certificate Insurer (and all references in this
Agreement for the benefit of or actions on behalf of the Class A-1B
Certificateholders shall be deemed to be for the benefit of or on behalf of the
Class A-1B Certificate Insurer). The Trustee shall cooperate with all reasonable
requests by the Class A-1B Certificate Insurer regarding action to preserve or
enforce the Class A-1B Certificate Insurer's rights or interests under this
Agreement and the Class A-1B Certificates.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is the Distribution Date occurring in
October 2035, which is the Distribution Date in the month following the month in
which the latest Mortgage Loan maturity date occurs.
Amounts distributable to the Class X Certificates (prior to any
reduction for any Basis Risk Payment or Swap Termination Payment), exclusive of
any amounts received from the Swap Provider, shall be deemed paid from the Upper
Tier REMIC in respect of the Class X Interest to the Holders of the Class X
Certificates prior to distribution of any Basis Risk Payments to the LIBOR
Certificates or Swap Termination Payment to the Swap Provider.
For federal income tax purposes, any amount distributed on the LIBOR
Certificates on any Distribution Date in excess of the amount distributable on
their Corresponding Class of Upper Tier Regular Interest on such Distribution
Date shall be treated as having been paid from the Excess Reserve Fund Account
or the Swap Account, as applicable, and any amount distributable on such
Corresponding Class of Upper Tier Regular Interest on such Distribution Date in
excess of the amount distributable on the Corresponding Class of LIBOR
Certificates on such Distribution Date shall be treated as having been paid to
the Swap Account, all pursuant to and as further provided in Section 8.13.
Section 2.07 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee and the
Servicers that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The Depositor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the power and authority to convey the Mortgage
Loans and to execute, deliver and perform, and to enter into and consummate
transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite company action having been taken,
and, assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes or will constitute the legal, valid and binding
agreement of the Depositor, enforceable against the Depositor in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been received or obtained on or
prior to the Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the certificate of formation or limited liability company
agreement of the Depositor, or (B) of any term, condition or provision of any
material indenture, deed of trust, contract or other agreement or instrument to
which the Depositor or any of its subsidiaries is a party or by which it or any
of its subsidiaries is bound; (ii) results or will result in a violation of any
law, rule, regulation, order, judgment or decree applicable to the Depositor of
any court or governmental authority having jurisdiction over the Depositor or
its subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that would materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 10.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.07 shall survive delivery of the
respective Mortgage Files to the Trustee or to a custodian, as the case may be,
and shall inure to the benefit of the Trustee.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders, each Servicer shall service and administer the
Mortgage Loans for which it is acting as Servicer in accordance with the terms
of this Agreement and the respective Mortgage Loans, and, to the extent
consistent with such terms, in the same manner in which it services and
administers similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of mortgage lenders
and loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that such Servicer, any Subservicer or any
Affiliate of such Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by such
Servicer or any Affiliate of such Servicer;
(iii) such Servicer's obligation to make P&I Advances or Servicing
Advances; or
(iv) such Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, each Servicer shall
seek to maximize the timely and complete recovery of principal and interest on
the Mortgage Notes. Subject only to the above-described servicing standards and
the terms of this Agreement and of the respective Mortgage Loans, each Servicer
shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each Servicer in
its own name or in the name of a Subservicer or in the name of the Trustee
solely in its capacity as Trustee of the Trust is hereby authorized and
empowered by the Trustee when the Servicer believes it appropriate in its best
judgment in accordance with Accepted Servicing Practices, to execute and deliver
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee. Each Servicer shall be responsible for
preparing and recording all lien releases and mortgage satisfactions in
accordance with state and local regulations, and shall be responsible for all
expenses in connection therewith if not paid by the Mortgagor if permitted by
applicable law and the related Mortgage Loan Documents (except if such expense
would constitute a Servicing Advance) and all other consequences resulting from
its failure to fully discharge such obligation. Each Servicer shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide to the Mortgagors any reports required to be provided to
them thereby. Each Servicer shall also comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
standard hazard insurance policy. Subject to Section 3.16, the Trustee shall
execute, at the written request of a Servicer, and furnish to such Servicer and
any Subservicer such documents provided to the Trustee as are necessary or
appropriate to enable such Servicer or any Subservicer to carry out its
servicing and administrative duties hereunder, and the Trustee hereby grants to
each Servicer, and this Agreement shall constitute, a power of attorney to carry
out such duties including a power of attorney to take title to Mortgaged
Properties after foreclosure on behalf of the Trustee. The Trustee shall execute
a separate power of attorney, furnished to it by the applicable Servicer, in
favor of such Servicer for the purposes described herein to the extent necessary
or desirable to enable such Servicer to perform its duties hereunder. The
Trustee shall not be liable for the actions of either Servicer or any
Subservicers under such powers of attorney.
(b) Subject to Section 3.09(b), in accordance with the standards of
the preceding paragraph, each Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided in Section 3.11.
Any cost incurred by a Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary, the
Servicers may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.01) and neither Servicer shall (i) permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Rate, reduce or increase the principal balance (except for reductions resulting
from actual payments of principal) or change the final maturity date on such
Mortgage Loan (except for a reduction of interest payments resulting from the
application of the Servicemembers Civil Relief Act or any similar state
statutes) or (ii) permit any modification, waiver or amendment of any term of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to
fail to qualify as a REMIC under the Code or the imposition of any tax on
"prohibited transactions" or "contributions after the startup day" under the
REMIC Provisions, or (iii) except as provided in Section 3.07(a), waive any
Prepayment Charges.
(d) Each Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release such
Servicer from the responsibilities or liabilities arising under this Agreement.
Section 3.02 Subservicing Agreements between the Servicers and
Subservicers. (a) Each Servicer may enter into subservicing agreements with
subservicers (each, a "Subservicer"), for the servicing and administration of
the Mortgage Loans ("Subservicing Agreements").
(b) Each Subservicer shall be (i) authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, (ii) an institution approved as a mortgage loan originator by the
Federal Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae approved mortgage
servicer. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
Each Servicer will examine each Subservicing Agreement to which it is a party
and will be familiar with the terms thereof. The terms of any Subservicing
Agreement will not be inconsistent with any of the provisions of this Agreement.
Each Servicer and the respective Subservicers may enter into and make amendments
to the Subservicing Agreements or enter into different forms of Subservicing
Agreements; provided, however, that any such amendments or different forms shall
be consistent with and not violate the provisions of this Agreement, and that no
such amendment or different form shall be made or entered into which could be
reasonably expected to be materially adverse to the interests of the Trustee,
without the consent of the Trustee. Any variation without the consent of the
Trustee from the provisions set forth in Section 3.08 relating to insurance or
priority requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to such Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. Each Servicer shall deliver to the
Trustee and the Depositor copies of all Subservicing Agreements, and any
amendments or modifications thereof, promptly upon such Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, each Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee, shall enforce the obligations of each Subservicer under
the related Subservicing Agreement to which such Servicer is a party, including,
without limitation, any obligation to make advances in respect of delinquent
payments as required by a Subservicing Agreement. 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 such Servicer, in its good
faith business judgment, would require were it the owner of the related Mortgage
Loans. Each 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 Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
Section 3.03 Successor Subservicers. Each Servicer shall be entitled
to terminate any Subservicing Agreement to which such Servicer is a party and
the rights and obligations of any Subservicer pursuant to any such Subservicing
Agreement in accordance with the terms and conditions of such Subservicing
Agreement. In the event of termination of any Subservicer, all servicing
obligations of such Subservicer shall be assumed simultaneously by the
applicable Servicer party to the related Subservicing Agreement without any act
or deed on the part of such Subservicer or such Servicer, and such Servicer
either shall service directly the related Mortgage Loans or shall enter into a
Subservicing Agreement with a successor Subservicer which qualifies under
Section 3.02.
Any Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Depositor or the Trustee without
fee, in accordance with the terms of this Agreement, in the event that the
Servicer that is a party to the related Subservicing Agreement shall, for any
reason, no longer be a Servicer (including termination due to an Event of
Default).
Section 3.04 Liability of the Servicers. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between a Servicer and a Subservicer or reference to
actions taken through a Subservicer or otherwise, such Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 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
such Servicer alone were servicing and administering such Mortgage Loans. Each
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of such Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers and
the Trustee. Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
related Servicer alone, and the Trustee (or any successor to such Servicer)
shall not be deemed a party thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the Subservicer except as set
forth in Section 3.06. Each Servicer shall be solely liable for all fees owed by
it to any Subservicer, irrespective of whether such Servicer's compensation
pursuant to this Agreement is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee. In the event a Servicer at any time shall for any reason no longer be a
Servicer (including by reason of the occurrence of an Event of Default), the
Trustee, or its designee or the successor Servicer if the successor is not the
Trustee, shall thereupon assume all of the rights and obligations of such
Servicer under each Subservicing Agreement that such Servicer may have entered
into, with copies thereof provided to the Trustee or the successor Servicer if
the successor is not the Trustee, prior to the Trustee or the successor Servicer
if the successor is not the Trustee, assuming such rights and obligations,
unless the Trustee elects to terminate any Subservicing Agreement in accordance
with its terms as provided in Section 3.03.
Upon such assumption, the Trustee, its designee or the successor
Servicer shall be deemed, subject to Section 3.03, to have assumed all of such
Servicer's interest therein and to have replaced such Servicer as a party to
each Subservicing Agreement to which the predecessor Servicer was a party to the
same extent as if each Subservicing Agreement had been assigned to the assuming
party, except that (i) such Servicer shall not thereby be relieved of any
liability or obligations under any such Subservicing Agreement that arose before
it ceased to be a Servicer and (ii) none of the Depositor, the Trustee, their
designees or any successor to such Servicer shall be deemed to have assumed any
liability or obligation of such Servicer that arose before it ceased to be a
Servicer.
Such Servicer at its expense shall, upon request of the Trustee, its
designee or the successor Servicer deliver to the assuming party all documents
and records relating to each Subservicing Agreement to which it is a party and
the Mortgage Loans then being serviced by it and an accounting of amounts
collected and held by or on behalf of it, and otherwise use its best efforts to
effect the orderly and efficient transfer of the Subservicing Agreements to the
assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a) Each
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable Insurance Policies, follow such collection procedures as it
would follow with respect to mortgage loans comparable to the Mortgage Loans and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, each Servicer may (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the due dates for the Scheduled
Payments due on a Mortgage Note for a period of not greater than 180 days;
provided, that any extension pursuant to clause (ii) above shall not affect the
amortization schedule of any Mortgage Loan for purposes of any computation
hereunder, except as provided below. In the event of any such arrangement
pursuant to clause (ii) above, the applicable Servicer shall make timely
advances on such Mortgage Loan during such extension pursuant to Section 4.01
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to Section 4.01(d)
pursuant to which such Servicer shall not be required to make any such advances
that are Nonrecoverable P&I Advances. Notwithstanding the foregoing, each
Servicer may waive, in whole or in part, a Prepayment Charge only under the
following circumstances: (i) such waiver relates to a default or a reasonably
foreseeable default and would, in the reasonable judgment of the Servicer,
maximize recovery of total proceeds taking into account the value of such
Prepayment Charge and the related Mortgage Loan or (ii) such Prepayment Charge
is not permitted to be collected by applicable law. If a Prepayment Charge is
waived other than as permitted by the prior sentence, then the applicable
Servicer is required to pay the amount of such waived Prepayment Charge, for the
benefit of the Holders of the Class P Certificates, by depositing such amount
into the related Collection Account from its own funds, without any right of
reimbursement therefor, together with and at the time that the amount prepaid on
the related Mortgage Loan is required to be deposited into the Collection
Account; provided, however, that the applicable Servicer shall not have an
obligation to pay the amount of any uncollected Prepayment Charge if the failure
to collect such amount is the direct result of inaccurate or incomplete
information on the Mortgage Loan Schedule in effect at such time.
(b) (i) The Trustee shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class X Certificateholders, to receive any Basis
Risk Payment and any Interest Rate Cap Payment and to secure their limited
recourse obligation to pay to the LIBOR Certificateholders Basis Risk Carry
Forward Amounts (prior to using any Net Swap Receipts).
(ii) On each Distribution Date, the Trustee shall deposit the amount
of any Basis Risk Payment and any Interest Rate Cap Payment for such date
into the Excess Reserve Fund Account.
(c) (i) On each Distribution Date on which there exists a Basis Risk
Carry Forward Amount on any Class of Certificates, the Trustee shall (1)
withdraw from the Distribution Account and deposit in the Excess Reserve Fund
Account, as set forth in Section 4.02(a)(iii)(P), the lesser of (x) the Class X
Distributable Amount (without regard to the reduction in the definition thereof
with respect to the Basis Risk Payment or Defaulted Swap Termination Payments
(to the extent remaining after the distributions specified in Sections
4.02(a)(iii)(A)-(R)) and (y) the aggregate Basis Risk Carry Forward Amounts for
such Distribution Date and (2) withdraw from the Excess Reserve Fund Account
amounts necessary to pay to such Class or Classes of Certificates the Basis Risk
Carry Forward Amount. Such payments shall be allocated to those Classes on a pro
rata basis based upon the amount of Basis Risk Carry Forward Amount owed to each
such Class and shall be paid in the priority set forth in Sections
4.02(a)(iii)(Q)-(R).
(ii) The Trustee shall account for the Excess Reserve Fund Account
as an asset of a grantor trust under subpart E, Part I of subchapter J of
the Code and not as an asset of any REMIC created pursuant to this
Agreement. The beneficial owners of the Excess Reserve Fund Account are
the Class X Certificateholders. For all federal tax purposes, amounts
transferred by the Upper Tier REMIC to the Excess Reserve Fund Account
shall be treated as distributions by the Trustee to the Class X
Certificateholders.
(iii) Any Basis Risk Carry Forward Amounts paid by the Trustee to
the LIBOR Certificateholders from the Excess Reserve Fund Account or the
Swap Account shall be accounted for by the Trustee as amounts paid first
to the Holders of the Class X Certificates (in respect of the Class X
Interest or the Class IO Interest, respectively) and then to the
respective Class or Classes of LIBOR Certificates. In addition, the
Trustee shall account for the LIBOR Certificateholders' rights to receive
payments of Basis Risk Carry Forward Amounts from the Excess Reserve Fund
Account (along with payments of Basis Risk Carry Forward Amounts and,
without duplication, Upper Tier Carry Forward Amounts from the Swap
Account) as rights in a limited recourse interest rate cap contract
written by the Class X Certificateholders in favor of the LIBOR
Certificateholders.
(iv) Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess Reserve
Fund Account except as expressly set forth in this Section 3.07(c) and
Sections 4.02(a)(iii)(Q)-(T).
(d) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Depositor shall cause the
Closing Date Deposit Amount to be deposited into the Distribution Account on the
Closing Date. The Trustee shall, promptly upon receipt, deposit in the
Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Servicers to the Trustee
pursuant to Section 3.11;
(ii) any amount deposited by the Servicers pursuant to Section
3.12(b) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that either Servicer shall remit any amount not
required to be remitted, it may at any time direct the Trustee in writing to
withdraw such amount from the Distribution Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering
notice to the Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 4.02. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Servicers.
(e) The Trustee may invest the funds in the Distribution Account in
one or more Permitted Investments in accordance with Section 3.12. The Trustee
may withdraw from the Distribution Account any income or gain earned from the
investment of funds deposited therein for its own benefit.
(f) Each Servicer shall give notice to the Trustee, each Rating
Agency and the Depositor of any proposed change of the location of the related
Collection Account within a reasonable period of time prior to any change
thereof.
(g) In order to comply with its duties under the USA Patriot Act of
2001, the Trustee shall comply with the ▇▇▇▇▇ Fargo anti-money laundering
compliance program, including, without limitation, any customer identification
procedures.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more
segregated accounts (collectively, the "Subservicing Account"). The Subservicing
Account shall be an Eligible Account and shall otherwise be acceptable to the
related Servicer. The Subservicer shall deposit in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Subservicer's receipt thereof, all proceeds of Mortgage Loans received by
the Subservicer less its servicing compensation to the extent permitted by the
Subservicing Agreement, and shall thereafter deposit such amounts in the
Subservicing Account, in no event more than two Business Days after the deposit
of such funds into the clearing account. The Subservicer shall thereafter
deposit such proceeds in the Collection Account of the related Servicer or remit
such proceeds to the related Servicer for deposit in the Collection Account of
the related Servicer not later than two Business Days after the deposit of such
amounts in the Subservicing Account. For purposes of this Agreement, a Servicer
shall be deemed to have received payments on the Mortgage Loans when the related
Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) Each Servicer shall enforce the obligations under each
paid-in-full, life-of-the-loan tax service contract in effect with respect to
each Mortgage Loan (each, a "Tax Service Contract") serviced by such Servicer.
Each Tax Service Contract shall be assigned to the Trustee or a successor
Servicer, at the applicable Servicer's expense in the event that such Servicer
is terminated as Servicer of the related Mortgage Loan.
(b) To the extent that the services described in this paragraph (b)
are not otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) above, each Servicer undertakes to perform such functions with
respect to the Mortgage Loans serviced by such Servicer. To the extent the
related Mortgage provides for Escrow Payments, the related Servicer shall
establish and maintain, or cause to be established and maintained, one or more
segregated accounts (the "Escrow Accounts"), which shall be Eligible Accounts.
Each Servicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after such Servicer's
receipt thereof, all collections from the Mortgagors (or related advances from
Subservicers) for the payment of taxes, assessments, hazard insurance premiums
and comparable items for the account of the Mortgagors ("Escrow Payments")
collected on account of the Mortgage Loans and shall thereafter deposit such
Escrow Payments in the Escrow Accounts, in no event more than two Business Days
after the deposit of such funds in the clearing account, for the purpose of
effecting the payment of any such items as required under the terms of this
Agreement. Withdrawals of amounts from an Escrow Account may be made only to (i)
effect payment of taxes, assessments, hazard insurance premiums, and comparable
items; (ii) reimburse such Servicer (or a Subservicer to the extent provided in
the related Subservicing Agreement) out of related collections for any advances
made pursuant to Section 3.01 (with respect to taxes and assessments) and
Section 3.13 (with respect to hazard insurance); (iii) refund to Mortgagors any
sums as may be determined to be overages; (iv) pay interest, if required and as
described below, to Mortgagors on balances in the Escrow Account; (v) clear and
terminate the Escrow Account at the termination of such Servicer's obligations
and responsibilities in respect of the Mortgage Loans under this Agreement; or
(vi) recover amounts deposited in error. As part of its servicing duties, each
Servicer or Subservicers shall pay to the Mortgagors interest on funds in Escrow
Accounts, to the extent required by law and, to the extent that interest earned
on funds in the Escrow Accounts is insufficient, to pay such interest from its
or their own funds, without any reimbursement therefor. To the extent that a
Mortgage does not provide for Escrow Payments, the applicable Servicer shall
determine whether any such payments are made by the Mortgagor in a manner and at
a time that avoids the loss of the Mortgaged Property due to a tax sale or the
foreclosure of a tax lien. The applicable Servicer assumes full responsibility
for the payment of all such bills within such time and shall effect payments of
all such bills irrespective of the Mortgagor's faithful performance in the
payment of same or the making of the Escrow Payments and shall make advances
from its own funds to effect such payments; provided, however, that such
advances are deemed to be Servicing Advances.
Section 3.10 Collection Accounts. (a) On behalf of the Trustee, each
Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (each such account or
accounts, a "Collection Account"), held in trust for the benefit of the Trustee.
On behalf of the Trustee, each Servicer shall deposit or cause to be deposited
in the clearing account (which account must be an Eligible Account) in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after such Servicer's receipt thereof, and shall
thereafter deposit into the related Collection Account, in no event more than
two Business Days after the deposit of such funds into the clearing account, as
and when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the related Mortgage Loans due on or before
the Cut-off Date), or payments (other than Principal Prepayments) received by it
on or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds to the extent
such Insurance Proceeds and Condemnation Proceeds are not to be applied to
the restoration of the related Mortgaged Property or released to the
related Mortgagor in accordance with the express requirements of law or in
accordance with Accepted Servicing Practices, Liquidation Proceeds and
Subsequent Recoveries;
(iv) any amounts required to be deposited pursuant to Section 3.12
in connection with any losses realized on Permitted Investments with
respect to funds held in the related Collection Account;
(v) any amounts required to be deposited by such Servicer pursuant
to the second paragraph of Section 3.13(a) in respect of any blanket
policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement; and
(vii) all Prepayment Charges collected by the Servicers.
The foregoing requirements for deposit in the Collection Accounts
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees and charges need
not be deposited by each Servicer in the Collection Account and shall, upon
collection, belong to the applicable Servicer as additional compensation for its
servicing activities. In the event a Servicer shall deposit in the related
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from its Collection Account, any provision herein
to the contrary notwithstanding.
(b) Funds in the Collection Accounts may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. Each
Servicer shall give notice to the Trustee and the Depositor of the location of
the related Collection Account maintained by it when established and prior to
any change thereof.
Section 3.11 Withdrawals from the Collection Accounts. (a) Each
Servicer shall, from time to time, make withdrawals from the related Collection
Account for any of the following purposes or as described in Section 4.01:
(i) on or prior to each Remittance Date, to remit to the Trustee (A)
the Trustee Fee with respect to such Distribution Date and (B) all
Available Funds in respect of the related Distribution Date together with
all amounts representing Prepayment Charges (payable to the Class P
Certificateholders) from the Mortgage Loans received by the applicable
Servicer during the related Prepayment Period;
(ii) to reimburse such Servicer for P&I Advances, but only to the
extent of amounts received which represent Late Collections (net of the
related Servicing Fees) of Scheduled Payments on Mortgage Loans with
respect to which such P&I Advances were made in accordance with the
provisions of Section 4.01;
(iii) to pay such Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan serviced by such Servicer or Subservicer, but only to
the extent of any Late Collections or other amounts as may be collected by
such Servicer from a Mortgagor, or otherwise received with respect to such
Mortgage Loan (or the related REO Property);
(iv) to pay to such Servicer as servicing compensation (in addition
to the Servicing Fee) on each Remittance Date (A) any interest or
investment income earned on funds deposited in its Collection Account or
(B) any Prepayment Interest Excesses to the extent permitted under Section
3.21(b);
(v) to pay to the applicable Responsible Party, with respect to each
Mortgage Loan that has previously been repurchased or replaced by such
Responsible Party pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase or substitution, as the case may be;
(vi) to reimburse such Servicer for (A) any P&I Advance or Servicing
Advance previously made which such Servicer has determined to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01 and (B) any unpaid
Servicing Fees related to any Second Lien Mortgage Loan to the extent not
recoverable from Liquidation Proceeds, Insurance Proceeds or other amounts
received with respect to the related Second Lien Mortgage Loan under
Section 3.11(a)(iii);
(vii) to pay, or to reimburse such Servicer for Servicing Advances
in respect of, expenses incurred in connection with any Mortgage Loan
serviced by such Servicer pursuant to Section 3.15;
(viii) to reimburse such Servicer, the Depositor or the Trustee for
expenses incurred by or reimbursable to such Servicer, the Depositor or
the Trustee, as the case may be, pursuant to Section 6.03, Section 7.02 or
Section 8.05;
(ix) to reimburse such Servicer or the Trustee, as the case may be,
for expenses reasonably incurred in respect of the breach or defect giving
rise to the repurchase obligation of either Responsible Party under this
Agreement that were included in the Repurchase Price of the Mortgage Loan,
including any expenses arising out of the enforcement of the repurchase
obligation, to the extent not otherwise paid pursuant to the terms hereof;
(x) to withdraw any amounts deposited in the related Collection
Account in error;
(xi) to withdraw any amounts held in the related Collection Account
and not required to be remitted to the Trustee on the Remittance Date
occurring in the month in which such amounts are deposited into such
Collection Account, to reimburse such Servicer for ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇
Advances;
(xii) to invest funds in Permitted Investments in accordance with
Section 3.12; and
(xiii) to clear and terminate the related Collection Account upon
termination of this Agreement.
(b) Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the related Collection Account, to the extent held by or on
behalf of it, pursuant to subclauses (a)(ii), (iii), (v), (vi), (vii), (viii),
(ix) and (x) above. Each Servicer shall provide written notification (as set
forth in Section 4.01(d)) to the Depositor, on or prior to the next succeeding
Remittance Date, upon making any withdrawals from the related Collection Account
pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Account, Escrow
Accounts and the Distribution Account. (a) Each Servicer may invest the funds in
the related Collection Account and the related Escrow Account (to the extent
permitted by law and the related Mortgage Loan documents) and the Trustee may
invest funds in the Distribution Account and shall invest such funds in the
Distribution Account (for purposes of this Section 3.12, each such Account is
referred to as an "Investment Account"), in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
no later than the Business Day immediately preceding the date on which such
funds are required to be withdrawn from such account pursuant to this Agreement;
provided, however, that any such Permitted Investment managed by or advised by
the Trustee or any of its Affiliates may mature, unless payable on demand, no
later than the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. If no investment instruction is given in a
timely manner, the Trustee shall hold the funds in the Distribution Account
uninvested. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the related Servicer or the Trustee, as applicable. The
related Servicer or the Trustee, as applicable, shall be entitled to sole
possession over each such investment, and any certificate or other instrument
evidencing any such investment shall be delivered directly to the applicable
Servicer or the Trustee or its agent, as applicable, together with any document
of transfer necessary to transfer title to such investment to the related
Servicer or the Trustee or its agent, as applicable. In the event amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the related Servicer or the Trustee, as
applicable, may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in an
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the related Collection Account or Escrow Account, as applicable,
held by or on behalf of the related Servicer, shall be for the benefit of such
Servicer and shall be subject to its withdrawal in the manner set forth in
Section 3.11. Such Servicer shall deposit in its Collection Account or Escrow
Account, as applicable, the amount of any loss of principal incurred in respect
of any such Permitted Investment made with funds in such accounts immediately
upon realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Trustee, shall be for the
benefit of the Trustee, and shall be subject to the Trustee's withdrawal in the
manner set forth in Section 3.07(e). The Trustee shall deposit in the
Distribution Account the amount of any loss of principal incurred in respect of
any such Permitted Investment made with funds in such account immediately upon
realization of such loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment of
funds held in the Escrow Account or the Collection Account, or if a default
occurs in any other performance required under any Permitted Investment of funds
held in the Escrow Account or the Collection Account, the related Servicer shall
take such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
Section 3.13 Maintenance of Hazard Insurance and Errors and
Omissions and Fidelity Coverage. (a) Each Servicer shall cause to be maintained
for each Mortgage Loan serviced by such Servicer fire insurance with extended
coverage on the related Mortgaged Property in an amount which is at least equal
to the least of (i) the outstanding principal balance of such Mortgage Loan,
(ii) the amount necessary to fully compensate for any damage or loss to the
improvements that are a part of such property on a replacement cost basis and
(iii) the maximum insurable value of the improvements which are a part of such
Mortgaged Property, in each case in an amount not less than such amount as is
necessary to avoid the application of any coinsurance clause contained in the
related hazard insurance policy. Each Servicer shall also cause to be maintained
fire insurance with extended coverage on each REO Property serviced by such
Servicer in an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements which are a part of such property and (ii)
the outstanding principal balance of the related Mortgage Loan at the time it
became an REO Property, plus accrued interest at the Mortgage Rate and related
Servicing Advances. Each Servicer will comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
such hazard policies. Any amounts to be collected by either Servicer under any
such policies (other than amounts required to be deposited in the Escrow Account
and applied to the restoration or repair of the property subject to the related
Mortgage or amounts to be released to the Mortgagor in accordance with the
procedures that such Servicer would follow in servicing loans held for its own
account, subject to the terms and conditions of the related Mortgage and
Mortgage Note) shall be deposited in the related Collection Account, subject to
withdrawal pursuant to Section 3.11. Any cost incurred by either Servicer in
maintaining any such insurance shall not, for the purpose of calculating
distributions to the Trustee, be added to the unpaid principal balance of the
related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so
permit. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property or REO Property is
at any time in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards and flood insurance
has been made available, the applicable Servicer will cause to be maintained a
flood insurance policy in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan and (ii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance program (assuming
that the area in which such Mortgaged Property is located is participating in
such program).
In the event that either Servicer shall obtain and maintain a
blanket policy with an insurer either (i) acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac or (ii) having a general policy rating of A:VI or better in Best's (or such
other rating that is comparable to such rating) 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 two sentences of this Section 3.13, it
being understood and agreed that such policy may contain a deductible clause, in
which case such Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section 3.13, and there shall have been one
or more losses which would have been covered by such policy, deposit to the
related Collection Account from its own funds the amount not otherwise payable
under the blanket policy because of such deductible clause. In connection with
its activities as administrator and servicer of the Mortgage Loans, each
Servicer agrees to prepare and present, on behalf of itself and the Trustee,
claims under any such blanket policy in a timely fashion in accordance with the
terms of such policy.
(b) Each Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of such Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac if it were the purchaser of the
Mortgage Loans, unless such Servicer has obtained a waiver of such requirements
from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Each Servicer shall also maintain a fidelity
bond in the form and amount that would meet the requirements of ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac, unless such Servicer has obtained a waiver of such requirements
from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Each Servicer shall provide the Trustee upon
request with copies of any such insurance policies and fidelity bond. Each
Servicer shall be deemed to have complied with this provision if an Affiliate of
the applicable Servicer has such errors and omissions and fidelity bond coverage
and, by the terms of such insurance policy or fidelity bond, the coverage
afforded thereunder extends to such Servicer. Any such errors and omissions
policy and fidelity bond shall by its terms not be cancelable without thirty
days' prior written notice to the Trustee. Each Servicer shall also cause each
Subservicer to maintain a policy of insurance covering errors and omissions and
a fidelity bond which would meet such requirements.
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption
Agreements. Each Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause, if any, applicable thereto; provided, however, that
neither Servicer shall be required to take such action if, in its sole business
judgment, such Servicer believes it is not in the best interests of the Trust
Fund and shall not exercise any such rights if prohibited by law from doing so.
If a Servicer reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause or if any of the other conditions set forth in the
proviso to the preceding sentence apply, such Servicer will enter into either
(i) an assumption and modification agreement from or with the person to whom
such property has been conveyed or is proposed to be conveyed, pursuant to which
such person becomes liable under the Mortgage Note and, to the extent permitted
by applicable state law, the Mortgagor remains liable thereon or (ii) a
substitution agreement as provided in the succeeding sentence. Each Servicer is
also authorized to enter into a substitution of liability agreement with such
person, pursuant to which the original Mortgagor is released from liability and
such person is substituted as the Mortgagor and becomes liable under the
Mortgage Note, provided, that no such substitution shall be effective unless
such person satisfies the underwriting criteria of such Servicer and such
substitution is in the best interests of the Certificateholders as determined by
such Servicer. In connection with any assumption, modification or substitution,
such Servicer shall apply such underwriting standards and follow such practices
and procedures as shall be normal and usual in its general mortgage servicing
activities and as it applies to other mortgage loans owned solely by it. Neither
Servicer shall take or enter into any assumption and modification agreement,
however, unless (to the extent practicable in the circumstances) it shall have
received confirmation, in writing, of the continued effectiveness of any
applicable hazard insurance policy, or a new policy meeting the requirements of
this Section is obtained. Any fee collected by a Servicer in respect of an
assumption or substitution of liability agreement will be retained by such
Servicer as additional servicing compensation. In connection with any such
assumption, no material term of the Mortgage Note (including but not limited to
the related Mortgage Rate and the amount of the Scheduled Payment) may be
amended or modified, except as otherwise required pursuant to the terms thereof.
Each Servicer shall notify the Trustee that any such substitution, modification
or assumption agreement has been completed by forwarding to the Trustee the
executed original of such substitution or assumption agreement, which document
shall be added to the related Mortgage File and shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, a Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which such Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. Each
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. Each Servicer shall use reasonable
efforts to realize upon such defaulted Mortgage Loans in such manner as will
maximize the receipt of principal and interest by such Trustee, taking into
account, among other things, the timing of foreclosure proceedings; provided,
however, with respect to any Second Lien Mortgage Loan for which the related
first lien mortgage loan is not included in the Trust Fund, if, after such
Mortgage Loan becomes 180 days or more delinquent, the applicable Servicer
determines that a significant net recovery is not possible through foreclosure,
such Mortgage Loan may be charged off and the Mortgage Loan will be treated as a
Liquidated Mortgage Loan giving rise to a Realized Loss. The foregoing is
subject to the provisions that the Servicers shall not be required to expend
their own funds in connection with foreclosure or other conversion, correction
of a default on a senior mortgage or restoration of any property unless it shall
determine in its sole discretion (i) that such foreclosure, correction or
restoration will increase the net Liquidation Proceeds of the related Mortgage
Loan to the Trustee, after reimbursement to itself for such expenses and (ii)
that such expenses will be recoverable by such Servicer through Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or Subsequent Recoveries
from the related Mortgaged Property, as contemplated in Section 3.11. Each
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 related property, as contemplated in Section
3.11.
The proceeds of any liquidation or REO Disposition, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or Subsequent Recoveries or any income from an
REO Property, will be applied in the following order of priority: first, to
reimburse the applicable Servicer or any Subservicer for any related
unreimbursed Servicing Advances, pursuant to Section 3.11 or 3.17; second, to
reimburse the applicable Servicer for any related ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances,
pursuant to Section 3.11; third, to accrued and unpaid interest on the Mortgage
Loan or REO Imputed Interest, at the Mortgage Rate, to the date of the
liquidation or REO Disposition, or to the Due Date prior to the Remittance Date
on which such amounts are to be distributed if not in connection with a
liquidation or REO Disposition; and fourth, as a recovery of principal of the
Mortgage Loan. If the amount of the recovery so allocated to interest is less
than a full recovery thereof, that amount will be allocated as follows: first,
to unpaid Servicing Fees; and second, as interest at the Mortgage Rate (net of
the Servicing Fee Rate). The portion of the recovery so allocated to unpaid
Servicing Fees shall be reimbursed to the applicable Servicer or any Subservicer
pursuant to Section 3.11 or 3.17. The portions of the recovery so allocated to
interest at the Mortgage Rate (net of the Servicing Fee Rate) and to principal
of the Mortgage Loan shall be applied as follows: first, to reimburse the
applicable Servicer or any Subservicer for any related unreimbursed Servicing
Advances in accordance with Section 3.11 or 3.17, and second, to the Trustee in
accordance with the provisions of Section 4.02, subject to paragraph (g) of
Section 3.17 with respect to certain excess recoveries from an REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event a Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee otherwise requests, such Servicer shall
cause an environmental inspection or review of such Mortgaged Property to be
conducted by a qualified inspector. Upon completion of the inspection, such
Servicer shall promptly provide the Trustee and the Depositor with a written
report of the environmental inspection.
In the event (a) the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes and (b) the applicable Servicer proceeds with foreclosure or acceptance
of a deed in lieu of foreclosure, such Servicer shall be reimbursed for all
reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean-up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse such Servicer, such Servicer shall be entitled
to be reimbursed from amounts in the related Collection Account pursuant to
Section 3.11. In the event the applicable Servicer determines not to proceed
with foreclosure or acceptance of a deed in lieu of foreclosure, such Servicer
shall be reimbursed from general collections for all Servicing Advances made
with respect to the related Mortgaged Property from the related Collection
Account pursuant to Section 3.11.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in full
of any Mortgage Loan, or the receipt by a Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, such
Servicer will, within five (5) Business Days of the payment in full, notify the
Trustee by a certification (which certification shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the related Collection Account
pursuant to Section 3.10 have been or will be so deposited) of a Servicing
Officer and shall request delivery to it of the Custodial File by submitting a
Request for Release, which Request for Release may be in an electronic format in
a form acceptable to the Trustee, to the Trustee. Upon receipt of such
certification and Request for Release, the Trustee shall promptly release the
related Custodial File to such Servicer within two (2) Business Days. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Collection Account unless such
expenses constitute Servicing Advances.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Insurance Policy relating to the Mortgage Loans, the Trustee shall, upon
request of such Servicer and delivery to the Trustee of a Request for Release,
which Request for Release may be in an electronic format in a form acceptable to
the Trustee, release the related Custodial File to such Servicer within three
(3) Business Days, and the Trustee shall, at the direction of such Servicer,
execute such documents as shall be necessary to the prosecution of any such
proceedings and such Servicer shall retain the Mortgage File in trust for the
benefit of the Trustee. Such Request for Release shall obligate the applicable
Servicer to return each and every document previously requested from the
Custodial File to the Trustee when the need therefor by such Servicer no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the related
Collection Account or the Mortgage File or such document has been delivered to
an attorney, or to a public trustee or other public official as required by law,
for purposes of initiating or pursuing legal action or other proceedings for the
foreclosure of the Mortgaged Property either judicially or non-judicially, and
such Servicer has delivered to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage File
or such document was delivered and the purpose or purposes of such delivery.
Upon receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
related Collection Account have been so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be released
by the Trustee to the applicable Servicer or its designee.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the applicable Servicer copies of any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity, or shall exercise and deliver to such Servicer a power of attorney
sufficient to authorize such Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) This Section shall apply only to REO Properties acquired for the account of
the Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
applicable Servicer shall cause the deed or certificate of sale shall be issued
to ▇▇▇▇▇ Fargo Bank, National Association (or, if applicable, the name of the
successor Trustee) as Trustee for Securitized Asset Backed Receivables LLC
2005-HE1 Mortgage Pass-Through Certificates, Series 2005-HE1, or to its nominee,
for the benefit of the Certificateholders.
(b) Each Servicer shall manage, conserve, protect and operate each
related REO Property for the Trustee solely for the purpose of its prompt
disposition and sale. Each Servicer, either itself or through an agent selected
by such Servicer, shall manage, conserve, protect and operate the REO Property
in the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. Each Servicer
shall attempt to sell the same (and may temporarily rent the same for a period
not greater than one year, except as otherwise provided below) on such terms and
conditions as such Servicer deems to be in the best interest of the Trustee on
behalf of the Certificateholders. The related Servicer shall notify the Trustee
from time to time as to the status of each REO Property.
(c) Each Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within one year after title has been taken to such REO Property, unless such
Servicer determines, and gives an appropriate notice to the Trustee to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property. If a period longer than one year is permitted under the foregoing
sentence and is necessary to sell any REO Property, the applicable Servicer
shall report monthly to the Trustee as to the progress being made in selling
such REO Property.
(d) Each Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
related Collection Account.
(e) Each Servicer shall deposit net of reimbursement to such
Servicer for any related outstanding Servicing Advances and unpaid Servicing
Fees provided in Section 3.11, or cause to be deposited in the related
Collection Account, in no event later than two Business Days after the deposit
of such funds into the clearing account, all revenues received with respect to
the related REO Property and shall withdraw therefrom funds necessary for the
proper operation, management and maintenance of the REO Property.
(f) Each Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess of
the unpaid principal balance of the related Mortgage Loan plus all unpaid REO
Imputed Interest thereon through the date of the REO Disposition shall be
retained by the applicable Servicer as additional servicing compensation.
(h) Each Servicer shall use its reasonable best efforts to sell, or
cause its Subservicer to sell, in accordance with Accepted Servicing Practices,
any REO Property serviced by such Servicer or Subservicer as soon as possible,
but in no event later than the conclusion of the third calendar year beginning
after the year of its acquisition by Pooling Tier REMIC-1 unless (i) such
Servicer applies for an extension of such period from the Internal Revenue
Service pursuant to the REMIC Provisions and Code Section 856(e)(3), in which
event such REO Property shall be sold within the applicable extension period, or
(ii) such Servicer obtains for the Trustee an Opinion of Counsel, addressed to
the Depositor, the Trustee and such Servicer, to the effect that the holding by
Pooling Tier REMIC-1 of such REO Property subsequent to such period will not
result in the imposition of taxes on "prohibited transactions" as defined in
Section 860F of the Code or cause any Trust REMIC to fail to qualify as a REMIC
under the REMIC Provisions or comparable provisions of relevant state laws at
any time. Each Servicer shall manage, conserve, protect and operate each REO
Property serviced by such Servicer for the Trustee solely for the purpose of its
prompt disposition and sale in a manner which does not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) or result in the receipt by the Pooling Tier REMIC-1 of any "income
from non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the
Code or any "net income from foreclosure property" which is subject to taxation
under Section 860G(a)(1) of the Code. Pursuant to its efforts to sell such REO
Property, the applicable Servicer shall either itself or through an agent
selected by such 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 Trustee on behalf of the Certificateholders, rent the same, or
any part thereof, as such Servicer deems to be in the best interest of the
Trustee on behalf of the Certificateholders for the period prior to the sale of
such REO Property; provided, however, that any rent received or accrued with
respect to such REO Property qualifies as "rents from real property" as defined
in Section 856(d) of the Code.
Section 3.18 Notification of Adjustments. With respect to each
Adjustable Rate Mortgage Loan, the applicable Servicer shall adjust the Mortgage
Rate on the related Adjustment Date and shall adjust the Scheduled Payment on
the related mortgage payment adjustment date, if applicable, in compliance with
the requirements of applicable law and the related Mortgage and Mortgage Note.
In the event that an Index becomes unavailable or otherwise unpublished, the
applicable Servicer shall select a comparable alternative index over which it
has no direct control and which is readily verifiable. Each Servicer shall
execute and deliver any and all necessary notices required under applicable law
and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Rate and Scheduled Payment adjustments. Each Servicer shall promptly, upon
written request therefor, deliver to the Trustee such notifications and any
additional applicable data regarding such adjustments and the methods used to
calculate and implement such adjustments. Upon the discovery by a Servicer or
the receipt of notice from the Trustee that a Servicer has failed to adjust a
Mortgage Rate or Scheduled Payment in accordance with the terms of the related
Mortgage Note, such Servicer shall deposit in the related Collection Account
from its own funds the amount of any interest loss caused as such interest loss
occurs.
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. In the event a Servicer reasonably believes that
compliance with this Section will make the Mortgage Loans legal for investment
by federally insured savings and loan associations, such Servicer shall provide,
or cause the Subservicer to provide, to the Depositor, the Trustee, the OTS or
the FDIC and the examiners and supervisory agents thereof, access to the
documentation regarding the Mortgage Loans in its possession required by
applicable regulations of the OTS. Such access shall be afforded without charge,
but only upon reasonable and prior written request and during normal business
hours at the offices of the applicable Servicer or, if applicable, any
Subservicer. Nothing in this Section shall derogate from the obligation of any
such party to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of any such party to provide access as
provided in this Section as a result of such obligation shall not constitute a
breach of this Section.
Section 3.20 Documents, Records and Funds in Possession of the
Servicers to Be Held for the Trustee. Each Servicer shall account fully to the
Trustee for any funds received by such Servicer or which otherwise are collected
by such Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan serviced by such Servicer. All Mortgage
Files and funds collected or held by, or under the control of, a 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 its Collection Account, shall be held by such Servicer
for and on behalf of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement.
Each Servicer also agrees that it shall not create, incur or subject any
Mortgage File or any funds that are deposited in any Collection Account, the
Distribution 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
Certificateholders, 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 such Servicer shall
be entitled to set off against and deduct from any such funds any amounts that
are properly due and payable to such Servicer under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, each Servicer shall, with respect to each Mortgage Loan
serviced by it, be entitled to retain from deposits to its Collection Account
and from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
Subsequent Recoveries and REO Proceeds related to such Mortgage Loan, the
Servicing Fee with respect to each Mortgage Loan (less any portion of such
amounts retained by any Subservicer). In addition, each Servicer shall be
entitled to recover unpaid Servicing Fees out of related Late Collections and as
otherwise permitted under Section 3.11. The right to receive the applicable
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of a Servicer's responsibilities and obligations under
this Agreement; provided, however, that each Servicer may pay from the Servicing
Fee any amounts due to a Subservicer pursuant to a Subservicing Agreement
entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption or
modification fees, late payment charges, net Prepayment Interest Excesses (to
the extent not required to offset Prepayment Interest Shortfalls), NSF fees,
reconveyance fees and other similar fees and charges (other than Prepayment
Charges) shall be retained by a Servicer only to the extent such fees or charges
are received by such Servicer. Each Servicer shall also be entitled pursuant to
Section 3.11(a)(iv) to withdraw from the Collection Account, as additional
servicing compensation, interest or other income earned on deposits therein.
