STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., Depositor Trustee and EMC MORTGAGE CORPORATION Seller and Master Servicer POOLING AND SERVICING AGREEMENT Dated as of April 1, 2007 Structured Asset Mortgage Investments II Inc. Prime Mortgage Trust,...
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.,
Depositor
U.S.
BANK
NATIONAL ASSOCIATION,
Trustee
and
EMC
MORTGAGE CORPORATION
Seller
and Master Servicer
Dated
as
of April 1, 2007
Structured
Asset Mortgage Investments II Inc.
Prime
Mortgage Trust, Certificates
Series
2007-2
TABLE
OF
CONTENTS
|
ARTICLE
I Definitions
|
|
|
Section
1.01
|
Definitions.
|
|
ARTICLE
II Conveyance
of Mortgage Loans; Original Issuance of Certificates
|
|
|
Section
2.01
|
Conveyance
of Mortgage Loans to Trustee.
|
|
Section
2.02
|
Acceptance
of Mortgage Loans and Underlying Certificates by Trustee.
|
|
Section
2.03
|
Assignment
of Interest in the Mortgage Loan Purchase Agreement.
|
|
Section
2.04
|
Substitution
of Mortgage Loans.
|
|
Section
2.05
|
Issuance
of Certificates.
|
|
Section
2.06
|
Representations
and Warranties Concerning the Depositor.
|
|
Section
2.07
|
Representations
and Warranties of EMC.
|
|
Section
2.08
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
|
ARTICLE
III
Administration
of the Trust Fund and Servicing of Mortgage Loans
|
|
|
Section
3.01
|
Master
Servicer.
|
|
Section
3.02
|
REMIC-Related
Covenants.
|
|
Section
3.03
|
Monitoring
of Servicers.
|
|
Section
3.04
|
Fidelity
Bond.
|
|
Section
3.05
|
Power
to Act; Procedures.
|
|
Section
3.06
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
Section
3.07
|
Release
of Mortgage Files.
|
|
Section
3.08
|
Documents,
Records and Funds in Possession of Master Servicer to Be Held for
Trustee.
|
|
Section
3.09
|
Standard
Hazard Insurance and Flood Insurance Policies.
|
|
Section
3.10
|
Presentment
of Claims and Collection of Proceeds.
|
|
Section
3.11
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
|
Section
3.12
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
|
Section
3.13
|
Realization
Upon Defaulted Mortgage Loans.
|
|
Section
3.14
|
Compensation
for the Master Servicer.
|
|
Section
3.15
|
REO
Property.
|
|
Section
3.16
|
Annual
Statement as to Compliance.
|
|
Section
3.17
|
Assessments
of Compliance and Attestation Reports.
|
|
Section
3.18
|
Reports
Filed with Securities and Exchange Commission.
|
|
Section
3.19
|
Intention
of the Parties and Interpretation.
|
|
Section
3.20
|
UCC.
|
|
Section
3.21
|
Optional
Purchase of Defaulted Mortgage Loans.
|
|
ARTICLE
IV
Accounts
|
|
|
Section
4.01
|
Protected
Accounts.
|
|
Section
4.02
|
Master
Servicer Collection Account.
|
|
Section
4.03
|
Permitted
Withdrawals and Transfers from the Master Servicer Collection
Account.
|
|
Section
4.04
|
Distribution
Account.
|
|
Section
4.05
|
Permitted
Withdrawals and Transfers from the Distribution Account.
|
|
ARTICLE
V
Certificates
|
|
|
Section
5.01
|
Certificates.
|
|
Section
5.02
|
Registration
of Transfer and Exchange of Certificates.
|
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
Section
5.04
|
Persons
Deemed Owners.
|
|
Section
5.05
|
Transfer
Restrictions on Residual Certificates.
|
|
Section
5.06
|
Restrictions
on Transferability of Non-Offered Certificates.
|
|
Section
5.07
|
ERISA
Restrictions.
|
|
Section
5.08
|
Rule
144A Information.
|
|
ARTICLE
VI
Payments
to Certificateholders
|
|
|
Section
6.01
|
Distributions
on the Certificates.
|
|
Section
6.02
|
[Reserved.]
|
|
Section
6.03
|
Allocation
of Losses.
|
|
Section
6.04
|
Payments.
|
|
Section
6.05
|
Statements
to Certificateholders.
|
|
Section
6.06
|
Monthly
Advances.
|
|
Section
6.07
|
Compensating
Interest Payments.
|
|
ARTICLE
VII
The Master Servicer
|
|
|
Section
7.01
|
Liabilities
of the Master Servicer.
|
|
Section
7.02
|
Merger
or Consolidation of the Master Servicer.
|
|
Section
7.03
|
Indemnification
of the Trustee and the Master Servicer
|
|
Section
7.04
|
Limitations
on Liability of the Master Servicer and Others.
|
|
Section
7.05
|
Master
Servicer Not to Resign.
|
|
Section
7.06
|
Successor
Master Servicer.
|
|
Section
7.07
|
Sale
and Assignment of Master Servicing.
|
|
ARTICLE
VIII
Default
|
|
|
Section
8.01
|
Events
of Default.
|
|
Section
8.02
|
Trustee
to Act; Appointment of Successor.
|
|
Section
8.03
|
Notification
to Certificateholders.
|
|
Section
8.04
|
Waiver
of Defaults.
|
|
Section
8.05
|
List
of Certificateholders.
|
|
ARTICLE
IX
Concerning
the Trustee
|
|
|
Section
9.01
|
Duties
of Trustee.
|
|
Section
9.02
|
Certain
Matters Affecting the Trustee.
|
|
Section
9.03
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
|
Section
9.04
|
Trustee
May Own Certificates.
|
|
Section
9.05
|
Trustee’s
Fees and Expenses.
|
|
Section
9.06
|
Eligibility
Requirements for Trustee.
|
|
Section
9.07
|
Insurance.
|
|
Section
9.08
|
Resignation
and Removal of the Trustee.
|
|
Section
9.09
|
Successor
Trustee.
|
|
Section
9.10
|
Merger
or Consolidation of Trustee.
|
|
Section
9.11
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
Section
9.12
|
Federal
Information Returns and Reports to Certificateholders; REMIC
Administration.
|
|
ARTICLE
X
Termination
|
|
|
Section
10.01
|
Termination
Upon Repurchase by the Depositor or its Designee or Liquidation of the
Mortgage Loans.
|
|
Section
10.02
|
Additional
Termination Requirements with respect to the Certificates.
|
|
ARTICLE
XI
Miscellaneous
Provisions
|
|
|
|
|
|
Section
11.01
|
Intent
of Parties.
|
|
Section
11.02
|
Amendment.
|
|
Section
11.03
|
Recordation
of Agreement.
|
|
Section
11.04
|
Limitation
on Rights of Certificateholders.
|
|
Section
11.05
|
Acts
of Certificateholders.
|
|
Section
11.06
|
Governing
Law.
|
|
Section
11.07
|
Notices.
|
|
Section
11.08
|
Severability
of Provisions.
|
|
Section
11.09
|
Successors
and Assigns.
|
|
Section
11.10
|
Article
and Section Headings.
|
|
Section
11.11
|
Counterparts.
|
|
Section
11.12
|
Notice
to Rating Agencies.
|
.
EXHIBITS
|
Exhibit
A-1
|
-
|
Form
of Class A Certificates
|
|
Exhibit
A-2
|
-
|
Form
of Class B Certificates
|
|
Exhibit
A-3
|
-
|
Form
of Class PO Certificates
|
|
Exhibit
A-4
|
-
|
Form
of Class R Certificates
|
|
Exhibit
A-5
|
-
|
Form
of Class X Certificates
|
|
Exhibit
B
|
-
|
Mortgage
Loan Schedule
|
|
Exhibit
C
|
-
|
Reserved
|
|
Exhibit
D
|
-
|
Request
for Release of Documents
|
|
Exhibit
E
|
-
|
Form
of Affidavit pursuant to Section 860E(e)(4)
|
|
Exhibit
F-1
|
-
|
Form
of Investment Letter
|
|
Exhibit
F-2
|
-
|
Form
of Rule 144A and Related Matters Certificate
|
|
Exhibit
F-3
|
-
|
Form
of Rule 144A Global Certificate to Regulation S Global
Certificate
|
|
Exhibit
F-4
|
-
|
Form
of Regulation S Global Certificate to Rule 144A Global
Certificate
|
|
Exhibit
G
|
-
|
Form
of Custodial Agreement
|
|
Exhibit
H
|
-
|
Form
of Mortgage Loan Purchase Agreement
|
|
Exhibit
I-1
|
-
|
EMC
Servicing Agreement
|
|
Exhibit
I-2
|
NCMC
Servicing Agreement
|
|
|
Exhibit
J-1
|
-
|
EMC
Assignment Agreement
|
|
Exhibit
J-2
|
NCMC
Assignment Agreement
|
|
|
Exhibit
K
|
-
|
Form
of Back-Up Certification
|
|
Exhibit
L
|
-
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
M
|
-
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
N
|
-
|
Additional
Disclosure Notification
|
|
Exhibit
O
|
-
|
Aggregate
Planned Principal Schedules
|
|
Exhibit
P
|
-
|
Form
of Trustee Limited Power of Attorney
|
|
Exhibit
Q
|
-
|
Form
of Certification to be provided by the Trustee to the
Depositor
|
|
Exhibit
R
|
-
|
Form
of the Master Servicer’s Data Layout
Report
|
Pooling
and Servicing Agreement dated as of April 1, 2007, among Structured Asset
Mortgage Investments II Inc., a Delaware corporation, as depositor (the
“Depositor”), U.S. Bank National Association, as trustee (the “Trustee”), and
EMC Mortgage Corporation, as seller (in such capacity, the “Seller”) and as
master servicer (in such capacity, the “Master Servicer”).
PRELIMINARY
STATEMENT
On
or
prior to the Closing Date, the Depositor acquired the Mortgage Loans from the
Seller. On the Closing Date, the Depositor will sell the Mortgage Loans and
certain other property to the Trust Fund and receive in consideration therefor
the Certificates, together evidencing the entire beneficial ownership interest
in the Trust Fund.
The
Trustee on behalf of the Trust shall make an election for the assets
constituting the Trust REMIC to be treated for federal income tax purposes
as a
REMIC. On the Startup Day, the Regular Certificates will be designated the
“regular interests” in such REMIC, and the Class R Certificates will be
designated the sole class of “residual interests” in such REMIC.
The
Mortgage Loans will have an Outstanding Principal Balance as of the Cut-off
Date, after deducting all Scheduled Principal due on or before the Cut-off
Date,
of $331,901,017.06.
The
initial principal amount of the Certificates will not exceed such Outstanding
Principal Balance.
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Seller and the Trustee agree as follows:
ARTICLE
I
Definitions
Section
1.01 Definitions.
Whenever
used in this Agreement, the following words and phrases, unless otherwise
expressly provided or unless the context otherwise requires, shall have the
meanings specified in this Article.
Accepted
Master Servicing Practices:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that master
service mortgage loans of the same type and quality as such Mortgage Loan in
the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Trustee or the Master Servicer (except in its capacity as
successor to a Servicer), or (y) as provided in the applicable Servicing
Agreement, to the extent applicable to any Servicer, but in no event below
the
standard set forth in clause (x).
Account:
The
Master Servicer Collection Account, the Distribution Account and the Protected
Accounts as the context may require.
Accrued
Certificate Interest:
For any
Certificate (other than the Class PO Certificates) for any Distribution Date,
the interest accrued during the related Interest Accrual Period at the
applicable Pass-Through Rate on the Current Principal Amount, or Notional Amount
in the case of any Interest Only Certificate, of such Certificate immediately
prior to such Distribution Date, less (i) in the case of a Senior Certificate
(other than the Class PO Certificates or Class X Certificates), such
Certificate’s share of any Net Interest Shortfall from the Mortgage Loans and,
after the Cross-Over Date, the interest portion of any Realized Losses on the
Mortgage Loans allocated thereto in accordance with Section 6.03(e) and (ii)
in
the case of a Subordinate Certificate, such Certificate’s share of any Net
Interest Shortfall from the Mortgage Loans and the interest portion of any
Realized Losses on the Mortgage Loans allocated thereto in accordance with
Section 6.03(e). All calculations of interest on the Certificates will be made
on the basis of a 360-day year consisting of twelve 30-day months.
Additional
Disclosure:
As
defined in Section 3.18.
Additional
Form 10-D Disclosure:
As
defined in Section 3.18.
Additional
Form 10-K Disclosure:
As
defined in Section 3.18.
Affiliate:
As to
any Person, any other Person controlling, controlled by or under common control
with such Person. “Control” means the power to direct the management and
policies of a Person, directly or indirectly, whether through ownership of
voting securities, by contract or otherwise. “Controlled” and “Controlling” have
meanings correlative to the foregoing. The Trustee may conclusively presume
that
a Person is not an Affiliate of another Person unless a Responsible Officer
of
the Trustee has actual knowledge to the contrary.
Agreement:
This
Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
American
Home:
American Home Mortgage Corp.
Annual
Statement of Compliance:
As
defined in Section 3.16.
Allocable
Share:
With
respect to any Class of Subordinate Certificates on any Distribution Date will
generally equal such Class’s pro rata share (based on the Current Principal
Amount of each Class entitled thereto) of the sum of each of the components
of
the definition of Subordinate Optimal Principal Amount; provided, that except
as
described in the succeeding sentence, no Class of Subordinate Certificates
(other than the Class of Subordinate Certificates outstanding with the lowest
numerical designation) shall be entitled on any Distribution Date to receive
distributions pursuant to clauses (2), (3) and (5) of the definition of
Subordinate Optimal Principal Amount unless the Class Prepayment Distribution
Trigger for the related Class is satisfied for such Distribution Date. If on
any
Distribution Date the Current Principal Amount of any Class of Subordinate
Certificates for which the Class Prepayment Distribution Trigger was satisfied
on such Distribution Date is reduced to zero, any amounts distributable to
such
Class pursuant to clauses (2), (3) and (5) of the definition of Subordinate
Optimal Principal Amount, to the extent of such Class’s remaining Allocable
Share, shall be distributed to the remaining Classes of Subordinate Certificates
in reduction of their respective Current Principal Amounts, sequentially, in
the
order of their numerical Class designations.
Applicable
Credit Rating:
For any
long-term deposit or security, a credit rating of AAA in the case of each of
S&P and Fitch or Aaa in the case of Moody’s. For any short-term deposit or
security, a rating of A-l+ in the case of S&P, F-1+ in the case of Fitch or
P-1 in the case of Moody’s.
Applicable
State Law:
For
purposes of Section 9.12(d), the Applicable State Law shall be (a) the law
of
the State of New York and (b) such other state law whose applicability shall
have been brought to the attention of the Trustee by either (i) an Opinion
of
Counsel reasonably acceptable to the Trustee delivered to it by the Master
Servicer or the Depositor, or (ii) written notice from the appropriate taxing
authority as to the applicability of such state law.
Appraised
Value:
For any
Mortgaged Property related to a Mortgage Loan, the amount set forth as the
appraised value of such Mortgaged Property in an appraisal made for the mortgage
originator in connection with its origination of the related Mortgage
Loan.
Assessment
of Compliance:
As
defined in Section 3.17.
Assignment
Agreements:
The
agreements attached hereto as Exhibit J, whereby the Servicing Agreements were
assigned to the Trustee for the benefit of the Holders of the
Certificateholders.
Assumed
Final Distribution Date:
With
respect to the Certificates, the Distribution Date occurring in April
2037.
Attesting
Party:
As
defined in Section 3.17.
Attestation
Report:
As
defined in Section 3.17.
Available
Funds:
For any
Distribution Date, an amount which generally includes, (1) all previously
undistributed payments on account of principal (including the principal portion
of Monthly Payments, Principal Prepayments and the principal amount of Net
Liquidation Proceeds) with regard to the Mortgage Loans and all previously
undistributed payments on account of interest received after the Cut-Off Date
and on or prior to the related Determination Date and any proceeds from a
repurchase of a Mortgage Loan, (2) any Monthly Advances made by the Master
Servicer or a Servicer for such Distribution Date, (3) any Compensating Interest
made by a Servicer for such Distribution Date in respect of the Mortgage Loans
and (4) any amounts reimbursed by the Master Servicer or the Trustee in
connection with losses on certain eligible investments, net of all fees payable
to, and amounts reimbursable to, the Servicers, the Master Servicer, the Trustee
and the Custodian as provided in this Agreement and the Custodial Agreement
and
investment earnings on amounts on deposit in the Master Servicer Collection
Account and the Distribution Account.
Average
Loss Severity Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the sum of the Loss Severity Percentages for each Mortgage
Loan which had a Realized Loss and the denominator of which is the number of
Mortgage Loans which had Realized Losses.
Bankruptcy
Code:
The
United States Bankruptcy Code, as amended as codified in 11 U.S.C. §§
101-1330.
Bankruptcy
Loss:
With
respect to any Mortgage Loan, any Deficient Valuation or Debt Service Reduction
related to such Mortgage Loan as reported by the applicable Servicer to the
Master Servicer.
Book-Entry
Certificates:
Initially, all Classes of the Senior Certificates (other than the Residual
Certificates) and the Offered Subordinate Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which the New York
Stock
Exchange or Federal Reserve is closed or on which banking institutions in the
jurisdiction in which the Trustee, the Master Servicer or any Servicer is
located are authorized or obligated by law or executive order to be
closed.
Certificate:
Any one
of the Certificates executed and countersigned by the Trustee substantially
in
the form of Exhibits A-1 through A-3 attached hereto.
Certificates
Distribution Report:
The
report prepared by the Trustee with respect to the Certificates and the Mortgage
Loans pursuant to Section 6.05(a).
Certificateholder:
A
Holder of a Certificate.
Certificate
Owner:
Any
Person who is the beneficial owner of a Certificate registered in the name
of
the Depository or its nominee.
Certificate
Register:
The
register maintained pursuant to Section 5.02.
Class:
With
respect to the Certificates, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, X,
PO
and R.
Class
A Certificates:
Any of
the Class A-1, Class A-2 and Class A-3 Certificates.
Class
B Certificates:
Any of
the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates.
Class
PO Certificates:
Any
Certificate designated as a “Class PO Certificate” on its face.
Class
PO Certificate Cash Shortfall:
For any
Distribution Date and the Class PO Certificates, the difference between (i)
principal distributable to the Class PO Certificates in accordance with priority
fourth
of
clause (i) under subsection 6.01(a), and (ii) principal actually distributed
to
the Class PO Certificates after giving effect to clause (iii) under subsection
6.01(a).
Class
PO Certificate Deferred Amount:
As to
each Distribution Date through the Cross-Over Date, the aggregate of all amounts
allocable on such dates to the Class PO Certificates in respect of the principal
portion of Realized Losses in respect of Discount Mortgage Loans and the Class
PO Certificate Cash Shortfall and all amounts previously allocated in respect
of
such losses and such shortfalls to the Class PO Certificates, and not
distributed on prior Distribution Dates.
Class
PO Certificate Principal Distribution Amount:
For
each of the Class PO Certificates with respect to each Distribution Date, an
amount equal to the sum of:
(i) the
PO
Percentage of all scheduled payments of principal due on each Discount Mortgage
Loan on the related Due Date as specified in the amortization schedule at the
time applicable thereto (after adjustment for previous principal prepayments
but
before any adjustment to such amortization schedule by reason of any bankruptcy
or similar proceeding or any moratorium or similar waiver or grace
period);
(ii) the
PO
Percentage of the Scheduled Principal Balance of each Discount Mortgage Loan
which was the subject of a prepayment in full received by the related Servicer
during the applicable Prepayment Period;
(iii) the
PO
Percentage of all partial prepayments of principal of each Discount Mortgage
Loan received during the applicable Prepayment Period;
(iv) the
lesser of (a) the PO Percentage of the sum of (A) all Net Liquidation Proceeds
and Subsequent Recoveries allocable to principal on each Discount Mortgage
Loan
which became a Liquidated Mortgage Loan during the calendar month immediately
preceding such Distribution Date (other than a Discount Mortgage Loan described
in clause (B)) and (B) the Scheduled Principal Balance of each such Discount
Mortgage Loan purchased by an insurer from the Trustee during the related
Prepayment Period pursuant to the related Primary Mortgage Insurance Policy,
if
any, or otherwise; and (b) the PO Percentage of the sum of (A) the Scheduled
Principal Balance of each Discount Mortgage Loan which became a Liquidated
Mortgage Loan during the calendar month immediately preceding such Distribution
Date (other than a Discount Mortgage Loan described in clause (B)) and (B)
the
Scheduled Principal Balance of each such Discount Mortgage Loan that was
purchased by an insurer from the Trustee during the related Prepayment Period
pursuant to the related Primary Mortgage Insurance Policy, if any, or otherwise;
and
(v) the
PO
Percentage of the sum of (a) the Scheduled Principal Balance of each Discount
Mortgage Loan which was repurchased by the Seller in connection with such
Distribution Date and (b) the difference, if any, between the Scheduled
Principal Balance of a Discount Mortgage Loan that has been replaced by the
Seller with a substitute Discount Mortgage Loan pursuant to the Agreement in
connection with such Distribution Date and the Scheduled Principal Balance
of
such substitute Discount Mortgage Loan.
Class
Prepayment Distribution Trigger:
For a
Class of Subordinate Certificates for any Distribution Date, the Class
Prepayment Distribution Trigger is satisfied if the fraction (expressed as
a
percentage), the numerator of which is the aggregate Current Principal Amount
of
such Class and each Class of Subordinate Certificates subordinate thereto,
if
any, and the denominator of which is the Scheduled Principal Balance of all
of
the Mortgage Loans as of the beginning of the related Due Period, equals or
exceeds such percentage calculated as of the Closing Date.
Clearing
Agency:
An
organization registered as a “clearing agency” pursuant to Section 17A of the
Securities and Exchange Act of 1934, as amended, which initially shall be DTC,
Clearstream, Luxembourg and Euroclear.
Clearstream,
Luxembourg:
Clearstream Banking, a société anonyme, a limited liability company organized
under the laws of Luxembourg.
Closing
Date:
April
30, 2007.
Code:
The
Internal Revenue Code of 1986, as amended.
Company:
EMC
Mortgage Corporation, in its capacity as servicer.
Compensating
Interest Payment:
As
defined in Section 6.07.
Corporate
Trust Office:
The
office of the Trustee at which at any particular time its corporate trust
business is administered, which office, at the date of the execution of this
Agreement, is located at US Bank Corporate Trust Services, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services/PRIME 2007-2,
or such other address as the Trustee may designate from time to time.
Credit
Support Depletion Date:
The
first Distribution Date on which the Senior Percentage equals 100%.
Cross-Over
Date:
The
Distribution Date on which the Current Principal Amounts of the Subordinate
Certificates are reduced to zero.
Current
Principal Amount:
With
respect to any Certificate (other than an Interest Only Certificate) as of
any
Distribution Date, the initial principal amount of such Certificate plus any
Subsequent Recoveries added to the Current Principal Amount of such Certificate
pursuant to Section 6.01(g), and reduced by (i) all amounts distributed on
previous Distribution Dates on such Certificate or Component with respect to
principal, (ii) the principal portion of all Realized Losses allocated prior
to
such Distribution Date to such Certificates, taking account of the Loss
Allocation Limitation and (iii) in the case of a Subordinate Certificate, such
Certificate’s pro rata share, if any, of the applicable Subordinate Certificate
Writedown Amount for previous Distribution Dates. With respect to any Class
of
Certificates (other than an Interest Only Certificate), the Current Principal
Amount thereof will equal the sum of the Current Principal Amounts of all
Certificates in such Class. Notwithstanding the foregoing, solely for purposes
of giving consents, directions, waivers, approvals, requests and notices, each
of the Residual Certificates after the Distribution Date on which they each
receive the distribution of the last dollar of their respective original
principal amount shall be deemed to have Current Principal Amounts equal to
their respective Current Principal Amounts on the day immediately preceding
such
Distribution Date.
Current
Report:
The
Current Report pursuant to Section 13 or 15(d) of the Exchange Act.
Custodial
Agreement:
An
agreement, dated as of the Closing Date among the Depositor, the Master
Servicer, the Trustee, the Custodian, EMC as a seller and Master Funding as
a
seller in substantially the form of Exhibit G hereto.
Custodian:
▇▇▇▇▇
Fargo Bank, National Association, or any successor custodian appointed pursuant
to the provisions hereof and of the Custodial Agreement.
Cut-off
Date:
April
1, 2007.
Cut-off
Date Balance:
An
amount equal to $331,901,017.06.
Debt
Service Reduction:
Any
reduction of the Scheduled Payments which a Mortgagor is obligated to pay with
respect to a Mortgage Loan as a result of any proceeding under the Bankruptcy
Code or any other similar state law or other proceeding.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation of the Mortgaged Property by a court
of competent jurisdiction in an amount less than the then outstanding
indebtedness under the Mortgage Loan, which valuation results from a proceeding
initiated under the Bankruptcy Code or any other similar state law or other
proceeding.
Delinquent:
The
delinquency method used for calculations with respect to the Mortgage Loans
will
be in accordance with the methodology used by the Mortgage Bankers Association.
Under this method, a mortgage loan is considered "30 days or more Delinquent"
if
the borrower fails to make a scheduled payment prior to the mortgage loan’s
first succeeding due date. For example, if a securitization had a closing date
occurring in August and a cut-off date of August 1, a mortgage loan with a
payment due on July 1 that remained unpaid as of the close of business on July
31 would be described as 30 days delinquent as of the cut-off date. A mortgage
loan would be considered "60 days or more Delinquent" with respect to such
scheduled payment if such scheduled payment were not made prior to the close
of
business on the day prior to the mortgage loan’s second succeeding due date date
(or, in the preceding example, if the mortgage loan with a payment due on June
1
remained unpaid as of the close of business on July 31). Similarly for "90
days
or more Delinquent" and so on. Unless otherwise specified, with respect to
any
date of determination, determinations of delinquency are made as of the last
day
of the prior calendar month. Mortgage Loans with Due Dates which are not the
first of the month are treated as if the Due Date was the first of the following
month. This method of determining delinquencies is also referred to as the
MBA
method.
Depositor:
Structured Asset Mortgage Investments II Inc., a Delaware corporation, or its
successors in interest.
Depositor
Information:
As
defined in Section 3.18(c).
Depository:
The
Depository Trust Company, the nominee of which is Cede & Co., or any
successor thereto.
Depository
Agreement:
The
meaning specified in Subsection 5.01(a) hereof.
Depository
Participant:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time the Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Designated
Depository Institution:
A
depository institution (commercial bank, federal savings bank, mutual savings
bank or savings and loan association) or trust company (which may include the
Trustee), the deposits of which are fully insured by the FDIC to the extent
provided by law.
Determination
Date:
With
respect to each Mortgage Loan, the Determination Date as defined in the related
Servicing Agreement.
Discount
Mortgage Loan:
Any
Mortgage Loan with a Net Mortgage Rate less than 6.000% per annum.
Disqualified
Organization:
Any of
the following: (i) the United States, any State or political subdivision
thereof, any possession of the United States, or any agency or instrumentality
of any of the foregoing (other than an instrumentality which is a corporation
if
all of its activities are subject to tax and, except for the ▇▇▇▇▇▇▇ Mac or
any
successor thereto, a majority of its board of directors is not selected by
such
governmental unit), (ii) any foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers’ cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (including the
tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381(a)(2)(C)
of
the Code or (v) any other Person so designated by the Trustee based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any REMIC contained in the Trust or any
Person having an Ownership Interest in the Residual Certificate (other than
such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the transfer of an Ownership Interest
in
a Residual Certificate to such Person. The terms “United States,” “State” and
“international organization” shall have the meanings set forth in Section 7701
of the Code or successor provisions.
Distribution
Account:
The
trust account or accounts created and maintained pursuant to Section 4.04,
which
shall be denominated “U.S. Bank National Association, as Trustee, f/b/o holders
of Structured Asset Mortgage Investments II Inc., Prime Mortgage Trust,
Certificates, Series 2007-2 - Distribution Account.” The Distribution Account
shall be an Eligible Account.
Distribution
Account Deposit Date:
The
Business Day prior to each Distribution Date.
Distribution
Date:
The
25th day of any month, beginning in May 2007, or, if such 25th day is not a
Business Day, the immediately following Business Day.
Distribution
Report:
The
Asset-Backed Issuer Distribution Report pursuant to Section 13 or 15(d) of
the
Exchange Act.
DTC
Custodian:
U.S.
Bank National Association, or its successors in interest as custodian for the
Depository.
Due
Date:
With
respect to each Mortgage Loan, the date in each month on which its Scheduled
Payment is due if such due date is the first day of a month and otherwise is
deemed to be the first day of the following month or such other date specified
in the related Servicing Agreement.
Due
Period:
With
respect to any Distribution Date and each Mortgage Loan, the period commencing
on the second day of the month preceding the month in which the Distribution
Date occurs and ending at the close of business on the first day of the month
in
which the Distribution Date occurs.
▇▇▇▇▇:
As
defined in Section 3.18.
Eligible
Account:
Any
of (i) a segregated account or accounts maintained with a federal or state
chartered depository institution or trust company, the long-term unsecured
debt
obligations and short-term unsecured debt obligations of which (or, in the
case
of a depository institution or trust company that is the principal subsidiary
of
a holding company, the debt obligations of such holding company, so long as
▇▇▇▇▇’▇ is not a Rating Agency) are rated by each Rating Agency in one of its
two highest
long-term and its highest short-term rating categories, respectively, at the
time any amounts are held on deposit therein, or (ii) a segregated account
or accounts in a depository institution or trust company in which such accounts
are insured by the FDIC (to the limits established by the FDIC) and the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel (obtained by the Person requesting that
the
account be held pursuant to this clause (ii)) delivered to the Trustee and
to
each Rating Agency, the Certificateholders have a claim with respect to the
funds in such account or a perfected first priority security interest against
any collateral (which shall be limited to Permitted Investments, each of which
shall mature not later than the Business Day immediately preceding the
Distribution Date next following the date of investment in such collateral
or
the Distribution Date if such Permitted Investment is an obligation of the
institution that maintains the Distribution Account) securing such funds that
is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii)
a
segregated trust account or accounts maintained with the corporate trust
department of a federal or state chartered depository institution or trust
company having capital and surplus of not less than $50,000,000, acting in
its
fiduciary capacity or (iv) any other segregated account acceptable to the
Rating Agencies, as evidenced in writing. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
EMC:
EMC
Mortgage Corporation.
EMC
Flow Loans:
The
Mortgage Loans purchased by EMC pursuant to a flow loan purchase
agreement.
EMC
Servicing Agreement:
With
respect to the Mortgage Loans serviced by the Company, the Servicing Agreement
dated as of April 1, 2007, between the Depositor and the Company, attached
hereto as Exhibit I-2 and as modified by the related Assignment
Agreement.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
Euroclear:
Euroclear Clearance System, Société Cooperative, a Belgium cooperative
cooperation.
Euroclear
Operator:
Euroclear Bank S.A./N.V., as operator of the Euroclear system.
Event
of Default:
An
event of default described in Section 8.01.
Excess
Liquidation Proceeds:
To the
extent that such amount is not required by law to be paid to the related
Mortgagor, the amount, if any, by which Liquidation Proceeds with respect to
a
Liquidated Mortgage Loan exceed the sum of (i) the Outstanding Principal Balance
of such Mortgage Loan and accrued but unpaid interest at the related Mortgage
Interest Rate through the last day of the month in which the related Liquidation
Date occurs, plus (ii) related Liquidation Expenses.
Exchange
Act:
Securities Exchange Act of 1934, as amended.
Exchange
Act Reports:
Any
reports required to be filed pursuant to Section 3.18 of this
Agreement.
▇▇▇▇▇▇
▇▇▇:
Federal
National Mortgage Association or any successor thereto.
FDIC:
Federal
Deposit Insurance Corporation or any successor thereto.
Final
Certification:
The
certification substantially in the form of Exhibit Three to the Custodial
Agreement.
Fiscal
Quarter:
December 1 to February 29 (or the last day in such month), March 1 to May 31,
June 1 to August 31, or September 1 to November 30, as applicable.
Fitch:
Fitch,
Inc. or its successor in interest.
Form
8-K Disclosure Information:
As
defined in Section 3.18(a)(ii)(A).
Form
10-K Filing Deadline:
As
defined in Section 3.18.
Fractional
Undivided Interest:
With
respect to any Class of Certificates, the fractional undivided interest
evidenced by any Certificate of such Class, the numerator of which is the
Current Principal Amount, or Notional Amount in the case of the Interest Only
Certificates, of such Certificate and the denominator of which is the Current
Principal Amount, or Notional Amount in the case of the Interest Only
Certificates, of such Class. With respect to the Certificates in the aggregate,
the fractional undivided interest evidenced by (i) the Residual Certificates
will be deemed to equal 0.25%, (ii) each Class of Interest Only Certificates
will be deemed to equal 1.0% multiplied by a fraction, the numerator of which
is
the Notional Amount of such Certificate and the denominator of which is the
aggregate Notional Amount of its respective Class and (iii) a
Certificate of any other Class will be deemed to equal the fractional undivided
interest remaining after taking into account clauses (i) and (ii) multiplied
by
a fraction,
the
numerator of which is the Current Principal Amount of such Certificate and
the
denominator of which is the aggregate Current Principal Amount of all the
Certificates; provided, however, the percentage in clause (iii) above shall
be
increased by 1.0% upon the retirement of each Class of Interest Only
Certificates.
▇▇▇▇▇▇▇
Mac:
▇▇▇▇▇▇▇
Mac, formerly the Federal Home Loan Mortgage Corporation, or any successor
thereto.
Global
Certificate:
Any
Non-Offered Certificate registered in the name of the Depository or its nominee,
beneficial interests in which are reflected on the books of the Depository
or on
the books of a Person maintaining an account with such Depository (directly
or
as an indirect participant in accordance with the rules of such
depository).
Holder:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that, subject to Subsections 11.02(b) and 11.05(e), solely for the
purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Depositor, the Master Servicer or the Trustee
or
any Affiliate thereof shall be deemed not to be outstanding and the Fractional
Undivided Interest evidenced thereby shall not be taken into account in
determining whether the requisite percentage of Fractional Undivided Interests
necessary to effect any such consent has been obtained.
Indemnified
Persons:
The
Trustee, the Master Servicer and the Custodian and their officers, directors,
agents and employees and, with respect to the Trustee, any separate co-trustee
and its officers, directors, agents and employees.
Independent:
When
used with respect to any specified Person, this term means that such Person
(a)
is in fact independent of the Depositor or the Master Servicer and of any
Affiliate of the Depositor or the Master Servicer, (b) does not have any direct
financial interest or any material indirect financial interest in the Depositor
or the Master Servicer or any Affiliate of the Depositor or the Master Servicer
and (c) is not connected with the Depositor or the Master Servicer or any
Affiliate as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Individual
Certificate:
Any
Non-Offered Certificate registered in the name of the Holder other than the
Depository or its nominee.
Initial
Certification:
The
certification substantially in the form of Exhibit One to the Custodial
Agreement.
Institutional
Accredited Investor:
Any
Person meeting the requirements of Rule 501(a)(l), (2), (3) or (7) of Regulation
D under the Securities Act or any entity all of the equity holders in which
come
within such paragraphs.
Insurance
Policy:
With
respect to any Mortgage Loan, any standard hazard insurance policy, flood
insurance policy or title insurance policy.
Insurance
Proceeds:
Amounts
paid by the insurer under any Insurance Policy covering any Mortgage Loan or
Mortgaged Property other than amounts required to be paid over to the Mortgagor
pursuant to law or the related Mortgage Note or Security Instrument and other
than amounts used to repair or restore the Mortgaged Property or to reimburse
insured expenses.
Interest
Accrual Period:
For
each Class of Certificates and for any Distribution Date, the calendar month
preceding the month in which such Distribution Date occurs. All calculations
of
interest on the Certificates will be made on the basis of a 360-day year
consisting of twelve 30-day months.
Interest
Only Certificates:
The
Class X Certificates.
Interest
Shortfall:
With
respect to any Distribution Date and each Mortgage Loan that during the related
Prepayment Period was the subject of a Principal Prepayment or constitutes
a
Relief Act Mortgage Loan, an amount determined as follows:
(A) Partial
principal prepayments received during the relevant Prepayment Period: The
difference between (i) one month’s interest at the applicable Net Mortgage Rate
on the amount of such prepayment and (ii) the amount of interest for the
calendar month of such prepayment (adjusted to the applicable Net Mortgage
Rate)
received at the time of such prepayment;
(B) Principal
prepayments in full received during the relevant Prepayment Period: The
difference between (i) one month’s interest at the applicable Net Mortgage Rate
on the Scheduled Principal Balance of such Mortgage Loan immediately prior
to
such prepayment and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Mortgage Rate) received at the time
of such prepayment; and
(C) As
to any
Relief Act Mortgage Loan, the excess of (i) 30 days’ interest (or, in the case
of a principal prepayment in full, interest to the date of prepayment) on the
Scheduled Principal Balance thereof (or, in the case of a principal prepayment
in part, on the amount so prepaid) at the related Net Mortgage Rate over (ii)
30
days’ interest (or, in the case of a principal prepayment in full, interest to
the date of prepayment) on such Scheduled Principal Balance (or, in the case
of
a Principal Prepayment in part, on the amount so prepaid) at the Net Mortgage
Rate required to be paid by the Mortgagor as limited by application of the
Relief Act.
Interim
Certification:
The
certification substantially in the form of Exhibit Two to the Custodial
Agreement.
Investment
Letter:
The
letter to be furnished by each Institutional Accredited Investor which purchases
any of the Class B-4, Class B-5 or Class B-6 Certificates in connection with
such purchase, substantially in the form set forth as Exhibit F-1
hereto.
Issuing
Entity:
Prime
Mortgage Trust 2007-2.
Lender-Paid
PMI Rate:
With
respect to each Mortgage Loan covered by a lender-paid primary mortgage
insurance policy, the amount payable to the related insurer, as stated in the
Mortgage Loan Schedule.
Liquidated
Mortgage Loan:
Any
defaulted Mortgage Loan as to which the related Servicer or the Master Servicer
has determined that all amounts it expects to recover from or on account of
such
Mortgage Loan have been recovered.
Liquidation
Date:
With
respect to any Liquidated Mortgage Loan, the date on which the Master Servicer
or the related Servicer has certified that such Mortgage Loan has become a
Liquidated Mortgage Loan.
Liquidation
Expenses:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Master Servicer or the related Servicer
in
connection with the liquidation of such Mortgage Loan and the related Mortgage
Property, such expenses including (a) property protection expenses, (b) property
sales expenses, (c) foreclosure and sale costs, including court costs and
reasonable attorneys’ fees, and (d) similar expenses reasonably paid or incurred
in connection with liquidation.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds, received in connection with the partial
or complete liquidation of a Mortgage Loan, whether through trustee’s sale,
foreclosure sale or otherwise, or in connection with any condemnation or partial
release of a Mortgaged Property and any other proceeds received with respect
to
an REO Property.
Loan-to-Value
Ratio:
With
respect to any Mortgage Loan, the fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Mortgage
Loan and the denominator of which is the Original Value of the related Mortgaged
Property.
Lockout
Certificates:
The
Class
A-3
Certificates.
Lockout
Priority Amount:
For any
Distribution Date the product of (i) the Shift Percentage and (ii) (x) the
aggregate of the collections described in the definition of Senior Optimal
Principal Amount for such Distribution Date (without application of the Senior
Percentage) multiplied by (y) a fraction, the numerator of which is the Current
Principal Amount of the Class A-3 Certificates immediately prior to that
Distribution Date and the denominator of which is the sum of the Non-PO
Percentages of the Scheduled Principal Balances of the Mortgage Loans as of
the
first day of the related Due Period.
Loss
Allocation Limit:
The
meaning specified in Subsection 6.03(a)(v) hereof.
Loss
Severity Percentage:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the amount of Realized Losses incurred on a Mortgage
Loan
and the denominator of which is the Scheduled Principal Balance of such Mortgage
Loan immediately prior to the liquidation of such Mortgage Loan.
Lost
Notes:
The
original Mortgage Notes that have been lost, as indicated on the Mortgage Loan
Schedule.
Master
Funding:
Master
Funding LLC, a Delaware limited liability company, and its successors and
assigns, in its capacity as the seller of the Master Funding Mortgage Loans
to
the Depositor.
Master
Funding Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which Master
Funding is the applicable seller.
Master
Servicer:
As of
the Closing Date, EMC Mortgage Corporation and, thereafter, its respective
successors in interest who meet the qualifications of the Servicing Agreements
and this Agreement.
Master
Servicing Compensation:
For any
Distribution Date, any amounts earned on the investment of funds on deposit
in
the Master Servicer Collection Account.
Master
Servicer Collection Account:
The
trust
account or accounts created and maintained pursuant to Section 4.02, which
shall
be denominated “EMC Mortgage Corporation, as Master Servicer for the benefit of
the Trustee on behalf of holders of Structured Asset Mortgage Investments II
Inc., Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2
-
Master Servicer Collection Account.” The Master Servicer Collection Account
shall be an Eligible Account.
Master
Servicer Information:
As
defined in Section 3.18(c).
Material
Defect:
The
meaning specified in Section 2.02(a).
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
MOM
Loan:
With
respect to any Mortgage Loan, MERS acting as the mortgagee of such Mortgage
Loan, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns, at the origination thereof, or as nominee for any
subsequent assignee of the originator pursuant to an assignment of mortgage
to
MERS.
Monthly
Advance:
An
advance of principal or interest required to be made by the applicable Servicer
pursuant to the related Servicing Agreement or the Master Servicer pursuant
to
Section 6.06.
Moody’s:
▇▇▇▇▇’▇
Investors Service, Inc. or its successor in interest.
Mortgage
File:
The
mortgage documents listed in Section 2.01(b) pertaining to a particular Mortgage
Loan and any additional documents required to be added to the Mortgage File
pursuant to this Agreement.
Mortgage
Interest Rate:
The
annual rate at which interest accrues from time to time on any Mortgage Loan
pursuant to the related Mortgage Note, which rate is initially equal to the
“Mortgage Interest Rate” set forth with respect thereto on the Mortgage Loan
Schedule.
Mortgage
Loan:
A
mortgage loan transferred and assigned to the Trustee pursuant to Section 2.01
or Section 2.04 and held as a part of the Trust Fund, as identified in the
Mortgage Loan Schedule (which shall include, without limitation, each related
Mortgage Note, Mortgage and Mortgage File and all rights appertaining thereto),
including a mortgage loan the property securing which has become an REO
Property. Notwithstanding any provision in this Agreement to the contrary,
in no
event shall the term “Mortgage Loan” include any Underlying Mortgage
Loan.