Each Servicer shall also be entitled as additional servicing compensation, to
interest or other income earned on deposits in the Escrow Account (to the extent
permitted by law and the related Mortgage Loan documents) in accordance with
Section 3.12. HomEq shall also be entitled to retain net Prepayment Interest
Excesses (to the extent not required to offset Prepayment Interest Shortfalls),
but only to the extent such amounts are received by HomEq.
(c) Each Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by such Servicer), and shall not be entitled to reimbursement
therefor from the Trust Fund except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. Each Servicer will
deliver or cause to be delivered to the Depositor, the Rating Agencies, the
Class A-1B Certificate Insurer (upon request) and the Trustee on or before March
15th of each calendar year, commencing in 2006, an Officer's Certificate
stating, as to each signatory thereof, that (i) a review of the activities of
such Servicer during the preceding calendar year and of performance under this
Agreement or a similar agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, such
Servicer has fulfilled in all material respects all of its obligations under
this Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation in any material respect, specifying each such
default known to such officers and the nature and status thereof.
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. Not later than March 15th of each calendar year
commencing in 2006, each Servicer, at its expense, shall cause a nationally
recognized firm of independent certified public accountants to furnish to the
Depositor, the Rating Agencies, the Class A-1B Certificate Insurer (upon
request) and the Trustee a report stating that (i) it has obtained a letter of
representation regarding certain matters from the management of such Servicer
which includes an assertion that such Servicer has complied with certain minimum
residential mortgage loan servicing standards, identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of residential mortgage
loans during the most recently completed calendar year and (ii) on the basis of
an examination conducted by such firm in accordance with standards established
by the American Institute of Certified Public Accountants, such representation
is fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by Subservicers, upon comparable reports of firms of independent certified
public accountants rendered on the basis of examinations conducted in accordance
with the same standards (rendered within one year of such report) with respect
to those Subservicers.
Section 3.24 Trustee to Act as Servicer. (a) Subject to Section
7.02, in the event that any Servicer shall for any reason no longer be a
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 such
Servicer hereunder arising thereafter, except that the Trustee shall not be (i)
liable for losses of such predecessor Servicer pursuant to Section 3.10 or any
acts or omissions of such predecessor Servicer hereunder, (ii) obligated to
effectuate repurchases or substitutions of Mortgage Loans hereunder, including
but not limited to repurchases or substitutions pursuant to Section 2.03, (iii)
responsible for expenses of such predecessor Servicer pursuant to Section 2.03
or (iv) deemed to have made any representations and warranties of such Servicer
hereunder. Any such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by a Servicer shall
contain a provision giving the successor Servicer the option to terminate such
agreement in the event a successor Servicer is appointed.
(c) If any Servicer shall for any reason no longer be a Servicer
(including by reason of any Event of Default), the Trustee (or any other
successor Servicer) may, at its option, succeed to any rights and obligations of
such Servicer under any Subservicing Agreement in accordance with the terms
thereof; provided, that the Trustee (or any other successor Servicer) shall not
incur any liability or have any obligations in its capacity as successor
Servicer under a Subservicing Agreement arising prior to the date of such
succession unless it expressly elects to succeed to the rights and obligations
of such Servicer thereunder; and such Servicer shall not thereby be relieved of
any liability or obligations under the Subservicing Agreement arising prior to
the date of such succession.
(d) The applicable Servicer shall, upon request of the Trustee, but
at the expense of such Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement (if any) to which it is party
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held by it, and otherwise use its best efforts to effect
the orderly and efficient transfer of such Subservicing Agreement to the
assuming party.
Section 3.25 Compensating Interest. Each Servicer shall remit to the
Trustee on each Remittance Date for deposit in the Distribution Account an
amount from its own funds equal to the Compensating Interest payable by such
Servicer for the related Distribution Date; provided, however, that HomEq shall
not be responsible for making Compensating Interest payments for Principal
Prepayments in Full occurring from the Cut-off Date through November 15, 2005.
Section 3.26 Credit Reporting; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. (a) With
respect to each Mortgage Loan, each Servicer agrees to fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on the
primary borrower of such Mortgage Loan to Equifax, Experian and TransUnion
Credit Information Company (three of the credit repositories) on a monthly
basis.
(b) Each Servicer shall comply with Title V of the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 and all applicable regulations promulgated
thereunder, relating to the Mortgage Loans serviced by it and the related
borrowers and shall provide all required notices thereunder.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICERS
Section 4.01 Advances. (a) The amount of P&I Advances to be made by
each Servicer for any Remittance Date shall equal, subject to Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with each interest
portion thereof net of the related Servicing Fee), due during the Due Period
immediately preceding such Remittance Date in respect of the Mortgage Loans
serviced by such Servicer, which Scheduled Payments were not received as of the
close of business on the related Determination Date, plus (ii) with respect to
each REO Property serviced by such Servicer, which REO Property was acquired
during or prior to the related Prepayment Period and as to which such REO
Property an REO Disposition did not occur during the related Prepayment Period,
an amount equal to the excess, if any, of the Scheduled Payments (with each
interest portion thereof net of the related Servicing Fee) that would have been
due on the related Due Date in respect of the related Mortgage Loans, over the
net income from such REO Property transferred to the related Collection Account
for distribution on such Remittance Date. With respect to any balloon payment on
a Balloon Mortgage Loan, the applicable Servicer shall only be obligated to
advance the assumed monthly payment that would have been due on the related Due
Date based on the original principal amortization schedule for such Balloon
Mortgage Loan.
(b) On each Remittance Date, each Servicer shall remit in
immediately available funds to the Trustee an amount equal to the aggregate
amount of P&I Advances, if any, to be made in respect of the Mortgage Loans and
REO Properties serviced by such Servicer for the related Remittance Date either
(i) from its own funds or (ii) from the related Collection Account, to the
extent of funds held therein for future distribution (in which case, it will
cause to be made an appropriate entry in the records of the related Collection
Account that Amounts Held for Future Distribution have been, as permitted by
this Section 4.01, used by such Servicer in discharge of any such P&I Advance)
or (iii) in the form of any combination of (i) and (ii) aggregating the total
amount of P&I Advances to be made by such Servicer with respect to such Mortgage
Loans and REO Properties. Any Amounts Held for Future Distribution and so used
shall be appropriately reflected in such Servicer's records and replaced by such
Servicer by deposit in the related Collection Account on or before any future
Remittance Date to the extent required.
(c) The obligation of each Servicer to make such P&I Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
paragraph (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith or
the removal thereof from coverage under this Agreement, except as otherwise
provided in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I Advance
or Servicing Advance shall be required to be made hereunder by any Servicer if
such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. The
determination by any Servicer that it has made a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance or that any proposed P&I Advance or Servicing
Advance, if made, would constitute a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officer's Certificate of such Servicer delivered to the Trustee. In addition,
the applicable Servicer shall not be required to advance any Relief Act Interest
Shortfalls or any Prepayment Interest Shortfalls in excess of its obligations to
pay Compensating Interest pursuant to Section 3.25.
(e) Except as otherwise provided herein, the applicable Servicer
shall be entitled to reimbursement pursuant to Section 3.11 for Servicing
Advances from recoveries from the related Mortgagor or from all Liquidation
Proceeds and other payments or recoveries (including Insurance Proceeds,
Condemnation Proceeds and Subsequent Recoveries) with respect to the related
Mortgage Loan.
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Trustee will make the disbursements and transfers from amounts then on
deposit in the Distribution Account in the following order of priority and to
the extent of the Available Funds remaining:
(i) to the holders of each Class of LIBOR Certificates, to the Class
A-1B Certificate Insurer and to the Swap Account in the following order of
priority:
(A) to the Swap Account, the sum of (x) all Net Swap Payments
and (y) any Swap Termination Payment owed to the Swap Provider other
than a Defaulted Swap Termination Payment;
(B) concurrently,
(1) from the Interest Remittance Amount for the Group I
Mortgage Loans in the following order of priority:
(x) to the Class A-1B Certificate Insurer, any
accrued and unpaid Premium Amount payable to the
Class A-1B Certificate Insurer for such
Distribution Date;
(y) pro rata (based on the accrued and unpaid
interest distributable under this clause
(i)(B)(1)(y) to the Class A-1A and Class A-1B
Certificates) to the Class A-1A and Class A-1B
Certificates, the related Accrued Certificate
Interest Distribution Amounts and Unpaid Interest
Amounts for the Class A-1A and Class A-1B
Certificates; and
(z) to the Class A-1B Certificate Insurer,
reimbursements for unreimbursed draws under the
Class A-1B Certificate Insurance Policy for
interest payments on the Class A-1B Certificates,
as well as all other amounts (other than
reimbursements for unreimbursed draws under the
Class A-1B Certificate Insurance Policy for
principal payments on the Class A-1B Certificates)
owed to the Class A-1B Certificate Insurer under
this Agreement and the Insurance Agreement;
(2) from the Interest Remittance Amount for the Group II
Mortgage Loans, to the Class A-2 Certificates, the
related Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts for the Class A-2
Certificates;
(3) from the Interest Remittance Amount for the Group
III Mortgage Loans, pro rata (based on the accrued and
unpaid interest distributable under this clause
(i)(B)(3) to the Class A-3A, Class A-3B and Class A-3C
Certificates) to the Class A-3A, Class A-3B and Class
A-3C Certificates, the related Accrued Certificate
Interest Distribution Amounts and Unpaid Interest
Amounts for the Class A-3A, Class A-3B and Class A-3C
Certificates;
provided, that, if the Interest Remittance Amount for the Group I
Mortgage Loans, Group II Mortgage Loans or Group III Mortgage Loans
is insufficient to make the related payments set forth in Section
4.02(a)(i)(B)(1), Section 4.02(a)(i)(B)(2) or Section
4.02(a)(i)(B)(3) above, any remaining Interest Remittance Amount
shall be allocated according to Sections 4.02(a)(iv), 4.02(a)(v) and
4.02(a)(vi);
(C) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(D) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(E) from any remaining Interest Remittance Amounts, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(F) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(G) from any remaining Interest Remittance Amounts, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(H) from any remaining Interest Remittance Amounts, to the
Class B-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(I) from any remaining Interest Remittance Amounts, to the
Class B-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(ii) (A) on each Distribution Date (1) before the Stepdown Date or
(2) with respect to which a Trigger Event is in effect, to the holders of
the related Class or Classes of LIBOR Certificates then entitled to
distributions of principal and to the Class A-1B Certificate Insurer as
set forth below, from amounts remaining on deposit in the Distribution
Account after making distributions pursuant to clause (i) above, an amount
equal to the Principal Distribution Amount in the following order of
priority:
(a) to the Class A Certificates, allocated as described in
Section 4.02(c), until the respective Class Certificate Balances
thereof are reduced to zero;
(b) to the Class A-1B Certificate Insurer, reimbursements for
unreimbursed draws under the Class A-1B Certificate Insurance Policy
for principal payments on the Class A-1B Certificates; and
(c) sequentially to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
B-1, Class B-2, Class B-3 and Class B-4 Certificates, in that order,
until the respective Class Certificate Balances are reduced to zero;
(B) on each Distribution Date (1) on and after the Stepdown
Date and (2) as long as a Trigger Event is not in effect, to the holders
of the related Class or Classes of LIBOR Certificates then entitled to
distribution of principal and to the Class A-1B Certificate Insurer, from
amounts remaining on deposit in the Distribution Account after making
distributions pursuant to clause (i) above, an amount equal to, in the
aggregate, the Principal Distribution Amount in the following amounts and
order of priority:
(a) to the Class A Certificates, the lesser of (x) the
Principal Distribution Amount and (y) the Class A Principal
Distribution Amount, allocated as described in Section 4.02(c),
until the respective Class Certificate Balances thereof are reduced
to zero;
(b) to the Class A-1B Certificate Insurer, the lesser of (x)
the excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause (ii)(B)(a)
above and (y) reimbursements for unreimbursed draws under the Class
A-1B Certificate Insurance Policy for principal payments on the
Class A-1B Certificates;
(c) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above to the Class A-1B Certificate Insurer in clause (ii)(B)(b)
above and (y) the Class M-1 Principal Distribution Amount, until the
Class Certificate Balance thereof has been reduced to zero;
(d) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class A-1B Certificate Insurer in clause (ii)(B)(b)
above and to the Class M-1 Certificates in clause (ii)(B)(c) above
and (y) the Class M-2 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(e) to the Class M-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class A-1B Certificate Insurer in clause (ii)(B)(b)
above, to the Class M-1 Certificates in clause (ii)(B)(c) above and
to the Class M-2 Certificates in clause (ii)(B)(d) above and (y) the
Class M-3 Principal Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero;
(f) to the Class B-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class A-1B Certificate Insurer in clause (ii)(B)(b)
above, to the Class M-1 Certificates in clause (ii)(B)(c) above, to
the Class M-2 Certificates in clause (ii)(B)(d) above and to the
Class M-3 Certificates in clause (ii)(B)(e) above and (y) the Class
B-1 Principal Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero;
(g) to the Class B-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class A-1B Certificate Insurer in clause (ii)(B)(b)
above, to the Class M-1 Certificates in clause (ii)(B)(c) above, to
the Class M-2 Certificates in clause (ii)(B)(d) above, to the Class
M-3 Certificates in clause (ii)(B)(e) above and to the Class B-1
Certificates in clause (ii)(B)(f) above and (y) the Class B-2
Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(h) to the Class B-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class A-1B Certificate Insurer in clause (ii)(B)(b)
above, to the Class M-1 Certificates in clause (ii)(B)(c) above, to
the Class M-2 Certificates in clause (ii)(B)(d) above, to the Class
M-3 Certificates in clause (ii)(B)(e) above, to the Class B-1
Certificates in clause (ii)(B)(f) above and to the Class B-2
Certificates in clause (ii)(B)(g) above and (y) the Class B-3
Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero; and
(i) to the Class B-4 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificateholders in clause (ii)(B)(a)
above, to the Class A-1B Certificate Insurer in clause (ii)(B)(b)
above, to the Class M-1 Certificates in clause (ii)(B)(c) above, to
the Class M-2 Certificates in clause (ii)(B)(d) above, to the Class
M-3 Certificates in clause (ii)(B)(e) above, to the Class B-1
Certificates in clause (ii)(B)(f) above, to the Class B-2
Certificates in clause (ii)(B)(g) above and to the Class B-3
Certificates in clause (ii)(B)(h) above and (y) the Class B-4
Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above, plus as specifically indicated below, from amounts on
deposit in the Excess Reserve Fund Account, shall be distributed in the
following order of priority:
(A) to the Class A-1B Certificate Insurer, reimbursements for
unreimbursed draws under the Class A-1B Certificate Insurance Policy
for interest or principal payments on the Class A-1B Certificates as
well as all other amounts owed to the Class A-1B Certificate Insurer
under this Agreement and the Insurance Agreement;
(B) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for such Class;
(C) to the holders of the Class M-1 Certificates, any Unpaid
Realized Loss Amount for such Class;
(D) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for such Class;
(E) to the holders of the Class M-2 Certificates, any Unpaid
Realized Loss Amount for such Class;
(F) to the holders of the Class M-3 Certificates, any Unpaid
Interest Amount for such Class;
(G) to the holders of the Class M-3 Certificates, any Unpaid
Realized Loss Amount for such Class;
(H) to the holders of the Class B-1 Certificates, any Unpaid
Interest Amount for such Class;
(I) to the holders of the Class B-1 Certificates, any Unpaid
Realized Loss Amount for such Class;
(J) to the holders of the Class B-2 Certificates, any Unpaid
Interest Amount for such Class;
(K) to the holders of the Class B-2 Certificates, any Unpaid
Realized Loss Amount for such Class;
(L) to the holders of the Class B-3 Certificates, any Unpaid
Interest Amount for such Class;
(M) to the holders of the Class B-3 Certificates, any Unpaid
Realized Loss Amount for such Class;
(N) to the holders of the Class B-4 Certificates, any Unpaid
Interest Amount for such Class;
(O) to the holders of the Class B-4 Certificates, any Unpaid
Realized Loss Amount for such Class;
(P) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment for such Distribution Date;
(Q) concurrently, (i) from any Interest Rate Cap Payments with
respect to the Class M Cap Agreement on deposit in the Excess
Reserve Fund Account with respect to such Distribution Date, an
amount equal to any unpaid Basis Risk Carry Forward Amount with
respect to the Class M Certificates for such Distribution Date to
the Class M Certificates, allocated (a) first, among the Class M-1
Certificates, Class M-2 Certificates and Class M-3 Certificates, pro
rata, based upon their respective Class Certificate Balances (only
with respect to those Class M Certificates with an outstanding Basis
Risk Carry Forward Amount) and (b) second, any remaining amounts to
the Class M-1 Certificates, Class M-2 Certificates and Class M-3
Certificates, pro rata, based on any such Basis Risk Carry Forward
Amounts remaining unpaid, to reimburse such Basis Risk Carry Forward
Amounts remaining unpaid, and (ii) from any Interest Rate Cap
Payments with respect to the Class B Cap Agreement on deposit in the
Excess Reserve Fund Account with respect to such Distribution Date,
an amount equal to any unpaid Basis Risk Carry Forward Amount with
respect to the Class B Certificates for such Distribution Date to
the Class B Certificates, allocated (a) first, among the Class B-1
Certificates, Class B-2 Certificates, Class B-3 Certificates and
Class B-4 Certificates, pro rata, based upon their respective Class
Certificate Balances (only with respect to those Class B
Certificates with an outstanding Basis Risk Carry Forward Amount)
and (b) second, any remaining amounts to the Class B-1 Certificates,
Class B-2 Certificates, Class B-3 Certificates and Class B-4
Certificates, pro rata, based on any such Basis Risk Carry Forward
Amounts remaining unpaid, to reimburse such Basis Risk Carry Forward
Amounts remaining unpaid;
(R) from funds on deposit in the Excess Reserve Fund Account
(not including any Interest Rate Cap Payments included in such
account) with respect to such Distribution Date, an amount equal to
any remaining unpaid Basis Risk Carry Forward Amount with respect to
any LIBOR Certificate for such Distribution Date to the LIBOR
Certificates in the same order and priority in which the Accrued
Certificate Interest Distribution Amount is allocated among such
Classes of Certificates, except that the Class A Certificates shall
be paid (a) first, among the Class A-1A Certificates, Class A-1B
Certificates, Class A-2, Class A-3A Certificates, Class A-3B and
Class A-3C Certificates, pro rata, based upon their respective Class
Certificate Balances (only with respect to those Class A
Certificates with an outstanding Basis Risk Carry Forward Amount)
and (b) second, any remaining amounts to the Class A-1A
Certificates, Class A-1B Certificates, Class A-2, Class A-3A, Class
A-3B Certificates and Class A-3C Certificates, pro rata, based on
any such Basis Risk Carry Forward Amounts remaining unpaid;
(S) to the Swap Account, the amount of any Defaulted Swap
Termination Payment owed to the Swap Provider;
(T) to the holders of the Class X Certificates, the remainder
of the Class X Distributable Amount not distributed pursuant to
Sections 4.02(a)(iii)(A)-(R) and any remaining Interest Rate Cap
Payments in the Excess Reserve Fund Account; and
(U) to the holders of the Class R Certificates, any remaining
amount;
(iv) solely for purposes of interest allocation calculations, the
Interest Remittance Amounts attributable to Group I Mortgage Loans will be
allocated:
(a) first, in the following order of priority:
(x) to the Class A-1B Certificate Insurer pursuant to
Section 4.02(a)(i)(B)(1)(x);
(y) concurrently to the Class A-1A and Class A-1B
Certificates, pro rata (based on the amounts
distributable or payable under Section 4.02(a)(i)(B)(1)
to the Class A-1A and Class A-1B Certificates), the
Accrued Certificate Interest Distribution Amount and
Unpaid Interest Amount for the Class A-1A and Class A-1B
Certificates, respectively; and
(z) to the Class A-1B Certificate Insurer pursuant to
Section 4.02(a)(i)(B)(1)(z);
(b) second, to the Group II Class A Certificates and to the
Group III Class A Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amounts for the Group II
Class A Certificates and the Group III Class A Certificates,
respectively, to the extent not otherwise previously paid from
Interest Remittance Amounts attributable to Group II Mortgage Loans
or the Group III Mortgage Loans, as applicable, allocated pro rata
based on the amount of such shortfalls;
(v) solely for purposes of interest allocation calculations, the
Interest Remittance Amounts attributable to Group II Mortgage Loans will
be allocated:
(a) first, to the Class A-2 Certificates, the Accrued
Certificate Interest Distribution Amount and Unpaid Interest Amount
for the Class A-2 Certificates; and
(b) second, to the Group I Class A Certificates, to the Class
A-1B Certificate Insurer and to the Group III Class A Certificates,
the Accrued Certificate Interest Distribution Amount and any Unpaid
Interest Amounts for the Group I Class A Certificates and the Group
III Class A Certificates, respectively, and any amounts due and
payable to the Class A-1B Certificate Insurer, to the extent not
otherwise previously paid from Interest Remittance Amounts
attributable to Group I Mortgage Loans or the Group III Mortgage
Loans, as applicable, allocated pro rata based on the amount of such
shortfalls;
(vi) solely for purposes of interest allocation calculations, the
Interest Remittance Amounts attributable to Group III Mortgage Loans will
be allocated:
(a) first, concurrently, to the Class A-3A, Class A-3B and
Class A-3C Certificates, pro rata (based on the amounts
distributable or payable under Section 4.02(a)(i)(B)(1) to the Class
A-3A, Class A-3B and Class A-3C Certificates), the Accrued
Certificate Interest Distribution Amount and Unpaid Interest Amount
for the Class A-3A, Class A-3B and Class A-3C Certificates,
respectively; and
(b) second, to the Group I Class A Certificates, the Class
A-1B Certificate Insurer and the Group II Class A Certificates, the
Accrued Certificate Interest Distribution Amount and any Unpaid
Interest Amount for each such Class and any amounts due and payable
to the Class A-1B Certificate Insurer, to the extent not otherwise
previously paid from Interest Remittance Amounts attributable to
Group I Mortgage Loans or the Group II Mortgage Loans, as
applicable, allocated pro rata based on the amount of such
shortfalls.
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does not receive in full the related
Accrued Certificate Interest Distribution Amount or the related Unpaid Interest
Amounts, if any, then that unpaid amount will be recoverable by the holders of
that class, with interest thereon, on future Distribution Dates, as Unpaid
Interest Amounts, subject to the priorities described above.
(b) On each Distribution Date, prior to any distributions on any
other Class of Certificates, all amounts representing Prepayment Charges from
the Mortgage Loans received during the related Prepayment Period shall be
distributed by the Trustee to the holders of the Class P Certificates.
(c) All principal distributions to the holders of the Class A
Certificates on any Distribution Date shall be allocated concurrently between
the Group I Class A Certificates, the Group II Class A Certificates and Group
III Class A Certificates, based on the Class A Principal Allocation Percentage
for the Group I Class A Certificates, Group II Class A Certificates, and the
Group III Class A Certificates, as applicable, for such Distribution Date;
provided, however, that, if the Class Certificate Balances of the Class A
Certificates in any Class A Certificate Group are reduced to zero, then the
remaining amount of principal distributions distributable to the Class A
Certificates on such Distribution Date, and the amount of such principal
distributions distributable on all subsequent Distribution Dates, shall be
distributed to the holders of the Class A Certificates in the other Class A
Certificate Groups (and the Class A-1B Certificate Insurer in the case of the
Group I Class A Certificates) remaining outstanding, pro rata based on the Class
Certificate Balances of the Class A Certificates in such other Class A
Certificate Groups remaining outstanding after giving effect to principal
allocations based on their Class A Principal Allocation Percentage, until their
Class Certificate Balances have been reduced to zero; provided, further however,
that principal relating to the Group I Mortgage Loans will be distributed to the
Class A-1B Certificate Insurer for reimbursements for unreimbursed draws under
the Class A-1B Certificate Insurance Policy for principal payments on the Class
A-1B Certificates prior to distributing such principal to the Group II Class A
Certificates or the Group III Class A Certificates. Any distributions of
principal to the Group I Class A Certificates shall be made first from Available
Funds relating to the Group I Mortgage Loans, any distributions of principal to
the Group II Class A Certificates shall be made first from Available Funds
relating to the Group II Mortgage Loans, and any distributions of principal to
the Group III Class A Certificates shall be made first from Available Funds
relating to the Group III Mortgage Loans.
Any principal allocated to the Group I Class A Certificates shall be
distributed pro rata (based on their respective Class Certificate Balances);
provided, however, that if a Group I Sequential Trigger Event is in effect, any
principal distributions allocated to the Group I Class A Certificates shall be
distributed first to the Class A-1A Certificates, until their Class Certificate
Balance has been reduced to zero and then to the Class A-1B Certificates, until
their Class Certificate Balance has been reduced to zero.
Any principal allocated to the Group III Class A Certificates shall
be distributed first to the Class A-3A Certificates, until their Class
Certificate Balance has been reduced to zero, then to the Class A-3B
Certificates, until their Class Certificate Balance has been reduced to zero and
then to the Class A-3C Certificates, until their Class Certificate Balance has
been reduced to zero; provided, however, that on and after the Distribution Date
on which the aggregate Class Certificate Balances of the Subordinated
Certificates and principal balance of the Class X Certificates have been reduced
to zero, any principal distributions allocated to the Group III Class A
Certificates shall be allocated pro rata among the Classes of Group III Class A
Certificates, based on their respective Class Certificate Balances, and
distributed concurrently to the Class A-3A, Class A-3B and Class A-3C
Certificates.
(d) On any Distribution Date, any Relief Act Shortfalls and Net
Prepayment Interest Shortfalls for such Distribution Date shall be allocated by
the Trustee as a reduction in the following order:
(1) First, to the amount of interest payable to the Class X
Certificates; and
(2) Second, pro rata, as a reduction of the Accrued Certificate
Interest Distribution Amount for the Class A, Class M and Class B Certificates,
based on the amount of interest to which such Classes would otherwise be
entitled.
Section 4.03 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicers, the Depositor, the Class A-1B Certificate
Insurer and each Rating Agency a statement, based on information provided by the
Servicers, setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments, Liquidation
Proceeds and Subsequent Recoveries;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amounts included in such distribution and any remaining Unpaid Interest
Amounts after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis Risk
Carry Forward Amount covered by withdrawals from the Excess Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account or the Swap Agreement;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the Expense Fees (in the aggregate and separately
stated) paid to or retained by the Servicers or Subservicer or the Trustee
(with respect to the Subservicers, in the aggregate) with respect to such
Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii) the amount of P&I Advances included in the distribution on
such Distribution Date and the aggregate amount of P&I Advances reported
by the Servicers as outstanding as of the close of business on the
Determination Date immediately preceding such Distribution Date;
(ix) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month. With respect to this Section 4.03(a)(ix) and
Section 4.03(d)(vi), "delinquent" with respect to any Mortgage Loan, means
any Monthly Payment due on a Due Date that is not made by the close of
business on the next scheduled Due Date for that Mortgage Loan;
(x) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(xi) with respect to Mortgage Loans that became REO Properties
during the preceding calendar month, the number and the aggregate Stated
Principal Balance of such Mortgage Loans as of the close of business on
the Determination Date preceding such Distribution Date and the date of
acquisition thereof;
(xii) the total number and aggregate principal balance of any REO
Properties (and market value, upon request) as of the close of business on
the Determination Date preceding such Distribution Date;
(xiii) whether a Trigger Event has occurred and is continuing
(including the calculation thereof and the aggregate outstanding balance
of all 60+ Day Delinquent Mortgage Loans);
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xv) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the Subordinated Amount and Specified Subordinated Amount;
(xviii) Prepayment Charges collected by the Servicers;
(xix) the Interest Rate Cap Payments (stated separately), if any,
for such Distribution Date;
(xx) the Cumulative Loss Percentage;
(xxi) the amount of any Net Swap Payments, Net Swap Receipts, Swap
Termination Payments or Defaulted Swap Termination Payments;
(xxii) the calculations of LIBOR and Swap LIBOR; and
(xxiii) the amount of any payment of principal of or interest on the
Class A-1B Certificates.
(b) The Trustee's responsibility for providing the above statement
to the Certificateholders, each Rating Agency, the Servicers, the Class A-1B
Certificate Insurer and the Depositor is limited to the availability, timeliness
and accuracy of the information derived from the Servicers. The Trustee will
provide the above statement via the Trustee's internet website. The Trustee's
website will initially be located at ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and assistance in
using the website can be obtained by calling the Trustee's customer service desk
at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above distribution method
are entitled to have a paper copy mailed to them via first class mail by calling
the customer service desk and indicating such. The Trustee shall have the right
to change the manner in which the above statement is distributed in order to
make such distribution more convenient and/or more accessible, and the Trustee
shall provide timely and adequate notification to the Certificateholders, the
Class A-1B Certificate Insurer and the parties hereto regarding any such
changes. A paper copy of the statement will also be made available upon request.
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person who at any
time during the calendar year was a Certificateholder and to the Class A-1B
Certificate Insurer (upon written request), a statement containing the
information set forth in clauses (a)(i), (a)(ii) and (a)(vi) of this Section
4.03 aggregated for such calendar year or applicable portion thereof during
which such Person was a Certificateholder. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall have previously been provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Not later than the third Business Day after the end of the
Prepayment Period, each Servicer shall furnish to the Trustee a monthly
remittance advice statement (in a format mutually agreed upon by each Servicer
and the Trustee) containing such information as shall be reasonably requested by
the Trustee to enable the Trustee to provide the reports required by Section
4.03(a) as to the accompanying remittance and the period ending on the close of
business on the last day of the related Prepayment Period (the "Servicer
Remittance Report").
Each Servicer shall furnish to the Trustee an individual loan
accounting report, as of the related Determination Date, to document Mortgage
Loan payment activity on an individual Mortgage Loan basis. With respect to each
month, the corresponding individual loan accounting report (in electronic
format) shall be received by the Trustee no later than the third Business Day
after the end of the related Prepayment Period, which report shall contain
(without limitation) the following:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Charges, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest;
(iii) the amount of servicing compensation received by such Servicer
during the current distribution period;
(iv) the individual and aggregate Stated Principal Balance of the
Mortgage Loans serviced by such Servicer;
(v) the aggregate of any expenses reimbursed to such Servicer during
the current distribution period pursuant to Section 3.11; and
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans serviced by such Servicer (a) delinquent (1) 31 to 60 days,
(2) 61 to 90 days, (3) 91 days or more; (b) as to which foreclosure has
commenced; and (c) as to which REO Property has been acquired.
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Trustee in accordance with the definition of
LIBOR. Until all of the LIBOR Certificates are paid in full, the Trustee will at
all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each LIBOR Determination Date. The Trustee initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Trustee should terminate its
appointment as Reference Bank, the Trustee shall promptly appoint or cause to be
appointed another Reference Bank (after consultation with the Depositor). The
Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
(i) The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Trustee on each
LIBOR Determination Date so long as the LIBOR Certificates are outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Trustee shall not have any
liability or responsibility to any Person for its inability, following a
good-faith reasonable effort, to obtain quotations from the Reference
Banks or to determine the arithmetic mean referred to in the definition of
LIBOR, all as provided for in this Section 4.04 and the definition of
LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be
final, conclusive and binding upon each Holder of a Certificate and the
Trustee.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated by the Trustee to the most
junior Class of Subordinated Certificates then outstanding in reduction of the
Class Certificate Balance thereof.
Section 4.06 The Class A-1B Certificate Insurance Policy. (a) Not
later than two (2) Business Days prior to each Distribution Date, the Trustee
shall determine with respect to such Distribution Date, the amount to be on
deposit in the Distribution Account on such Distribution Date to the extent of
Available Funds, excluding the amount of any Class A-1B Certificate Insured
Payment.
(b) If on any Distribution Date there is a Class A-1B Deficiency
Amount, the Trustee shall complete a notice in the form of Exhibit A to the
Class A-1B Certificate Insurance Policy and submit such notice to the Class A-1B
Certificate Insurer no later than 12:00 noon New York City time on the second
Business Day preceding such Distribution Date as a claim for such Class A-1B
Certificate Insured Payment.
(c) The Trustee shall establish a separate Eligible Account for the
benefit of Holders of the Class A-1B Certificates and the Class A-1B Certificate
Insurer referred to herein as the "Policy Payment Account" over which the
Trustee shall have exclusive control and sole right of withdrawal. The Trustee
shall deposit upon receipt any amount paid under the Class A-1B Certificate
Insurance Policy in the Policy Payment Account and distribute such amount only
for purposes of payment to the Class A-1B Certificateholders of a Class A-1B
Certificate Insured Payment for which a claim was made and such amount may not
be applied to satisfy any costs, expenses or liabilities of the Servicers, the
Responsible Parties, the Trustee or the Trust Fund or to pay any other Class of
Certificates. Amounts paid under the Class A-1B Certificate Insurance Policy, to
the extent needed to pay any Class A-1B Certificate Insured Payment, shall be
transferred to the Distribution Account on the related Distribution Date and
disbursed by the Trustee to the Class A-1B Certificateholders in accordance with
Section 4.02. It shall not be necessary for such payments to be made by checks
or wire transfers separate from the checks or wire transfers used to pay other
distributions to the Class A-1B Certificateholders with other funds available to
make such payment. However, the amount of any payment of principal or of
interest on the Class A-1B Certificates to be paid from funds transferred from
the Policy Payment Account shall be noted as provided in paragraph (d) below and
in the statement to be furnished to Holders of the Class A-1B Certificates
pursuant to Section 4.03(a). Funds held in the Policy Payment Account shall not
be invested. Any funds remaining in the Policy Payment Account on the first
Business Day following a Distribution Date shall be returned to the Class A-1B
Certificate Insurer pursuant to the written instructions of the Class A-1B
Certificate Insurer by the end of such Business Day.
(d) The Trustee shall keep a complete and accurate record of the
amount of interest and principal paid in respect of any Class A-1B Certificate
from moneys received under the Class A-1B Certificate Insurance Policy. The
Class A-1B Certificate Insurer shall have the right to inspect such records at
reasonable times during normal business hours upon one Business Day's prior
notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of
an order of the appropriate court that any distribution on the Class A-1B
Certificates has been voided in whole or in part as a preference payment under
applicable bankruptcy law, the Trustee shall so notify the Class A-1B
Certificate Insurer, shall comply with the provisions of the Class A-1B
Certificate Insurance Policy to obtain payment by the Class A-1B Certificate
Insurer of the amount of such voided distribution constituting a Preference
Amount, and shall, at the time it provides notice to the Class A-1B Certificate
Insurer, notify, by mail to the Class A-1B Certificateholders of the affected
Certificates that, in the event any Class A-1B Certificateholder's distribution
is so recovered as a preference payment, such Class A-1B Certificateholder will
be entitled to payment of an amount constituting a Preference Amount pursuant to
the Class A-1B Certificate Insurance Policy, a copy of which shall be made
available through the Trustee, the Class A-1B Certificate Insurer or the Class
A-1B Certificate Insurer's fiscal agent, if any, and the Trustee shall furnish
to the Class A-1B Certificate Insurer or its fiscal agent, if any, its records
evidencing the payments which have been made by the Trustee and subsequently
recovered from the Class A-1B Certificateholders, and dates on which such
payments were made.
(f) The Trustee shall promptly notify the Class A-1B Certificate
Insurer and its fiscal agent, if any, of any proceeding or the institution of
any action, of which a Responsible Officer of the Trustee has actual knowledge,
seeking the avoidance as a preferential transfer under applicable bankruptcy,
insolvency, receivership or similar law (a "Preference Claim") of any
distribution made with respect to the Class A-1B Certificates. Each Class A-1B
Certificateholder, by its purchase of Class A-1B Certificates, the Servicers and
the Trustee agree that, the Class A-1B Certificate Insurer (so long as no Class
A-1B Certificate Insurer Default exists) may at any time during the continuation
of any proceeding relating to a Preference Claim direct all matters relating to
such Preference Claim, including, without limitation, (i) the direction of any
appeal of any order relating to such Preference Claim and (ii) the posting of
any surety, supersedes or performance bond pending any such appeal.
(g) The Trustee shall, upon retirement of the Class A-1B
Certificates, furnish to the Class A-1B Certificate Insurer a notice of such
retirement, and, upon retirement of the Class A-1B Certificates and the
expiration of the term of the Class A-1B Certificate Insurance Policy, surrender
the Class A-1B Certificate Insurance Policy to the Class A-1B Certificate
Insurer for cancellation.
(h) The Trustee will hold the Class A-1B Certificate Insurance
Policy in trust as agent for the Holders of the Class A-1B Certificates for the
purpose of making claims thereon and distributing the proceeds thereof. Each
Holder of Class A-1B Certificates, by accepting its Class A-1B Certificates,
appoints the Trustee as attorney in fact for the purpose of making claims on the
Class A-1B Certificate Insurance Policy.
(i) All references herein to the ratings assigned to the
Certificates and to the interests of any Certificateholders shall be without
regard to the Class A-1B Certificate Insurance Policy.
(j) All references in this Agreement for the benefit of or on behalf
of the Certificateholders or the Class A-1B Certificateholders shall be deemed
to be for the benefit of or on behalf of the Class A-1B Certificate Insurer.
Section 4.07 Swap Account. On the Closing Date, the Trustee shall
establish and maintain in its name, a separate non-interest bearing trust
account for the benefit of the holders of the LIBOR Certificates (the "Swap
Account") as a part of the Trust Fund. The Swap Account shall be an Eligible
Account, and funds on deposit therein shall be held separate and apart from, and
shall not be commingled with, any other moneys, including, without limitation,
other moneys of the Trustee held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider and Net Swap Receipts for that Distribution
Date will be deposited into the Swap Account. Funds in the Swap Account will be
distributed in the following order of priority:
(i) to the Swap Provider, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment, other than a Defaulted Swap Termination
Payment, to the Swap Provider, if any, owed for that Distribution Date;
(ii) to the Class A Certificates, to pay Accrued Certificate
Interest Distribution Amounts and, if applicable, any Unpaid Interest
Amounts as described in Section 4.02(a)(i), to the extent unpaid from
Available Funds;
(iii) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
B-1, Class B-2, Class B-3 and Class B-4 Certificates, in that order, to
pay Accrued Certificate Interest Distribution Amounts and, if applicable,
any Unpaid Interest Amounts as described in Section 4.02(a)(i) and (iii),
to the extent unpaid from Available Funds;
(iv) to the LIBOR Certificates, to pay Basis Risk Carry Forward
Amounts as described in Section 4.02(a)(iii)(R), to the extent unpaid from
Available Funds (including Basis Risk Payments on deposit in the Excess
Reserve Fund Account);
(v) sequentially, to the Class A, Class M-1, Class M-2, Class M-3,
Class B-1, Class B-2, Class B-3 and Class B-4 Certificates, in that order,
to pay principal as described in Section 4.02(a)(ii)(A) or Section
4.02(a)(ii)(B), as applicable, but only to the extent necessary to
maintain the Subordinated Amount at the Specified Subordinated Amount,
after giving effect to payments and distributions from Available Funds;
(vi) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
B-1, Class B-2, Class B-3 and Class B-4 Certificates, in that order, to
pay any Unpaid Interest Amounts as described in Section 4.02(a)(iii), to
the extent unpaid from Available Funds;
(vii) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(viii) to the holders of the Class X Certificates, any remaining
amounts.
Upon termination of the Trust, any amounts remaining in the Swap
Account shall be distributed pursuant to the priorities set forth in this
Section 4.07.
The Trustee shall account for the Swap Account as an asset of a
grantor trust under subpart E, Part I of subchapter J of the Code and not as an
asset of any Trust REMIC created pursuant to this Agreement. The beneficial
owners of the Swap Account are the Class X Certificateholders. For federal
income tax purposes, Net Swap Payments and Swap Termination Payments payable to
the Swap Provider shall be deemed to be paid to the Swap Account from the Upper
Tier REMIC, first, by the Holder of the Class X Certificates (in respect of the
Class IO Interest and, if applicable, Class X Interest) and second, other than
any Defaulted Swap Termination Payment, by the Holders of the applicable Class
or Classes of LIBOR Certificates (in respect of Class IO Shortfalls) as and to
the extent provided in Section 8.13.
Any Basis Risk Carry Forward Amounts distributed by the Trustee to
the LIBOR Certificateholders from the Excess Reserve Fund Account or the Swap
Account shall be accounted for by the Trustee, for federal income tax purposes,
as amounts paid first to the Holders of the Class X Certificates (in respect of
the Class X Interest or the Class IO Interest, respectively) and then to the
respective Class or Classes of LIBOR Certificates. In addition, the Trustee
shall account for the rights of Holders of each Class of LIBOR Certificates to
receive payments of Basis Risk Carry Forward Amounts from the Swap Account
(along with Basis Risk Carry Forward Amounts payable from the Excess Reserve
Fund Account) as rights in a separate limited recourse interest rate cap
contract written by the Class X Certificateholders in favor of Holders of each
such Class.
The Swap Account shall be an "outside reserve fund" for federal
income tax purposes and not an asset of any Trust REMIC. Furthermore, the
Holders of the Class X Certificates shall be the beneficial owners of the Swap
Account for all federal income tax purposes, and shall be taxable on all income
earned thereon, and any amounts reimbursed from the Upper Tier REMIC to the Swap
Account shall be treated as having been distributed to the Holders of the Class
X Certificates.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount) and aggregate denominations per Class set forth in the
Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class X and
Class P Certificates in the name of the Depositor or its designee. On a date as
to which the Depositor notifies the Trustee, the Trustee shall transfer the
Class X and Class P Certificates in the name of the NIM Trustee, or such other
name or names as the Depositor shall request, and to deliver the Class X and
Class P Certificates to the NIM Trustee or to such other Person or Persons as
the Depositor shall request.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Trustee at least five Business Days prior to the related Record
Date or (y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register. Payments to the
Class A-1B Certificate Insurer shall be made by wire transfer in immediately
available funds to such account as the Class A-1B Certificate Insurer shall
hereafter furnish to the Trustee in writing.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of any such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless authenticated by the Trustee by manual signature, and
such authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor, or any affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. In
determining whether a transfer is being made pursuant to an effective
registration statement, the Trustee shall be entitled to rely solely upon a
written notice to such effect from the Depositor. Except with respect to (i) the
transfer of the Class X, Class P or Class R Certificates to the Depositor or an
Affiliate of the Depositor, (ii) the transfer of the Class X or Class P
Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer of the
Class X or Class P Certificates from the NIM Issuer or the NIM Trustee to the
Depositor or an Affiliate of the Depositor, in the event that a transfer of a
Private Certificate which is a Physical Certificate is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder desiring
to effect such transfer shall certify to the Trustee in writing the facts
surrounding the transfer in substantially the form set forth in Exhibit H (the
"Transferor Certificate") and either (i) there shall be delivered to the Trustee
a letter in substantially the form of Exhibit I (the "Rule 144A Letter") or (ii)
there shall be delivered to the Trustee at the expense of the transferor an
Opinion of Counsel that such transfer may be made without registration under the
Securities Act. In the event that a transfer of a Private Certificate which is a
Book-Entry Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer will
be deemed to have made as of the transfer date each of the certifications set
forth in the Transferor Certificate in respect of such Certificate and the
transferee will be deemed to have made as of the transfer date each of the
certifications set forth in the Rule 144A Letter in respect of such Certificate,
in each case as if such Certificate were evidenced by a Physical Certificate. As
directed by the Depositor, the Trustee shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Depositor and the Servicers shall cooperate
with the Trustee in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Trustee such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably determine to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee, the
Servicers and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Except with respect to (i) the transfer of the Class X, Class P or
Class R Certificates to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, or (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor, no
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(in the event such Certificate is a Private Certificate or a Residual
Certificate, such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I), to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code or a plan subject to any Federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets of
any such plan or arrangement to effect such transfer, or (ii) in the case of an
ERISA-Restricted Certificate other than a Residual Certificate or a Class P
Certificate that has been the subject of an ERISA-Qualifying Underwriting, and
the purchaser is an insurance company, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such ERISA-Restricted Certificate
other than a Residual Certificate or Class P Certificate presented for
registration in the name of an employee benefit plan subject to Title I of
ERISA, a plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a plan subject to Similar Law, or a
trustee of any such plan or any other person acting on behalf of any such plan
or arrangement or using such plan's or arrangement's assets, an Opinion of
Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be an
expense of the Depositor, the Trustee, the Servicers or the Trust Fund,
addressed to the Trustee, to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Depositor, the Trustee or the Servicers
to any obligation in addition to those expressly undertaken in this Agreement or
to any liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Private Certificate or a Residual
Certificate, in the event the representation letter referred to in the preceding
sentence is not furnished, such representation shall be deemed to have been made
to the Trustee by the transferee's (including an initial acquirer's) acceptance
of the ERISA-Restricted Certificates. Notwithstanding anything else to the
contrary herein, (a) any purported transfer of an ERISA-Restricted Certificate,
other than a Class P Certificate or Residual Certificate, to or on behalf of an
employee benefit plan subject to ERISA, the Code or Similar Law without the
delivery to the Trustee of an Opinion of Counsel satisfactory to the Trustee as
described above shall be void and of no effect and (b) any purported transfer of
a Class P Certificate or Residual Certificate to a transferee that does not make
the representation in clause (i) above shall be void and of no effect.
None of the Class R or Class P Certificates may be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to Section
4975 of the Code, or any plan subject to any Similar Law or any person investing
on behalf or with plan assets of such plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
As long as the Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate (other than an ERISA-Restricted Certificate),
or any interest therein, shall be deemed to have represented that either (i) it
is not a Plan or (ii) the acquisition and holding of the Certificate are
eligible for the exemptive relief available under at least one of (i) Department
of Labor Prohibited Transaction Class Exemption ("PTE") 84-14 (for transactions
by independent "qualified professional asset managers"), (ii) PTE 91-38 (for
transactions by bank collective investment funds), (iii) PTE 90-1 (for
transactions by insurance company pooled separate accounts), PTE 95-60 (for
transactions by insurance company general accounts) or (iv) PTE 96-23 (for
transactions effected by "in-house asset managers") or similar exemption under
similar law.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is a
Non-Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact a Non-Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became a Non-Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is a Non-Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee or the
Servicers, to the effect that the elimination of such restrictions will not
cause any Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding or result in the imposition of any tax on the Trust
Fund, a Certificateholder or another Person. Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement which, based on an Opinion of Counsel furnished to
the Trustee, is reasonably necessary (a) to ensure that the record ownership of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is a Non-Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which is
held by a Person that is a Non-Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, or (y) the Depositor notifies the
Depository of its intent to terminate the book-entry system through the
Depository and, upon receipt of notice of such intent from the Depository, the
Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Servicers, the
Depositor or the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Trustee with an adequate
inventory of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee, duly
executed by the Certificateholder or his attorney duly authorized in writing.
Each Certificate presented or surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Trustee in
accordance with its customary practice. No service charge shall be made for any
registration of transfer or exchange of Private Certificates, but the Trustee
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Private
Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Depositor, the Servicers and the
Trustee such security or indemnity as may be required by them to hold each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Servicers, the Trustee, the
Depositor and any agent of a Servicer, the Depositor or the Trustee may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicers, the
Trustee, the Depositor or any agent of a Servicer, the Depositor or the Trustee
shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, such Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Trustee will
maintain or cause to be maintained at its expense an office or offices or agency
or agencies where Certificates may be surrendered for registration of transfer
or exchange. The Trustee initially designates its offices located at ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Trustee shall
give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
Section 5.07 Rights of the Class A-1B Certificate Insurer to
Exercise Rights of Class A-1B Certificateholders. (a) By accepting its Class
A-1B Certificate, each Class A-1B Certificateholder agrees that, unless a Class
A-1B Certificate Insurer Default exists, the Class A-1B Certificate Insurer
shall be deemed to be the Class A-1B Certificateholders for all purposes (other
than with respect to the receipt of payment on the Class A-1B Certificates) and
shall have the right to exercise all rights (including, without limitation,
voting rights) of the Class A-1B Certificateholders under this Agreement and
under the Class A-1B Certificates without any further consent of the Class A-1B
Certificateholders. The Class A-1B Certificateholders may not exercise such
rights without the prior written consent of the Class A-1B Certificate Insurer.
(b) All notices, statement reports, certificates or opinions
required by this Agreement to be sent to any Class A-1B Certificateholder shall
also be sent at such time to the Class A-1B Certificate Insurer.
Section 5.08 Class A-1B Certificate Insurer Default. Notwithstanding
anything elsewhere in this Agreement or in the Certificates to the contrary, if
a Class A-1B Certificate Insurer Default exists, or if and to the extent the
Class A-1B Certificate Insurer has delivered its written renunciation of all of
its rights under this Agreement, all provisions of this Agreement which (a)
permit the Class A-1B Certificate Insurer to exercise rights of the Class A-1B
Certificateholders, (b) restrict the ability of the Certificateholders, the
Servicers or the Trustee to act without the consent or approval of the Class
A-1B Certificate Insurer (other than with respect to the Class A-1B Certificate
Insurer's rights under Section 10.01 of this Agreement), (c) provide that a
particular act or thing must be acceptable to the Class A-1B Certificate
Insurer, (d) permit the Class A-1B Certificate Insurer to direct (or otherwise
to require) the actions of the Trustee, the Servicers or the Certificateholders,
(e) provide that any action or omission taken with the consent, approval or
authorization of the Class A-1B Certificate Insurer shall be authorized
hereunder or shall not subject the party taking or omitting to take such action
to any liability hereunder or (f) have a similar effect, shall be of no further
force and effect and the Trustee shall administer the Trust Fund and perform its
obligations hereunder solely for the benefit of the Holders of the Certificates;
provided, however, if a Class A-1B Certificate Insurer Default no longer exists,
the foregoing shall have no force or effect and all of the Class A-1B
Certificate Insurer's rights under this Agreement shall be reinstated. Nothing
in the foregoing sentence, nor any action taken pursuant thereto or in
compliance therewith, shall be deemed to have released the Class A-1B
Certificate Insurer from any obligation or liability it may have to any party or
to the Class A-1B Certificateholders hereunder, under any other agreement,
instrument or document (including, without limitation, the Class A-1B
Certificate Insurance Policy) or under applicable law. At such time as the Class
A-1B Certificates are no longer outstanding hereunder, and no amounts owed to
the Class A-1B Certificate Insurer hereunder remain unpaid, the Class A-1B
Certificate Insurer's rights hereunder shall terminate.
ARTICLE VI
THE DEPOSITOR, THE SERVICERS AND THE LOAN PERFORMANCE ADVISOR
Section 6.01 Respective Liabilities of the Depositor and the
Servicers. The Depositor and each of the Servicers shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor or a Servicer.
(a) The Depositor and each Servicer will each keep in full effect its existence,
rights and franchises as a corporation, limited liability company, limited
partnership or federally chartered savings bank, as the case may be, 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.
(b) Each Servicer is and shall continue to be an institution which
is a ▇▇▇▇▇▇ ▇▇▇-approved and ▇▇▇▇▇▇▇ Mac-approved seller/servicer in good
standing, shall maintain a net worth of at least $30,000,000 (as determined in
accordance with generally accepted accounting principles) and shall maintain its
license to do business or service residential mortgage loans in any
jurisdictions in which the Mortgaged Properties related to the Mortgage Loans
that it is servicing are located.
(c) Any Person into which the Depositor or a Servicer may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or a Servicer shall be a party, or any person succeeding to
the business of the Depositor or a Servicer, shall be the successor of the
Depositor or such 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 such Servicer shall make the covenant set
forth in Section 6.02(b).
Section 6.03 Limitation on Liability of the Depositor, the Servicers
and Others. Neither the Depositor, the Servicers, nor any of their respective
directors, officers, employees or agents, shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Servicers or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Servicers or any such Person
from any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or negligence (or gross negligence in the case of the
Depositor) in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, any of its Affiliates, the
Servicers and any of their respective directors, officers, employees or agents
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
Depositor, any of its Affiliates, the Servicers and any of their respective
directors, officers, employees or agents shall be indemnified by the Trust Fund
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
Certificates or the Loan Performance Advisor Agreement other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence (or gross negligence in the case of the Depositor) in the performance
of duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. Neither the Depositor nor any 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 the Depositor and each Servicer
may in its discretion undertake any such action (or direct the Trustee to
undertake such actions pursuant to Section 2.03 for the benefit of the
Certificateholders) 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
Trustee and the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor and the
applicable Servicer shall be entitled to be reimbursed therefor out of the
applicable Collection Account.
Section 6.04 Limitation on Resignation of the Servicers. Subject to
Sections 7.01 and 10.11, neither Servicer shall assign this Agreement or resign
from the obligations and duties hereby imposed on it except by mutual consent of
the Servicers, the Depositor and the Trustee or upon the determination that its
duties hereunder are no longer permissible under applicable law and such
incapacity cannot be cured by such Servicer. Any such resignation shall not
relieve such Servicer of responsibility for any of the obligations specified in
Sections 7.01 and 7.02 as obligations that survive the resignation or
termination of such Servicer. Any such determination permitting the resignation
of a Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Depositor and the Trustee which Opinion of Counsel shall be in
form and substance acceptable to the Depositor and the Trustee. No such
resignation shall become effective until a successor shall have assumed such
Servicer's responsibilities and obligations hereunder.
Section 6.05 Additional Indemnification by the Servicers; Third
Party Claims. Each Servicer, severally and not jointly, shall indemnify the
Depositor, the Class A-1B Certificate Insurer, the Responsible Parties, the
Trustee and any Affiliate, director, officer, employee or agent of the Depositor
and hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain in any way related to any breach by such Servicer, of (i) any of its
representations and warranties referred to in Section 2.03(a), (ii) any error in
any tax or information return prepared by such Servicer or (iii) the failure of
such Servicer to perform its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement. The applicable Servicer immediately
shall notify the Depositor, the Responsible Parties and the Trustee if a claim
is made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Depositor, each Responsible Party
and the Trustee) the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the Depositor,
either Responsible Party or the Trustee in respect of such claim. This indemnity
shall survive the termination of this Agreement or the earlier resignation or
removal of each Servicer.
Section 6.06 Duties of the Loan Performance Advisor. The Loan
Performance Advisor shall perform its obligations under the Loan Performance
Advisor Agreement.
Section 6.07 Loan Performance Advisor's Fees. On each Distribution
Date the Trustree shall withdraw from the Distribution Account the Loan
Performance Advisor Fee and pay such fee to the Loan Performance Advisor as
compensation for its activities under this Agreement.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default", wherever used
herein, means, with respect to each Servicer individually, any one of the
following events:
(a) any failure by a Servicer to remit to the Trustee any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one Business Day after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to such
Servicer by the Depositor or by the Trustee, or to the Servicers, the Depositor
and the Trustee by Certificateholders entitled to at least 25% of the Voting
Rights in the Certificates; or
(b) any failure on the part of a Servicer duly to observe or perform
in any material respect any other of the covenants or agreements on the part of
such Servicer set forth in this Agreement which continues unremedied for a
period of forty-five days (except that (x) such number of days shall be fifteen
in the case of a failure to pay any premium for any insurance policy required to
be maintained under this Agreement and (y) such number of days shall be ten in
the case of a failure to observe or perform any of the obligations set forth in
Sections 3.22, 3.23 or 8.12) after the earlier of (i) the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to such Servicer by the Depositor or by the Trustee, or to the Servicers, the
Depositor and the Trustee by Certificateholders entitled to at least 25% of the
Voting Rights in the Certificates and (ii) actual knowledge of such failure by a
Servicing Officer of such Servicer; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against a Servicer and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty consecutive days; or
(d) a Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
such Servicer or of or relating to all or substantially all of its property; or
(e) a Servicer shall admit in writing its inability generally to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) any failure of a Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(g) a breach of any representation and warranty of a Servicer
referred to in Section 2.03(a), which materially and adversely affects the
interests of the Certificateholders or the Class A-1B Certificate Insurer and
which continues unremedied for a period of thirty days after the date upon which
written notice of such breach is given to such Servicer by the Trustee or by the
Depositor, or to the Servicers, the Trustee and the Depositor by
Certificateholders entitled to at least 25% of the Voting Rights in the
Certificates; or
(h) either (i) with respect to Countrywide, any withdrawal or
downgrade of two or more levels (i.e., from "Above Average" to "Below Average"
or the equivalent) of the servicer rating, as of the Closing Date, of such
Servicer by any Rating Agency which results in a downgrade, qualification or
withdrawal of the rating assigned to any Class of Certificates by any Rating
Agency or (ii) with respect to HomEq, Fitch reduces its servicer rating of HomEq
to "RPS2-" or lower, ▇▇▇▇▇'▇ reduces its servicer rating of HomEq to "SQ3" or
lower, or S&P reduces its servicer rating of HomEq to "Average" or lower.
If an Event of Default described in clauses (a) through (h) of this
Section 7.01 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 a majority of the Voting Rights the Trustee shall, by notice in
writing to the applicable Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of such Servicer under this
Agreement and in and to the Mortgage Loans serviced by such Servicer and the
proceeds thereof, other than its rights as a Certificateholder hereunder;
provided, however, that the Trustee shall not be required to give written notice
to such applicable Servicer of the occurrence of an Event of Default described
in clauses (b) through (h) of this Section 7.01 unless and until a Responsible
Officer of the Trustee has actual knowledge of the occurrence of such an event;
provided further, that the Depositor shall give written notice to the applicable
Servicer of the occurrence of an Event of Default described in clause (h) of
this Section 7.01 upon obtaining actual knowledge of the occurrence of such an
event. In the event that a Responsible Officer of the Trustee has actual
knowledge of the occurrence of an event of default described in clause (a) of
this Section 7.01, the Trustee shall give written notice to the applicable
Servicer of the occurrence of such an event within one Business Day of the first
day on which such Responsible Officer obtains actual knowledge of such
occurrence. On and after the receipt by such Servicer of such written notice,
all authority and power of such Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. Subject
to Section 7.02, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of such 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 such Servicer to pay amounts owed pursuant to Article VIII. Such Servicer
agrees to cooperate with the Trustee in effecting the termination of such
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 of such predecessor Servicer, or thereafter
be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of a Servicer
hereunder, a Servicer shall be entitled to receive from the Trust Fund, prior to
transfer of its servicing obligations hereunder, payment of all accrued and
unpaid Servicing Fees and reimbursement for all outstanding P&I Advances and
Servicing Advances.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time a Servicer receives a notice of termination pursuant to Section 3.24 or
Section 7.01, the Trustee shall, subject to and to the extent provided in
Section 3.05, be the successor to such Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on such Servicer by the terms and provisions hereof and
applicable law including the obligation to make P&I Advances and Servicing
Advances, pursuant to Section 3.24 or Section 7.01. It is understood and
acknowledged by the parties hereto that there will be a period of transition
before the transfer of servicing obligations is fully effective. Notwithstanding
the foregoing, the Trustee will have a period (not to exceed 90 days) to
complete the transfer of all servicing data and correct or manipulate such
servicing data as may be required by the Trustee to correct any errors or
insufficiencies in the servicing data or otherwise enable the Trustee to service
the Mortgage Loans in accordance with Accepted Servicing Practices. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that such Servicer would have been entitled to charge to its
Collection Account if such Servicer had continued to act hereunder including, if
such Servicer was receiving the Servicing Fee, the Servicing Fee and the income
on investments or gain related to its Collection Account which such Servicer
would be entitled to receive. Notwithstanding the foregoing, if the Trustee has
become the successor to such Servicer in accordance with Section 7.01, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making P&I Advances and Servicing Advances pursuant to
Section 4.01, if it is otherwise unable to so act or at the written request of
Certificateholders entitled to at least a majority of the Voting Rights,
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 Certificates by each Rating
Agency, as the successor to such Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of such Servicer
hereunder. Any successor to such Servicer shall make the covenant set forth in
Section 6.02(b). Any successor to such Servicer shall be an institution which is
willing to service the Mortgage Loans and which executes and delivers to the
Depositor and the Trustee an agreement accepting such delegation and assignment,
containing an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of such terminated Servicer (other
than liabilities of such terminated Servicer under Section 6.03 incurred prior
to termination of the Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided, that each Rating Agency
acknowledges that its rating of the Certificates 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
Servicer hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3.05, 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 Servicing Fee Rate and amounts paid
to the predecessor Servicer from investments. The Trustee and such successor
Servicer shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Trustee nor any other
successor Servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any 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 predecessor Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
In the event that a Servicer is terminated pursuant to Section 7.01,
such terminated Servicer shall be responsible for the servicing transfer,
provide notices to the Mortgagors, arrange for and transfer the Servicing Files
to a successor Servicer and pay all of its own out-of-pocket costs and expenses
at its own expense. In addition, in the event that a Servicer is terminated
pursuant to Section 7.01, such terminated Servicer shall pay all reasonable
out-of-pocket costs and expenses of a servicing transfer incurred by parties
other than the terminated Servicer promptly upon presentation of reasonable
documentation of such costs. If the Trustee is the terminated Servicer (except
in the case where the Trustee in its role as successor Servicer is being
terminated pursuant to Section 7.01 by reason of an Event of Default caused
solely by the Trustee as the successor Servicer and not by the predecessor
Servicer's actions or omissions), such costs shall be paid by the prior
terminated Servicer promptly upon presentation of reasonable documentation of
such costs. If a terminated Servicer defaults in its obligation to pay such
costs and expenses, the same shall be paid by the successor Servicer or the
Trustee, in which case the successor Servicer or the Trustee, as applicable,
shall be entitled to reimbursement therefor from the Trust Fund.
Any successor to a Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its service
as servicer, maintain in force the policy or policies that each Servicer is
required to maintain pursuant to Section 3.13.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to a Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating Agency
notice of each such Event of Default hereunder known to the Trustee, unless such
event shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct.
Unless an Event of Default known to the Trustee has occurred and is
continuing:
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believes in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement.
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by the Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than in its corporate capacity as
obligor of the investment security and with respect to the investment of funds
in the Distribution Account);
(h) except as otherwise provided in Section 7.01, the Trustee shall
not be deemed to have knowledge of an Event of Default until a Responsible
Officer of the Trustee shall have received written notice thereof; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for the
use or application by the Depositor or a Servicer of any funds paid to the
Depositor or a Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from any Collection Account by the Depositor or a Servicer.
The Trustee shall have no responsibility for filing or recording any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
Servicer).
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee may withdraw from the Distribution
Account on each Distribution Date the Trustee Fee for the Distribution Date and
any interest or investment income earned on funds deposited in the Distribution
Account. The Trustee and any director, officer, employee, or agent of the
Trustee shall be indemnified by the Trust Fund and held harmless against any
loss, liability, or expense (including reasonable attorney's fees) resulting
from any error in any tax or information return prepared by a Servicer or
incurred in connection with:
(a) this Agreement,
(b) the Insurance Policy,
(c) the Certificates, or
(d) the performance of any of the Trustee's duties under this
Agreement, other than any loss, liability, or expense (i) resulting from any
breach of either Servicer's obligations in connection with this Agreement for
which the related Servicer has performed its obligation to indemnify the Trustee
pursuant to Section 6.05, (ii) resulting from any breach of a Responsible
Party's obligations in connection with this Agreement for which such Responsible
Party has performed its obligation to indemnify the Trustee pursuant to Section
2.03(h) or (iii) incurred because of willful misconduct, bad faith, or
negligence in the performance of any of the Trustee's duties under this
Agreement. This indemnity shall survive the termination of this Agreement or the
resignation or removal of the Trustee under this Agreement. Without limiting the
foregoing, except as otherwise agreed upon in writing by the Depositor and the
Trustee, and except for any expense, disbursement, or advance arising from the
Trustee's negligence, bad faith, or willful misconduct, the Trust Fund shall pay
or reimburse the Trustee for all reasonable expenses, disbursements, and
advances incurred or made by the Trustee in accordance with this Agreement with
respect to:
(A) the reasonable compensation, expenses, and disbursements
of its counsel not associated with the closing of the issuance of
the Certificates, and
(B) the reasonable compensation, expenses, and disbursements
of any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage
them to perform services under this Agreement.
Except as otherwise provided in this Agreement or a separate letter
agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other routine expenses incurred by
the Trustee; provided, however, no expense shall be reimbursed hereunder if it
would not constitute an "unanticipated expense incurred by the REMIC" within the
meaning of the REMIC Provisions.
Section 8.06 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of a state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating which would not cause any of
the Rating Agencies to reduce their respective then current ratings of the
Certificates (or having provided such security from time to time as is
sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its affiliates or the Servicers and their respective
affiliates; provided, however, that such entity cannot be an affiliate of the
Depositor or a Servicer other than the Trustee in its role as successor to such
Servicer.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicers and each Rating
Agency not less than 60 days before the date specified in such notice, when,
subject to Section 8.08, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.08 meeting the qualifications set
forth in Section 8.06. If no successor trustee meeting such qualifications shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Servicers may remove the Trustee
and appoint a successor trustee by written instrument, in triplicate, one copy
of which shall be delivered to the Trustee, one copy to each Servicer and one
copy to the successor trustee.
The Holders of Certificates entitled to at least a majority of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to each Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicers an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as trustee herein. The Depositor, the Servicers
and the predecessor trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers, duties,
and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the applicable Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
applicable Servicer and the Trustee may consider appropriate. If any Servicer
shall not have joined in such appointment within 15 days after the receipt by
such Servicer of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 8.06 and
no notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of a Servicer, shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to a
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the applicable Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection and indemnity to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Servicers and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each Trust REMIC and that in such
capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit (REMIC) Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file with the Internal
Revenue Service and applicable state or local tax authorities income tax or
information returns for each taxable year with respect to each Trust REMIC
containing such information and at the times and in the manner as may be
required by the Code or state or local tax laws, regulations, or rules, and
furnish to Certificateholders the schedules, statements or information at such
times and in such manner as may be required thereby;
(b) within thirty days of the Closing Date, the Trustee will apply
for an employer identification number from the Internal Revenue Service via Form
SS-4 or any other acceptable method for all tax entities and shall also furnish
to the Internal Revenue Service, on Form 8811 or as otherwise may be required by
the Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of Pooling Tier REMIC-1, Pooling Tier
REMIC-2, the Lower Tier REMIC and the Upper Tier REMIC be treated as a REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is a Non-Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Non-Permitted Transferee, or a pass-through entity in which a Non-Permitted
Transferee is the record holder of an interest (the reasonable cost of computing
and furnishing such information may be charged to the Person liable for such
tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on each Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Trustee or such other person as may be required to sign such
returns by the Code or state or local laws, regulations or rules; and
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the adjusted basis of the assets
determined at such intervals as may be required by the Code, as may be necessary
to prepare the foregoing returns, schedules, statements or information.
The Holder of the largest Percentage Interest of the Class R
Certificates shall act as Tax Matters Person for each Trust REMIC, in each case,
within the meaning of Treasury Regulations Section 1.860F-4(d), and the Trustee
is hereby designated as agent of such Certificateholder for such purpose (or if
the Trustee is not so permitted, such Holder shall be the Tax Matters Person in
accordance with the REMIC Provisions). In such capacity, the Trustee shall, as
and when necessary and appropriate, represent any Trust REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any Trust REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any Trust REMIC, and otherwise act on behalf of each REMIC in
relation to any tax matter or controversy involving it.
The Trustee shall treat the rights of the Class P Certificateholders
to receive Prepayment Charges, the rights of the Class X Certificateholders to
receive Interest Rate Cap Payments and amounts in the Excess Reserve Fund
Account and the Swap Account (subject, other than in the case of the Class X
Certificates, to the obligation to pay Basis Risk Carry Forward Amounts and,
without duplication, Upper Tier Carry Forward Amounts) and the rights of the
LIBOR Certificateholders to receive Basis Risk Carry Forward Amounts and,
without duplication, Upper Tier Carry Forward Amounts as the beneficial
ownership of interests in a grantor trust, and not as an obligation of any Trust
REMIC created hereunder, for federal income tax purposes. The Trustee shall file
or cause to be filed with the IRS together with Form 1041 or such other form as
may be applicable and shall furnish or cause to be furnished, to the Class P
Certificateholders, the Class X Certificateholders and the LIBOR
Certificateholders, the respective amounts described above that are received, in
the time or times and in the manner required by the Code.
To enable the Trustee to perform its duties under this Agreement,
the Depositor shall provide to the Trustee within ten days after the Closing
Date all information or data that the Trustee requests in writing and determines
to be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value to each Class of
Certificates of the right to receive Basis Risk Carry Forward Amounts from the
Excess Reserve Fund Account and Basis Risk Carry Forward Amounts or, without
duplication, Upper Tier Carry Forward Amounts from the Swap Account. Unless
otherwise advised by the Depositor, for federal income tax purposes, the Trustee
is hereby directed to assign a value of zero to the right of each Holder
allocating the purchase price of an initial Offered Certificateholder between
such right and the related Upper Tier Regular Interest. Thereafter, the
Depositor shall provide to the Trustee promptly upon written request therefor
any additional information or data that the Trustee may, from time to time,
reasonably request to enable the Trustee to perform its duties under this
Agreement; provided, however, that the Depositor shall not be required to
provide any information regarding the Mortgage Loans that the Servicers are
required to provide to the Trustee pursuant to this Agreement. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims, or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, pursuant to
this paragraph, accurate information or data to the Trustee on a timely basis.
Neither the Servicers nor Trustee shall (i) permit the creation of
any interests in either REMIC other than the regular and residual interests set
forth in the Preliminary Statement, (ii) receive any amount representing a fee
or other compensation for services (except as otherwise permitted by this
Agreement) or (iii) otherwise knowingly or intentionally take any action, cause
the Trust Fund to take any action or fail to take (or fail to cause to be taken)
any action reasonably within its control and the scope of duties more
specifically set forth herein, that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (A) endanger the status of any Trust REMIC as a
REMIC or (B) result in the imposition of a tax upon any Trust REMIC or the Trust
Fund (including but not limited to the tax on "prohibited transactions" as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
Trust REMIC set forth in Section 860G(d) of the Code, or the tax on "net income
from foreclosure property") unless the Trustee receives an Opinion of Counsel
(at the expense of the party seeking to take such action or, if such party fails
to pay such expense, and the Trustee determines that taking such action is in
the best interest of the Trust Fund and the Certificateholders, at the expense
of the Trust Fund, but in no event at the expense of the Trustee) to the effect
that the contemplated action will not, with respect to the Trust Fund or any
Trust REMIC created hereunder, endanger such status or, unless the Trustee
determines in its sole discretion to indemnify the Trust Fund against such tax,
result in the imposition of such a tax).
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Pooling Tier REMIC-1 as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including
any minimum tax imposed on either REMIC pursuant to Sections 23153 and 24874 of
the California Revenue and Taxation Code, if not paid as otherwise provided for
herein, the tax shall be paid by (i) the Trustee if such tax arises out of or
results from negligence of the Trustee in the performance of any of its
obligations under this Agreement, (ii) the applicable Servicer, in the case of
any such minimum tax, and otherwise if such tax arises out of or results from a
breach by such Servicer of any of its obligations under this Agreement, or (iii)
in all other cases, or if the Trustee or the applicable Servicer fails to honor
its obligations under the preceding clause (i) or (ii), any such tax will be
paid with amounts otherwise to be distributed to the Certificateholders, as
provided in Section 4.02(a).
Section 8.12 Periodic Filings. (a) The Trustee and each Servicer
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). The Trustee shall prepare on behalf of the
Trust any Forms 8-K and 10-K customary for similar securities as required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission thereunder, and the Trustee shall sign and file (via the Securities
and Exchange Commission's Electronic Data Gathering and Retrieval System) such
Forms on behalf of the Depositor, if an officer of the Depositor signs the
Certification (as defined below), or otherwise on behalf of the Trust. In the
event the Trustee is signing on behalf of the Depositor pursuant to the
preceding sentence, the Depositor hereby grants to the Trustee a limited power
of attorney to execute and file each such document on behalf of the Depositor.
Such power of attorney shall continue until either the earlier of (i) receipt by
the Trustee from the Depositor of written termination of such power of attorney
and (ii) the termination of the Trust. Notwithstanding the foregoing, the
Trustee shall prepare such Form to be signed by the Depositor and the Depositor
shall sign such Form, unless the Securities and Exchange Commission has
indicated that it will accept a Certification signed by the Depositor where the
related Form 10-K is signed by the Trustee on behalf of the Depositor.
(b) Each Form 8-K shall be filed by the Trustee within 15 days after
each Distribution Date, including a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. On or prior
to March 31st of each year commencing in 2006 (or such earlier date as may be
required by the Exchange Act and the Rules and Regulations of the Securities and
Exchange Commission), the Trustee shall file a Form 10-K, in substance as
required by applicable law or applicable Securities and Exchange Commission
staff's interpretations. Such Form 10-K shall include as exhibits each
Servicer's annual statement of compliance described under Section 3.22 and the
accountant's report described under Section 3.23, in each case to the extent
they have been timely delivered to the Trustee. If they are not so timely
delivered, the Trustee shall file an amended Form 10-K including such documents
as exhibits reasonably promptly after they are delivered to the Trustee. The
Trustee shall have no liability with respect to any failure to properly prepare
or file such periodic reports resulting from or relating to the Trustee's
inability or failure to obtain any information not resulting from its own
negligence, willful misconduct or bad faith. The Form 10-K shall also include a
certification in the form attached hereto as Exhibit L (the "Certification"),
which shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization. Notwithstanding the foregoing, if it is
determined by the Depositor that the Certification may be executed by multiple
persons, the Trustee shall sign the Certification in respect of items 1 through
3 thereof and each Servicer shall cause the senior officer in charge of
servicing at such Servicer to sign the Certification in respect of items 3
through 5 thereof solely with respect to such Servicer and the Trustee may rely
on the Certification signed by such Servicer to the same extent as provided in
subsection (c) below.
(c) In the event the Certification is to be signed by an officer of
the Depositor, the Trustee shall sign a certification (in the form attached
hereto as Exhibit M) for the benefit of the Depositor and its officers,
directors and Affiliates in respect of items 1 through 3 thereof of the
Certification (provided, however, that the Trustee shall not undertake an
analysis of the accountant's report attached as an exhibit to the Form 10-K),
and each Servicer shall sign a certification solely with respect to such
Servicer (in the form attached hereto as Exhibit N) for the benefit of the
Depositor, the Trustee and their respective officers, directors and Affiliates
in respect of items 3 through 5 of the Certification. Each such certification
shall be delivered to the Depositor no later than March 15th of each year (or if
such day is not a Business Day, the immediately preceding Business Day) and the
Depositor shall deliver the Certification to be filed to the Trustee no later
than March 20th of each year (or if such day is not a Business Day, the
immediately preceding Business Day). In the event that prior to the filing date
of the Form 10-K in March of each year, the Trustee or either Servicer has
actual knowledge of information material to the Certification, that party shall
promptly notify the Depositor and each of the other parties signing the
certifications. In addition, (i) the Trustee shall indemnify and hold harmless
the Depositor and its officers, directors, employees, agents and Affiliates from
and against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon any breach of the Trustee's obligations under this
Section 8.12(c) or the Trustee's negligence, bad faith or willful misconduct in
connection therewith, and (ii) each Servicer, severally and not jointly, shall
indemnify and hold harmless the Depositor, the Trustee and their respective
officers, directors, employees, agents and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon any breach of the applicable Servicer's obligations under this
Section 8.12(c) or any material misstatement or omission, negligence, bad faith
or willful misconduct of such Servicer in connection therewith. If the
indemnification provided for in the preceding sentence is unavailable or
insufficient to hold harmless any indemnified party, then (i) the Trustee agrees
in connection with a breach of the Trustee's obligations under this Section
8.12(c) or the Trustee's negligence, bad faith or willful misconduct in
connection therewith that it shall contribute to the amount paid or payable by
the Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor, on the one hand, and the Trustee, on the other, and (ii) each
Servicer agrees that it shall contribute to the amount paid or payable by each
indemnified party as a result of the losses, claims, damages or liabilities of
such indemnified party in such proportion as is appropriate to reflect the
relative fault of such indemnified party, on the one hand, and such Servicer, on
the other hand, in connection with a breach of such Servicers' obligations under
this Section 8.12(c) or any material misstatement or omission, negligence, bad
faith or willful misconduct of such Servicer in connection therewith.
(d) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
(e) Prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall file a Form 15 Suspension
Notification with respect to the Trust.
Section 8.13 Tax Classification of the Excess Reserve Fund Account,
the Swap Account, the Interest Rate Swap Agreement and the Cap Agreements. For
federal income tax purposes, the Trustee shall treat the Excess Reserve Fund
Account, the Swap Account, the Cap Agreements and the Interest Rate Swap
Agreement as beneficially owned by the holders of the Class X Certificates and
shall treat such portion of the Trust Fund as a grantor trust, within the
meaning of subpart E, Part I of subchapter J of the Code. The Trustee shall
treat the rights that each Class of LIBOR Certificates has to receive payments
of Basis Risk Carry Forward Amounts from the Excess Reserve Fund Account and, to
the extent not paid from the Excess Reserve Fund Account from the Swap Account
(including, without duplication, Upper Tier Carry Forward Amounts), as rights to
receive payments under an interest rate cap contract written by the Class X
Certificateholders in favor of each such Class and beneficially owned by each
such Class through the grantor trust. Accordingly, each Class of Certificates
(excluding the Class X, Class P and Class R Certificates) will be comprised of
two components - an Upper Tier REMIC Regular Interest and an interest in an
interest rate cap contract, and the Class X Certificates will be comprised of
four components -two Upper Tier REMIC Regular Interests (the Class X Interest
and the Class IO Interest), the Cap Agreements, an interest in the Excess
Reserve Fund Account, subject to obligation to pay Basis Risk Carry Forward
Amounts and ownership of the Swap Account and the Interest Rate Swap Agreement,
subject to the obligation to pay Basis Risk Carry Forward Amounts (including,
without duplication, Upper Tier Carry Forward Amounts). The Trustee shall
allocate the issue price for a Class of Certificates among the respective
components for purposes of determining the issue price of each Upper Tier REMIC
Regular Interest component based on information received from the Depositor.
Holders of LIBOR Certificates shall also be treated as having agreed
to pay, on each Distribution Date, to the Holders of the Class X Certificates an
aggregate amount equal to the excess, if any, of (i) Net Swap Payments and Swap
Termination Payments (other than Defaulted Swap Termination Payments) over (ii)
the sum of amounts payable on the Class X Interest available for such payments
and amounts payable on the Class IO Interest (such excess, a "Class IO
Shortfall"), first from interest and then from principal distributable on the
LIBOR Certificates. A Class IO Shortfall payable from interest collections shall
be allocated pro rata among such LIBOR Certificates based on the amount of
interest otherwise payable to such Class of LIBOR Certificates, and a Class IO
Shortfall payable from principal collections shall be allocated in reverse
sequential order beginning with the most subordinate Class of LIBOR Certificates
then outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Upper Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class X Certificates
through the Swap Account.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Servicers and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase, on or after the
Optional Termination Date, by either Servicer individually, or both of the
Servicers together, of all Mortgage Loans (and REO Properties) at the price (the
"Termination Price") equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan (other than in respect of REO Property) plus
accrued and unpaid interest thereon at the applicable Mortgage Rate, (ii) the
lesser of (x) the appraised value of any REO Property as determined by the
higher of two appraisals completed by two independent appraisers selected by
such Servicer at the expense of such Servicer and (y) the unpaid principal
balance of each Mortgage Loan related to any REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Mortgage Rate, (iii) all
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, Servicing Advances and indemnification payments
payable to the Servicers, (iv) any Swap Termination Payment, other than a
Defaulted Swap Termination Payment, owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement, and (v) any unreimbursed indemnification payments
payable to the Trustee under this Agreement and (b) the later of (i) the
maturity or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to this Agreement. In no event shall the
trusts created hereby continue beyond the expiration of 21 years from the death
of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of
the United States to the Court of St. James's, living on the date hereof.
Notwithstanding anything to the contrary contained herein, no such
purchase by the Servicers shall be permitted unless (i) after distribution of
the proceeds thereof to the Certificateholders (other than the Holders of the
Class X, Class P and Residual Certificates) pursuant to Section 9.02, the
distribution of the remaining proceeds to the Class X and Class P Certificates
is sufficient to pay the outstanding principal amount of and accrued and unpaid
interest on the NIM Securities, to the extent the NIM Securities are then
outstanding, or (ii) prior to such purchase, the purchasing Servicer(s) shall
have deposited in the related Collection Account(s) an amount that, together
with such remaining proceeds, will be sufficient to pay the outstanding
principal amount of, and accrued and unpaid interest on, the NIM Securities, to
the extent the NIM Securities are then outstanding.
No such purchase will be permitted without the consent of the Class
A-1B Certificate Insurer, if the resulting amount available for payment on the
Class A-1B Certificates would result in a draw under the Class A-1B Certificate
Insurance Policy or if a previous draw or any other amounts owing to the Class
A-1B Certificate Insurer under the Class A-1B Certificate Insurance Policy, this
Agreement or the Insurance Agreement would remain unpaid.
Section 9.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicers determine that there are no Outstanding Mortgage
Loans and no other funds or assets in the Trust Fund other than the funds in the
Collection Accounts, the Servicers shall direct the Trustee promptly to send a
Notice of Final Distribution to each Certificateholder, the Class A-1B
Certificate Insurer and the Swap Provider. If either Servicer individually or
both Servicers together elect to exercise its option to purchase the Mortgage
Loans pursuant to clause (a) of Section 9.01, at least 20 days prior to the date
the Notice of Final Distribution is to be mailed to the affected
Certificateholders, the Servicer(s) shall notify the Depositor and the Trustee
of (a) the date on which the Servicer(s) intend(s) to exercise such purchase
option and (b) the Termination Price.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Trustee by
letter to Certificateholders mailed not earlier than the 10th day and not later
than the 15th day of the month of such final distribution. Any such Notice of
Final Distribution shall specify (a) the Distribution Date upon which final
distribution on the Certificates will be made upon presentation and surrender of
Certificates at the office therein designated, (b) the amount of such final
distribution, (c) the location of the office or agency at which such
presentation and surrender must be made and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Servicer or Servicers, as the case may be, will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders and the Class A-1B Certificate
Insurer.
In the event such Notice of Final Distribution is given, each
Servicer shall cause all funds in its Collection Account to be remitted to the
Trustee for deposit in the Distribution Account on the Business Day prior to the
applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates and the Class A-1B Certificate Insurer. Upon such
final deposit with respect to the Trust Fund and the receipt by the Trustee of a
Request for Release therefor, the Trustee shall promptly release to the
applicable Servicer or Servicers, as the case may be, the Custodial Files for
the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class (after
reimbursement and payment of all amounts due to the Servicers, the Depositor,
the Class A-1B Certificate Insurer and the Trustee hereunder), in each case on
the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, up to an amount equal to (i) as to each
Class of Regular Certificates (except the Class X Certificates), the Certificate
Balance thereof plus for each such Class and the Class X Certificates accrued
interest thereon in the case of an interest-bearing Certificate and all other
amounts to which such Classes are entitled pursuant to Section 4.02 and (ii) as
to the Residual Certificates, the amount, if any, which remains on deposit in
the Distribution Account (other than the amounts retained to meet claims) after
application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the Notice of Final Distribution, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after such second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event
either Servicer or both of the Servicers exercise their purchase option with
respect to the Mortgage Loans as provided in Section 9.01, the Trust Fund shall
be terminated in accordance with the following additional requirements, unless
the Trustee has been supplied with an Opinion of Counsel, at the expense of the
applicable Servicer or both of the Servicers, as the case may be, to the effect
that the failure to comply with the requirements of this Section 9.03 will not
(i) result in the imposition of taxes on "prohibited transactions" on any Trust
REMIC as defined in Section 860F of the Code or (ii) cause any Trust REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the applicable Servicer or both of the Servicers, as the case may be, and,
within 90 days of such sale, shall distribute to the Certificateholders the
proceeds of such sale in complete liquidation of each of the Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal income
tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the 90-day liquidation period for
each such REMIC was the date on which the Trustee sold the assets of the Trust
Fund to the applicable Servicer or Servicers, as the case may be.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Responsible Parties, the Servicers and the Trustee
without the consent of any of the Certificateholders (i) to cure any ambiguity
or mistake, (ii) to correct any defective provision herein or to supplement any
provision herein which may be inconsistent with any other provision herein,
(iii) to add to the duties of the Depositor or the Servicers, (iv) to add any
other provisions with respect to matters or questions arising hereunder or (v)
to modify, alter, amend, add to or rescind any of the terms or provisions
contained in this Agreement; provided, that any action pursuant to clause (iv)
or (v) above shall not, as evidenced by an Opinion of Counsel (which Opinion of
Counsel shall not be an expense of the Trustee or the Trust Fund), adversely
affect in any material respect the interests of any Certificateholder; provided,
further, that any such action pursuant to clause (iv) or (v) above shall not be
deemed to adversely affect in any material respect the interests of the
Certificateholders 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
Certificates; 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, the Depositor, the Responsible Parties
and the Servicers also may at any time and from time to time amend this
Agreement, but without the consent of the Certificateholders to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
or helpful to (i) maintain the qualification of each Trust REMIC under the Code,
(ii) avoid or minimize the risk of the imposition of any tax on any Trust REMIC
pursuant to the Code that would be a claim at any time prior to the final
redemption of the Certificates or (iii) comply with any other requirements of
the Code; 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 Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Servicers, the Responsible Parties and the Trustee with the
consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3% of each Class of 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 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 Certificate, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates in a manner other than
as described in clause (i), without the consent of the Holders of Certificates
of such Class evidencing, as to such Class, Percentage Interests aggregating not
less than 66 2/3% or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any such REMIC to fail to qualify as a REMIC or the grantor trust to fail
to qualify as a grantor trust at any time that any Certificates are outstanding
and (ii) the party seeking such amendment shall have provided written notice to
the Rating Agencies (with a copy of such notice to the Trustee) of such
amendment, stating the provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 10.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicers, any Certificate beneficially owned by the
Depositor shall be deemed not to be outstanding (and shall not be considered
when determining the percentage of Certificateholders consenting or when
calculating the total number of Certificates entitled to consent) for purposes
of determining if the requisite consents of Certificateholders under this
Section 10.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency. In addition, promptly after the
execution of any amendment to this Agreement, the Trustee shall furnish written
notification of the substance or a copy of such amendment to the Class A-1B
Certificate Insurer.
It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
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 Trust Fund), 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 Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
Notwithstanding the foregoing, no amendment to this Agreement shall
be made without the prior written consent of the Class A-1B Certificate Insurer
until the later of (a) the date on which the Class Certificate Balance of the
Class A-1B Certificates is reduced to zero and (b) the date on which all amounts
owing to the Class A-1B Certificate Insurer under the Class A-1B Certificate
Insurance Policy, this Agreement and the Insurance Agreement have been paid in
full, if such amendment could adversely affect the interests of the holders of
the Class A-1B Certificates or of the Class A-1B Certificate Insurer.
Notwithstanding the foregoing, any amendment to this Agreement shall
require the prior written consent of the Swap Provider if such amendment
materially and adversely affects the rights or interests of the Swap Provider.
Section 10.02 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 Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Servicers at the direction and expense of the Depositor, but only upon receipt
of an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 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
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, as the case may be, or if for any other reason this
Agreement is held or deemed to create a security interest in either such assets,
then (i) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 10.05 Notices. (a) 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 either Servicer or the Trustee
and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
5. The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly make available on its
internet website to each Rating Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03; and
2. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.01 or 2.03.