Mortgage
Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of April 30, 2007, between EMC
Mortgage Corporation, as a seller, Master Funding as a seller and Structured
Asset Mortgage Investments II Inc., as purchaser, and all amendments thereof
and
supplements thereto, attached as Exhibit H.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as
from
time to time amended to reflect the repurchase or substitute of Mortgage Loans
pursuant to the provisions of this Agreement)
transferred to the Trustee as part of the Trust Fund and from time to time
subject to this Agreement, the initial Mortgage Loan Schedule being attached
hereto as Exhibit B setting forth the following information with respect to
each
Mortgage Loan:
(a) the
city,
state and zip code of the Mortgaged Property;
(b) the
property type;
(c) the
Mortgage Interest Rate;
(d) the
Servicing Fee Rate;
(e) the
Trustee Fee Rate;
(f) the
LPMI
Fee, if applicable;
(g) [reserved];
(h) the
Net
Rate;
(i) the
maturity date;
(j) the
stated original term to maturity;
(k) the
stated remaining term to maturity;
(l) the
original Principal Balance;
(m) the
first
payment date;
(n) the
principal and interest payment in effect as of the Cut-off Date;
(o) the
unpaid Principal Balance as of the Cut-off Date;
(p) the
Loan-to-Value Ratio at origination;
(q) the
insurer of any Primary Mortgage Insurance Policy;
(r) the
MIN
with respect to each MOM Loan;
(s) the
Gross
Margin, if applicable;
(t) the
next
Adjustment Date, if applicable;
(u) the
Maximum Mortgage Rate, if applicable;
(v) the
Minimum Mortgage Rate, if applicable;
(w) the
Periodic Rate Cap, if applicable;
(x) a
code
indicating whether the Mortgage Loan is negatively amortizing;
(y) which
Mortgage Loans adjust after an initial fixed-rate period of one, two, three,
five, seven or ten years or any other period;
(z) the
Prepayment Charge, if any;
(aa) lien
position (e.g., first lien or second lien);
(bb) a
code
indicating whether the Mortgage Loan has a balloon payment;
(cc) a
code
indicating whether the Mortgage Loan is an interest-only loan;
(dd) the
interest-only term, if applicable;
(ee) the
Mortgage Loan Seller; and
(ff) the
original amortization term.
Such
schedule also shall set forth for all of the Mortgage Loans, the total number
of
Mortgage Loans, the total of each of the amounts described under (n) and (o)
above, the weighted average by principal balance as of the Cut-off Date of
each
of the rates described under (c) through (h) above, and the weighted average
remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
Mortgage
Loan Seller:
EMC or
Master Funding, as applicable.
Mortgage
Note:
The
originally executed note or other evidence of the indebtedness of a Mortgagor
under the related Mortgage Loan.
Mortgaged
Property:
Land
and improvements securing the indebtedness of a Mortgagor under the related
Mortgage Loan or, in the case of REO Property, such REO Property. In no event,
however, shall the term “Mortgaged Property” include any mortgaged property or
real estate owned property relating to an Underlying Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
NCMC:
National City Mortgage Co.
NCMC
Assignment Agreement:
The
Assignment, Assumption and Recognition Agreement, dated as of April 30, 2007,
by
and among EMC, NCMC and the Trustee evidencing the assignment of the NCMC
Servicing Agreement to the Trust, attached hereto as Exhibit J-2.
NCMC
Servicing Agreement:
The
Purchase, Warranties and Servicing Agreement, dated as of October 1, 2001,
between Assignor and Company as amended by Amendment Reg AB to the Purchase,
Warranties and Servicing Agreement, dated as of March 1, 2006, attached hereto
as Exhibit I-2, as modified by the NCMC Assignment Agreement.
Net
Interest Shortfall:
With
respect to any Distribution Date, the Interest Shortfall, if any, for such
Distribution Date net of Compensating Interest Payments made with respect to
such Distribution Date.
Net
Liquidation Proceeds:
As to
any Liquidated Mortgage Loan, Liquidation Proceeds net of (i) Liquidation
Expenses which are payable therefrom to the related Servicer or the Master
Servicer in accordance with the related Servicing Agreement or this Agreement
and (ii) unreimbursed advances by the related Servicer or the Master Servicer
and Monthly Advances.
Net
Mortgage Rate:
With
respect to each Mortgage Loan, the Mortgage Interest Rate in effect from time
to
time less the sum of (i) the Servicing Fee Rate and (ii) the Trustee Fee
Rate.
Non-Offered
Subordinate Certificates:
The
Class B-4, Class B-5 and Class B-6 Certificates.
Non-PO
Percentage:
With
respect to any Mortgage Loan with a Net Mortgage Rate less than 6.000% per
annum, a fraction, expressed as a percentage, (x) the numerator of which is
equal to the related Net Mortgage Rate, and (y) the denominator of which is
equal to 6.000% per annum. With respect to all other Mortgage Loans,
100%.
Nonrecoverable
Advance:
With
respect to any Mortgage Loan, any advance or Monthly Advance (i) which was
previously made or is proposed to be made by the Master Servicer, the Trustee
(as successor Master Servicer) or the applicable Servicer and (ii) which, in
the
good faith judgment of the Master Servicer, the Trustee or the applicable
Servicer, will not or, in the case of a proposed advance or Monthly Advance,
would not, be ultimately recoverable by the Master Servicer, the Trustee (as
successor Master Servicer) or the applicable Servicer from Liquidation Proceeds,
Insurance Proceeds or future payments on the Mortgage Loan for which such
advance or Monthly Advance was made or is proposed to be made.
Notional
Amount:
The
Notional Amount of the Class X Certificates, as of any date of determination,
is
equal to the aggregate Scheduled Principal Balance of the Mortgage Loans.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a Vice President or Assistant Vice President or other
authorized officer of the Master Servicer, the Depositor, EMC, Master Funding
or
the Servicer, as applicable, and delivered to the Trustee, as required by this
Agreement.
Offered
Certificates: The
Senior Certificates and Offered Subordinate Certificates.
Offered
Subordinate Certificates:
The
Class B-1, Class B-2 and Class B-3 Certificates.
Opinion
of Counsel:
A
written opinion of counsel who is or are acceptable to the Trustee or the Master
Servicer, as applicable, and who, unless required to be Independent (an “Opinion
of Independent Counsel”), may be internal counsel for the Master Servicer or the
Depositor.
Original
Subordinate Principal Balance:
The
aggregate Current Principal Amount of the Subordinate Certificates as of the
Closing Date.
Original
Value:
The
lesser of (i) the Appraised Value or (ii) the sales price of a Mortgaged
Property at the time of origination of a Mortgage Loan, except in instances
where either clauses (i) or (ii) is unavailable, the other may be used to
determine the Original Value, or if both clauses (i) and (ii) are unavailable,
Original Value may be determined from other sources reasonably acceptable to
the
Depositor.
Outstanding
Mortgage Loan:
With
respect to any Due Date, a Mortgage Loan which, prior to such Due Date, was
not
the subject of a Principal Prepayment in full, did not become a Liquidated
Mortgage Loan and was not purchased or replaced.
Outstanding
Principal Balance:
As of
the time of any determination, the principal balance of a Mortgage Loan
remaining to be paid by the Mortgagor, or, in the case of an REO Property,
the
principal balance of the related Mortgage Loan remaining to be paid by the
Mortgagor at the time such property was acquired by the Trust Fund less any
Net
Liquidation Proceeds with respect thereto to the extent applied to
principal.
Pass-Through
Rate:
As to
each Class of Certificates (other than the Class PO Certificates), the rate
of
interest determined as provided with respect thereto in Section 5.01(c). Any
monthly calculation of interest at a stated rate shall be based upon annual
interest at such rate divided by twelve.
Permitted
Investments:
At any
time, any one or more of the following obligations and securities:
(i) direct
obligations of, and obligations the timely payment of which are fully guaranteed
by the United States of America or any agency or instrumentality of the United
States of America the obligations of which are backed by the full faith and
credit of the United States of America;
(ii) (a)
demand or time deposits, federal funds or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof (including the Trustee or the
Master Servicer or its Affiliates acting in its commercial banking capacity)
and
subject to supervision and examination by federal and/or state banking
authorities, provided that the commercial paper and/or the short-term debt
rating and/or the long-term unsecured debt obligations of such depository
institution or trust company at the time of such investment or contractual
commitment providing for such investment have the Applicable Credit Rating
or
better from each Rating Agency and (b) any other demand or time deposit or
certificate of deposit that is fully insured by the Federal Deposit Insurance
Corporation;
(iii) repurchase
obligations with respect to (a) any security described in clause (i) above
or
(b) any other security issued or guaranteed by an agency or instrumentality
of
the United States of America, the obligations of which are backed by the full
faith and credit of the United States of America, in either case entered into
with a depository institution or trust company (acting as principal) described
in clause (ii)(a) above where the Trustee or the Master Servicer or its
Affiliates hold the security therefor;
(iv) securities
bearing interest or sold at a discount issued by any corporation (including
the
Trustee or the Master Servicer or its Affiliates) incorporated under the laws
of
the United States of America or any state thereof that have the Applicable
Credit Rating or better from each Rating Agency at the time of such investment
or contractual commitment providing for such investment; provided, however,
that
securities issued by any particular corporation will not be Permitted
Investments to the extent that investments therein will cause the then
outstanding principal amount of securities issued by such corporation and held
as part of the Trust to exceed 10% of the aggregate Outstanding Principal
Balances of all the Mortgage Loans and Permitted Investments held as part of
the
Trust;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than one year after the date of issuance thereof) having the Applicable Credit
Rating or better from each Rating Agency at the time of such
investment;
(vi) a
Reinvestment Agreement issued by any bank, insurance company or other
corporation or entity;
(vii) any
other
demand, money market or time deposit, obligation, security or investment as
may
be acceptable to each Rating Agency as evidenced in writing by each Rating
Agency to the Trustee or the Master Servicer or its Affiliates; and
(viii) any
money
market or common trust fund having the Applicable Credit Rating or better from
each Rating Agency rating such fund, including any such fund for which the
Trustee or Master Servicer or any affiliate of the Trustee or Master Servicer
acts as a manager or an advisor; provided, however, that no instrument or
security shall be a Permitted Investment if such instrument or security
evidences a right to receive only interest payments with respect to the
obligations underlying such instrument or if such security provides for payment
of both principal and interest with a yield to maturity in excess of 120% of
the
yield to maturity at par or if such instrument or security is purchased at
a
price greater than par.
Permitted
Transferee:
Any
Person other than a Disqualified Organization or an “electing large partnership”
(as defined by Section 775 of the Code).
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Physical
Certificates:
The
Residual Certificates and the Non-Offered Subordinate Certificates.
PO
Percentage:
With
respect to any Discount Mortgage Loan, a fraction expressed as a percentage,
(x)
the numerator of which is equal to 6.000%
minus
the related Net Mortgage Rate, and (y) the denominator of which is equal to
6.000% per annum.
Prepayment
Charge:
With
respect to any Mortgage Loan, the charges or premiums, if any, due in connection
with a full or partial prepayment of such Mortgage Loan in accordance with
the
terms thereof.
Prepayment
Interest Shortfall:
With
respect to any Distribution Date, the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rates) on Mortgage
Loans resulting from (a) prepayments in full received during the related
Prepayment Period and (b) the partial prepayments received during the related
Prepayment Period to the extent applied prior to the Due Date in the month
of
the Distribution Date.
Prepayment
Period:
With
respect to any Distribution Date and the related Servicer, such period as is
provided in the related Servicing Agreement.
Primary
Mortgage Insurance Policy:
Any
primary mortgage guaranty insurance policy issued in connection with a Mortgage
Loan which provides compensation to a Mortgage Note holder in the event of
default by the obligor under such Mortgage Note or the related Security
Instrument, if any or any replacement policy therefor through the related
Interest Accrual Period for such Class relating to a Distribution
Date.
Principal
Prepayment:
Any
payment (whether partial or full) or other recovery of principal on a Mortgage
Loan which is received in advance of its scheduled Due Date to the extent that
it is not accompanied by an amount as to interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month
of prepayment, including Insurance Proceeds and Repurchase Proceeds, but
excluding the principal portion of Net Liquidation Proceeds received at the
time
a Mortgage Loan becomes a Liquidated Mortgage Loan.
Protected
Account:
An
account established and maintained for the benefit of Holders of the
Certificates by each Servicer with respect to the Mortgage Loans and with
respect to REO Property pursuant to the applicable Servicing
Agreement.
Purchase
Price:
With
respect to any Mortgage Loan (or any property acquired with respect thereto)
(x)
required to be repurchased by the Seller pursuant to the Mortgage Loan Purchase
Agreement or Article II of this Agreement or (y) that the Seller has a right
to
purchase pursuant to Section 3.21 hereof, an amount equal to the sum of (i)(a)
100% of the Outstanding Principal Balance of such Mortgage Loan as of the date
of repurchase (or if the related Mortgaged Property was acquired with respect
thereto, 100% of the Outstanding Principal Balance at the date of the
acquisition), plus (b) accrued but unpaid interest on the Outstanding Principal
Balance at the related Mortgage Interest Rate, through and including the last
day of the month of repurchase, plus (c) any unreimbursed Monthly Advances
and
servicing advances payable to the related Servicer of the Mortgage Loan or
to
the Master Servicer and (ii) any costs and damages (if any) incurred by the
Trust in connection with any violation of such Mortgage Loan of any predatory
lending laws.
QIB:
A
Qualified Institutional Buyer as defined in Rule 144A promulgated under the
Securities Act.
Qualified
Insurer:
Any
insurance company duly qualified as such under the laws of the state or states
in which the related Mortgaged Property or Mortgaged Properties is or are
located, duly authorized and licensed in such state or states to transact the
type of insurance business in which it is engaged and approved as an insurer
by
the Master Servicer, so long as the claims paying ability of which is acceptable
to the Rating Agencies for pass-through certificates having the same rating
as
the related Certificates rated by the Rating Agencies as of the Closing
Date.
Rating
Agencies:
With
respect to the Certificates, Fitch and S&P.
Realized
Loss:
Any (i)
Bankruptcy Loss or (ii) as to any Liquidated Mortgage Loan, (x) the Outstanding
Principal Balance of such Liquidated Mortgage Loan plus accrued and unpaid
interest thereon at the Mortgage Interest Rate through the last day of the
month
of such liquidation, less (y) the related Net Liquidation Proceeds with respect
to such Mortgage Loan and the related Mortgage Property. With respect to each
Mortgage Loan which is the subject of a Servicing Modification during the
calendar month immediately preceding the related Distribution Date, the sum
of
(a) the total amount of interest and principal which is forgiven with respect
to
the related Mortgage Loan and (b) the amount of any servicing advances made
by
the related Servicer with respect to such Mortgage Loan which are reimburseable
from the Trust to the related Servicer with respect to that Servicing
Modification; provided that, the amounts expressed in clause (a) above shall not include the amounts expressed in clause (b) above. In addition, to the extent the Trustee receives Subsequent
Recoveries with respect to any Mortgage Loan, the amount of the Realized Loss
with respect to that Mortgage Loan will be reduced to the extent such recoveries
are applied to reduce the Current Principal Amount of any Class of Certificates
on any Distribution Date in accordance with Section 6.03. Realized Losses will be based on Realized Losses incurred during the month preceding the related Distribution Date, other than with respect to the first Distribution Date, where Realized Losses are incurrred during the calendar month in which the Cut-off Date occurs.
Record
Date:
With
respect to any Distribution Date and each Class of Certificates, the close
of
business on the last Business Day of the month immediately preceding the month
of such Distribution Date.
Regular
Certificates:
Any of
the Certificates other than the Residual Certificates.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Regulation
S:
Regulation S promulgated under the Securities Act.
Regulation
S Global Certificates:
The
Regulation S Temporary Global Certificates and the Regulation S Permanent Global
Certificates.
Relief
Act:
The
Servicemembers Civil Relief Act, formerly known as the Soldiers’ and Sailors’
Civil Relief Act of 1940, as amended, or similar state or
local law.
Relief
Act Mortgage Loan:
Any
Mortgage Loan as to which the Scheduled Payment thereof has been reduced due
to
the application of the Relief Act.
REMIC:
A real
estate mortgage investment conduit, as defined in the Code.
REMIC
Opinion:
An
Opinion of Independent Counsel to the effect that the proposed action described
therein would not, under the REMIC Provisions, (i) cause the Trust REMIC to
fail
to qualify as a REMIC while any regular interest in such REMIC is outstanding,
(ii) result in a tax on prohibited transactions with respect to the Trust REMIC
or (iii) constitute a taxable contribution to the Trust REMIC after the Startup
Day.
REMIC
Provisions:
The
provisions of the federal income tax law relating to REMICs, which appear at
Sections 860A through 860G of the Code, and related provisions and regulations
promulgated thereunder, as the foregoing may be in effect from time to
time.
REO
Property:
A
Mortgaged Property acquired in the name of the Trustee, for the benefit of
Certificateholders, by foreclosure or deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Reportable
Event:
As
defined in Section 3.18.
Repurchase
Proceeds:
The
Purchase Price in connection with any repurchase of a Mortgage Loan by the
Seller and any cash deposit in connection with the substitution of a Mortgage
Loan.
Request
for Release:
A
request for release in the form attached hereto as Exhibit D.
Required
Insurance Policy:
With
respect to any Mortgage Loan, any insurance policy which is required to be
maintained from time to time under this Agreement with respect to such Mortgage
Loan.
Residual
Certificates:
The
Class R Certificates.
Responsible
Officer:
Any
officer assigned to the Corporate Trust Office (or any successor thereto),
including any Vice President, Assistant Vice President, Trust Officer, any
Assistant Secretary, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration
of
this Agreement, and any other officer of the Trustee to whom a matter arising
hereunder may be referred.
Rule
144A Certificate:
The
certificate to be furnished by each purchaser of a Non-Offered Certificate
(which is also a Physical Certificate) which is a Qualified Institutional Buyer
as defined under Rule 144A promulgated under the Securities Act, substantially
in the form set forth as Exhibit F-2 hereto.
S&P:
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its
successors in interest.
Scheduled
Payment:
With
respect to any Mortgage Loan and any month, the scheduled payment or payments
of
principal and interest due during such month on such Mortgage Loan which either
is payable by a Mortgagor in such month under the related Mortgage Note or,
in
the case of REO Property, would otherwise have been payable under the related
Mortgage Note.
Scheduled
Principal:
The
principal portion of any Scheduled Payment.
Scheduled
Principal Balance:
With
respect to any Mortgage Loan on any Distribution Date, (i) the unpaid principal
balance of such Mortgage Loan as of the close of business on the related Due
Date (taking account of the principal payment to be made on such Due Date and
irrespective of any delinquency in its payment), as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any bankruptcy or similar proceeding
occurring after the Cut-off Date (other than a Deficient Valuation) or any
moratorium or similar waiver or grace period), less (ii) any Principal
Prepayments received during or prior to the immediately preceding Prepayment
Period and less (iii) the principal portion of any Net Liquidation Proceeds
received during or prior to the immediately preceding calendar month; provided
that the Scheduled Principal Balance of a Liquidated Mortgage Loan is
zero.
Securities
Act:
The
Securities Act of 1933, as amended.
Securities
Legend:
“THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE
FORM
PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES
AND
ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY
OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED [in the case of a Residual Certificate or a Class
B-4,
Class B-5 and Class B-6 Certificate]
UNLESS
THE OPINION OF COUNSEL REQUIRED BY SECTION 5.07 OF THE POOLING AND SERVICING
AGREEMENT IS PROVIDED [in the case of a Class B-4, Class B-5 and Class B-6
Certificate] UNLESS THE TRANSFEREE CERTIFIES OR REPRESENTS THAT THE PROPOSED
TRANSFER AND HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT AND
OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT RESULT IN ANY PROHIBITED
TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR CLASS PROHIBITED
TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO, PROHIBITED TRANSACTION
EXEMPTION (“PTE”) 84-14, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 OR PTE 96-23 AND (II)
WILL NOT GIVE RISE TO ANY ADDITIONAL FIDUCIARY DUTIES ON THE PART OF THE
DEPOSITOR, THE MASTER SERVICER, ANY SERVICER OR THE TRUSTEE, WHICH WILL BE
DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE AND WILL BE EVIDENCED BY A REPRESENTATION OR AN OPINION OF COUNSEL
TO SUCH EFFECT BY OR ON BEHALF OF AN INSTITUTIONAL ACCREDITED
INVESTOR.”
Security
Instrument:
A
written instrument creating a valid first lien on a Mortgaged Property securing
a Mortgage Note, which may be any applicable form of mortgage, deed of trust,
deed to secure debt or security deed, including any riders or addenda
thereto.
Seller:
EMC
Mortgage Corporation, in its capacity as seller of the Mortgage Loans to the
Depositor.
Senior
Certificates:
The
Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class X, Class PO and Class R
Certificates.
Senior
Optimal Principal Distribution Amount:
With
respect to each of Senior
Certificates (other than the Class PO Certificates and Class X Certificates)
and
each
Distribution Date, an amount equal to the sum of the following:
(1) the
applicable Senior Percentage of the Non-PO Percentage of the principal portion
of all Scheduled Payments due on the Mortgage Loans on the related Due Date,
as
specified in the amortization schedule at the time applicable thereto (after
adjustment for previous Principal Prepayments but before any adjustments to
such
amortization schedule by reason of any bankruptcy or similar proceeding or
any
moratorium or similar waiver or grace period);
(2) the
applicable Senior Prepayment Percentage of the Non-PO Percentage of the
Scheduled Principal Balance of each Mortgage Loan which was the subject of
a
Principal Prepayment in full received by the Servicers during the applicable
Prepayment Period;
(3) the
applicable Senior Prepayment Percentage of the Non-PO Percentage of all
Principal Prepayments in part received by the Servicers during the applicable
Prepayment Period with respect to each Mortgage Loan;
(4) the
lesser of (a) the applicable Senior Prepayment Percentage of the Non-PO
Percentage of the sum of (i) all Net Liquidation Proceeds allocable to principal
received in respect of each Mortgage Loan which became a Liquidated Mortgage
Loan during the calendar
month immediately preceding such Distribution Date (other
than Mortgage Loans described in the immediately following clause (ii)) and
all
Subsequent Recoveries received in respect of each Liquidated Mortgage Loan
during the calendar month immediately preceding such Distribution Date and
(ii)
the Scheduled Principal Balance of each such Mortgage Loan purchased by an
insurer from the Trustee during the related Prepayment Period pursuant to the
related Primary Mortgage Insurance Policy, if any, or otherwise; and (b) the
applicable Senior Percentage of the Non-PO Percentage of the sum of (i) the
Scheduled Principal Balance of each Mortgage Loan which became a Liquidated
Mortgage Loan during the calendar month immediately preceding such Distribution
Date (other than the Mortgage Loans described in the immediately following
clause (ii)) and all Subsequent Recoveries received in respect of each
Liquidated Mortgage Loan during the calendar month immediately preceding such
Distribution Date and (ii) the Scheduled Principal Balance of each such Mortgage
Loan that was purchased by an insurer from the Trustee during the related
Prepayment Period pursuant to the related Primary Mortgage Insurance Policy,
if
any or otherwise; and
(5) the
applicable Senior Prepayment Percentage of the Non-PO Percentage of the sum
of
(a) the Scheduled Principal Balance of each Mortgage Loan which was repurchased
by the Issuing Entity in connection with such Distribution Date and (b) the
excess, if any, of the Scheduled Principal Balance of each Mortgage Loan that
has been replaced by the Issuing Entity with a substitute Mortgage Loan pursuant
to the Mortgage Loan Purchase Agreement in connection with such Distribution
Date over the Scheduled Principal Balance of each such substitute Mortgage
Loan.
Senior
Percentage:
The
lesser of (a) 100% and (b) the percentage (carried to six places rounded up)
obtained by dividing the Current Principal Amount of the Senior Certificates
(other than any Class PO Certificates), immediately prior to such Distribution
Date, by the aggregate Scheduled Principal Balance of the Mortgage Loans (other
than the PO Percentage thereof with respect to the related Discount Mortgage
Loans) as of the beginning of the related Due Period. The initial Senior
Percentage for the Senior Certificates will be approximately
95.71%.
Senior
Prepayment Percentage:
The
Senior Prepayment Percentage on any Distribution Date occurring during the
periods set forth below will be as follows:
|
Period
(dates inclusive)
|
Senior
Prepayment Percentage
|
|
|
May
25, 2007 - April
25, 2012
|
100%
|
|
|
May
25, 2012 - April 25, 2013
|
Senior
Percentage for the Certificates plus 70% of the related Subordinate
Percentage
|
|
|
May
25, 2013 - April 25, 2014
|
Senior
Percentage for the Certificates plus 60% of the related Subordinate
Percentage
|
|
|
May
25, 2014 - April 25, 2015
|
Senior
Percentage for the Certificates plus 40% of the related Subordinate
Percentage
|
|
|
May
25, 2015 - April 25, 2016
|
Senior
Percentage for the Certificates plus 20% of the related Subordinate
Percentage
|
|
|
May
25, 2016 and thereafter
|
Senior
Percentage for the Certificates
|
Any
scheduled reduction to the Senior Prepayment Percentage for the Senior
Certificates
shall
not be made as of any Distribution Date unless, as of the last day of the month
preceding such Distribution Date (1) the aggregate Scheduled Principal Balance
of the Mortgage Loans delinquent 60 days or more (including for this purpose
any
such Mortgage Loans in foreclosure and such Mortgage Loans with respect to
which
the related Mortgaged Property has been acquired by the Trust) averaged over
the
last six months, as a percentage of the aggregate Current Principal Amount
of
the Subordinate Certificates does not exceed 50% and (2) cumulative Realized
Losses on the Mortgage Loans do not exceed (a) 30% of the aggregate Current
Principal Amount of the Original Subordinate Principal Balance if such
Distribution Date occurs between and including May 2012 and April 2013, (b)
35%
of the Original Subordinate Principal Balance if such Distribution Date occurs
between and including May 2013 and April 2014, (c) 40% of the Original
Subordinate Principal Balance if such Distribution Date occurs between and
including May 2014 and April 2015, (d) 45% of the Original Subordinate Principal
Balance if such Distribution Date occurs between and including May 2015 and
April 2016, and (e) 50% of the Original Subordinate Principal Balance if such
Distribution Date occurs during or after May 2016.
Notwithstanding
the foregoing, if on any Distribution Date, the percentage, the numerator of
which is the aggregate Current Principal Amount of the Senior Certificates
(other than the Class PO Certificates) immediately preceding such Distribution
Date, and the denominator of which is the Scheduled Principal Balance of the
Mortgage Loans (other than the PO Percentage thereof with respect to the related
Discount Mortgage Loans) as of the beginning of the related Due Period, exceeds
such percentage as of the Cut-off Date, then the Senior Prepayment Percentage
with respect to the Senior Certificates (other than the Class PO Certificates)
for such Distribution Date will equal 100%.
Servicer:
Any of
EMC and NCMC.
Servicer
Remittance Date:
With
respect to each Mortgage Loan, the date set forth in the related Servicing
Agreement.
Servicing
Agreements:
The EMC
Servicing Agreement and the NCMC Servicing Agreement.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time, or those Servicing Criteria otherwise mutually agreed
to by the Seller, the Master Servicer, the Trustee and the applicable Servicer
in response to evolving interpretations of Regulation AB and incorporated into
a
revised Exhibit L.
Servicing
Fee:
As to
any Mortgage Loan and Distribution Date, an amount equal to the product of
(i)
the Scheduled Principal Balance of such Mortgage Loan as of the Due Date in
the
month preceding the month in which such Distribution Date occurs and (ii)
1/12th
of the
Servicing Fee Rate.
Servicing
Fee Rate:
0.25%
per annum.
Servicing
Modification:
Any
modification of a Mortgage Loan which is effected by the related Servicer in
accordance with the terms of this Agreement or the related Servicing
Agreement.
Servicing
Officer:
Any
officer of the related Servicer or Master Servicer involved in or responsible
for the administration and servicing or master servicing, as applicable, of
the
Mortgage Loans as to which officer evidence, reasonably acceptable to the
Trustee, of due authorization of such officer, by such Servicer or Master
Servicer has been furnished from time to time to the Trustee.
Shift
Percentage:
On any
Distribution Date occurring during the periods set forth below will be as
follows:
|
Period
(dates inclusive)
|
Shift
Percentage
|
|
|
May
25, 2007 - April 25, 2012
|
0%
|
|
|
May
25, 2012 - April 25, 2013
|
30%
|
|
|
May
25, 2013 - April 25, 2014
|
40%
|
|
|
May
25, 2014 - April 25, 2015
|
60%
|
|
|
May
25, 2015 - April 25, 2016
|
80%
|
|
|
May
25, 2016 and thereafter
|
100%
|
Sponsor:
EMC Mortgage Corporation, in its capacity as sponsor hereunder.
Startup
Day:
April
30, 2007.
Subordinate
Certificates:
The
Offered Subordinate Certificates and Non-Offered Subordinate
Certificates.
Subordinate
Certificate Writedown Amount:
With
respect to the Subordinate Certificates, the amount by which (x) the sum of
the
Current Principal Amounts of the Certificates (after giving effect to the
distribution of principal and the allocation of Realized Losses in reduction
of
the Current Principal Amounts of the Certificates, other than Class X
Certificates and Class PO Certificates, on such Distribution Date) exceeds
(y)
the Scheduled Principal Balances of the Mortgage Loans on the Due Date related
to such Distribution Date.
Subordinate
Optimal Principal Amount:
With
respect to the Subordinate Certificates and each Distribution Date, an amount
equal to the sum of the following (but in no event greater than the aggregate
Current Principal Amount of the Subordinate Certificates immediately prior
to
such Distribution Date):
(i) the
Subordinate Percentage of the Non-PO Percentage of the principal portion of
all
Monthly Payments due on each Mortgage Loan on the related Due Date, as specified
in the amortization schedule at the time applicable thereto (after adjustment
for previous principal prepayments but before any adjustment to such
amortization schedule by reason of any bankruptcy or similar proceeding or
any
moratorium or similar waiver or grace period);
(ii) the
Subordinate Prepayment Percentage of the Non-PO Percentage of the Scheduled
Principal Balance of each Mortgage Loan which was the subject of a prepayment
in
full received by the Master Servicer during the applicable Prepayment
Period;
(iii) the
Subordinate Prepayment Percentage of the Non-PO Percentage of all partial
prepayments of principal received during the applicable Prepayment Period for
each Mortgage Loan;
(iv) the
excess, if any, of (a) the Net Liquidation Proceeds allocable to principal
received during the prior calendar month in respect of each Liquidated Mortgage
Loan over (b) the sum of the amounts distributable to the holders of the Senior
Certificates pursuant to clause (4) of the definition of “Senior Optimal
Principal Distribution Amount” and “Class PO Certificate Principal Distribution
Amount” on such Distribution Date;
(v) the
Subordinate Prepayment Percentage of the Non-PO Percentage of the sum of (a)
the
Scheduled Principal Balance of each Mortgage Loan which was repurchased by
the
Seller in connection with such Distribution Date and (b) the difference, if
any,
between the Scheduled Principal Balance of a Mortgage Loan that has been
replaced by the Seller with a substitute Mortgage Loan pursuant to the Mortgage
Loan Purchase Agreement in connection with such Distribution Date and the
Scheduled Principal Balance of such substitute Mortgage Loan; and
(vi) on
the
Distribution Date on which the Current Principal Amounts of the Senior
Certificates (other than the Class
X Certificates and Class PO Certificates)
have
all been reduced to zero, 100% of any Principal Distribution
Amount.
Subordinate
Percentage:
As of
any Distribution Date, 100% minus the Senior Percentage for the Senior
Certificates. The initial Subordinate Percentage will be equal to
4.29%.
Subordinate
Prepayment Percentage:
As of
any Distribution Date, 100% minus the Senior Prepayment Percentage, except
that
on any Distribution Date after the Current Principal Amount of each Class of
related Senior Certificates has each been reduced to zero, the Subordinate
Prepayment Percentage for the Subordinate Certificates will equal
100%.
Subsequent
Recoveries:
As of
any Distribution Date, amounts received by the related Servicer during the
preceding calendar month or surplus amounts held by the related Servicer to
cover estimated expenses (including, but not limited to, recoveries in respect
of the representations and warranties made by the Seller pursuant to the
Mortgage Loan Purchase Agreement) specifically related to a Liquidated Mortgage
Loan or disposition of an REO Property prior to the preceding calendar month
that resulted in a Realized Loss, after the liquidation or disposition of such
Mortgage Loan.
Substitute
Mortgage Loan:
A
mortgage loan tendered to the Trustee pursuant to the related Servicing
Agreement, the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, in each case, (i) which has an Outstanding Principal
Balance not greater nor materially less than the Mortgage Loan for which it
is
to be substituted; (ii) which has a Mortgage Interest Rate and Net Mortgage
Rate
not less than, and not materially greater than, such Mortgage Loan; (iii) which
has a maturity date not materially earlier or later than such Mortgage Loan
and
not later than the latest maturity date of any Mortgage Loan; (iv) which is
of
the same property type and occupancy type as such Mortgage Loan; (v) which
has a
Loan-to-Value Ratio not greater than the Loan-to-Value Ratio of such Mortgage
Loan; (vi) which is current in payment of principal and interest as of the
date
of substitution; and (vii) as to which the payment terms do not vary in any
material respect from the payment terms of the Mortgage Loan for which it is
to
be substituted.
Tax
Administration and Tax Matters Person:
The
Trustee or any successor thereto or assignee thereof shall serve as tax
administrator hereunder and as agent for the Tax Matters Person. The Holder
of
each Class of Residual Certificates shall be the Tax Matters Person for the
related REMIC, as more particularly set forth in Section 9.12
hereof.
Termination
Purchase Price:
The
price, calculated as set forth in Section 10.01, to be paid in connection with
the repurchase of the Mortgage Loans pursuant to Section 10.01.
Transferee
Affidavit:
As
defined in Section 5.05(a).
Transferor
Affidavit:
As
defined in Section 5.05(a).
Trust
Fund:
The
corpus of the trust created by this Agreement, consisting of the Mortgage Loans
and the other assets described in Section 2.01(a).
Trust
REMIC:
That
group of assets contained in the Trust Fund designated as a REMIC consisting
of
(i) the Mortgage Loans, (ii) the Distribution Account, (iii) any REO Property
relating to the Mortgage Loans, (iv) the rights with respect to the related
Servicing Agreement, (v) the rights with respect to the Assignment Agreement
and
(vi) any proceeds of the foregoing.
Trustee:
U.S.
Bank National Association or its successor in interest, or any successor trustee
appointed as herein provided.
Trustee
Fee:
As to each Mortgage Loan and any Distribution Date, an amount equal to the
product of (i) the Scheduled Principal Balance of such Mortgage Loan as of
the
Due Date in the month preceding the month in which such Distribution Date occurs
and (ii) 1/12th
of the Trustee Fee Rate.
Trustee
Fee Rate:
0.012% per annum.
Trustee
Information:
As
defined in Section 3.18(c).
Uninsured
Cause:
Any
cause of damage to a Mortgaged Property or related REO Property such that the
complete restoration of such Mortgaged Property or related REO Property is
not
fully reimbursable by the hazard insurance policies required to be maintained
pursuant the related Servicing Agreement, without regard to whether or not
such
policy is maintained.
United
States Person:
A
citizen or resident of the United States, a corporation or partnership
(including an entity treated as a corporation or partnership for federal income
tax purposes) created or organized in, or under the laws of, the United States
or any state thereof or the District of Columbia (except, in the case of a
partnership, to the extent provided in Treasury regulations), provided that,
for
purposes solely of the Residual Certificates, no partnership or other entity
treated as a partnership for United States federal income tax purposes shall
be
treated as a United States Person unless all Persons that own an interest in
such partnership either directly or through any entity that is not a corporation
for United States federal income tax purposes are United States Persons, or
an
estate whose income is subject to United States federal income tax regardless
of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more such
United States Persons have the authority to control all substantial decisions
of
the trust. To the extent prescribed in regulations by the Secretary of the
Treasury, which have not yet been issued, a trust which was in existence on
August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code) and which was
treated as a United States Person on August 20, 1996 may elect to continue
to be
treated as a United States Person notwithstanding the previous
sentence.
ARTICLE
II
Conveyance
of Mortgage Loans;
Original
Issuance of Certificates
Section
2.01 Conveyance
of Mortgage Loans to Trustee.
(a) The
Depositor concurrently with the execution and delivery of this Agreement, sells,
transfers and assigns to the Trust without recourse all its right, title and
interest in and to (i) the Mortgage Loans identified in the Mortgage Loan
Schedule, including all interest and principal due with respect to the Mortgage
Loans after the Cut-off Date, but excluding any payments of principal and
interest due on or prior to the Cut-off Date; (ii) such assets as shall from
time to time be credited or are required by the terms of this Agreement to
be
credited to the Master Servicer Collection Account and the Distribution Account,
(iii) such assets relating to the Mortgage Loans as from time to time may be
held by the Servicers in the Protected Accounts, the Master Servicer in the
Master Servicer Collection Account and the Trustee in the Distribution Account,
(iv) any REO Property, (v) the Required Insurance Policies and any amounts
paid
or payable by the insurer under any Insurance Policy (to the extent the
mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to
the
extent provided in Subsection 2.03(a), (vii) the rights with respect to the
Servicing Agreements as assigned to the Trustee on behalf of the
Certificateholders by the Assignment Agreement and (viii) all proceeds of the
foregoing. Although it is the intent of the parties to this Agreement that
the
conveyance of the Depositor’s right, title and interest in and to the Mortgage
Loans and other assets in the Trust Fund pursuant to this Agreement shall
constitute a purchase and sale and not a loan, in the event that such conveyance
is deemed to be a loan, it is the intent of the parties to this Agreement that
the Depositor shall be deemed to have granted to the Trustee a first priority
perfected security interest in all of the Depositor’s right, title and interest
in, to and under the Mortgage Loans and other assets in the Trust Fund, and
that
this Agreement shall constitute a security agreement under applicable law.
Moreover, if for any other reason this Agreement is held or deemed to create
a
security interest in the Mortgage Loans and the other assets constituting the
Trust Fund, then it is intended as follows: (a) this Agreement shall also be
deemed to be a security agreement within the meaning of Articles 8 and 9 of
the
Uniform Commercial Code; (b) the conveyance provided for in this Section shall
be deemed to be a grant by the Depositor to the Trustee of a security interest
in all of the Depositor’s right, title and interest in and to the Mortgage Loans
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property, including without
limitation all amounts from time to time held or invested in the Distribution
Account, whether in the form of cash, instruments, securities or other property;
(c) the possession by the Trustee or its agent of the Mortgage Loans and such
other items of property as constitute instruments, money, negotiable documents
or chattel paper shall be deemed to be “possession by the secured party” for
purposes of perfecting the security interest pursuant to Section 9-305 of the
Uniform Commercial Code; (d) the Trustee shall be deemed to be the “securities
intermediary,” as such term is defined in Section 8-102(a)(14)(ii) of the New
York Uniform Commercial Code, that in the ordinary course of its business
maintains “securities accounts” for others, as such term is used in Section
8-501 of the New York Uniform Commercial Code; (e) the “securities
intermediary’s jurisdiction” as defined in the New York Uniform Commercial Code
shall be the State of New York; (f) the Trustee is not a “clearing corporation”,
as such term is defined in Section 8-102(a)(5) of the New York Uniform
Commercial Code and (g) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed to be notifications to or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. The Depositor, the Seller and the Trustee agree that it is
not
intended that any mortgage loan be conveyed to the Trust that is either (i)
a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004 (iii) a “High Cost Home
Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) a “High-Cost Home Loan” as defined by the
Indiana High Cost Home Loan Law effective January 1, 2005.
(b) In
connection with the above transfer and assignment, the Depositor hereby
delivers, or hereby causes to be delivered, to the Custodian, as agent for
the
Trustee, with respect to each Mortgage Loan:
(i) the
original Mortgage Note, endorsed without recourse (a) to the order of the
Trustee or (b) in the case of a Mortgage Loan registered on the MERS system,
endorsed in blank, in either case showing to the extent available to the related
Mortgage Loan Seller an unbroken chain of endorsements from the original payee
thereof to the Person endorsing such Mortgage Note to the Trustee, or lost
note
affidavit together with a copy of the related Mortgage Note;
(ii) the
original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the
presence of the MIN and language indicating that such Mortgage Loan is a MOM
Loan, which shall have been recorded (or, for Mortgage Loans other than the
EMC
Flow Loans, if the original is not available, a copy), with evidence of such
recording indicated thereon (or if clause (w) in the proviso below applies,
shall be in recordable form);
(iii) unless
the Mortgage Loan is either a MOM Loan or has been assigned in the name of
MERS,
a certified copy of the assignment (which may be in the form of a blanket
assignment if permitted in the jurisdiction in which the Mortgaged Property
is
located) to “U.S. Bank National Association, as Trustee”, with evidence of
recording with respect to each Mortgage Loan in the name of the Trustee thereon
(or if clause (w) in the proviso below applies or for Mortgage Loans with
respect to which the related Mortgaged Property is located in a state other
than
Maryland or an Opinion of Counsel has been provided as set forth in this Section
2.01(b), shall be in recordable form);
(iv) all
intervening assignments of the Security Instrument, if applicable and only
to
the extent available to the Depositor with evidence of recording
thereon;
(v) the
original or a copy of the policy or certificate of primary mortgage guaranty
insurance, to the extent available, if any;
(vi) the
original policy of title insurance or mortgagee’s certificate of title insurance
or commitment or binder for title insurance or, in the event such original
title
policy has not been received from the title insurer, such original title policy
will be delivered within one year of the Closing Date or, in the event such
original title policy is unavailable, a photocopy of such title policy or,
in
lieu thereof, a current lien search on the related Mortgaged Property;
and
(viii) originals
of all modification agreements, if applicable and available.
provided,
however,
that in
lieu of the foregoing, the Depositor may deliver to the Custodian, as agent
of
the Trustee, the following documents, under the circumstances set forth below:
(w) in lieu of the original Security Instrument (other than the Mortgages
related to the EMC Flow Loans), assignments to the Trustee or intervening
assignments thereof which have been delivered, are being delivered or will,
upon
receipt of recording information relating to the Security Instrument required
to
be included thereon, be delivered to recording offices for recording and have
not been returned to the Depositor in time to permit their delivery as specified
above, the Depositor may deliver, or cause to be delivered, a true copy thereof
with a certification, on the face of such copy, substantially as follows:
“Certified to be a true and correct copy of the original”; (x) in lieu of the
Security Instrument, assignment to the Trustee or intervening assignments
thereof, if the applicable jurisdiction retains the originals of such documents
(as evidenced by a certification from the Depositor to such effect) the
Depositor may deliver photocopies of such documents containing an original
certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded; (y) in lieu of the Mortgages
(other
than the Mortgages related to the EMC Flow Loans), assignment to the Trustee
or
in blank or intervening assignments thereof, if the applicable jurisdiction
retains the originals of such documents (as evidenced by a certification from
the Depositor to such effect) the Depositor may deliver, or cause to be
delivered, photocopies of such documents containing an original certification
by
the judicial or other governmental authority of the jurisdiction where such
documents were recorded; and
(z)
in lieu of the Mortgage Notes relating to the Mortgage Loans identified on
Exhibit 5 to the Mortgage Loan Purchase Agreement, the Depositor may deliver,
or
cause to be delivered, a lost note affidavit from the related Seller; and (z)
the Depositor shall not be required to deliver intervening assignments or
Mortgage Note endorsements between the related underlying originator or
underlying Seller and the related Seller, between the related Seller and the
Depositor, and between the Depositor and the Trustee; and provided, further,
however, that in the case of Mortgage Loans which have been prepaid in full
after the Cut-off Date and prior to the Closing Date, the Depositor, in lieu
of
delivering the above documents, may deliver, or cause to be delivered, to the
Trustee or the Custodian, as its agent, a certification to such effect and
shall
deposit all amounts paid in respect of such Mortgage Loans in the Master
Servicer Collection Account on the Closing Date. The Depositor shall deliver,
or
cause to be delivered, such original documents (including any original documents
as to which certified copies had previously been delivered) to the Trustee
or
the Custodian, as its agent, promptly after they are received. The Depositor
shall cause the related Seller, at its expense, to cause each assignment of
the
Security Instrument to the Trustee to be recorded not later than 180 days after
the Closing Date, unless (a) such recordation is not required by the Rating
Agencies or an Opinion of Counsel addressed to the Trustee has been provided
to
the Trustee (with a copy to the Custodian) which states that recordation of
such
Security Instrument is not required to protect the interests of the
Certificateholders in the related Mortgage Loans or (b) MERS is identified
on
the Mortgage or on a properly recorded assignment of the Mortgage as the
mortgagee of record solely as nominee for the Seller and its successor and
assigns; provided, however, notwithstanding the foregoing, each assignment
shall
be submitted for recording by the Seller in the manner described above, at
no
expense to the Trust or the Trustee or the Custodian, as its agent, upon the
earliest to occur of: (i) reasonable direction by the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 25% of
the
Trust Fund, (ii) the occurrence of an Event of Default, (iii) the occurrence
of
a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the
occurrence of a servicing transfer as described in Section 8.02 hereof.
Notwithstanding the foregoing, if the Seller fails to pay the cost of recording
the assignments, such expense will be paid by the Trustee and the Trustee shall
be reimbursed for such expenses by the Trust in accordance with Section
9.05.
Section
2.02 Acceptance
of Mortgage Loans and Underlying Certificates by Trustee.
(a) The
Trustee acknowledges the sale, transfer and assignment of the Trust Fund to
it
by the Depositor and receipt of, subject to further review and the exceptions
which may be noted pursuant to the procedures described below, and declares
that
it holds, the documents (or certified copies thereof) delivered to the
Custodian, as its agent, pursuant to Section 2.01(b), and declares that it
will
continue to hold those documents and any amendments, replacements or supplements
thereto and all other assets of the Trust Fund delivered to it as Trustee in
trust for the use and benefit of all present and future Holders of the related
Certificates. On the Closing Date, the Custodian, with respect to the Mortgage
Loans, shall acknowledge with respect to each Mortgage Loan by delivery to
the
Depositor, the related Seller, the Master Servicer and the Trustee of an Initial
Certification receipt of the Mortgage File, but without review of such Mortgage
File, except to the extent necessary to confirm that such Mortgage File contains
the related Mortgage Note or lost note affidavit. No later than 90 days after
the Closing Date (or, with respect to any Substitute Mortgage Loan, within
five
Business Days after the receipt by the Trustee or Custodian thereof), the
Trustee agrees, for the benefit of the related Certificateholders, to review
or
cause to be reviewed by the Custodian on its behalf (under the Custodial
Agreement), each Mortgage File delivered to it and to execute and deliver,
or
cause to be executed and delivered, to the Depositor, the related Seller, the
Master Servicer and the Trustee an Interim Certification. In conducting such
review, the Trustee or Custodian will ascertain whether all required documents
have been executed and received, and based on the Mortgage Loan Schedule,
whether those documents relate, determined on the basis of the Mortgagor name,
original principal balance and loan number, to the Mortgage Loans it has
received, as identified in the Mortgage Loan Schedule. In performing any such
review, the Trustee or the Custodian, as its agent, may conclusively rely on
the
purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If the Trustee or the Custodian,
as its agent, finds any document constituting part of the Mortgage File has
not
been executed or received, or to be unrelated, determined on the basis of the
Mortgagor name, original principal balance and loan number, to the Mortgage
Loans identified in Exhibit B or to appear defective on its face (a “Material
Defect”), the Trustee or the Custodian, as its agent, shall promptly notify the
Seller. In accordance with the Mortgage Loan Purchase Agreement, the Seller
shall correct or cure any such defect within ninety (90) days from the date
of
notice from the Trustee or the Custodian, as its agent, of the defect and if
the
Seller fails to correct or cure the defect within such period, and such defect
materially and adversely affects the interests of the related Certificateholders
in the related Mortgage Loan, the Trustee shall enforce the related Seller’s
obligation under the Mortgage Loan Purchase Agreement to, within 90 days from
the Trustee’s or the Custodian’s notification, provide a Substitute Mortgage
Loan (if within two years of the Closing Date) or purchase such Mortgage Loan
at
the Purchase Price; provided that, if such defect would cause the Mortgage
Loan
to be other than a “qualified mortgage” as defined in Section 860G(a)(3) of the
Code, any such cure or repurchase must occur within 90 days from the date such
breach was discovered; provided, however, that if such defect relates solely
to
the inability of the related Seller to deliver the original Security Instrument
or intervening assignments thereof, or a certified copy because the originals
of
such documents, or a certified copy have not been returned by the applicable
jurisdiction, the related Seller shall not be required to purchase such Mortgage
Loan if the Seller delivers such original documents or certified copy promptly
upon receipt, but in no event later than 360 days after the Closing Date. The
foregoing repurchase obligation shall not apply in the event that the related
Seller cannot deliver such original or copy of any document submitted for
recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided that the
related Seller shall instead deliver a recording receipt of such recording
office or, if such receipt is not available, a certificate confirming that
such
documents have been accepted for recording, and delivery to the Trustee or
the
Custodian, as its agent, shall be effected by the Seller within thirty days
of
its receipt of the original recorded document.
(b) No
later
than 180 days after the Closing Date, the Trustee or the Custodian, as its
agent, will review, for the benefit of the Certificateholders, the Mortgage
Files delivered to it and will execute and deliver or cause to be executed
and
delivered to the Depositor, the related Seller, the Master Servicer and the
Trustee a Final Certification. In conducting such review, the Trustee or the
Custodian, as its agent, will ascertain whether an original of each document
required to be recorded has been returned from the recording office with
evidence of recording thereon or a certified copy has been obtained from the
recording office. If the Trustee or the Custodian, as its agent, finds a
Material Defect, the Trustee or the Custodian, as its agent, shall promptly
notify the Seller (provided, however, that with respect to those documents
described in subsections (b)(iv) and (viii) of Section 2.01, the Trustee’s and
Custodian’s obligations shall extend only to the documents actually delivered to
the Custodian pursuant to such subsections). In accordance with the Mortgage
Loan Purchase Agreement, the related Seller shall correct or cure any such
defect within 90 days from the date of notice from the Trustee or the Custodian,
as its agent, of the Material Defect and if the related Seller is unable to
cure
such defect within such period, and if such defect materially and adversely
affects the interests of the related Certificateholders in the related Mortgage
Loan, the Trustee shall enforce the related Seller’s obligation under the
Mortgage Loan Purchase Agreement to, within 90 days from the Trustee’s or
Custodian’s notification, provide a Substitute Mortgage Loan (if within two
years of the Closing Date) or purchase such Mortgage Loan at the Purchase Price,
provided that, if such defect would cause the Mortgage Loan to be other than
a
“qualified mortgage” as defined in Section 860G(a)(3) of the Code, any such
cure, repurchase or substitution must occur within 90 days from the date such
breach was discovered, provided, however, that if such defect relates solely
to
the inability of the related Seller to deliver the original Security Instrument
or intervening assignments thereof, or a certified copy, because the originals
of such documents or a certified copy, have not been returned by the applicable
jurisdiction, the related Seller shall not be required to purchase such Mortgage
Loan, if the related Seller delivers such original documents or certified copy
promptly upon receipt, but in no event later than 360 days after the Closing
Date. The foregoing repurchase obligation shall not apply in the event that
the
related Seller cannot deliver such original or copy of any document submitted
for recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided that the
related Seller shall instead deliver a recording receipt of such recording
office or, if such receipt is not available, a certificate confirming that
such
documents have been accepted for recording, and delivery to the Trustee or
the
Custodian, as its agent, shall be effected by the related Seller within thirty
days of its receipt of the original recorded document.
(c) In
the
event that a Mortgage Loan is purchased by the related Seller in accordance
with
Subsections 2.02(a) or (b) above, the related Seller shall remit to the Master
Servicer the Purchase Price for deposit in the Master
Servicer Collection Account
and the
Seller shall provide to the Trustee written notification detailing the
components of the Purchase Price. Upon deposit of the Purchase Price in the
Master Servicer Collection Account, the Depositor shall notify the Trustee
and
the Custodian, as agent of the Trustee (upon receipt of a Request for Release
in
the form of Exhibit D attached hereto with respect to such Mortgage Loan),
shall
release to the Seller the related Mortgage File and the Trustee shall execute
and deliver all instruments of transfer or assignment, without recourse,
representation or warranty, furnished to it by the related Seller, as are
necessary to vest in the related Seller title to and rights under the Mortgage
Loan. Such purchase shall be deemed to have occurred on the date on which the
Purchase Price in immediately available funds is received by the Trustee. The
Master Servicer shall amend the Mortgage Loan Schedule to reflect such
repurchase and shall promptly notify the Rating Agencies, the related Seller
and
the Trustee of such amendment. The obligation of the related Seller to
repurchase or substitute for any Mortgage Loan a Substitute Mortgage Loan as
to
which such a defect in a constituent document exists shall be the sole remedy
respecting such defect available to the related Certificateholders or to the
Trustee on their behalf.
Section
2.03 Assignment
of Interest in the Mortgage Loan Purchase Agreement.
(a) The
Depositor hereby assigns to the Trustee, on behalf of the Certificateholders
of
the Certificates, all of its right, title and interest in the Mortgage Loan
Purchase Agreement, including but not limited to the Depositor’s rights and
obligations pursuant to the Servicing Agreements (noting that the Seller has
retained the right in the event of breach of the representations, warranties
and
covenants, if any, with respect to the related Mortgage Loans of the
related
Servicer
under the related Servicing Agreement to enforce the provisions thereof and
to
seek all or any available remedies). The obligations of the related Seller
to
substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee’s
and the related Certificateholders’ sole remedy for any breach thereof. At the
request of the Trustee, the Depositor shall take such actions as may be
necessary to enforce the above right, title and interest on behalf of the
Trustee and the Certificateholders or shall execute such further documents
as
the Trustee may reasonably require in order to enable the Trustee to carry
out
such enforcement.
(b) If
the
Depositor or the Trustee discovers a breach of any of the representations and
warranties set forth in the Mortgage Loan Purchase Agreement, which breach
materially and adversely affects the value of the interests of related
Certificateholders or the Trustee in the related Mortgage Loan, the party
discovering the breach shall give prompt written notice of the breach to the
other parties to this Agreement. EMC
(on
its own behalf and on behalf of Master Funding),
within
90 days of its discovery or receipt of notice that such breach has occurred
(whichever occurs earlier), shall cure the breach in all material respects
or,
subject to the Mortgage Loan Purchase Agreement or Section 2.04 of this
Agreement, as applicable, shall purchase the Mortgage Loan or any property
acquired with respect thereto from the Trustee; provided, however, that if
there
is a breach of any representation set forth in the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, and the Mortgage
Loan or the related property acquired with respect thereto has been sold, then
EMC (on its own behalf and on behalf of Master Funding) shall pay, in lieu
of
the Purchase Price, any excess of the Purchase Price over the Net Liquidation
Proceeds received upon such sale; provided further that, if such defect would
cause the Mortgage Loan to be other than a “qualified mortgage” as defined in
Section 860G(a)(3) of the Code, any such cure or repurchase must occur within
90
days from the date such breach was discovered. If the Net Liquidation Proceeds
exceed the Purchase Price, any excess shall be paid to EMC (on its own behalf
and on behalf of Master Funding) to the extent not required by law to be paid
to
the borrower. Any such purchase by EMC (on its own behalf and on behalf of
Master Funding) shall be made by providing an amount equal to the Purchase
Price
to the Master Servicer for deposit in the Master Servicer Collection Account
and
written notification detailing the components of such Purchase Price to the
Master Servicer. The Depositor shall notify the Trustee and submit to the
Custodian, as agent for the Trustee, a Request for Release, and the Custodian
shall release, or the Trustee shall cause the Custodian to release, to the
Seller the related Mortgage File and the Trustee shall execute and deliver
all
instruments of transfer or assignment furnished to it by EMC (on its own behalf
and on behalf of Master Funding), without recourse, representation or warranty
as are necessary to vest in the related Seller title to and rights under the
Mortgage Loan or any property acquired with respect thereto. Such purchase
shall
be deemed to have occurred on the date on which the Purchase Price in available
funds is received by the Trustee. The Master Servicer shall amend the Mortgage
Loan Schedule to reflect such repurchase and shall promptly notify the EMC
(on
its own behalf and on behalf of Master Funding), the Trustee and the Rating
Agencies of such amendment. Enforcement of the obligation of the Seller to
purchase (or substitute a Substitute Mortgage Loan for) any Mortgage Loan or
any
property acquired with respect thereto (or pay the Purchase Price as set forth
in the above proviso) as to which a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to the
Certificateholders or the Trustee on their behalf.
In
connection with any repurchase of a Mortgage Loan or the cure of a breach of
a
representation or warranty set forth in Section 7 of the Mortgage Loan Purchase
Agreement pursuant to this Section 2.03, EMC
(on
its own behalf and on behalf of Master Funding)
shall, or cause the related Servicer to, furnish to
the Trustee an officer’s certificate,
signed by a duly authorized officer of the related Seller or the related
Servicer, as the case may be, to the effect that such repurchase or cure has
been made in accordance with the terms and conditions of this Agreement and
that
all conditions precedent to such repurchase or cure have been satisfied,
including, in the case of a repurchase, the delivery to the Trustee of the
Purchase Price or the excess of the Purchase Price over the Net Liquidation
Proceeds, if applicable, for deposit into the Distribution Account, together
with copies of the Opinion of Counsel, if any, required to be delivered pursuant
to Section 2.08 and the related Request for Release, on which the Trustee may
rely. Solely for purposes of the Trustee providing an Assessment of Compliance,
upon receipt of the documentation specified in the preceding sentence, the
Trustee shall approve such repurchase or cure, as applicable, and which approval
shall be based solely on the Trustee’s receipt of such documentation and
deposits, if applicable. It
is
understood and agreed that the obligation under this Agreement of the Seller
to
cure the breach of a representation or warranty set forth in Section 7 of the
Mortgage Loan Purchase Agreement or to repurchase or substitute any Mortgage
Loan as to which a breach has occurred and is continuing shall constitute the
sole remedies against the related Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee.
Section
2.04 Substitution
of Mortgage Loans.
Notwithstanding
anything to the contrary in this Agreement, in lieu of purchasing a Mortgage
Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03
of this Agreement, EMC (on its own behalf and on behalf of Master Funding)
may,
no later than the date by which such purchase by the related Seller would
otherwise be required, tender to the Trustee a Substitute Mortgage Loan
accompanied by a certificate of an authorized officer of the Seller that such
Substitute Mortgage Loan conforms to the requirements set forth in the
definition of “Substitute Mortgage Loan” in this Agreement; provided, however,
that substitution pursuant to the Mortgage Loan Purchase Agreement or Section
2.04 of this Agreement, as applicable, in lieu of purchase shall not be
permitted after the termination of the two-year period beginning on the Startup
Day; provided, further, that if the breach would cause the Mortgage Loan to
be
other than a “qualified mortgage” as defined in Section 860G(a)(3) of the Code,
any such cure or substitution must occur within 90 days from the date the breach
was discovered. The Custodian, as agent for the Trustee, shall examine the
Mortgage File for any Substitute Mortgage Loan in the manner set forth in
Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify
EMC
(on its own behalf and on behalf of Master Funding), in writing, within five
Business Days after receipt, whether or not the documents relating to the
Substitute Mortgage Loan satisfy the requirements of Subsection 2.02(a). Within
two Business Days after such notification, EMC (on its own behalf and on behalf
of Master Funding) shall provide to the Trustee for deposit in the Distribution
Account the amount, if any, by which the Outstanding Principal Balance as of
the
next preceding Due Date of the Mortgage Loan for which substitution is being
made, after giving effect to the Scheduled Principal due on such date, exceeds
the Outstanding Principal Balance as of such date of the Substitute Mortgage
Loan, after giving effect to Scheduled Principal due on such date, which amount
shall be treated for the purposes of this Agreement as if it were the payment
by
EMC (on its own behalf and on behalf of Master Funding) of the Purchase Price
for the purchase of a Mortgage Loan by EMC (on its own behalf and on behalf
of
Master Funding). After such notification to EMC (on its own behalf and on behalf
of Master Funding) and, if any such excess exists, upon receipt of such deposit,
the Trustee shall accept such Substitute Mortgage Loan which shall thereafter
be
deemed to be a Mortgage Loan hereunder. In the event of such a substitution,
accrued interest on the Substitute Mortgage Loan for the month in which the
substitution occurs and any Principal Prepayments made thereon during such
month
shall be the property of the Trust Fund and accrued interest for such month
on
the Mortgage Loan for which the substitution is made and any Principal
Prepayments made thereon during such month shall be the property of the related
Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due
Date in the month of substitution shall be the property of the related Seller
and the Scheduled Principal on the Mortgage Loan for which the substitution
is
made due on such Due Date shall be the property of the Trust Fund. Upon
acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of
a
Request for Release for such Mortgage Loan), the Custodian, as agent for the
Trustee, shall release to the related Seller the related Mortgage File related
to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement
or Section 2.04 of this Agreement, as applicable, and shall execute and deliver
all instruments of transfer or assignment, without recourse, representation
or
warranty in form as provided to it as are necessary to vest in the related
Seller title to and rights under any Mortgage Loan released pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable. EMC (on its own behalf and on behalf of Master Funding) shall
deliver to the Custodian the documents related to the Substitute Mortgage Loan
in accordance with the provisions of the Mortgage Loan Purchase Agreement or
Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the
date
of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date
for
purposes of the time periods set forth in those Subsections. The representations
and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed
to have been made by the related Seller with respect to each Substitute Mortgage
Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The
Master Servicer shall amend the Mortgage Loan Schedule to reflect such
substitution and shall provide a copy of such amended Mortgage Loan Schedule
to
EMC (on its own behalf and on behalf of Master Funding), the Trustee and the
Rating Agencies.
In
connection with any substitution of a Mortgage Loan pursuant to this Section
2.04 EMC (on its own behalf and on behalf of Master Funding) shall, or cause
the
related Servicer to, furnish to the Trustee an officer’s certificate, signed by
a duly authorized officer of EMC (on its own behalf and on behalf of Master
Funding) or the related Servicer, as the case may be, to the effect that such
substitution has been made in accordance with the terms and conditions of this
Agreement and that all conditions precedent to such substitution have been
satisfied, together with copies of the Opinion of Counsel, if any, required
to
be delivered pursuant to Section 2.08 and the related Request for Release,
on
which the Trustee may rely. Solely for purposes of the Trustee providing an
Assessment of Compliance, upon receipt of the deposit specified in the preceding
paragraph, if applicable, and the documentation specified in the preceding
sentence, the Trustee shall approve such substitution and which approval shall
be based solely on the Trustee’s receipt of such documentation and deposits. It
is understood and agreed that the obligation under this Agreement of EMC (on
its
own behalf and on behalf of Master Funding) to substitute any Mortgage Loan
as
to which a breach has occurred and is continuing shall constitute the sole
remedies against the Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee.
Section
2.05 Issuance
of Certificates.
(a) The
Trustee acknowledges the assignment to it of the Mortgage Loans and the other
assets comprising the Trust Fund and, concurrently therewith, the Trustee has
signed, and countersigned and delivered to the Depositor, in exchange therefor,
the Certificates in such authorized denominations representing such Fractional
Undivided Interests as the Depositor has requested. The Trustee agrees that
it
will hold the Mortgage Loans and such other assets as may from time to time
be
delivered to it segregated on the books of the Trustee in trust for the benefit
of the related Certificateholders.
Section
2.06 Representations
and Warranties Concerning the Depositor.
The
Depositor hereby represents and warrants to the Trustee and the Master Servicer
as follows:
(a) the
Depositor (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and (ii) is qualified and
in
good standing as a foreign corporation to do business in each jurisdiction
where
such qualification is necessary, except where the failure so to qualify would
not reasonably be expected to have a material adverse effect on the Depositor’s
business as presently conducted or on the Depositor’s ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(b) the
Depositor has full corporate power to own its property, to carry on its business
as presently conducted and to enter into and perform its obligations under
this
Agreement;
(c) the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
and
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Depositor or its properties or the articles of
incorporation or by-laws of the Depositor, except those conflicts, breaches
or
defaults which would not reasonably be expected to have a material adverse
effect on the Depositor’s ability to enter into this Agreement and to consummate
the transactions contemplated hereby;
(d) the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made;
(e) this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the other parties hereto,
constitutes a valid and binding obligation of the Depositor enforceable against
it in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally);
(f) there
are
no actions, suits or proceedings pending or, to the knowledge of the Depositor,
threatened against the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter which
in
the judgment of the Depositor will be determined adversely to the Depositor
and
will if determined adversely to the Depositor materially and adversely affect
the Depositor’s ability to enter into this Agreement or perform its obligations
under this Agreement; and the Depositor is not in default with respect to any
order of any court, administrative agency, arbitrator or governmental body
so as
to materially and adversely affect the transactions contemplated by this
Agreement;
(g) The
Depositor has filed all reports required to be filed by Section 13 or Section
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the Depositor was required to file such reports) and it has been
subject to such filing requirements for the past 90 days; and
(h) immediately
prior to the transfer and assignment to the Trustee, each Mortgage Note and
each
Mortgage were not subject to an assignment or pledge, and the Depositor had
good
and marketable title to and was the sole owner thereof and had full right to
transfer and sell such Mortgage Loan to the Trustee free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security
interest.
Section
2.07 Representations
and Warranties of EMC.
EMC,
in
its capacity as Seller and Master Servicer, hereby represents and warrants
to
the Depositor and the Trustee as follows, as of the Closing Date:
(a) EMC
is
duly organized as a Delaware corporation and is validly existing and in good
standing under the laws of the State of Delaware and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by EMC in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification and,
in
any event, is in compliance with the doing business laws of any such state,
to
the extent necessary to ensure its ability to enforce each Mortgage Loan, to
sell the Mortgage Loans in accordance with the terms of the Mortgage Loan
Purchase Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(b) EMC
has
the full corporate power and authority to sell each Mortgage Loan, and to
execute, deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
corporate action on the part of EMC the execution, delivery and performance
of
this Agreement, assuming the due authorization, execution and delivery hereof
by
the other parties hereto or thereto, as applicable, constitutes a legal, valid
and binding obligation of EMC, enforceable against EMC in accordance with its
terms, except that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) The
execution and delivery of this Agreement by EMC, the sale of the Mortgage Loans
by EMC under the Mortgage Loan Purchase Agreement, the consummation of any
other
of the transactions contemplated by this Agreement, and the fulfillment of
or
compliance with the terms hereof and thereof are in the ordinary course of
business of EMC and will not (A) result in a material breach of any term or
provision of the charter or by-laws of EMC or (B) conflict with, result in
a
breach, violation or acceleration of, or result in a default under, the terms
of
any other material agreement or instrument to which EMC is a party or by which
it may be bound, or (C) constitute a violation of any statute, order or
regulation applicable to EMC of any court, regulatory body, administrative
agency or governmental body having jurisdiction over EMC; and EMC is not in
breach or violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair EMC’s ability to perform
or meet any of its obligations under this Agreement.
(d) EMC
is an
approved Seller of conventional mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac
and is a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act.
(e) No
litigation is pending or, to the best of EMC’s knowledge, threatened, against
EMC that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of EMC to sell the Mortgage
Loans or to perform any of its other obligations under this Agreement in
accordance with the terms hereof or thereof.
(f) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by EMC of, or
compliance by EMC with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval, authorization or order
is
required, EMC has obtained the same.
(g) With
respect to each Mortgage Loan as of the Closing Date (or such other date as
may
be specified in Section 7 of the Mortgage Loan Purchase Agreement), EMC, as
Seller, hereby remakes and restates each of the representations and warranties
set forth in Section 7 of the Mortgage Loan Purchase Agreement to the Depositor
and the Trustee to the same extent as if fully set forth herein.
Upon
discovery by any of the parties hereto of a breach of a representation or
warranty set forth in the Mortgage Loan Purchase Agreement with respect to
the
Mortgage Loans that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach
shall
give prompt written notice thereof to the other parties. EMC, in its capacity
as
Seller, hereby covenants with respect to the representations and warranties
set
forth in the Mortgage Loan Purchase Agreement with respect to the Mortgage
Loans, that within 90 days of the discovery of a breach of any representation
or
warranty set forth therein that materially and adversely affects the interests
of the Certificateholders in any Mortgage Loan, it shall cure such breach in
all
material respects and, if such breach is not so cured, (i) if such 90 day period
expires prior to the second anniversary of the Closing Date, remove such
Mortgage Loan (a “Deleted Mortgage Loan”) from the Trust Fund and substitute in
its place a Replacement Mortgage Loan, in the manner and subject to the
conditions set forth in this Section; or (ii) repurchase the affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner
set
forth below; provided that any such substitution pursuant to (i) above or
repurchase pursuant to (ii) above shall not be effected prior to the delivery
to
the Trustee of an Opinion of Counsel if required by Section 2.08 hereof and
any
such substitution pursuant to (i) above shall not be effected prior to the
additional delivery to the applicable Custodian of a Request for Release;
provided further that, if such breach would cause the Mortgage Loan to be other
than a “qualified mortgage” as defined in Section 860G(a)(3) of the Code, any
such cure, repurchase or substitution must occur within 90 days from the date
such breach was discovered. The Trustee shall give prompt written notice to
the
parties hereto of EMC’s failure to cure such breach as set forth in the
preceding sentence. EMC shall promptly reimburse the Master Servicer and the
Trustee for any expenses reasonably incurred by the Master Servicer or the
Trustee in respect of enforcing the remedies for such breach. To enable the
Master Servicer to amend the Mortgage Loan Schedule, EMC shall, unless it cures
such breach in a timely fashion pursuant to this Section 2.07, promptly notify
the Master Servicer whether it intends either to repurchase, or to substitute
for, the Mortgage Loan affected by such breach. With respect to the
representations and warranties with respect to the Mortgage Loans that are
made
to the best of EMC’s knowledge, if it is discovered by any of the Depositor, the
Master Servicer, EMC or the Trustee that the substance of such representation
and warranty is inaccurate and such inaccuracy materially and adversely affects
the value of the related Mortgage Loan, notwithstanding EMC’s lack of knowledge
with respect to the substance of such representation or warranty, EMC (in its
capacity as Seller) shall nevertheless be required to cure, substitute for
or
repurchase the affected Mortgage Loan in accordance with the
foregoing.
With
respect to any Replacement Mortgage Loan or Loans, EMC (in its capacity as
Seller) shall deliver to the Trustee or the related Custodian on its behalf
for
the benefit of the Certificateholders such documents and agreements as are
required by Section 2.01. No substitution will be made in any calendar month
after the Determination Date for such month. Notwithstanding the foregoing,
such
substitution must be done within two years of the Closing Date. Scheduled
Payments due with respect to Replacement Mortgage Loans in the Due Period
related to the Distribution Date on which such proceeds are to be distributed
shall not be part of the Trust Fund and will be retained by EMC (in its capacity
as Seller). For the month of substitution, distributions to Certificateholders
will include the Scheduled Payment due on any Deleted Mortgage Loan for the
related Due Period and thereafter EMC (in its capacity as Seller) shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit
of the Certificateholders to reflect the removal of each such Deleted Mortgage
Loan and the substitution of the Replacement Mortgage Loan or Loans and the
Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee
and the related Custodian. Upon such substitution, the Replacement Mortgage
Loan
or Loans shall be subject to the terms of this Agreement in all respects, and
EMC shall be deemed to have made with respect to such Replacement Mortgage
Loan
or Loans, as of the date of substitution, the representations and warranties
set
forth in Section 7 or Section 8 of the Mortgage Loan Purchase Agreement with
respect to such Mortgage Loan. Upon any such substitution and the deposit into
the Master Servicer Collection Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph and receipt by the related Custodian of a Request for Release for
such
Mortgage Loan, the related Custodian shall release to EMC the Mortgage File
relating to such Deleted Mortgage Loan and held for the benefit of the
Certificateholders and the Trustee shall execute and deliver at EMC’s direction
such instruments of transfer or assignment as have been prepared by EMC, in
each
case without recourse, representation or warranty as shall be necessary to
vest
in EMC, or its respective designee, title to the Trustee’s interest in any
Deleted Mortgage Loan substituted for pursuant to this Section
2.07.
For
any
month in which EMC substitutes one or more Replacement Mortgage Loans for a
Deleted Mortgage Loan, the Master Servicer will determine the amount (if any)
by
which the aggregate principal balance of all the Replacement Mortgage Loans
as
of the date of substitution is less than the Stated Principal Balance (after
application of the principal portion of the Scheduled Payment due in the month
of substitution) of such Deleted Mortgage Loan. An amount equal to the aggregate
of such deficiencies, described in the preceding sentence for any Distribution
Date (such amount, the “Substitution Adjustment Amount”) shall be deposited into
the Master Servicer Collection Account, by EMC upon its delivering such
Replacement Mortgage Loan on the Determination Date for the Distribution Date
relating to the Prepayment Period during which the related Mortgage Loan became
required to be purchased or replaced hereunder.
In
the
event that EMC (in its capacity as Seller) shall have repurchased a Mortgage
Loan, the Purchase Price therefor shall be deposited into the Master Servicer
Collection Account maintained by the Master Servicer, on the Determination
Date
for the Distribution Date in the month following the month during which EMC
became obligated to repurchase or replace such Mortgage Loan and upon such
deposit of the Purchase Price, the delivery of an Opinion of Counsel if required
by Section 2.08 and the receipt of a Request for Release, the related Custodian
shall release the related Mortgage File held for the benefit of the
Certificateholders to EMC, and the Trustee shall execute and deliver at such
Person’s direction the related instruments of transfer or assignment prepared by
EMC, in each case without recourse, representation or warranty, as shall be
necessary to transfer title from the Trustee for the benefit of the
Certificateholders and transfer the Trustee’s interest to EMC to any Mortgage
Loan purchased pursuant to this Section 2.07. It is understood and agreed that
the obligation under this Agreement of EMC to cure, repurchase or replace any
Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedies against EMC (in its capacity as Seller) respecting
such breach available to the Certificateholders, the Depositor or the
Trustee.
The
representations and warranties set forth in this Section 2.07 hereof shall
survive delivery of the respective Mortgage Loans and Mortgage Files to the
Trustee or the related Custodian for the benefit of the
Certificateholders.
Section
2.08 Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
Notwithstanding
any contrary provision of this Agreement, with respect to any Mortgage Loan
that
is not in default or as to which default is not imminent, no repurchase or
substitution pursuant to Sections 2.02, 2.03, 2.04 or 2.07 shall be made unless
the Seller delivers to the Trustee an Opinion of Counsel, addressed to the
Trustee, to the effect that such repurchase or substitution would not (i) result
in the imposition of the tax on “prohibited transactions” of the Trust REMIC or
contributions after the Closing Date, as defined in Sections 860F(a)(2) and
860G(d) of the Code, respectively, or (ii) cause the Trust REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding. Any
Mortgage Loan as to which repurchase or substitution was delayed pursuant to
this paragraph shall be repurchased or the substitution therefor shall occur
(subject to compliance with Sections 2.02, 2.03, 2.04 or 2.07) upon the earlier
of (a) the occurrence of a default or imminent default with respect to such
Mortgage Loan and (b) receipt by the Trustee of an Opinion of Counsel addressed
to the Trustee to the effect that such repurchase or substitution, as
applicable, will not result in the events described in clause (i) or clause
(ii)
of the preceding sentence.
ARTICLE
III
Administration
of the Trust Fund and Servicing of Mortgage Loans
Section
3.01 Master
Servicer.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicers to service and administer the Mortgage Loans in accordance with the
terms of the applicable Servicing Agreement and shall have full power and
authority to do any and all things which it may deem necessary or desirable
in
connection with such master servicing and administration. In performing its
obligations hereunder, the Master Servicer shall act in a manner consistent
with
Accepted Master Servicing Practices. Furthermore, the Master Servicer shall
oversee and consult with each Servicer as necessary from time-to-time to carry
out the Master Servicer’s obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master Servicer
by each Servicer and shall cause each Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by such
Servicer under its applicable Servicing Agreement. The Master Servicer shall
independently and separately monitor the Servicer’s servicing activities with
respect to each Mortgage Loan, reconcile the results of such monitoring with
such information provided in the previous sentence on a monthly basis and
coordinate corrective adjustments to the Servicers’ and Master Servicer’s
records, and based on such reconciled and corrected information, the Master
Servicer shall provide such information to the Trustee, in
the
form of Exhibit R attached hereto and as
shall
be necessary in order for it to prepare the statements specified in Section
6.05(a) by
12:00
p.m. CST on the 5th Business Day prior to each Distribution Date,
and
prepare any other information and statements required to be forwarded by the
Master Servicer hereunder; provided, however, in no event shall the Master
Servicer be required to provide such information to the Trustee earlier than
12:00 p.m. CST on the 19th
calendar
day of the month. The Master Servicer shall reconcile the results of its
Mortgage Loan monitoring with the actual remittances of the Servicers pursuant
to the applicable Servicing Agreement. The Master Servicer shall be entitled
to
conclusively rely on the Mortgage Loan data provided by the related Servicer
and
shall have no liability for any errors in such Mortgage Loan data.
In
addition to the foregoing, in connection with a modification of any Mortgage
Loan by a Servicer, if the Master Servicer is unable to enforce the obligations
of the Servicer with respect to such modification, the Master Servicer shall
notify the Depositor of such Servicer’s failure to comply with the terms of the
Servicing Agreement or this Agreement. If the Servicing Agreement requires
the
approval of the Master Servicer for a modification to a Mortgage Loan, the
Master Servicer shall approve such modification if, based upon its receipt
of
written notification from the related Servicer outlining the terms of such
modification and appropriate supporting documentation, the Master Servicer
determines that the modification is permitted under the terms of the Servicing
Agreement and that any conditions to such modification set forth in the
Servicing Agreement have been satisfied. Furthermore, if the Servicing Agreement
requires the oversight and monitoring of loss mitigation measures with respect
to the related Mortgage Loans, the Master Servicer will monitor any loss
mitigation procedure or recovery action related to a defaulted Mortgage Loan
(to
the extent it receives notice of such from the related Servicer) and confirm
that such loss mitigation procedure or recovery action is initiated, conducted
and concluded in accordance with any timeframes and any other requirements
set
forth in the Servicing Agreement, and the Master Servicer shall notify the
Depositor in any case in which the Master Servicer believes that the related
Servicer is not complying with such timeframes and/or other
requirements.
The
Trustee shall furnish the Servicers and the Master Servicer with any powers
of
attorney substantially in the form of Exhibit P hereto and upon written request
from a Servicing Officer other documents in form as provided to it necessary
or
appropriate to enable the Servicers and the Master Servicer to service and
administer the Mortgage Loans and REO Property. The Trustee shall be indemnified
by the Master Servicer for any costs, liabilities or expenses incurred by it
in
connection with such powers of attorney.
The
Trustee or the Custodian shall provide access to the records and documentation
in possession of the Trustee regarding the Mortgage Loans and REO Property
and
the servicing thereof to the related Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon reasonable prior written request and during normal business hours at the
office of the Trustee; provided, however, that, unless otherwise required by
law, the Trustee shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee shall allow representatives of the above entities
to photocopy any of the records and documentation and shall provide equipment
for that purpose at a charge that covers the Trustee’s actual
costs.
The
Trustee shall execute upon the related Servicer’s written instruction (which
includes the documents to be signed) and deliver to the related Servicer and
the
Master Servicer any court pleadings, requests for trustee’s sale or other
appropriate documents necessary or desirable to (i) the foreclosure or trustee’s
sale with respect to a Mortgaged Property; (ii) any legal action brought to
obtain judgment against any Mortgagor on the Mortgage Note or Security
Instrument; (iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any other rights or remedies provided by the Mortgage Note or Security
Instrument or otherwise available at law or equity.
Section
3.02 REMIC-Related
Covenants.
For
as
long as the Trust REMIC shall exist, the Trustee shall act in accordance
herewith to assure continuing treatment of the Trust REMIC as a REMIC, and
the
Trustee shall comply with any directions of the Depositor, the related Servicer
or the Master Servicer to ensure such continuing treatment. In particular,
the
Trustee shall not (unless expressly permitted under the terms of this Agreement)
(a) sell or permit the sale of all or any portion of the Mortgage Loans or
of
any investment of deposits in an Account unless such sale is as a result of
a
repurchase of the Mortgage Loans pursuant to this Agreement or the Trustee
has
received a REMIC Opinion addressed to the Trustee prepared at the expense of
the
Trust Fund; (b) other than with respect to a substitution pursuant to the
Mortgage Loan Purchase Agreement, Section 2.04 or Section 2.07 of this
Agreement, as applicable, accept any contribution to the Trust REMIC after
the
Startup Day without receipt of a REMIC Opinion addressed to the Trustee; or
(c)
acquire any assets for the Trust REMIC other than any REO Property after the
Startup Day without receipt of a REMIC Opinion.
Section
3.03 Monitoring
of Servicers.
(a) The
Master Servicer shall be responsible for reporting to the Trustee and the
Depositor the non-compliance by each Servicer with its duties under the related
Servicing Agreement. In the review of each Servicer’s activities, the Master
Servicer may rely upon an officer’s certificate of the Servicer (or similar
document signed by an officer of the Servicer) with regard to the Servicer’s
compliance with the terms of its Servicing Agreement. In the event that the
Master Servicer, in its judgment, determines that a Servicer (other than the
Company) should be terminated in accordance with its Servicing Agreement, or
that a notice should be sent pursuant to such Servicing Agreement with respect
to the occurrence of an event that, unless cured, would constitute grounds
for
such termination, the Master Servicer shall notify the Depositor and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate. In the event that the Master Servicer, in its
judgment, determines that the Company should be terminated in accordance with
the EMC Servicing Agreement, or that a notice should be sent pursuant to the
EMC
Servicing Agreement with respect to the occurrence of an event that, unless
cured, would constitute grounds for such termination, the Master Servicer shall
notify the Depositor and the Trustee thereof in writing. Pursuant to its receipt
of such written notification from the Master Servicer, the Trustee shall issue
such notice of termination to the Company or take such other action as it deems
appropriate.
(b) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of each Servicer under the related Servicing
Agreement, and shall, in the event that a Servicer, other than the Company,
fails to perform its obligations in accordance with the related
Servicing Agreement, subject to the preceding paragraph, terminate the rights
and obligations of such Servicer thereunder and act as servicer of the related
Mortgage Loans or to cause the Trustee to enter into a new Servicing Agreement
with a successor Servicer selected by the Master Servicer; provided, however,
it
is understood and acknowledged by the parties hereto that there will be a period
of transition (not to exceed 90 days) before the actual servicing functions
can
be fully transferred to such successor Servicer. In the event that the Company
fails to perform its obligations in accordance with the EMC Servicing Agreement,
subject to the preceding paragraph,
the Master Servicer shall notify the Trustee in writing of such failure.
Pursuant to its receipt of such notification from the Master Servicer, the
Trustee shall terminate the rights and obligations of the Company under the
EMC
Servicing Agreement and enter in to a new Servicing Agreement with a successor
Servicer selected by the Trustee; provided, however, it is understood and
acknowledged by the parties hereto that there will be a period of transition
(not to exceed 90 days) before the actual servicing functions can be fully
transferred to such successor Servicer. In either event, such enforcement,
including, without limitation, the legal prosecution of claims, termination
of
the Servicing Agreements and the pursuit of other appropriate remedies, shall
be
in such form and carried out to such an extent and at such time as the Master
Servicer (or in the case the Company is terminated as the Servicer, the
successor servicer or the Trustee, as applicable) in its good faith business
judgment, would require were it the owner of the Mortgage Loans. The Master
Servicer shall pay the costs of such enforcement at its own expense, provided
that the Master Servicer shall not be required to prosecute or defend any legal
action except to the extent that the Master Servicer shall have received
reasonable indemnity for its costs and expenses in pursuing such action. In
the
event that the Company is terminated as the Servicer, the Trustee shall pay
the
costs of such enforcement at its own expense, subject to its right to be
reimbursed for such costs from the Distribution Account pursuant to Section
3.03(c); provided that the Trustee shall not be required to prosecute or defend
any legal action except to the extent that the Trustee shall have received
reasonable indemnity for its costs and expenses in pursuing such action. Nothing
herein shall impose any obligation on the part of the Trustee to assume or
succeed to the duties or obligations of the Company or the Master Servicer
unless the Trustee has not been able to find a successor servicer or a successor
master servicer.