(c) All directions, demands, consents and notices hereunder shall be
in writing and shall be deemed to have been duly given when delivered to: (a) in
the case of the Depositor, Securitized Asset Backed Receivables LLC, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, Facsimile: (212)
412-7519, or such other address as may be hereafter furnished to the other
parties hereto by the Depositor in writing; (b) in the case of Countrywide,
Countrywide Home Loans Servicing LP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may be
hereafter furnished to the other parties hereto by Countrywide in writing; (c)
in the case of HomEq Servicing Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Portfolio Management, Facsimile No. (916)
339-6995, HomEq Servicing Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department,
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may be hereafter
furnished to the other parties hereto by HomEq in writing; (d) in the case of
the Loan Performance Advisor, MortgageRamp, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, or
such other address as may be hereafter furnished to the other parties hereto by
the Loan Performance Advisor in writing; (e) in the case of WMC, WMC Mortgage
Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Facsimile No. (▇▇▇) ▇▇▇ ▇▇▇▇, with a copy to General Counsel,
Facsimile No. (▇▇▇) ▇▇▇ ▇▇▇▇, or such other address as may be hereafter
furnished to the other parties hereto by WMC in writing (f) in the case of NC
Capital, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President, or such other address as may be hereafter
furnished to the other parties hereto by NC Capital in writing; (g) in the case
of the Trustee, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Client Manager SABR 2005-HE1, Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Client Manager SABR 2005-HE1, and a separate copy to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Services
SABR 2005-HE1, or in each case or such other address as may be hereafter
furnished to the other parties hereto by the Trustee in writing; (h) in the case
of the Class A-1B Certificate Insurer, XL Capital Assurance Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Surveillance, Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may be hereafter furnished to the other
parties hereto by the Class A-1B Certificate Insurer in writing, and (i) in the
case of each of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 10.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.07, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.08 Inspection and Audit Rights. Each Servicer agrees
that, on reasonable prior notice, it will permit any representative of the
Depositor or the Trustee during the Servicers' normal business hours, to examine
all the books of account, records, reports and other papers of the 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
the Depositor 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 each 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 of the Servicer incident to the exercise by
the Depositor or the Trustee of any right under this Section 10.08 shall be
borne by such Servicer.
Section 10.09 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.10 Third Party Beneficiary. The parties agree that the
Class A-1B Certificate Insurer is intended and shall have all rights of a
third-party beneficiary of this Agreement.
Section 10.11 Assignment; Sales; Advance Facilities. Notwithstanding
anything to the contrary contained herein, except as provided in Section 6.02,
this Agreement may not be assigned by a Servicer without the prior written
consent of the Trustee and Depositor; provided, however, each Servicer is hereby
authorized to enter into an Advance Facility under which (1) the Servicer sells,
assigns or pledges to an Advancing Person the Servicer's rights under this
Agreement to be reimbursed for any P&I Advances or Servicing Advances ("Advance
Reimbursement Amounts") and/or (2) an Advancing Person agrees to fund some or
all P&I Advances or Servicing Advances required to be made by the Servicer
pursuant to this Agreement. No consent of the Trustee, Certificateholders or any
other party is required before the Servicer may enter into an Advance Facility.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund P&I Advances and/or Servicing Advances on a Servicer's
behalf, such Servicer shall remain obligated pursuant to this Agreement to make
P&I Advances and Servicing Advances pursuant to and as required by this
Agreement, and shall not be relieved of such obligations by virtue of such
Advance Facility.
Advance Reimbursement Amounts shall consist solely of amounts in
respect of P&I Advances and/or Servicing Advances made with respect to the
Mortgage Loans for which a Servicer would be permitted to reimburse itself in
accordance with this Agreement, assuming the Servicer had made the related P&I
Advance(s) and/or Servicing Advance(s). The Trustee shall not have any duty or
liability with respect to the calculation of any Advance Reimbursement Amount.
The Trustee shall also not have any responsibility to track or monitor the
administration of the Advance Facility or the payment of Advance Reimbursement
Amounts to the related Advancing Person.
Each Servicer shall maintain and provide to any successor Servicer
and (upon request) the Trustee a detailed accounting on a loan-by-loan basis as
to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing
Person. The successor Servicer shall be entitled to rely on any such information
provided by the predecessor Servicer, and the successor Servicer shall not be
liable for any errors in such information.
An Advancing Person who purchases or receives an assignment or
pledge of the rights to be reimbursed for P&I Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of P&I
Advances and/or Servicing Advances shall not be required to meet the criteria
for qualification of a Subservicer set forth in this Agreement.
Advance Reimbursement Amounts allocated to reimburse P&I Advances or
Servicing Advances made with respect to any particular Mortgage Loan shall be
allocated to the reimbursement of the ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances or Servicing
Advances (as the case may be) made with respect to such Mortgage Loan on a
"first-in, first out" ("FIFO") basis, such that the Advance Reimbursement
Amounts shall be applied to reimburse the P&I Advance or Servicing Advance (as
the case may be) for such Mortgage Loan that was disbursed earliest in time
first, and to reimburse the P&I Advance or Servicing Advance (as the case may
be) for such Mortgage Loan that was disbursed latest in time last. Liquidation
Proceeds and Subsequent Recoveries with respect to a Mortgage Loan shall be
applied to reimburse Servicing Advances outstanding with respect to such
Mortgage Loan before being applied to reimburse P&I Advances outstanding with
respect to such Mortgage Loan. The related Servicer shall provide to the related
Advancing Person, the Advance Facility trustee (or to any designee of either)
loan-by-loan information with respect to each Advance Reimbursement Amount
remitted to such Advancing Person, Advance Facility trustee or designee, to
enable the Advancing Person or Advance Facility trustee to make the FIFO
allocation of each such Advance Reimbursement Amount with respect to each
Mortgage Loan. The related Servicer shall remain entitled to be reimbursed by
the Advancing Person or Advance Facility trustee for all P&I Advances and
Servicing Advances funded by the related Servicer to the extent the related
rights to be reimbursed therefor have not been sold, assigned or pledged to an
Advancing Person. The related Servicer shall indemnify the Trustee and the Trust
Fund for any loss, liability or damage resulting from any claim by the related
Advancing Person.
Any amendment to this Section 10.11 or to any other provision of
this Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 10.11, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Trustee and the related Servicer without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement
upon receipt by the Trustee of an Opinion of Counsel that such amendment has no
material adverse effect on the Certificateholders or written confirmation from
the Rating Agencies that such amendment will not adversely affect the ratings on
the Certificates. All reasonable costs and expenses (including attorney's fees)
of each party hereto of any such amendment shall be borne by the related
Servicer.
Prior to entering into an Advance Facility, the related Servicer
shall notify the Advancing Person in writing that (1) the Trustee and the Trust
are not obligated or liable to repay any Advances financed by the Advancing
Person and (2) the Trustee shall not have any responsibility to track or monitor
the administration of the Advance Facility between the related Servicer and the
Advancing Person.
Section 10.12 Rule of Construction. Article and section headings are
for the convenience of the reader and shall not be considered in interpreting
this Agreement or the intent of the parties hereto.
Section 10.13 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE
LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 10.14 Rights of the Swap Provider. The Swap Provider shall
be deemed a third-party beneficiary of this Agreement to the same extent as if
it were a party hereto and shall have the right to enforce its rights under this
Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Depositor, the Trustee, the Responsible
Parties, the Servicers and the Loan Performance Advisor have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
SECURITIZED ASSET BACKED RECEIVABLES
LLC
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
COUNTRYWIDE HOME LOANS SERVICING LP
By: Countrywide GP, Inc.,
its general partner
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
HOMEQ SERVICING CORPORATION
By:/s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Senior Vice President
MORTGAGERAMP, INC.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
NC CAPITAL CORPORATION
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
WMC MORTGAGE CORP., only with respect
to Article II of the Agreement
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
solely as Trustee and not in its
individual capacity
By:/s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
(Available from the Trustee upon request)
SCHEDULE II
Mortgage Pass-Through Certificates,
Series 2005-HE1
Representations and Warranties of Countrywide, as Servicer
Countrywide hereby makes the representations and warranties set
forth in this Schedule II to the Depositor and the Trustee, as of the Closing
Date.
(1) Countrywide is a limited partnership duly organized, validly
existing and in good standing under the laws of the state of Texas and is
duly authorized and qualified to transact any and all business
contemplated by this Pooling and Servicing Agreement to be conducted by
Countrywide in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such State, to the extent necessary to ensure its ability to enforce each
Mortgage Loan and to service the Mortgage Loans in accordance with the
terms of this Pooling and Servicing Agreement;
(2) Countrywide has the full power and authority to service each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Pooling and Servicing
Agreement and has duly authorized by all necessary action on the part of
Countrywide the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming
the due authorization, execution and delivery thereof by the Depositor and
the Trustee, constitutes a legal, valid and binding obligation of
Countrywide, enforceable against Countrywide in accordance with its terms,
except to the extent 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 the equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by Countrywide, the servicing of the Mortgage Loans by
Countrywide hereunder, the consummation by Countrywide of any other of the
transactions herein contemplated, and the fulfillment of or compliance
with the terms hereof are in the ordinary course of business of
Countrywide and will not (A) result in a breach of any term or provision
of the organizational documents of Countrywide or (B) conflict with,
result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which
Countrywide is a party or by which it may be bound, or any law, statute,
rule, order, regulation, judgment or decree applicable to Countrywide of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over Countrywide; and Countrywide is not a party to,
bound by, or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any law, statute, rule,
order, regulation, judgment or decree of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it,
which materially and adversely affects or, to Countrywide's knowledge,
would in the future materially and adversely affect, (x) the ability of
Countrywide to perform its obligations under this Pooling and Servicing
Agreement or (y) the business, operations, financial condition, properties
or assets of Countrywide taken as a whole;
(4) Countrywide is an approved seller/servicer for ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac and is a HUD-approved mortgagee pursuant to Section 203 and
Section 211 of the National Housing Act;
(5) No litigation is pending against Countrywide that would
materially and adversely affect the execution, delivery or enforceability
of this Agreement or the ability of Countrywide to service the Mortgage
Loans or to perform any of its other obligations hereunder in accordance
with the terms hereof;
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide of, or compliance by Countrywide with, this
Pooling and Servicing Agreement or the consummation by Countrywide of the
transactions contemplated by this Pooling and Servicing Agreement, except
for such consents, approvals, authorizations or orders, if any, that have
been obtained prior to the Closing Date;
(7) Countrywide covenants that its computer and other systems used
in servicing the Mortgage Loans operate in a manner such that Countrywide
can service the Mortgage Loans in accordance with the terms of this
Pooling and Servicing Agreement; and
(8) With respect to each Mortgage Loan, to the extent Countrywide
serviced such Mortgage Loan and to the extent Countrywide provided monthly
reports to the three credit repositories, Countrywide has fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis.
SCHEDULE III
Mortgage Pass-Through Certificates,
Series 2005-HE1
Representations and Warranties of HomEq, as Servicer
HomEq hereby makes the representations and warranties set forth in
this Schedule III to the Depositor and the Trustee as of the Closing Date.
Capitalized terms used but not otherwise defined in this Schedule III shall have
the meaning ascribed thereto in the Pooling and Servicing Agreement.
(1) HomEq is duly organized as a corporation and is validly existing
and in good standing under the laws of the state of New Jersey, and is
licensed and qualified to transact any and all business contemplated by
this Pooling and Servicing Agreement to be conducted by HomEq in any state
in which a Mortgaged Property securing a Mortgage Loan is located or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such State, to the extent necessary to ensure its ability to enforce each
Mortgage Loan and to service the Mortgage Loans in accordance with the
terms of this Pooling and Servicing Agreement;
(2) HomEq has the full power and authority to service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Pooling and Servicing
Agreement and has duly authorized by all necessary action on the part of
HomEq the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming
the due authorization, execution and delivery thereof by the Depositor,
each Responsible Party, the other Servicers and the Trustee, constitutes a
legal, valid and binding obligation of HomEq, enforceable against HomEq in
accordance with its terms; except to the extent 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 the equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by HomEq, the servicing of the Mortgage Loans required to be
serviced by HomEq hereunder, the consummation by HomEq of any other of the
transactions herein contemplated, and the fulfillment of or compliance
with the terms hereof are in the ordinary course of business of HomEq and
will not (A) result in a breach of any term or provision of the
organizational documents of HomEq or (B) conflict with, result in a
breach, violation or acceleration of, or result in a default under, the
terms of any other material agreement or instrument to which HomEq is a
party or by which it may be bound, or any law, statute, rule, order,
regulation, judgment or decree applicable to HomEq or its property of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over HomEq; and HomEq is not a party to, bound by, or in
breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any law, statute, rule, order, regulation,
judgment or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which (w) materially and
adversely affects or, to HomEq's knowledge, would in the future materially
and adversely affect, the ability of HomEq to perform its obligations
under this Pooling and Servicing Agreement, (x) materially and adversely
affects or, to HomEq's knowledge, would in the future materially and
adversely affect, the business, operations, financial condition,
properties or assets of HomEq taken as a whole, (y) impair the ability of
the Trust to realize on the Mortgage Loans, or (z) impair the value of the
Mortgage Loans;
(4) HomEq has the facilities, procedures, and experienced personnel
necessary for the sound servicing of mortgage loans of the same type as
the Mortgage Loans;
(5) HomEq does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
Pooling and Servicing Agreement;
(6) No action, suit, proceeding or investigation is pending or
threatened against HomEq, before any court, administrative agency or other
tribunal asserting the invalidity of this Pooling and Servicing Agreement,
seeking to prevent the consummation of any of the transactions
contemplated by this Pooling and Servicing Agreement or which, either in
any one instance or in the aggregate, may result in any material adverse
change in the business, operations, financial condition, properties or
assets of HomEq, or in any material impairment of the right or ability of
HomEq to carry on its business substantially as now conducted, or in any
material liability on the part of HomEq, or which would draw into question
the validity of this Pooling and Servicing Agreement or the Mortgage Loans
or of any action taken or to be taken in connection with the obligations
of HomEq contemplated herein, or which would be likely to impair
materially the ability of HomEq to perform under the terms of this Pooling
and Servicing Agreement;
(7) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by HomEq of, or compliance by HomEq with, this Pooling and
Servicing Agreement or the servicing of the Mortgage Loans as evidenced by
the consummation by HomEq of the transactions contemplated by this Pooling
and Servicing Agreement, except for such consents, approvals,
authorizations or orders, if any, that have been obtained prior to the
Closing Date; and
(8) With respect to each Mortgage Loan serviced by HomEq hereunder,
to the extent HomEq serviced such Mortgage Loan and to the extent HomEq
provided monthly reports to the three credit repositories, HomEq has fully
furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company (three of the credit
repositories), on a monthly basis.
SCHEDULE IV
Mortgage Pass-Through Certificates,
Series 2005-HE1
Representations and Warranties of NC Capital Corporation as to the Mortgage
Loans
NC Capital Corporation hereby makes the representations and
warranties set forth in this Schedule IV as to the NC Capital Mortgage Loans
only to the Depositor, the Servicers and the Trustee, as of November 30, 2005
(the "Securitization Closing Date") (unless otherwise expressly indicated).
Capitalized terms used but not otherwise defined in this Schedule IV shall have
the meanings ascribed thereto in the NC Capital Purchase Agreement.
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage
Note, other than payments not yet 30 days delinquent, have been made and
credited. No payment required under the Mortgage Loan is 30 days or more
delinquent nor has any payment under the Mortgage Loan been 30 days or
more delinquent at any time since the origination of the Mortgage Loan.
The first Monthly Payment shall be made with respect to the Mortgage Loan
on its related Due Date or within the grace period, all in accordance with
the terms of the related Mortgage Note;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgage, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments
or ground rents which previously became due and owing have been paid, or
an escrow of funds has been established in an amount sufficient to pay for
every such item which remains unpaid and which has been assessed but is
not yet due and payable. NC Capital has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other than
the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the
date of the Mortgage Note or date of disbursement of the Mortgage Loan
proceeds, whichever is earlier, to the day which precedes by one month the
related Due Date of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any
respect, from the date of origination except by a written instrument which
has been recorded, if necessary to protect the interests of the Purchaser,
and which has been delivered to the Custodian or to such other Person as
the Purchaser shall designate in writing, and the terms of which are
reflected in the related Mortgage Loan Schedule. The substance of any such
waiver, alteration or modification has been approved by the issuer of any
related PMI Policy and the title insurer, if any, to the extent required
by the policy, and its terms are reflected on the related Mortgage Loan
Schedule, if applicable. No Mortgagor has been released, in whole or in
part, except in connection with an assumption agreement, approved by the
issuer of any related PMI Policy and the title insurer, to the extent
required by the policy, and which assumption agreement is part of the
Mortgage Loan File delivered to the Custodian or to such other Person as
the Purchaser shall designate in writing and the terms of which are
reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the defense of usury, nor will the operation of any of the terms of the
Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in whole or
in part and no such right of rescission, set-off, counterclaim or defense
has been asserted with respect thereto, and no Mortgagor was a debtor in
any state or Federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by
a generally acceptable insurer against loss by fire, hazards of extended
coverage and such other hazards as are provided for in the ▇▇▇▇▇▇ ▇▇▇
Guides or by ▇▇▇▇▇▇▇ Mac, as well as all additional requirements set forth
in Section 2.10 of the Interim Servicing Agreement. If required by the
National Flood Insurance Act of 1968, as amended, each Mortgage Loan is
covered by a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration as in effect
which policy conforms to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac requirements, as well
as all additional requirements set forth in Section 2.10 of the Interim
Servicing Agreement. All individual insurance policies contain a standard
mortgagee clause naming NC Capital and its successors and assigns as
mortgagee, and all premiums thereon have been paid. The Mortgage obligates
the Mortgagor thereunder to maintain the hazard insurance policy at the
Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at such Mortgagor's cost and expense, and to seek reimbursement
therefor from the Mortgagor. Where required by state law or regulation,
the Mortgagor has been given an opportunity to choose the carrier of the
required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering a condominium, or any hazard
insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in
full force and effect and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this Agreement. NC
Capital has not engaged in, and has no knowledge of the Mortgagor's having
engaged in, any act or omission which would impair the coverage of any
such policy, the benefits of the endorsement provided for herein, or the
validity and binding effect of either including, without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value
of any kind has been or will be received, retained or realized by any
attorney, firm or other person or entity, and no such unlawful items have
been received, retained or realized by NC Capital;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity, disclosure and all predatory and
abusive lending laws applicable to the Mortgage Loan, including, without
limitation, any provisions relating to Prepayment Penalties, have been
complied with, the consummation of the transactions contemplated hereby
will not involve the violation of any such laws or regulations, and NC
Capital shall maintain in its possession, available for the Purchaser's
inspection, and shall deliver to the Purchaser upon demand, evidence of
compliance with all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and
the Mortgaged Property has not been released from the lien of the
Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission.
NC Capital has not waived the performance by the Mortgagor of any action,
if the Mortgagor's failure to perform such action would cause the Mortgage
Loan to be in default, nor has NC Capital waived any default resulting
from any action or inaction by the Mortgagor;
(i) Type of Mortgaged Property. With respect to a Mortgage Loan that
is not a Co-op Loan, the Mortgaged Property is a fee simple estate or a
leasehold estate located in a jurisdiction in which the use of a leasehold
estate for residential properties is a widely accepted practice that
consists of a single parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an
individual residential condominium unit in a condominium project, or a
manufactured home, or an individual unit in a planned unit development, or
an individual unit in a residential cooperative housing corporation;
provided, however, that any condominium unit, planned unit development or
residential cooperative housing corporation shall conform with the
Underwriting Guidelines and any manufactured dwelling shall conform with
the applicable ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac requirements regarding such
dwellings. No portion of the Mortgaged Property (or underlying Mortgaged
Property, in the case of a Co-op Loan) is used for commercial purposes,
and since the date of origination, no portion of the Mortgaged Property
has been used for commercial purposes; provided, that Mortgaged Properties
which contain a home office shall not be considered as being used for
commercial purposes as long as the Mortgaged Property has not been altered
for commercial purposes and is not storing any chemicals or raw materials
other than those commonly used for homeowner repair, maintenance and/or
household purposes. In the case of a manufactured home, (i) the related
manufactured dwelling and the related land are subject to a Mortgage
properly filed in the appropriate public recording office and naming
Seller as mortgagee, (ii) the applicable laws of the jurisdiction in which
the related Mortgaged Property is located will deem the manufactured
dwelling located on such Mortgaged Property to be a part of the real
property on which such dwelling is located, and (iii) such manufactured
home Mortgage Loan is (x) a qualified mortgage under Section 860G(a)(3) of
the Internal Revenue Code of 1986, as amended and (y) secured by
manufactured housing treated as a single family residence under Section
25(e)(10) of the Code. None of the Mortgaged Properties are log homes,
mobile homes, geodesic domes or other unique property types;
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First Lien Loan)
or second lien (with respect to a Second Lien Loan) on the Mortgaged
Property, including all buildings and improvements on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such
buildings, and all additions, alterations and replacements made at any
time with respect to the foregoing. The lien of the Mortgage is subject
only to:
(i) with respect to a Second Lien Loan only, the lien of the first
mortgage on the Mortgaged Property;
(ii) the lien of current real property taxes and assessments not yet
due and payable;
(iii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions generally
and specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and (a) specifically
referred to or otherwise considered in the appraisal made for the
originator of the Mortgage Loan or (b) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such appraisal; and
(iv) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected first lien (with respect
to a First Lien Loan) or second lien (with respect to a Second Lien Loan) and
first priority (with respect to a First Lien Loan) or second priority (with
respect to a Second Lien Loan) security interest on the property described
therein and NC Capital has full right to sell and assign the same to the
Purchaser.
(k) Valid First or Second Priority Security Interest. With respect
to any Co-op Loan, the related Mortgage is a valid, subsisting,
enforceable and perfected, first priority security interest (with respect
to a First Lien Loan) or second priority security interest (with respect
to a Second Lien Loan) on the related cooperative shares securing the
Mortgage Note, subject only to (a) liens of the related residential
cooperative housing corporation for unpaid assessments representing the
Mortgagor's pro rata share of the related residential cooperative housing
corporation's payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to which like collateral is commonly subject and (b) other matters to
which like collateral is commonly subject which do not materially
interfere with the benefits of the security interest intended to be
provided by the related Security Agreement;
(l) Request for Notice; No Consent Required. With respect to any
Second Lien Loan, where required or customary in the jurisdiction in which
the Mortgaged Property is located, the original lender has filed for
record a request for notice of any action by the related senior
lienholder, and NC Capital has notified the senior lienholder in writing
of the existence of the Second Lien Loan and requested notification of any
action to be taken against the Mortgagor by the senior lienholder. Either
(a) no consent for the Second Lien Loan is required by the holder of the
related first lien or (b) such consent has been obtained and is contained
in the Mortgage File;
(m) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal valid
and binding obligation of the maker thereof enforceable in accordance with
its terms (including, without limitation, any provisions therein relating
to Prepayment Penalties). All parties to the Mortgage Note, the Mortgage
and any other such related agreement had legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage
and any such agreement, and the Mortgage Note, the Mortgage and any other
such related agreement have been duly and properly executed by other such
related parties. No fraud, error, omission, misrepresentation, negligence
or similar occurrence with respect to a Mortgage Loan has taken place on
the part of NC Capital in connection with the origination of the Mortgage
Loan or in the application of any insurance in relation to such Mortgage
Loan. No fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the part of
any Person, including without limitation, the Mortgagor, any appraiser,
any builder or developer, or any other party involved in the origination
of the Mortgage Loan or in the application for any insurance in relation
to such Mortgage Loan. NC Capital has reviewed all of the documents
constituting the Servicing File and has made such inquiries as it deems
necessary to make and confirm the accuracy of the representations set
forth herein;
(n) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement and
as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and the recording of the Mortgage were paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note
or Mortgage;
(o) Ownership. NC Capital is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and
upon the sale of the Mortgage Loans to the Purchaser, NC Capital will
retain the Mortgage Files or any part thereof with respect thereto not
delivered to the Custodian, the Purchaser or the Purchaser's designee, in
trust only for the purpose of servicing and supervising the servicing of
each Mortgage Loan. The Mortgage Loan is not assigned or pledged, and NC
Capital has good, indefeasible and marketable title thereto, and has full
right to transfer and sell the Mortgage Loan to the Purchaser free and
clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and has full right and authority
subject to no interest or participation of, or agreement with, any other
party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Purchaser will own such
Mortgage Loan free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest. NC Capital
intends to relinquish all rights to possess, control and monitor the
Mortgage Loan. After the related Closing Date, NC Capital will have no
right to modify or alter the terms of the sale of the Mortgage Loan and NC
Capital will have no obligation or right to repurchase the Mortgage Loan
or substitute another Mortgage Loan, except as provided in this Agreement;
(p) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are
(or, during the period in which they held and disposed of such interest,
were) (1) in compliance with any and all applicable licensing requirements
of the laws of the state wherein the Mortgaged Property is located, and
(2) either (i) organized under the laws of such state, or (ii) qualified
to do business in such state, or (iii) a federal savings and loan
association, a savings bank or a national bank having a principal office
in such state, or (3) not doing business in such state;
(q) LTV, PMI Policy. No Mortgage Loan has an LTV greater than 100%.
Any Mortgage Loan that had at the time of origination an LTV in excess of
80% is insured as to payment defaults by a PMI Policy. Any PMI Policy in
effect covers the related Mortgage Loan for the life of such Mortgage
Loan. All provisions of such PMI Policy have been and are being complied
with, such policy is in full force and effect, and all premiums due
thereunder have been paid. No action, inaction, or event has occurred and
no state of facts exists that has, or will result in the exclusion from,
denial of, or defense to coverage. Any Mortgage Loan subject to a PMI
Policy obligates the Mortgagor thereunder to maintain the PMI Policy and
to pay all premiums and charges in connection therewith. The Mortgage
Interest Rate for the Mortgage Loan as set forth on the related Mortgage
Loan Schedule is net of any such insurance premium;
(r) Title Insurance. With respect to a Mortgage Loan which is not a
Co-op Loan, the Mortgage Loan is covered by an ALTA lender's title
insurance policy, or with respect to any Mortgage Loan for which the
related Mortgaged Property is located in California a CLTA lender's title
insurance policy, or other generally acceptable form of policy or
insurance acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and each such title
insurance policy is issued by a title insurer acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring NC Capital, its successors and
assigns, as to the first (with respect to a First Lien Loan) or second
(with respect to a Second Lien Loan) priority lien of the Mortgage in the
original principal amount of the Mortgage Loan (or to the extent a
Mortgage Note provides for negative amortization, the maximum amount of
negative amortization in accordance with the Mortgage), subject only to
the exceptions contained in clauses (i), (ii) and (iii) of paragraph (j)
of this Section 9.02, and in the case of Adjustable Rate Mortgage Loans,
against any loss by reason of the invalidity or unenforceability of the
lien resulting from the provisions of the Mortgage providing for
adjustment to the Mortgage Interest Rate and Monthly Payment. Where
required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title
insurance. Additionally, such lender's title insurance policy
affirmatively insures ingress and egress, and against encroachments by or
upon the Mortgaged Property or any interest therein. NC Capital, its
successor and assigns, are the sole insureds of such lender's title
insurance policy, and such lender's title insurance policy is valid and
remains in full force and effect and will be in force and effect upon the
consummation of the transactions contemplated by this Agreement. No claims
have been made under such lender's title insurance policy, and no prior
holder of the related Mortgage, including NC Capital, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy, including without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind
has been or will be received, retained or realized by any attorney, firm
or other person or entity, and no such unlawful items have been received,
retained or realized by NC Capital;
(s) No Defaults. Other than payments due but not yet 30 days or more
delinquent, there is no default, breach, violation or event which would
permit acceleration existing under the Mortgage or the Mortgage Note and
no event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach, violation
or event which would permit acceleration, and neither NC Capital nor any
of its Affiliates nor any of their respective predecessors, have waived
any default, breach, violation or event which would permit acceleration;
(t) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights
are outstanding that under the law could give rise to such liens)
affecting the related Mortgaged Property which are or may be liens prior
to, or equal or coordinate with, the lien of the related Mortgage;
(u) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines
of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being
part of the Mortgaged Property is in violation of any applicable zoning
law or regulation;
(v) Origination; Payment Terms. The Mortgage Loan was originated by
a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings
and loan association, a savings bank, a commercial bank, credit union,
insurance company or other similar institution which is supervised and
examined by a federal or state authority. Principal payments on the
Mortgage Loan commenced no more than seventy days after funds were
disbursed in connection with the Mortgage Loan. The Mortgage Interest Rate
as well as, in the case of an Adjustable Rate Mortgage Loan, the Lifetime
Rate Cap and the Periodic Cap are as set forth on the related Mortgage
Loan Schedule. The Mortgage Note is payable in equal monthly installments
of principal and interest, which installments of interest, with respect to
Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment
Date, with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by the stated maturity date, over an
original term of not more than thirty years from commencement of
amortization. Unless otherwise specified on the related Mortgage Loan
Schedule, the Mortgage Loan is payable on the first day of each month. The
Mortgage Loan does not require a balloon payment on its stated maturity
date;
(w) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property
of the benefits of the security provided thereby, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and
(ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on a
Mortgage Loan and foreclosure on, or trustee's sale of, the Mortgaged
Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a
Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage,
subject to applicable federal and state laws and judicial precedent with
respect to bankruptcy and right of redemption or similar law;
(x) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting
Guidelines (a copy of which is attached to each related Assignment and
Conveyance Agreement). The Mortgage Note and Mortgage are on forms
acceptable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae and neither NC Capital nor the
Originator has made any representations to a Mortgagor that are
inconsistent with the mortgage instruments used;
(y) Occupancy of the Mortgaged Property. As of the related Closing
Date the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities. Unless otherwise
specified on the related Mortgage Loan Schedule, the Mortgagor represented
at the time of origination of the Mortgage Loan that the Mortgagor would
occupy the Mortgaged Property as the Mortgagor's primary residence;
(z) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding
Mortgage and the security interest of any applicable security agreement or
chattel mortgage referred to in clause (j) above;
(aa) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will become payable
by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(bb) Acceptable Investment. There are no circumstances or conditions
with respect to the Mortgage, the Mortgaged Property, the Mortgagor, the
Mortgage File or the Mortgagor's credit standing that can reasonably be
expected to cause private institutional investors who invest in mortgage
loans similar to the Mortgage Loan to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan, or cause
the Mortgage Loans to prepay during any period materially faster or slower
than the mortgage loans originated by NC Capital generally;
(cc) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to
be delivered under the Custodial Agreement for each Mortgage Loan have
been delivered to the Custodian. NC Capital is in possession of a
complete, true and accurate Mortgage File in compliance with Exhibit A
hereto, except for such documents the originals of which have been
delivered to the Custodian;
(dd) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a
de minimis planned unit development) such condominium or planned unit
development project such Mortgage Loan was originated in accordance with,
and the Mortgaged Property meets the guidelines set forth in the
Originator's Underwriting Guidelines;
(ee) Transfer of Mortgage Loans. The Assignment of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or
its designee) with respect to each Mortgage Loan is in recordable form and
is acceptable for recording under the laws of the jurisdiction in which
the Mortgaged Property is located;
(ff) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains an enforceable provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event
that the Mortgaged Property is sold or transferred without the prior
written consent of the mortgagee thereunder, and to the best of NC
Capital's knowledge, such provision is enforceable;
(gg) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first
Interest Rate Adjustment Date, a related Mortgage Loan may only be assumed
if the party assuming such Mortgage Loan meets certain credit requirements
stated in the Mortgage Loan Documents;
(hh) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any
separate account established by NC Capital, the Mortgagor, or anyone on
behalf of the Mortgagor, or paid by any source other than the Mortgagor
nor does it contain any other similar provisions which may constitute a
"buydown" provision. The Mortgage Loan is not a graduated payment mortgage
loan and the Mortgage Loan does not have a shared appreciation or other
contingent interest feature;
(ii) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable Cut-off Date have been consolidated
with the outstanding principal amount secured by the Mortgage, and the
secured principal amount, as consolidated, bears a single interest rate
and single repayment term. The lien of the Mortgage securing the
consolidated principal amount is expressly insured as having first (with
respect to a First Lien Loan) or second (with respect to a Second Lien
Loan) lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title
evidence acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The consolidated
principal amount does not exceed the original principal amount of the
Mortgage Loan;
(jj) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended and each Mortgaged Property is in good repair.
There have not been any condemnation proceedings with respect to the
Mortgaged Property;
(kk) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by
NC Capital and the Originator with respect to the Mortgage Loan have been
in all respects in compliance with Accepted Servicing Practices,
applicable laws and regulations, and have been in all respects legal and
proper. With respect to escrow deposits and Escrow Payments, all such
payments are in the possession of, or under the control of, NC Capital or
the Originator and there exist no deficiencies in connection therewith for
which customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with state and
federal law and the provisions of the related Mortgage Note and Mortgage.
An escrow of funds is not prohibited by applicable law and has been
established in an amount sufficient to pay for every item that remains
unpaid and has been assessed but is not yet due and payable. No escrow
deposits or Escrow Payments or other charges or payments due NC Capital
have been capitalized under the Mortgage or the Mortgage Note. All
Mortgage Interest Rate adjustments have been made in strict compliance
with state and federal law and the terms of the related Mortgage and
Mortgage Note on the related Interest Rate Adjustment Date. If, pursuant
to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with
respect to each Mortgage Note which required a new index to be selected,
and such selection did not conflict with the terms of the related Mortgage
Note. NC Capital or the Originator executed and delivered any and all
notices required under applicable law and the terms of the related
Mortgage Note and Mortgage regarding the Mortgage Interest Rate and the
Monthly Payment adjustments. Any interest required to be paid pursuant to
state, federal and local law has been properly paid and credited;
(ll) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the
Mortgage Interest Rate from an adjustable rate to a fixed rate;
(mm) Other Insurance Policies; No Defense to Coverage. No action,
inaction or event has occurred and no state of facts exists or has existed
on or prior to the Closing Date that has resulted or will result in the
exclusion from, denial of, or defense to coverage under any applicable
hazard insurance policy, PMI Policy or bankruptcy bond (including, without
limitation, any exclusions, denials or defenses which would limit or
reduce the availability of the timely payment of the full amount of the
loss otherwise due thereunder to the insured), irrespective of the cause
of such failure of coverage. In connection with the placement of any such
insurance, no commission, fee, or other compensation has been or will be
received by NC Capital or by any officer, director, or employee of NC
Capital or any designee of NC Capital or any corporation in which NC
Capital or any officer, director, or employee had a financial interest at
the time of placement of such insurance;
(nn) No Violation of Environmental Laws. There is no pending action
or proceeding directly involving the Mortgaged Property in which
compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect to the Mortgage Property; and nothing further remains to be done
to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(oo) Servicemembers Civil Relief Act. The Mortgagor has not notified
NC Capital, and NC Capital has no knowledge of any relief requested or
allowed to the Mortgagor under the Relief Act, or other similar state
statute;
(pp) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage
Loan application by a Qualified Appraiser, duly appointed by NC Capital or
the Originator, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan, and the appraisal and appraiser both satisfy the
requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and Title XI of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated;
(qq) Disclosure Materials. The Mortgagor has executed a statement to
the effect that the Mortgagor has received all disclosure materials
required by, and the Originator has complied with, all applicable law with
respect to the making of the Mortgage Loans. NC Capital shall cause the
Originator to maintain such statement in the Mortgage File;
(rr) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(ss) Escrow Analysis. If applicable, with respect to each Mortgage,
NC Capital or the Originator has within the last twelve months (unless
such Mortgage was originated within such twelve month period) analyzed the
required Escrow Payments for each Mortgage and adjusted the amount of such
payments so that, assuming all required payments are timely made, any
deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance
with RESPA and any other applicable law;
(tt) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices;
(uu) No Default Under First Lien. With respect to each Second Lien
Loan, the related First Lien Loan related thereto is in full force and
effect, and there is no default, breach, violation or event which would
permit acceleration existing under such first Mortgage or Mortgage Note,
and no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default,
breach, violation or event which would permit acceleration thereunder;
(vv) Right to Cure First Lien. With respect to each Second Lien
Loan, the related first lien Mortgage contains a provision which provides
for giving notice of default or breach to the mortgagee under the Mortgage
Loan and allows such mortgagee to cure any default under the related first
lien Mortgage;
(ww) No Failure to Cure Default. NC Capital has not received a
written notice of default of any senior mortgage loan related to the
Mortgaged Property which has not been cured;
(xx) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit
information furnished by NC Capital to the Purchaser, that Seller has full
right and authority and is not precluded by law or contract from
furnishing such information to the Purchaser and the Purchaser is not
precluded from furnishing the same to any subsequent or prospective
purchaser of such Mortgage. NC Capital shall hold the Purchaser harmless
from any and all damages, losses, costs and expenses (including attorney's
fees) arising from disclosure of credit information in connection with the
Purchaser's secondary marketing operations and the purchase and sale of
mortgages or Servicing Rights thereto;
(yy) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground
lease will not terminate earlier than five years after the maturity date
of the Mortgage Loan; (3) the ground lease does not provide for
termination of the lease in the event of lessee's default without the
mortgagee being entitled to receive written notice of, and a reasonable
opportunity to cure the default; (4) the ground lease permits the
mortgaging of the related Mortgaged Property; (5) the ground lease
protects the mortgagee's interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments
that have become due have been paid; and (7) the use of leasehold estates
for residential properties is a widely accepted practice in the
jurisdiction in which the Mortgaged Property is located;
(zz) Prepayment Penalty. Each Mortgage Loan that is subject to a
prepayment penalty as provided in the related Mortgage Note is identified
on the related Mortgage Loan Schedule. With respect to Mortgage Loans
originated prior to October 1, 2002, no such Prepayment Penalty may be
imposed for a term in excess of five (5) years following origination. With
respect to Mortgage Loans originated on or after October 1, 2002, no such
Prepayment Penalty may be imposed for a term in excess of three (3) years
following origination;
(aaa) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or
after October 1, 2002 through March 6, 2003 is governed by the Georgia
Fair Lending Act. No Mortgage Loan is covered by the Home Ownership and
Equity Protection Act of 1994 and no Mortgage Loan is in violation of any
comparable state or local law;
(bbb) Single-premium credit life insurance policy. In connection
with the origination of any Mortgage Loan, no proceeds from such Mortgage
Loan were used to finance or acquire a single-premium credit life
insurance policy;
(ccc) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage
under Section 860G(a)(3) of the Code;
(ddd) Tax Service Contract. Each Mortgage Loan is covered by a paid
in full, life of loan, tax service contract issued by First American Real
Estate Tax Service, and such contract is transferable;
(eee) Origination. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to
the ability of the Mortgagor to repay and the extension of credit which
has no apparent benefit to the Mortgagor, were employed in the origination
of the Mortgage Loan;
(fff) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment
to the Purchaser) have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof as
against creditors of NC Capital, or is in the process of being recorded;
(ggg) Co-op Loans. With respect to a Mortgage Loan that is a Co-op
Loan, (i) a search for filings of financing statements has been made by a
company competent to make the same, which company is acceptable to ▇▇▇▇▇▇
▇▇▇ and qualified to do business in the jurisdiction where the cooperative
unit is located, and such search has not found anything which would
materially and adversely affect the Co-op Loan, (ii) the stock that is
pledged as security for the Mortgage Loan is held by a person as a
"tenant-stockholder" and the related cooperative corporation that owns
title to the related cooperative apartment building is a "cooperative
housing corporation," each within the meaning of Section 216 of the Code
and (iii) there is no prohibition against pledging the shares of the
cooperative corporation or assigning the Co-op Lease;
(hhh) Mortgagor Bankruptcy. On or prior to the date 60 days after
the related Closing Date, the Mortgagor has not filed and will not file a
bankruptcy petition or has not become the subject and will not become the
subject of involuntary bankruptcy proceedings or has not consented to or
will not consent to the filing of a bankruptcy proceeding against it or to
a receiver being appointed in respect of the related Mortgaged Property;
(iii) No Prior Offer. The Mortgage Loan has not previously been
offered for sale;
(jjj) No Arbitration. No Mortgage Loan originated on or after August
1, 2004 requires the related Mortgagor to submit to arbitration to resolve
any dispute arising out of or relating in any way to the Mortgage Loan
transaction;
(kkk) Credit Reporting: NC Capital has caused to be fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis;
(lll) ▇▇▇▇▇▇ Mae Guides Anti-Predatory Lending Eligibility: Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for purchase requirements of ▇▇▇▇▇▇ ▇▇▇ Guides;
(mmm) Mortgagor Selection. No Mortgagor was encouraged or required
to select a Mortgage Loan product offered by the Originator which is a
higher cost product designed for less creditworthy mortgagors, unless at
the time of the Mortgage Loan's origination, such Mortgagor did not
qualify taking into account credit history and debt-to-income ratios for a
lower-cost credit product then offered by the Originator or any Affiliate
of the Originator. If, at the time of loan application, the Mortgagor may
have qualified for a lower-cost credit product then offered by any
mortgage lending Affiliate of the Originator, the Originator referred the
related Mortgagor's application to such Affiliate for underwriting
consideration;
(nnn) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs objective
mathematical principles which relate the related Mortgagor's income,
assets and liabilities to the proposed payment and such underwriting
methodology does not rely on the extent of the related Mortgagor's equity
in the collateral as the principal determining factor in approving such
credit extension. Such underwriting methodology confirmed that at the time
of origination (application/approval) the related Mortgagor had a
reasonable ability to make timely payments on the Mortgage Loan;
(ooo) Mortgage Loans with Prepayment Premiums. With respect to any
Mortgage Loan that contains a provision permitting imposition of a premium
upon a prepayment prior to maturity: (i) prior to the Mortgage Loan's
origination, the related Mortgagor agreed to such premium in exchange for
a monetary benefit, including but not limited to a rate or fee reduction,
(ii) prior to the Mortgage Loan's origination, the related Mortgagor was
offered the option of obtaining a mortgage loan that did not require
payment of such a premium, (iii) the prepayment premium is disclosed to
the related Mortgagor in the Mortgage Loan documents pursuant to
applicable state and federal law, and (iv) notwithstanding any state or
federal law to the contrary, the Originator, as servicer, shall not impose
such prepayment premium in any instance when the mortgage debt is
accelerated as the result of the related Mortgagor's default in making the
Mortgage Loan payments;
(ppp) Purchase of Insurance. No Mortgagor was required to purchase
any credit life, disability, accident or health insurance product as a
condition of obtaining the extension of credit. No Mortgagor obtained a
prepaid single-premium credit life, disability, accident or health
insurance policy in connection with the origination of the Mortgage Loan.
No proceeds from any Mortgage Loan were used to purchase single premium
credit insurance policies as part of the origination of, or as a condition
to closing, such Mortgage Loan; (qqq) Points and Fees. All points and fees
related to each Mortgage Loan were disclosed in writing to the Mortgagor
in accordance with applicable state and federal law and regulation. Except
in the case of a Mortgage Loan in an original principal amount of less
than $60,000 which would have resulted in an unprofitable origination, no
Mortgagor was charged "points and fees" (whether or not financed) in an
amount greater than 5% of the principal amount of such Mortgage Loan, such
5% limitation is calculated in accordance with ▇▇▇▇▇▇ Mae's anti-predatory
lending requirements as set forth in the ▇▇▇▇▇▇ ▇▇▇ Guides;
(rrr) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed, collected
or to be collected in connection with the origination and servicing of
each Mortgage Loan, have been disclosed in writing to the Mortgagor in
accordance with applicable state and federal law and regulation;
(sss) New Jersey Covered Loans. Neither NC Capital nor the
Originator has engaged in the practice of "flipping" (as defined in the
New Jersey Home Ownership Security Act of 2002) a New Jersey Covered Loan;
(ttt) No Services Termination Fee. Each agreement with a servicer of
the Mortgage Loan, if any, provides for the termination of the servicing
rights relating to the Mortgage Loan on the related servicing transfer
date, without the payment of any termination fee or other expense by
Purchaser;
(uuu) Consumer Credit Laws. The Mortgage Loan complies with all
applicable consumer credit statutes and regulations, including, without
limitation, the respective Uniform Consumer Credit Code laws in effect in
Colorado, Idaho, Indiana, Iowa, Kansas, Maine, Oklahoma, South Carolina,
Utah and Wyoming, has been originated by a properly licensed entity, and
in all other respects, complies with all of the material requirements of
any such applicable laws;
(vvv) Simple Interest Mortgage Loans. With respect to each Mortgage
Loan that is a simple interest Mortgage Loan, the Mortgage Loan is
identified on the related Mortgage Loan Schedule as a simple interest
Mortgage Loan, the Mortgage Loan is required to be serviced as a simple
interest mortgage loan pursuant to the terms of the related Mortgage Note,
and the servicing and collection practices used in connection therewith
have been in accordance with legal, proper, prudent and customary
practices for servicing simple interest mortgage loans;
(www) First Lien Loans. With respect to any First Lien Loan, the
Mortgaged Property was not, as of the date of origination of the Mortgage
Loan, subject to a mortgage, deed of trust, deed to secure debt or other
security instrument creating a lien subordinate to the lien of the
Mortgage;
(xxx) Second Lien Loans. No Mortgage Loan which is a second lien was
originated at the same time or otherwise in connection with any first lien
Mortgage Loan except to the extent that Seller has disclosed the existence
of the second lien mortgage loan to Purchaser;
(yyy) 100% of Purchase Financed. No Mortgage Loan is a "manufactured
housing loan" pursuant to the New Jersey Act, and one hundred percent of
the amount financed of any purchase money second lien Mortgage Loan
subject to the New Jersey Act was used for the purchase of the related
Mortgaged Property; and
(zzz) No Points or Fee on Prepayment. No points, fees or similar
charges are required to be reimbursed to a Mortgagor upon a prepayment in
full of the related Mortgage Loan.