(c) In
the
event that the Company is terminated as Servicer, to the extent that the costs
and expenses of the Trustee related to any termination of the Company, or the
enforcement or prosecution of related claims, rights or remedies, or the
appointment of a successor Servicer (including, without limitation, (i) all
legal costs and expenses and all due diligence costs and expenses associated
with an evaluation of the potential termination of the Company as a result
of an
event of default by the Company as a Servicer and (ii) all costs and expenses
associated with the complete transfer of servicing, including all servicing
files and all servicing data and the completion, correction or manipulation
of
such servicing data as may be required by the successor Servicer to correct
any
errors or insufficiencies in the servicing data or otherwise to enable the
successor Servicer to service the Mortgage Loans in accordance with the related
Servicing Agreement) are not fully and timely reimbursed by the Company after
such termination, the Trustee shall be entitled to reimbursement of such costs
and expenses from the Distribution Account. In
all other cases, to the extent that the costs and expenses of the Master
Servicer related to any termination of a Servicer (other than the
Company),
appointment of a successor Servicer or the transfer and assumption of servicing
by the Master Servicer with respect to any Servicing Agreement (including,
without limitation, (i) all legal costs and expenses and all due diligence
costs
and expenses associated with an evaluation of the potential termination of
the
Servicer as a result of an event of default by such Servicer and (ii) all costs
and expenses associated with the complete transfer of servicing, including
all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the successor servicer to service the Mortgage Loans in accordance with
the related Servicing Agreement) are not fully and timely reimbursed by the
terminated Servicer, the Master Servicer shall be entitled to reimbursement
of
such costs and expenses from the Master
Servicer Collection Account.
(d) The
Master Servicer shall require each Servicer to comply with the remittance
requirements and other obligations set forth in the related Servicing
Agreement.
(e) If
the
Master Servicer acts as a servicer, it shall not be liable for losses of the
predecessor Servicer or any acts or omissions of the predecessor Servicer,
or
deemed to have made any representations and warranties of the related Servicer,
if any, that it replaces.
Section
3.04 Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees.
Section
3.05 Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Holders of the Certificates and the
Trustee, customary consents or waivers and other instruments and documents,
(ii)
to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds,
Liquidation Proceeds and Subsequent Recoveries, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions
of
this Agreement and the related Servicing Agreement, as applicable; provided,
however, that the Master Servicer shall not (and, consistent with its
responsibilities under Section 3.03, shall not authorize any Servicer to)
knowingly or intentionally take any action, or fail to take (or fail to cause
to
be taken) any action reasonably within its control and the scope of duties
more
specifically set forth herein, that, under the REMIC Provisions, if taken or
not
taken, as the case may be, may cause the Trust REMIC to fail to qualify as
a
REMIC or result in the imposition of a tax upon the Trust Fund (including but
not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code) unless the Master Servicer has received an Opinion
of Counsel (but not at the expense of the Master Servicer) to the effect that
the contemplated action would not cause the Trust REMIC to fail to qualify
as a
REMIC or result in the imposition of a tax upon the Trust REMIC. The Trustee
shall furnish the Master Servicer, upon written request from a Servicing
Officer, with any powers of attorney empowering the Master Servicer or any
Servicer to execute and deliver instruments of satisfaction or cancellation,
or
of partial or full release or discharge, and to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in any court
action relating to the Mortgage Loans or the Mortgaged Property, in accordance
with the related Servicing Agreement and this Agreement, and the Trustee shall
execute and deliver such other documents, as the Master Servicer may request,
to
enable the Master Servicer to master service and administer the Mortgage Loans
and carry out its duties hereunder, in each case in accordance with Accepted
Master Servicing Practices (and the Trustee shall have no liability for misuse
of any such powers of attorney by the Master Servicer or any Servicer). If
the
Master Servicer or the Trustee has been advised that it is likely that the
laws
of the state in which action is to be taken prohibit such action if taken in
the
name of the Trustee or that the Trustee would be adversely affected under the
“doing business” or tax laws of such state if such action is taken in its name,
the Master Servicer shall join with the Trustee in the appointment of a
co-trustee pursuant to Section 9.11 hereof. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall,
except in those instances where it is taking action in the name of the Trust,
not be deemed to be the agent of the Trust.
Section
3.06 Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the applicable Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section
3.07 Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
any Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will, if required under the applicable Servicing
Agreement (or if the applicable Servicer does not, the Master Servicer may),
promptly furnish to the Custodian, on behalf of the Trustee, two copies of
a
certification substantially in the form of Exhibit D (or as otherwise provided
in the Custodial Agreement) hereto signed by a Servicing Officer or in a
mutually agreeable electronic format which will, in lieu of a signature on
its
face, originate from a Servicing Officer (which certification shall include
a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Protected Account maintained
by
the applicable Servicer pursuant to Section 4.01 or by the applicable Servicer
pursuant to the applicable Servicing Agreement have been or will be so
deposited) and shall request that the Custodian, on behalf of the Trustee,
deliver to the applicable Servicer the related Mortgage File. Upon receipt
of
such certification and request, the Custodian, on behalf of the Trustee, shall
promptly release the related Mortgage File to the applicable Servicer and the
Trustee and Custodian shall have no further responsibility with regard to such
Mortgage File. Upon any such payment in full, each Servicer is authorized,
to
give, as agent for the Trustee, as the mortgagee under the Mortgage that secured
the Mortgage Loan, an instrument of satisfaction (or assignment of mortgage
without recourse) regarding the Mortgaged Property subject to the Mortgage,
which instrument of satisfaction or assignment, as the case may be, shall be
delivered to the Person or Persons entitled thereto against receipt therefor
of
such payment, it being understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or assignment, as the case
may
be, shall be chargeable to the applicable Protected Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the applicable Servicing Agreement, upon written
instruction from such Servicer or the Master Servicer, the Trustee shall execute
such documents as shall be prepared and furnished to the Trustee by a Servicer
or the Master Servicer (in form reasonably acceptable to the Trustee) and as
are
necessary to the prosecution of any such proceedings. The Custodian, on behalf
of the Trustee, shall, upon the request of a Servicer or the Master Servicer,
and delivery to the Custodian, on behalf of the Trustee, of two copies of a
request for release signed by a Servicing Officer substantially in the form
of
Exhibit D (or in a mutually agreeable electronic format which will, in lieu
of a
signature on its face, originate from a Servicing Officer), release the related
Mortgage File held in its possession or control to the Servicer or the Master
Servicer. Such trust receipt shall obligate the Servicer or the Master Servicer
to return the Mortgage File to the Custodian on behalf of the Trustee, when
the
need therefor by the Servicer or the Master Servicer no longer exists unless
the
Mortgage Loan shall be liquidated, in which case, upon receipt of a certificate
of a Servicing Officer similar to that hereinabove specified, the Mortgage
File
shall be released by the Custodian, on behalf of the Trustee, to the Servicer
or
the Master Servicer.
Section
3.08 Documents,
Records and Funds in Possession of Master Servicer to Be Held for
Trustee.
(a) The
Master Servicer shall transmit and each Servicer (to the extent required by
the
related Servicing Agreement) shall transmit to the Trustee or Custodian such
documents and instruments coming into the possession of the Master Servicer
or
such Servicer from time to time as are required by the terms hereof, or in
the
case of the Servicers, the applicable Servicing Agreement, to be delivered
to
the Trustee or Custodian. Any funds received by the Master Servicer or by a
Servicer in respect of any Mortgage Loan or which otherwise are collected by
the
Master Servicer or by a Servicer as Liquidation Proceeds, Insurance Proceeds
or
Subsequent Recoveries in respect of any Mortgage Loan shall be held for the
benefit of the Trustee and the Certificateholders subject to the right of the
Master Servicer to retain or withdraw from the Master Servicer Collection
Account the Master Servicing Compensation and other amounts provided in this
Agreement, and to the right of each Servicer to retain or withdraw its Servicing
Fee and other amounts as provided in the applicable Servicing Agreement. The
Master Servicer and each Servicer shall provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, to Certificateholders that are savings and loan associations, banks
or
insurance companies, the Office of Thrift Supervision, the FDIC and the
supervisory agents and examiners of such Office and Corporation or examiners
of
any other federal or state banking or insurance regulatory authority if so
required by applicable regulations of the Office of Thrift Supervision or other
regulatory authority, such access to be afforded without charge but only upon
reasonable request in writing and during normal business hours at the offices
of
the Master Servicer designated by it. In fulfilling such a request the Master
Servicer shall not be responsible for determining the sufficiency of such
information.
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, Insurance
Proceeds or Subsequent Recoveries, shall be held by the Master Servicer for
and
on behalf of the Trustee and the Certificateholders and shall be and remain
the
sole and exclusive property of the Trustee; provided, however, that the Master
Servicer and each Servicer shall be entitled to setoff against, and deduct
from,
any such funds any amounts that are properly due and payable to the Master
Servicer or such Servicer to the extent provided under this Agreement or the
applicable Servicing Agreement.
Section
3.09 Standard
Hazard Insurance and Flood Insurance Policies.
(a) For
each
Mortgage Loan, the Master Servicer shall enforce any obligation of the Servicers
under the related Servicing Agreement to maintain or cause to be maintained
standard fire and casualty insurance and, where applicable, flood insurance,
all
in accordance with the provisions of the related Servicing Agreement. It is
understood and agreed that such insurance shall be with insurers meeting the
eligibility requirements set forth in the applicable Servicing Agreement and
that no earthquake or other additional insurance is to be required of any
Mortgagor or to be maintained on property acquired in respect of a defaulted
loan, other than pursuant to such applicable laws and regulations as shall
at
any time be in force and as shall require such additional
insurance.
(b) Pursuant
to Section 4.01 and 4.02, any amounts collected by the Servicers or the Master
Servicer, or by any Servicer, under any insurance policies (other than amounts
to be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the Master Servicer Collection
Account, subject to withdrawal pursuant to Section 4.02 and 4.03. Any cost
incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added
to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan
so
permit; provided, however, that the addition of any such cost shall not be
taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 4.02 and 4.03.
Section
3.10 Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies
and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured’s claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to a Servicer and remitted to the Master Servicer) in respect of such policies,
bonds or contracts shall be promptly deposited in the Master Servicer Collection
Account for deposit in the Distribution Account upon receipt, except that any
amounts realized that are to be applied to the repair or restoration of the
related Mortgaged Property, which repair or restoration the owner of such
Mortgaged Property or EMC, as applicable, has agreed to make as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable Insurance Policy need not be so deposited (or
remitted).
Section
3.11 Maintenance
of the Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall not take, or authorize any Servicer (to the extent such
action is prohibited under the applicable Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Master Servicer
or such Servicer, would have been covered thereunder. The Master Servicer shall
use its best reasonable efforts to cause each Servicer (to the extent required
under the related Servicing Agreement) to keep in force and effect (to the
extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not authorize
any Servicer (to the extent required under the related Servicing Agreement)
to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is
in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The
Master Servicer agrees to present, or to cause each Servicer (to the extent
required under the related Servicing Agreement) to present, on behalf of the
Trustee and the Certificateholders, claims to the insurer under any Primary
Mortgage Insurance Policies and, in this regard, to take such reasonable action
as shall be necessary to permit recovery under any Primary Mortgage Insurance
Policies respecting defaulted Mortgage Loans. Pursuant to Section 4.01 and
4.02,
any amounts collected by the Master Servicer or any Servicer under any Primary
Mortgage Insurance Policies shall be deposited in the Master Servicer Collection
Account, subject to withdrawal pursuant to Sections 4.02 and 4.03.
Section
3.12 Trustee
to Retain Possession of Certain Insurance Policies and Documents.
The
Trustee (or the Custodian, as directed by the Trustee), shall retain possession
and custody of the originals (to the extent available) of any Primary Mortgage
Insurance Policies, or certificate of insurance if applicable, and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect
of
the Certificates have been distributed in full and the Master Servicer otherwise
has fulfilled its obligations under this Agreement, the Trustee (or its
Custodian, if any, as directed by the Trustee) shall also retain possession
and
custody of each Mortgage File in accordance with and subject to the terms and
conditions of this Agreement. The Master Servicer shall promptly deliver or
cause to be delivered to the Trustee (or the Custodian, as directed by the
Trustee), upon the execution or receipt thereof the originals of any Primary
Mortgage Insurance Policies, any certificates of renewal, and such other
documents or instruments that constitute portions of the Mortgage File that
come
into the possession of the Master Servicer from time to time.
Section
3.13 Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall cause each Servicer (to the extent required under the
related Servicing Agreement) to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with the applicable Servicing Agreement.
Section
3.14 Compensation
for the Master Servicer.
The
Master Servicer will be entitled to all income and gain realized from any
investment of funds in the Master Servicer Collection Account, pursuant to
Article IV, for the performance of its activities hereunder. Servicing
compensation in the form of assumption fees, if any, late payment charges,
as
collected, if any, or otherwise (including any prepayment premium or penalty)
shall be retained by the applicable Servicer and shall not be deposited in
the
related Protected Account. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder and shall
not be entitled to reimbursement therefor except as provided in this
Agreement.
Section
3.15 REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
related Mortgage Loan, the deed or certificate of sale shall be issued to the
Trustee, or to its nominee, on behalf of the related Certificateholders. The
Master Servicer shall, to the extent provided in the applicable Servicing
Agreement, cause the applicable Servicer to sell any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable. Pursuant to its
efforts to sell such REO Property, the Master Servicer shall cause the
applicable Servicer to protect and conserve, such REO Property in the manner
and
to the extent required by the applicable Servicing Agreement, in accordance
with
the REMIC Provisions and in a manner that does not result in a tax on “net
income from foreclosure property” or cause such REO Property to fail to qualify
as “foreclosure property” within the meaning of Section 860G(a)(8) of the
Code.
(b) The
Master Servicer shall, to the extent required by the related Servicing
Agreement, cause the applicable Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the related
Protected Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Monthly Advances and other unreimbursed advances as well as any unpaid Servicing
Fees from Liquidation Proceeds received in connection with the final disposition
of such REO Property; provided
that, any such unreimbursed Monthly Advances as well as any unpaid Servicing
Fees may be reimbursed or paid, as the case may be, prior to final disposition,
out of any net rental income or other net amounts derived from such REO
Property.
(d) To
the
extent provided in the related Servicing Agreement, the Liquidation Proceeds
from the final disposition of the REO Property, net of any payment to the Master
Servicer and the applicable Servicer as provided above, subject to approval
by
the Master Servicer, shall be deposited in the related Protected Account on
or
prior to the Determination Date in the month following receipt thereof and
be
remitted by wire transfer in immediately available funds to the Master Servicer
for deposit into the Master Servicer Collection Account on the next succeeding
Servicer Remittance Date.
Section
3.16 Annual
Statement as to Compliance.
The
Master Servicer shall deliver (or otherwise make available) to the Depositor
and
the Trustee not later than March 15th
of each
calendar year beginning in 2008, an Officer’s Certificate (an “Annual Statement
of Compliance”) stating that (i) a review of the activities of the Master
Servicer during the preceding calendar year and of its performance under this
Agreement has been made under such officer’s supervision and (ii) to the best of
such officer’s knowledge, based on such review, the Master Servicer has
fulfilled all of its obligations under this Agreement in all material respects
throughout such year, or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such
officer and the nature and status of the cure provisions thereof. Such Annual
Statement of Compliance shall contain no restrictions or limitations on its
use.
The Master Servicer shall enforce the obligations of each Servicer, to the
extent set forth in the related Servicing Agreement, to deliver a similar Annual
Statement of Compliance by that Servicer to the Depositor and the Trustee as
described above as and when required with respect to the Master Servicer. In
the
event that certain servicing responsibilities with respect to any Mortgage
Loan
have been delegated by the Master Servicer or a Servicer to a subservicer or
subcontractor, each such entity shall cause such subservicer or subcontractor
(and with respect to each Servicer, the Master Servicer shall enforce the
obligation of such Servicer to the extent required under the related Servicing
Agreement) to deliver a similar Annual Statement of Compliance by such
subservicer or subcontractor to the Depositor, the Master Servicer and the
Trustee as described above as and when required with respect to the Master
Servicer or the related Servicer (as the case may be).
Failure
of the Master Servicer to comply with this Section 3.16 (including with respect
to the timeframes required herein) shall be deemed an Event of Default, and
at
the written direction of the Depositor the Trustee shall, in addition to
whatever rights the Trustee may have under this Agreement and at law or equity
or to damages, including injunctive relief and specific performance, upon notice
immediately terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Master Servicer for the same (but
subject to the Master Servicer’s rights to payment of any Master Servicing
Compensation and reimbursement of all amounts for which it is entitled to be
reimbursed prior to the date of termination).
This
paragraph shall supersede any other provision in this Agreement or any other
agreement to the contrary.
In
the event the Master Servicer, any Servicer or
any subservicer or subcontractor engaged by either such party is terminated
or
resigns pursuant to the terms of this Agreement, or any other applicable
agreement in the case of a Servicer, a subservicer or subcontractor, as the
case
may be, such party shall provide an Annual Statement of Compliance pursuant
to
this Section 3.16 or to the related section of such other applicable agreement,
as the case may be, as to the performance of its obligations with respect to
the
period of time it was subject to this Agreement or any other applicable
agreement, as the case may be notwithstanding any such termination or
resignation.
Section
3.17 Assessments
of Compliance and Attestation Reports.
Pursuant
to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB,
each of the Master Servicer, the Trustee and the Custodian (to the extent set
forth in this Section) (each, an “Attesting Party”), each at its own expense,
shall deliver (or otherwise make available) to the Master Servicer, the Trustee
and the Depositor on or before March 15th
of each
calendar year beginning in 2008, a report regarding such Attesting Party’s
assessment of compliance (an “Assessment of Compliance”) with the Servicing
Criteria during the preceding calendar year. The Assessment of Compliance,
as
set forth in Regulation AB, must contain the following:
(a) A
statement by an authorized officer of such Attesting Party of its authority
and
responsibility for assessing compliance with the Servicing Criteria applicable
to the related Attesting Party;
(b) A
statement by an authorized officer that such Attesting Party used the Servicing
Criteria attached as Exhibit L hereto, and which will also be attached to the
Assessment of Compliance, to assess compliance with the Servicing Criteria
applicable to the related Attesting Party;
(c) An
assessment by such officer of the related Attesting Party’s compliance with the
applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on
the
activities such Attesting Party performs with respect to asset-backed securities
transactions taken as a whole involving the related Attesting Party, that are
backed by the same asset type as the Mortgage Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the related Attesting Party’s Assessment of Compliance for the period
consisting of the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the
related Attesting
Party, which statement shall be based on the activities such Attesting Party
performs with respect to asset-backed securities transactions taken as a whole
involving such Attesting Party, that are backed by the same asset type as the
Mortgage Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit L hereto which are indicated as applicable to the related Attesting
Party.
On
or
before March 15th
of each
calendar year beginning in 2008, each Attesting Party shall furnish to the
Master Servicer, the Depositor and the Trustee a report (an “Attestation
Report”) by a registered public accounting firm that attests to, and reports on,
the Assessment of Compliance made by the related Attesting Party, as required
by
Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation
AB,
which Attestation Report must be made in accordance with standards for
attestation reports issued or adopted by the Public Company Accounting Oversight
Board.
The
Master Servicer shall enforce the obligation of each Servicer to deliver to
the
Trustee, the Master Servicer and the Depositor an Assessment of Compliance
and
Attestation Report as and when provided in the related Servicing Agreement.
Each
of the Master Servicer and the Trustee shall cause, and the Master Servicer
shall enforce the obligation (as and when provided in the related Servicing
Agreement) of each Servicer to cause, any subservicer and each subcontractor
(to
the extent such subcontractor is determined by the Master Servicer or the
Trustee, as applicable, to be “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB) that is engaged by such Servicer,
the
Master Servicer or the Trustee, as applicable, to deliver to the Trustee, the
Master Servicer and the Depositor an Assessment of Compliance and Attestation
Report as and when provided above. Such Assessment of Compliance, as to any
subservicer or subcontractor, shall at a minimum address the applicable
Servicing Criteria specified on Exhibit L hereto which are indicated as
applicable to any “primary servicer” to the extent such subservicer or
subcontractor is performing any servicing function for the party who engages
it
and to the extent such party is not itself addressing the Servicing Criteria
related to such servicing function in its own Assessment of Compliance. The
Master Servicer shall confirm that each of the Assessments of Compliance
delivered to it, taken as a whole, address all of the Servicing Criteria and
taken individually address the Servicing Criteria for each party as set forth
in
Exhibit L and notify the Depositor of any exceptions. Notwithstanding
the foregoing, as to any subcontractor, an Assessment of Compliance is not
required to be delivered unless it is required as part of a Form 10-K with
respect to the Trust Fund.
The
Custodian shall deliver to the Master Servicer, the Trustee and the Depositor
an
Assessment of Compliance and Attestation Report, as and when provided above,
which shall at a minimum address each of the Servicing Criteria specified on
Exhibit L hereto which are indicated as applicable to a “custodian”.
Notwithstanding the foregoing, an Assessment of Compliance or Attestation Report
is not required to be delivered by any Custodian unless it is required as part
of a Form 10-K with respect to the Trust Fund.
Failure
of the Master Servicer to comply with this Section 3.17 (including with respect
to the timeframes required herein) shall
constitute an
Event
of Default, and at the written direction of the Depositor the Trustee shall,
in
addition to whatever rights the Trustee may have under this Agreement and at
law
or equity or to damages, including injunctive relief and specific performance,
upon notice immediately terminate all of the rights and obligations of the
Master Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof without compensating the Master Servicer for the same (but
subject to the Master Servicer’s rights to payment of any Master Servicing
Compensation and reimbursement of all amounts for which it is entitled to be
reimbursed prior to the date of termination). Failure of the Trustee to comply
with this Section 3.17 (including with respect to the timeframes required in
this Section) which failure results in a failure to timely file the related
Form
10-K, shall be deemed a default which may result in the termination of the
Trustee pursuant to Section 9.08 of this Agreement and the Depositor may, in
addition to whatever rights the Depositor may have under this Agreement and
at
law or equity or to damages, including injunctive relief and specific
performance, upon notice immediately terminate all of the rights and obligations
of the Trustee under this Agreement and in and to the Mortgage Loans and the
proceeds thereof without compensating the Trustee for the same (but subject
to
the Trustee’s right to reimbursement of all amounts for which it is entitled to
be reimbursed prior to the date of termination). This paragraph shall supersede
any other provision in this Agreement or any other agreement to the
contrary.
In
the event the Master Servicer, the Custodian, the Trustee
or any
subservicer or subcontractor engaged by any such party is terminated, assigns
its rights and obligations under, or resigns pursuant to, the terms of the
Agreement, the related Custodial Agreement, or any other applicable agreement
in
the case of a subservicer or subcontractor, as the case may be, such party
shall
provide an Assessment of Compliance and cause to be provided an Attestation
Report pursuant to this Section 3.17 or to the related section of such other
applicable agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
Section
3.18 Reports
Filed with Securities and Exchange Commission.
(a) (i)
(A)
Within 15 days after each Distribution Date, the Trustee shall, in accordance
with industry standards, prepare and file with the Commission via the Electronic
Data Gathering and Retrieval System (“▇▇▇▇▇”), a Distribution Report on Form
10-D, signed by the Master Servicer, with a copy of the Monthly Statement to
be
furnished by the Trustee to the Certificateholders for such Distribution Date;
provided that, the Trustee shall have received no later than five (5) calendar
days after the related Distribution Date, all information required to be
provided to the Trustee as described in clause (a)(iv) below. Any disclosure
that is in addition to the Monthly Statement and that is required to be included
on Form 10-D (“Additional Form 10-D Disclosure”) shall
be,
pursuant to the paragraph immediately below, reported by the parties set forth
on Exhibit M to the Trustee and the Depositor and approved for inclusion by
the
Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure absent
such reporting (other than with respect to when it is the reporting party as
set
forth in Exhibit M) and approval.
(B)
Within five (5) calendar days after the related Distribution Date, (i) the
parties set forth in Exhibit M shall be required to provide, and the Master
Servicer shall enforce the obligations of each Servicer (to the extent provided
in the related Servicing Agreement) to provide, pursuant to Section 3.18(a)(iv)
below, to the Trustee (via email to ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇) and the Depositor,
to the extent known by a responsible officer thereof, in ▇▇▇▇▇-compatible
format, or in such other form as otherwise agreed upon by the Trustee
and the
Depositor and such party, the form and substance of any Additional Form 10-D
Disclosure, if applicable, and (ii) the Depositor will approve, as to form
and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. Subject to the foregoing, the Trustee has
no
duty under this Agreement to monitor or enforce the performance by the other
parties listed on Exhibit M of their duties under this paragraph or to
proactively solicit or procure from such parties any Additional Form 10-D
Disclosure information. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
Section.
(C)
After
preparing the Form 10-D, the Trustee shall forward electronically a copy of
the
Form 10-D to the Depositor (in the case of any Additional 10-D Disclosure and
otherwise if requested by the Depositor) and the Master Servicer for review.
Within
two Business Days after receipt of such copy, but no later than the 12th
calendar day after the Distribution Date (provided that, the Trustee forwards
a
copy of the Form 10-D no later than the 10th
calendar
after the Distribution Date), the Depositor shall notify the Trustee in writing
(via email to ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇) of any changes to or approval of such
Form
10-D. In the absence of receipt of any written changes or approval, the Trustee
shall be entitled to assume that such Form 10-D is in final form and the Trustee
may proceed with the execution and filing of the Form 10-D. No later than two
(2) Business Days prior to the 15th calendar day after the related Distribution
Date, a duly authorized officer of the Master Servicer shall sign the Form
10-D
and return an electronic or fax copy of such signed Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Trustee. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Trustee shall follow the procedures set forth in Section 3.18(a)(v)(B).
Promptly (but no later than one (1) Business Day) after filing with the
Commission, the Trustee shall make available on its internet website identified
in Section 6.05 a final executed copy of each Form 10-D filed by the Trustee.
The signing party at the Master Servicer can be contacted as set forth in
Section 11.07. Form 10-D requires the registrant to indicate (by checking “yes”
or “no”) that it (1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been
subject to such filing requirements for the past 90 days. The Depositor shall
notify the Trustee in writing, no later than the fifth calendar day after the
related Distribution Date with respect to the filing of a report on Form 10-D,
if the answer to the questions should be “no”. The Trustee shall be entitled to
rely on the representations in Section 2.06(g) or any such notice in preparing,
executing and/or filing any such report. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Trustee of
their
respective duties under Sections 3.18(a)(i) and (v) related to the timely
preparation, execution and filing of Form 10-D is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under such Sections. Neither the Master Servicer nor the Trustee shall have
any
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare, execute and/or timely file such Form 10-D,
where such failure results from a party’s failure to deliver on a timely basis,
any information from such party needed to prepare, arrange for execution or
file
such Form 10-D, not resulting from its own negligence, bad faith or willful
misconduct.
(ii)
(A)
Within four (4) Business Days after the occurrence of an event requiring
disclosure on Form 8-K (each such event, a “Reportable Event”), the Trustee
shall prepare and file, at the direction of the Depositor, on behalf of the
Trust, any Form 8-K, as required by the Exchange Act; provided that, the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be, pursuant to the paragraph immediately below, reported by
the parties set forth on Exhibit M to the Trustee and the Depositor and approved
for inclusion by the Depositor, and the Trustee will have no duty or liability
for any failure hereunder to determine or prepare any Form 8-K Disclosure
Information absent such reporting (other than with respect to when it is the
reporting party as set forth in Exhibit M) and approval.
(B)
For
so long as the Trust is subject to the Exchange Act reporting requirements,
no
later than the close of business on the 2nd Business Day after the occurrence
of
a Reportable Event (i) the parties set forth in Exhibit M shall be required
pursuant to Section 3.18(a)(iv) below to provide, and the Master Servicer will
enforce the obligations of each Servicer (to the extent provided in the related
Servicing Agreement) to provide to the Trustee and the Depositor, to the extent
known by a responsible officer thereof, in ▇▇▇▇▇-compatible format, or in such
other form as otherwise agreed upon by the Trustee and the Depositor and such
party, the form and substance of any Form 8-K Disclosure Information, if
applicable, and (ii) the Depositor shall approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Form 8-K Disclosure Information on Form 8-K pursuant to this
Section.
(C)
After
preparing the Form 8-K, the Trustee shall forward electronically a copy of
the
Form 8-K to the Depositor and the Master Servicer for review. No later than
the
close of business New York City time on the 3rd Business Day after the
Reportable Event, a duly authorized officer of the Master Servicer shall sign
the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with
an original executed hard copy to follow by overnight mail) to the Trustee.
Promptly, but no later than the close of business on the 3rd Business Day after
the Reportable Event (provided that, the Trustee forwards a copy of the Form
8-K
no later than noon New York time on the third Business Day after the Reportable
Event), the Depositor shall notify the Trustee in writing via email to
▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ of any changes to or approval of such Form 8-K. In the
absence of receipt of any written changes or approval, the Trustee shall be
entitled to assume that such Form 8-K is in final form and the Trustee may
proceed with the execution and filing of the Form 8-K. If a Form 8-K cannot
be
filed on time or if a previously filed Form 8-K needs to be amended, the Trustee
shall follow the procedures set forth in Section 3.18(a)(v)(B). Promptly (but
no
later than one (1) Business Day) after filing with the Commission, the Trustee
shall, make available on its internet website a final executed copy of each
Form
8-K filed by the Trustee. The signing party at the Master Servicer can be
contacted as set forth in Section 11.07. The parties to this Agreement
acknowledge that the performance by Master Servicer and the Trustee of their
respective duties under this Section 3.18(a)(ii) related to the timely
preparation, execution and filing of Form 8-K is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section 3.18(a)(ii). Neither the Master Servicer nor the Trustee
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 8-K, where such failure results from a party’s failure to deliver on a
timely basis, any information from such party needed to prepare, arrange for
execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
(iii)
(A)
Within 90 days after the end of each fiscal year of the Trust or such earlier
date as may be required by the Exchange Act (the “Form 10-K Filing Deadline”)
(it being understood that the fiscal year for the Trust ends on December 31st
of
each year), commencing in March 2008, the Trustee shall prepare and file on
behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each
such
Form 10-K shall include the following items, in each case to the extent they
have been delivered to the Trustee within the applicable time frames set forth
in this Agreement, (I) an annual compliance statement for each
Servicer, the Master
Servicer, the Trustee and any subservicer or subcontractor, as applicable,
as
described under Section 3.16, (II)(A) the annual reports on assessment of
compliance with Servicing Criteria for each Servicer, the Master Servicer,
each
subservicer and subcontractor participating in the servicing function, the
Trustee and the Custodian, as described under Section 3.17, and (B) if any
such
report on assessment of compliance with Servicing Criteria described under
Section 3.17 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such report on assessment
of compliance with Servicing Criteria described under Section 3.17 is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, (III)(A) the
registered public accounting firm attestation report for each Servicer, the
Master Servicer, the Trustee, each subservicer, each subcontractor, as
applicable, and the Custodian, as described under Section 3.17, and (B) if
any
registered public accounting firm attestation report described under Section
3.17 identifies any material instance of noncompliance, disclosure identifying
such instance of noncompliance, or if any such registered public accounting
firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (IV) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as described in Section 3.18
(a)(iii)(D) below (provided, however, that the Trustee may omit from the Form
10-K any annual compliance statement, assessment of compliance or attestation
report that is not required to be filed with such Form 10-K pursuant to
Regulation AB). Any
disclosure or information in addition to (I) through (IV) above that is required
to be included on Form 10-K (“Additional Form 10-K Disclosure”) shall be,
pursuant to the paragraph immediately below, reported by the parties set forth
on Exhibit M to the Trustee and the Depositor and approved for inclusion by
the
Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure absent
such reporting (other than in the case where the Trustee is the reporting party
as set forth in Exhibit M) and approval.
(B)
No
later than March 15th
of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2008, (i) the parties set forth in Exhibit M shall be required
to
provide, and the Master Servicer shall enforce the obligations of each Servicer
(to the extent provided in the related Servicing Agreement) to provide, pursuant
to Section 3.18(a)(iv) below to the Trustee and the Depositor, to the extent
known by a responsible officer thereof, in ▇▇▇▇▇-compatible format, or in such
other form as otherwise agreed upon by the Trustee and the Depositor and such
party, the form and substance of any Additional Form 10-K Disclosure, if
applicable, and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
Section.
(C)
After
preparing the Form 10-K, the Trustee shall forward electronically a copy of
the
Form 10-K to the Depositor (only in the case where such Form 10-K includes
Additional Form 10-K Disclosure and otherwise if requested by the Depositor)
and
the Master Servicer for review. Within three Business Days after receipt of
such
copy, but no later than March 25th
(provided that, the Trustee forwards a copy of the Form 10-K no later than
four
Business Days after March 15th), the Depositor shall notify the Trustee in
writing (which may be furnished electronically) of any changes to or approval
of
such Form 10-K. In the absence of receipt of any written changes or approval,
the Trustee shall be entitled to assume that such Form 10-K is in final form
and
the Trustee may proceed with the execution and filing of the Form 10-K. No
later
than the close of business Eastern Standard time on the 4th Business Day prior
to the Form 10-K Filing Deadline, an officer of the Master Servicer in charge
of
the master servicing function shall sign the Form 10-K and return an electronic
or fax copy of such signed Form 10-K (with an original executed hard copy to
follow by overnight mail) to the Trustee. If a Form 10-K cannot be filed on
time
or if a previously filed Form 10-K needs to be amended, the Trustee will follow
the procedures set forth in Section 3.18(a)(v)(B). Promptly (but no later than
one (1) Business Day) after filing with the Commission, the Trustee shall make
available on its internet website a final executed copy of each Form 10-K filed
by the Trustee. The signing party at the Master Servicer can be contacted
as
set forth in Section 11.07.
Form
10-K requires the registrant to indicate (by checking “yes ” or “no”) that it
(1) has filed all reports required to be filed by Section 13 or 15(d) of the
Exchange Act during the preceding 12 months (or for such shorter period that
the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days. The Depositor shall notify the Trustee
in writing, no later than the 15th calendar day in March of each year in which
the Trust is subject to the reporting requirements of the Exchange Act with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no”. The Trustee shall be entitled to rely on the representations in
Section 2.06(g) or any such notice in preparing, executing and/or filing any
such report. The parties to this Agreement acknowledge that the performance
by
the Master Servicer and the Trustee of their respective duties under Sections
3.18(a)(iii) and (iv) related to the timely preparation, execution and filing
of
Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under such Sections and Sections
3.16 and Section 3.17. Neither the Master Servicer nor the Trustee shall have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-K, where such failure results from the Master Servicer’s or the Trustee’s
inability or failure to receive, on a timely basis, any information from any
other party hereto needed to prepare, arrange for execution or file such Form
10-K, not resulting from its own negligence, bad faith or willful misconduct.
(D)
Each
Form 10-K shall include a certification (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification”)
required to be included therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act which
shall
be signed by the Certifying Person and delivered to the Trustee no later than
March 15th
of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act. The Master Servicer shall cause any Servicer, and any subservicer or
subcontractor engaged by it to, provide to the Person who signs the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the “Certifying Person”), by March 15th of each
year in which the Trust is subject to the reporting requirements of the Exchange
Act (or such other date specified in the related Servicing Agreement) and
otherwise within a reasonable period of time upon request, a certification
(each, a “Back-Up Certification”), in the form attached hereto as Exhibit K,
upon which the Certifying Person, the entity for which the Certifying Person
acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification Parties”) can
reasonably rely. An officer of the Master Servicer in charge of the master
servicing function shall serve as the Certifying Person on behalf of the Trust.
Such officer of the Certifying Person can be contacted as set forth in Section
11.07. In
connection with the filing of any Form 10-K hereunder, the Trustee shall sign
a
Back-Up Certification substantially in the form of Exhibit Q; provided, however,
that the Trustee shall not be required to undertake an analysis of any
accountant’s report attached as an exhibit to the Form 10-K. In
the
event the Trustee is terminated or resigns pursuant to the terms of this
Agreement or any subcontractor or subservicer is terminated pursuant to the
related servicing agreement, the Trustee, subcontractor or subservicer, as
applicable, shall provide a Back-Up Certification to the Certifying Person
pursuant to this Section 3.18(b) with respect to the period of time it was
subject to this Agreement or the related servicing agreement, as
applicable.
(iv)
With
respect to any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure
or any Form 8-K Disclosure Information (collectively, the “Additional
Disclosure”) relating to the Trust Fund, the Trustee’s obligation to include
such Additional Information in the applicable Exchange Act report is subject
to
receipt from the entity that is indicated in Exhibit M as the responsible party
for providing that information, if other than the Trustee, as and when required
as described in Section 3.18(a)(i) through (iii) above. Such Additional
Disclosure shall be accompanied by a notice substantially in the form of Exhibit
N. Each of the Master Servicer, the Seller, the Trustee, the Custodian and
the
Depositor hereby agrees to notify and provide, and the Master Servicer agrees
to
enforce the obligations (to the extent provided in the related Servicing
Agreement) of each Servicer to notify and provide, to the extent known to the
Trustee and the Depositor all Additional Disclosure relating to the Trust Fund,
with respect to which such party is indicated in Exhibit M as the responsible
party for providing that information. The Depositor shall be responsible for
any
reasonable fees and expenses assessed or incurred by the Trustee in connection
with including any Additional Disclosure information pursuant to this
Section.
(v)
(A)
On or prior to January 30th of the first year in which the Trustee is able
to do
so under applicable law, the Trustee shall prepare and file a Form 15 relating
to the automatic suspension of reporting in respect of the Trust under the
Exchange Act.
(B)
In
the event that the Trustee is unable to timely file with the Commission all
or
any required portion of any Form 8-K, 10-D or 10-K required to be filed by
this
Agreement because required disclosure information was either not delivered
to it
or delivered to it after the delivery deadlines set forth in this Agreement
or
for any other reason, the Trustee shall promptly notify the Depositor and the
Master Servicer. In the case of Form 10-D and Form 10-K, the Depositor, the
Master Servicer and the Trustee shall cooperate to prepare and file a Form
12b-25 and a 10-DA and 10-KA as applicable, pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Trustee will, upon receipt of all
required Form 8-K Disclosure Information and upon the approval and direction
of
the Depositor, include such disclosure information on the next Form 10-D. In
the
event that any previously filed Form 8-K, 10-D or 10-K needs to be amended,
and
such amendment relates to any Additional Disclosure, the Trustee shall notify
the Depositor and the parties affected thereby and such parties will cooperate
to prepare any necessary Form 8-K, 10-DA or 10-KA. Any Form 15, Form 12b-25
or
any amendment to Form 8-K, 10-D or 10-K shall be signed by an appropriate
officer of the Master Servicer. The parties hereto acknowledge that the
performance by the Master Servicer and the Trustee of their respective duties
under this Section 3.18(a)(v) related to the timely preparation, execution
and
filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
is
contingent upon the Master Servicer and the Depositor timely performing their
duties under this Section. Neither the Master Servicer nor the Trustee shall
have any liability for any loss, expense, damage or claim arising out of or
with
respect to any failure to properly prepare, execute and/or timely file any
such
Form 15, Form 12b-25 or any amendments to Form 8-K, 10-D or 10-K, where such
failure results from a party’s failure to deliver on a timely basis, any
information from such party needed to prepare, arrange for execution or file
such Form 15, Form 12b-25 or any amendments to Form 8-K, 10-D or 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
The
Depositor agrees to promptly furnish to the Trustee, from time to time upon
request, such further information, reports and financial statements within
its
control related to this Agreement, the Mortgage Loans as the Trustee reasonably
deems appropriate to prepare and file all necessary reports with the Commission.
The Trustee shall have no responsibility to file any items other than those
specified in this Section 3.18; provided, however, the Trustee shall cooperate
with the Depositor in connection with any additional filings with respect to
the
Trust Fund as the Depositor deems necessary under the Exchange Act. Copies
of
all reports filed by the Trustee under the Exchange Act shall be available
on
the Trustee’s website initially located at ▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇. Fees and expenses
incurred by the Trustee in connection with this Section 3.18 shall not be
reimbursable from the Trust Fund.
(b) The
Trustee shall indemnify and hold harmless the Depositor and the Master Servicer
and each of its officers, directors and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Trustee’s obligations under Sections 3.16, 3.17 and 3.18 or
the Trustee’s negligence, bad faith or willful misconduct in connection
therewith. In addition, the Trustee shall indemnify and hold harmless the
Depositor and the Master Servicer and each of their respective officers,
directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other reasonable costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in
any Back-Up Certification, any Annual Statement of Compliance, any Assessment
of
Compliance or any Additional Disclosure provided by the Trustee on its behalf
or
on behalf of any subservicer or subcontractor engaged by the Trustee pursuant
to
Section 3.16, 3.17 or 3.18 (the
“Trustee Information”), or (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstances in which they were made,
not
misleading; provided, by way of clarification, that this paragraph shall be
construed solely by reference to the Trustee Information and not to any other
information communicated in connection with the Certificates, without regard
to
whether the Trustee Information or any portion thereof is presented together
with or separately from such other information.
The
Depositor shall indemnify and hold harmless the Trustee and the Master Servicer
and each of its officers, directors and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the obligations of the Depositor under Sections 3.16, 3.17
and
3.18 or the Depositor’s negligence, bad faith or willful misconduct in
connection therewith. In addition, the Depositor shall indemnify and hold
harmless the Master Servicer, the Trustee and each of their respective officers,
directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other reasonable costs and expenses arising out of or based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
in
any Additional Disclosure provided by the Depositor that is required to be
filed
pursuant to this Section 3.18 (the
“Depositor Information”),
or
(ii)
any omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, by way of
clarification, that this paragraph shall be construed solely by reference to
the
Depositor Information that is required to be filed and not to any other
information communicated in connection with the Certificates, without regard
to
whether the Depositor Information or any portion thereof is presented together
with or separately from such other information.
The
Master Servicer shall indemnify and hold harmless the Trustee and the Depositor
and each of its respective officers, directors and affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other reasonable costs and expenses
arising out of or based upon a breach of the obligations of the Master Servicer
under Sections 3.16, 3.17 and 3.18 or the Master Servicer’s negligence, bad
faith or willful misconduct in connection therewith. In addition, the Master
Servicer shall indemnify and hold harmless the Depositor and each of its
officers, directors and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon
(i)
any untrue statement or alleged untrue statement of any material fact contained
in any Annual Statement of Compliance, any Assessment of Compliance, any
Attestation Report or any Additional Disclosure or other information provided
by
the Master Servicer on its behalf or on behalf of any subservicer or
subcontractor engaged by the Master Servicer pursuant to Section 3.16, 3.17
or
3.18 (the
“Master Servicer Information”), or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make
the statements therein, in light of the circumstances in which they were made,
not misleading; provided, by way of clarification, that this paragraph shall
be
construed solely by reference to the Master Servicer Information and not to
any
other information communicated in connection with the Certificates, without
regard to whether the Master Servicer Information or any portion thereof is
presented together with or separately from such other information.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, the Trustee or the Master Servicer, as applicable,
then
the defaulting party, in connection with any conduct for which it is providing
indemnification under this Section 3.18(c), agrees that it shall contribute
to
the amount paid or payable by the other parties as a result of the losses,
claims, damages or liabilities of the other party in such proportion as is
appropriate to reflect the relative fault and the relative benefit of the
respective parties.
The
indemnification provisions set forth in this Section 3.18(c) shall survive
the
termination of this Agreement or the termination of any party to this
Agreement.
(c) Failure
of the Master Servicer to comply with this Section 3.18 (including with respect
to the timeframes required herein) shall, constitute an Event of Default, and
at
the written direction of the Depositor the Trustee shall, in addition to
whatever rights the Trustee may have under this Agreement and at law or equity
or to damages, including injunctive relief and specific performance, upon notice
immediately terminate all of the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Master Servicer for the same (but subject to the Master
Servicer’s rights to payment of any Master Servicing Compensation and
reimbursement of all amounts for which it is entitled to be reimbursed prior
to
the date of termination). Failure of the Trustee to comply with this Section
3.18 (including with respect to the timeframes required in this Section) which
failure results in a failure to timely file the related Form 10-K, shall be
deemed a default which may result in the termination of the Trustee pursuant
to
Section 9.08 of this Agreement and the Depositor may, in addition to whatever
rights the Depositor may have under this Agreement and at law or equity or
to
damages, including injunctive relief and specific performance, upon notice
immediately terminate all of the rights and obligations of the Trustee under
this Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Trustee for the same (but subject to the Trustee’s right to
reimbursement of all amounts for which it is entitled to be reimbursed prior
to
the date of termination). This paragraph shall supersede any other provision
in
this Agreement or any other agreement to the contrary. In connection with the
termination of the Master Servicer pursuant to this Section 3.18(d), the Trustee
shall be entitled to reimbursement of all costs and expenses associated with
such termination to the extent set forth in Section 9.05. Notwithstanding
anything to the contrary in this Agreement, no Event of Default by the Master
Servicer or default by the Trustee shall have occurred with respect to any
failure to properly prepare, execute and/or timely file any report on Form
8-K,
Form 10-D or Form 10-K, any Form 15 or Form 12b-25 or any amendments to Form
8-K, 10-D or 10-K, where such failure results from any party’s failure to
deliver on a timely basis, any information from such party needed to prepare,
arrange for execution or file any such report, Form or amendment, and does
not
result from its own negligence, bad faith or willful misconduct.
(d) Notwithstanding
the provisions of Section 11.02, this Section 3.18 may be amended without the
consent of the Certificateholders.
(e) Any
report, notice or notification to be delivered by the Master Servicer or the
Trustee to the Depositor pursuant to this Section 3.18, may be delivered via
email to or,
in
the case of a notification, telephonically by calling Reg AB Compliance Manager
at (▇▇▇) ▇▇▇-▇▇▇▇.
Section
3.19 Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.16, 3.17
and
3.18 of this Agreement is to facilitate compliance by the Seller, the Depositor
and the Master Servicer with the provisions of Regulation AB. Therefore, each
of
the parties agrees that (a) the obligations of the parties hereunder shall
be
interpreted in such a manner as to accomplish that purpose, (b) the parties’
obligations hereunder will be supplemented and modified as necessary to be
consistent with any such amendments, interpretive advice or guidance, convention
or consensus among active participants in the asset-backed securities markets,
advice of counsel, or otherwise in respect of the requirements of Regulation
AB,
(c) the parties shall comply with reasonable requests made by the Seller, the
Depositor, the Master Servicer or the Trustee for delivery of additional or
different information as the Seller, the Depositor, the Master Servicer or
the
Trustee may determine in good faith is necessary to comply with the provisions
of Regulation AB and (d) no amendment of this Agreement shall be required to
effect any such changes in the obligations of the parties to this transaction
as
are necessary to accommodate evolving interpretations of the provisions of
Regulation AB.
Section
3.20 UCC.
The
Depositor shall inform the Trustee in writing of any Uniform Commercial Code
financing statements that were filed on the Closing Date in connection with
the
Trust with stamped recorded copies of such financing statements to be delivered
to the Trustee promptly upon receipt by the Depositor. If directed by the
Depositor in writing, the Trustee will file any continuation statements solely
at the expense of the Depositor. The Depositor shall file any financing
statements or amendments thereto required by any change in the Uniform
Commercial Code.
Section
3.21 Optional
Purchase of Defaulted Mortgage Loans.
(a) With
respect to any Mortgage Loan which as of the first day of a Fiscal Quarter
is
delinquent in payment by 90 days or more or is an REO Property, the Seller
shall
have the right to purchase such Mortgage Loan from the Trust at a price equal
to
the Purchase Price; provided however (i) that such Mortgage Loan is still 90
days or more delinquent or is an REO Property as of the date of such purchase
and (ii) this purchase option, if not theretofore exercised, shall terminate
on
the date prior to the last day of the related Fiscal Quarter. This purchase
option, if not exercised, shall not be thereafter reinstated unless the
delinquency is cured and the Mortgage Loan thereafter again becomes 90 days
or
more delinquent or becomes an REO Property, in which case the option shall
again
become exercisable as of the first day of the related Fiscal Quarter. This
right
may be assigned by the Seller to a third party, including a holder of a Class
of
Certificates.
EMC
may,
at its option, purchase any Mortgage Loan from the Issuing Entity for which
the
first Scheduled Payment due to the Issuing Entity after the Closing Date becomes
thirty days past due; provided, however, such Mortgage Loan was purchased by
EMC
or one of its affiliates from an originator pursuant to a loan purchase
agreement that obligated such originator to repurchase such Mortgage Loan if
one
or more Scheduled Payments becomes 30 or more days Delinquent (and such
originator has agreed to repurchase such Mortgage Loan). Such purchase shall
be
made at a price equal to 100% of the Stated Principal Balance thereof plus
accrued interest thereon at the applicable mortgage rate, from the date through
which interest was last paid by the related mortgagor or advanced to the first
day of the month in which such amount is to be distributed.
(b) If
at any
time the Seller remits to the Master Servicer a payment for deposit in the
Master
Servicer Collection Account covering
the amount of the Purchase Price for such a Mortgage Loan, and the Seller
provides to the Trustee a certification signed by a Servicing Officer stating
that the amount of such payment has been deposited in the Master
Servicer Collection Account,
then
the Trustee shall execute the assignment of such Mortgage Loan prepared and
delivered to the Trustee, at the request of the Seller, without recourse,
representation or warranty, to the Seller which shall succeed to all of the
Trustee’s right, title and interest in and to such Mortgage Loan, and all
security and documents relative thereto. Such assignment shall be an assignment
outright and not for security. The Seller will thereupon own such Mortgage,
and
all such security and documents, free of any further obligation to the Trustee
or the Certificateholders with respect thereto.
ARTICLE
IV
Accounts
Section
4.01 Protected
Accounts.
(a) The
Master Servicer shall enforce the obligation of each Servicer to establish
and
maintain a Protected Account in accordance with the applicable Servicing
Agreement, with records to be kept with respect thereto on a Mortgage Loan
by
Mortgage Loan basis, into which accounts shall be deposited within two Business
Days (or as of such other time specified in the related Servicing Agreement)
of
receipt and identification, all collections of principal and interest on any
Mortgage Loan and any REO Property received by a Servicer, including Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds, Subsequent Recoveries
and
advances made from the Servicer’s own funds (less servicing compensation as
permitted by the applicable Servicing Agreement in the case of any Servicer)
and
all other amounts to be deposited in the applicable Protected Account. Each
Servicer is hereby authorized to make withdrawals from and deposits to the
applicable Protected Account for purposes required or permitted by this
Agreement. Reconciliations will be prepared for the Protected Accounts within
45
calendar days after the bank statement cut-off date. To the extent provided
in
the related Servicing Agreement, the related Protected Account shall be held
by
a Designated Depository Institution and segregated on the books of such
institution in the name of the Trustee for the benefit of Holders of the
Certificates.
(b) To
the
extent provided in the related Servicing Agreement, amounts on deposit in a
Protected Account may be invested in Permitted Investments in the name of the
Trustee for the benefit of Holders of the Certificates and, except as provided
in the preceding paragraph, not commingled with any other funds. Such Permitted
Investments shall mature, or shall be subject to redemption or withdrawal,
no
later than the date on which such funds are required to be withdrawn for deposit
in the Master Servicer Collection Account, and shall be held until required
for
such deposit. The income earned from Permitted Investments made pursuant to
this
Section 4.01 shall be paid to the related Servicer under the applicable
Servicing Agreement, and the risk of loss of moneys required to be distributed
to the Holders of the Certificates resulting from such investments shall be
borne by and be the risk of the related Servicer. The related Servicer (to
the
extent provided in the applicable Servicing Agreement) shall deposit the amount
of any such loss in the related Protected Account within two Business Days
of
receipt of notification of such loss but not later than the second Business
Day
prior to the Distribution Date on which the moneys so invested are required
to
be distributed to the Holders of the Certificates.
(c) To
the
extent provided in the related Servicing Agreement and subject to this Article
IV, on or before each Servicer Remittance Date, the related Servicer shall
withdraw or shall cause to be withdrawn from its Protected Account and shall
immediately deposit or cause to be deposited in the Master Servicer Collection
Account amounts representing the following collections and payments (other
than
with respect to principal of or interest on the Mortgage Loans due on or before
the Cut-off Date):
(i) Scheduled
Payments on the Mortgage Loans received or any related portion thereof advanced
by such Servicer pursuant to its Servicing Agreement which were due on or before
the related Due Date, net of the amount thereof comprising its Servicing Fee
or
any fees with respect to any lender-paid primary mortgage insurance
policy;
(ii) Full
Principal Prepayments received by such Servicer with respect to the Mortgage
Loans in the related Prepayment Period, with interest to the date of prepayment,
net of the amount thereof comprising its Servicing Fee;
(iii) Liquidation
Proceeds or Subsequent Recoveries received by such Servicer with respect to
the
Mortgage Loans during the related calendar month;
(iv) Partial
Principal Prepayments received by such Servicer for the Mortgage Loans in the
related Prepayment Period; and
(v) Any
amount to be used as a Monthly Advance and any Compensating Interest
Payments.
(d) Withdrawals
may be made from an Account only to make remittances as provided in Sections
4.01(c), 4.02 and 4.03; to reimburse the Master Servicer or a Servicer for
Monthly Advances which have been recovered by subsequent collections from the
related Mortgagor; to remove amounts deposited in error; to remove fees, charges
or other such amounts deposited on a temporary basis; or to clear and terminate
the account at the termination of the Trust Fund in accordance with Section
10.01. As provided in Sections 4.01(a) and 4.02(b) certain amounts otherwise
due
to the Servicers may be retained by them and need not be deposited in the Master
Servicer Collection Account.
Section
4.02 Master
Servicer Collection Account.
(a) The
Master Servicer shall establish and maintain in the name of the Trustee, for
the
benefit of the Holders of the Certificates, the Master Servicer Collection
Account as a segregated trust account or accounts. The Master Servicer
Collection Account shall be an Eligible Account. The Master Servicer will
deposit in the Master Servicer Collection Account as identified by the Master
Servicer and as received by the Master Servicer, the following
amounts:
(i) Any
amounts withdrawn from a Protected Account for deposit into the Master Servicer
Collection Account in accordance with the related Servicing
Agreement;
(ii) Any
Monthly Advance and any Compensating Interest Payments;
(iii) Any
Insurance Proceeds or Net Liquidation Proceeds or Subsequent Recoveries received
by or on behalf of the Master Servicer or which were not deposited in a
Protected Account;
(iv) The
Purchase Price with respect to any Mortgage Loans purchased by the Seller
pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03
hereof, any amounts which are to be treated pursuant to Section 2.04 of this
Agreement as the payment of a Purchase Price in connection with the tender
of a
Substitute Mortgage Loan by the Seller, the Purchase Price with respect to
any
Mortgage Loans purchased by the Company pursuant to Section 3.21, and all
proceeds of any Mortgage Loans or property acquired with respect thereto
repurchased by the Depositor or its designee pursuant to Section
10.01;
(v) Any
amounts required to be deposited with respect to losses on investments of
deposits in an Account; and
(vi) Any
other
amounts received by or on behalf of the Master Servicer and required to be
deposited in the Master Servicer Collection Account pursuant to this
Agreement.
(b) All
amounts deposited to the Master Servicer Collection Account shall be held by
the
Master Servicer in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Master Servicer Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of (i) prepayment or late
payment charges or assumption, tax service, statement account or payoff,
substitution, satisfaction, release and other like fees and charges and (ii)
the
items enumerated in Subsections 4.05(a)(i), (ii), (iii), (iv), (vi), (vii),
(viii), (ix), (x), (xi), (xii) and (xiii), need not be credited by the Master
Servicer or the related Servicer to the Distribution Account or the Master
Servicer Collection Account, as applicable. Reconciliations will be prepared
for
the Master Servicing Collection Account within 45 calendar days after the bank
statement cut-off date. In the event that the Master Servicer shall deposit
or
cause to be deposited to the Distribution Account any amount not required to
be
credited thereto, the Trustee, upon receipt of a written request therefor signed
by a Servicing Officer of the Master Servicer, shall promptly transfer such
amount to the Master Servicer, any provision herein to the contrary
notwithstanding.
(c) The
amount at any time credited to the Master Servicer Collection Account may be
invested, in the name of the Trustee, or its nominee, for the benefit of the
Certificateholders, in Permitted Investments as directed by Master Servicer.
All
Permitted Investments shall mature or be subject to redemption or withdrawal
on
or before, and shall be held until, the next succeeding Distribution Account
Deposit Date. Any and all investment earnings on amounts on deposit in the
Master
Servicer Collection Account
from
time to time shall be for the account of the Master Servicer. The Master
Servicer from time to time shall be permitted to withdraw or receive
distribution of any and all investment earnings from the Master Servicer
Collection Account. The risk of loss of moneys required to be distributed to
the
Certificateholders resulting from such investments shall be borne by and be
the
risk of the Master Servicer. The Master Servicer shall deposit the amount of
any
such loss in the Master Servicer Collection Account within two Business Days
of
receipt of notification of such loss but not later than the second Business
Day
prior to the Distribution Date on which the moneys so invested are required
to
be distributed to the Certificateholders.
Section
4.03 Permitted
Withdrawals and Transfers from the Master Servicer Collection
Account.
(a) The
Master Servicer will, from time to time on demand of a Servicer or the Trustee,
make or cause to be made such withdrawals or transfers from the Master Servicer
Collection Account as the Master Servicer has designated for such transfer
or
withdrawal pursuant to this Agreement and the related Servicing Agreement.
The
Master Servicer may clear and terminate the Master Servicer Collection Account
pursuant to Section 10.01 and remove amounts from time to time deposited in
error.
(b) On
an
ongoing basis, the Master Servicer shall withdraw from the Master Servicer
Collection Account (i) any expenses, costs and liabilities recoverable by the
Trustee, the Master Servicer or the Custodian pursuant to Sections 3.03, 7.03
and 9.05 and (ii) any amounts payable to the Master Servicer as set forth in
Section 3.14; provided however, that the Master Servicer shall be obligated
to
pay from its own funds any amounts which it is required to pay under Section
7.03(a).
(c) In
addition, on or before each Distribution Account Deposit Date, the Master
Servicer shall deposit in the Distribution Account (or remit to the Trustee
for
deposit therein) any Monthly Advances required to be made by the Master Servicer
with respect to the Mortgage Loans.
(d) No
later
than noon New York time on each Distribution Account Deposit Date, the Master
Servicer will transfer all Available Funds on deposit in the Master Servicer
Collection Account with respect to the related Distribution Date to the Trustee
for deposit in the Distribution Account.
Section
4.04 Distribution
Account.
(a) The
Trustee shall establish and maintain in the name of the Trustee, for the benefit
of the Certificateholders, the Distribution Account as a segregated trust
account or accounts.
(b) The
Distribution Account shall be an Eligible Account. The Trustee shall deposit
in
the Distribution Account the following amounts:
(i) Any
amounts withdrawn from the Master Servicer Collection Account and remitted
by
the Master Servicer for deposit into the Distribution
Account;
(ii) Any
Monthly Advance;
(iii) Any
Compensating Interest Payments paid by the applicable Servicer;
(iv) Any
Insurance Proceeds or Net Liquidation Proceeds or Subsequent Recoveries received
by or on behalf of the Master Servicer;
(v) The
Purchase Price with respect to any Mortgage Loans purchased by the Seller
pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03
hereof, any amounts which are to be treated pursuant to Section 2.04 of this
Agreement as the payment of a Purchase Price in connection with the tender
of a
Substitute Mortgage Loan by the Seller, the Purchase Price with respect to
any
Mortgage Loans purchased by the Seller pursuant to Section 3.21, and all
proceeds of any Mortgage Loans or property acquired with respect thereto
repurchased by the Depositor or its designee pursuant to Section
10.01;
(vi) Any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(vii) Any
other
amounts received by or on behalf of the Trustee and required to be deposited
in
the Distribution Account pursuant to this Agreement.
(c) All
amounts deposited to the Distribution Account shall be held by the Trustee
in
the name of the Trustee in trust for the benefit of the Certificateholders
in
accordance with the terms and provisions of this Agreement. In the event that
the Master Servicer shall deposit or remit for deposit to the Distribution
Account any amount not required to be credited thereto, the Trustee, upon
receipt of a written request therefor signed by a Servicing Officer of the
Master Servicer, shall promptly transfer such amount to the Master Servicer,
any
provision herein to the contrary notwithstanding.
(d) The
Distribution Account shall constitute a trust account of the Trust Fund
segregated on the books of the Trustee and held by the Trustee in trust in
its
Corporate Trust Office, and the Distribution Account and the funds deposited
therein shall not be subject to, and shall be protected from, all claims, liens,
and encumbrances of any creditors or depositors of the Trustee or the Master
Servicer (whether made directly, or indirectly through a liquidator or receiver
of the Trustee or the Master Servicer). The Distribution Account shall be an
Eligible Account. The amount at any time credited to the Distribution Account
shall be
(i) held in cash and fully insured by the FDIC to the maximum coverage provided
thereby or (ii) invested in the name of the Trustee, in such Permitted
Investments as may be selected by the Trustee or deposited in demand deposits
with such depository institutions as may be selected by the Trustee, provided
that time deposits of such depository institutions would be a Permitted
Investment. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Date if the obligor for such Permitted Investment is the Trustee
or, if such obligor is any other Person, the Business Day preceding such
Distribution Date. All investment earnings on amounts on deposit in the
Distribution Account or benefit from funds uninvested therein from time to
time
shall be for the account of the Trustee. The Trustee shall be permitted to
withdraw or receive distribution of any and all investment earnings from the
Distribution Account on each Distribution Date. If there is any loss on a
Permitted Investment or demand deposit, the Trustee shall deposit such amount
in
the Distribution Account.
With
respect to the Distribution Account and the funds deposited therein, the Master
Servicer shall take such action as may be necessary to ensure that the related
Certificateholders shall be entitled to the priorities afforded to such a trust
account (in addition to a claim against the estate of the Trustee) as provided
by 12 U.S.C. § 92a(e), and applicable regulations pursuant thereto, if
applicable, or any applicable comparable state statute applicable to state
chartered banking corporations.
Section
4.05 Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Trustee will, from time to time on written demand of the Master Servicer, make
or cause to be made such withdrawals or transfers from the Distribution Account
as the Master Servicer has designated for such transfer or withdrawal pursuant
to this Agreement and the Servicing Agreements or as the Trustee has instructed
hereunder for the following purposes (limited in the case of amounts due the
Master Servicer to those not withdrawn from the Master Servicer Collection
Account in accordance with the terms of this Agreement);
(i) to
reimburse the Master Servicer or any Servicer for any Monthly Advance of its
own
funds, the right of the Master Servicer or a Servicer to reimbursement pursuant
to this subclause (i) being limited to amounts received on a particular Mortgage
Loan (including, for this purpose, the Purchase Price therefor, Insurance
Proceeds, Liquidation Proceeds and Subsequent Recoveries) which represent late
payments or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Monthly Advance was made;
(ii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds or
Liquidation Proceeds relating to a particular Mortgage Loan for amounts expended
by the Master Servicer or such Servicer in good faith in connection with the
restoration of the related Mortgaged Property which was damaged by an Uninsured
Cause or in connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds relating
to a particular Mortgage Loan for insured expenses incurred with respect to
such
Mortgage Loan and to reimburse the Master Servicer or such Servicer from
Liquidation Proceeds from a particular Mortgage Loan for Liquidation Expenses
incurred with respect to such Mortgage Loan; provided that the Master Servicer
shall not be entitled to reimbursement for Liquidation Expenses with respect
to
a Mortgage Loan to the extent that (i) any amounts with respect to such Mortgage
Loan were paid as Excess Liquidation Proceeds pursuant to clause (viii) of
this
Subsection 4.05(a) to the Master Servicer; and (ii) such Liquidation Expenses
were not included in the computation of such Excess Liquidation
Proceeds;
(iv) to
reimburse the Master Servicer or any Servicer for advances of funds (other
than
Monthly Advances) made with respect to the Mortgage Loans, and the right to
reimbursement pursuant to this subclause being limited to amounts received
on
the related Mortgage Loan (including, for this purpose, the Purchase Price
therefor, Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries)
which represent late recoveries of the payments for which such advances were
made;
(v) to
reimburse the Master Servicer or any Servicer for any Monthly Advance or
advance, after a Realized Loss has been allocated with respect to the related
Mortgage Loan if the Monthly Advance or advance has not been reimbursed pursuant
to clauses (i) and (iv);
(vi) to
pay
the Master Servicer as set forth in Section 3.14;
(vii) to
reimburse the Master Servicer for expenses, costs and liabilities incurred
by
and reimbursable to it pursuant to Sections 3.03, 7.04(c) and (d);
(viii) to
pay to
the Master Servicer, as additional servicing compensation, any Excess
Liquidation Proceeds to the extent not retained by the related
Servicer;
(ix) to
reimburse or pay any Servicer any such amounts as are due thereto under the
applicable Servicing Agreement and have not been retained by or paid to the
Servicer, to the extent provided in the related Servicing
Agreement;
(x) to
reimburse the Trustee or the Custodian for expenses, costs and liabilities
incurred by or reimbursable to it pursuant to this Agreement and the Custodial
Agreement;
(xi)
to
pay the Trustee as set forth in Section 9.05;
(xii) to
remove
amounts deposited in error; and
(xiii) to
clear
and terminate the Distribution Account pursuant to Section 10.01.
(b) The
Master Servicer shall keep and maintain separate accounting, on a Mortgage
Loan
by Mortgage Loan basis, for the purpose of accounting for any reimbursement
from
the Distribution Account pursuant to subclauses (i) through (iv) or with respect
to any such amounts which would have been covered by such subclauses had the
amounts not been retained by the Master Servicer without being deposited in
the
Distribution Account under Section 4.04(c).
(c) On
each
Distribution Date, the Trustee shall distribute the Available Funds to the
extent on deposit in the Distribution Account to the Holders of the Certificates
in accordance with Section 6.01.
ARTICLE
V
Certificates
Section
5.01 Certificates.
(a) The
Depository and the Depositor signing on behalf of the Issuing Entity have
entered into a Depository Agreement dated as of the Closing Date (the
“Depository Agreement”). The Non-Offered Certificates (which are also Physical
Certificates) and the Individual Certificates and as provided in Subsection
5.01(b), the Certificates shall at all times remain registered in the name
of
the Depository or its nominee and at all times: (i) registration of such
Certificates may not be transferred by the Trustee except to a successor to
the
Depository; (ii) ownership and transfers of registration of such Certificates
on
the books of the Depository shall be governed by applicable rules established
by
the Depository; (iii) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (iv) the Trustee shall
deal with the Depository as representative of such Certificate Owners of the
respective Class of Certificates for purposes of exercising the rights of the
related Certificateholders under this Agreement, and requests and directions
for
and votes of such representative shall not be deemed to be inconsistent if
they
are made with respect to different Certificate Owners; and (v) the Trustee
may
rely and shall be fully protected in relying upon information furnished by
the
Depository with respect to its Depository Participants.
The
Residual Certificates and the Non-Offered Subordinate Certificates are initially
Physical Certificates. If at any time the Holders of all of the Certificates
of
one or more such Classes request that the Trustee cause such Class to become
Global Certificates, the Trustee and the Depositor will take such action as
may
be reasonably required to cause the Depository to accept such Class or Classes
for trading if it may legally be so traded.
All
transfers by Certificate Owners of such respective Classes of Book-Entry
Certificates and any Global Certificates shall be made in accordance with the
procedures established by the Depository Participant or brokerage firm
representing such Certificate Owners. Each Depository Participant shall only
transfer Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository’s
normal procedures.
(b) If
(i)(A)
the Depositor advises the Trustee in writing that the Depository is no longer
willing or able to properly discharge its responsibilities as Depository and
(B)
the Depositor is unable to locate a qualified successor within 30 days or (ii)
the Depositor at its option advises the Trustee in writing that it elects to
terminate the book-entry system through the Depository, the Trustee shall
request that the Depository notify all Certificate Owners of the occurrence
of
any such event and of the availability of definitive, fully registered
Certificates to Certificate Owners requesting the same. Upon surrender to the
Trustee of the Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall issue
the
definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be protected in relying on, such instructions.
(c) The
Classes of the Certificates shall have the following designations, initial
principal amounts and Pass-Through Rates:
|
Designation
|
Initial
Principal Amount
|
Pass-Through
Rate
|
||||
|
A-1
|
$
|
261,122,000.00
|
6.00
|
%
|
||
|
A-2
|
$
|
20,605,000.00
|
6.00
|
%
|
||
|
A-3
|
$
|
33,190,900.00
|
6.00
|
%
|
||
|
X
|
$
|
(1)
|
(2)
|
|||
|
PO
|
$
|
2,877,159.53
|
0.00
|
%
|
||
|
B-1
|
$
|
5,476,000.00
|
6.00
|
%
|
||
|
B-2
|
$
|
2,987,000.00
|
6.00
|
%
|
||
|
B-3
|
$
|
1,659,000.00
|
6.00
|
%
|
||
|
B-4
|
$
|
1,825,000.00
|
6.00
|
%
|
||
|
B-5
|
$
|
1,328,000.00
|
6.00
|
%
|
||
|
B-6
|
$
|
830,857.53
|
6.00
|
%
|
||
|
R
|
$
|
100.00
|
6.00
|
%
|
||
|
(1)
|
As
described in the definition of Notional Amount
herein.
|
|
(2)
|
The
Class X Certificates will bear interest at a Pass-Through Rate equal
to
weighted average of the excesses, if any, of (a) the Net Mortgage
Rates on
the Mortgage Loans over (b) 6.000% per
annum.
|
(d) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date immediately following the maturity date for the Mortgage
Loan
with the latest maturity date in the Trust Fund has been designated as the
“latest possible maturity date” for the Regular Certificates.
(e) With
respect to each Distribution Date, each Class of Certificates shall accrue
interest during the related Interest Accrual Period. With respect to each
Distribution Date and each such Class of Certificates, interest shall be
calculated on the basis of a 360-day year comprised of twelve 30-day months,
based upon the respective Pass-Through Rate set forth, or determined as
provided, above and the Current Principal Amount (or Notional Amount in the
case
of the Interest Only Certificates) of such Class applicable to such Distribution
Date.
(f) The
Certificates shall be substantially in the forms set forth in Exhibits ▇-▇,
▇-▇,
▇-▇, ▇-▇ or A-5, as applicable. On original issuance, the Trustee shall sign,
countersign and shall deliver them at the direction of the Depositor. Pending
the preparation of Definitive Certificates of any Class, the Trustee may sign
and countersign temporary Certificates that are printed, lithographed or
typewritten, in authorized denominations for Certificates of such Class,
substantially of the tenor of the Definitive Certificates in lieu of which
they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers or authorized signatories executing such
Certificates may determine, as evidenced by their execution of such
Certificates. If temporary Certificates are issued, the Depositor will cause
Definitive Certificates to be prepared without unreasonable delay. After the
preparation of Definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office of the Trustee, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Certificates, the
Trustee shall sign and countersign and deliver in exchange therefor a like
aggregate principal amount, in authorized denominations for such Class, of
Definitive Certificates of the same Class. Until so exchanged, such temporary
Certificates shall in all respects be entitled to the same benefits as
Definitive Certificates.
(g) Each
Class of Book-Entry Certificates will be registered as a single Certificate
of
such Class held by a nominee of the Depository or the DTC Custodian, and
beneficial interests will be held by investors through the book-entry facilities
of the Depository in minimum denominations of (i) in the case of the Senior
Certificates (other than the Class A-2 Certificates and Residual Certificates),
$100,000 and in each case increments of $1.00 in excess thereof, (ii) in the
case of the Class A-2 Certificates, $1,000 and increments of $1.00 in excess
thereof, and (iii) in the case of the Subordinate Certificates, $100,000 and
increments of $1.00 in excess thereof, except that one Certificate of each
such
Class may be issued in a different amount so that the sum of the denominations
of all outstanding Certificates of such Class shall equal the Current Principal
Amount of such Class on the Closing Date. On the Closing Date, the Trustee
shall
execute and countersign Physical Certificates all in an aggregate principal
amount that shall equal the Current Principal Amount of such Class on the
Closing Date. The Non-Offered Certificates shall be issued in certificated
fully-registered form in minimum dollar denominations of $100,000 and integral
multiples of $1.00 in excess thereof, except that one of each of the Non-Offered
Certificates of each Class may be issued in a different amount so that the
sum
of the denominations of all outstanding related Non-Offered Certificates of
such
Class shall equal the Current Principal Amount of such Class on the Closing
Date. The Class R Certificates shall be issued in certificated fully-registered
form, in the denomination of $100. Each Class of Global Certificates, if any,
shall be issued in fully registered form in minimum dollar denominations of
$100,000 and integral multiples of $1.00 in excess thereof, except that one
Certificate of each Class may be in a different denomination so that the sum
of
the denominations of all outstanding Certificates of such Class shall equal
the
Current Principal Amount of such Class on the Closing Date. On the Closing
Date,
the Trustee shall execute and countersign (i) in the case of each Class of
the
Offered Certificates, the Certificate in the entire Current Principal Amount
of
the respective Class and (ii) in the case of each Class of the Non-Offered
Certificates, Individual Certificates all in an aggregate principal amount
that
shall equal the Current Principal Amount of each such respective Class on the
Closing Date. The Certificates referred to in clauses (i) and (ii) and if at
any
time there are to be Global Certificates, the Global Certificates shall be
delivered by the Depositor to the Depository or pursuant to the Depository’s
instructions, shall be delivered by the Depositor on behalf of the Depository
to
and deposited with the DTC Custodian. The Trustee shall sign the Certificates
by
facsimile or manual signature and countersign them by manual signature on behalf
of the Trustee by one or more authorized signatories, each of whom shall be
Responsible Officers of the Trustee or its agent. A Certificate bearing the
manual and facsimile signatures of individuals who were the authorized
signatories of the Trustee or its agent at the time of issuance shall bind
the
Trustee, notwithstanding that such individuals or any of them have ceased to
hold such positions prior to the delivery of such Certificate.
(h) No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate the manually executed
countersignature of the Trustee or its agent, and such countersignature upon
any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
issued on the Closing Date shall be dated the Closing Date. All Certificates
issued thereafter shall be dated the date of their
countersignature.
(i) The
Closing Date is hereby designated as the “startup” day of the Trust REMIC within
the meaning of Section 860G(a)(9) of the Code.
(j) For
federal income tax purposes, each REMIC shall have a tax year that is a calendar
year and shall report income on an accrual basis.
(k) The
Trustee on behalf of the Trust shall cause the Trust REMIC to timely elect
to be
treated as a REMIC under Section 860D of the Code. Any inconsistencies or
ambiguities in this Agreement or in the administration of any trust established
hereby shall be resolved in a manner that preserves the validity of such
elections.
(l) The
following legend shall be placed on the Residual Certificates, whether upon
original issuance or upon issuance of any other Certificate of any such Class
in
exchange therefor or upon transfer thereof:
THIS
CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF,
AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE PROPOSED
TRANSFEREE PROVIDES THE TRUSTEE WITH AN OPINION OF COUNSEL ADDRESSED TO THE
DEPOSITOR, TRUSTEE AND MASTER SERVICER AND ON WHICH THEY MAY RELY THAT IS
SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OF CERTIFICATES ON BEHALF OF
SUCH
PERSON WILL NOT RESULT IN OR CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION,
IS
PERMISSIBLE UNDER APPLICABLE LAW AND WILL NOT GIVE RISE TO ANY ADDITIONAL
OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE MASTER SERVICER OR THE
TRUSTEE.
The
following legend shall be placed upon the Class B-4, Class B-5 and Class B-6
Certificates, whether upon original issuance or upon issuance of any other
Certificate of any such Class in exchange therefor or upon transfer
thereof:
THIS
CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF,
AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE TRANSFEREE
CERTIFIES OR REPRESENTS THAT THE PROPOSED TRANSFER AND HOLDING OF A CERTIFICATE
AND THE SERVICING, MANAGEMENT AND OPERATION OF THE TRUST AND ITS ASSETS: (I)
WILL NOT RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN
INDIVIDUAL OR CLASS PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED
TO, PROHIBITED TRANSACTION EXEMPTION (“PTE”) 84-14, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇
95-60 OR PTE 96-23 AND (II) WILL NOT GIVE RISE TO ANY ADDITIONAL OBLIGATIONS
ON
THE PART OF THE DEPOSITOR, THE MASTER SERVICER OR THE TRUSTEE, WHICH WILL BE
DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR A GLOBAL
CERTIFICATE OR UNLESS THE OPINION SPECIFIED IN SECTION 5.07 OF THE AGREEMENT
IS
PROVIDED.
Section
5.02 Registration
of Transfer and Exchange of Certificates.
(a) The
Trustee shall maintain at its Corporate Trust Office a separate Certificate
Register for Certificates in which, subject to such reasonable regulations
as it
may prescribe, the Trustee shall provide for the registration of the
Certificates and of transfers and exchanges of the Certificates as herein
provided.
(b) Subject
to Subsection 5.01(a) and, in the case of any Global Certificate or Physical
Certificate upon the satisfaction of the conditions set forth below, upon
surrender for registration of transfer of any Certificate at any office or
agency of the Trustee maintained for such purpose, the Trustee shall sign,
countersign and shall deliver, in the name of the designated transferee or
transferees, a new Certificate of a like Class and aggregate Fractional
Undivided Interest, but bearing a different number.
(c) By
acceptance of an Individual Certificate, whether upon original issuance or
subsequent transfer, each holder of such a Certificate acknowledges the
restrictions on the transfer of such Certificate set forth in the Securities
Legend and agrees that it will transfer such a Certificate only as provided
herein. In addition to the provisions of Subsection 5.02(h), the following
restrictions shall apply with respect to the transfer and registration of
transfer of an Individual Certificate to a transferee that takes delivery in
the
form of an Individual Certificate:
(i) The
Trustee shall register the transfer of an Individual Certificate if the
requested transfer is being made to a transferee who has provided the Trustee
with a Rule 144A Certificate or comparable evidence as to its QIB
status.
(ii) The
Trustee shall register the transfer of any Individual Certificate if (x) the
transferor has advised the Trustee in writing that the Certificate is being
transferred to an Institutional Accredited Investor; and (y) prior to the
transfer the transferee furnishes to the Trustee an Investment Letter (and
the
Trustee shall be fully protected in so doing), provided that, if based upon
an
Opinion of Counsel addressed to the Trustee to the effect that the delivery
of
(x) and (y) above are not sufficient to confirm that the proposed transfer
is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act and other applicable laws,
the Trustee shall as a condition of the registration of any such transfer
require the transferor to furnish such other certifications, legal opinions
or
other information prior to registering the transfer of an Individual Certificate
as shall be set forth in such Opinion of Counsel.
(d) Subject
to Subsection 5.02(h), so long as a Global Certificate of such Class is
outstanding and is held by or on behalf of the Depository, transfers of
beneficial interests in such Global Certificate, or transfers by holders of
Individual Certificates of such Class to transferees that take delivery in
the
form of beneficial interests in the Global Certificate, may be made only in
accordance with this Subsection 5.02(d) and in accordance with the rules of
the
Depository:
(i) In
the
case of a beneficial interest in the Global Certificate being transferred to
an
Institutional Accredited Investor, such transferee shall be required to take
delivery in the form of an Individual Certificate or Certificates and the
Trustee shall register such transfer only upon compliance with the provisions
of
Subsection 5.02(c)(ii).
(ii) In
the
case of a beneficial interest in a Class of Global Certificates being
transferred to a transferee that takes delivery in the form of an Individual
Certificate or Certificates of such Class, except as set forth in clause (i)
above, the Trustee shall register such transfer only upon compliance with the
provisions of Subsection 5.02(c)(i).
(iii) In
the
case of an Individual Certificate of a Class being transferred to a transferee
that takes delivery in the form of a beneficial interest in a Global Certificate
of such Class, the Trustee shall register such transfer if the transferee has
provided the Trustee with a Rule 144A Certificate or comparable evidence as
to
its QIB status.
(iv) No
restrictions shall apply with respect to the transfer or registration of
transfer of a beneficial interest in the Global Certificate of a Class to a
transferee that takes delivery in the form of a beneficial interest in the
Global Certificate of such Class; provided that each such transferee shall
be
deemed to have made such representations and warranties contained in the Rule
144A Certificate as are sufficient to establish that it is a QIB.
(e) Subject
to Subsection 5.02(h), an exchange of a beneficial interest in a Global
Certificate of a Class for an Individual Certificate or Certificates of such
Class, an exchange of an Individual Certificate or Certificates of a Class
for a
beneficial interest in the Global Certificate of such Class and an exchange
of
an Individual Certificate or Certificates of a Class for another Individual
Certificate or Certificates of such Class (in each case, whether or not such
exchange is made in anticipation of subsequent transfer, and, in the case of
the
Global Certificate of such Class, so long as such Certificate is outstanding
and
is held by or on behalf of the Depository) may be made only in accordance with
this Subsection 5.02(e) and in accordance with the rules of the
Depository:
(i) A
holder
of a beneficial interest in a Global Certificate of a Class may at any time
exchange such beneficial interest for an Individual Certificate or Certificates
of such Class.
(ii) A
holder
of an Individual Certificate or Certificates of a Class may exchange such
Certificate or Certificates for a beneficial interest in the Global Certificate
of such Class if such holder furnishes to the Trustee a Rule 144A Certificate
or
comparable evidence as to its QIB status.
(iii) A
holder
of an Individual Certificate of a Class may exchange such Certificate for an
equal aggregate principal amount of Individual Certificates of such Class in
different authorized denominations without any certification.
(f) (i) Upon
acceptance for exchange or transfer of an Individual Certificate of a Class
for
a beneficial interest in a Global Certificate of such Class as provided herein,
the Trustee shall cancel such Individual Certificate and shall (or shall request
the Depository to) endorse on the schedule affixed to the applicable Global
Certificate (or on a continuation of such schedule affixed to the Global
Certificate and made a part thereof) or otherwise make in its books and records
an appropriate notation evidencing the date of such exchange or transfer and
an
increase in the certificate balance of the Global Certificate equal to the
certificate balance of such Individual Certificate exchanged or transferred
therefor.
(ii) Upon
acceptance for exchange or transfer of a beneficial interest in a Global
Certificate of a Class for an Individual Certificate of such Class as provided
herein, the Trustee shall (or shall request the Depository to) endorse on the
schedule affixed to such Global Certificate (or on a continuation of such
schedule affixed to such Global Certificate and made a part thereof) or
otherwise make in its books and records an appropriate notation evidencing
the
date of such exchange or transfer and a decrease in the certificate balance
of
such Global Certificate equal to the certificate balance of such Individual
Certificate issued in exchange therefor or upon transfer thereof.
(g) The
Securities Legend shall be placed on any Individual Certificate issued in
exchange for or upon transfer of another Individual Certificate or of a
beneficial interest in a Global Certificate.
(h) Subject
to the restrictions on transfer and exchange set forth in this Section 5.02,
the
holder of any Individual Certificate may transfer or exchange the same in whole
or in part (in an initial certificate balance equal to the minimum authorized
denomination set forth in Section 5.01(g) above or any integral multiple of
$1.00 in excess thereof) by surrendering such Certificate at the Corporate
Trust
Office, or at the office of any transfer agent, together with an executed
instrument of assignment and transfer satisfactory in form and substance to
the
Trustee in the case of transfer and a written request for exchange in the case
of exchange. The holder of a beneficial interest in a Global Certificate may,
subject to the rules and procedures of the Depository, cause the Depository
(or
its nominee) to notify the Trustee in writing of a request for transfer or
exchange of such beneficial interest for an Individual Certificate or
Certificates. Following a proper request for transfer or exchange, the Trustee
shall, within five Business Days of such request made at the Corporate Trust
Office, sign, countersign and deliver at the Corporate Trust Office, to the
transferee (in the case of transfer) or holder (in the case of exchange) or
send
by first class mail at the risk of the transferee (in the case of transfer)
or
holder (in the case of exchange) to such address as the transferee or holder,
as
applicable, may request, an Individual Certificate or Certificates, as the
case
may require, for a like aggregate Fractional Undivided Interest and in such
authorized denomination or denominations as may be requested. The presentation
for transfer or exchange of any Individual Certificate shall not be valid unless
made at the Corporate Trust Office by the registered holder in person, or by
a
duly authorized attorney-in-fact.
(i) At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates of authorized denominations of a like Class and aggregate
Fractional Undivided Interest, upon surrender of the Certificates to be
exchanged at the Corporate Trust Office; provided, however, that no Certificate
may be exchanged for new Certificates unless the original Fractional Undivided
Interest represented by each such new Certificate (i) is at least equal to
the
minimum authorized denomination or (ii) is acceptable to the Depositor as
indicated to the Trustee in writing. Whenever any Certificates are so
surrendered for exchange, the Trustee shall sign and countersign and the Trustee
shall deliver the Certificates which the Certificateholder making the exchange
is entitled to receive.
(j) If
the
Trustee so requires, every Certificate presented or surrendered for transfer
or
exchange shall be duly endorsed by, or be accompanied by a written instrument
of
transfer, with a signature guarantee, in form satisfactory to the Trustee,
duly
executed by the holder thereof or his or her attorney duly authorized in
writing.