SCHEDULE V
Mortgage Pass-Through Certificates,
Series 2005-HE1
Representations and Warranties as to NC Capital
NC Capital Corporation hereby makes the representations and
warranties set forth in this Schedule V to the Depositor, the Servicers and the
Trustee, as of the Closing Date:
(a) Due Organization and Authority. The Responsible Party is a
corporation duly organized, validly existing and in good standing
under the laws of the state of California and has all licenses
necessary to carry on its business as now being conducted and is
licensed, qualified and in good standing in each state wherein it
owns or leases any material properties or where a Mortgaged Property
is located, if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by
the Responsible Party, and in any event the Responsible Party is in
compliance with the laws of any such state to the extent necessary;
the Responsible Party has the full corporate power, authority and
legal right to execute and deliver this Agreement and to perform its
obligations hereunder; the execution, delivery and performance of
this Agreement by the Responsible Party and the consummation of the
transactions contemplated hereby have been duly and validly
authorized; this Agreement and all agreements contemplated hereby
have been duly executed and delivered and constitute the valid,
legal, binding and enforceable obligations of the Responsible Party,
regardless of whether such enforcement is sought in a proceeding in
equity or at law; and all requisite corporate action has been taken
by the Responsible Party to make this Agreement and all agreements
contemplated hereby valid and binding upon the Responsible Party in
accordance with their terms;
(b) No Conflicts. Neither the execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the
terms, conditions or provisions of the Responsible Party's charter
or by-laws or any legal restriction or any agreement or instrument
to which the Responsible Party is now a party or by which it is
bound, or constitute a default or result in an acceleration under
any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Responsible Party
or its property is subject, or result in the creation or imposition
of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage,
contract, deed of trust or other instrument;
(c) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Responsible Party,
before any court, administrative agency or other tribunal asserting
the invalidity of this Agreement, seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or which, either in any one instance or in the aggregate,
may result in any material adverse change in the business,
operations, financial condition, properties or assets of the
Responsible Party, or in any material impairment of the right or
ability of the Responsible Party to carry on its business
substantially as now conducted, or in any material liability on the
part of the Responsible Party, or which would draw into question the
validity of this Agreement or of any action taken or to be taken in
connection with the obligations of the Responsible Party
contemplated herein, or which would be likely to impair materially
the ability of the Responsible Party to perform under the terms of
this Agreement; and
(d) No Consent Required. No consent, approval, authorization or order
of, or registration or filing with, or notice to any court or
governmental agency or body including HUD, the FHA or the VA is
required for the execution, delivery and performance by the
Responsible Party of or compliance by the Responsible Party with
this Agreement or the consummation of the transactions contemplated
by this Agreement, or if required, such approval has been obtained
prior to the Closing Date.
SCHEDULE VI
Mortgage Pass-Through Certificates,
Series 2005-HE1
Representations and Warranties of WMC Mortgage Corp. as to the Mortgage Loans
WMC Mortgage Corp. hereby makes the representations and warranties
set forth in this Schedule VI as to the WMC Mortgage Loans only to the
Depositor, the Servicers and the Trustee, as of November 30, 2005 (the
"Securitization Closing Date") (unless otherwise expressly indicated).
Capitalized terms used but not otherwise defined in this Schedule VI shall have
the meanings ascribed thereto in the WMC Purchase Agreement.
(a) Mortgage Loans as Described. WMC Mortgage Corp. has delivered to
the Purchaser the Data Tape Information and that Data Tape Information and
the information set forth on the Mortgage Loan Schedule (other than
information regarding the Stated Principal Balances) are true and correct,
including, without limitation, the terms of the Prepayment Changes, if
any, as of the Closing Date. As of the WMC Servicing Transfer Date with
respect to each Mortgage Loan, the information regarding the Stated
Principal Balances set forth on the Data Tape Information and the Mortgage
Loan Schedule are true and correct;
(b) Payments Current. As of October 28, 2005 (the "WMC Servicing
Transfer Date") all payments required to be made for the Mortgage Loan
under the terms of the Mortgage Note, other than payments not yet 30 days
delinquent, have been made and credited. No payment required under the
Mortgage Loan is 30 days or more delinquent nor has any payment under the
Mortgage Loan been 30 days or more delinquent at any time since the
origination of the Mortgage Loan. The first Monthly Payment shall be made
with respect to the Mortgage Loan on its related Due Date or within the
grace period, all in accordance with the terms of the related Mortgage
Note;
(c) No Outstanding Charges. As of the WMC Servicing Transfer Date,
there were no defaults in complying with the terms of the Mortgage, and
all taxes, governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously
became due and owing have been paid, or an escrow of funds has been
established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable.
WMC has not advanced funds, or induced, solicited or knowingly received
any advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required under the Mortgage
Loan, except for interest accruing from the date of the Mortgage Note or
date of disbursement of the Mortgage Loan proceeds, whichever is earlier,
to the day which precedes by one month the related Due Date of the first
installment of principal and interest;
(d) Original Terms Unmodified. As of the WMC Servicing Transfer
Date, the terms of the Mortgage Note and Mortgage have not been impaired,
waived, altered or modified in any respect, from the date of origination
except by a written instrument which has been recorded, if necessary to
protect the interests of the Purchaser, and which has been delivered to
the Custodian or to such other Person as the Purchaser shall designate in
writing, and the terms of which are reflected in the related Mortgage Loan
Schedule. The substance of any such waiver, alteration or modification has
been approved by the title insurer, if any, to the extent required by the
policy, and its terms are reflected on the related Mortgage Loan Schedule,
if applicable. As of the WMC Servicing Transfer Date, no Mortgagor has
been released, in whole or in part, except in connection with an
assumption agreement, approved by the title insurer, to the extent
required by the policy, and which assumption agreement is part of the
Mortgage Loan File delivered to the Custodian or to such other Person as
the Purchaser shall designate in writing and the terms of which are
reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the defense of usury, nor will the operation of any of the terms of the
Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in whole or
in part and no such right of rescission, set-off, counterclaim or defense
has been asserted with respect thereto, subject to bankruptcy, equitable
principles and laws affecting creditor rights;
(f) Hazard Insurance. As of the WMC Servicing Transfer Date,
pursuant to the terms of the Mortgage, all buildings or other improvements
upon the Mortgaged Property are insured by an insurer acceptable to Seller
in accordance with the Underwriting Guidelines and which is rated B:III or
better in the current Best's Key Rating Guide ("Best's") against loss by
fire, hazards of extended coverage and such other hazards as are customary
in the area where the Mortgaged Property is situated. If required by the
National Flood Insurance Act of 1968, as amended, each Mortgage Loan is
covered by a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration as in effect
which policy conforms to the Underwriting Guidelines. All individual
insurance policies contain a standard mortgagee clause naming WMC and its
successors and assigns as mortgagee, and as of the WMC Servicing Transfer
Date, all premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain the hazard insurance policy at the
Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at such Mortgagor's cost and expense, and to seek reimbursement
therefor from the Mortgagor. As of the WMC Servicing Transfer Date, where
required by state law or regulation, the Mortgagor has been given an
opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering a condominium, or any hazard insurance policy covering the common
facilities of a planned unit development. As of the WMC Servicing Transfer
Date, the hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full force and
effect and inure to the benefit of the Purchaser upon the consummation of
the transactions contemplated by this Agreement. WMC has not engaged in,
and has no knowledge of the Mortgagor's having engaged in, any act or
omission which would impair the coverage of any such policy, the benefits
of the endorsement provided for herein, or the validity and binding effect
of either including, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or
will be received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been received, retained
or realized by WMC;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity, disclosure and all predatory and
abusive lending laws applicable to the Mortgage Loan, including, without
limitation, any provisions relating to the Illinois Interest Act and the
Prepayment Penalty, if any, applicable to such Mortgage Loan, have been
complied with, the consummation of the transactions contemplated hereby
will not involve the violation of any such laws or regulations, and WMC
shall maintain in its possession, available for the Purchaser's
inspection, and shall deliver to the Purchaser upon demand, evidence of
compliance with all such requirements to the extent compliance therewith
can be demonstrated and if required by applicable law;
(h) No Satisfaction of Mortgage. As of the WMC Servicing Transfer
Date, the Mortgage has not been satisfied, canceled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such release, cancellation,
subordination or rescission. WMC has not waived the performance by the
Mortgagor of any action, if the Mortgagor's failure to perform such action
would cause the Mortgage Loan to be in default, nor has WMC waived any
default resulting from any action or inaction by the Mortgagor;
(i) Type of Mortgaged Property. With respect to a Mortgage Loan that
is not a Co-op Loan, the Mortgaged Property is a fee simple estate or a
leasehold estate located in a jurisdiction in which the use of a leasehold
estate for residential properties is a widely accepted practice that
consists of one or more separate and complete tax parcels of real property
improved by a Residential Dwelling; provided, however, that any
condominium unit, planned unit development or residential cooperative
housing corporation shall conform with the Underwriting Guidelines. In the
case of any Mortgaged Properties that are Manufactured Homes (a
"Manufactured Home Mortgage Loan"), (i) the related manufactured dwelling
is permanently affixed to the land, (ii) the related manufactured dwelling
and the related land are subject to a Mortgage properly filed in the
appropriate public recording office and naming Seller (or the Mortgage
Loan originator) as mortgagee, (iii) the applicable laws of the
jurisdiction in which the related Mortgaged Property is located will deem
the manufactured dwelling located on such Mortgaged Property to be a part
of the real property on which such dwelling is located, and (iv) such
manufactured Home Mortgage Loan is (x) a qualified mortgage under Section
860G(a)(3) of the Internal Revenue Code of 1986, as amended and (y)
secured by manufactured housing treated as a single family residence under
Section 25(e)(10) of the Code. No portion of the Mortgaged Property (or
underlying Mortgaged Property, in the case of a Co-op Loan) is used for
commercial purposes, and since the date of origination, no portion of the
Mortgaged Property has been used for commercial purposes; provided, that
Mortgaged Properties which contain a home office shall not be considered
as being used for commercial purposes as long as the Mortgaged Property
has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner
repair, maintenance and/or household purposes. None of the Mortgaged
Properties are log homes, mobile homes, geodesic domes or other unique
property types;
(j) Valid First or Second Lien. As of the WMC Servicing Transfer
Date, the Mortgage is a valid, subsisting, enforceable, first lien (with
respect to a First Lien Loan) or second lien (with respect to a Second
Lien Loan) on the Mortgaged Property, including all buildings and
improvements on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems
located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. As of the
WMC Servicing Transfer Date, the lien of the Mortgage is subject only to
(collectively, the "Permitted Exceptions"):
(i) with respect to a Second Lien Loan only, the lien of the first
mortgage on the Mortgaged Property;
(ii) the lien of current real property taxes and assessments not yet
due and payable;
(iii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions generally
and specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and which do not
adversely affect the Appraised Value of the Mortgaged Property set forth
in such appraisal; and
(iv) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to
and delivered in connection with the Mortgage Loan establishes and creates
a valid, subsisting and enforceable first lien (with respect to a First
Lien Loan) or second lien (with respect to a Second Lien Loan) and first
priority (with respect to a First Lien Loan) or second priority (with
respect to a Second Lien Loan) security interest on the property described
therein and as of the WMC Original Sale Date, WMC had full right to sell
and assign the same to the Purchaser, subject to the Permitted Exceptions;
(k) Valid First or Second Priority Security Interest. As of the WMC
Servicing Transfer Date, with respect to any Co-op Loan, the related
Mortgage is a valid, subsisting, and enforceable first priority security
interest (with respect to a First Lien Loan) or second priority security
interest (with respect to a Second Lien Loan) on the related cooperative
shares securing the Mortgage Note, subject only to (a) liens of the
related residential cooperative housing corporation for unpaid assessments
representing the Mortgagor's pro rata share of the related residential
cooperative housing corporation's payments for its blanket mortgage,
current and future real property taxes, insurance premiums, maintenance
fees and other assessments to which like collateral is commonly subject
and (b) other matters to which like collateral is commonly subject which
do not materially interfere with the benefits of the security interest
intended to be provided by the related Security Agreement;
(l) Request for Notice; No Consent Required. With respect to any
Second Lien Loan, where required or customary in the jurisdiction in which
the Mortgaged Property is located, the original lender has filed for
record a request for notice of any action by the related senior
lienholder, and WMC has notified the senior lienholder in writing of the
existence of the Second Lien Loan and requested notification of any action
to be taken against the Mortgagor by the senior lienholder. Either (a) no
consent for the Second Lien Loan is required by the holder of the related
first lien or (b) such consent has been obtained and is contained in the
Mortgage File;
(m) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid
and binding obligation of the maker thereof enforceable in accordance with
its terms (including, without limitation, any provisions relating to the
Prepayment Penalty, if any, applicable to the Mortgage Loan), except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting
the enforcement of the rights of creditors and (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law.
All parties to the Mortgage Note, the Mortgage and any other such related
agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such
agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by other such related
parties. No fraud, error, omission, misrepresentation, negligence or
similar occurrence with respect to a Mortgage Loan has taken place on the
part of WMC in connection with the origination of the Mortgage Loan or in
the application of any insurance in relation to such Mortgage Loan. No
fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage Loan has taken place on the part of
WMC in connection with the origination of the Mortgage Loan or in the
application of any insurance in relation to such Mortgage Loan.
Notwithstanding the foregoing, but without limiting the other
representations and warranties set forth elsewhere in this Agreement, if
any error, omission or negligence in the origination of such Mortgage Loan
occurred despite Seller's conformance with its Underwriting Guidelines (as
in effect at the time such Mortgage Loan was made), then there shall be a
presumptive conclusion that there was no error, omission or negligence. In
addition, omissions relating to information required under certain loan
programs will not constitute omissions for purposes hereof. No fraud,
misrepresentation, or similar occurrence or, to Seller's knowledge, error,
omission, or negligence with respect to a Mortgage Loan has taken place on
the part of any Person (other than Seller), including without limitation,
the Mortgagor, any appraiser, any builder or developer, or any other party
involved in the origination of the Mortgage Loan or in the application for
any insurance in relation to such Mortgage Loan. WMC has reviewed all of
the documents constituting the Servicing File and has made such inquiries
as it deems necessary to make and confirm the accuracy of the
representations set forth herein;
(n) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement and
as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and the recording of the Mortgage were paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note
or Mortgage;
(o) Ownership. As of August 31, 2005 (the "WMC Original Sale Date"),
WMC was the sole owner of record and holder of the Mortgage Loan and the
indebtedness evidenced by each Mortgage Note and upon the sale of the
Mortgage Loans to the Purchaser, and up to the WMC Servicing Transfer
Date, WMC retained the Mortgage Files or any part thereof with respect
thereto not delivered to the Custodian, the Purchaser or the Purchaser's
designee, in trust only for the purpose of servicing and supervising the
servicing of each Mortgage Loan. As of the WMC Original Sale Date, the
Mortgage Loan was not assigned or pledged, and WMC had good, indefeasible
and marketable title thereto, and had full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest,
and had full right and authority subject to no interest or participation
of, or agreement with, any other party, to sell and assign each Mortgage
Loan pursuant to the WMC Purchase Agreement and following the sale of each
Mortgage Loan, the Purchaser owned such Mortgage Loan free and clear of
any encumbrance, equity, participation interest, lien, pledge, charge,
claim or security interest. Upon WMC's receipt of the Purchase Price, WMC
relinquished all rights to possess, control and monitor the Mortgage Loan.
After the WMC Original Sale Date, WMC had no right to modify or alter the
terms of the sale of the Mortgage Loan and after the Secuitization Closing
Date WMC has no obligation or right to repurchase the Mortgage Loan or
substitute another Mortgage Loan, except as provided in this Agreement;
(p) Doing Business. As of the WMC Original Sale Date, all parties
which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held and disposed of such interest, were) (1) in compliance with any and
all applicable licensing requirements of the laws of the state wherein the
Mortgaged Property is located to the extent required to ensure
enforceability of the Mortgage Loan, and (2) either (i) organized under
the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national
bank having a principal office in such state, or (3) not doing business in
such state;
(q) LTV, PMI Policy. No Mortgage Loan has an LTV or CLTV greater
than 100%. No Mortgage Loan is covered by a PMI Policy;
(r) Title Insurance. As of the WMC Servicing Transfer Date, with
respect to a Mortgage Loan which is not a Co-op Loan, the Mortgage Loan is
covered by an ALTA lender's title insurance policy, or with respect to any
Mortgage Loan for which the related Mortgaged Property is located in
California a CLTA lender's title insurance policy, or other generally
acceptable form of policy or insurance acceptable to pursuant to WMC's
Underwriting Guidelines and each such title insurance policy is issued by
a title insurer acceptable to prudent lenders in the secondary mortgage
market and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring WMC, its successors and assigns,
as to the first (with respect to a First Lien Loan) or second (with
respect to a Second Lien Loan) priority lien of the Mortgage in the
original principal amount of the Mortgage Loan (or to the extent a
Mortgage Note provides for negative amortization, the maximum amount of
negative amortization in accordance with the Mortgage), subject only to
the exceptions contained in clauses (i), (ii) and (iii) of paragraph (j)
of this Section 9.02, and in the case of Adjustable Rate Mortgage Loans,
against any loss by reason of the invalidity or unenforceability of the
lien resulting from the provisions of the Mortgage providing for
adjustment to the Mortgage Interest Rate and Monthly Payment. As of the
WMC Servicing Transfer Date, where required by state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. Additionally, such lender's title
insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein.
WMC, its successor and assigns, are the sole insureds of such lender's
title insurance policy, and as of the WMC Servicing Transfer Date, such
lender's title insurance policy is valid and remains in full force and
effect and will be in force and effect upon the consummation of the
transactions contemplated by this Agreement. As of the WMC Servicing
Transfer Date, no claims have been made under such lender's title
insurance policy, and as of the WMC Servicing Transfer Date, no prior
holder of the related Mortgage, including WMC, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy, including without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind
has been or will be received, retained or realized by any attorney, firm
or other person or entity, and no such unlawful items have been received,
retained or realized by WMC;
(s) No Defaults. As of the WMC Servicing Transfer Date, other than
payments due but not yet 30 days or more delinquent, there is no default,
breach, violation or event which would permit acceleration existing under
the Mortgage or the Mortgage Note and no event which, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit
acceleration, and neither WMC nor any of its affiliates nor any of their
respective predecessors, have waived any default, breach, violation or
event which would permit acceleration;
(t) No Mechanics' Liens. As of the WMC Servicing Transfer Date,
there are no mechanics' or similar liens or claims which have been filed
for work, labor or material (and no rights are outstanding that under the
law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to, or equal or coordinate with,
the lien of the related Mortgage;
(u) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines
of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being
part of the Mortgaged Property is in violation of any applicable zoning
law or regulation;
(v) Origination; Payment Terms. The Mortgage Loan was originated by
(i) a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings
and loan association, a savings bank, a commercial bank, credit union,
insurance company or other similar institution which is supervised and
examined by a federal or state authority or (ii) by a correspondent
mortgage banker or broker licensed or authorized to do business in the
jurisdiction in which the related Mortgaged Property is located, as
indicated on the Mortgage Loan Schedule, in which case the Mortgage Loan
was re-underwritten by WMC prior to purchasing the Mortgage Loan in
accordance with its Underwriting Guidelines in effect on the date such
Mortgage Loan was originated. Unless such Mortgage Loan is an
Interest-Only Loan, principal payments on the Mortgage Loan commenced no
more than seventy days after funds were disbursed in connection with the
Mortgage Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Cap
are as set forth on the related Mortgage Loan Schedule. Unless identified
on the related Mortgage Loan Schedule as an Internet-Only Loan or Balloon
Mortgage Loan, the Mortgage Note is payable in equal monthly installments
of principal and interest, which installments of interest, with respect to
Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment
Date, with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan, unless such Mortgage Loan is an Interest-Only
Loan or Balloon Mortgage Loan, fully by the stated maturity date, over an
original term of not more than thirty years from commencement of
amortization (or forty years for Mortgage Loans identified on the Mortgage
Loan Schedule as a Balloon Mortgage Loan with a forty year amortization
period), the Mortgage Loan is payable on the first day of each month.
Unless otherwise specified on the related Mortgage Loan Schedule, the
Mortgage Loan is payable on the first day of each month. Unless identified
on the related Mortgage Loan Schedule as a Balloon Mortgage Loan, the
Mortgage Loan does not require a balloon payment on its stated maturity
date;
(w) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property
of the benefits of the security provided thereby, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and
(ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on a
Mortgage Loan and foreclosure on, or trustee's sale of, the Mortgaged
Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a
Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage,
subject to applicable federal and state laws and judicial precedent with
respect to bankruptcy and right of redemption or similar law;
(x) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting
Guidelines (a copy of which shall be attached to each related Assignment
and Conveyance Agreement). The Mortgage Note and Mortgage are on forms
acceptable to prudent lenders in the secondary mortgage market and WMC has
not made any representations to a Mortgagor that are inconsistent with the
mortgage instruments used;
(y) Occupancy of the Mortgaged Property. As of the related Closing
Date the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities. Unless otherwise
specified on the related Mortgage Loan Schedule, the Mortgagor represented
at the time of origination of the Mortgage Loan that the Mortgagor would
occupy the Mortgaged Property as the Mortgagor's primary residence;
(z) No Additional Collateral. As of the WMC Servicing Transfer Date,
the Mortgage Note is not and has not been secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in clause
(j) above;
(aa) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will become payable
by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(bb) [Reserved];
(cc) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to
be delivered under the Custodial Agreement for each Mortgage Loan have
been delivered to the Custodian. WMC is in possession of a complete, true
and accurate Mortgage File in compliance with Exhibit A hereto, except for
such documents the originals of which have been delivered to the
Custodian;
(dd) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a
de minimis planned unit development) such condominium or planned unit
development project such Mortgage Loan was originated in accordance with,
and the Mortgaged Property meets the guidelines set forth in the
Underwriting Guidelines;
(ee) Transfer of Mortgage Loans. The Assignment of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or
its designee) with respect to each Mortgage Loan is in recordable form and
is acceptable for recording under the laws of the jurisdiction in which
the Mortgaged Property is located;
(ff) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains a provision for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written
consent of the mortgagee thereunder, and to the best of WMC's knowledge,
such provision is enforceable, subject to bankruptcy, equitable principles
and laws affecting creditor rights;
(gg) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents do not allow an assumption of such
Mortgage Loan by any other party;
(hh) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any
separate account established by WMC, the Mortgagor, or anyone on behalf of
the Mortgagor, or paid by any source other than the Mortgagor nor does it
contain any other similar provisions which may constitute a "buydown"
provision. The Mortgage Loan is not a graduated payment mortgage loan and
the Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
(ii) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable Cut-off Date have been consolidated
with the outstanding principal amount secured by the Mortgage, and the
secured principal amount, as consolidated, bears a single interest rate
and single repayment term. The lien of the Mortgage securing the
consolidated principal amount is expressly insured as having first (with
respect to a First Lien Loan) or second (with respect to a Second Lien
Loan) lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title
evidence acceptable to prudent lenders in the secondary market. The
consolidated principal amount does not exceed the original principal
amount of the Mortgage Loan;
(jj) Mortgaged Property Undamaged; No Condemnation Proceedings. As
of the WMC Servicing Transfer Date, there is no proceeding pending or, to
WMC's knowledge, threatened for the total or partial condemnation of the
Mortgaged Property. As of the WMC Servicing Transfer Date, the Mortgaged
Property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty so as to affect adversely the
value of the Mortgaged Property as security for the Mortgage Loan or the
use for which the premises were intended and as of the WMC Servicing
Transfer Date, each Mortgaged Property is in at least the same condition
or better than its condition at the time of its appraisal. As of the WMC
Servicing Transfer Date,there have not been any condemnation proceedings
with respect to the Mortgaged Property;
(kk) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. As of the WMC Servicing Transfer Date, the origination,
servicing and collection practices used by WMC with respect to the
Mortgage Loan have been in all respects in compliance with Accepted
Servicing Practices, applicable laws and regulations, and have been in all
respects legal and proper. As of the WMC Servicing Transfer Date, with
respect to escrow deposits and Escrow Payments, all such payments are in
the possession of, or under the control of, WMC and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. As of the WMC Servicing Transfer
Date, all Escrow Payments have been collected in full compliance with
state and federal law and the provisions of the related Mortgage Note and
Mortgage. As of the WMC Servicing Transfer Date, an escrow of funds is not
prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed
but is not yet due and payable. As of the WMC Servicing Transfer Date, no
escrow deposits or Escrow Payments or other charges or payments due WMC
have been capitalized under the Mortgage or the Mortgage Note. As of the
WMC Servicing Transfer Date, all Mortgage Interest Rate adjustments have
been made in strict compliance with state and federal law and the terms of
the related Mortgage and Mortgage Note on the related Interest Rate
Adjustment Date. As of the WMC Servicing Transfer Date, if, pursuant to
the terms of the Mortgage Note, another index was selected for determining
the Mortgage Interest Rate, the same index was used with respect to each
Mortgage Note which required a new index to be selected, and such
selection did not conflict with the terms of the related Mortgage Note.
WMC executed and delivered any and all notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
Mortgage Interest Rate and the Monthly Payment adjustments. As of the WMC
Servicing Transfer Date, any interest required to be paid pursuant to
state, federal and local law has been properly paid and credited;
(ll) Conversion to Fixed Interest Rate. The Mortgage Loan is not a
Convertible Mortgage Loan;
(mm) Other Insurance Policies; No Defense to Coverage. As of the WMC
Servicing Transfer Date, no action, inaction or event has occurred and no
state of facts exists or has existed on or prior to the Closing Date that
has resulted or will result in the exclusion from, denial of, or defense
to coverage under any applicable hazard insurance policy, PMI Policy or
bankruptcy bond (including, without limitation, any exclusions, denials or
defenses which would limit or reduce the availability of the timely
payment of the full amount of the loss otherwise due thereunder to the
insured), irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee,
or other compensation has been or will be received by WMC or by any
officer, director, or employee of WMC or any designee of WMC or any
corporation in which WMC or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
(nn) No Violation of Environmental Laws. As of the WMC Servicing
Transfer Date, to the best of WMC's knowledge, there is no pending action
or proceeding directly involving the Mortgaged Property in which
compliance with any environmental law, rule or regulation is an issue; and
as of the WMC Servicing Transfer Date, there is no violation of any
environmental law, rule or regulation with respect to the Mortgage
Property;
(oo) Servicemembers' Civil Relief Act. As of the WMC Servicing
Transfer Date, the Mortgagor has not notified WMC, and WMC has no
knowledge of any relief requested or allowed to the Mortgagor under the
Relief Act, or other similar state statute;
(pp) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage
Loan application by a Qualified Appraiser, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan, and the appraisal and appraiser both
satisfy the requirements of the Underwriting Guidelines and Title XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989
and the regulations promulgated thereunder, all as in effect on the date
the Mortgage Loan was originated;
(qq) Disclosure Materials. WMC has executed a statement to the
effect that (i) the Mortgagor has received all disclosure materials
required by the Mortgagor, and (ii) WMC has complied with all applicable
law with respect to the making of the Mortgage Loans. WMC shall maintain
such statement in the Mortgage File;
(rr) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(ss) Escrow Analysis. If applicable, with respect to each Mortgage,
WMC has within the last twelve months (unless such Mortgage was originated
within such twelve month period) analyzed the required Escrow Payments for
each Mortgage and adjusted the amount of such payments so that, assuming
all required payments are timely made, any deficiency will be eliminated
on or before the first anniversary of such analysis, or any overage will
be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(tt) Prior Servicing. As of the WMC Servicing Transfer Date, each
Mortgage Loan has been serviced in all material respects in compliance
with Accepted Servicing Practices;
(uu) No Default Under First Lien. As of the WMC Servicing Transfer
Date, with respect to each Second Lien Loan, (a) the related First Lien
Loan related thereto is in full force and effect, and (b) there is no
default, breach, violation or event which would permit acceleration
existing under such first Mortgage or Mortgage Note, and (c) no event
which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or
event which would permit acceleration thereunder;
(vv) Right to Cure First Lien. With respect to each Second Lien
Loan, the related first lien Mortgage contains a provision which provides
for giving notice of default or breach to the mortgagee under the Mortgage
Loan and allows such mortgagee to cure any default under the related first
lien Mortgage;
(ww) No Failure to Cure Default. As of the WMC Servicing Transfer
Date, WMC has not received a written notice of default of any senior
mortgage loan related to the Mortgaged Property which has not been cured;
(xx) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit
information furnished by WMC to the Purchaser, that Seller has full right
and authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from
furnishing the same to any subsequent or prospective purchaser of such
Mortgage. WMC shall hold the Purchaser harmless from any and all damages,
losses, costs and expenses (including attorney's fees) arising from
disclosure of credit information in connection with the Purchaser's
secondary marketing operations and the purchase and sale of mortgages or
Servicing Rights thereto;
(yy) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground
lease will not terminate earlier than five years after the maturity date
of the Mortgage Loan; (3) the ground lease does not provide for
termination of the lease in the event of lessee's default without the
mortgagee being entitled to receive written notice of, and a reasonable
opportunity to cure the default; (4) the ground lease permits the
mortgaging of the related Mortgaged Property; (5) the ground lease
protects the mortgagee's interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments
that have become due have been paid; and (7) the use of leasehold estates
for residential properties is a widely accepted practice in the
jurisdiction in which the Mortgaged Property is located;
(zz) Prepayment Penalty. Each Mortgage Loan that is subject to a
prepayment penalty as provided in the related Mortgage Note is identified
on the related Mortgage Loan Schedule. With respect to Mortgage Loans
originated prior to October 1, 2002, no such Prepayment Penalty may be
imposed for a term in excess of five (5) years following origination. With
respect to Mortgage Loans originated on or after October 1, 2002, no such
Prepayment Penalty may be imposed for a term in excess of three (3) years
following origination;
(aaa) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or
after October 1, 2002 through March 6, 2003 is governed by the Georgia
Fair Lending Act. No Mortgage Loan is covered by the Home Ownership and
Equity Protection Act of 1994 and no Mortgage Loan is in violation of any
comparable state or local law;
(bbb) Single-premium credit life insurance policy. In connection
with the origination of any Mortgage Loan, no proceeds from such Mortgage
Loan were used to finance or acquire a single-premium credit life
insurance policy;
(ccc) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage
under Section 860G(a)(3) of the Code;
(ddd) Tax Service Contract. Each Mortgage Loan is covered by a paid
in full, life of loan, tax service contract issued by Fidelity National
Tax Service (or another tax service contract provider acceptable to
prudent lenders in the secondary market), and such contract is
transferable;
(eee) Origination. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to
the ability of the Mortgagor to repay and the extension of credit which
has no apparent benefit to the Mortgagor, were employed in the origination
of the Mortgage Loan;
(fff) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment
to the Purchaser) have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof as
against creditors of WMC, or is in the process of being recorded;
(ggg) Co-op Loans. With respect to a Mortgage Loan that is a Co-op
Loan, (i) a search for filings of financing statements has been made by a
company competent to make the same, which company is acceptable to ▇▇▇▇▇▇
▇▇▇ and qualified to do business in the jurisdiction where the cooperative
unit is located, and such search has not found anything which would
materially and adversely affect the Co-op Loan, (ii) the stock that is
pledged as security for the Mortgage Loan is held by a person as a
"tenant-stockholder" and the related cooperative corporation that owns
title to the related cooperative apartment building is a "cooperative
housing corporation," each within the meaning of Section 216 of the Code
and (iii) there is no prohibition against pledging the shares of the
cooperative corporation or assigning the Co-op Lease;
(hhh) Mortgagor Bankruptcy. On or prior to the date 60 days after
the related Closing Date, the Mortgagor has not filed and will not file a
bankruptcy petition or has not become the subject and will not become the
subject of involuntary bankruptcy proceedings or has not consented to or
will not consent to the filing of a bankruptcy proceeding against it or to
a receiver being appointed in respect of the related Mortgaged Property;
(iii) No Prior Offer. The Mortgage Loan has not previously been
rejected by a third party purchaser;
(jjj) Credit Reporting. WMC has, in its capacity as servicer for
each Mortgage Loan, caused to be fully furnished, in accordance with the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower
credit files to Equifax, Experian, and Trans Union Credit Information
Company (three of the credit repositories), on a monthly basis.
(kkk) ▇▇▇▇▇▇ Mae Guides Anti-Predatory Lending Eligibility. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for purchase requirements of ▇▇▇▇▇▇ ▇▇▇ Guides;
(lll) Mortgagor Selection. No Mortgagor was encouraged or required
to select a Mortgage Loan product offered by WMC which is a higher cost
product designed for less creditworthy mortgagors, unless at the time of
the Mortgage Loan's origination, such Mortgagor did not qualify taking
into account credit history and debt-to-income ratios for a lower-cost
credit product then offered by WMC;
(mmm) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs objective
mathematical principles which relate the related Mortgagor's income,
assets and liabilities to the proposed payment and such underwriting
methodology does not rely on the extent of the related Mortgagor's equity
in the collateral as the principal determining factor in approving such
credit extension. Such underwriting methodology confirmed that at the time
of origination (application/approval) the related Mortgagor had a
reasonable ability to make timely payments on the Mortgage Loan;
(nnn) Mortgage Loans with Prepayment Premiums. With respect to any
Mortgage Loan that contains a provision permitting imposition of a premium
upon a prepayment prior to maturity: (i) prior to the Mortgage Loan's
origination, the related Mortgagor agreed to such premium in exchange for
a monetary benefit, including but not limited to a rate or fee reduction,
(ii) prior to the Mortgage Loan's origination, the related Mortgagor was
offered the option of obtaining a mortgage loan that did not require
payment of such a premium; provided, that such offer may have been
evidenced by WMC's rate sheet/pricing grid relating to such Mortgage Loan,
which provided that the Mortgage Loan had a full prepayment premium
buy-out pricing adjustment available, (iii) the prepayment premium is
disclosed to the related Mortgagor in the Mortgage Loan documents pursuant
to applicable state and federal law, and (iv) notwithstanding any state or
federal law to the contrary, WMC, as servicer, shall not impose such
prepayment premium in any instance when the mortgage debt is accelerated
as the result of the related Mortgagor's default in making the Mortgage
Loan payments;
(ooo) Purchase of Insurance. No Mortgagor was required to purchase
any single premium credit insurance policy (e.g., life, disability,
property, accident, unemployment or health insurance product) or debt
cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit insurance
policy (e.g., life, disability, property, accident, unemployment, mortgage
or health insurance) in connection with the origination of the Mortgage
Loan. No proceeds from any Mortgage Loan were used to purchase single
premium credit insurance policies as part of the origination of, or as a
condition to closing, such Mortgage Loan;
(ppp) Points and Fees. All points and fees related to each Mortgage
Loan were disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation. Except (i) as set forth
on the related Mortgage Loan Schedule or (ii) in the case of a Mortgage
Loan in an original principal amount of less than $60,000 which would have
resulted in an unprofitable origination, no Mortgagor was charged "points
and fees" (whether or not financed) in an amount greater than 5% of the
principal amount of such Mortgage Loan, such 5% limitation is calculated
in accordance with ▇▇▇▇▇▇ Mae's anti-predatory lending requirements as set
forth in the ▇▇▇▇▇▇ ▇▇▇ Guides;
(qqq) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed, collected
or to be collected in connection with the origination and servicing of
each Mortgage Loan, have been disclosed in writing to the Mortgagor in
accordance with applicable state and federal law and regulation;
(rrr) No Arbitration. No Mortgage Loan originated on or after July
1, 2004 requires the related Mortgagor to submit to arbitration to resolve
any dispute arising out of or relating in any way to the Mortgage Loan
transaction; and
(sss) Balloon Mortgage Loans. No Balloon Mortgage Loan has an
original stated maturity of less than seven (7) years.
SCHEDULE VII
Mortgage Pass-Through Certificates,
Series 2005-HE1
Representations and Warranties as to WMC Mortgage Corp.
WMC Mortgage Corp hereby makes the representations and warranties
set forth in this Schedule VII to the Depositor, the Servicers and the Trustee,
as of November 30, 2005 (the "Securitization Closing Date") (unless otherwise
expressly indicated). Capitalized terms used but not otherwise defined in this
Schedule VII shall have the meanings ascribed thereto in the WMC Purchase
Agreement.
(a) Due Organization and Authority. WMC is a corporation, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation or formation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in the states where the Mortgaged Property is located if the laws
of such state require licensing or qualification in order to conduct
business of the type conducted by WMC. WMC has corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant
to this Agreement) by WMC and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
has been duly executed and delivered and constitutes the valid, legal,
binding and enforceable obligation of WMC, except as enforceability may be
limited by (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of the rights of creditors and (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by WMC to make this Agreement valid and
binding upon WMC in accordance with its terms;
(b) No Consent Required. No consent, approval, authorization or
order is required for the transactions contemplated by this Agreement from
any court, governmental agency or body, or federal or state regulatory
authority having jurisdiction over WMC is required or, if required, such
consent, approval, authorization or order has been or will, prior to the
related Closing Date, be obtained;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of WMC, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by WMC pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(d) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by WMC,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance
with the terms and conditions of this Agreement, will conflict with or
result in a breach of any of the terms, conditions or provisions of WMC's
charter, by-laws or other organizational documents or any legal
restriction or any agreement or instrument to which WMC is now a party or
by which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which WMC or its property is
subject, or result in the creation or imposition of any lien, charge or
encumbrance that would have an adverse effect upon any of its properties
pursuant to the terms of any mortgage, contract, deed of trust or other
instrument, or impair the ability of the Purchaser to realize on the
Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance
benefits accruing pursuant to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to WMC's knowledge, threatened against WMC,
before any court, administrative agency or other tribunal asserting the
invalidity of this Agreement, seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or which, either in any
one instance or in the aggregate, would likely result in any material
adverse change in the business, operations, financial condition,
properties or assets of WMC, or in any material impairment of the right or
ability of WMC to carry on its business substantially as now conducted, or
in any material liability on the part of WMC, or which would draw into
question the validity of this Agreement or the Mortgage Loans or of any
action taken or to be taken in connection with the obligations of WMC
contemplated herein, or which would be likely to impair materially the
ability of WMC to perform under the terms of this Agreement;
(f) Ability to Perform; Solvency. WMC does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. WMC is solvent and the sale of the
Mortgage Loans will not cause WMC to become insolvent. The sale of the
Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud any of Seller's creditors;
(g) Seller's Origination. WMC's decision to originate any mortgage
loan or to deny any mortgage loan application is an independent decision
based upon the Underwriting Guidelines, and is in no way made as a result
of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(h) Anti-Money Laundering Laws. WMC has complied with all applicable
anti-money laundering laws and regulations, including without limitation
the USA Patriot Act of 2001 (collectively, the "Anti-Money Laundering
Laws"); WMC has established an anti-money laundering compliance program to
the extent required by the Anti-Money Laundering Laws, has conducted the
requisite due diligence in connection with the origination of each
Mortgage Loan to the extent required by and for purposes of the Anti-Money
Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said
Mortgagor to purchase the property in question, and maintains, and will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws;
(i) Financial Statements. WMC has delivered to the Purchaser
financial statements as to its last three complete fiscal years and any
later quarter ended more than 60 days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent
results of operations and changes in financial position for each of such
periods and the financial position at the end of each such period of WMC
and its subsidiaries and have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as set forth in the notes thereto. In addition, WMC has
delivered information as to its loan gain and loss experience in respect
of foreclosures and its loan delinquency experience for the immediately
preceding three-year period, in each case with respect to mortgage loans
owned by it and such mortgage loans serviced for others during such
period, and all such information so delivered shall be true and correct in
all material respects. There has been no change in the business,
operations, financial condition, properties or assets of WMC since the
date of WMC's financial statements that would have a material adverse
effect on its ability to perform its obligations under this Agreement. WMC
has completed any forms requested by the Purchaser in a timely manner and
in accordance with the provided instructions;
(j) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in WMC's portfolio at
the related Closing Date as to which the representations and warranties
set forth in the WMC Purchase Agreement could be made and such selection
was not made in a manner so as to affect adversely the interests of the
Purchaser;
(k) Delivery to the Custodian. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered
with respect to each Mortgage Loan pursuant to the Custodial Agreement,
shall be delivered to the Custodian all in compliance with the specific
requirements of the Custodial Agreement. With respect to each Mortgage
Loan, WMC will be in possession of a complete Mortgage File in compliance
with the WMC Purchase Agreement, except for such documents as will be
delivered to the Custodian;
(l) Mortgage Loan Characteristics. The characteristics of the
related Mortgage Loan Package are as set forth on the description of the
pool characteristics for the applicable Mortgage Loan Package delivered
pursuant to the WMC Purchase Agreement on the related Closing Date in the
form attached as Exhibit B to each related Assignment and Conveyance
Agreement;
(m) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any
Reconstitution Agreement or in connection with the transactions
contemplated hereby (including any Securitization Transfer or Whole Loan
Transfer) contains any untrue statement of fact;
(n) No Brokers. WMC has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(o) Sale Treatment. WMC intends to reflect the transfer of the
Mortgage Loans as a sale on the books and records of WMC;
(p) Owner of Record. WMC is the owner of record of each Mortgage and
the indebtedness evidenced by each Mortgage Note, except for the
Assignments of Mortgage which have been sent for recording, and upon
recordation WMC will be the owner of record of each Mortgage and the
indebtedness evidenced by each Mortgage Note, and upon the sale of the
Mortgage Loans to the Purchaser, WMC will retain the Mortgage Files with
respect thereto in trust only for the purpose of servicing and supervising
the servicing of each Mortgage Loan; and
(q) Reasonable Purchase Price. The consideration received by WMC
upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans.
EXHIBIT A
To be added to the Class A-1A Certificates, Class A-1B Certificates, Class A-2
Certificates and the Class B-4 Certificates while such Certificates remain
Private Certificates. [IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER (THE "TRANSFEROR LETTER")
IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE
TRUSTEE RECEIVES A RULE 144A LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT I
TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF
COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE
MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, in each case as if such
Certificate were evidenced by a Physical Certificate.
In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.]