(k) No
service charge shall be made for any transfer or exchange of Certificates,
but
the Trustee may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
(l) The
Trustee shall cancel all Certificates surrendered for transfer or exchange
but
shall retain such Certificates in accordance with its standard retention policy
or for such further time as is required by the record retention requirements
of
the Securities Exchange Act of 1934, as amended, and thereafter may destroy
such
Certificates.
Section
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
(a) If
(i)
any mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee such security or
indemnity as it may require to save it harmless, and (iii) the Trustee has
not
received notice that such Certificate has been acquired by a third Person,
the
Trustee shall sign, countersign and deliver, in exchange for or in lieu of
any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like
tenor and Fractional Undivided Interest but in each case bearing a different
number. The mutilated, destroyed, lost or stolen Certificate shall thereupon
be
canceled of record by the Trustee and shall be of no further effect and evidence
no rights.
(b) Upon
the
issuance of any new Certificate under this Section 5.03, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. Any duplicate Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or
not
the lost, stolen or destroyed Certificate shall be found at any
time.
Section
5.04 Persons
Deemed Owners.
Prior
to
due presentation of a Certificate for registration of transfer, the Depositor,
the Trustee and any agent of the Depositor or the Trustee may treat the Person
in whose name any Certificate is registered as the owner of such Certificate
for
the purpose of receiving distributions pursuant to Section 6.01 and for all
other purposes whatsoever. Neither the Depositor nor the Trustee or any agent
of
the Depositor or the Trustee shall be affected by notice to the contrary. No
Certificate shall be deemed duly presented for a transfer effective on any
Record Date unless the Certificate to be transferred is presented no later
than
the close of business on the third Business Day preceding such Record
Date.
Section
5.05 Transfer
Restrictions on Residual Certificates.
(a) No
transfer, sale or other disposition of a Residual Certificate (including a
beneficial interest therein) may be made unless, prior to the transfer, sale
or
other disposition of a Residual Certificate, (1) the proposed transferee
(including the initial purchasers thereof) delivers to the Trustee and the
Depositor an affidavit and agreement in the form attached hereto as Exhibit
E
stating, among other things, that as of the date of such transfer such
transferee is a Permitted Transferee and a United States Person and that such
transferee is not acquiring such Residual Certificate for the account of any
Person who is not a Permitted Transferee or a United States Person (a
“Transferee Affidavit”), and (2) the proposed transferor delivers to the Trustee
and the Depositor an affidavit in the form attached hereto as Exhibit R to
the
effect that it has no knowledge that the statements made by
the
proposed transferee in
any
such Transferee Affidavit are false (a “Transferor Affidavit”). The Tax Matters
Person shall not consent to a transfer of a Residual Certificate if it has
actual knowledge that any statement made in the Transferee Affidavit or
Transferor Affidavit issued pursuant to the preceding sentence is not true.
Notwithstanding any transfer, sale or other disposition of a Residual
Certificate to any Person who is not a Permitted Transferee, such transfer,
sale
or other disposition shall be deemed to be of no legal force or effect
whatsoever and such Person shall not be deemed to be a Holder of a Residual
Certificate for any purpose hereunder, including, but not limited to, the
receipt of distributions thereon. If any purported transfer shall be in
violation of the provisions of this Subsection 5.05(a), then the prior Holder
thereof shall, upon discovery that the transfer of such Residual Certificate
was
not in fact permitted by this Subsection 5.05(a), be restored to all rights
as a
Holder thereof retroactive to the date of the purported transfer. None of the
Trustee or the Depositor shall be under any liability to any Person for any
registration or transfer of a Residual Certificate that is not permitted by
this
Subsection 5.05(a) or for making payments due on such Residual Certificate
to
the purported Holder thereof or taking any other action with respect to such
purported Holder under the provisions of this Agreement so long as the related
Transferee Affidavit and Transferor Affidavit referred to above were received
with respect to such transfer, and the Trustee and the Depositor, as applicable,
had no knowledge that they were untrue. The prior Holder shall be entitled
to
recover from any purported Holder of a Residual Certificate that was in fact
not
a permitted transferee under this Subsection 5.05(a) at the time it became
a
Holder all payments made on such Residual Certificate. Each Holder of a Residual
Certificate, by acceptance thereof, shall be deemed for all purposes to have
consented to the provisions of this Section 5.05 and to any amendment of this
Agreement deemed necessary (whether as a result of new legislation or otherwise)
by counsel of the Tax Matters Person, the Trustee or the Depositor to ensure
that the Residual Certificates are not transferred to any Person who is not
a
Permitted Transferee or a United States Person and that any transfer of such
Residual Certificates will not cause the imposition of a tax upon the Trust
or
cause the Trust REMIC to fail to qualify as a REMIC.
(c) The
Residual Certificates (including a beneficial interest therein) may not be
purchased by or transferred to any Person who is not a United States
Person.
(d) By
accepting a Residual Certificate, the purchaser thereof agrees to be a Tax
Matters Person, and appoints the Trustee to act as its agent with respect to
all
matters concerning the tax obligations of the Trust.
Section
5.06 Restrictions
on Transferability of Non-Offered Certificates.
(a) No
offer,
sale, transfer or other disposition (including pledge) of any Non-Offered
Certificate shall be made by any Holder thereof unless registered under the
Securities Act, or an exemption from the registration requirements of the
Securities Act and any applicable state securities or “Blue Sky” laws is
available and the prospective transferee (other than the Depositor) of such
Certificate signs and delivers to the Trustee an Investment Letter, if the
transferee is an Institutional Accredited Investor, in the form set forth as
Exhibit F-l hereto, or a Rule 144A Certificate, if the transferee is a QIB,
in
the form set forth as Exhibit F-2 hereto. Notwithstanding the provisions of
the
immediately preceding sentence, no restrictions shall apply with respect to
the
transfer or registration of transfer of a beneficial interest in any Non-Offered
Certificate that is a Global Certificate of a Class to a transferee that takes
delivery in the form of a beneficial interest in the Global Certificate of
such
Class provided that each such transferee shall be deemed to have made such
representations and warranties contained in the Rule 144A Certificate as are
sufficient to establish that it is a QIB. In the case of a proposed transfer
of
any Certificate to a transferee other than a QIB, the Trustee may require an
Opinion of Counsel addressed to the Trustee that such transaction is exempt
from
the registration requirements of the Securities Act. The cost of such opinion
shall not be an expense of the Trustee or the Trust Fund.
(b) The
Non-Offered Certificates shall each bear a Securities Legend.
Section
5.07 ERISA
Restrictions.
(a) Subject
to the provisions of subsection (b), no Residual Certificates or Non-Offered
Subordinate
Certificates may be acquired directly or indirectly by, or on behalf of, an
employee benefit plan or other retirement arrangement which is subject to Title
I of ERISA or Section 4975 of the Code, unless the proposed transferee provides
either (i) the Trustee, with an Opinion of Counsel addressed to the Depositor,
the Trustee and the Master Servicer (upon which they may rely) which is
satisfactory to the Trustee, which opinion will not be at the expense of the
Depositor, the Trustee or the Master Servicer, that the purchase of such
Certificates by or on behalf of such Plan is permissible under applicable law,
will not constitute or result in a nonexempt prohibited transaction under ERISA
or Section 4975 of the Code and will not subject the Depositor, the Master
Servicer or the Trustee to any obligation in addition to those undertaken in
the
Agreement or (ii) in the case of the Non-Offered Subordinate Certificates,
a
representation or certification to the Trustee (upon which the Trustee and
the
other parties hereto are authorized to rely) to the effect that the proposed
transfer and holding of such a Certificate and the servicing, management and
operation of the Trust: (I) will not result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code which is not covered under
an
individual or class prohibited transaction exemption including but not limited
to Department of Labor Prohibited Transaction Exemption (“PTE”) 84-14 (Class
Exemption for Plan Asset Transactions Determined by Independent Qualified
Professional Asset Managers); PTE 91-38 (Class Exemption for Certain
Transactions Involving Bank Collective Investment Funds); PTE 90-1 (Class
Exemption for Certain Transactions Involving Insurance Company Pooled Separate
Accounts), PTE 95-60 (Class Exemption for Certain Transactions Involving
Insurance Company General Accounts), and PTCE 96-23 (Class Exemption for Plan
Asset Transactions Determined by In-House Asset Managers and (II) will not
subject the Depositor, the Master Servicer or the Trustee to any obligation
in
addition to those undertaken in the Agreement.
(b) Any
Person acquiring an interest in a Global Certificate which is a Non-Offered
Subordinate Certificate, by acquisition of such Certificate, shall be deemed
to
have represented to the Trustee that in the case of the Non-Offered Subordinate
Certificates, either: (i) it is not acquiring an interest in such Certificate
directly or indirectly by, or on behalf of, an employee benefit plan or other
retirement arrangement which is subject to Title I of ERISA or Section 4975
of
the Code, or (ii) the transfer and holding of an interest in such Certificate
to
that Person and the subsequent servicing, management and operation of the Trust
and its assets: (I) will not result in any prohibited transaction which is
not
covered under an individual or class prohibited transaction exemption,
including, but not limited to, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇▇, ▇▇▇ ▇▇-▇, ▇▇▇ 95-60 or
PTE
96-23 and (II) will not subject the Depositor, the Master Servicer or the
Trustee to any obligation in addition to those undertaken in the
Agreement.
(c) Each
beneficial owner of a Class B-1, Class B-2 or Class B-3 Certificate or any
interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of that certificate or interest therein, that either
(i)
it is not a Plan or investing with “Plan Assets”, (ii) it has acquired and is
holding such certificate in reliance on Prohibited Transaction Exemption 90-30,
as amended from time to time (the “Exemption”), and that it understands that
there are certain conditions to the availability of the Exemption, including
that the certificate must be rated, at the time of purchase, not lower than
“BBB-” (or its equivalent) by S&P, Fitch, Dominion Bond Rating Service
Limited (known as DBRS Limited), Dominion Bond Rating Service, Inc. (known
as
DBRS, Inc.) or ▇▇▇▇▇’▇, and the certificate is so rated or (iii) (1) it is an
insurance company, (2) the source of funds used to acquire or hold the
certificate or interest therein is an “insurance company general account,” as
such term is defined in Prohibited Transaction Class Exemption (“PTCE”) 95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
(d) Neither
the Trustee nor the Master Servicer will be required to monitor, determine
or
inquire as to compliance with the transfer restrictions in this Agreement with
respect to the Book-Entry Certificates. Any attempted or purported transfer
of
any Certificate in violation of the provisions of this Agreement shall be void
ab initio and such Certificate shall be considered to have been held
continuously by the prior permitted Certificateholder. Any transferor of any
Certificate in violation of such provisions, shall indemnify and hold harmless
the Trustee and the Master Servicer from and against any and all liabilities,
claims, costs or expenses incurred by the Trustee or the Master Servicer as
a
result of such attempted or purported transfer. The Trustee shall not be liable
for transfer of any such Book-Entry Certificates in or through book-entry
facilities of any Depository or between or among Depository Participants or
Certificate Owners made in violation of the transfer restrictions set forth
herein.
Section
5.08 Rule
144A Information.
For
so
long as any Non-Offered Certificates are outstanding and are “restricted
securities” within the meaning of Rule 144(a)(3) of the Securities Act, (1) the
Depositor will provide or cause to be provided to any holder of such Non-Offered
Certificates and any prospective purchaser thereof designated by such a holder,
upon the request of such holder or prospective purchaser, the information
required to be provided to such holder or prospective purchaser by Rule
144A(d)(4) under the Securities Act; and (2) the Depositor shall update such
information from time to time in order to prevent such information from becoming
false and misleading and will take such other actions as are necessary to ensure
that the safe harbor exemption from the registration requirements of the
Securities Act under Rule 144A is and will be available for resales of such
Certificates conducted in accordance with Rule 144A.
ARTICLE
VI
Payments
to Certificateholders
Section
6.01 Distributions
on the Certificates.
(a) Interest
and principal (as applicable) on the Certificates will be distributed by the
Trustee monthly on each Distribution Date based on the Certificates Distribution
Report for such Distribution Date furnished by the Trustee pursuant to 6.05
hereof, commencing in May 2007, in an amount equal to the related Available
Funds on deposit in the Distribution Account for such Distribution Date. On
each
Distribution Date, the related Available Funds on deposit in the Distribution
Account shall be distributed as follows:
(i) on
each
Distribution Date, the Available Funds will be distributed to the related Senior
Certificates as follows:
first,
to the
Senior Certificates (other than the Class PO Certificates), on a pro rata basis,
the Accrued Certificate Interest on such Classes for such Distribution
Date;
second,
to the
Senior Certificates (other than the Class PO Certificates), on a pro rata basis,
any Accrued Certificate Interest thereon remaining undistributed from previous
Distribution Dates, to the extent of remaining Available Funds;
third,
to the
Class A-1, Class A-2, Class A-3 and Class R Certificates, as principal, in
the
order described in this Agreement, the Senior Optimal Principal Distribution
Amount, in reduction of the Current Principal Amount thereof, until the Current
Principal Amounts thereof have been reduced to zero;
fourth,
to the
Class PO Certificates, the portion of the Class PO Certificate Principal
Distribution Amount for such Distribution Date to the extent of the remaining
Available Funds, until the Current Principal Amount thereof has been reduced
to
zero; and
fifth,
to the
Class PO Certificates, the portion of the Class PO Certificate Deferred Amount,
provided that (i) on any Distribution Date, distributions pursuant to this
priority fifth
shall
not exceed the excess, if any, of (x) Available Funds remaining after giving
effect to distributions pursuant to priority first
through
fourth
above
over (y) the sum of the amount of Accrued Certificate Interest for such
Distribution Date and Accrued Certificate Interest remaining undistributed
from
previous Distribution Dates on all Classes of Subordinate Certificates then
outstanding, (ii) such distributions shall not reduce the Current Principal
Amount of the Class PO Certificates, and (iii) no distribution will be made
in
respect of the Class PO Certificate Deferred Amount on or after the Cross-Over
Date.
On
each
Distribution Date, an amount, up to the amount of the Senior Optimal Principal
Distribution Amount for that Distribution Date, will be distributed as principal
as follows in each case to the extent of the remaining Senior Optimal Principal
Distribution Amount:
(1)
to
the Class R Certificates, in reduction of the Current Principal Amounts thereof,
until the Certificate Principal Amounts thereof have been reduced to
zero;
(2)
to
the Class A-3
Certificates,
the
Lockout Priority Amount for such Distribution Date in reduction of the Current
Principal Amount thereof, until the Certificate Principal Amount thereof has
been reduced to zero;
(3)
to
the Class A-1 Certificates and Class A-2 Certificates, sequentially in that
order, in reduction of the Current Principal Amount thereof, in each case
until the Current Principal Amount thereof has been reduced to zero;
and
(5)
to
the Class A-3 Certificates in reduction of the Current Principal Amount thereof
(without regard to the Lockout Priority Amount for such Distribution Date),
until the Current Principal Amount thereof has been reduced to
zero.
(ii) On
each
Distribution Date on or prior to the Cross-Over Date, an amount equal to the
remaining Available Funds after the distributions in clause (i) above shall
be
distributed sequentially in the following order, to the Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5 and Class B-6 Certificates, in each case up
to
an amount equal to and in the following order: (a) the Accrued Certificate
Interest thereon for such Distribution Date, (b) any Accrued Certificate
Interest thereon remaining undistributed from previous Distribution Dates and
(c) such Class’s Allocable Share for such Distribution Date, in each case, to
the extent of the remaining Available Funds.
(iii) If,
after
distributions have been made pursuant to priorities first
and
second
of
clause (i) above on any Distribution Date, the remaining Available Funds is
less
than the Scheduled Principal Balance of the Mortgage Loans, such amounts shall
be reduced, and such remaining funds will be distributed to the Senior
Certificates (other than the Class X Certificates) on the basis of such reduced
amounts. Notwithstanding any reduction in principal distributable to the Class
PO Certificates pursuant to this paragraph, the principal balance of the Class
PO Certificates shall be reduced not only by principal so distributed but also
by the difference between (i) principal distributable to the Class PO
Certificates in accordance with priority fourth
of
clause (i) above, and (ii) principal actually distributed to the Class PO
Certificates after giving effect to this paragraph (such difference for the
Class PO Certificates, the “Class PO Certificate Cash Shortfall”). The Class PO
Certificate Cash Shortfall for the Class PO Certificates with respect to any
Distribution Date will be added to the Class PO Certificate Deferred
Amount.
(iv) On
each
Distribution Date, any Available Funds remaining after payment of interest
and
principal to the Classes of Certificates entitled thereto, in each case as
described above, will be distributed to the Class R Certificates; provided,
that
if on any Distribution Date there are any Available Funds remaining after
payment of interest and principal to a Class or Classes of Certificates entitled
thereto, such amounts will be distributed to the other Class or Classes of
Senior Certificates, pro rata, based upon their Current Principal Amounts,
until
all amounts due to all Classes of Senior Certificates have been paid in full,
before any amounts are distributed to the Class R Certificates.
(b) “Pro
rata” distributions among Classes of Certificates will be made in proportion to
the then Current Principal Amount of such Classes.
(c) No
Accrued Certificate Interest will be payable with respect to any Class of
Certificates after the Distribution Date on which the Current Principal Amount
or Notional Amount of such Certificate has been reduced to zero.
(d) Net
Interest Shortfalls on the Mortgage Loans will be allocated among the Holders
of
each Class of Senior Certificates (other than the Class PO Certificates) and
Subordinate Certificates, on a pro rata basis, in proportion to the respective
amounts of Accrued Certificate Interest for that Distribution Date that would
have been allocated thereto in the absence of such Net Interest Shortfalls for
such Distribution Date. In addition, the amount of any interest shortfalls
with
respect to the Mortgage Loans will constitute unpaid Accrued Certificate
Interest and will be distributable to Holders of the related Certificates
entitled to such amounts on subsequent Distribution Dates, to the extent of
the
Available Funds remaining after current interest distributions as required
herein. Any such amounts so carried forward will not bear interest. Any interest
shortfalls will not be offset by a reduction in the servicing compensation
of
the Servicers or otherwise, except to the limited extent described in the fourth
preceding paragraph with respect to Prepayment Interest Shortfalls. The interest
portion of Realized Losses will be allocated first to the Subordinate
Certificates, and after the Cross-Over Date, to the Senior Certificates, in
each
case on a pro rata basis, in proportion to the amount of Accrued Certificate
Interest that would have been allocated thereto in the absence of such Realized
Losses.
(e) The
expenses and fees of the Trust shall be paid by the Trust REMIC.
(f) [Reserved].
(g) In
addition, in the event that the Master Servicer receives any Subsequent
Recoveries from a Servicer, the Master Servicer shall deposit such funds into
the Master Servicer Collection Account pursuant to Section 4.02. If, after
taking into account such Subsequent Recoveries, the amount of a Realized Loss
is
reduced, the amount of such Subsequent Recoveries will be applied to increase
the Current Principal Amount of the related Class of Subordinate Certificates
with the highest payment priority to which Realized Losses have been allocated,
but not by more than the amount of Realized Losses previously allocated to
that
Class of Subordinate Certificates pursuant to Section 6.03. The amount of any
remaining Subsequent Recoveries will be applied to sequentially increase the
Current Principal Amount of the related Subordinate Certificates, beginning
with
the Class of such Subordinate Certificates with the next highest payment
priority, up to the amount of such Realized Losses previously allocated to
such
Class of Certificates pursuant to Section 6.03. Holders of such Certificates
will not be entitled to any payment in respect of current interest on the amount
of such increases for any Interest Accrual Period preceding the Distribution
Date on which such increase occurs. Any such increases shall be applied to
the
Current Principal Amount of each Subordinate Certificate of such Class in
accordance with its respective Fractional Undivided Interest.
Section
6.02 [Reserved.]
Section
6.03 Allocation
of Losses.
On
or
prior to each Determination Date, the Master Servicer shall determine the amount
of any Realized Loss in respect of each Mortgage Loan that occurred during
the
immediately preceding calendar month, based on information provided by the
Servicer.
(a) (i) Realized
Losses with respect to a Mortgage Loan will be allocated on a pro rata basis
between the PO Percentage of the Scheduled Principal Balance of such Mortgage
Loan and the Non-PO Percentage of such Scheduled Principal Balance.
(ii) On
each
Distribution Date, the PO Percentage of the principal portion of any Realized
Loss on a Discount Mortgage Loan and any Class PO Certificate Cash Shortfall
will be allocated to the Class PO Certificates until the Current Principal
Amount of the Class PO Certificates is reduced to zero. With
respect to any Distribution Date through the Cross-Over Date, the aggregate
of
all amounts so allocable to the Class PO Certificates on such date in respect
of
any Realized Losses and any Class PO Certificate Cash Shortfalls and all amounts
previously allocated in respect of such Realized Losses or Class PO Certificate
Cash Shortfalls and not distributed on prior Distribution Dates will be the
“Class PO Certificate Deferred Amount.” To
the
extent funds are available therefor on any Distribution Date through the
Cross-Over Date, distributions in respect of the Class PO Certificate Deferred
Amount for the Class PO Certificates from Available Funds will be made in
accordance with priority
fifth
of
clause (i) above. No interest shall accrue on the Class PO Certificate Deferred
Amount. On each Distribution Date through the Cross-Over Date, the Current
Principal Amount of the lowest ranking Class of Subordinate Certificates then
outstanding will be reduced by the amount of any distributions in respect of
any
Class PO Certificate Deferred Amount on such Distribution Date in accordance
with the priorities set forth above, through the operation of the Subordinate
Certificate Writedown Amount. After the Cross-Over Date, no more distributions
will be made in respect of, and applicable Realized Losses and Class PO
Certificate Cash Shortfalls allocable to the Class PO Certificates will not
be
added to, the Class PO Certificate Deferred Amount.
(iii) The
Non-PO Percentage of the principal portion of Realized Losses on the Mortgage
Loans will be allocated on any Distribution Date as follows: first, to the
Class
B-6 Certificates; second, to the Class B-5 Certificates; third, to the Class
B-4
Certificates; fourth, to the Class B-3 Certificates; fifth, to the Class B-2
Certificates; and sixth, to the Class B-1 Certificates, in each case until
the
Current Principal Amount of such Class has been reduced to zero.
(iv) Thereafter,
the principal portion of Realized Losses on the Mortgage Loans will be allocated
on any Distribution Date to the outstanding Class or Classes of Senior
Certificates (other than the Class X Certificates), pro rata, based upon their
respective Current Principal Amounts.
(v) Notwithstanding
the foregoing, no such allocation of any Realized Loss shall be made on a
Distribution Date to any Class of Certificates (other than the Class
X
Certificates)
to the
extent that such allocation would result in the reduction of the aggregate
Current Principal Amounts of all the Certificates (other than the Class X
Certificates) as of such Distribution Date, after giving effect to all
distributions and prior allocations of Realized Losses on the Mortgage Loans
on
such date, to an amount less than the aggregate Scheduled Principal Balance
of
all of the Mortgage Loans as of the first day of the month of such Distribution
Date (such limitation, the “Loss Allocation Limit”).
(b) Any
Realized Losses allocated to a Class of Certificates shall be allocated among
the related Certificates of such Class (other than the Interest Only
Certificates) in proportion to their respective Current Principal Amounts.
Any
allocation of Realized Losses shall be accomplished by reducing the Current
Principal Amount of the related Certificates on the related Distribution
Date.
(c) Realized
Losses shall be allocated on the Distribution Date in the month following the
month in which such loss was incurred and, in the case of the principal portion
thereof, after giving effect to distributions made on such Distribution
Date.
(d) On
each
Distribution Date, the Trustee shall determine the Subordinate Certificate
Writedown Amount. Any
Subordinate Certificate Writedown Amount shall effect a corresponding reduction
in the Current Principal Amount of (i) if prior to the Cross-Over Date, the
Current Principal Amounts of the Subordinate Certificates, in the reverse order
of their numerical Class designations and (ii) from and after the Cross-Over
Date, the Senior Certificates, in accordance with priorities set forth in clause
(b) above, which reduction shall occur on such Distribution Date after giving
effect to distributions made on such Distribution Date.
(e) Any
Net
Interest Shortfall will be allocated among the Classes of Certificates in
proportion to the respective amounts of Accrued Certificate Interest that would
have been allocated thereto in the absence of such Net Interest Shortfall for
such Distribution Date. The interest portion of any Realized Losses with respect
to the Mortgage Loans occurring on or prior to the Cross-Over Date will not
be
allocated among any Certificates, but will reduce the amount of Available Funds
on the related Distribution Date. As a result of the subordination of the
Subordinate Certificates in right of distribution, such Realized Losses on
the
Mortgage Loans will be borne by the Subordinate Certificates, in inverse order
of their numerical Class designations. Following the Cross-Over Date, the
interest portion of Realized Losses on the Mortgage Loans will be allocated
to
the Senior Certificates.
Section
6.04 Payments.
(a) On
each
Distribution Date, other than the final Distribution Date, the Trustee shall
distribute to each Certificateholder of record as of the immediately preceding
Record Date the Certificateholder’s pro rata share of its Class (based on the
aggregate Fractional Undivided Interest represented by such Holder’s
Certificates) of all amounts required to be distributed on such Distribution
Date to such Class. The Trustee shall calculate the amount to be distributed
to
each Class and, based on such amounts, the Trustee shall determine the amount
to
be distributed to each Certificateholder. All of the Trustee’s calculations of
payments shall be based solely on information provided to the Trustee by the
Master Servicer. The Trustee shall not be required to confirm, verify or
recompute any such information but shall be entitled to rely conclusively on
such information.
(b) Payment
of the above amounts to each Certificateholder shall be made (i) by check mailed
to each Certificateholder entitled thereto at the address appearing in the
Certificate Register or (ii) upon receipt by the Trustee on or before the fifth
Business Day preceding the Record Date of written instructions from a
Certificateholder by wire transfer to a United States dollar account maintained
by the payee at any United States depository institution with appropriate
facilities for receiving such a wire transfer; provided, however, that the
final
payment in respect of each Class of Certificates will be made only upon
presentation and surrender of such respective Certificates at the office or
agency of the Trustee specified in the notice to Certificateholders of such
final payment.
Section
6.05 Statements
to Certificateholders.
(a) Concurrently
with each distribution to Holders of the Certificates, the Trustee shall make
available to the parties hereto, each Rating Agency and each such Holder via
the
Trustee’s internet website as set forth below, a Certificates Distribution
Report containing the following information with respect to the Certificates
and
the Mortgage Loans, expressed with respect to clauses (i) through (vii) in
the
aggregate and as a Fractional Undivided Interest representing an initial Current
Principal Amount of $1,000, or in the case of the Residual Certificates, an
initial Current Principal Amount of $100:
(i) the
Current Principal Amount (or Notional Amount) of each Class of Certificates
immediately prior to such Distribution Date;
(ii) the
amount of the distribution allocable to principal on each applicable Class
of
Certificates;
(iii) the
aggregate amount of interest accrued at the related Pass-Through Rate with
respect to each Class during the related Interest Accrual Period;
(iv) the
Net
Interest Shortfall and any other adjustments to interest at the related
Pass-Through Rate necessary to account for any difference between interest
accrued and aggregate interest distributed with respect to each Class of
Certificates;
(v) the
amount of the distribution allocable to interest on each Class of
Certificates;
(vi) the
Pass-Through Rates for each Class of Certificates with respect to such
Distribution Date;
(vii) the
Current Principal Amount (or Notional Amount) of each Class of Certificates
after such Distribution Date;
(viii) the
amount of any Monthly Advances, Compensating Interest Payments and outstanding
unreimbursed advances by the Master Servicer or the Servicers included in such
distribution;
(ix) the
aggregate amount of any Realized Losses (listed separately for each category
of
Realized Loss) during the preceding calendar month and cumulatively since the
Cut-off Date and the amount and source (separately identified) of any
distribution in respect thereof included in such distribution;
(x) with
respect to each Mortgage Loan which incurred a Realized Loss during the
preceding calendar month, (i) the loan number, (ii) the Scheduled Principal
Balance of such Mortgage Loan as of the Cut-off Date, (ii) the Scheduled
Principal Balance of such Mortgage Loan as of the beginning of the related
Due
Period, (iii) the Net Liquidation Proceeds with respect to such Mortgage Loan
and (iv) the amount of the Realized Loss with respect to such Mortgage
Loan;
(xi) the
amount of Scheduled Principal and Principal Prepayments, (including but
separately identifying the principal amount of Principal Prepayments, Insurance
Proceeds, the purchase price in connection with the purchase of Mortgage Loans,
cash deposits in connection with substitutions of Mortgage Loans and Net
Liquidation Proceeds) and the number and principal balance of Mortgage Loans
purchased or substituted for during the relevant period and cumulatively since
the Cut-off Date;
(xii) the
number of Mortgage Loans (excluding REO Property) remaining in the Trust Fund
as
of the end of the preceding calendar month;
(xiii) information
regarding any Mortgage Loan delinquencies as of the end of the previous calendar
month, including the aggregate number and aggregate Outstanding Principal
Balance of Mortgage Loans using the MBA method of calculation (a) Delinquent
30
to 59 days on a contractual basis, (b) Delinquent 60 to 89 days on a contractual
basis, and (c) Delinquent 90 or more days on a contractual basis, in each case
as of the close of business on the last Business Day of the immediately
preceding month;
(xiv) the
number of Mortgage Loans in the foreclosure process as of the end of the related
Due Period and the aggregate Outstanding Principal Balance of such Mortgage
Loans;
(xv) the
number and aggregate Outstanding Principal Balance of all Mortgage Loans as
to
which the Mortgaged Property was REO Property as of the end of the preceding
calendar month;
(xvi) the
book
value (the sum of (A) the Outstanding Principal Balance of the Mortgage Loan,
(B) accrued interest through the date of foreclosure and (C) foreclosure
expenses) of any REO Property; provided that, in the event that such information
is not available to the Trustee on the Distribution Date, such information
shall
be furnished promptly after it becomes available;
(xvii) the
amount of Realized Losses allocated to each Class of Certificates since the
prior Distribution Date and in the aggregate for all prior Distribution Dates;
and
(xviii) the
Average Loss Severity Percentage;
(xix) [Reserved]
(xx) the
then
applicable Senior Percentage, Senior Prepayment Percentage, Subordinate
Percentage and Subordinate Prepayment Percentage.
The
information set forth above shall be calculated or reported, as the case may
be,
by the Trustee, based solely on, and to the extent of, information provided
to
the Trustee by the Master Servicer. The Trustee may conclusively rely on such
information and shall not be required to confirm, verify or recalculate any
such
information.
The
Trustee may make available each month, to any interested party, the Certificates
Distribution Report to Holders of the Certificates via the Trustee’s website
initially located at “▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇.” Assistance in using the website can
be obtained by calling the Trustee’s customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇.
Parties that are unable to use the above distribution option are entitled to
have a paper copy mailed to them via first class mail by calling the Trustee’s
customer service desk and indicating such. The Trustee shall have the right
to
change the way such reports are distributed in order to make such distribution
more convenient and/or more accessible to the parties, and the Trustee shall
provide timely and adequate notification to all parties regarding any such
change.
(b) By
April
30 of each year beginning in 2008, the Trustee will furnish such report to
each
Holder of the Certificates of record at any time during the prior calendar
year
as to the aggregate of amounts reported pursuant to subclauses (a)(ii) and
(a)(v) above with respect to the Certificates, plus information with respect
to
the amount of servicing compensation and such other customary information as
the
Trustee may determine to be necessary and/or to be required by the Internal
Revenue Service or by a federal or state law or rules or regulations to enable
such Holders to prepare their tax returns for such calendar year. Such
obligations shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee pursuant
to the requirements of the Code.
Section
6.06 Monthly
Advances.
The
Master Servicer shall cause the related Servicer to remit any Advance required
pursuant to the terms of the related Servicing Agreement. The related Servicer
shall be obligated to make any such Advance only to the extent that such advance
would not be a Nonrecoverable Advance. If the related Servicer shall have
determined that it has made a Nonrecoverable Advance or that a proposed Advance
or a lesser portion of such Advance would constitute a Nonrecoverable Advance,
the related Servicer shall deliver (i) to the Trustee for the benefit of the
Certificateholders funds constituting the remaining portion of such Advance,
if
applicable, and (ii) to the Master Servicer an Officer’s Certificate setting
forth the basis for such determination. Subject
to the Master Servicer’s recoverability determination, in the event that a
Servicer (other than the Company) fails to make a required Advance, the Master
Servicer, as successor servicer, shall be required to remit the amount of such
Advance to the Master Servicer Collection Account.
If EMC
or the Master Servicer were required to make an Advance but failed to do so,
the
Trustee upon receiving notice or becoming aware of such failure, and pursuant
to
the applicable terms of this Agreement, shall appoint a successor servicer
or
Master Servicer, as applicable, who will make such Advance, or the Trustee
as
successor master servicer shall be
required to remit the amount of such Advance to the Master Servicer Collection
Account, unless
the Trustee shall have determined that such Advance is a Nonrecoverable Advance.
If the Trustee cannot find a successor servicer to replace the Company as
Servicer the Trustee shall become the successor servicer and shall be required
to remit the amount of such Advance to the Master Servicer Collection Account,
unless the Trustee shall have determined that such Advance is a Nonrecoverable
Advance.
Section
6.07 Compensating
Interest Payments.
The
Master Servicer shall deliver to the Trustee for deposit in the Distribution
Account not later than the related Distribution Account Deposit Date an amount
equal to the sum of the aggregate amounts paid by the Servicers under the
related Servicing Agreement with respect to subclauses (a) and (b) of the
definition of Interest Shortfall with respect to the Mortgage Loans for the
related Distribution Date.
ARTICLE
VII
The
Master Servicer
Section
7.01 Liabilities
of the Master Servicer.
The
Master Servicer shall be liable in accordance herewith only to the extent of
the
obligations specifically imposed upon and undertaken by it herein.
Section
7.02 Merger
or Consolidation of the Master Servicer.
(a) The
Master Servicer will keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation,
and will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Certificates or any of the Mortgage Loans and to perform its duties under this
Agreement.
(b) Any
Person into which the Master Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
Section
7.03 Indemnification
of the Trustee and the Master Servicer
(a) The
Master Servicer agrees to indemnify the Indemnified Persons for, and to hold
them harmless against, any loss, liability or expense (including reasonable
legal fees and disbursements of counsel) incurred on their part that may be
sustained in connection with, arising out of, or relating to, any claim or
legal
action (including any pending or threatened claim or legal action) relating
to
this Agreement with respect to the Mortgage Loans and the Certificates, the
Servicing Agreements, the Assignment Agreement or the Certificates or the powers
of attorney delivered by the Trustee hereunder (i) related to the Master
Servicer’s failure to perform its duties in compliance with this Agreement
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) or (ii) incurred by reason of the Master Servicer’s
willful misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided, in each case, that with respect to any such claim or legal
action (or pending or threatened claim or legal action), the Indemnified
Person shall
have given the Master Servicer and the Depositor written notice thereof promptly
after a Responsible Officer of the Indemnified Person shall have with respect
to
such claim or legal action and actual knowledge thereof. The Master Servicer’s
failure to receive any such notice shall not affect the Indemnified Person’s
right to indemnification hereunder, except to the extent the Master Servicer
is
materially prejudiced by such failure to give notice. This indemnity shall
survive the resignation or removal of the Trustee or the Master Servicer and
the
termination of this Agreement.
(b) [Reserved].
(c) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise covered by the Master Servicer’s
indemnification pursuant to Subsection (a) above.
Section
7.04 Limitations
on Liability of the Master Servicer and Others.
Subject
to the obligation of the Master Servicer to indemnify the Indemnified Persons
pursuant to Section 7.03:
(a) Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Indemnified Persons,
the
Depositor, the Trust Fund or the Holders of the Certificates for taking any
action or for refraining from taking any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such Person against any breach
of
warranties or representations made herein or any liability which would otherwise
be imposed by reason of such Person’s willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard
of
obligations and duties hereunder.
(b) The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
(c) The
Master Servicer, the Custodian and any director, officer, employee or agent
of
the Master Servicer or the Custodian, and the Trustee, to the extent it becomes
a party to the EMC Servicing Agreement pursuant to Section 3.03, and any
officer, director, employee or agent of the Trustee, shall be indemnified by
the
Trust and held harmless thereby against any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on
their
part that may be sustained in connection with, arising out of, or related to,
any claim or legal action (including any pending or threatened claim or legal
action) relating to this Agreement, the Certificates or any Servicing Agreement
(except to the extent that the Master Servicer or the Trustee, as the case
may
be, is indemnified by the Servicer thereunder), other than (i) any such loss,
liability or expense related to the Master Servicer’s failure to perform its
duties in compliance with this Agreement (except as any such loss, liability
or
expense shall be otherwise reimbursable pursuant to this Agreement), or to the
Custodian’s failure to perform its duties under the Custodial Agreement,
respectively, or (ii) any such loss, liability or expense incurred by reason
of
the Master Servicer’s or the Custodian’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or under the Custodial
Agreement, as applicable, or by reason of reckless disregard of obligations
and
duties hereunder or under the Custodial Agreement, as applicable.
(d) The
Master Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided, however, the Master Servicer may in its discretion, with the consent
of the Trustee (which consent shall not be unreasonably withheld), undertake
any
such action which it may deem necessary or desirable with respect to this
Agreement and the rights and duties of the parties hereto and the interests
of
the Holders of the Certificates hereunder. In such event, the legal expenses
and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund and the Master Servicer shall be
entitled to be reimbursed therefor out of the Master Servicer Collection Account
as provided by Section 4.03. Nothing in this Subsection 7.04(d) shall affect
the
Master Servicer’s obligation to supervise, or to take such actions as are
necessary to ensure, the servicing and administration of the Mortgage Loans
pursuant to Section 3.01.
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Master Servicer
shall not be required to investigate or make recommendations concerning
potential liabilities which the Trust might incur as a result of such course
of
action by reason of the condition of the Mortgaged Properties but shall give
notice to the Trustee if it has notice of such potential
liabilities.
(f) The
Master Servicer shall not be liable for any acts or omissions of the related
Servicers.
(g) The
Master Servicer may perform any of its duties hereunder or exercise its rights
hereunder either directly or through Affiliates, agents or
attorneys.
Section
7.05 Master
Servicer Not to Resign.
Except
as
provided in Section 7.07, the Master Servicer shall not resign from the
obligations and duties hereby imposed on it except (i) with the prior consent
of
the Trustee (which
consent shall not be unreasonably withheld or delayed)
or (ii)
upon a determination that any such duties hereunder are no longer permissible
under applicable law and such impermissibility cannot be cured; provided,
however, in the event that the Trustee resigns or is terminated or removed
in
accordance with the provisions hereof, the Master Servicer shall resign. Any
such determination permitting the resignation of the Master Servicer shall
be
evidenced by an Opinion of Independent Counsel addressed to the Trustee to
such
effect delivered to the Trustee. No such resignation by the Master Servicer
shall become effective until the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section 8.02 hereof.
The Trustee shall notify the Rating Agencies of the resignation of the Master
Servicer.
Section
7.06 Successor
Master Servicer.
In
connection with the appointment of any successor master servicer or the
assumption of the duties of the Master Servicer, the Seller or the Trustee
may
make such arrangements for the compensation of such successor master servicer
out of payments on the Mortgage Loans as the Seller or the Trustee and such
successor master servicer shall agree. If the successor master servicer does
not
agree that such market value is a fair price, such successor master servicer
shall obtain two quotations of market value from third parties actively engaged
in the servicing of single-family mortgage loans. Notwithstanding the foregoing,
in no event shall the compensation of any Successor Master Servicer exceed
that
permitted the Master Servicer hereunder without the consent of all of the
Certificateholders..
Section
7.07 Sale
and Assignment of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in its entirety as Master Servicer under this Agreement; provided,
however, that: (i) the purchaser or transferee accepting such assignment and
delegation (a) shall be a Person which shall be qualified to service mortgage
loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b) shall have a net worth of not less
than
$10,000,000 (unless otherwise approved by each Rating Agency pursuant to clause
(ii) below); (c) shall be reasonably satisfactory to the Trustee (as evidenced
in a writing signed by the Trustee); and (d) shall execute and deliver to the
Trustee an agreement, in form and substance reasonably satisfactory to the
Trustee, which contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by it as master servicer under this Agreement, any custodial agreement
from and after the effective date of such agreement; (ii) each Rating Agency
shall be given prior written notice of the identity of the proposed successor
to
the Master Servicer and each Rating Agency’s rating of the Certificates in
effect immediately prior to such assignment, sale and delegation will not be
downgraded, qualified or withdrawn as a result of such assignment, sale and
delegation, as evidenced by a letter to such effect delivered to the Master
Servicer and the Trustee; and (iii) the Master Servicer assigning and selling
the master servicing shall deliver to the Trustee an Officer’s Certificate and
an Opinion of Independent Counsel addressed to the Trustee, each stating that
all conditions precedent to such action under this Agreement have been completed
and such action is permitted by and complies with the terms of this Agreement.
No such assignment or delegation shall affect any liability of the Master
Servicer arising prior to the effective date thereof.
ARTICLE
VIII
Default
Section
8.01 Events
of Default.
“Event
of
Default,” wherever used herein, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) and only with respect to the defaulting
Master Servicer:
(i) Any
failure by the Master Servicer to remit to the Trustee any amounts received
or
collected by the Master Servicer in respect of the Mortgage Loans and required
to be remitted by it (other than any Advance) pursuant to this Agreement, which
failure shall continue unremedied for one Business Day after the date on which
written notice of such failure shall have been given to the Master Servicer
by
the Trustee or the Depositor, or to the Trustee and the Master Servicer by
the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates; or
(ii) any
failure by the Master Servicer to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Master Servicer
contained in this Agreement or any breach of a representation or warranty by
the
Master Servicer, which failure or breach shall continue unremedied for a period
of 60 days after the date on which written notice of such failure, properly
requiring the same to be remedied, shall have been given to the Master Servicer
by the Trustee or to the Master Servicer and the Trustee by the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less
than
25% of the Trust Fund; or
(iii) There
is
entered against the Master Servicer a decree or order by a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the winding
up or liquidation of its affairs, and the continuance of any such decree or
order is unstayed and in effect for a period of 60 consecutive days, or an
involuntary case is commenced against the Master Servicer under any applicable
insolvency or reorganization statute and the petition is not dismissed within
60
days after the commencement of the case; or
(iv) The
Master Servicer consents to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or
substantially all of its property; or the Master Servicer admits in writing
its
inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes
an
assignment for the benefit of its creditors, or voluntarily suspends payment
of
its obligations;
(v) The
Master Servicer assigns or delegates its duties or rights under this Agreement
in contravention of the provisions permitting such assignment or delegation
under Sections 7.05 or 7.07; or
(vi) The
Master Servicer fails to deposit or cause to be deposited, in the Distribution
Account any Monthly Advance required to be made by the Master Servicer (other
than a Nonrecoverable Advance) by the close of business on the Business Day
prior to the related Distribution Date.
In
each
and every such case, so long as such Event of Default with respect to the Master
Servicer shall not have been remedied, either the Trustee or the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less
than
51% of the principal of the Trust Fund, by notice in writing to the Master
Servicer (and to the Trustee if given by such Holders of the Certificates),
with
a copy to the Rating Agencies, may terminate all of the rights and obligations
(but not the liabilities) of the Master Servicer under this Agreement and in
and
to the Mortgage Loans and/or the REO Property serviced by the Master Servicer
and the proceeds thereof. Upon the receipt by the Master Servicer of the written
notice, all authority and power of the Master Servicer under this Agreement,
whether with respect to the Certificates, the Mortgage Loans, REO Property
or
under any other related agreements (but only to the extent that such other
agreements relate to the Mortgage Loans or related REO Property) shall, subject
to Section 8.02, automatically and without further action pass to and be vested
in the Trustee pursuant to this Section 8.01; and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of
the Master Servicer as attorney-in-fact or otherwise, any and all documents
and
other instruments and to do or accomplish all other acts or things necessary
or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer agrees to cooperate with
the Trustee in effecting the termination of the Master Servicer’s rights and
obligations hereunder, including, without limitation, the transfer to the
Trustee of (i) the property and amounts which are then or should be part of
the
Trust or which thereafter become part of the Trust; and (ii) originals or copies
of all documents of the Master Servicer reasonably requested by the Trustee
to
enable it to assume the Master Servicer’s duties thereunder. All reasonable and
properly documented costs and expenses incurred by the Trustee in connection
with such transfer shall be reimbursed to the Trustee by the Master Servicer
within 30 days of request therefor or, if the Master Servicer fails to pay
any
such amount, reimbursed from amounts on deposit in the Distribution Amount.
In
addition to any other amounts which are then, or, notwithstanding the
termination of its activities under this Agreement, may become payable to the
Master Servicer under this Agreement, the Master Servicer shall be entitled
to
receive, out of any amount received on account of a Mortgage Loan or related
REO
Property, that portion of such payments which it would have received as
reimbursement under this Agreement if notice of termination had not been given.
The termination of the rights and obligations of the Master Servicer shall
not
affect any obligations incurred by the Master Servicer prior to such
termination.
Notwithstanding
the foregoing, if an Event of Default described in clause (vi) of this Section
8.01 shall occur, the Trustee upon receiving notice or becoming aware of such
failure, and pursuant to the applicable terms of this Agreement, shall, by
notice in writing to the Master Servicer, which may be delivered by telecopy,
immediately terminate all of the rights and obligations of the Master Servicer
thereafter arising under this Agreement, but without prejudice to any rights
it
may have as a Holder of the Certificates or to reimbursement of Monthly Advances
and other advances of its own funds, and the Trustee shall act as provided
in
Section 8.02 to carry out the duties of the Master Servicer, including the
obligation to make any Monthly Advance the nonpayment of which was an Event
of
Default described in clause (vi) of this Section 8.01. Any such action taken
by
the Trustee must be prior to the distribution on the relevant Distribution
Date.
Section
8.02 Trustee
to Act; Appointment of Successor.
(a) Upon
the
receipt by the Master Servicer of a notice of termination pursuant to Section
8.01 or an Opinion of Independent Counsel pursuant to Section 7.05 to the effect
that the Master Servicer is legally unable to act or to delegate its duties
to a
Person which is legally able to act, the Trustee shall automatically become
the
successor in all respects to the Master Servicer in its capacity under this
Agreement and the transactions set forth or provided for herein and shall
thereafter have all the rights and powers of, and be subject to all the
responsibilities, duties, liabilities and limitations on liabilities relating
thereto placed on the Master Servicer by the terms and provisions hereof
(including the requirement to make Monthly Advances pursuant to Section 6.06);
provided, however, that the Trustee shall have no obligation whatsoever with
respect to any liability (other than advances deemed recoverable and not
previously made) incurred by the Master Servicer at or prior to the time of
termination. As compensation therefor, the Trustee shall be entitled to
compensation which the Master Servicer would have been entitled to retain if
the
Master Servicer had continued to act hereunder, except for those amounts due
the
Master Servicer as reimbursement permitted under this Agreement for advances
previously made or expenses previously incurred. Notwithstanding the above,
the
Trustee may, if it shall be unwilling so to act, or shall, if it is legally
unable so to act, appoint or petition a court of competent jurisdiction to
appoint, any established housing and home finance institution which is a ▇▇▇▇▇▇
▇▇▇- or ▇▇▇▇▇▇▇ Mac-approved servicer, and with respect to a successor to the
Master Servicer only, having a net worth of not less than $10,000,000, as the
successor to the Master Servicer hereunder in the assumption of all or any
part
of the responsibilities, duties or liabilities of the Master Servicer hereunder;
provided, that the Trustee shall obtain a letter from each Rating Agency that
the ratings, if any, on each of the Certificates will not be lowered as a result
of the selection of the successor to the Master Servicer. Pending appointment
of
a successor to the Master Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such
successor out of payments on the Mortgage Loans as it and such successor shall
agree; provided, however, that the provisions of Section 7.06 shall apply,
the
compensation shall not be in excess of that which the Master Servicer would
have
been entitled to if the Master Servicer had continued to act hereunder, and
that
such successor shall undertake and assume the obligations of the Master Servicer
to pay compensation to any third Person acting as an agent or independent
contractor in the performance of master servicing responsibilities hereunder.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
(b) If
the
Trustee shall succeed to any duties of the Master Servicer respecting the
Mortgage Loans as provided herein, it shall do so in a separate capacity and
not
in its capacity as Trustee and, accordingly, the provisions of Article IX shall
be inapplicable to the Trustee in its duties as the successor to the Master
Servicer in the servicing of the Mortgage Loans (although such provisions shall
continue to apply to the Trustee in its capacity as Trustee); the provisions
of
Article VII, however, shall apply to it in its capacity as successor master
servicer.
Section
8.03 Notification
to Certificateholders.
Upon
any
termination or appointment of a successor to the Master Servicer, the Trustee
shall give prompt written notice thereof to Holders of the Certificates at
their
respective addresses appearing in the Certificate Register and to the Rating
Agencies.
Section
8.04 Waiver
of Defaults.
The
Trustee shall transmit by mail to all Holders of the Certificates, within 60
days after the occurrence of any Event of Default actually known to a
Responsible Officer of the Trustee, unless such Event of Default shall have
been
cured, notice of each such Event of Default. The Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of
the
Trust Fund may, on behalf of all Holders of the Certificates, waive any default
by the Master Servicer in the performance of its obligations hereunder and
the
consequences thereof, except a default in the making of or the causing to be
made any required distribution on the Certificates, which default may only
be
waived by Holders of Certificates evidencing Fractional Undivided Interests
aggregating 100% of the Trust Fund. Upon any such waiver of a past default,
such
default shall be deemed to cease to exist, and any Event of Default arising
therefrom shall be deemed to have been timely remedied for every purpose of
this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
The Trustee shall give notice of any such waiver to the Rating
Agencies.
Section
8.05 List
of Certificateholders.
Upon
written request of three or more Holders of Certificates of record, for purposes
of communicating with other Holders of Certificates with respect to their rights
under this Agreement, the Trustee will afford such Certificateholders access
during business hours to the most recent list of related Certificateholders
held
by the Trustee.
ARTICLE
IX
Concerning
the Trustee
Section
9.01 Duties
of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiver of all Events of Default which may have occurred undertakes to perform
such duties and only such duties as are specifically set forth in this Agreement
as duties of the Trustee. If an Event of Default has occurred and has not been
cured or waived, the Trustee shall exercise such of the rights and powers vested
in it by this Agreement use the same degree of care and skill in their exercise,
as a prudent person would exercise under the circumstances in the conduct of
his
own affairs.
(b) Upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments which are specifically required to be
furnished to the Trustee pursuant to any provision of this Agreement, the
Trustee shall examine them to determine whether they are on their face in the
form required by this Agreement; provided, however, that the Trustee shall
not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished
hereunder; provided, further, that the Trustee shall not be responsible for
the
accuracy or verification of any calculation provided to it pursuant to this
Agreement.
(c) On
each
Distribution Date, the Trustee shall make monthly distributions and the final
distribution to the related Certificateholders from funds in the Distribution
Account, as provided in Sections 6.01 and 10.01 herein based solely on the
report of the Trustee.
(d) No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct; provided, however, that:
(i) Prior
to
the occurrence of an Event of Default, and after the curing or waiver of all
such Events of Default which may have occurred, the duties and obligations
of
the Trustee shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the performance of their
respective duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee and, in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee, and conforming to the requirements of this
Agreement;
(ii) The
Trustee shall not be liable in its individual capacity for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the directions of
the
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 25% of the portion of the Trust Fund related to such Certificates,
if such action or non-action relates to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or other power conferred upon the Trustee under this Agreement;
(iv) The
Trustee shall not be required to take notice or be deemed to have notice or
knowledge of any default or Event of Default unless a Responsible Officer of
the
Trustee’s Corporate Trust Office shall have actual knowledge thereof. In the
absence of such notice, the Trustee may conclusively assume there is no such
default or Event of Default;
(v) The
Trustee shall not in any way be liable by reason of any insufficiency in any
Account held by or in the name of Trustee unless it is determined by a court
of
competent jurisdiction that the Trustee’s gross negligence or willful misconduct
was the primary cause of such insufficiency (except to the extent that the
Trustee is obligor and has defaulted thereon);
(vi) Anything
in this Agreement to the contrary notwithstanding, in no event shall the Trustee
be liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee
has
been advised of the likelihood of such loss or damage and regardless of the
form
of action;
(vii) None
of
the Depositor or the Trustee shall be responsible for the acts or omissions
of
the other, it being understood that this Agreement shall not be construed to
render them partners, joint venturers or agents of one another and
(viii) The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial liability in the performance of any of its duties hereunder, or in
the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations
of
the Master Servicer under the Servicing Agreements, except during such time,
if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Master Servicer in accordance with the
terms of this Agreement.
(e) All
funds
received by the Master Servicer and the Trustee and required to be deposited
in
the Master Servicer Collection Account pursuant to this Agreement will be
promptly so deposited by the Master Servicer or the Trustee, as
applicable.
(f) Except
for those actions that the Trustee is required to take hereunder, the Trustee
shall not have any obligation or liability to take any action or to refrain
from
taking any action hereunder in the absence of written direction as provided
hereunder.
Section
9.02 Certain
Matters Affecting the Trustee.
Except
as
otherwise provided in Section 9.01:
(i) The
Trustee may rely and shall be protected in acting or refraining from acting
in
reliance on any resolution, certificate of the Depositor, the Master Servicer
or
a Servicer, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or
other paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties;
(ii) The
Trustee may consult with counsel and any advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection with respect
to any action taken or suffered or omitted by it hereunder in good faith and
in
accordance with such advice or Opinion of Counsel;
(iii) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement, other than its obligation to give notices
pursuant to this Agreement, or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of
the
Certificateholders pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby. Nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge (which has not been
cured or waived), to exercise such of the rights and powers vested in it by
this
Agreement, and to use the same degree of care and skill in their exercise,
as a
prudent person would exercise under the circumstances in the conduct of his
own
affairs;
(iv) Prior
to
the occurrence of an Event of Default hereunder and after the curing or waiver
of all Events of Default which may have occurred, the Trustee shall not be
liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the portion
of
the Trust Fund related to such Certificates, and provided that the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement. The Trustee may require
reasonable indemnity against such expense or liability as a condition to taking
any such action. The reasonable expense of every such examination shall be
paid
by the related Certificateholders requesting the investigation;
(vi) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or through Affiliates, agents or attorneys; provided,
however, that the Trustee may not appoint any agent to perform its custodial
functions with respect to the Mortgage Files or paying agent functions under
this Agreement without the express written consent of the Master Servicer,
which
consent will not be unreasonably withheld. The Trustee shall not be liable
or
responsible for the misconduct or negligence of any of the Trustee’s agents or
attorneys or a custodian or paying agent appointed hereunder by the Trustee
with
due care and, when required, with the consent of the Master
Servicer;
(vii) Should
the Trustee deem the nature of any action required on its part, to be unclear,
the Trustee may require prior to such action that it be provided by the
Depositor with reasonable further instructions;
(viii) The
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be accountable
for
other than its negligence or willful misconduct in the performance of any such
act;
(ix) The
Trustee shall not be required to give any bond or surety with respect to the
execution of the trust created hereby or the powers granted hereunder, except
as
provided in Section 9.07; and
(x) The
Trustee shall not have any duty to conduct any affirmative investigation as
to
the occurrence of any condition requiring the repurchase of any Mortgage Loan
by
the Seller pursuant to this Agreement or the Mortgage Loan Purchase Agreement,
as applicable, or the eligibility of any Mortgage Loan for purposes of this
Agreement.
Section
9.03 Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates (other than the signature
and
countersignature of the Trustee on such Certificates) shall be taken as the
statements of the Depositor, and neither the Trustee, nor the Custodian on
its
behalf, shall have any responsibility for their correctness. The Trustee does
not make any representation as to the validity or sufficiency of the
Certificates (other than the signature and countersignature of the Trustee
on
the such Certificates) or of any Mortgage Loan; provided, however, that the
foregoing shall not relieve the Trustee, or the Custodian on its behalf, of
the
obligation to review the Mortgage Files pursuant to Sections 2.02 and 2.04.
The
Trustee’s signature and countersignature (or countersignature of its agent) on
the Certificates shall be solely in its capacity as Trustee and shall not
constitute the Certificates an obligation of the Trustee in any other capacity.
The Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for
the
use or application of any funds paid to the Depositor with respect to the
Mortgage Loans. The Trustee shall not be responsible for the legality or
validity of this Agreement or any document or instrument relating to this
Agreement, the validity of the execution of this Agreement or of any supplement
hereto or instrument of further assurance, or the validity, priority, perfection
or sufficiency of the security for the Certificates issued hereunder or intended
to be issued hereunder. The Trustee shall not at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of either Trust Fund, or any portion
of either Trust Fund or its ability to make the payments to be distributed
to
Certificateholders, under this Agreement. The Trustee shall not have any
responsibility for filing any financing statement or continuation statement
in
any public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement.
Section
9.04 Trustee
May Own Certificates.
The
Trustee in its individual capacity or in any capacity other than as Trustee
hereunder may become the owner or pledgee of any Certificates with the same
rights it would have if it were not Trustee and may otherwise deal with the
parties hereto.
Section
9.05 Trustee’s
Fees and Expenses.
The
Trustee will be entitled to recover, from the Distribution Account pursuant
to
Section 4.05, the Trustee Fee, all reasonable out-of-pocket expenses,
disbursements and advances and the expenses of the Trustee in connection with
any Event of Default, any breach of this Agreement or any claim or legal action
(including any pending or threatened claim or legal action) or incurred or
made
by the Trustee in the administration of the trusts hereunder (including the
reasonable compensation, expenses and disbursements of its counsel) except
any
such expense, disbursement or advance as may arise from its negligence or
intentional misconduct or which is the responsibility of the Certificateholders.
If funds in the Distribution Account are insufficient therefor, the Trustee
shall recover such expenses from the Depositor and the Depositor hereby agrees
to pay such expenses, disbursements or advances upon demand. Such compensation
and reimbursement obligation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust.
Section
9.06 Eligibility
Requirements for Trustee.
The
Trustee and any successor Trustee shall during the entire duration of this
Agreement be a state bank or trust company or a national banking association
organized and doing business under the laws of such state or the United States
of America, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Trustee, $50,000,000, subject to
supervision or examination by federal or state authority and, in the case of
the
Trustee, rated “BBB” or higher by S&P or Fitch and “Baa2” or higher by
▇▇▇▇▇’▇ with respect to their long-term rating and rated “BBB” or higher by
S&P or Fitch and “Baa2” or higher by ▇▇▇▇▇’▇ with respect to any outstanding
long-term unsecured unsubordinated debt, and, in the case of a successor Trustee
other than pursuant to Section 9.10, rated in one of the two highest long-term
debt categories of, or otherwise acceptable to, each of the Rating Agencies.
If
the Trustee publishes reports of condition at least annually, pursuant to law
or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 9.06 the combined capital and surplus of such
corporation shall be deemed to be its total equity capital (combined capital
and
surplus) as set forth in its most recent report of condition so published.
In
case at any time the Trustee shall cease to be eligible in accordance with
the
provisions of this Section 9.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.08.
The
Trustee may not be the Seller, an originator of any of the Mortgage Loans,
the
Master Servicer, a Servicer, the Depositor or an affiliate of the Depositor
unless the Trustee is in an institutional trust department of U.S. Bank National
Association.
Section
9.07 Insurance.
The
Trustee at its own expense, shall at all times maintain and keep in full force
and effect: (i) fidelity insurance, (ii) theft of documents insurance and (iii)
forgery insurance (which may be collectively satisfied by a “Financial
Institution Bond” and/or a “Bankers’ Blanket Bond”). All such insurance shall be
in amounts, with standard coverage and subject to deductibles, as are customary
for insurance typically maintained by banks or their affiliates which act as
custodians for investor-owned mortgage pools. A certificate of an officer of
the
Trustee as to the Trustee’s compliance with this Section 9.07 shall be furnished
to any Certificateholder upon reasonable written request.
Section
9.08 Resignation
and Removal of the Trustee.
(a) The
Trustee may at any time resign and be discharged from the Trust hereby created
by giving written notice thereof to the Depositor, the Seller and the Master
Servicer, with a copy to the Rating Agencies. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered
to
each of the resigning trustee and the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any
court of competent jurisdiction for the appointment of a successor
trustee.
(b) If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 9.06 and shall fail to resign after written request therefor by the
Depositor or if at any time the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee, or
of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee, or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Depositor shall promptly
remove the Trustee, and appoint a successor Trustee, by written instrument,
in
triplicate, one copy of which instrument shall be delivered to the Trustee,
so
removed, the successor Trustee.
(c) The
Holders of Certificates evidencing Fractional Undivided Interests aggregating
not less than 51% of the portion of the Trust Fund related to such Certificates,
may at any time remove the Trustee and appoint a successor Trustee for the
related Trust Fund by written instrument or instruments, in quadruplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Depositor, and the Trustee
so
removed and the successor so appointed. In the event that the Trustee is removed
by the Holders of Certificates in accordance with this Section 9.08(c), the
Holders of such Certificates shall be responsible for paying any compensation
payable to a successor Trustee, in excess of the amount paid to the predecessor
Trustee.
(d) No
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 9.08 shall become effective
except upon appointment of and acceptance of such appointment by the successor
Trustee as provided in Section 9.09.
Section
9.09 Successor
Trustee.
(a) Any
successor Trustee appointed as provided in Section 9.08 shall execute,
acknowledge and deliver to the Depositor and to its predecessor Trustee an
instrument accepting such appointment hereunder. The resignation or removal
of
the predecessor Trustee shall then become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with
all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee herein. The predecessor Trustee
shall after payment of its outstanding fees and expenses promptly deliver to
the
successor Trustee all assets and records of the Trust held by it hereunder,
and
the Depositor and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee, all such
rights, powers, duties and obligations.
(b) No
successor Trustee shall accept appointment as provided in this Section 9.09
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 9.06.
(c) Upon
acceptance of appointment by a successor trustee as provided in this Section
9.09, the successor trustee shall mail notice of the succession of such trustee
hereunder to all Certificateholders at their addresses as shown in the
Certificate Register and to the Rating Agencies. The Depositor shall cause
such
notice to be mailed at the expense of the Trust Fund.
Section
9.10 Merger
or Consolidation of Trustee.
Any
state
bank or trust company or national banking association into which the Trustee
may
be merged or converted or with which it may be consolidated or any state bank
or
trust company or national banking association resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any state
bank or trust company or national banking association succeeding to all or
substantially all of the corporate trust business of the Trustee shall be the
successor of the Trustee hereunder, provided such state bank or trust company
or
national banking association shall be eligible under the provisions of Section
9.06. Such succession shall be valid without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section
9.11 Appointment
of Co-Trustee or Separate Trustee.
(a) Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust or property
constituting the same may at the time be located, the Depositor and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee and the
Depositor to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust, and
to
vest in such Person or Persons, in such capacity, such title to the Trust,
or
any part thereof, and, subject to the other provisions of this Section 9.11,
such powers, duties, obligations, rights and trusts as the Depositor and the
Trustee may consider necessary or desirable.
(b) If
the
Depositor shall not have joined in such appointment within 15 days after the
receipt by it of a written request so to do, the Trustee shall have the power
to
make such appointment without the Depositor.
(c) No
co-trustee or separate trustee hereunder shall be required to meet the terms
of
eligibility as a successor Trustee under Section 9.06 hereunder and no notice
to
Certificateholders of the appointment of co-trustee(s) or separate trustee(s)
shall be required under Section 9.08 hereof.
(d) In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 9.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee and required to be conferred on such co-trustee shall be
conferred or imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly, except to the extent that under any
law
of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts,
in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust or any portion thereof in any such jurisdiction) shall
be
exercised and performed by such separate trustee or co-trustee at the direction
of the Trustee.
(e) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
IX.
Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(f) To
the
extent not prohibited by law, any separate trustee or co-trustee may, at any
time, request the Trustee, its agent or attorney-in-fact, with full power and
authority, to do any lawful act under or with respect to this Agreement on
its
behalf and in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties
rights, remedies and trusts shall vest in and be exercised by the Trustee,
to
the extent permitted by law, without the appointment of a new or successor
Trustee.
(g) No
trustee under this Agreement shall be personally liable by reason of any act
or
omission of another trustee under this Agreement. The Depositor and the Trustee
acting jointly may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Section
9.12 Federal
Information Returns and Reports to Certificateholders; REMIC
Administration.
(a) For
federal income tax purposes, the taxable year of the Trust REMIC shall be a
calendar year and the Trustee shall maintain or cause the maintenance of the
books of each such REMIC on the accrual method of accounting.
(b) The
Trustee shall prepare, sign and file or cause to be filed with the Internal
Revenue Service federal tax information returns or elections required to be
made
hereunder with respect to the Trust REMIC, each Trust Fund, if applicable,
and
the Certificates containing such information and at the times and in the manner
as may be required by the Code or applicable Treasury regulations, and shall
furnish to each Holder of Certificates at any time during the calendar year
for
which such returns or reports are made such statements or information at the
times and in the manner as may be required thereby, including, without
limitation, reports relating to interest, original issue discount and market
discount or premium (using a constant prepayment assumption of 300% PSA as
described in the prospectus supplement relating to the Offered Certificates).
The Trustee will apply for an Employee Identification Number from the Internal
Revenue Service under Form SS-4 or any other acceptable method for all tax
entities. In connection with the foregoing, the Trustee shall timely prepare,
file and sign, Internal Revenue Service Form 8811, which shall provide the
name
and address of the person who can be contacted to obtain information required
to
be reported to the holders of regular interests in the Trust REMIC (the “REMIC
Reporting Agent”). The Trustee shall make elections to treat the Trust REMIC as
a REMIC (which elections shall apply to the taxable period ending December
31,
2007 and each calendar year thereafter) in such manner as the Code or applicable
Treasury regulations may prescribe, and as described by the Trustee. The Trustee
shall sign all tax information returns filed pursuant to this Section and any
other returns as may be required by the Code. The Holder of the Class R
Certificate is hereby designated as the “Tax Matters Person” within the meaning
of Treasury Regulation Section 1.860F-4(d)) for the Trust REMIC. The Trustee
is
hereby designated and appointed as the agent of each such Tax Matters Person.
Any Holder of a Residual Certificate will by acceptance thereof appoint the
Trustee as agent and attorney-in-fact for the purpose of acting as Tax Matters
Person for the Trust REMIC during such time as the Trustee does not own any
such
Residual Certificate. In the event that the Code or applicable Treasury
regulations prohibit the Trustee from signing tax or information returns or
other statements, or the Trustee from acting as agent for the Tax Matters
Person, the Trustee shall take whatever action that in their sole good faith
judgment is necessary for the proper filing of such information returns or
for
the provision of a Tax Matters Person, including designation of the Holder
of a
Residual Certificate to sign such returns or act as Tax Matters Person. Each
Holder of a Residual Certificate shall be bound by this Section.
(c) The
Trustee shall provide upon request and receipt of reasonable compensation such
information as required in Section 860D(a)(6)(B) of the Code to the Internal
Revenue Service, to any Person purporting to transfer a Residual Certificate
to
a Person other than a transferee permitted by Section 5.05(b), and to any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate, organization described in Section 1381 of the Code,
or nominee holding an interest in a pass-through entity described in Section
860E(e)(6) of the Code, any record holder of which is not a transferee permitted
by Section 5.05(b) (or which is deemed by statute to be an entity with a
disqualified member).
(d) The
Trustee shall prepare, sign and file or cause to be filed any state income
tax
returns required under Applicable State Law with respect to the Trust REMIC
or
the Trust Fund.
(e) Notwithstanding
any other provision of this Agreement, the Trustee shall comply with all federal
withholding requirements respecting payments to Certificateholders of interest,
original issue discount or principal on the Certificates that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event
the
Trustee withholds any amount from payments of interest, original issue discount
or principal or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall, together with its monthly report
to
such Certificateholders, indicate such amount withheld.
(f) The
Trustee agrees to indemnify the Trust Fund and the Depositor for any taxes
and
costs including, without limitation, any reasonable attorneys fees imposed
on or
incurred by such Trust Fund, the Depositor or the Master Servicer, as a result
of a breach of the Trustee’s covenants set forth in this Section 9.12; provided,
however, such liability and obligation to indemnify in this paragraph shall
not
be joint and several, and the Trustee shall not be liable or be obligated to
indemnify the Trust Fund for the failure by the other to perform any duty under
this Agreement or the breach by the other of any covenant in this Agreement.
In
the event that any liable party hereto fails to honor its obligations under
the
preceding sentences, or taxes imposed on the Trust Fund are not otherwise paid,
such taxes shall be paid first with amounts otherwise to be distributed to
the
Class R Certificates, and second with amounts otherwise to be distributed to
the
Holders of the following other Certificates in the following order of priority:
first,
to
the
Class B-6 Certificates, second, to the Class B-5 Certificates, third, to the
Class B-4 Certificates, fourth, to the Class B-3 Certificates, fifth, to the
Class B-2 Certificates, sixth, to the Class B-1 Certificates, and eighth, to
the
Class A, Class X and Class PO Certificates (on a pro rata basis based on the
amounts to be distributed). Notwithstanding anything to the contrary contained
herein, to the extent that such tax is payable by the Holder of any such
Certificates, the Trustee is hereby authorized to retain on any Distribution
Date, from the Holders of the Class R Certificates (and, if necessary, from
the
Holders of the other relevant Certificates in the priority specified in the
preceding sentence), funds otherwise distributable to such Holders in an amount
sufficient to pay such tax.
The Trustee
shall include in its monthly statement amounts allocated to the relevant
Certificates, taking into account the priorities described in the second
preceding sentence. The
Trustee shall promptly notify in writing the party liable for any such tax
of
the amount thereof and the due date for the payment thereof.
ARTICLE
X
Termination
Section
10.01 Termination
Upon Repurchase by the Depositor or its Designee or Liquidation of the Mortgage
Loans.
(a) Subject
to Section 10.02, the respective obligations and responsibilities of the
Depositor, the Trustee and the Master Servicer created hereby with respect
to
the Trust Fund and the related Certificates, other than the obligation of the
Trustee to make payments to related Certificateholders as hereinafter set forth
and the indemnification obligations under Section 7.03 hereof, shall terminate
upon:
(i) the
repurchase by or at the direction of the Depositor or its designee of all of
the
Mortgage Loans and all related REO Property remaining at a price (in each case,
the “Termination Purchase Price”) equal to the sum of (a) 100% of the
Outstanding Principal Balance of each such Mortgage Loan (other than a Mortgage
Loan related to REO Property) as of the date of repurchase, net of the principal
portion of any unreimbursed Monthly Advances made by the purchaser, together
with interest at the applicable Mortgage Interest Rate accrued but unpaid to,
but not including, the first day of the month of repurchase, (b) the appraised
value of any related REO Property, less the good faith estimate of the Depositor
of liquidation expenses to be incurred in connection with its disposal thereof
(but not more than the Outstanding Principal Balance of the related Mortgage
Loan, together with interest at the applicable Mortgage Interest Rate accrued
on
that balance but unpaid to, but not including, the first day of the month of
repurchase), such appraisal to be calculated by an appraiser mutually agreed
upon by the Depositor and the Trustee at the expense of the Depositor, (c)
unreimbursed out-of pocket costs of the Master Servicer, including unreimbursed
servicing advances and the principal portion of any unreimbursed Monthly
Advances, made on the Mortgage Loans prior to the exercise of such repurchase
right and (d) any unreimbursed costs and expenses of the Trustee payable
pursuant to Section 9.05 and to the Custodian pursuant to the Custodial
Agreement; or
(ii) the
later
of the making of the final payment or other liquidation, or any advance with
respect thereto, of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property acquired with respect to any Mortgage Loan;
provided, however, that in the event that an advance has been made, but not
yet
recovered, at the time of such termination, the Person having made such advance
shall be entitled to receive, notwithstanding such termination, any payments
received subsequent thereto with respect to which such advance was made;
or
(iii) the
payment to the Certificateholders of all amounts required to be paid to them
pursuant to this Agreement.
(b) In
no
event, however, shall the portion of the Trust Fund created hereby continue
beyond the earlier of (i) the “latest possible maturity date” specified in
Section 5.01(d) or (ii) the expiration of 21 years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the
United States to the Court of St. James’s, living on the date of this
Agreement.
(c) The
right
of the Depositor or its designee to repurchase all the assets of the Trust
Fund
as described in Subsection 10.01(a)(i) above shall be exercisable only if (i)
the aggregate Scheduled Principal Balance of the Mortgage Loans at the time
of
any such repurchase is less than 10% of the Cut-Off Date Balance, and the or
(ii) the Depositor, based upon an Opinion of Counsel addressed to the Depositor
and the Trustee, has determined that the REMIC status of the Trust REMIC has
been lost or that a substantial risk exists that such REMIC status will be
lost
for the then-current taxable year. At any time thereafter, in the case of (i)
or
(ii) above, the Depositor may elect to terminate the Trust REMIC at any time,
and upon such election, the Depositor or its designee, shall repurchase all
the
assets of the Trust Fund described in Subsection 10.01(a)(i) above.
(d) The
Trustee shall give notice of any termination to the Certificateholders, with
a
copy to the Master Servicer and the Rating Agencies, upon which the
Certificateholders shall surrender their Certificates to the Trustee for payment
of the final distribution and cancellation. Such notice shall be given by
letter, mailed not earlier than the l5th day and not later than the 25th day
of
the month next preceding the month of such final distribution, and shall specify
(i) the Distribution Date upon which final payment of the related Certificates
will be made upon presentation and surrender of the related Certificates at
the
office of the Trustee therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the related Certificates at the office of the Trustee therein
specified.
(e) If
the
option of the Depositor to repurchase or cause the repurchase of all the assets
in the Trust Fund as described in Subsection 10.01(a)(i) above, is exercised,
the Depositor and/or its designee shall deliver to the Trustee for deposit
in
the Distribution Account, by the Business Day prior to the applicable
Distribution Date, an amount equal to the related Termination Purchase Price.
Upon presentation and surrender of the related Certificates by the related
Certificateholders, the Trustee shall distribute to such Certificateholders
an
amount determined as follows: with respect to each related Certificate (other
than the Interest Only Certificates), the outstanding Current Principal Amount,
plus with respect to each such Certificate, one month’s interest thereon at the
applicable Pass-Through Rate; and with respect to the Class R Certificates,
the
percentage interest evidenced thereby multiplied by the difference, if any,
between the above described repurchase price and the aggregate amount to be
distributed to the Holders of the Certificates (other than the Class R
Certificates). If the proceeds with respect to the related Mortgage Loans are
not sufficient to pay all of the related Senior Certificates in full, any such
deficiency shall be allocated first, to the related Subordinate Certificates,
in
inverse order of their numerical designations and then to the related Senior
Certificates on a pro rata basis. Upon deposit of the related Termination
Purchase Price and following such final Distribution Date, the Trustee shall
release promptly to the Depositor and/or its designee the related Mortgage
Files
for the remaining Mortgage Loans, and the related portions of the Accounts
with
respect thereto shall terminate, subject to the Trustee’s obligation to hold any
amounts payable to the related Certificateholders in trust without interest
pending final distributions pursuant to Subsection 10.01(g). Any other amounts
remaining in the Accounts will belong to the Depositor.
(f) In
the
event that this Agreement is terminated by reason of the payment or liquidation
of all Mortgage Loans or the disposition of all property acquired with respect
to all Mortgage Loans under Subsection 10.01(a)(ii) above, the Master Servicer
shall deliver to the Trustee for deposit in the Distribution Account all
distributable amounts remaining in the Master Servicer Collection Account.
Upon
the presentation and surrender of the related Certificates, the Trustee shall
distribute to the remaining related Certificateholders, pursuant to the written
direction of the Trustee and in accordance with their respective interests,
all
related distributable amounts remaining in the Distribution Account. Upon
deposit by the Master Servicer of such distributable amounts, and following
such
final Distribution Date, the Paying Agent shall release promptly to the
Depositor or its designee the related Mortgage Files for the remaining Mortgage
Loans, and the Distribution Account shall terminate, subject to the Paying
Agent’s obligation to hold any amounts payable to the related Certificateholders
in trust without interest pending final distributions pursuant to this
Subsection 10.01(f).
(g) If
not
all of the Certificateholders shall surrender their Certificates for
cancellation within six months after the time specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice, not all the related Certificates shall have been surrendered
for
cancellation, the Trustee may take appropriate steps, or appoint any agent
to
take appropriate steps, to contact the related remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets which remain subject to this
Agreement.
Section
10.02 Additional
Termination Requirements with respect to the Certificates.
(a) If
the
option of the Depositor to repurchase all of the Mortgage Loans and related
properties under Subsection 10.01(a)(i) above is exercised, the Trust Fund
and
the Trust REMIC shall be terminated in accordance with the following additional
requirements, unless the Trustee has been furnished with an Opinion of Counsel
addressed to the Trustee to the effect that the failure of the Trust to comply
with the requirements of this Section 10.02 will not (i) result in the
imposition of taxes on “prohibited transactions” as defined in Section 860F of
the Code on the Trust REMIC or (ii) cause the Trust REMIC to fail to qualify
as
a REMIC at any time that any Certificates are outstanding:
(i) The
Depositor shall establish a 90-day liquidation period and notify the Trustee
thereof, and the Trustee shall in turn specify the first day of such period
in a
statement attached to the tax return for each of the Trust REMIC pursuant to
Treasury Regulation Section 1.860F-1. The Depositor shall satisfy all the
requirements of a qualified liquidation under Section 860F of the Code and
any
regulations thereunder, as evidenced by an Opinion of Counsel addressed to
the
Trustee obtained at the expense of the Depositor;
(ii) During
such 90-day liquidation period, and at or prior to the time of making the final
payment on the Certificates, the Trustee shall sell all of the assets of the
Trust REMIC for
cash;
and
(iii) At
the
time of the making of the final payment on the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the Holders
of
the Residual Certificates all cash on hand (other than cash retained to meet
claims), and the Trust REMIC shall
terminate at that time.
(b) By
their
acceptance of the Certificates, the Holders thereof hereby authorize the
adoption of a 90-day liquidation period and the adoption of a plan of complete
liquidation for the Trust REMIC, which authorization shall be binding upon
all
successor Certificateholders.
(c) The
Trustee as agent for the Trust REMIC hereby agrees to adopt and sign such a
plan
of complete liquidation meeting the requirements for a qualified liquidation
under Section 860F of the Code and any regulations thereunder upon the written
request of the Depositor and the receipt of the Opinion of Counsel referred
to
in clause (a)(i) above and to take such other action in connection therewith
as
may be reasonably requested by the Depositor.
ARTICLE
XI
Miscellaneous
Provisions
Section
11.01 Intent
of Parties.
The
parties intend that each of REMIC I, REMIC II and REMIC III shall be treated
as
a REMIC for federal income tax purposes and that the provisions of this
Agreement should be construed in furtherance of this intent.
Section
11.02 Amendment.
(a) This
Agreement may be amended from time to time by the Depositor, the Master Servicer
and the Trustee, but without notice to or the consent of any of the related
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions herein or therein that may be defective or inconsistent with any
other provisions herein or therein (including to give effect to the expectations
of investors), to conform to the language in the prospectus supplement, to
comply with any changes in the Code, to revise any provision to reflect the
obligations of the parties to this Agreement as they relate to Regulation AB
or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, addressed to the Trustee, adversely affect in any material
respect the interests of any related Certificateholder or cause the Trust REMIC
to fail to qualify as a REMIC for federal income tax purposes as evidenced
by an
Opinion of Counsel addressed to the Trustee but not at the Trustee’s
expense.
(b) With
respect to the Certificates, this Agreement may also be amended from time to
time by the Master Servicer, the Depositor and the Trustee, and the Holders
of
Certificates evidencing Fractional Undivided Interests aggregating not less
than
51% of the applicable Class or Classes, if such amendment affects only such
Class or Classes, for the purpose of adding any provisions to or changing in
any
manner or eliminating any of the provisions of this Agreement or of modifying
in
any manner the rights of the related Certificateholders; provided, however,
that
no such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments received on Mortgage Loans which are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders
of
which are required to consent to any such amendment, without the consent of
the
Holders of all Certificates then outstanding, or (iii) cause the Trust REMIC
to
fail to qualify as a REMIC for federal income tax purposes, as evidenced by
an
Opinion of Counsel addressed to the Trustee which shall be provided to the
Trustee other than at the Trustee’s expense. Notwithstanding any other provision
of this Agreement, for purposes of giving or withholding of consents pursuant
to
this first paragraph of Section 11.02(b), Certificates registered in the name
of
or held for the benefit of the Depositor, the Master Servicer, or the Trustee
or
any Affiliate thereof shall be entitled to vote their Fractional Undivided
Interests with respect to matters affecting such Certificates.
(c) Promptly
after the execution of any such amendment, the Trustee shall furnish a copy
of
such amendment or written notification of the substance of such amendment to
each related Certificateholder, with a copy to the Rating Agencies.
(d) In
the
case of an amendment under Subsection 11.02(b) above, it shall not be necessary
for the related Certificateholders to approve the particular form of such an
amendment. Rather, it shall be sufficient if the related Certificateholders
approve the substance of the amendment. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by related
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
(e) Prior
to
the execution of any amendment to this Agreement, the Trustee shall be entitled
to receive and rely upon an Opinion of Counsel addressed to the Trustee stating
that the execution of such amendment is authorized or permitted by this
Agreement. The Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Trustee’s own rights, duties or immunities under
this Agreement.
Section
11.03 Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere.
The Depositor shall effect such recordation, at the expense of the Trust upon
the request in writing of a Certificateholder, but only if such direction is
accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
Section
11.04 Limitation
on Rights of Certificateholders.
(a) The
death
or incapacity of any Certificateholder shall not terminate this Agreement or
the
Trust, nor entitle such Certificateholder’s legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court for a
partition or winding up of the Trust, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
(b) Except
as
expressly provided in this Agreement, no Certificateholders shall have any
right
to vote or in any manner otherwise control the operation and management of
the
Trust, or the obligations of the parties hereto, nor shall anything herein
set
forth, or contained in the terms of the Certificates, be construed so as to
establish the Certificateholders from time to time as partners or members of
an
association; nor shall any Certificateholders be under any liability to any
third Person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(c) No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon,
under or with respect to this Agreement against the Depositor, the Trustee,
the
Master Servicer or any successor to any such parties unless (i) such
Certificateholder previously shall have given to the Trustee a written notice
of
a continuing default, as herein provided, (ii) the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of
the
Trust Fund shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against
the
costs and expenses and liabilities to be incurred therein or thereby, and (iii)
the Trustee, for 60 days after its receipt of such notice, request and offer
of
indemnity, shall have neglected or refused to institute any such action, suit
or
proceeding.
(d) No
one or
more Certificateholders shall have any right by virtue of any provision of
this
Agreement to affect the rights of any other Certificateholders or to obtain
or
seek to obtain priority or preference over any other such Certificateholder,
or
to enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all Certificateholders. For
the
protection and enforcement of the provisions of this Section 11.04, each and
every Certificateholder and the Trustee shall be entitled to such relief as
can
be given either at law or in equity.
Section
11.05 Acts
of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Certificateholders
may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent duly appointed
in writing. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is expressly required, to the Depositor. Proof of
execution of any such instrument or of a writing appointing any such agent
shall
be sufficient for any purpose of this Agreement and conclusive in favor of
the
Trustee and the Depositor, if made in the manner provided in this Section
11.05.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by a certificate
of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his or her individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his or her authority.
The
fact and date of the execution of any such instrument or writing, or the
authority of the individual executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The
ownership of Certificates (notwithstanding any notation of ownership or other
writing on such Certificates, except an endorsement in accordance with Section
5.02 made on a Certificate presented in accordance with Section 5.04) shall
be
proved by the Certificate Register, and neither the Trustee, the Depositor,
the
Master Servicer nor any successor to any such parties shall be affected by
any
notice to the contrary.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action of the holder of any Certificate shall bind every future holder of the
same Certificate and the holder of every Certificate issued upon the
registration of transfer or exchange thereof, if applicable, or in lieu thereof
with respect to anything done, omitted or suffered to be done by the Trustee,
the Depositor, the Master Servicer or any successor to any such party in
reliance thereon, whether or not notation of such action is made upon such
Certificates.
(e) In
determining whether the Holders of the requisite percentage of Certificates
evidencing Fractional Undivided Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Trustee, the Depositor, the Master Servicer or any Affiliate
thereof shall be disregarded, except as otherwise provided in Section 11.02(b)
and except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Certificates which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Certificates which have been
pledged in good faith to the Trustee, the Depositor, the Master Servicer or
any
Affiliate thereof may be regarded as outstanding if the pledgor establishes
to
the satisfaction of the Trustee the pledgor’s right to act with respect to such
Certificates and that the pledgor is not an Affiliate of the Trustee, the
Depositor, or the Master Servicer, as the case may be.
Section
11.06 Governing
Law.