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A
PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, NOR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR
ARRANGEMENT OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 84-14, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ 95-60 OR PTCE 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No: A-1A-[ ]
A-1B-[ ]
A-2-[ ]
A-3A-[ ]
A-3B-[ ]
A-3C-[ ]
M-1-[ ]
M-2-[ ]
M-3-[ ]
B-1-[ ]
B-2-[ ]
B-3-[ ]
B-4-[ ]
Cut-off Date: November 1, 2005
First Distribution Date: December 27, 2005
Initial Certificate Balance
of this Certificate
("Denomination"): $[ ]
Initial Certificate
Balances of all
Certificates of this Class: [A-1A] [$277,500,000]
[A-1B] [$69,376,000]
[A-2] [$124,536,000]
[A-3A] [$283,651,000]
[A-3B] [$106,663,000]
[A-3C] [$88,518,000]
[M-1] [$90,174,000]
[M-2] [$75,248,000]
[M-3] [$18,657,000]
[B-1] [$18,657,000]
[B-2] [$14,925,000]
[B-3] [$14,303,000]
[B-4] [$13,682,000]
CUSIP: [A-1A] [81375W GM 2]
[A-1B] [81375W GN 0]
[A-2] [81375W GP 5]
[A-3A] [81375W GC 4]
[A-3B] [81375W GD 2]
[A-3C] [81375W GE 0]
[M-1] [81375W GF 7]
[M-2] [81375W GG 5]
[M-3] [81375W GH 3]
[B-1] [81375W GJ 9]
[B-2] [81375W GK 6]
[B-3] [81375W GL 4]
[B-4] [81375W GQ 3]
ISIN: [A-1A] [US81375WGM29]
[A-1B] [US81375WGN02]
[A-2] [US81375WGP59]
[A-3A] [US81375WGC47]
[A-3B] [US81375WGD20]
[A-3C] [US81375WGE03]
[M-1] [US81375WGF77]
[M-2] [US81375WGG50]
[M-3] [US81375WGH34]
[B-1] [US81375WGJ99]
[B-2] [US81375WGK62]
[B-3] [US81375WGL46]
[B-4] [US81375WGQ33]
SECURITIZED ASSET BACKED RECEIVABLES LLC
SABR Trust 2005-HE1
Mortgage Pass-Through Certificates, Series 2005-HE1
[Class A-][Class M-][Class B-]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Responsible Parties, the Servicers or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among Securitized Asset Backed
Receivables LLC, as depositor (the "Depositor"), Countrywide Home Loans
Servicing LP, as servicer, and HomEq Servicing Corporation, as servicer
(together, the "Servicers"), MortgageRamp, Inc., as loan performance advisor, NC
Capital Corporation, as responsible party, and WMC Mortgage Corp., as
responsible party (together, the "Responsible Parties"), and ▇▇▇▇▇ Fargo Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By_____________________________________
Authenticated:
By ____________________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee
SECURITIZED ASSET BACKED RECEIVABLES LLC
Securitized Asset Backed Receivables LLC Trust 2005-HE1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Securitized Asset Backed Receivables LLC Trust 2005-HE1 Mortgage
Pass-Through Certificates, of the Series specified on the face hereof (herein
collectively called the "Certificates"), and representing a beneficial ownership
interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the Business Day immediately preceding such Distribution
Date; provided, however, that for any Definitive Certificates, the Record Date
shall be the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, either Servicer individually, or both Servicers
together, will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans and all property acquired in respect of the Mortgage
Loans at a purchase price determined as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number __________, or, if mailed by check, to _________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA"), OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : P-1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Percentage Interest of
this Certificate
("Denomination") : [___]%
SECURITIZED ASSET BACKED RECEIVABLES LLC
SABR Trust 2005-HE1
Mortgage Pass-Through Certificates, Series 2005-HE1
Class P
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Responsible
Parties, the Servicers or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among Securitized Asset Backed
Receivables LLC, as depositor (the "Depositor"), Countrywide Home Loans
Servicing LP, as servicer, and HomEq Servicing Corporation, as servicer
(together, the "Servicers"), MortgageRamp, Inc., as loan performance advisor, NC
Capital Corporation, as responsible party, and WMC Mortgage Corp., as
responsible party (together, the "Responsible Parties"), and ▇▇▇▇▇ Fargo Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purpose, or the office or agency
maintained by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Trustee that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, Section 4975 of the Code or any materially
similar provisions of applicable federal, state or local law ("Similar Law"), or
a person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By_______________________________________
Authenticated:
By ____________________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee
SECURITIZED ASSET BACKED RECEIVABLES LLC
Securitized Asset Backed Receivables LLC Trust 2005-HE1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Securitized Asset Backed Receivables LLC Trust 2005-HE1 Mortgage
Pass-Through Certificates, of the Series specified on the face hereof (herein
collectively called the "Certificates"), and representing a beneficial ownership
interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next preceding the month
of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or the office or agency maintained by the Trustee in Minnesota,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, either Servicer individually, or both Servicers
together, will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans and all property acquired in respect of the Mortgage
Loans at a purchase price determined as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number __________, or, if mailed by check, to _________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN FOUR "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED (I) TO A
PERSON OTHER THAN A PERMITTED TRANSFEREE IN COMPLIANCE WITH SECTION 5.02(C) OF
THE AGREEMENT OR (II) UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE A
REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR
A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS
OF SUCH A PLAN. IN THE EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY
ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF
ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO SIMILAR
LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING THE
ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR ACQUISITION
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : R-1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Percentage Interest of :
this Certificate
("Denomination") 100%
SECURITIZED ASSET BACKED RECEIVABLES LLC
Securitized Asset Backed Receivables LLC Trust 2005-HE1
Mortgage Pass-Through Certificates, Series 2005-HE1
Class R
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Distributions in respect of this Certificate is distributable
monthly as set forth herein. This Class R Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicers, the Responsible Parties or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that ________________________ is the registered owner
of the Percentage Interest specified above of any monthly distributions due to
the Class R Certificates pursuant to a Pooling and Servicing Agreement dated as
of the Cut-off Date specified above (the "Agreement") among Securitized Asset
Backed Receivables LLC, as depositor (the "Depositor"), Countrywide Home Loans
Servicing LP, as servicer, and HomEq Servicing Corporation, as servicer
(together, the "Servicers"), MortgageRamp, Inc., as loan performance advisor, NC
Capital Corporation, as responsible party, and WMC Mortgage Corp., as
responsible party (together, the "Responsible Parties"), and ▇▇▇▇▇ Fargo Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Trustee for such purposes or the
office or agency maintained by the Trustee in New York, New York.
No transfer of a Class R Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, the Servicers or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is a
Non-Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By: ___________________________________
Authenticated:
By:______________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee
SECURITIZED ASSET BACKED RECEIVABLES LLC
Securitized Asset Backed Receivables LLC Trust 2005-HE1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Securitized Asset Backed Receivables LLC Trust 2005-HE1 Mortgage
Pass-Through Certificates, of the Series specified on the face hereof (herein
collectively called the "Certificates"), and representing a beneficial ownership
interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next preceding the month
of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or the office or agency maintained by the Trustee in Minnesota,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, either Servicer individually, or both Servicers
together, will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans and all property acquired in respect of the Mortgage
Loans at a purchase price determined as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number __________, or, if mailed by check, to _________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN TWO "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER
ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL
NOT SUBJECT THE DEPOSITOR, THE TRUSTEE OR THE SERVICERS TO ANY OBLIGATION IN
ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : X-1
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Percentage Interest of this
Certificate ("Denomination") : [___]%
SECURITIZED ASSET BACKED RECEIVABLES LLC
Securitized Asset Backed Receivables LLC Trust 2005-HE1
Mortgage Pass-Through Certificates, Series 2005-HE1
Class X
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Servicers,
the Responsible Parties or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ____________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among Securitized Asset Backed
Receivables LLC, as depositor (the "Depositor"), Countrywide Home Loans
Servicing LP, as servicer, and HomEq Servicing Corporation, as servicer
(together, the "Servicers"), MortgageRamp, Inc., as loan performance advisor, NC
Capital Corporation, as responsible party, and WMC Mortgage Corp., as
responsible party (together, the "Responsible Parties"), and ▇▇▇▇▇ Fargo Bank,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purposes or the office or agency
maintained by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Trustee that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall be an expense of the transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Trustee
By:____________________________________
Authenticated:
By:______________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee
SECURITIZED ASSET BACKED RECEIVABLES LLC
Securitized Asset Backed Receivables LLC Trust 2005-HE1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Securitized Asset Backed Receivables LLC Trust 2005-HE1 Mortgage
Pass-Through Certificates, of the Series specified on the face hereof (herein
collectively called the "Certificates"), and representing a beneficial ownership
interest in the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next preceding the month
of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the parties to this Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or the office or agency maintained by the Trustee in Minnesota,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, either Servicer individually, or both Servicers
together, will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans and all property acquired in respect of the Mortgage
Loans at a purchase price determined as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
________________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number __________, or, if mailed by check, to _________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
Securitized Asset Backed Receivables LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of November 1, 2005, among
Securitized Asset Backed Receivables LLC, as Depositor, NC Capital
Corporation, as Responsible Party, WMC Mortgage Corp., as
Responsible Party, Countrywide Home Loans Servicing LP, as Servicer,
HomEq Servicing Corporation, as Servicer, MortgageRamp, Inc., as
Loan Performance Advisor, and ▇▇▇▇▇ Fargo Bank, National
Association, as Trustee, Securitized Asset Backed Receivables LLC
Trust, Series 2005-HE1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), for 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
Pooling and 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.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
as Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF TRUSTEE
[date]
Securitized Asset Backed Receivables LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Countrywide Home Loans Servicing LP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
HomEq Servicing Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
NC Capital Corporation
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
WMC Mortgage Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Pooling and Servicing Agreement, dated as of November 1, 2005, among
Securitized Asset Backed Receivables LLC, as Depositor, Countrywide
Home Loans Servicing LP, as Servicer, HomEq Servicing Corporation,
as Servicer, MortgageRamp, Inc., as Loan Performance Advisor, NC
Capital Corporation, as Responsible Party, WMC Mortgage Corp., as
Responsible Party, and ▇▇▇▇▇ Fargo Bank, National Association, as
Trustee, Securitized Asset Backed Receivables LLC Trust 2005-HE1
Mortgage Pass-Through Certificates, Series 2005-HE1
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and 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 2.01 of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form
provided in Section 2.01 of the Pooling and Servicing Agreement; or, if
the related Responsible Party 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 last endorsee.
(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.
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 (1), (2), (3), (15),
(22) and (30) of the Data Tape Information accurately reflects information set
forth in the Custodial File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and 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 Pooling and Servicing Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
as Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
Securitized Asset Backed Receivables LLC Trust 2005-HE1,
Mortgage Pass-Through Certificates, Series 2005-HE1
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement (the
"Agreement"), relating to the above-referenced Series, by and among Securitized
Asset Backed Receivables LLC, as depositor (the "Depositor"), Countrywide Home
Loans Servicing LP, as Servicer, HomEq Servicing Corporation, as Servicer,
MortgageRamp, Inc., as Loan Performance Advisor, NC Capital Corporation, as
Responsible Party, WMC Mortgage Corp., as Responsible Party, and ▇▇▇▇▇ Fargo
Bank, National Association, as Trustee. Capitalized terms used, but not defined
herein, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are
Non-Permitted Transferees; (ii) such tax will be imposed on the transferor, or,
if such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is a Non-Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is a
Non-Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is a Non-Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit H to the Agreement (a "Transferor Certificate") to the
effect that, among other things, such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is a Non-Permitted Transferee.
7. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate. The Transferee has historically paid its debts as they have
come due and intends to pay its debts as they come due in the future. The
Transferee intends to pay all taxes due with respect to the Certificate as they
become due.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is not a Disqualified Non-U.S. Person as defined
in the Agreement.
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Residual
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other U.S. Person.
12. Check the applicable paragraph:
[ ] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from
the Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding
any obligation of a person related to the Transferee within the meaning of
U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of
the U.S. Treasury Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions (including,
but not limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and other
factors specific to the Transferee) that it has determined in good faith.
[ ] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors,
by its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ___ day of _______, 20__.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
________________________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this____day of ________, 20__.
_________________________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
Securitized Asset Backed Receivables LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [_________]
▇▇▇▇▇ Fargo Bank, National Association,
as Trustee
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: SABR 2005-HE1
Re: Securitized Asset Backed Receivables LLC Trust 2005-HE1 Mortgage
Pass-Through Certificates, Series 2005-HE1, Class [__________]
----------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (i) we have no
knowledge the Transferee is a Non-Permitted Transferee and (ii) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (iii) we have
no reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_________________________________________
Print Name of Transferor
By:____________________________________
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
Securitized Asset Backed Receivables LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: [_________]
▇▇▇▇▇ Fargo Bank, National Association,
as Trustee
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: SABR 2005-HE1
Re: Securitized Asset Backed Receivables LLC Trust 2005-HE1 Mortgage
Pass-Through Certificates, Series 2005-HE1 [___________]
----------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class A-1A, Class
▇-▇▇, ▇▇▇▇▇ ▇-▇, Class A-3A, Class A-3B, Class A-3C, Class M-1, Class M-2, Class
M-3, Class B-1, Class B-2, Class B-3 or Class B-4 Certificate or we are not an
employee benefit plan that is subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or a plan or arrangement that
is subject to Section 4975 of the Internal Revenue Code of 1986, as amended, or
a plan subject to materially similar provisions of applicable federal, state or
local law, nor are we acting on behalf of any such plan or arrangement nor using
the assets of any such plan or arrangement to effect such acquisition or, with
respect to a Class X Certificate, the purchaser is an insurance company that is
purchasing this certificate with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60,
(e) we have not, nor has anyone acting on our behalf offered, transferred,
pledged, sold or otherwise disposed of the Certificates, any interest in the
Certificates or any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Certificates, any interest
in the Certificates or any other similar security from, or otherwise approached
or negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the Certificates
under the Securities Act or that would render the disposition of the
Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates,
and (f) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are aware
that the sale to us is being made in reliance on Rule 144A. We are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, or (ii) pursuant to another exemption
from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $_________ (1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:
Title:
Date: ___________________________________
-------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended, and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $_______ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_______ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:
Title:
IF AN ADVISER:
_________________________________________
Print Name of Buyer
Date: ___________________________________
EXHIBIT J
FORM OF REQUEST FOR RELEASE
(for Trustee)
To: ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Inventory Control - SABR 2005-HE1
Re: Pooling and Servicing Agreement dated November 1, 2005 Securitized
Asset Backed Receivables LLC, as Depositor, Countrywide Home Loans
Servicing LP, as Servicer, HomEq Servicing Corporation, as Servicer.
MortgageRamp, Inc., as Loan Performance Advisor, NC Capital
Corporation, as Responsible Party, WMC Mortgage Corp., as
Responsible Party, and ▇▇▇▇▇ Fargo Bank, National Association, as
Trustee
In connection with the administration of the Mortgage Loans held by
you as the [Trustee] on behalf of the Certificateholders, we request the
release, and acknowledge receipt, of the (Custodial File/[specify documents])
for the Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
------------------------------------
Mortgage Loan Number:
--------------------
Send Custodial File to:
----------------------
Delivery Method (check one)
---------------------------
____1. Regular mail
____2. Overnight courier (Tracking information: )
If neither box 1 nor 2 is checked, regular mail shall be assumed.
Reason for Requesting Documents (check one)
____1. Mortgage Loan Paid in Full. (The Company hereby certifies that all
amounts received in connection therewith have been credited to the
Collection Account as provided in the Pooling and Servicing
Agreement.)
____2. Mortgage Loan Repurchase Pursuant to Section 2.03 of the Pooling and
Servicing Agreement. (The Company hereby certifies that the
repurchase price has been credited to the Collection Account as
provided in the Pooling and Servicing Agreement.)
____3. Mortgage Loan Liquidated by _________________. (The Company hereby
certifies that all proceeds of foreclosure, insurance, condemnation
or other liquidation have been finally received and credited to the
Collection Account pursuant to the Pooling and Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the Trustee, please acknowledge your receipt by signing in
the space indicated below, and returning this form if requested by us.
[COUNTRYWIDE HOME LOANS
SERVICING LP]
[HOMEQ SERVICING CORPORATION]
By:____________________________________
Name:
Title:
Date:
[ACKNOWLEDGED AND AGREED:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:_________________________________________
Name:
Title:
Date: ]
EXHIBIT K
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and which shall be retained by the related Servicer or delivered to
and retained by the Trustee, as applicable:
(a) The documents or instruments set forth as items (i) to (ix) in
Section 2.01(b) of the Agreement.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income, if applicable.
(e) Verification of acceptable evidence of source and amount of down
payment.
(f) Credit report on Mortgagor.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property.
(i) Survey of the Mortgaged Property.
(j) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy,
i.e., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.
(k) All required disclosure statements.
(l) If required in an appraisal, termite report, structural
engineer's report, water potability and septic certification.
(m) Sales contract, if applicable.
Evidence of payment of taxes and insurance, insurance claim files,
correspondence, current and historical computerized data files (which include
records of tax receipts and payment history from the date of origination), and
all other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
EXHIBIT L
FORM OF CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
Re: Securitized Asset Backed Receivables LLC Trust 2005-HE1 (the
"Trust"), Mortgage Pass-Through Certificates, Series 2005-HE1,
issued pursuant to the Pooling and Servicing Agreement, dated as
November 1, 2005 (the "Pooling and Servicing Agreement"), by and
among Securitized Asset Backed Receivables LLC, as depositor, ▇▇▇▇▇
Fargo Bank, National Association, as trustee (the "Trustee"),
Countrywide Home Loans Servicing LP, as servicer, HomEq Servicing
Corporation, as servicer (together, the "Servicers"), MortgageRamp,
Inc., as loan performance advisor, NC Capital Corporation, as
responsible party, and WMC Mortgage Corp., as responsible party
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K (the "Annual
Report"), and all reports on Form 8-K containing distribution reports
(collectively with this Annual Report, the "Reports") filed in respect of
periods included in the year covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in the Reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this Annual Report;
3. Based on my knowledge, the distribution or servicing information
required to be provided to the Trustee by the Servicers under the Pooling and
Servicing Agreement, for inclusion in the Reports is included in the Reports;
4. Based on my knowledge and upon the annual compliance statement
included in this Annual Report and required to be delivered to the Trustee in
accordance with the terms of the Pooling and Servicing Agreement, and except as
disclosed in the Reports, the Servicers have fulfilled their respective
obligations under the Pooling and Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
Servicers' compliance with the minimum servicing standards based upon the
reports provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the Pooling and Servicing Agreement, that
is included in the Reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: the Trustee
and the Servicers.
Date: ________________________________
_______________________________________
[Signature]
[Title]
EXHIBIT M
FORM OF TRUSTEE'S CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: Securitized Asset Backed Receivables LLC Trust 2005-HE1 (the
"Trust"), Mortgage Pass-Through Certificates, Series 2005-HE1,
issued pursuant to the Pooling and Servicing Agreement, dated as
November 1, 2005 (the "Pooling and Servicing Agreement"), by and
among Securitized Asset Backed Receivables LLC, as depositor (the
"Depositor"), ▇▇▇▇▇ Fargo Bank, National Association, as trustee
(the "Trustee"), Countrywide Home Loans Servicing LP, as servicer,
HomEq Servicing Corporation, as servicer (together, the
"Servicers"), MortgageRamp, Inc., as loan performance advisor, NC
Capital Corporation, as responsible party, and WMC Mortgage Corp.,
as responsible party
I, [identify the certifying individual], certify to the Depositor
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___] (the "Annual Report"), and all reports on Form 8-K containing
distribution reports filed in respect of periods included in the year covered by
the Annual Report (collectively with the Annual Report, the "Reports"), of the
Trust;
2. Based on my knowledge, the information in the Reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by the Annual Report; and
3. Based on my knowledge, the distribution or servicing information
required to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement for inclusion in the Reports is included in the Reports.
Date:
_______________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT N
FORM OF SERVICER'S CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: Securitized Asset Backed Receivables LLC Trust 2005-HE1 (the
"Trust"), Mortgage Pass-Through Certificates, Series 2005-HE1,
issued pursuant to the Pooling and Servicing Agreement, dated as
November 1, 2005 (the "Pooling and Servicing Agreement"), by and
among Securitized Asset Backed Receivables LLC, as depositor (the
"Depositor"), ▇▇▇▇▇ Fargo Bank, National Association, as trustee
(the "Trustee"), Countrywide Home Loans Servicing LP, as servicer,
HomEq Servicing Corporation, as servicer (together, the
"Servicers"), MortgageRamp, Inc., as loan performance advisor, NC
Capital Corporation, as responsible party, and WMC Mortgage Corp.,
as responsible party
I, [identify the certifying individual], certify to the Depositor
and the Trustee, and their respective officers, directors and affiliates, and
with the knowledge and intent that they will rely upon this certification, that:
1. The servicing information required to be provided to the Trustee
by the Servicer under the Pooling and Servicing Agreement for the period covered
in the annual report on Form 10-K for the fiscal year [___] of the Trust, has
been so provided;
2. I am responsible for reviewing the activities performed by the
Servicer under the Pooling and Servicing Agreement and based upon my knowledge
and the annual compliance review for the fiscal year [___] required under the
Pooling and Servicing Agreement, and except as disclosed in the annual
compliance statement for the fiscal year [___] required to be delivered to the
Trustee in accordance with the terms of the Pooling and Servicing Agreement
(which has been so delivered to the Trustee), the Servicer has fulfilled in all
material respects its obligations under the Pooling and Servicing Agreement; and
3. All significant deficiencies relating to the Servicer's
compliance with the minimum servicing standards for purposes of the report for
the fiscal year [___] provided by an independent public accountant, after
conducting a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar procedure, as set forth in the Pooling
and Servicing Agreement, have been disclosed to such accountant and are included
in such report.
[COUNTRYWIDE HOME LOANS SERVICING LP]
[HOMEQ SERVICING CORPORATION]
Dated: Date: _________________________________
[Signature]
[Title]
EXHIBIT O
FIRST FRANKLIN ASSIGNMENT AGREEMENT
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated November 30, 2005
("Agreement"), between Barclays Bank PLC ("Assignor") and Securitized Asset
Backed Receivables LLC ("Assignee"):
In consideration of the mutual promises and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest of the Assignor, as
purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Mortgage Loan
Purchase Agreement, dated as of March 1, 2004, as amended by Amendment No. 1,
dated as of August 30, 2004 (collectively, the "Purchase Agreement"), each
between the Assignor, as purchaser (the "Purchaser"), and the First Franklin
Financial Corporation (the "Company"), as seller, solely insofar as the Purchase
Agreement relates to the Mortgage Loans.
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement which are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement or (ii) the
rights of the Purchaser under Section 9.04 of the Purchase Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Assignee will transfer the Mortgage Loans and assign its rights
under the Purchase Agreement (solely to the extent set forth herein) and this
Agreement to Securitized Asset Backed Receivables LLC Trust 2005-HE1 (the
"Trust") created pursuant to a Pooling and Servicing Agreement, dated as of
November 1, 2005 (the "Pooling Agreement"), among the Assignee, ▇▇▇▇▇ Fargo,
National Association, as trustee (including its successors in interest and any
successor trustees under the Pooling Agreement, the "Trustee"), MortgageRamp
Inc., as loan performance advisor, NC Capital Corporation, as responsible party,
WMC Mortgage Corp., as responsible party, Countrywide Home Loans Servicing LP,
as servicer, and HomEq Servicing Corporation, as servicer (together, including
their successors in interest and any successor servicer under the Pooling
Agreement, the "Servicers"). The parties hereto hereby acknowledge and agree
that from and after the date hereof (i) the Trust will be the owner of the
Mortgage Loans, (ii) the Company shall look solely to the Trust for performance
of any obligations of the Assignor insofar as they relate to the Mortgage Loans,
(iii) the Trust (including the Trustee and the Servicers acting on the Trust's
behalf) shall have all the rights and remedies available to the Assignor,
insofar as they relate to the Mortgage Loans, under the Purchase Agreement,
including, without limitation, the enforcement of the document delivery
requirements set forth in Section 6 of the Purchase Agreement, and shall be
entitled to enforce all of the obligations of the Assignor thereunder insofar as
they relate to the Mortgage Loans, and (iv) all references to the Purchaser or
the Custodian under the Purchase Agreement insofar as they relate to the
Mortgage Loans, shall be deemed to refer to the Trust (including the Trustee and
the Servicers acting on the Trust's behalf). The Assignor shall not agree to
amend, modify, waive, or otherwise alter any of the terms or provisions of the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company's performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
Representations and Warranties of the Assignor
3. The Assignor hereby represents and warrants, for the benefit of
the Assignee and the Trust, that as to each Mortgage Loan:
(a) to the Assignor's knowledge, no event has occurred from the applicable
Original Sale Date to the Securitization Closing Date that would render
the representations and warranties as to such Mortgage Loan made by the
Company to be untrue in any material respect;
(b) the requirements of any applicable federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity and disclosure and all predatory and abusive lending laws have
been complied with in all material respects;
(c) no such Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act and no such
Mortgage Loan is (a) covered by the Home Ownership and Equity Protection
Act of 1994, (b) classified as a "high cost home," "threshold," "covered,"
"high risk home," "predatory" or similar loan under any other applicable
state, federal or local law (or a similarly classified loan using
different terminology under an applicable law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans having high interest rates, points and/or fees), (c) categorized as
High Cost or (d) categorized as Covered;
(d) no payment required under the Mortgage Loan is more than 30 days
delinquent; and
(e) other than payments due but not yet 30 days or more delinquent, there
is no material default, breach, violation or event which would permit
acceleration existing under the mortgage or the mortgage note and no event
which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event which would permit acceleration, and neither the
Assignee, as depositor, nor any of its affiliates have waived any default,
breach, violation or event which would permit acceleration.
For the purposes of this Section 3:
"Covered" means a Mortgage Loan categorized as Covered pursuant to
Appendix E of the Standard & Poor's Glossary.
"High Cost" means a Mortgage Loan categorized as High Cost pursuant to
Appendix E of the Standard & Poor's Glossary.
"Standard & Poor's Glossary" means the Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Remedies for Breach of Representations and Warranties
4. In the event of any breach of the representations and warranties
made by the Assignor set forth in Section 3 hereof, the Assignor shall be
obligated to either cure such breach or repurchase the applicable Mortgage Loan
in the manner set forth in Subsection 9.03 of the Purchase Agreement, but at the
Repurchase Price (as defined in the Pooling Agreement). If any such breach is
also a breach by the Company of any of its representations and warranties under
the Purchase Agreement, the Assignee shall first proceed against the Company to
enforce the rights and remedies it may have against the Company (and the
Assignee shall give prompt written notice to the Assignor of such enforcement).
If the Company fails to cure, repurchase or substitute for the affected Mortgage
Loan within the time permitted under the Purchase Agreement, the Trustee shall
then enforce the obligations of the Assignor hereunder to cure such breach or to
repurchase the Mortgage Loan from the Trust, and the Assignor shall be obligated
to cure such breach or repurchase the affected Mortgage Loan within 30 days
after notice by the Assignee to the Assignor of the Company's failure to perform
as aforesaid. In the event of a repurchase of any Mortgage Loan by the Assignor,
the Assignee shall promptly deliver to the Assignor or its designee the related
Mortgage File and shall assign to the Assignor all of the Assignee's rights
under the Purchase Agreement, insofar as they relate to such Mortgage Loan.
Miscellaneous
5. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
6. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
7. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee and
the Servicers acting on the Trust's behalf). Any entity into which Assignor,
Assignee or Company may be merged or consolidated shall, without the requirement
for any further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
8. Each of this Agreement and the Purchase Agreement shall survive
the conveyance of the Mortgage Loans and the assignment of the Purchase
Agreement (to the extent assigned hereunder) by Assignor to Assignee and by
Assignee to the Trust and nothing contained herein shall supersede or amend the
terms of the Purchase Agreement.
9. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
10. In the event that any provision of this Agreement conflicts with
any provision of the Purchase Agreement with respect to the Mortgage Loans, the
terms of this Agreement shall control.
11. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
BARCLAYS BANK PLC
By:____________________________________
Name:
Title:
SECURITIZED ASSET BACKED RECEIVABLES
LLC
By:____________________________________
Name:
Title:
EXHIBIT A
---------
Mortgage Loan Schedule
----------------------
Mortgage Loan No.
35422419
34504589
EXHIBIT P
FIRST FRANKLIN PURCHASE AGREEMENT
==============================================================================
BARCLAYS BANK, PLC,
Purchaser
FIRST FRANKLIN FINANCIAL CORP.,
Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of March 1, 2004
==============================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
ARTICLE II
AGREEMENT TO PURCHASE
Section 2.01 Agreement to Purchase.........................................
ARTICLE III
MORTGAGE SCHEDULES
Section 3.01 Preliminary Mortgage Schedule.................................
Section 3.02 Delivery of Mortgage Loan Schedule............................
ARTICLE IV
PURCHASE PRICE
Section 4.01 Purchase Price................................................
ARTICLE V
EXAMINATION OF MORTGAGE FILES
Section 5.01 Examination of Mortgage Files.................................
ARTICLE VI
CONVEYANCE FROM SELLER TO PURCHASER
Section 6.01 Conveyance of Mortgage Loans..................................
Section 6.02 Books and Records.............................................
Section 6.03 Delivery of Mortgage Loan Documents...........................
Section 6.04 Quality Control Procedures....................................
Section 6.05 MERS Designated Loans.........................................
ARTICLE VII
SERVICING OF THE MORTGAGE LOANS
Section 7.01 Servicing.....................................................
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PURCHASER
Section 8.01 Representations and Warranties Regarding the Purchaser........
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER; REMEDIES FOR BREACH
Section 9.01 Representations and Warranties Regarding the Seller...........
Section 9.02 Representations and Warranties Regarding Individual
Mortgage Loans...............................................
Section 9.03 Remedies for Breach of Representations and Warranties.........
Section 9.04 Repurchase of Mortgage Loans with First Payment Defaults......
Section 9.05 Premium Recapture.............................................
ARTICLE X
CLOSING
Section 10.01 Conditions to Closing.........................................
ARTICLE XI
CLOSING DOCUMENTS
Section 11.01 Required Closing Documents....................................
ARTICLE XII
COSTS
Section 12.01 Costs.........................................................
ARTICLE XIII
COOPERATION OF SELLER WITH A RECONSTITUTION
Section 13.01 Reconstitution of Mortgage Loans..............................
ARTICLE XIV
THE SELLER
Section 14.01 Additional Indemnification by the Seller; Third Party
Claims.......................................................
Section 14.02 Merger or Consolidation of the Seller.........................
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Financial Statements..........................................
Section 15.02 Mandatory Delivery; Grant of Security Interest................
Section 15.03 Notices.......................................................
Section 15.04 Severability Clause...........................................
Section 15.05 Counterparts..................................................
Section 15.06 Governing Law.................................................
Section 15.07 Intention of the Parties......................................
Section 15.08 Successors and Assigns; Assignment of Purchase Agreement......
Section 15.09 Waivers.......................................................
Section 15.10 Exhibits......................................................
Section 15.11 General Interpretive Principles...............................
Section 15.12 Reproduction of Documents.....................................
Section 15.13 Further Agreements............................................
Section 15.14 Recordation of Assignments of Mortgage........................
Section 15.15 No Solicitation...............................................
Section 15.16 Waiver of Trial by Jury.......................................
Section 15.17 Governing Law Jurisdiction; Consent to Service of Process.....
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT C FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G UNDERWRITING GUIDELINES
EXHIBIT H FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT I FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT
This MORTGAGE LOAN PURCHASE AGREEMENT (the "Agreement"), dated as of
March 1, 2004, by and between Barclays Bank, PLC, a public limited company
registered in England and Wales under company number 1026167, having an office
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), and First
Franklin Financial Corp., a Delaware corporation, having an office at ▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to time, from the
Seller, certain first and second lien, adjustable-rate and fixed-rate
residential mortgage loans (the "Mortgage Loans") on a servicing released basis
as described herein, and which shall be delivered in pools of whole loans (each,
a "Mortgage Loan Package") on various dates as provided herein (each, a "Closing
Date");
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust
or other security instrument creating a first or second lien on a residential
dwelling located in the jurisdiction indicated on the Mortgage Loan Schedule for
the related Mortgage Loan Package;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner
of the conveyance, servicing by the Interim Servicer and control of the Mortgage
Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated mortgage pass-through transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to this Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A ▇▇▇▇▇▇ ▇▇▇ Transfer or a ▇▇▇▇▇▇▇ Mac Transfer.
Agreement: This Mortgage Loan Purchase Agreement and all amendments
hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Ancillary Income: All late charges, assumption fees, escrow account
benefits, reinstatement fees, and similar types of fees arising from or in
connection with any Mortgage, to the extent not otherwise payable to the
Mortgagor under applicable law or pursuant to the terms of the related Mortgage
Note.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Assignment and Conveyance Agreement: As defined in Section 6.01.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan which by its original terms
or any modifications thereof provides for amortization beyond its scheduled
maturity date.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a
day on which banking and savings and loan institutions, in the State of New York
or the State in which the Interim Servicer's servicing operations are located or
(iii) the state in which the Custodian's operations are located, are authorized
or obligated by law or executive order to be closed.
Closing Date: The date or dates on which the Purchaser from time to
time shall purchase, and the Seller from time to time shall sell, the Mortgage
Loans listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
CLTV: As of any date and as to any Second Lien Loan, the ratio,
expressed as a percentage, of the (a) sum of (i) the outstanding principal
balance of the Second Lien Loan and (ii) the outstanding principal balance as of
such date of any mortgage loan or mortgage loans that are senior or equal in
priority to the Second Lien Loan and which are secured by the same Mortgaged
Property to (b) the Appraised Value as determined pursuant to the Underwriting
Guidelines of the related Mortgaged Property as of the origination of the Second
Lien Loan.
Code: Internal Revenue Code of 1986, as amended.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Co-op: A private, cooperative housing corporation, having only one
class of stock outstanding, which owns or leases land and all or part of a
building or buildings, including apartments, spaces used for commercial purposes
and common areas therein and whose board of directors authorizes the sale of
stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with respect to
a dwelling unit occupied by the Mortgagor and relating to the stock allocated to
the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock allocated
to a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.: A private, cooperative
housing corporation, having only one class of stock outstanding, which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes the sale of stock and the issuance of a Co-op Lease.
Custodial Account: The separate trust account created and maintained
pursuant to Subsection 2.04 of the Interim Servicing Agreement (with respect to
each Mortgage Loan, as specified therein).
Custodial Agreement: The agreement(s) governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in effect at
any given time, all of the individual Custodial Agreements shall collectively be
referred to as the "Custodial Agreement."
Custodian: ▇▇▇▇▇ Fargo Bank, N.A., a national banking association,
and its successors in interest or permitted assigns or any successor to the
Custodian under the Custodial Agreement as therein provided.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Determination Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, for an interim period, as
specified therein).
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Escrow Account: The separate account created and maintained pursuant
to Subsection 2.06 of the Interim Servicing Agreement (with respect to each
Mortgage Loan, as specified therein.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, f/k/a the Federal National Mortgage
Association, or any successor thereto.
▇▇▇▇▇▇ Mae Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇ Mae
Servicers' Guide, and all amendments or additions thereto.
▇▇▇▇▇▇ ▇▇▇ Transfer: As defined in Article XIII.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto and
including the Federal Housing Commissioner and the Secretary of Housing and
Urban Development where appropriate under the FHA Regulations.
First Lien Loan: A Mortgage Loan secured by a first lien Mortgage on
the related Mortgaged Property.
Fitch: Fitch, Inc., or its successor in interest.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
▇▇▇▇▇▇▇ Mac: ▇▇▇▇▇▇▇ Mac, f/k/a the Federal Home Loan Mortgage
Corporation, or any successor thereto.
▇▇▇▇▇▇▇ Mac Transfer: As defined in Article XIII.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a "high cost
home," "threshold," "covered," "high risk home," "predatory" or similar loan
under any other applicable state, federal or local law (or a similarly
classified loan using different terminology under an applicable law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees).
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the functions
thereof with regard to FHA Mortgage Insurance. The term "HUD," for purposes of
this Agreement, is also deemed to include subdivisions thereof such as the FHA
and Government National Mortgage Association.
Index: The index indicated in the related Mortgage Note for each
Adjustable Rate Mortgage Loan.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS System as the interim funder pursuant to the MERS
Procedures Manual.
Interim Servicer: The servicer under the Interim Servicing
Agreement, or its successor in interest or assigns, or any successor to the
Interim Servicer under the Interim Servicing Agreement, as therein provided.
Interim Servicing Agreement: The agreement to be entered into by the
Purchaser and the Interim Servicer, providing for the Interim Servicer to
service the Mortgage Loans as specified by the Interim Servicing Agreement.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the Lifetime Rate Cap set forth as an amount per annum on the related
Mortgage Loan Schedule.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan as of the related Cut-off Date (unless otherwise indicated), to
the lesser of (a) the Appraised Value of the Mortgaged Property at origination
and (b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with MERS Procedure Manual and (b) the Seller has
designated or will designate the Purchaser as the Investor on the MERS System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., and any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Loan, or
a second lien, in the case of a Second Lien Loan, on an unsubordinated estate in
fee simple in real property securing the Mortgage Note; except that with respect
to real property located in jurisdictions in which the use of leasehold estates
for residential properties is a widely accepted practice, the mortgage, deed of
trust or other instrument securing the Mortgage Note may secure and create, with
respect to a First Lien Loan, a first lien, and with respect to a Second Lien
Loan, a second lien, in each case, upon a leasehold estate of the Mortgagor.
With respect to a Co-op Loan, the Security Agreement.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set forth
in the related Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the applicable Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
Servicing Rights and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan, excluding replaced or
repurchased mortgage loans.
Mortgage Loan Documents: The documents required to be delivered to
the Custodian pursuant to Section 6.03 with respect to any Mortgage Loan.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting forth
the following information with respect to each Mortgage Loan in the related
Mortgage Loan Package: (1) the Seller's Mortgage Loan identifying number; (2)
the Mortgagor's name; (3) the street address of the Mortgaged Property including
the city, state and zip code; (4) a code indicating whether the Mortgagor is
self-employed; (5) a code indicating whether the Mortgaged Property is
owner-occupied, investment property or a second home; (6) the number and type of
residential units constituting the Mortgaged Property (e.g., single family
residence, a two- to four-family dwelling, condominium, planned unit development
or cooperative); (7) the original months to maturity or the remaining months to
maturity from the related Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule; (8) with respect to each
First Lien Loan, the Loan-to-Value Ratio at origination, and with respect to
each Second Lien Loan, the CLTV at origination; (9) the Mortgage Interest Rate
as of the related Cut-off Date; (10) the date on which the first Monthly Payment
was due on the Mortgage Loan and, if such date is not consistent with the Due
Date currently in effect, the Due Date; (11) the stated maturity date; (12) the
amount of the Monthly Payment as of the related Cut-off Date; (13) the last
payment date on which a payment was actually applied to the outstanding
principal balance; (14) the original principal amount of the Mortgage Loan; (15)
the principal balance of the Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction of payments of principal due and collected
on or before the related Cut-off Date; (16) with respect to each Adjustable Rate
Mortgage Loan, the Interest Rate Adjustment Date; (17) with respect to each
Adjustable Rate Mortgage Loan, the Gross Margin; (18) with respect to each
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap under the terms of the
Mortgage Note; (19) with respect to each Adjustable Rate Mortgage Loan, a code
indicating the type of Index; (20) the type of Mortgage Loan (i.e., Fixed Rate
or Adjustable Rate Mortgage Loan, First or Second Lien Loan); (21) a code
indicating the purpose of the loan (i.e., purchase, rate/term refinance, equity
take-out refinance); (22) a code indicating the documentation style (i.e. no
documents, full, alternative, reduced, no income/no asset, stated income, no
ratio, reduced or NIV); (23) asset verification (Y/N); (24) the loan credit
classification (as described in the Underwriting Guidelines); (25) whether such
Mortgage Loan provides for a Prepayment Penalty; (26) the Prepayment Penalty
period of such Mortgage Loan, if applicable; (27) the Mortgage Interest Rate as
of origination; (28) the credit risk score (FICO score); (29) the date of
origination; (30) with respect to each Adjustable Rate Mortgage Loan, the
Mortgage Interest Rate adjustment period; (31) with respect to each Adjustable
Rate Mortgage Loan, the Mortgage Interest Rate adjustment percentage; (32) with
respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate floor;
(33) the Mortgage Interest Rate calculation method (i.e., 30/360, simple
interest, other); (34) with respect to each Adjustable Rate Mortgage Loan, the
Periodic Rate Cap as of the first Interest Rate Adjustment Date; (35) a code
indicating whether the Mortgage Loan is a Balloon Mortgage Loan; (36) a code
indicating whether the Mortgage Loan is a High Cost Loan; (37) the original
Monthly Payment due; (38) the Appraised Value; (39) appraisal verification
(Y/N); (40) type of appraisal verification, if any; (41) a code indicating
whether the Mortgage Loan is covered by a PMI Policy and, if so, identifying the
PMI Policy provider; (42) in connection with a condominium unit, a code
indicating whether the condominium project where such unit is located is
low-rise or high-rise; (43) a code indicating whether the Mortgaged Property is
a leasehold estate; and (44) the MERS Identification Number, if applicable. With
respect to the Mortgage Loans in the aggregate, the related Mortgage Loan
Schedule shall set forth the following information, as of the related Cut-off
Date: (1) the number of Mortgage Loans; (2) the current aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted average Mortgage
Interest Rate of the Mortgage Loans; (4) the weighted average maturity of the
Mortgage Loans; (5) the average principal balance of the Mortgage Loans; (6) the
applicable Cut-off Date; and (7) the applicable Closing Date.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the Mortgagor's real property (or leasehold estate, if applicable)
securing repayment of a related Mortgage Note, consisting of an unsubordinated
estate in fee simple or, with respect to real property located in jurisdictions
in which the use of leasehold estates for residential properties is a
widely-accepted practice, a leasehold estate, in a single parcel or multiple
parcels of real property improved by a Residential Dwelling. With respect to a
Co-op Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Co-op Loan and
the related Co-op Lease.
Mortgagor: The obligor on the related Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller, reasonably acceptable to the Purchaser in the form attached as
Exhibit D hereto.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate
set forth as such on the related Mortgage Loan Schedule.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located.
Preliminary Mortgage Schedule: As defined in Article III.
Prepayment Penalty: With respect to each Mortgage Loan, the penalty
if the Mortgagor prepays such Mortgage Loan as provided in the related Mortgage
Note or Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon, and which is not
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Article IV of this Agreement.
Purchase Price and Terms Agreement: Those certain agreements setting
forth the general terms and conditions of the transactions consummated herein
and identifying the Mortgage Loans to be purchased from time to time hereunder,
by and between the Seller and the Purchaser.
Purchaser: Barclays Bank, PLC, a public limited company registered
in England and Wales under company number 1026167, and its successors in
interest and assigns, or any successor to the Purchaser under this Agreement as
herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller, who
had no interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation was not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfied the requirements of Title XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall will be deposited in
the Custodial Account by the Seller in the month of substitution); (ii) have a
Mortgage Interest Rate not less than and not more than 1% greater than the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than and not more than one year less than that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Mortgage Interest Rate Caps); and
(v) comply with each representation and warranty (respecting individual Mortgage
Loans) set forth in Article IX.
Rating Agency: Any of Fitch, Moody's or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution: A Whole Loan Transfer or a Securitization Transfer.
Reconstitution Date: As defined in Article XIII.
Relief Act: The Servicemembers Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, as specified therein).
Repurchase Price: As defined in the related Purchase Price and Terms
Agreement.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project or (iv) a one-family dwelling
in a planned unit development, none of which is a dwelling unit in a residential
cooperative housing corporation, mobile home or manufactured home.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Second Lien Loan: A Mortgage Loan secured by a second lien Mortgage
on the related Mortgaged Property.
Securitization Transfer: The sale or transfer of some or all of the
Mortgage Loans to a trust or other entity as part of a publicly-issued or
privately-placed, rated or unrated mortgage pass-through or other
mortgage-backed securities transaction.
Security Agreement: The agreement creating a security interest in
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As defined in the initial paragraph of the Agreement,
together with its successors in interest.
Servicing Fee: With respect to each Mortgage Loan subject to the
Interim Servicing Agreement, a fee payable monthly equal to one-twelfth of the
product of (a) the Servicing Fee Rate and (b) the outstanding principal balance
of such Mortgage Loan. Such fee shall be payable monthly and shall be pro-rated
for any portion of a month during which the Mortgage Loan is serviced by the
Interim Servicer under the Interim Servicing Agreement. The obligation of the
Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee is
payable solely from, the interest portion (including recoveries with respect to
interest from Liquidation Proceeds, to the extent permitted by this Agreement)
of such Monthly Payment collected by the Interim Servicer, or as otherwise
provided under this Agreement.