THIS
AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS RULES (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, WHICH THE PARTIES HERETO
EXPRESSLY RELY UPON IN THE CHOICE OF SUCH LAW AS THE GOVERNING LAW HEREUNDER)
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
11.07 Notices.
All
demands and notices hereunder shall be in writing and shall be deemed given
when
delivered at (including delivery by facsimile) or mailed by registered mail,
return receipt requested, postage prepaid, or by recognized overnight courier,
to (i) in the case of the Depositor, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Vice President-Servicing, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇,
or to such other address as may hereafter be furnished to the other parties
hereto in writing; (ii) in the case of the Trustee, at its Corporate Trust
Office, or such other address as may hereafter be furnished to the other parties
hereto in writing; (iii) in the case of the Seller, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: President or General Counsel, facsimile
number: (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address as may hereafter be furnished
to the other parties hereto in writing; (iv) in the case of the Master Servicer,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, or to
such
other address as may hereafter be furnished to the other parties hereto in
writing, and (v) in the case of the Rating Agencies, Fitch, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention ABS Monitoring Department,
and
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other address as may be hereafter
furnished to the Depositor, Trustee and Master Servicer in writing by Fitch
or
Standard & Poor’s. Any notice delivered to the Depositor, the Master
Servicer or the Trustee under this Agreement shall be effective only upon
receipt. Any notice required or permitted to be mailed to a Certificateholder,
unless otherwise provided herein, shall be given by first-class mail, postage
prepaid, at the address of such Certificateholder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given when mailed, whether
or
not the Certificateholder receives such notice.
Section
11.08 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severed from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the holders thereof.
Section
11.09 Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto.
Section
11.10 Article
and Section Headings.
The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
Section
11.11 Counterparts.
This
Agreement may be executed in two or more counterparts each of which when so
executed and delivered shall be an original but all of which together shall
constitute one and the same instrument.
Section
11.12 Notice
to Rating Agencies.
The
article and section headings herein are for convenience of reference only,
and
shall not limited or otherwise affect the meaning hereof. The Trustee shall
promptly provide notice to each Rating Agency with respect to each of the
following of which a Responsible Officer of the Trustee has actual
knowledge:
1. Any
material change or amendment to this Agreement or the Servicing
Agreements;
2. The
occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of the Master Servicer or the Trustee;
4. The
repurchase or substitution of Mortgage Loans;
5. The
final
payment to Certificateholders; and
6. Any
change in the location of the In the event that this Agreement is terminated
by
reason of the payment or liquidation of all Mortgage Loans or the disposition
of
all property acquired with respect to all Mortgage Loans under Subsection
10.01(a)(ii) above, the Master Servicer shall deliver to the Trustee for deposit
in the Distribution Account all distributable amounts remaining in the Master
Servicer Collection Account or the Distribution Account.
IN
WITNESS WHEREOF, the Depositor, the Trustee and the Master Servicer have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC., as Depositor
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|||||||||||||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||||||||||||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
U.S.
BANK NATIONAL ASSOCIATION, as Trustee
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|||||||||||||
|
By:
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/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||||||||
|
Name:
|
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||||||||
|
Title:
|
Assistant
Vice President
|
||||||||||||
|
EMC
MORTGAGE CORPORATION, as Master Servicer and Seller
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|||||||||||||
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||||||||
|
Name:
|
▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||||||||
|
Title:
|
Assistant Secretary | ||||||||||||
Accepted
and Agreed as to
Sections
2.01, 2.02, 2.03, 2.04 and 9.09(c)
in
its
capacity as Seller
EMC
MORTGAGE CORPORATION
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ |
|
Name:
|
▇▇▇▇ ▇▇▇▇▇▇▇ |
|
Title:
|
Senior Vice President |
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
the
30th day of April, 2007 before me, a notary public in and for said State,
personally appeared ___________________, known to me to be a
_______________________ of Structured Asset Mortgage Investments II Inc., the
corporation that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
30th day of April, 2007 before me, a notary public in and for said State,
personally appeared ____________, known to me to be a ____________ of U.S.
Bank
National Association, the entity that executed the within instrument, and also
known to me to be the person who executed it on behalf of said entity, and
acknowledged to me that such entity executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF TEXAS
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF DALLAS
|
)
|
On
the
30th day of April, 2007 before me, a notary public in and for said State,
personally appeared _______________, known to me to be a __________________
of
EMC Mortgage Corporation, the corporation that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF TEXAS
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF DALLAS
|
)
|
On
the
30th day of April, 2007 before me, a notary public in and for said State,
personally appeared ____________, known to me to be ____________ of EMC Mortgage
Corporation, the corporation that executed the within instrument, and also
known
to me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal]
EXHIBIT
A-1
FORM
OF CLASS A-[_] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
[THE
CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL
PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY, FOLLOWING
THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.]
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT WILL BE MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No.1
|
[Adjustable
Pass-Through Rate][Pass-Through Rate: [___]%]
|
|
|
Class
A-[_] Senior
|
||
|
Date
of Pooling and Servicing Agreement and Cut-off Date:
April
1, 2007
|
Aggregate
Initial [Current Principal][Notional] Amount of this Senior Certificate
as
of the Cut-off Date:
$[_____________]
|
|
|
First
Distribution Date:
May
25, 2007
|
Initial
[Current Principal][Notional] Amount of this Senior Certificate as
of the
Cut-off Date: $[_____________]
|
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[____________]
|
|
|
Assumed
Final Distribution Date:
[_________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2007-2
|
evidencing
a fractional undivided interest in the distributions allocable to
the
Class A-[_] Certificates with respect to a portion of a Trust Fund
consisting primarily of a pool of fixed rate mortgage loans secured
by
first liens on one-to-four family residential properties sold by
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
|
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured
Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This
certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a portion of a trust
(the
“Trust Fund”) primarily consisting of fixed rate mortgage loans secured by first
liens on one- to four- family residential properties (collectively, the
“Mortgage Loans”) sold by Structured Asset Mortgage Investments II Inc. (“▇▇▇▇
▇▇”). The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) and
Master Funding LLC to ▇▇▇▇ ▇▇. EMC will act as master servicer of the Mortgage
Loans (the “Master Servicer”, which term includes any successors thereto under
the Agreement referred to below). The Trust Fund was created pursuant to the
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the “Agreement”), among EMC Mortgage Corporation, as seller (the “Seller”) and
master servicer, ▇▇▇▇ ▇▇, as depositor (the “Depositor”) and U.S. Bank National
Association as trustee (the “Trustee”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
[Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Current Principal
Amount hereof at a per annum rate equal to the Pass-Through Rate set forth
above
and as further described in the Agreement. The Trustee will distribute on the
25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a “Distribution Date”), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of
the calendar month preceding the month of such Distribution Date, an amount
equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to
be
distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date in
the
month immediately following the month of the latest scheduled maturity date
of
any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to
zero.]
[Interest
on this Certificate will accrue from and including the 25th day of the calendar
month preceding the month in which a Distribution Date (as hereinafter defined)
occurs to and including the 24th day of the calendar month in which that
Distribution Date occurs on the [Current Principal][Notional] Amount hereof
at a
per annum rate equal to the Pass-Through Rate set forth above and as further
described in the Agreement. The Trustee will distribute on the 25th day of
each
month, or, if such 25th day is not a Business Day, the immediately following
Business Day (each, a “Distribution Date”), commencing on the First Distribution
Date specified above, to the Person in whose name this Certificate is registered
at the close of business on the Business Day immediately preceding such
Distribution Date, an amount equal to the product of the Fractional Undivided
Interest evidenced by this Certificate and the amount (of interest [and
principal], if any) required to be distributed to the Holders of Certificates
of
the same Class as this Certificate. The Assumed Final Distribution Date is
the
Distribution Date in the month immediately following the month of the latest
scheduled maturity date of any Mortgage Loan and is not likely to be the date
on
which the [Current Principal][Notional] Amount of this Class of Certificates
will be reduced to zero. [The Class A-[_] Certificates have no Current Principal
Amount.]]
Distributions
on this Certificate will be made by the Trustee by check mailed to the address
of the Person entitled thereto as such name and address shall appear on the
Certificate Register or, if such Person so requests by notifying the Trustee
in
writing as specified in the Agreement by wire transfer. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Trustee for that purpose and designated in such notice. The Initial [Current
Principal][Notional] Amount of this Certificate is set forth above. [The Current
Principal Amount hereof will be reduced to the extent of distributions allocable
to principal hereon and any Realized Losses allocable hereto.]
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, and with the consent of the Insurer with respect to
amendments related to the Mortgage Pass-Through Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion
of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Trustee upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee for such purposes, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued
to
the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
April 30, 2007
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|||
|
Not
in its individual capacity but solely as Trustee
|
||||
|
By:
|
||||
|
Authorized
Signatory
|
||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class A-[_] Certificates referred to in the within-mentioned
Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
Authorized
signatory of U.S. Bank National Association, not in its individual
capacity but solely as Trustee
|
|
|
By:
|
|
|
Authorized
Signatory
|
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
|
The
assignee should include the following for purposes of
distribution:
|
|
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
|
|
to
_________________________________________________________________________________________________________________________
|
,
|
|
for
the account of
_____________________________________________________________________________________________________________
|
,
|
|
account
number _______________, or, if mailed by check, to
____________________________________________________________________________
|
,
|
|
Applicable
statements should be mailed to
___________________________________________________________________________________________
|
,
|
|
____________________________________________________________________________________________________________________________
|
.
|
|
This
information is provided by
____________________________________________________________________________________________
|
,
|
|
the
assignee named above, or
____________________________________________________________________________________________________
|
,
|
|
as
its agent.
|
EXHIBIT
A-2
FORM
OF CLASS B-[_] CERTIFICATE
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
[AND
THE CLASS B-[_] CERTIFICATES], AS DESCRIBED IN THE AGREEMENT (AS DEFINED
BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
THE
CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL
PAYMENTS HEREON AND ANY REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY, FOLLOWING
THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL BE MADE TO CEDE & CO. ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[For
the Class B-1, Class B-2 and Class B-3 Certificates] [EACH BENEFICIAL OWNER
OF
THIS CERTIFICATE OR ANY INTEREST HEREIN SHALL BE DEEMED TO HAVE REPRESENTED,
BY
VIRTUE OF ITS ACQUISITION OR HOLDING OF THIS CERTIFICATE OR INTEREST HEREIN,
THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (“PLAN”), OR INVESTING WITH ASSETS OF
A PLAN OR (II) IT HAS ACQUIRED AND IS HOLDING SUCH CERTIFICATE IN RELIANCE
ON
PROHIBITED TRANSACTION EXEMPTION 90-30, AS AMENDED FROM TIME TO TIME
(“EXEMPTION”), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE
AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THE CERTIFICATE MUST BE RATED,
AT
THE TIME OF PURCHASE, NOT LOWER THAN “BBB-“ (OR ITS EQUIVALENT) BY STANDARD
& POOR’S, FITCH, INC., DOMINION BOND RATING SERVICE, INC. (KNOWN AS DBRS,
INC.), DOMINION BOND RATING SERVICE LIMITED (KNOWN AS DBRS LIMITED) OR ▇▇▇▇▇’▇
INVESTORS SERVICE, INC., AND THE CERTIFICATE IS SO RATED OR (III) (1) IT IS
AN
INSURANCE COMPANY, (2) THE SOURCE OF FUNDS USED TO ACQUIRE OR HOLD THE
CERTIFICATE OR INTEREST HEREIN IS AN “INSURANCE COMPANY GENERAL ACCOUNT”, AS
SUCH TERM IS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60,
AND (3) THE CONDITIONS IN SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED.]
[THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
SUBJECT TO (A) THE RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE
FORM
PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER
EVIDENCE ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER
IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES
AND
ANY OTHER APPLICABLE JURISDICTION.]
[For
the Class B-4, Class B-5 and Class B-6 Certificates] [THIS CERTIFICATE MAY
NOT
BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT
PLAN
OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE TRANSFEREE CERTIFIES
OR
REPRESENTS THAT THE PROPOSED TRANSFER AND HOLDING OF A CERTIFICATE AND THE
SERVICING, MANAGEMENT AND OPERATION OF THE TRUST AND ITS ASSETS: (I) WILL NOT
RESULT IN ANY PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL
OR
CLASS PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO,
PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇,
▇▇▇▇ 95-60 OR PTCE 96-23 AND (II) WILL NOT GIVE RISE TO ANY ADDITIONAL
OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE MASTER SERVICER OR THE TRUSTEE,
WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A BOOK-ENTRY CERTIFICATE OR
A
GLOBAL CERTIFICATE OR UNLESS THE OPINION SPECIFIED IN SECTION 5.07 OF THE
AGREEMENT IS PROVIDED.]
|
Certificate
No.1
|
Variable
Pass-Through Rate
|
|
|
Class
B-[_]
Subordinate
|
||
|
Date
of Pooling and Servicing Agreement and Cut-off Date: April 1,
2007
|
Aggregate
Initial Current Principal Amount of this Subordinate Certificate
as of the
Cut-off Date: $[_________]
|
|
|
First
Distribution Date:
May
25, 2007
|
Initial
Current Principal Amount of this Subordinate Certificate as of the
Cut-off
Date: $[_________]
|
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[____________]
|
|
|
Assumed
Final Distribution Date:
[____________]
|
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2007-2
|
evidencing
a fractional undivided interest in the distributions allocable to
the
Class B-[_] Certificates with respect to a portion of a Trust Fund
consisting primarily of a pool of fixed rate mortgage loans secured
by
first liens on one-to-four family residential properties sold by
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
|
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured
Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This
certifies that [_______] is the registered owner of the Fractional Undivided
Interest evidenced hereby in the beneficial ownership interest of Certificates
of the same Class as this Certificate in a portion of a trust (the “Trust Fund”)
primarily consisting of fixed rate mortgage loans secured by first liens on
one-
to four- family residential properties (collectively, the “Mortgage Loans”) sold
by Structured Asset Mortgage Investments II Inc. (“▇▇▇▇ ▇▇”). The Mortgage Loans
were sold by EMC Mortgage Corporation (“EMC”) and Master Funding LLC to ▇▇▇▇ ▇▇.
EMC will act as master servicer of the Mortgage Loans (the “Master Servicer”,
which term includes any successors thereto under the Agreement referred to
below). The Trust Fund was created pursuant to the Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the “Agreement”), among
EMC as seller (the “Seller”) and master servicer, ▇▇▇▇ ▇▇, as depositor (the
“Depositor”) and U.S. Bank National Association as trustee (the “Trustee”), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, capitalized terms used herein shall have
the
meaning ascribed to them in the Agreement. This Certificate is issued under
and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Current Principal
Amount hereof at a per annum rate equal to the Pass-Through Rate set forth
above
and as further described in the Agreement. The Trustee will distribute on the
25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a “Distribution Date”), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of
the calendar month preceding the month of such Distribution Date, an amount
equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to
be
distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date in
the
month immediately following the month of the latest scheduled maturity date
of
any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to
zero.
Distributions
on this Certificate will be made by the Trustee by check mailed to the address
of the Person entitled thereto as such name and address shall appear on the
Certificate Register or, if such Person so requests by notifying the Trustee
in
writing as specified in the Agreement by wire transfer. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Trustee for that purpose and designated in such notice. The Initial Current
Principal Amount of this Certificate is set forth above. The Current Principal
Amount hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
[No
transfer of this Class B-[_] Certificate will be made unless such transfer
is
(i) exempt from the registration requirements of the Securities act of 1933,
as
amended, and any applicable state securities laws or is made in accordance
with
said Act and laws and (ii) made in accordance with Section 5.02 of the
Agreement. In the event that such transfer is to be made the Trustee shall
register such transfer if, (i) made to a transferee who has provided the Trustee
with evidence as to its QIB status; or (ii) (A) the transferor has advised
the
Trustee in writing that the Certificate is being transferred to an Institutional
Accredited Investor and (B) prior to such transfer the transferee furnishes
to
the Trustee an Investment Letter; provided that if based upon an Opinion of
Counsel to the effect that (A) and (B) above are met sufficient to confirm
that
such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act and other
applicable laws.]
[For
the
Class B-1, Class B-2 and Class B-3 Certificates] [Each beneficial owner of
this
Certificate or any interest herein shall be deemed to have represented, by
virtue of its acquisition or holding of this certificate or interest herein,
that either (i) it is not an employee benefit plan subject to the Employee
Retirement Income Security Act of 1974, as amended or section 4975 of the
Internal Revenue Code of 1986, as amended (“Plan”), or investing with assets of
a Plan or (ii) it has acquired and is holding such certificate in reliance
on
Prohibited Transaction Exemption 90-30, as amended from time to time
(“Exemption”), and that it understands that there are certain conditions to the
availability of the Exemption, including that the certificate must be rated,
at
the time of purchase, not lower than “BBB-“ (or its equivalent) by Standard
& Poor’s, Fitch, Inc., Dominion Bond Rating Service, Inc. (known as DBRS,
Inc.), Dominion Bond Rating Service Limited (known as DBRS Limited) or ▇▇▇▇▇’▇
Investors Service, Inc., and the certificate is so rated or (iii) (1) it is
an
insurance company, (2) the source of funds used to acquire or hold the
certificate or interest therein is an “insurance company general account”, as
such term is defined in Prohibited Transaction Class Exemption (“PTCE”) 95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.]
[For
the
Class B-4, Class B-5 and Class B-6 Certificates] [This Certificate may not
be
acquired directly or indirectly by, or on behalf of, an employee benefit plan
or
other retirement arrangement which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended, unless the transferee certifies
or
represents that the proposed transfer and holding of a Certificate and the
servicing, management and operation of the trust and its assets: (i) will not
result in any prohibited transaction which is not covered under an individual
or
class prohibited transaction exemption, including, but not limited to,
Prohibited Transaction Class Exemption (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇,
▇▇▇▇ 95-60 or PTCE 96-23 and (ii) will not give rise to any additional
obligations on the part of the Depositor, the Master Servicer or the Trustee,
which will be deemed represented by an owner of a Book-Entry Certificate or
a
Global Certificate or unless the opinion specified in section 5.07 of the
Agreement is provided.]
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, and with the consent of the Insurer with respect to
amendments related to the Mortgage Pass-Through Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion
of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Trustee upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee for such purposes, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued
to
the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
April 30, 2007
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|||
|
Not
in its individual capacity but solely as Trustee
|
||||
|
By:
|
||||
|
Authorized
Signatory
|
||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class B-[_] Certificates referred to in the within-mentioned
Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
Authorized
signatory of U.S. Bank National Association, not in its individual
capacity but solely as Trustee
|
|
|
By:
|
|
|
Authorized
Signatory
|
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
|
The
assignee should include the following for purposes of
distribution:
|
|
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
|
|
to
_________________________________________________________________________________________________________________________
|
,
|
|
for
the account of
_____________________________________________________________________________________________________________
|
,
|
|
account
number _______________, or, if mailed by check, to
____________________________________________________________________________
|
,
|
|
Applicable
statements should be mailed to
___________________________________________________________________________________________
|
,
|
|
____________________________________________________________________________________________________________________________
|
.
|
|
This
information is provided by
____________________________________________________________________________________________
|
,
|
|
the
assignee named above, or
____________________________________________________________________________________________________
|
,
|
|
as
its agent.
|
EXHIBIT
A-3
FORM
OF CLASS PO CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
THE
CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY THE PRINCIPAL
PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY, FOLLOWING
THE
INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE TRUSTEE NAMED HEREIN.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT WILL BE MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No.1
|
Pass-Through
Rate: 0.000%
|
|
|
Class
PO Senior
|
||
|
Date
of Pooling and Servicing Agreement and Cut-off Date:
April
1, 2007
|
Aggregate
Initial Current Principal Amount of this Senior Certificate as of
the
Cut-off Date:
$[_____________]
|
|
|
First
Distribution Date:
May
25, 2007
|
Initial
Current Principal Amount of this Senior Certificate as of the Cut-off
Date: $[_____________]
|
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[____________]
|
|
|
Assumed
Final Distribution Date:
[____________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2007-2
|
evidencing
a fractional undivided interest in the distributions allocable to
the
Class PO Certificates with respect to a portion of a Trust Fund consisting
primarily of a pool of fixed rate mortgage loans secured by first
liens on
one-to-four family residential properties sold by STRUCTURED ASSET
MORTGAGE INVESTMENTS II INC.
|
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured
Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This
certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a portion of a trust
(the
“Trust Fund”) primarily consisting of fixed rate mortgage loans secured by first
liens on one- to four- family residential properties (collectively, the
“Mortgage Loans”) sold by Structured Asset Mortgage Investments II Inc. (“▇▇▇▇
▇▇”). The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) and
Master Funding LLC to ▇▇▇▇ ▇▇. EMC will act as master servicer of the Mortgage
Loans (the “Master Servicer”, which term includes any successors thereto under
the Agreement referred to below). The Trust Fund was created pursuant to the
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the “Agreement”), among EMC Mortgage Corporation, as seller (the “Seller”) and
master servicer, ▇▇▇▇ ▇▇, as depositor (the “Depositor”) and U.S. Bank National
Association as trustee (the “Trustee”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
The
Trustee will distribute on the 25th day of each month, or, if such 25th day
is
not a Business Day, the immediately following Business Day (each, a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the calendar month preceding the month
of
such Distribution Date, an amount equal to the product of the Fractional
Undivided Interest evidenced by this Certificate and the amount of principal
required to be distributed to the Holders of Certificates of the same Class
as
this Certificate. The Assumed Final Distribution Date is the Distribution Date
in the month immediately following the month of the latest scheduled maturity
date of any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to
zero.
Distributions
on this Certificate will be made by the Trustee by check mailed to the address
of the Person entitled thereto as such name and address shall appear on the
Certificate Register or, if such Person so requests by notifying the Trustee
in
writing as specified in the Agreement by wire transfer. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Trustee for that purpose and designated in such notice. The Initial Current
Principal Amount of this Certificate is set forth above. The Current Principal
Amount hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, and with the consent of the Insurer with respect to
amendments related to the Mortgage Pass-Through Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion
of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Trustee upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee for such purposes, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued
to
the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
April 30, 2007
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|||
|
Not
in its individual capacity but solely as Trustee
|
||||
|
By:
|
||||
|
Authorized
Signatory
|
||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class PO Certificates referred to in the within-mentioned
Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
Authorized
signatory of U.S. Bank National Association, not in its individual
capacity but solely as Trustee
|
|
|
By:
|
|
|
Authorized
Signatory
|
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
|
The
assignee should include the following for purposes of
distribution:
|
|
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
|
|
to
_________________________________________________________________________________________________________________________
|
,
|
|
for
the account of
_____________________________________________________________________________________________________________
|
,
|
|
account
number _______________, or, if mailed by check, to
____________________________________________________________________________
|
,
|
|
Applicable
statements should be mailed to
___________________________________________________________________________________________
|
,
|
|
____________________________________________________________________________________________________________________________
|
.
|
|
This
information is provided by
____________________________________________________________________________________________
|
,
|
|
the
assignee named above, or
____________________________________________________________________________________________________
|
,
|
|
as
its agent.
|
EXHIBIT
A-4
FORM
OF CLASS [R] CERTIFICATE
THIS
CERTIFICATE MAY NOT BE HELD BY OR TRANSFERRED TO A NON-UNITED STATES PERSON,
A
PUBLICLY TRADED PARTNERSHIP OR A DISQUALIFIED ORGANIZATION (AS DEFINED
BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “RESIDUAL
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
THIS
CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF,
AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE
PROPOSED TRANSFEREE PROVIDES THE TRUSTEE WITH AN OPINION OF COUNSEL ADDRESSED
TO
THE TRUSTEE, DEPOSITOR AND MASTER SERVICER AND ON WHICH THEY MAY RELY THAT
IS
SATISFACTORY TO THE TRUSTEE THAT THE PURCHASE OF CERTIFICATES ON BEHALF OF
SUCH
PERSON WILL NOT RESULT IN OR CONSTITUTE A NONEXEMPT PROHIBITED TRANSACTION,
IS
PERMISSIBLE UNDER APPLICABLE LAW AND WILL NOT GIVE RISE TO ANY ADDITIONAL
OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE MASTER SERVICER OR THE
TRUSTEE.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE THAT (1)
SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION
THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY AGENCY OR INSTRUMENTALITY
OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION
IF
ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT FOR THE ▇▇▇▇▇▇▇ MAC, A
MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH GOVERNMENTAL UNIT),
(B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR
INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION (OTHER THAN
CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH ORGANIZATION
IS
SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING THE TAX IMPOSED
BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (D) RURAL
ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION 1381(a)(2)(C) OF THE
CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION 775(a) OF THE CODE (ANY
SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B), (C), (D) OR (E) BEING
HEREIN REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), OR (F) AN AGENT OF A
DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE
ASSESSMENT OR COLLECTION OF TAX, (3) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE AND (4) SUCH TRANSFEREE IS A UNITED STATES PERSON. NOTWITHSTANDING
THE REGISTRATION IN THE CERTIFICATE REGISTER OR ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR AN AGENT
OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, SUCH REGISTRATION
SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL
NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER
OF
THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
|
Certificate
No.1
|
Pass-Through
Rate: _____%
|
|
|
Class
[R]
|
||
|
Date
of Pooling and Servicing Agreement and Cut-off Date: April 1,
2007
|
Aggregate
Initial Current Principal Amount of this Certificate as of the Cut-off
Date:
$___________
|
|
|
First
Distribution Date:
May
25, 2007
|
Initial
Current Principal Amount of this Certificate as of the Cut-off Date:
$_________
|
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[_____________]
|
|
|
Assumed
Final Distribution Date:
[____________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2007-2
|
evidencing
a fractional undivided interest in the distributions allocable to
the
Class [R] Certificates with respect to a portion of a Trust Fund
(as
defined below) consisting primarily of a pool of fixed rate mortgage
loans
secured by first liens on one-to-four family residential properties
sold
by STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
|
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of Structured
Asset
Mortgage Investments II Inc., the Master Servicer or any of their affiliates
will have any obligation with respect to any certificate or other obligation
secured by or payable from payments on the Certificates.
This
certifies that Bear, ▇▇▇▇▇▇▇ Securities Corp. is the registered owner of the
Fractional Undivided Interest evidenced hereby in the beneficial ownership
interest of Certificates of the same Class as this Certificate in a portion
of a
trust (the “Trust Fund”) primarily consisting of fixed rate mortgage loans
secured by first liens on one- to four- family residential properties
(collectively, the “Mortgage Loans”) sold by Structured Asset Mortgage
Investments II Inc. (“▇▇▇▇ ▇▇”). The Mortgage Loans were sold by EMC Mortgage
Corporation (“EMC”) and Master Funding LLC to ▇▇▇▇ ▇▇. EMC will act as master
servicer of the Mortgage Loans (the “Master Servicer”, which term includes any
successors thereto under the Agreement referred to below). The Trust Fund was
created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the “Agreement’), among ▇▇▇▇ ▇▇, as depositor (the
“Depositor”), EMC, as seller and master servicer and U.S. Bank National
Association, as trustee (the “Trustee”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Current Principal
Amount hereof at a per annum rate equal to the Pass-Through Rate set forth
above
and as further described in the Agreement. The Trustee will distribute on the
25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a “Distribution Date”), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day
of
the calendar month preceding the month of such Distribution Date, an amount
equal to the product of the Fractional Undivided Interest evidenced by this
Certificate and the amount (of interest and principal, if any) required to
be
distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date in
the
month immediately following the month of the latest scheduled maturity date
of
any Mortgage Loan and is not likely to be the date on which the Current
Principal Amount of this Class of Certificates will be reduced to
zero.
Distributions
on this Certificate will be made by the Trustee by check mailed to the address
of the Person entitled thereto as such name and address shall appear on the
Certificate Register or, if such Person so requests by notifying the Trustee
in
writing as specified in the Agreement by wire transfer. Notwithstanding the
above, the final distribution on this Certificate will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the office or agency appointed by the
Trustee for that purpose and designated in such notice. The Initial Current
Principal Amount of this Certificate is set forth above. The Current Principal
Amount hereof will be reduced to the extent of distributions allocable to
principal hereon and any Realized Losses allocable hereto.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions set forth in the Agreement to the effect that (i) each person
holding or acquiring any Ownership Interest in this Certificate must be a United
States Person and a Permitted Transferee, (ii) the transfer of any Ownership
Interest in this Certificate will be conditioned upon the delivery to ▇▇▇▇
▇▇
and the Trustee of, among other things, an affidavit to the effect that it
is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Depositor will have the right,
in
its sole discretion and without notice to the Holder of this Certificate, to
sell this Certificate to a purchaser selected by the Depositor, which purchaser
may be the Depositor, or any affiliate of the Depositor, on such terms and
conditions as the Depositor may choose.
This
certificate may not be acquired directly or indirectly by, or on behalf of,
an
employee benefit plan or other retirement arrangement which is subject to title
I of the Employee Retirement Income Security Act of 1974, as amended, and/or
section 4975 of the Internal Revenue Code of 1986, as amended, unless the
proposed transferee provides the Trustee with an opinion of counsel addressed
to
the Trustee and Master Servicer and on which they may rely (which shall not
be
at the expense of the Trustee or Master Servicer) which is acceptable to the
Trustee, that the purchase of this Certificate will not result in or constitute
a nonexempt prohibited transaction, is permissible under applicable law and
will
not give rise to any additional fiduciary obligations on the part of the
Depositor, the Master Servicer or the Trustee.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, and with the consent of the Insurer with respect to
amendments related to the Mortgage Pass-Through Certificates, evidencing
Fractional Undivided Interests aggregating not less than 51% of the portion
of
the Trust Fund related to such Certificates (or in certain cases, Holders of
Certificates of affected Classes evidencing such percentage of the Fractional
Undivided Interests thereof). Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders
of
this Certificate and of any Certificate issued upon the transfer hereof or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the Trustee upon surrender
of this Certificate for registration of transfer at the offices or agencies
maintained by the Trustee for such purposes, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Trustee duly
executed by the Holder hereof or such Holder’s attorney duly authorized in
writing, and thereupon one or more new Certificates in authorized denominations
representing a like aggregate Fractional Undivided Interest will be issued
to
the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
April 30, 2007
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|||
|
Not
in its individual capacity but solely as Trustee
|
||||
|
By:
|
||||
|
Authorized
Signatory
|
||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class [R] Certificates referred to in the within-mentioned
Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
Authorized
signatory of U.S. Bank National Association, not in its individual
capacity but solely as Trustee
|
|
|
By:
|
|
|
Authorized
Signatory
|
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
|
The
Assignee should include the following for purposes of
distribution:
|
|
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
|
|
to
_________________________________________________________________________________________________________________________
|
,
|
|
for
the account of
_____________________________________________________________________________________________________________
|
,
|
|
to
_________________________________________________________________________________________________________________________
|
,
|
|
Applicable
statements should be mailed to
___________________________________________________________________________________________
|
,
|
|
____________________________________________________________________________________________________________________________
|
.
|
|
This
information is provided by
____________________________________________________________________________________________
|
,
|
|
the
Assignee named above, or
____________________________________________________________________________________________________
|
,
|
|
as
its agent. The Assignee’s taxpayer identification number is
___________________________________________________________________________
|
. |
EXHIBIT
A-5
FORM
OF CLASS
X CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A “REGULAR
INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED WILL BE REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT WILL BE MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No.1
|
Variable
Pass-Through Rate
|
|
|
Class
X Senior
|
||
|
Date
of Pooling and Servicing Agreement and Cut-off Date:
April
1, 2007
|
Aggregate
Initial Notional Amount of this Senior Certificate as of the Cut-off
Date: $[________]
|
|
|
First
Distribution Date:
May
25, 2007
|
Initial
Notional Amount of this Senior Certificate as of the Cut-off
Date:
$[________]
|
|
|
Master
Servicer:
EMC
Mortgage Corporation
|
CUSIP:
[________]
|
|
|
Assumed
Final Distribution Date:
[________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2007-2
|
evidencing
a fractional undivided interest in the distributions allocable to
the
Class X Certificates with respect to a portion of a Trust Fund consisting
primarily of a pool of fixed rate mortgage loans secured by first
liens on
one-to-four family residential properties sold by STRUCTURED ASSET
MORTGAGE INVESTMENTS II INC.
|
This
Certificate is payable solely from the assets of the Trust Fund, and does not
represent an obligation of or interest in Structured Asset Mortgage Investments
II Inc., the Master Servicer or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by
Structured Asset Mortgage Investments II Inc., the Master Servicer or the
Trustee or any of their affiliates or any other person. None of the Structured
Asset Mortgage Investments II Inc., the Master Servicer or any of their
affiliates will have any obligation with respect to any certificate or other
obligation secured by or payable from payments on the Certificates.
This
certifies that Cede & Co. is the registered owner of the Fractional
Undivided Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a portion of a trust
(the
“Trust Fund”) primarily consisting of fixed rate mortgage loans secured by first
liens on one- to four- family residential properties (collectively, the
“Mortgage Loans”) sold by Structured Asset Mortgage Investments II Inc. (“▇▇▇▇
▇▇”). The Mortgage Loans were sold by EMC Mortgage Corporation (“EMC”) and
Master Funding LLC to ▇▇▇▇ ▇▇. EMC will act as master servicer of the Mortgage
Loans (the “Master Servicer”, which term includes any successors thereto under
the Agreement referred to below). The Trust Fund was created pursuant to the
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the “Agreement”), among ▇▇▇▇ ▇▇, as depositor (the “Depositor”), EMC Mortgage
Corporation, as seller and master servicer, and U.S. Bank National Association,
as trustee (the “Trustee”), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein shall have the meaning ascribed to them in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is
bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Notional Amount hereof
at a per annum rate equal to the Pass-Through Rate set forth above and as
further described in the Agreement. The Trustee will distribute on the 25th
day
of each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a “Distribution Date”), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the calendar
month preceding the month of such Distribution Date, an amount equal to the
product of the Fractional Undivided Interest evidenced by this Certificate
and
the amount (of interest and principal, if any) required to be distributed to
the
Holders of Certificates of the same Class as this Certificate. The Assumed
Final
Distribution Date is the Distribution Date in the month immediately following
the month of the latest scheduled maturity date of any Mortgage Loan and is
not
likely to be the date on which the Notional Amount of this Class of Certificates
will be reduced to zero.
Distributions
on this Certificate will be made by the Paying Agent by check mailed to the
address of the Person entitled thereto as such name and address shall appear
on
the Certificate Register or, if such Person so requests by notifying the Trustee
in writing as specified in the Agreement by wire transfer. Notwithstanding
the
above, the final distribution on this Certificate will be made after due notice
by the Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Trustee for that purpose and designated in such notice. The Initial
Notional Amount of this Certificate is set forth above. The Notional Amount
hereof will be reduced to the extent of distributions allocable to principal
hereon and any Realized Losses allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates designated as
set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the Trust Fund for payment hereunder and that the Trustee is
not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Trustee.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer and the Trustee and the rights of the Certificateholders under
the Agreement from time to time by the parties thereto with the consent of
the
Holders of Certificates, evidencing Fractional Undivided Interests aggregating
not less than 51% of the portion of the Trust Fund related to such Certificates
(or in certain cases, Holders of Certificates of affected Classes evidencing
such percentage of the Fractional Undivided Interests thereof). Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable with the certificate registrar
upon surrender of this Certificate for registration of transfer at the offices
or agencies maintained by the Trustee for such purposes, duly endorsed by,
or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates in authorized
denominations representing a like aggregate Fractional Undivided Interest will
be issued to the designated transferee.
The
Certificates are issuable only as registered Certificates without coupons in
the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Fractional Undivided Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Depositor, the Master Servicer, the Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Trustee or any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby (other
than the obligations to make payments to Certificateholders with respect to
the
termination of the Agreement) shall terminate upon the earlier of (i) the later
of the (A) final payment or other liquidation (or Advance with respect thereto)
of the last Mortgage Loan remaining in the Trust Fund and (B) disposition of
all
property acquired upon foreclosure or deed in lieu of foreclosure of any
Mortgage Loan and the remittance of all funds due under the Agreement, or (ii)
the optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date on which the aggregate unpaid principal balance of the
Mortgage Loans is less than the percentage of the aggregate Outstanding
Principal Balance specified in the Agreement of the Mortgage Loans at the
Cut-off Date. The exercise of such right will effect the early retirement of
the
Certificates. In no event, however, will the Trust Fund created by the Agreement
continue beyond the earlier of (i) the “latest possible maturity date” specified
in Section 5.01(d) of the Agreement or (ii) the expiration of 21 years after
the
death of certain persons identified in the Agreement.
Unless
this Certificate has been countersigned by an authorized signatory of the
Trustee by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
|
Dated:
April 30, 2007
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|||
|
Not
in its individual capacity but solely as Trustee
|
||||
|
By:
|
||||
|
Authorized
Signatory
|
||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class X Certificates referred to in the within-mentioned
Agreement.
|
U.S.
BANK NATIONAL ASSOCIATION,
|
|
|
Authorized
signatory of U.S. Bank National Association, not in its individual
capacity but solely as Trustee
|
|
|
By:
|
|
|
Authorized
Signatory
|
|
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Fractional Undivided Interest evidenced
by the within Mortgage Pass-Through Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
|
The
assignee should include the following for purposes of
distribution:
|
|
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
|
|
to
_________________________________________________________________________________________________________________________
|
,
|
|
for
the account of
_____________________________________________________________________________________________________________
|
,
|
|
account
number _______________, or, if mailed by check, to
____________________________________________________________________________
|
,
|
|
Applicable
statements should be mailed to
___________________________________________________________________________________________
|
,
|
|
____________________________________________________________________________________________________________________________
|
.
|
|
This
information is provided by
____________________________________________________________________________________________
|
,
|
|
the
assignee named above, or
____________________________________________________________________________________________________
|
,
|
|
as
its agent.
|
EXHIBIT
B
MORTGAGE
LOAN SCHEDULE
MATURITY_DATE FIRST_PAY_DATE ORIGINAL_BALANCE
20210601 20060701 215000
20210901 20061001 1000000
20360901 20061001 127000
20361101 20061201 641000
20370101 20070201 489600
20370101 20070201 450000
20370101 20070201 757715
20210301 20070101 200000
20361201 20070101 438600
20370101 20070201 568000
20361201 20070101 491200
20360701 20060801 1500000
20211201 20070101 880000
20360801 20060901 621000
20260801 20060901 450000
20361201 20070101 644000
20361201 20070101 459200
20361201 20070101 671200
20360801 20060901 1905000
20361201 20070101 550200
20370101 20070201 352500
20360901 20061001 193520
20360901 20061001 494560
20360801 20060901 117008
20361001 20061101 500000
20360901 20061001 215000
20361201 20070101 100000
20361001 20061101 700000
20211201 20070101 350000
20361001 20061101 950000
20370101 20070201 182800
20211001 20061101 608000
20361001 20061101 108000
20361201 20070101 442320
20360901 20061001 565000
20370101 20070201 289600
20361101 20061201 1000000
20361001 20061101 1000000
20370101 20070201 500000
20361201 20070101 320000
20361201 20070101 650000
20361201 20070101 495200
20361101 20061201 427500
20370101 20070201 432000
20361201 20070101 810000
20361201 20070101 500000
20361201 20070101 472000
20361201 20070101 520000
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20361201 20070101 600000
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20370101 20070201 60000
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20361201 20070101 431200
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20361201 20070101 174500
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20360701 20060801 204000
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MATURITY_DATE PAYMENT CURRENT_BALANCE
20210601 1097.4 215000
20210901 9199.24 978227.57
20360901 834.3 126219.06
20361101 4051.56 638071.06
20370101 3094.61 488264.96
20370101 2807.41 448742.99
20370101 3946.43 757715
20210301 1769.58 196779.67
20361201 2772.26 436997.55
20370101 3135.83 568000
20361201 3024.4 489321.12
20360701 10232.64 1489011.18
20211201 7605.4 864184.66
20360801 3976.34 614299.7
20260801 3388.28 440733.18
20361201 4123.6 641708.38
20361201 2940.31 457565.96
20361201 3705.58 671200
20360801 11106.02 1903888.74
20361201 3254.64 547939.66
20370101 1872.66 352500
20360901 1239.13 192304.86
20360901 3207.71 491528.56
20360801 749.22 116128.08
20361001 3242.99 497380.44
20360901 1323.79 213549.5
20361201 531.25 100000
20361001 4482.18 694740.78
20211201 2953.5 345102.46
20361001 5926.76 944650.08
20370101 1047.29 182800
20211001 5380.25 596071.85
20361001 691.54 107420.3
20361201 2374.23 438320
20360901 3617.76 561452.25
20370101 1806.73 288791.03
20361101 5722.91 998907.33
20361001 6737.19 995130.08
20370101 3078.59 498569.3
20361201 1996.38 318805
20361201 4055.15 647572.65
20361201 3170.82 493437.57
20361101 2667.04 425499.12
20370101 2295 431999.33
20361201 5119.75 807047.12
20361201 3119.35 498132.79
20361201 2906.19 470194.53
20361201 3286.75 518104.34
20370101 4990.95 797765.32
20361201 2136.39 336767.8
20361201 1457.01 218275.65
20361201 4197.92 775000
20370101 3406.45 530584.11
20361201 2971.04 462348.9
20370101 3308.24 535561.05
20361201 3119.35 498132.79
20361201 4351.79 685990.04
20361201 2921.88 550000
20370101 3287.79 525527.9
20361201 3656.25 650000
20361201 575.34 108300
20370101 1806.25 340000
20361201 3593.98 676514.7
20361201 4313.18 662690.39
20370101 4827.22 781756.69
20361201 6026.23 969038.03
20361201 682.97 104934.29
20370101 2990 552000
20211101 6413.31 746802.12
20370101 3175.94 494679.92
20361201 1755.68 324125.09
20361201 4001.94 622776
20370101 3950.43 623295.77
20361201 2467.56 455550
20361201 623.87 99626.56
20361201 2196.61 320986.09
20361201 1921.52 304928.27
20361201 2902.5 516000
20211201 5716.2 662784.94
20361201 1928.33 356000
20361201 583.44 93170.77
20370101 3072.86 484832.04
20361201 1518.23 265000
20370101 2620.22 483733
20220101 1755.22 205753.21
20370101 3528.06 571360.43
20370101 8422.24 1346228.94
20361201 1292.46 248152
20361201 3127.84 504541.19
20370101 3585.09 565653.38
20211201 12218.28 1405663.96
20220101 16725.26 1900921.25
20370101 1021.96 181681.67
20211201 5063.14 591685.34
20370101 3620.83 632000
20361201 4838.47 787276
20361201 3355.23 522135.38
20361201 4380.23 690473.65
20361101 6320.36 995