Servicing Fee Rate: An amount per annum as set forth in the Interim
Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Interim Servicer consisting of originals of all documents in the
Mortgage File which are not delivered to the Purchaser or the Custodian and
copies of the Mortgage Loan Documents set forth in Section 2 of the Custodial
Agreement.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the
extent they relate to such servicing rights and all rights of the Seller
thereunder; (e) Escrow Payments or other similar payments with respect to the
Mortgage Loans and any amounts actually collected by the Seller with respect
thereto; (f) all accounts and other rights to payment related to any of the
property described in this paragraph; and (g) any and all documents, files,
records, servicing files, servicing documents, servicing records, data tapes,
computer records, or other information pertaining to the Mortgage Loans or
pertaining to the past, present or prospective servicing of the Mortgage Loans.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and any successor thereto.
Stated Principal Balance: As to each Mortgage Loan on any date of
determination, (i) the principal balance of such Mortgage Loan at the related
Cut-off Date after giving effect to payments of principal due on or before such
date, to the extent actually received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal on such Mortgage Loan.
Underwriting Guidelines: The underwriting guidelines of the Seller,
a copy of which is attached as an exhibit to the related Assignment and
Conveyance.
Whole Loan Transfer: The sale or transfer by Purchaser of some or
all of the Mortgage Loans in a whole loan or participation format pursuant to a
Reconstitution Agreement.
ARTICLE II
AGREEMENT TO PURCHASE
Section 2.01 Agreement to Purchase.
The Seller agrees to sell from time to time, and the Purchaser
agrees to purchase from time to time, Mortgage Loans having an aggregate
principal balance on the related Cut-off Date in an amount as set forth in the
related Purchase Price and Terms Agreement, or in such other amount as agreed by
the Purchaser and the Seller as evidenced by the actual aggregate principal
balance of the Mortgage Loans accepted by the Purchaser on each Closing Date.
ARTICLE III
MORTGAGE SCHEDULES
Section 3.01 Preliminary Mortgage Schedule.
The Seller from time to time shall provide the Purchaser with
certain information constituting a preliminary listing of the Mortgage Loans to
be purchased on each Closing Date in accordance with the related Purchase Price
and Terms Agreement and this Agreement (each, a "Preliminary Mortgage
Schedule").
Section 3.02 Delivery of Mortgage Loan Schedule.
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans to be purchased on a particular Closing Date to the Purchaser at
least five (5) Business Days prior to the related Closing Date. The related
Mortgage Loan Schedule shall be the related Preliminary Mortgage Schedule with
those Mortgage Loans which have not been funded prior to the related Closing
Date deleted.
ARTICLE IV
PURCHASE PRICE
Section 4.01 Purchase Price.
The Purchase Price for each Mortgage Loan shall be the percentage of
par as stated in the related Purchase Price and Terms Agreement (subject to
adjustment as provided therein), multiplied by the aggregate principal balance,
as of the related Cut-off Date, of the Mortgage Loans listed on the related
Mortgage Loan Schedule, after application of scheduled payments of principal due
on or before the related Cut-off Date, but only to the extent such payments were
actually received. The initial principal amount of the related Mortgage Loans
shall be the aggregate principal balance of the Mortgage Loans, so computed as
of the related Cut-off Date. If so provided in the related Purchase Price and
Terms Agreement, portions of the Mortgage Loans shall be priced separately.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, at closing, accrued interest from the first day of the
month in which the related Closing Date occurs through the day prior to the
applicable Closing Date, inclusive, on the current principal amount of the
related Mortgage Loans as of the related Cut-off Date at the weighted average
Mortgage Interest Rate of those Mortgage Loans. The Purchase Price plus accrued
interest as set forth in this paragraph shall be paid to the Seller by wire
transfer of immediately available funds to an account designated by the Seller
in writing.
The Purchaser shall be entitled to (1) all scheduled principal due
after the related Cut-off Date, (2) all other recoveries of principal collected
on or after the related Cut-off Date, and (3) all payments of interest on the
Mortgage Loans as described above. The outstanding principal balance of each
Mortgage Loan as of the related Cut-off Date is determined after application of
payments of principal due on or before the related Cut-off Date, to the extent
actually collected, together with any unscheduled principal prepayments
collected prior to such Cut-off Date; provided, however, that payments of
scheduled principal and interest paid prior to such Cut-off Date, but to be
applied on a Due Date beyond the related Cut-off Date shall not be applied to
the principal balance as of the related Cut-off Date. Such prepaid amounts shall
be the property of the Purchaser. The Seller shall deposit any such prepaid
amounts into the Custodial Account, which account is established for the benefit
of the Purchaser for subsequent remittance by the Seller to the Purchaser.
ARTICLE V
EXAMINATION OF MORTGAGE FILES
Section 5.01 Examination of Mortgage Files.
At least five (5) Business Days prior to the related Closing Date,
the Seller shall (a) deliver to the Purchaser or its designee in escrow, for
examination with respect to each Mortgage Loan to be purchased, the related
Mortgage File, including a copy of the Assignment of Mortgage, pertaining to
each Mortgage Loan, or (b) make the related Mortgage File available to the
Purchaser for examination at such other location as shall otherwise be
acceptable to the Purchaser. Such examination may be made by the Purchaser or
its designee at any reasonable time before or after the related Closing Date. If
the Purchaser makes such examination prior to the related Closing Date and
determines, in its reasonable discretion, that any Mortgage Loans are
unacceptable to the Purchaser for any reason, such Mortgage Loans shall be
deleted from the related Mortgage Loan Schedule, and may be replaced by a
Qualified Substitute Mortgage Loan (or Loans) acceptable to the Purchaser. The
Purchaser may, at its option and without notice to the Seller, purchase some or
all of the Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
shall not affect the Purchaser's (or any of its successor's) rights to demand
repurchase, substitution or other relief as provided herein.
ARTICLE VI
CONVEYANCE FROM SELLER TO PURCHASER
Section 6.01 Conveyance of Mortgage Loans.
The Seller, simultaneously with the delivery of the Mortgage Loan
Schedule with respect to the related Mortgage Loan Package to be purchased on
each Closing Date, shall execute and deliver an Assignment and Conveyance
Agreement in the form attached hereto as Exhibit H (the "Assignment and
Conveyance Agreement"). The Seller shall cause the Servicing File retained by
the Interim Servicer pursuant to this Agreement to be appropriately identified
in the Seller's computer system and/or books and records, as appropriate, to
clearly reflect the sale of the related Mortgage Loan to the Purchaser. The
Seller shall cause the Interim Servicer to release from its custody the contents
of any Servicing File retained by it only in accordance with this Agreement or
the Interim Servicing Agreement, except when such release is required in
connection with a repurchase of any such Mortgage Loan pursuant to Section 9.03.
Section 6.02 Books and Records.
Record title to each Mortgage as of the related Closing Date shall
be in the name of the Seller, an Affiliate of the Seller, the Purchaser or one
or more designees of the Purchaser, as the Purchaser shall select.
Notwithstanding the foregoing, each Mortgage and related Mortgage Note shall be
possessed solely by the Purchaser or the appropriate designee of the Purchaser,
as the case may be. All rights arising out of the Mortgage Loans including, but
not limited to, all funds received by the Seller or the Interim Servicer after
the related Cut-off Date on or in connection with a Mortgage Loan shall be
vested in the Purchaser or one or more designees of the Purchaser; provided,
however, that all funds received on or in connection with a Mortgage Loan shall
be received and held by the Seller or the Interim Servicer in trust for the
benefit of the Purchaser or the appropriate designee of the Purchaser, as the
case may be, as the owner of the Mortgage Loans pursuant to the terms of this
Agreement.
The Seller shall be or shall cause the Interim Servicer to be
responsible for maintaining, and shall maintain, a complete set of books and
records for each Mortgage Loan which shall be marked clearly to reflect the
ownership of each Mortgage Loan by the Purchaser. In particular, the Seller
shall or shall cause the Interim Servicer to maintain in its possession,
available for inspection by the Purchaser, and shall deliver to the Purchaser
upon demand, evidence of compliance with all federal, state and local laws,
rules and regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, including
but not limited to documentation as to the method used in determining the
applicability of the provisions of the National Flood Insurance Act of 1968, as
amended, to the Mortgaged Property, documentation evidencing insurance coverage
and periodic inspection reports, as required by the ▇▇▇▇▇▇ Mae Guides. To the
extent that original documents are not required for purposes of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Seller
or the Interim Servicer may be in the form of microfilm or microfiche so long as
the Seller or the Interim Servicer complies with the requirements of the ▇▇▇▇▇▇
▇▇▇ Guides.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
Section 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than
two (2) Business Days prior to the related Closing Date those Mortgage Loan
Documents set forth on Exhibit A hereto as required by the Custodial Agreement
with respect to each Mortgage Loan set forth on the related Mortgage Loan
Schedule.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the Initial Certification of the Custodian
in the form annexed to the Custodial Agreement. The Seller shall comply with the
terms of the Custodial Agreement and the Purchaser shall pay all fees and
expenses of the Custodian.
The Seller shall or shall cause the Interim Servicer to forward to
the Custodian, or to such other Person as the Purchaser shall designate in
writing, original documents evidencing an assumption, modification,
consolidation or extension of any Mortgage Loan entered into in accordance with
this Agreement within two weeks of their execution, provided, however, that the
Seller shall provide the Custodian, or to such other Person as the Purchaser
shall designate in writing, with a certified true copy of any such document
submitted for recordation within two weeks of its execution, and shall promptly
provide the original of any document submitted for recordation or a copy of such
document certified by the appropriate public recording office to be a true and
complete copy of the original within ninety days of its submission for
recordation.
In the event any document required to be delivered to the Custodian
in the Custodial Agreement, including an original or copy of any document
submitted for recordation to the appropriate public recording office, is not so
delivered to the Custodian, or to such other Person as the Purchaser shall
designate in writing, within 90 days following the related Closing Date (other
than with respect to the Assignments of Mortgage which shall be delivered to the
Custodian in blank and recorded subsequently by the Purchaser or its designee),
and in the event that the Seller does not cure such failure within 60 days of
discovery or receipt of written notification of such failure from the Purchaser,
the related Mortgage Loan shall, upon the request of the Purchaser, be
repurchased by the Seller at the price and in the manner specified in Section
9.03. The foregoing repurchase obligation shall not apply in the event that the
Seller cannot deliver an original document submitted for recordation to the
appropriate public recording office within the specified period due to a delay
caused by the recording office in the applicable jurisdiction; provided that the
Seller shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate of a servicing
officer of the Seller, confirming that such documents have been accepted for
recording; provided that, upon request of the Purchaser and delivery by the
Purchaser to the Seller of a schedule of the related Mortgage Loans, the Seller
shall reissue and deliver to the Purchaser or its designee said officer's
certificate.
The Seller shall pay all initial recording fees, if any, for the
assignments of mortgage and any other fees or costs in transferring all original
documents to the Custodian or, upon written request of the Purchaser, to the
Purchaser or the Purchaser's designee. The Purchaser or the Purchaser's designee
shall be responsible for recording the Assignments of Mortgage and shall be
reimbursed by the Seller for the costs associated therewith pursuant to the
preceding sentence.
Section 6.04 Quality Control Procedures.
The Seller shall, or shall cause the Interim Servicer to, have an
internal quality control program that verifies, on a regular basis, the
existence and accuracy of the legal documents, credit documents, property
appraisals, and underwriting decisions. The program shall include evaluating and
monitoring the overall quality of the Seller's loan production and the servicing
activities of the Interim Servicer. The program is to ensure that the Mortgage
Loans are originated and serviced in accordance with Accepted Servicing
Standards and the Underwriting Guidelines; guard against dishonest, fraudulent,
or negligent acts; and guard against errors and omissions by officers,
employees, or other authorized persons.
Section 6.05 MERS Designated Loans.
With respect to each MERS Designated Mortgage Loan, the Seller
shall, on or prior to the related Closing Date, designate the Purchaser as the
Investor and the Custodian as custodian, and no Person shall be listed as
Interim Funder on the MERS System. In addition, on or prior to the related
Closing Date, Seller shall provide the Custodian and the Purchaser with a MERS
Report listing the Purchaser as the Investor, the Custodian as custodian and no
Person as Interim Funder with respect to each MERS Designated Mortgage Loan.
ARTICLE VII
SERVICING OF THE MORTGAGE LOANS
Section 7.01 Servicing.
The Mortgage Loans have been sold by the Seller to the Purchaser on
a servicing released basis. Subject to, and upon the terms and conditions of
this Agreement and the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein), the Seller hereby
sells, transfers, assigns, conveys and delivers to the Purchaser the Servicing
Rights.
The Purchaser shall retain the Interim Servicer as contract servicer
of the Mortgage Loans for an interim period pursuant to and in accordance with
the terms and conditions contained in the Interim Servicing Agreement (with
respect to each Mortgage Loan, for an interim period, as specified therein). The
Seller shall cause the Interim Servicer to execute the Interim Servicing
Agreement on the initial Closing Date.
The Seller shall cause the Interim Servicer to transfer the
servicing of the Mortgage Loans on each Transfer Date in accordance with the
terms of the Interim Servicing Agreement.
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE PURCHASER
Section 8.01 Representations and Warranties Regarding the Purchaser.
The Purchaser represents, warrants and covenants to the Seller that
as of the date hereof and as of each Closing Date:
(a) Due Organization and Authority. The Purchaser is a public
limited company registered in England and Wales under company number 1026167 and
has all licenses necessary to carry on its business as now being conducted and
is licensed, qualified and in good standing in each state wherein it owns or
leases any material properties or owns mortgage loans, if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by Purchaser, and in any event Purchaser is in compliance with the
laws of any such state to the extent necessary to carry out its obligations
under this Agreement. The Purchaser has the corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder; the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Purchaser and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement has been duly executed and delivered and constitutes
the valid, legal, binding and enforceable obligation of the Purchaser, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors and (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by the Purchaser to make this Agreement valid
and binding upon the Purchaser in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Purchaser; and
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the Mortgage Loans by the Purchaser, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Purchaser's charter, by-laws or other organizational documents or any legal
restriction or any agreement or instrument to which the Purchaser is now a party
or by which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Purchaser or its property is
subject, or result in the creation or imposition of any lien, charge or
encumbrance that would have an adverse effect upon the Purchaser's ability to
consummate the transactions contemplated under this Agreement.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLER; REMEDIES FOR BREACH
Section 9.01 Representations and Warranties Regarding the Seller.
The Seller represents, warrants and covenants to the Purchaser that
as of the date hereof and as of each Closing Date:
(a) Due Organization and Authority. The Seller is a Delaware
corporation, validly existing, and in good standing under the laws of the state
of Delaware and is an operating subsidiary of National City Bank of Indiana and
hall all applicable licenses necessary to carry on its business as now being
conducted. As a national bank operating subsidiary, it is regulated by the
Office of the Comptroller of the Currency and is subject to applicable laws and
regulations. The Seller is duly authorized to originate Mortgage Loans and to
carry on its business as now being conducted as an operating subsidiary of a
national bank. The Seller has corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement has been duly executed and delivered and constitutes
the valid, legal, binding and enforceable obligation of the Seller, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors and (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by the Seller to make this Agreement valid and
binding upon the Seller in accordance with its terms;
(b) No Consent Required. No consent, approval, authorization or
order is required for the transactions contemplated by this Agreement from any
court, governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related Closing
Date, be obtained;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(d) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter, by-laws
or other organizational documents or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement;
(f) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(g) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon the Underwriting Guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(h) Anti-Money Laundering Laws. The Seller is in compliance with all
applicable anti-money laundering laws, including the relevant provisions of the
Bank of Secrecy Act, as amended by the USA Patriot Act of 2001 and its
implementing regulations, and related government rules and regulations
(collectively, the "Patriot Act"); the Seller has established an anti-money
laundering compliance program and with respect to the Patriot Act, has (i)
developed internal policies, procedures and controls reasonably designed to
prevent it from being used for money laundering or the financing of terrorist
activities, (ii) designated a compliance officer, (iii) implemented an ongoing
employee training program and (iv) developed an independent audit function to
test the compliance program;
(i) Financial Statements. The Seller has delivered to the Purchaser
financial statements as to its last three complete fiscal years and any later
quarter ended more than 60 days prior to the execution of this Agreement. All
such financial statements fairly present the pertinent results of operations and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Seller and its subsidiaries and
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the Seller's
financial statements that would have a material adverse effect on its ability to
perform its obligations under this Agreement. The Seller has completed any forms
requested by the Purchaser in a timely manner and in accordance with the
provided instructions;
(j) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio at
the related Closing Date as to which the representations and warranties set
forth in Section 9.02 could be made and such selection was not made in a manner
so as to affect adversely the interests of the Purchaser;
(k) Delivery to the Custodian. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered with
respect to each Mortgage Loan pursuant to the Custodial Agreement, shall be
delivered to the Custodian all in compliance with the specific requirements of
the Custodial Agreement. With respect to each Mortgage Loan, the Seller will be
in possession of a complete Mortgage File in compliance with Exhibit A hereto,
except for such documents as will be delivered to the Custodian;
(l) Mortgage Loan Characteristics. The characteristics of the
related Mortgage Loan Package are as set forth on the description of the pool
characteristics for the applicable Mortgage Loan Package delivered pursuant to
Article XI on the related Closing Date in the form attached as Exhibit B to each
related Assignment and Conveyance Agreement;
(m) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby (including
any Securitization Transfer or Whole Loan Transfer) contains or will contain any
untrue statement of fact or omits or will omit to state a fact necessary to make
the statements contained herein or therein not misleading;
(n) No Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(o) Sale Treatment. The Seller intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of the Seller and the
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for tax and accounting purposes;
(p) Owner of Record. The Seller is the owner of record of each
Mortgage and the indebtedness evidenced by each Mortgage Note, except for the
Assignments of Mortgage which have been sent for recording, and upon recordation
the Seller will be the owner of record of each Mortgage and the indebtedness
evidenced by each Mortgage Note, and upon the sale of the Mortgage Loans to the
Purchaser, the Seller will retain the Mortgage Files with respect thereto in
trust only for the purpose of servicing and supervising the servicing of each
Mortgage Loan; and
(q) Reasonable Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans.
Section 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser that, as
to each Mortgage Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments not yet 30 days delinquent, have been made and credited. No
payment required under the Mortgage Loan is 30 days or more delinquent nor has
any payment under the Mortgage Loan been 30 days or more delinquent at any time
since the origination of the Mortgage Loan. The first Monthly Payment shall be
made with respect to the Mortgage Loan on its related Due Date or within the
grace period, all in accordance with the terms of the related Mortgage Note;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Mortgage Loan, except for
interest accruing from the date of the Mortgage Note or date of disbursement of
the Mortgage Loan proceeds, whichever is earlier, to the day which precedes by
one month the related Due Date of the first installment of principal and
interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which has
been delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. The substance of any such waiver, alteration or
modification has been approved by the issuer of any related PMI Policy and the
title insurer, if any, to the extent required by the policy, and its terms are
reflected on the related Mortgage Loan Schedule, if applicable. No Mortgagor has
been released, in whole or in part, except in connection with an assumption
agreement, approved by the issuer of any related PMI Policy and the title
insurer, to the extent required by the policy, and which assumption agreement is
part of the Mortgage Loan File delivered to the Custodian or to such other
Person as the Purchaser shall designate in writing and the terms of which are
reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are provided for in the ▇▇▇▇▇▇ ▇▇▇ Guides or by
▇▇▇▇▇▇▇ Mac, as well as all additional requirements set forth in Section 2.10 of
the Interim Servicing Agreement. If required by the National Flood Insurance Act
of 1968, as amended, each Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration as in effect which policy conforms to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac
requirements, as well as all additional requirements set forth in Section 2.10
of the Interim Servicing Agreement. All individual insurance policies contain a
standard mortgagee clause naming the Seller and its successors and assigns as
mortgagee, and all premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's
cost and expense, and on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to obtain and maintain such insurance at such Mortgagor's cost
and expense, and to seek reimbursement therefor from the Mortgagor. Where
required by state law or regulation, the Mortgagor has been given an opportunity
to choose the carrier of the required hazard insurance, provided the policy is
not a "master" or "blanket" hazard insurance policy covering a condominium, or
any hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. The Seller has not engaged in, and
has no knowledge of the Mortgagor's having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the endorsement
provided for herein, or the validity and binding effect of either including,
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
applicable federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure and all predatory and abusive lending laws,
including, without limitation, any applicable provisions relating to Prepayment
Penalties, have been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws or
regulations, and the Seller shall maintain in its possession, available for the
Purchaser's inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Type of Mortgaged Property. With respect to a Mortgage Loan that
is not a Co-op Loan, the Mortgaged Property is a fee simple estate or a
leasehold estate located in a jurisdiction in which the use of a leasehold
estate for residential properties is a widely accepted practice that consists of
a single parcel of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual residential
condominium unit in a condominium project, or an individual unit in a planned
unit development, or an individual unit in a residential cooperative housing
corporation; provided, however, that any condominium unit, planned unit
development or residential cooperative housing corporation shall conform with
the Underwriting Guidelines. No portion of the Mortgaged Property (or underlying
Mortgaged Property, in the case of a Co-op Loan) is used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used for
commercial purposes as long as the Mortgaged Property has not been altered for
commercial purposes and is not storing any chemicals or raw materials other than
those commonly used for homeowner repair, maintenance and/or household purposes.
None of the Mortgaged Properties are manufactured homes, log homes, mobile
homes, geodesic domes or other unique property types;
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien (with respect to a First Lien Loan) or
second lien (with respect to a Second Lien Loan) on the Mortgaged Property,
including all buildings and improvements on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien of the
Mortgage is subject only to:
(i) with respect to a Second Lien Loan only, the lien of the first
mortgage on the Mortgaged Property;
(ii) the lien of current real property taxes and assessments not yet
due and payable;
(iii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
acceptable to prudent mortgage lending institutions generally and specifically
referred to in the lender's title insurance policy delivered to the originator
of the Mortgage Loan and (a) specifically referred to or otherwise considered in
the appraisal made for the originator of the Mortgage Loan or (b) which do not
adversely affect the Appraised Value of the Mortgaged Property set forth in such
appraisal; and
(iv) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security intended to
be provided by the Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected first lien (with respect
to a First Lien Loan) or second lien (with respect to a Second Lien Loan) and
first priority (with respect to a First Lien Loan) or second priority (with
respect to a Second Lien Loan) security interest on the property described
therein and the Seller has full right to sell and assign the same to the
Purchaser.
(k) Valid First or Second Priority Security Interest. With respect
to any Co-op Loan, the related Mortgage is a valid, subsisting, enforceable and
perfected, first priority security interest (with respect to a First Lien Loan)
or second priority security interest (with respect to a Second Lien Loan) on the
related cooperative shares securing the Mortgage Note, subject only to (a) liens
of the related residential cooperative housing corporation for unpaid
assessments representing the Mortgagor's pro rata share of the related
residential cooperative housing corporation's payments for its blanket mortgage,
current and future real property taxes, insurance premiums, maintenance fees and
other assessments to which like collateral is commonly subject and (b) other
matters to which like collateral is commonly subject which do not materially
interfere with the benefits of the security interest intended to be provided by
the related Security Agreement;
(l) Request for Notice; No Consent Required. With respect to any
Second Lien Loan, where required or customary in the jurisdiction in which the
Mortgaged Property is located, the original lender has filed for record a
request for notice of any action by the related senior lienholder, and the
Seller has notified the senior lienholder in writing of the existence of the
Second Lien Loan and requested notification of any action to be taken against
the Mortgagor by the senior lienholder. Either (a) no consent for the Second
Lien Loan is required by the holder of the related first lien or (b) such
consent has been obtained and is contained in the Mortgage File;
(m) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms, subject to bankruptcy laws and similar laws of general application
affecting creditor's rights and subject to the application of the rules of
equity, including those respecting the availability of specific performance
(including, without limitation, any provisions relating to Prepayment
Penalties). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. No fraud, error,
omission, misrepresentation, negligence or similar occurrence with respect to a
Mortgage Loan has taken place on the part of the Seller in connection with the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken place
on the part of any Person, including without limitation, the Mortgagor, any
appraiser, any builder or developer, or any other party involved in the
origination of the Mortgage Loan or in the application for any insurance in
relation to such Mortgage Loan. The Seller has reviewed all of the documents
constituting the Servicing File and has made such inquiries as it deems
necessary to make and confirm the accuracy of the representations set forth
herein;
(n) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage, with the exception of
proceeds due under Seller's dividend loan program ;
(o) Ownership. The Seller is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and upon
the sale of the Mortgage Loans to the Purchaser, the Seller will retain the
Mortgage Files or any part thereof with respect thereto not delivered to the
Custodian, the Purchaser or the Purchaser's designee, in trust only for the
purpose of servicing and supervising the servicing of each Mortgage Loan. The
Mortgage Loan is not assigned or pledged, and the Seller has good, indefeasible
and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement and following the sale of each Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest. The
Seller intends to relinquish all rights to possess, control and monitor the
Mortgage Loan. After the related Closing Date, the Seller will have no right to
modify or alter the terms of the sale of the Mortgage Loan and the Seller will
have no obligation or right to repurchase the Mortgage Loan or substitute
another Mortgage Loan, except as provided in this Agreement;
(p) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(q) LTV, PMI Policy. No Mortgage Loan has an LTV greater than 100%;
(r) Title Insurance. With respect to a Mortgage Loan which is not a
Co-op Loan, the Mortgage Loan is covered by an ALTA lender's title insurance
policy, or with respect to any Mortgage Loan for which the related Mortgaged
Property is located in California a CLTA lender's title insurance policy, or
other generally acceptable form of policy or insurance acceptable to ▇▇▇▇▇▇ ▇▇▇
or ▇▇▇▇▇▇▇ Mac and each such title insurance policy is issued by a title insurer
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the Seller, its
successors and assigns, as to the first (with respect to a First Lien Loan) or
second (with respect to a Second Lien Loan) priority lien of the Mortgage in the
original principal amount of the Mortgage Loan (or to the extent a Mortgage Note
provides for negative amortization, the maximum amount of negative amortization
in accordance with the Mortgage), subject only to the exceptions contained in
clauses (i), (ii) and (iii) of paragraph (j) of this Section 9.02, and in the
case of Adjustable Rate Mortgage Loans, against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender's title insurance policy, and such lender's title insurance
policy is valid and remains in full force and effect and will be in force and
effect upon the consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender's title insurance policy, and Seller
has no knowledge that any prior holder of the related Mortgage, has done, by act
or omission, anything which would impair the coverage of such lender's title
insurance policy, and Seller has not done, by act or omission, anything that
would impair the coverage of such lender's title insurance policy. Seller has no
knowledge that any unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(s) No Defaults. Other than payments due but not yet 30 days or more
delinquent, there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration, and neither the Seller nor any of its affiliates nor
to Seller's knowledge any of their respective predecessors, have waived any
default, breach, violation or event which would permit acceleration;
(t) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and to Seller's
knowledge no rights are outstanding that under the law could give rise to such
liens) affecting the related Mortgaged Property which are or may be liens prior
to, or equal or coordinate with, the lien of the related Mortgage;
(u) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. To Seller's knowledge, no improvement located on or
being part of the Mortgaged Property is in violation of any applicable zoning
law or regulation;
(v) Origination; Payment Terms. The Mortgage Loan was originated by
(i) a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, an operating subsidiary of a
national bank, credit union, insurance company or other similar institution
which is supervised and examined by a federal or state authority, or (ii) a
mortgage banker or broker licensed or authorized to do business in the
jurisdiction in which the related Mortgaged Property is located, applying the
same standards and procedures used by the Seller in originating Mortgage Loans
directly. The Seller determined that the Mortgage Loans were originated in
compliance with such standards prior to purchasing the Mortgage Loans. The
Mortgage Interest Rate as well as, in the case of an Adjustable Rate Mortgage
Loan, the Lifetime Rate Cap and the Periodic Cap are as set forth on the related
Mortgage Loan Schedule. The Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty years from commencement of amortization. Unless otherwise
specified on the related Mortgage Loan Schedule, the Mortgage Loan is payable on
the first day of each month;
(w) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(x) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines (a
copy of which is attached to each related Assignment and Conveyance Agreement).
The Mortgage Note and Mortgage are on forms acceptable to ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇
Mae and no Seller has made any representations have been made to a Mortgagor
that are inconsistent with the mortgage instruments used;
(y) Occupancy of the Mortgaged Property. As of the related Closing
Date the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities. Unless otherwise specified on the related Mortgage
Loan Schedule, the Mortgagor represented at the time of origination of the
Mortgage Loan that the Mortgagor would occupy the Mortgaged Property as the
Mortgagor's primary residence;
(z) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(aa) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(bb) Acceptable Investment. The Seller has no knowledge of
circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgagor, the Mortgage File or the Mortgagor's credit standing
that can reasonably be expected to cause private institutional investors who
invest in mortgage loans similar to the Mortgage Loan to regard the Mortgage
Loan as an unacceptable investment, cause the Mortgage Loan to become
delinquent, or adversely affect the value or marketability of the Mortgage Loan;
(cc) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under the Custodial Agreement for each Mortgage Loan have been
delivered to the Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit A hereto, except for such
documents the originals of which have been delivered to the Custodian;
(dd) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project such Mortgage Loan was originated in accordance with, and the Mortgaged
Property meets the guidelines set forth in the Originator's Underwriting
Guidelines;
(ee) Transfer of Mortgage Loans. The Assignment of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designee) with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(ff) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent of
the mortgagee thereunder, and to the best of the Seller's knowledge, such
provision is enforceable to the extent permitted by applicable law;
(gg) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first Interest
Rate Adjustment Date, a related Mortgage Loan may only be assumed if the party
assuming such Mortgage Loan meets certain credit requirements stated in the
Mortgage Loan Documents;
(hh) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(ii) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable Cut-off Date have been consolidated with
the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first (with respect to a First Lien Loan)
or second (with respect to a Second Lien Loan) lien priority by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇▇▇ Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(jj) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or, to the Seller's knowledge, threatened for the
total or partial condemnation of the Mortgaged Property. The Mortgaged Property
is undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended and each Mortgaged Property is in good repair. There have not been
any condemnation proceedings with respect to the Mortgaged Property;
(kk) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller and the Interim Servicer with respect to the Mortgage Loan have been in
all respects in compliance with Accepted Servicing Practices, applicable laws
and regulations, and have been in all respects legal and proper. With respect to
escrow deposits and Escrow Payments, all such payments are in the possession of,
or under the control of, the Seller or the Interim Servicer and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All Escrow Payments have been collected in
full compliance with applicable state and federal law and the provisions of the
related Mortgage Note and Mortgage. An escrow of funds is not prohibited by
applicable law. No escrow deposits or Escrow Payments or other charges or
payments due the Seller have been capitalized under the Mortgage or the Mortgage
Note. All Mortgage Interest Rate adjustments have been made in strict compliance
with state and federal law and the terms of the related Mortgage and Mortgage
Note on the related Interest Rate Adjustment Date. If, pursuant to the terms of
the Mortgage Note, another index was selected for determining the Mortgage
Interest Rate, the same index was used with respect to each Mortgage Note which
required a new index to be selected, and such selection did not conflict with
the terms of the related Mortgage Note. The Seller or the Interim Servicer
executed and delivered any and all notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the Mortgage Interest
Rate and the Monthly Payment adjustments. Any interest required to be paid
pursuant to state, federal and local law has been properly paid and credited;
(ll) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(mm) Other Insurance Policies; No Defense to Coverage. No action,
inaction or event has occurred and no state of facts exists or has existed on or
prior to the Closing Date that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any applicable hazard insurance
policy, PMI Policy or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability of
the timely payment of the full amount of the loss otherwise due thereunder to
the insured), irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by the Seller or by any officer,
director, or employee of the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
(nn) No Violation of Environmental Laws. To the best of the Seller's
knowledge, there is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; to the best of Seller's knowledge there is no violation
of any environmental law, rule or regulation with respect to the Mortgage
Property; and nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite to
use and enjoyment of said property;
(oo) Servicemembers Civil Relief Act. The Mortgagor has not notified
the Seller, and the Seller has no knowledge of any relief requested or allowed
to the Mortgagor under the Relief Act, or other similar state statute;
(pp) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser, duly appointed by the Seller, who had no
interest, direct or indirect in the Mortgaged Property or in any loan made on
the security thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan, and the appraisal and appraiser both satisfy
the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and Title XI of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan was
originated or pursuant to Seller's automated appraisal methodology as set forth
in the Seller's Underwriting Guidelines;
(qq) Disclosure Materials. The Mortgagor has executed a statement to
the effect that the Mortgagor has received all disclosure materials required by,
and the Seller has complied with, all applicable law with respect to the making
of the Mortgage Loans. The Seller shall maintain such statement in the Mortgage
File;
(rr) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(ss) Escrow Analysis. If applicable, with respect to each Mortgage,
the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(tt) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices;
(uu) No Default Under First Lien. With respect to each Second Lien
Loan, the related First Lien Loan related thereto is in full force and effect,
and there is no default, breach, violation or event which would permit
acceleration existing under such first Mortgage or Mortgage Note, and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration thereunder;
(vv) Right to Cure First Lien. With respect to each Second Lien
Loan, the related first lien Mortgage contains a provision which provides for
giving notice of default or breach to the mortgagee under the Mortgage Loan and
allows such mortgagee to cure any default under the related first lien Mortgage;
(ww) No Failure to Cure Default. The Seller has not received a
written notice of default of any senior mortgage loan related to the Mortgaged
Property which has not been cured;
(xx) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from furnishing
the same to any subsequent or prospective purchaser of such Mortgage. The Seller
shall hold the Purchaser harmless from any and all damages, losses, costs and
expenses (including attorney's fees) arising from disclosure of credit
information in connection with the Purchaser's secondary marketing operations
and the purchase and sale of mortgages or Servicing Rights thereto, unless such
damage, loss cost and expense arises out of Purchaser's noncompliance with
applicable federal or state credit reporting and privacy laws and regulations;
(yy) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground lease
will not terminate earlier than five years after the maturity date of the
Mortgage Loan; (3) the ground lease does not provide for termination of the
lease in the event of lessee's default without the mortgagee being entitled to
receive written notice of, and a reasonable opportunity to cure the default; (4)
the ground lease permits the mortgaging of the related Mortgaged Property; (5)
the ground lease protects the mortgagee's interests in the event of a property
condemnation; (6) all ground lease rents, other payments, or assessments that
have become due have been paid; and (7) the use of leasehold estates for
residential properties is a widely accepted practice in the jurisdiction in
which the Mortgaged Property is located;
(zz) Prepayment Penalty. Each Mortgage Loan that is subject to a
prepayment penalty as provided in the related Mortgage Note is identified on the
related Mortgage Loan Schedule. With respect to Mortgage Loans originated prior
to October 1, 2002, no such Prepayment Penalty may be imposed for a term in
excess of five (5) years following origination. With respect to Mortgage Loans
originated on or after October 1, 2002, no such Prepayment Penalty may be
imposed for a term in excess of three (3) years following origination unless
otherwise noted on the related Mortgage Loan Schedule.
(aaa) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan. No Mortgage Loan is covered by the Home Ownership and Equity Protection
Act of 1994 and no Mortgage Loan is in violation of any comparable state or
local law;
(bbb) Single-premium credit life insurance policy. In connection
with the origination of any Mortgage Loan, no proceeds from such Mortgage Loan
were used to finance or acquire a single-premium credit life insurance policy;
(ccc) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage
under Section 860G(a)(3) of the Code;
(ddd) Tax Service Contract. Each Mortgage Loan is covered by a paid
in full, life of loan, tax service contract issued by a tax service contract
provider acceptable to the Purchaser, and such contract is transferable;
(eee) Origination. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan;
(fff) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(ggg) Co-op Loans. With respect to a Mortgage Loan that is a Co-op
Loan, (i) a search for filings of financing statements has been made by a
company competent to make the same, which company is acceptable to ▇▇▇▇▇▇ ▇▇▇
and qualified to do business in the jurisdiction where the cooperative unit is
located, and such search has not found anything which would materially and
adversely affect the Co-op Loan, (ii) the stock that is pledged as security for
the Mortgage Loan is held by a person as a "tenant-stockholder" and the related
cooperative corporation that owns title to the related cooperative apartment
building is a "cooperative housing corporation," each within the meaning of
Section 216 of the Code and (iii) there is no prohibition against pledging the
shares of the cooperative corporation or assigning the Co-op Lease;
(hhh) Mortgagor Bankruptcy. On or prior to the date 60 days after
the related Closing Date, the Mortgagor has not filed and will not file a
bankruptcy petition or has not become the subject and will not become the
subject of involuntary bankruptcy proceedings or has not consented to or will
not consent to the filing of a bankruptcy proceeding against it or to a receiver
being appointed in respect of the related Mortgaged Property;
(iii) No Prior Offer. The Mortgage Loan has not previously been
offered for sale;
(jjj) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated on or after October 1, 2002 and on or prior to March 7, 2003, which
is secured by property located in the State of Georgia. There is no Mortgage
Loan that was originated after March 7, 2003, which is a "high-cost home loan"
as defined under the Georgia Fair Lending Act;
(kkk) Request for Notice; No Consent Required. With respect to any
Second Lien Loan, where required or customary in the jurisdiction in which the
Mortgaged Property is located, the original lender has filed for record a
request for notice of any action by the related senior lienholder, and the
Seller has notified the senior lienholder in writing of the existence of the
Second Lien Loan and requested notification of any action to be taken against
the Mortgagor by the senior lienholder. Either (a) no consent for the Second
Lien Loan is required by the holder of the related first lien or (b) such
consent has been obtained and is contained in the Mortgage File;
(lll) Credit Reporting. The Seller has, in its capacity as servicer
for each Mortgage Loan, caused to be fully furnished, in accordance with the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower credit
files to Equifax, Experian, and Trans Union Credit Information Company (three of
the credit repositories), on a monthly basis.
(mmm) [Reserved]
(nnn) Mortgagor Selection. No Mortgagor was encouraged or required
to select a Mortgage Loan product offered by the Mortgage Loan's originator
which is a higher cost product designed for less creditworthy mortgagors, unless
at the time of the Mortgage Loan's origination, such Mortgagor did not qualify
taking into account credit history and debt-to-income ratios for a lower-cost
credit product then offered by the Mortgage Loan's originator;
(ooo) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs objective mathematical
principles which relate the related Mortgagor's income, assets and liabilities
to the proposed payment and such underwriting methodology does not rely on the
extent of the related Mortgagor's equity in the collateral as the principal
determining factor in approving such credit extension (other than no
documentation Mortgage Loans). Such underwriting methodology confirmed that at
the time of origination (application/approval) the related Mortgagor had a
reasonable ability to make timely payments on the Mortgage Loan;
(ppp) Mortgage Loans with Prepayment Premiums. With respect to any
Mortgage Loan that contains a provision permitting imposition of a premium upon
a prepayment prior to maturity: (i) a mortgage loan without such a premium was
available to the Mortgagor at an interest rate and/or fee structure higher than
that of the Mortgage Loan, (ii) prior to the Mortgage Loan's funding, the
related Mortgagor had the option of obtaining the Mortgage Loan without a
requirement for payment of such a premium, and (iii) the prepayment premium is
disclosed to the related Mortgagor in the Mortgage Loan documents pursuant to
applicable state and federal law;
(qqq) Purchase of Insurance. No Mortgagor was required to purchase
any credit life, disability, accident or health insurance product as a condition
of obtaining the extension of credit. No Mortgagor obtained a prepaid
single-premium credit life, disability, accident or health insurance policy in
connection with the origination of the Mortgage Loan. No proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies as
part of the origination of, or as a condition to closing, such Mortgage Loan;
(rrr) Points and Fees. All points and fees related to each Mortgage
Loan were disclosed in writing to the Mortgagor in accordance with applicable
state and federal law and regulation;
(sss) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed, collected or to
be collected in connection with the origination and servicing of each Mortgage
Loan, have been disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation; and
(ttt) No Arbitration. No Mortgage Loan originated on or after July
1, 2004 requires the related Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage Loan transaction.
Section 9.03 Remedies for Breach of Representations and Warranties.
It is understood and agreed that the representations and warranties
set forth in Sections 9.01 and 9.02 shall survive the sale of the Mortgage Loans
to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by either the Seller or the Purchaser of a breach of any of
the foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Seller of any such breach of a representation or warranty, which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case of
a representation and warranty relating to a particular Mortgage Loan), the
Seller shall use its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser's option, repurchase such Mortgage Loan at the Repurchase Price.
Notwithstanding the above sentence, within 60 days of the earlier of either
discovery by, or notice to, the Seller of any breach of the representations or
warranties set forth in clause (zz), (aaa), (bbb), (ccc), (jjj), (kkk), (lll),
(nnn), (ooo), (ppp), (qqq), (rrr), (sss) and (ttt) of Section 9.02, the Seller
shall repurchase such Mortgage Loan at the Repurchase Price unless, in the case
of clause (ccc), such breach was cured. In the event that a breach shall involve
any representation or warranty set forth in Section 9.01, and such breach cannot
be cured within 60 days of the earlier of either discovery by or notice to the
Seller of such breach, all of the Mortgage Loans affected by such breach shall,
at the Purchaser's option, be repurchased by the Seller at the Repurchase Price.
However, if the breach shall involve a representation or warranty set forth in
Section 9.02 (except as provided in the second sentence of this paragraph with
respect to certain breaches for which no substitution is permitted) and the
Seller discovers or receives notice of any such breach within 120 days of the
related Closing Date, the Seller shall, at the Purchaser's option and provided
that the Seller has a Qualified Substitute Mortgage Loan, rather than repurchase
the Mortgage Loan as provided above, remove such Mortgage Loan (a "Deleted
Mortgage Loan") and substitute in its place a Qualified Substitute Mortgage Loan
or Loans, provided that any such substitution shall be effected not later than
120 days after the related Closing Date. If the Seller has no Qualified
Substitute Mortgage Loan, it shall repurchase the deficient Mortgage Loan at the
Repurchase Price. Any repurchase of a Mortgage Loan or Loans pursuant to the
foregoing provisions of this Section 9.03 shall be accomplished by direct
remittance of the Repurchase Price to the Purchaser or its designee in
accordance with the Purchaser's instructions.
At the time of repurchase or substitution, the Purchaser and the
Seller shall arrange for the reassignment of the Deleted Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase or substitution has taken
place, amend the Mortgage Loan Schedule to reflect the withdrawal of the Deleted
Mortgage Loan from this Agreement, and, in the case of substitution, identify a
Qualified Substitute Mortgage Loan and amend the related Mortgage Loan Schedule
to reflect the addition of such Qualified Substitute Mortgage Loan to this
Agreement. In connection with any such substitution, the Seller shall be deemed
to have made as to such Qualified Substitute Mortgage Loan the representations
and warranties set forth in this Agreement except that all such representations
and warranties set forth in this Agreement shall be deemed made as of the date
of such substitution. The Seller shall effect such substitution by delivering to
the Custodian or to such other party as the Purchaser may designate in writing
for such Qualified Substitute Mortgage Loan the documents required by Section
6.03 and the Custodial Agreement, with the Mortgage Note endorsed as required by
Section 6.03 and the Custodial Agreement. No substitution will be made in any
calendar month after the Determination Date for such month. The Seller shall
cause the Interim Servicer to remit directly to the Purchaser, or its designee
in accordance with the Purchaser's instructions the Monthly Payment less the
Servicing Fee due, if any, on such Qualified Substitute Mortgage Loan or Loans
in the month following the date of such substitution. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution
shall be retained by the Seller. For the month of substitution, distributions to
the Purchaser shall include the Monthly Payment due on any Deleted Mortgage Loan
in the month of substitution, and the Seller shall thereafter be entitled to
retain all amounts subsequently received by the Seller in respect of such
Deleted Mortgage Loan.
For any month in which the Seller substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Seller shall determine the amount
(if any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by the Seller directly to the Purchaser or its
designee in accordance with the Purchaser's instructions within two (2) Business
Days of such substitution.
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser and, in connection with any Reconstitution,
the depositor and the trust, including the servicer and the trustee acting on
its behalf, and hold such parties harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary out-of-pocket legal fees
and expenses and related costs, judgments, and other costs and expenses
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Seller representations and warranties
contained in this Agreement. It is understood and agreed that the obligations of
the Seller set forth in this Section 9.03 to cure, substitute for or repurchase
a defective Mortgage Loan and to indemnify the Purchaser as provided in this
Section 9.03 and in Section 14.01 constitute the sole remedies of the Purchaser
respecting a breach of the foregoing representations and warranties. For
purposes of this paragraph "Purchaser" shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
"Purchasers" under this Agreement.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Sections 9.01 and 9.02
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the
Seller to cure such breach or repurchase such Mortgage Loan as specified above,
and (iii) demand upon the Seller by the Purchaser for compliance with this
Agreement.
Section 9.04 Repurchase of Mortgage Loans with First Payment
Defaults. If the related Mortgagor is delinquent with respect to the Mortgage
Loan's first Monthly Payment due to the Purchaser following the related Closing
Date, the Seller, at the Purchaser's option, shall repurchase such Mortgage Loan
from the Purchaser at a price equal to the Repurchase Price. Notwithstanding the
foregoing, the Seller shall have a period of forty-five (45) days following such
first Due Date to cure any such delinquency. The Purchaser shall notify the
Seller and request a repurchase within sixty (60) days after the Mortgagor's
failure to make the first Monthly Payment (including such additional cure
period) and the Seller shall repurchase such Mortgage Loan within thirty (30)
calendar days of receipt of such notice..
Section 9.05 Premium Recapture. With respect to any Mortgage Loan
without prepayment penalties that prepays in full during the first three months
following the related Closing Date, the Seller shall pay the Purchaser, within
five (5) Business Days after such prepayment in full or repurchase, an amount
equal to the excess of the Purchase Price Percentage for such Mortgage Loan over
par, multiplied by the outstanding principal balance of such Mortgage Loan as of
the related Cut-off Date.
ARTICLE X
CLOSING
Section 10.01 Conditions to Closing
The closing for the purchase and sale of each Mortgage Loan Package
shall take place on the related Closing Date. At the Purchaser's option, each
Closing shall be either: by telephone, confirmed by letter or wire as the
parties shall agree, or conducted in person, at such place as the parties shall
agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(i) at least two Business Days prior to the related Closing Date,
the Seller shall deliver to the Purchaser a magnetic diskette, or transmit
by modem, a listing on a loan-level basis of the necessary information to
compute the Purchase Price of the Mortgage Loans delivered on such Closing
Date (including accrued interest), and prepare a Mortgage Loan Schedule;
(ii) all of the representations and warranties of the Seller under
this Agreement and of the Interim Servicer under the Interim Servicing
Agreement (with respect to each Mortgage Loan for an interim period, as
specified therein) shall be true and correct as of the related Closing
Date and no event shall have occurred which, with notice or the passage of
time, would constitute a default under this Agreement or an Event of
Default under the Interim Servicing Agreement;
(iii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all closing documents as
specified in Article XI of this Agreement, in such forms as are agreed
upon and acceptable to the Purchaser, duly executed by all signatories
other than the Purchaser as required pursuant to the terms hereof;
(iv) the Seller shall have delivered and released to the Custodian
all documents required pursuant to the Custodial Agreement; and
(v) all other terms and conditions of this Agreement and the related
Purchase Price and Terms Agreement shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Article IV of this Agreement, by wire transfer of immediately
available funds to the account designated by the Seller.
ARTICLE XI
CLOSING DOCUMENTS
Section 11.01 Required Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
(1) this Agreement (to be executed and delivered only
for the initial Closing Date);
(2) the Interim Servicing Agreement, dated as of the
initial Cut-off Date (to be executed and delivered only for
the initial Closing Date);
(3) with respect to the initial Closing Date, the
Custodial Agreement, dated as of the initial Cut-off Date;
(4) the related Mortgage Loan Schedule (one copy to be
attached to the Custodian's counterpart of the Custodial
Agreement in connection with the initial Closing Date, and one
copy to be attached to the related Assignment and Conveyance
as the Mortgage Loan Schedule thereto);
(5) a Custodian's Certification, as required under the
Custodial Agreement, in the form of Exhibit 2 to the Custodial
Agreement;
(6) with respect to the initial Closing Date, an
Officer's Certificate, in the form of Exhibit C hereto with
respect to each of the Seller, including all attachments
thereto; with respect to subsequent Closing Dates, an
Officer's Certificate upon request of the Purchaser;
(7) with respect to the initial Closing Date, an Opinion
of Counsel of the Seller (who may be an employee of the
Seller), in the form of Exhibit D hereto ("Opinion of Counsel
of the Seller"); with respect to subsequent Closing Dates, an
Opinion of Counsel of the Seller upon request of the
Purchaser;
(8) with respect to the initial Closing Date, an Opinion
of Counsel of the Custodian (who may be an employee of the
Custodian), in the form of an exhibit to the Custodial
Agreement(s);
(9) a Security Release Certification, in the form of
Exhibit E or F, as applicable, hereto executed by any person,
as requested by the Purchaser, if any of the Mortgage Loans
have at any time been subject to any security interest, pledge
or hypothecation for the benefit of such person;
(10) a certificate or other evidence of merger or change
of name, signed or stamped by the applicable regulatory
authority, if any of the Mortgage Loans were acquired by the
Seller by merger or acquired or originated by the Seller while
conducting business under a name other than its present name,
if applicable;
(11) with respect to the initial Closing Date, the
Underwriting Guidelines to be attached hereto as Exhibit G and
with respect to each subsequent Closing Date, the Underwriting
Guidelines to be attached to the related Assignment and
Conveyance; and
(12) Assignment and Conveyance Agreement in the form of
Exhibit H hereto, and all exhibits thereto.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
ARTICLE XII
COSTS
Section 12.01 Costs.
The Purchaser shall pay any commissions due its salesmen and the
legal fees and expenses of its attorneys and custodial fees. All other costs and
expenses incurred in connection with the transfer and delivery of the Mortgage
Loans and the Servicing Rights including recording fees, fees for title policy
endorsements and continuations, fees for recording Assignments of Mortgage, and
the Seller's attorney's fees, shall be paid by the Seller.
ARTICLE XIII
COOPERATION OF SELLER WITH A RECONSTITUTION
Section 13.01 Reconstitution of Mortgage Loans.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each, a "Reconstitution Date") at the Purchaser's sole option, the Purchaser
may effect a sale (each, a "Reconstitution") of some or all of the Mortgage
Loans then subject to this Agreement, without recourse, to:
(i) ▇▇▇▇▇▇ Mae under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each, a "▇▇▇▇▇▇ ▇▇▇ Transfer"); or
(ii) ▇▇▇▇▇▇▇ Mac (the "▇▇▇▇▇▇▇ Mac Transfer"); or
(iii) one or more third party purchasers in one or more Whole Loan
Transfers; or
(iv) one or more trusts or other entities to be formed as part of
one or more Securitization Transfers.
With respect to each Whole Loan Transfer and each Securitization
Transfer entered into by the Purchaser, the Seller agrees (1) to cooperate fully
with the Purchaser and any prospective purchaser with respect to all reasonable
requests and due diligence procedures, provided that Purchaser shall give Seller
at least fifteen (15) Business Days notice of such proposed Reconstitution and
provided further that: (x) Seller shall review and approve any document that
Purchaser, any prospective purchaser, rating agency or other party to a
Reconstitution request that Seller execute; (y) Seller's obligation under any
such document shall not exceed its obligations to Purchaser under the Purchase
Agreement; and (z) Purchaser shall reimburse Seller for up to $15,000 of
Seller's out-of-pocket expenses incurred in connection with a Securization
Transfer.. The Seller shall provide to such servicer or issuer, as the case may
be, and any other participants or purchasers in such Reconstitution: (i) any and
all information and appropriate verification of information which may be
reasonably available to the Seller or its affiliates, whether through letters of
its auditors and counsel or otherwise, as the Purchaser or any such other
participant shall request; (ii) such additional opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Seller or
the Interim Servicer as are reasonably believed necessary by the Purchaser or
any such other participant; and (iii) to execute, deliver and satisfy all
conditions set forth in any indemnity agreement required by the Purchaser or any
such participant, including, without limitation, an Indemnification and
Contribution Agreement in substantially the form attached hereto as Exhibit B.
Moreover, the Seller agrees to cooperate with all reasonable requests made by
the Purchaser to effect such Reconstitution Agreements. The Seller shall
indemnify the Purchaser, each Affiliate of the Purchaser participating in the
Reconstitution and each Person who controls the Purchaser or such Affiliate and
their respective present and former directors, officers, employees and agents,
and hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that each of them may sustain arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in the information provided by or on behalf of the Seller
regarding the Seller, the Mortgage Loans or the Underwriting Guidelines set
forth in any offering document prepared in connection with any Reconstitution.
For purposes of the previous sentence, "Purchaser" shall mean the Person then
acting as the Purchaser under this Agreement and any and all Persons who
previously were "Purchasers" under this Agreement.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and, if the Interim
Servicing Agreement shall remain in effect with respect to the related Mortgage
Loan Package, shall continue to be serviced in accordance with the terms of this
Agreement and the Interim Servicing Agreement and with respect thereto this
Agreement shall remain in full force and effect.
ARTICLE XIV
THE SELLER
Section 14.01 Additional Indemnification by the Seller; Third Party
Claims.
(a) The Seller shall indemnify the Purchaser and, in connection with
any Reconstitution, the depositor and the trust, including the servicer and the
trustee acting on its behalf, and hold such parties harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, out-of-pocket legal fees
and expenses (including reasonable and necessary legal fees and expenses
incurred in connection with the enforcement of the Seller's indemnification
obligation under this Section 14.01) and related costs, judgments, and any other
costs, fees and expenses that such parties may sustain in any way related to the
failure of the Seller to perform its duties in strict compliance with the terms
of this Agreement or any breach of any of Seller's representation, warranties
and covenants set forth in this Agreement. For purposes of this paragraph
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement.
(b) Promptly after receipt by an indemnified party under this
Section 14.01 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 14.01, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Section 14.01, except to the extent that it has
been prejudiced in any material respect, or from any liability which it may
have, otherwise than under this Section 14.01. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party or parties shall have reasonably concluded that there may
be legal defenses available to it or them and/or other indemnified parties which
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate counsel
at the indemnified party's or parties' expense to assert such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for expenses incurred by the
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (together with one
local counsel, if applicable)), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
Section 14.02 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller shall be a party, or any Person succeeding to the business of the
Seller, shall be the successor of the Seller 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.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01 Financial Statements.
The Seller understands that in connection with the Purchaser's
marketing of the Mortgage Loans, the Purchaser shall make available to
prospective purchasers audited financial statements of the Seller for the most
recently completed three fiscal years respecting which such statements are
available, as well as a Consolidated Statement of Condition of the Seller at the
end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable interim
statements to the extent any such statements have been prepared by the Seller
(and are available upon request to members or stockholders of the Seller or the
public at large). The Seller, if it has not already done so, agrees to furnish
promptly to the Purchaser copies of the statements specified above. The Seller
shall also make available information on its servicing performance with respect
to loans serviced for others, including delinquency ratios.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
Section 15.02 Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the related Closing Date of the Mortgage
Loans described on the related Mortgage Loan Schedule is mandatory from and
after the date of the execution of the related Purchase Price and Terms
Agreement, it being specifically understood and agreed that each Mortgage Loan
is unique and identifiable on the date hereof and that an award of money damages
would be insufficient to compensate the Purchaser for the losses and damages
incurred by the Purchaser (including damages to prospective purchasers of the
Mortgage Loans) in the event of the Seller's failure to deliver (i) each of the
related Mortgage Loans or (ii) one or more Qualified Substitute Mortgage Loans
or (iii) one or more Mortgage Loans otherwise acceptable to the Purchaser on or
before the related Closing Date. The Seller hereby grants to the Purchaser a
lien on and a continuing security interest in each Mortgage Loan and each
document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligations under the related Purchase Price
and Terms Agreement, and the Seller agrees that it shall hold such Mortgage
Loans in custody for the Purchaser subject to the Purchaser's (a) right to
reject any Mortgage Loan (or Qualified Substitute Mortgage Loan) under the terms
of this Agreement and to require another Mortgage Loan (or Qualified Substitute
Mortgage Loan) to be substituted therefor, and (b) obligation to pay the
Purchase Price for the Mortgage Loans. All rights and remedies of the Purchaser
under this Agreement are distinct from, and cumulative with, any other rights or
remedies under this Agreement or afforded by law or equity and all such rights
and remedies may be exercised concurrently, independently or successively.
Section 15.03 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
(i) if to the Seller:
First Franklin Financial Corp.
▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
(ii) if to the Purchaser:
Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
Section 15.04 Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 15.05 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 15.06 Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Purchaser in the State of New York and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by Federal law.
Section 15.07 Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling the Mortgage Loans and not a debt instrument of the
Seller or another security. Accordingly, the parties hereto each intend to treat
the transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the arrangement
under which the Mortgage Loans are held shall be consistent with classification
of such arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such review.
Section 15.08 Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. There shall be no limitation on the number of assignments
or transfers allowable by the Purchaser with respect to the Mortgage Loans and
this Agreement. In the event the Purchaser assigns this Agreement, and the
assignee assumes any of the Purchaser's obligations hereunder, the Seller
acknowledges and agrees to look solely to such assignee, and not to the
Purchaser, for performance of the obligations so assumed and the Purchaser shall
be relieved from any liability to the Seller with respect thereto.
Section 15.09 Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
Section 15.10 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
Section 15.11 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 15.12 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 15.13 Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section 15.14 Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or their comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Seller's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole option.
Section 15.15 No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors on the Seller's behalf,
to personally, by telephone or mail (via electronic means or otherwise), solicit
a Mortgagor under any Mortgage Loan for the purpose of refinancing a Mortgage
Loan, in whole or in part, without the prior written consent of the Purchaser.
Notwithstanding the foregoing, it is understood and agreed that the Seller, or
any of its respective affiliates:
(i) may advertise its availability for handling refinancings of
mortgages in its portfolio, including the promotion of terms it has
available for such refinancings, through the sending of letters or
promotional material, so long as it does not specifically target
Mortgagors and so long as such promotional material either is sent to the
mortgagors for all of the mortgages in the servicing portfolio of the
Seller and any of its affiliates (those it owns as well as those serviced
for others); and
(ii) may provide pay-off information and otherwise cooperate with
individual mortgagors who contact it about prepaying their mortgages by
advising them of refinancing terms and streamlined origination
arrangements that are available.
Promotions undertaken by the Seller or by any affiliate of the
Seller which are directed to the general public at large (including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements), shall not constitute
solicitation under this Section 15.15.
Section 15.16 Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 15.17 Governing Law Jurisdiction; Consent to Service of
Process.
THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT SHALL
BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER AND THE SELLER
IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH
COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS
TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL
ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
[Signature Page Follows]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
BARCLAYS BANK, PLC
(Purchaser)
By:____________________________________
Name:__________________________________
Title:_________________________________
FIRST FRANKLIN FINANCIAL CORP.
(Seller)
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT A
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Article VI of the Mortgage Loan Purchase Agreement to which this
Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. To the
extent that there is no room on the face of the Mortgage Notes for endorsements,
the endorsement may be contained on an allonge, if state law so allows and the
Custodian is so advised by the Seller that state law so allows. If the Mortgage
Loan was acquired by the Seller in a merger, the endorsement must be by "[Last
Endorsee], successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the Last Endorsee while doing business under
another name, the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) with respect to Mortgage Loans that are not Co-op Loans, the
original Mortgage with evidence of recording thereon. With respect to any Co-op
Loan, an original or copy of the Security Agreement. If in connection with any
Mortgage Loan, the Seller cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such Mortgage has
been delivered for recordation or because such Mortgage has been lost or because
such public recording office retains the original recorded Mortgage, the Seller
shall deliver or cause to be delivered to the Custodian, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that such Mortgage has
been dispatched to the appropriate public recording office for recordation and
that the original recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Custodian upon receipt thereof by the
Seller; or (ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage is lost
after recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy of the
original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) with respect to Mortgage Loans that are not Co-op Loans, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording (except with respect to MERS Designated Loans). The
Assignment of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located or on
direction of the Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned to the Purchaser. If
the Assignment of Mortgage is not to be recorded, the Assignment of Mortgage
shall be delivered in blank. If the Mortgage Loan was acquired by the Seller in
a merger, the Assignment of Mortgage must be made by "[Seller], successor by
merger to [name of predecessor]". If the Mortgage Loan was acquired or
originated by the Seller while doing business under another name, the Assignment
of Mortgage must be by "[Seller], formerly known as [previous name]";
(f) with respect to Mortgage Loans that are not Co-op Loans, the
originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Loan, MERS) with evidence of recording thereon, or if
any such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office retains the
original recorded assignments of mortgage, the Seller shall deliver or cause to
be delivered to the Custodian, a photocopy of such intervening assignment,
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate of the Seller (or certified by the title company,
escrow agent, or closing attorney) stating that such intervening assignment of
mortgage has been dispatched to the appropriate public recording office for
recordation and that such original recorded intervening assignment of mortgage
or a copy of such intervening assignment of mortgage certified by the
appropriate public recording office to be a true and complete copy of the
original recorded intervening assignment of mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case of an
intervening assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening assignment
is lost after recordation in a public recording office, a copy of such
intervening assignment certified by such public recording office to be a true
and complete copy of the original recorded intervening assignment;
(g) with respect to Mortgage Loans that are not Co-op Loans, the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy binder
or commitment for title certified to be true and complete by the title insurance
company;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease
and the assignment of such Co-op Lease, with all intervening assignments showing
a complete chain of title and an assignment thereof by Seller; (ii) the stock
certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the interests
of the mortgagee with respect to the Co-op Loan by the residential cooperative
housing corporation, the stock of which was pledged by the related Mortgagor to
the originator of such Co-op Loan; and (iv) copies of the financial statement
filed by the originator as secured party and, if applicable, a filed UCC-3
assignment of the subject security interest showing a complete chain of title,
together with an executed UCC-3 assignment of such security interest by the
Seller in a form sufficient for filing; and
(j) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power certified by
the Seller to be a true and correct copy of the original.
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 90 days of the related Closing Date, an Officer's Certificate which shall
(i) identify the recorded document, (ii) state that the recorded document has
not been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian; provided, however, that any recorded document shall
in no event be delivered later than one year following the related Closing Date.
An extension of the date specified in clause (iv) above may be requested from
the Purchaser, which consent shall not be unreasonably withheld.
EXHIBIT B
FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This INDEMNIFICATION AND CONTRIBUTION AGREEMENT ("Agreement"), dated
as of [_______], 200_, among [________________] (the "Depositor"), a
[______________] corporation (the "Depositor"), Barclays Bank, PLC, a public
limited company registered in England and Wales under company number 1026167,
having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Barclays") and
First Franklin Financial Corp., a Delaware corporation, having an office at ▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor is acting as depositor and registrant with
respect to the Prospectus, dated [________________], and the Prospectus
Supplement to the Prospectus, [________________] (the "Prospectus Supplement"),
relating to [________________] Certificates (the "Certificates") to be issued
pursuant to a Pooling and Servicing Agreement, dated as of [________________]
(the "P&S"), among the Depositor, as depositor, [________________], as servicer
(the "Servicer"), and [________________], as trustee (the "Trustee");
WHEREAS, as an inducement to the Depositor to enter into the P&S,
and [____________________] and [__________________] (each, an "Underwriter" and
together the "Co-Underwriters") to enter into the Underwriting Agreement, dated
[____________________] (the "Underwriting Agreement") between the Depositor and
the Co-Underwriters, Seller has agreed to provide for indemnification and
contribution on the terms and conditions hereinafter set forth;
WHEREAS, Barclays purchased from Seller certain of the Mortgage
Loans underlying the Certificates (the "Mortgage Loans") pursuant to a Mortgage
Loan Purchase Agreement, dated as of March 1, 2004 (the "Purchase Agreement"),
by and between Barclays and Seller; and
WHEREAS, pursuant to Article XIII of the Purchase Agreement, the
Seller has agreed to provide indemnification for certain information.
NOW THEREFORE, in consideration of the agreements contained herein,
and other valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Depositor, Barclays and the Seller agree as follows:
1. Indemnification and Contribution.
(a) The Seller agrees to indemnify and hold harmless the Depositor,
Barclays, the Co-Underwriters and their respective affiliates and their
respective present and former directors, officers, employees and agents and each
person, if any, who controls the Depositor, Barclays, the Co-Underwriters or
such affiliates within the meaning of either Section 15 of the Securities Act of
1933, as amended (the "1933 Act"), or Section 20 of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the 1933 Act, the 1934 Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based in whole or in part upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus Supplement or in the
Comp Materials or any omission or alleged omission to state in the Prospectus
Supplement or in the Comp Materials a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any such untrue
statement or omission or alleged untrue statement or alleged omission made in
any amendment of or supplement to the Prospectus Supplement or the Comp
Materials and agrees to reimburse the Depositor, Barclays, the Co-Underwriters
or such affiliates and each such officer, director, employee, agent and
controlling person promptly upon demand for any out-of-pocket legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that Seller shall be
liable in any such case only to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with the Seller Information.
As used herein:
"Seller Information" means and is limited to statements set forth
under the headings "[__________________]" and "[__________________]" in the
Prospectus Supplement.
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral Term Sheet" as used
herein includes any subsequent Collateral Term Sheet that reflects a substantive
change in the information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter (the "▇▇▇▇▇▇ letter" and,
together with the PSA Letter, the "No-Action Letters") of ▇▇▇▇▇ & ▇▇▇▇ on behalf
of ▇▇▇▇▇▇, Peabody & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994). The term "Comp Materials" as
used herein means collectively Collateral Term Sheets, Structural Term Sheet and
Computational Materials relating to the Certificates or the transaction
contemplated by the Prospectus Supplement.
(b) Promptly after receipt by any indemnified party under this
Section 1 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 1, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 1 except to the extent it has
been materially prejudiced by such failure; and provided, further, however, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 1.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, except as provided in
the following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 1 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to employ separate counsel;
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 1, shall cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel
retained pursuant to this Section 1(b), the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed the indemnified party for such
reasonable fees and expenses of counsel in accordance with such request prior to
the date of such settlement.
(c) If the indemnification provided for in this Section 1 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, respectively, in connection
with the statements or omissions that result in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified party and indemnifying party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission and any other equitable considerations.
(d) The indemnity and contribution agreements contained in this
Section 1 and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Depositor, Barclays, the
Co-Underwriters, their respective affiliates, directors, officers, employees or
agents or any person controlling the Depositor, Barclays, the Co-Underwriters or
any such affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates.
2. Representations and Warranties. Seller represents and warrants
that:
(a) Seller is validly existing and in good standing under the laws
of its jurisdiction of formation or incorporation, as applicable, and has full
power and authority to own its assets and to transact the business in which it
is currently engaged. Seller is duly qualified to do business 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 otherwise) of Seller;
(b) Seller is not required to obtain the consent of any other person
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;
(c) the execution, delivery and performance of this Agreement by
Seller will not violate any provision of any existing law or regulation or any
order decree of any court applicable to Seller or any provision of the charter
or bylaws of Seller, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which Seller is a party or by which it may be
bound;
(d) (a) no proceeding of or before any court, tribunal or
governmental body is currently pending or, (b) to the knowledge of Seller,
threatened against Seller or any of its properties or with respect to this
Agreement or the Offered Certificates, in either case, which would have a
material adverse effect on the business, properties, assets or condition
(financial or otherwise) of Seller;
(e) Seller has full power and authority to make, execute, deliver
and perform this Agreement and all of the transactions contemplated hereunder,
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 each of
Seller enforceable in accordance with its terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, by the
availability of equitable remedies, and by limitations of public policy under
applicable securities law as to rights of indemnity and contribution thereunder;
and
1. this Agreement has been duly executed and delivered by Seller.
3. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Seller, will be mailed,
delivered or telegraphed and confirmed [______________________]; if sent
to Barclays, will be mailed, delivered or telegraphed and confirmed to
Barclays Bank, PLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
[_________________]; if to the Depositor, will be mailed, delivered or
telegraphed and confirmed to [____________________]; or if to the
Co-Underwriters, will be mailed, delivered or telegraphed and confirmed to
[_____________________].
4. Miscellaneous. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without giving
effect to the conflict of laws provisions thereof. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
successors and assigns and the controlling persons referred to herein, and
no other person shall have any right or obligation hereunder. Neither this
Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the
party against whom enforcement of the change, waiver, discharge or
termination is sought. This Agreement may be executed in counterparts,
each of which when so executed and delivered shall be considered an
original, and all such counterparts shall constitute one and the same
instrument. Capitalized terms used but not defined herein shall have the
meanings provided in the P&S.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers hereunto duly authorized,
this __th day of [_____________].
[DEPOSITOR]
By:
-----------------------------------
Name:
Title:
BARCLAYS BANK, PLC
By:
------------------------------------
Name:
Title:
FIRST FRANKLIN FINANCIAL CORP.
By:
------------------------------------
Name:
Title:
EXHIBIT C
SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of First Franklin Financial Corp., a corporation organized
under the laws of the state of Delaware (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification since ___________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since ___________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver (a) the Mortgage Loan
Purchase Agreement, dated as of March 1, 2004 (the "Purchase Agreement"),
by and between Barclays Bank, PLC (the "Purchaser") and the Company (b)
the Interim Servicing Agreement, dated as of March 1, 2004 (the "Interim
Servicing Agreement"), by and between Barclays Bank, PLC and the Company
and (c) the Custodial Agreement, dated as of March 1, 2004 (the "Custodial
Agreement"), by and among the Purchaser, the Company and ▇▇▇▇▇ Fargo Bank,
N.A. (the "Custodian"), [and to endorse the Mortgage Notes and execute the
Assignments of Mortgages by original [or facsimile] signature], and such
resolutions are in effect on the date hereof and have been in effect
without amendment, waiver, rescission or modification since ____________.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Purchase Agreement, the Interim Servicing Agreement, the
Custodial Agreement, [the sale of the mortgage loans] or the consummation
of the transactions contemplated by the agreements; or (ii) any required
consent, approval, authorization or order has been obtained by the
Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Purchase Agreement, the Interim
Servicing Agreement or the Custodial Agreement conflicts or will conflict
with or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Company or, to
the best of my knowledge, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to
which it is subject, or any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory
body to which the Company is subject or by which it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the Purchase
Agreement, the Interim Servicing Agreement, the Custodial Agreement or the
mortgage loans or of any action taken or to be taken in connection with
the transactions contemplated hereby, or which would be likely to impair
materially the ability of the Company to perform under the terms of the
Purchase Agreement, the Interim Servicing Agreement or the Custodial
Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Purchase
Agreement, (b) the Interim Servicing Agreement, (c) the Custodial
Agreement and (d) any other document delivered or on the date hereof in
connection with any purchase described in the agreements set forth above
was, at the respective times of such signing and delivery, and is now, a
duly elected or appointed, qualified and acting officer or representative
of the Company, who holds the office set forth opposite his or her name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement, the Interim
Servicing Agreement and the Custodial Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:____________________ By:___________________________
Name:_________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of First
Franklin Financial Corp., hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:____________________ By:___________________________
Name:_________________________
Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
---- ----- ---------
_________________________ _________________________ ________________________
_________________________ _________________________ ________________________
_________________________ _________________________ ________________________
_________________________ _________________________ ________________________
_________________________ _________________________ ________________________
_________________________ _________________________ ________________________
_________________________ _________________________ ________________________
EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE SELLER
(date)
Barclays Bank, PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to First Franklin Financial Corp. (the "Company"), with respect to
certain matters in connection with the sale by the Company of the Mortgage Loans
pursuant to that certain Mortgage Loan Purchase Agreement by and between the
Company and Barclays Bank, PLC (the "Purchaser"), dated as of March 1, 2004 (the
"Purchase Agreement") and that certain Interim Servicing Agreement, dated as of
March 1, 2004 (the "Interim Servicing Agreement"), by and between Barclays Bank,
PLC and the Company; which sale is in the form of whole loans, delivered
pursuant to a Custodial Agreement dated as of March 1, 2004 among the Purchaser,
the Company and ______________________[CUSTODIAN] (the "Custodial Agreement",
and collectively with the Purchase Agreement and the Interim Servicing Agreement
the "Agreements"). Capitalized terms not otherwise defined herein have the
meanings set forth in the Purchase Agreement.
[We] [I] have examined the following documents:
1. the Purchase Agreement;
2. the Interim Servicing Agreement
3. the Custodial Agreement;
4. the form of Assignment of Mortgage;
5. the form of endorsement of the Mortgage Notes; and
6. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we] [I]
have relied upon the representations and warranties of the Company contained in
the Purchase Agreement and the Interim Servicing Agreement. [We] [I] have
assumed the authenticity of all documents submitted to [us] [me] as originals,
the genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all documents. As to factual matters, [we][I]
have relied upon statements, certificates and other assurances of public
officials and/or officers and other representatives of the Company, and upon
such other certificates as [I][we] deemed appropriate, which factual matters
have not been independently established or verified by [us][me].
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware
and is an operating subsidiary of National City Bank of
Indiana. As a national bank operating subsidiary, it is
regulated by the Officer of the Comptroller of the Currency
and is subject to applicable laws and regulations.
2. The Company has the power to engage in the transactions
contemplated by the Agreements and all requisite power,
authority and legal right to execute and deliver the
Agreements and to perform and observe the terms and conditions
of the Agreements.
3. The Agreements have been duly authorized, executed and
delivered by the Company, and are the legal, valid and binding
agreements enforceable in accordance with its terms against
the Company, subject to the additional assumptions,
exceptions, qualifications and limitations set forth below. .
4. The Company has been duly authorized to allow any of its
officers to execute any and all documents by original
signature in order to complete the transactions contemplated
by the Agreements.
5. The Company has been duly authorized to allow any of its
officers to execute by original [or facsimile] signature the
endorsements to the Mortgage Notes and the Assignments of
Mortgages, and the original [or facsimile] signature of the
officer at the Company executing the endorsements to the
Mortgage Notes and the Assignments of Mortgages represents the
legal and valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of or
compliance by the Company with the Agreements and the sale of
the Mortgage Loans by the Company or the consummation of the
transactions contemplated by the Agreements or (ii) any
required consent, approval, authorization or order has been
obtained by the Company.
7. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of, the Agreements conflict
or will conflict with or results or will result in a breach of
or constitute or will constitute a default under the charter
or by-laws of the Company or, to the best of my knowledge, the
material terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is
bound or to which it is subject, or violates any statute or
order, rule, regulations, writ, injunction or decree of any
court, governmental authority or regulatory body to which the
Company is subject or by which it is bound.
8. There is no action, suit, proceeding or investigation pending
or, to the best of [our] [my] knowledge, threatened against
the Company which, in [our] [my] judgment, either in any one
instance or in the aggregate, would draw into question the
validity of the Agreements or the Mortgage Loans or of any
action taken or to be taken in connection with the
transactions contemplated thereby, or which would be likely to
impair materially the ability of the Company to perform under
the terms of the Agreements.
9. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Agreements is sufficient to fully
transfer to the Purchaser all right, title and interest of the
Company thereto as noteholder and mortgagee.
The opinions above are subject to the following additional
assumptions, exceptions, qualifications and limitations:
1. [I] [we] have assumed that all parties to the Purchase
Agreement other than the Company have all requisite power and
authority to execute, deliver and perform their respective
obligations under each of the Agreements, and that the
Agreements have been duly authorized by all necessary
corporate action on the part of such parties, have been
executed and delivered by such parties and constitute the
legal, valid and binding obligations of such parties.
2. [My] [our] opinion expressed in paragraphs 3 and 8 above is
subject to the qualifications that (i) the enforceability of
the Purchase Agreement may be limited by the effect of laws
relating to (1) bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect
relating to creditor's rights generally, including,
preferential transfers, and (2) general principles of equity
upon the specific enforceability of any of the remedies,
covenants or other provisions of the Purchase Agreement and
upon the availability of injunctive relief or other equitable
remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) as such principles relate to,
limit or affect the enforcement of creditors' rights generally
and the discretion of the court before which any proceeding
for such enforcement may be brought; and (ii) [I] [we] express
no opinion herein with respect to the validity, legality,
binding effect or enforceability of provisions for
indemnification in the Agreements to the extent such
provisions may be held to be unenforceable as contrary to
public policy.
3. [I] [we] have assumed, without independent check or
certification, that there are no agreements or understandings
among the Company, the Purchaser and any other party which
would expand, modify or otherwise affect the terms of the
documents described herein or the respective rights or
obligations of the parties thereunder.
[I] [we] [am] [are] admitted to practice in the State of [_____] and
[I] [we] render no opinion herein as to matters involving the laws
of the United States of America.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of the date of this
opinion.
Very truly yours,
_________________________________
[Name]
[Assistant] General Counsel
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
___________________, 200__
[Federal Home Loan Bank of
______(the "Association")]
__________________________
__________________________
__________________________
Attention: ___________________________
___________________________
Re: Notice of Sale and Release of Collateral
----------------------------------------
Dear Sirs:
This letter serves as notice that First Franklin Financial Corp. a
corporation, organized pursuant to the laws of the state of Delaware (the
"Company") has committed to sell certain mortgage loans to Barclays Bank, PLC
under a Mortgage Loan Purchase Agreement, dated as of March 1, 2004. The Company
warrants that the mortgage loans to be sold to Barclays Bank, PLC are in
addition to and beyond any collateral required to secure advances made by the
Association to the Company.
The Company acknowledges that the mortgage loans to be sold to
Barclays Bank, PLC shall not be used as additional or substitute collateral for
advances made by the Association. Barclays Bank, PLC understands that the
balance of the Company's mortgage loan portfolio may be used as collateral or
additional collateral for advances made by the Association, and confirms that it
has no interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Barclays Bank,
PLC.
[Signature Page Follows]
Very truly yours,
----------------------------
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
Acknowledged and approved:
[FEDERAL HOME LOAN BANK OF]
_________________________
By:_________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans"), to
be purchased by Barclays Bank, PLC from the company named on the next page (the
"Company") pursuant to that certain Mortgage Loan Purchase Agreement, dated as
of March 1, 2004, and certifies that all notes, mortgages, assignments and other
documents in its possession relating to such Mortgage Loans have been delivered
and released to the Company or its designees, as of the date and time of the
sale of such Mortgage Loans to Barclays Bank, PLC. Such release shall be
effective automatically without any further action by any party upon payment in
one or more installments, in immediately available funds, of $_____________, in
accordance with the wire instructions set forth below.
Name, Address and Wire Instructions of Financial Institution
_________________________________
(Name)
_________________________________
(Address)
_________________________________
_________________________________
_________________________________
By:______________________________
II. Certification of Release
The Company named below hereby certifies to Barclays Bank, PLC that,
as of the date and time of the sale of the above-mentioned Mortgage Loans to
Barclays Bank, PLC the security interests in the Mortgage Loans released by the
above-named financial institution comprise all security interests relating to or
affecting any and all such Mortgage Loans. The Company warrants that, as of such
time, there are and will be no other security interests affecting any or all of
such Mortgage Loans.
_______________________________
By:____________________________
Title:_________________________
Date:__________________________
EXHIBIT G
UNDERWRITING GUIDELINES
EXHIBIT H
FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
On this ___ day of ____________, 200_, First Franklin Financial
Corp. ("Seller"), as the Seller under (i) that certain Purchase Price and Terms
Agreement, dated as of _________, 200_ (the "PPTA"), and (ii) that certain
Mortgage Loan Purchase Agreement, dated as of March 1, 2004 (the "Purchase
Agreement"), does hereby sell, transfer, assign, set over and convey to Barclays
Bank, PLC ("Purchaser") as the Purchaser under the Agreements (as defined below)
without recourse, but subject to the terms of the Agreements, all right, title
and interest of, in and to the Mortgage Loans listed on the Mortgage Loan
Schedule attached hereto as Exhibit A (the "Mortgage Loans"), together with the
Mortgage Files and the related Servicing Rights and all rights and obligations
arising under the documents contained therein. Each Mortgage Loan subject to the
Agreements was underwritten in accordance with, and conforms to, the
Underwriting Guidelines attached hereto as Exhibit C. Pursuant to Article VI of
the Purchase Agreement, the Seller has delivered to the Custodian the documents
for each Mortgage Loan to be purchased as set forth in the Purchase Agreement.
The contents of each Servicing File required to be retained by First Franklin
Financial Corp., as servicer ("Servicer"), as interim servicer under that
certain Servicing Agreement, dated as of March 1, 2004 (the "Servicing
Agreement") to service the Mortgage Loans pursuant to the Servicing Agreement
and thus not delivered to the Purchaser are and shall be held in trust by the
Servicer for the benefit of the Purchaser as the owner thereof. The Servicer's
possession of any portion of the Servicing File is at the will of the Purchaser
for the sole purpose of facilitating servicing of the related Mortgage Loan
pursuant to the Servicing Agreement, and such retention and possession by the
Servicer shall be in a custodial capacity only. The ownership of each Mortgage
Note, Mortgage, the Servicing Rights and the contents of the Mortgage File and
Servicing File is vested in the Purchaser and the ownership of all records and
documents with respect to the related Mortgage Loan prepared by or which come
into the possession of the Seller or the Servicer shall immediately vest in the
Purchaser and shall be retained and maintained, in trust, by the Seller at the
will of the Purchaser in a custodial capacity only. The PPTA, the Purchase
Agreement and the Servicing Agreement shall collectively be referred to as the
"Agreements" herein.
The Mortgage Loan Package characteristics of the Mortgage Loans
subject hereto are set forth on Exhibit B attached hereto.
In accordance with Article VI of the Purchase Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
FIRST FRANKLIN FINANCIAL CORP.
By: __________________________________
Name: _____________________________
Title: ____________________________
Accepted and Agreed:
BARCLAYS BANK, PLC
By:___________________________________
Name:
Title:
EXHIBIT A
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
THE MORTGAGE LOANS
EXHIBIT B
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
[Pool Characteristics of the Mortgage Loan Package as delivered on the
related Closing Date:]
EXHIBIT C
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING GUIDELINES
EXHIBIT I
FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________ __,
20__] ("Agreement"), among Barclays Bank, PLC ("Assignor"),
[____________________] ("Assignee") and First Franklin Financial Corp. (the
"Company"):
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest of the Assignor, as
purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Mortgage Loan
Purchase Agreement (the "Purchase Agreement"), dated as of March 1, 2004,
between the Assignor, as purchaser (the "Purchaser"), and the Company, as
seller, solely insofar as the Purchase Agreement relates to the Mortgage Loans.
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement which are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement or (ii) the
rights of the Purchaser under Section 9.04 of the Purchase Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to
[__________________] (the "Trust") created pursuant to a Pooling and Servicing
Agreement, dated as of [______], 2004 (the "Pooling Agreement"), among the
Assignee, the Assignor, [___________________], as trustee (including its
successors in interest and any successor trustees under the Pooling Agreement,
the "Trustee"), [____________________], as servicer (including its successors in
interest and any successor servicer under the Pooling Agreement, the
"Servicer"). The Company hereby acknowledges and agrees that from and after the
date hereof (i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations of the
Assignor insofar as they relate to the Mortgage Loans, (iii) the Trust
(including the Trustee and the Servicer acting on the Trust's behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate to
the Mortgage Loans, under the Purchase Agreement, including, without limitation,
the enforcement of the document delivery requirements set forth in Section 6 of
the Purchase Agreement, and shall be entitled to enforce all of the obligations
of the Company thereunder insofar as they relate to the Mortgage Loans, and (iv)
all references to the Purchaser, the Custodian or the Bailee under the Purchase
Agreement insofar as they relate to the Mortgage Loans, shall be deemed to refer
to the Trust (including the Trustee and the Servicer acting on the Trust's
behalf). Neither the Company nor the Assignor shall amend or agree to amend,
modify, waiver, or otherwise alter any of the terms or provisions of the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company's performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
Representations and Warranties of the Company
3. The Company warrants and represents to the Assignor, the Assignee
and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation;
(b) The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement and has full power and
authority to perform its obligations under the Purchase Agreement. The
execution by the Company of this Agreement is in the ordinary course of the
Company's business and will not conflict with, or result in a breach of,
any of the terms, conditions or provisions of the Company's charter or
bylaws or any legal restriction, or any material agreement or instrument to
which the Company is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
the Company or its property is subject. The execution, delivery and
performance by the Company of this Agreement have been duly authorized by
all necessary corporate action on part of the Company. This Agreement has
been duly executed and delivered by the Company, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee,
will constitute the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at
law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Company in connection with the execution, delivery
or performance by the Company of this Agreement; and
(d) There is no action, suit, proceeding or investigation pending or
threatened against the Company, before any court, administrative agency or
other tribunal, which would draw into question the validity of this
Agreement or the Purchase Agreement, or which, either in any one instance
or in the aggregate, would result in any material adverse change in the
ability of the Company to perform its obligations under this Agreement or
the Purchase Agreement, and the Company is solvent.
4. Pursuant to Section 13 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that the representations and warranties set forth in Section 9.02
of the Purchase Agreement are true and correct as of [----------].
Remedies for Breach of Representations and Warranties
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee and
the Servicer acting on the Trust's behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3 and 4
hereof shall be as set forth in Subsection 9.03 of the Purchase Agreement as if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
Miscellaneous
6. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
7. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
8. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee and
the Servicer acting on the Trust's behalf). Any entity into which Assignor,
Assignee or Company may be merged or consolidated shall, without the requirement
for any further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each of this Agreement and the Purchase Agreement shall survive
the conveyance of the Mortgage Loans and the assignment of the Purchase
Agreement (to the extent assigned hereunder) by Assignor to Assignee and by
Assignee to the Trust and nothing contained herein shall supersede or amend the
terms of the Purchase Agreement.
10. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
11. In the event that any provision of this Agreement conflicts with
any provision of the Purchase Agreement with respect to the Mortgage Loans, the
terms of this Agreement shall control.
12. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
FIRST FRANKLIN FINANCIAL CORP.
By: __________________________________
Name:_______________________________
Its:________________________________
BARCLAYS BANK, PLC
By: __________________________________
Name:_______________________________
Its:________________________________
By: __________________________________
Name:_______________________________
Its:________________________________
[__________________________]
By: __________________________________
Name:_______________________________
Its:________________________________
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇, dated as of August 30, 2004 ("Amendment"), to the
Mortgage Loan Purchase Agreement, dated as of March 1, 2004 (the "Purchase
Agreement"), each between BARCLAYS BANK, PLC, a public limited company
registered in England and Wales under company number 1026167 ("Barclays"), and
FIRST FRANKLIN FINANCIAL CORP., a Delaware corporation ("First Franklin").
RECITALS
WHEREAS, the parties hereto have entered into the Purchase
Agreement;
WHEREAS, the parties hereto desire to modify the Purchase Agreement
as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Purchase Agreement are used herein as therein defined.
2. Amendments.
(i) Section 1 is hereby amended by:
(a) inserting the following defined terms in alphabetical
order therein:
"Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary."
"Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary."
"Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.."
(b) deleting the definition of "High Cost Loan" in its
entirety and replacing it with the following:
"High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994 or (b) classified as a "high cost home,"
"threshold," "covered," "high risk home," "predatory" or similar loan under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under an applicable law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points and/or fees) or (c) categorized as High Cost
pursuant to Appendix E of Standard & Poor's Glossary."
(c) deleting the "and" prior to the "(44)" in the definition
of "Mortgage Loan Schedule" and adding the following language immediately
following the reference to "if applicable" in clause (44) of such definition:
"and (45) a code indicating whether the Mortgage Loan is a Home
Loan"
(ii) Subsection 9.02 is hereby amended by:
(a) adding the following language to the end of the first
sentence of clause (aaa) following the word "Loan" and prior to the ".":
"or Covered Loan, as applicable, and no Mortgage Loan originated on
or after October 1, 2002 through March 6, 2003 is governed by the Georgia
Fair Lending Act"
(b) deleting clause (jjj) and replacing it with "[Reserved];"
(iii) Subsection 9.03 is hereby amended by deleting the reference to
clause (jjj) in the second sentence of such Subsection in its entirety.
3. Ratification of Agreement. Except as modified and expressly
amended by this Amendment, the Purchase Agreement is in all respects ratified
and confirmed, and all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
4. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
BARCLAYS BANK, PLC
By:____________________________________
Name:
Title:
FIRST FRANKLIN FINANCIAL CORP.
By:____________________________________
Name:
Title: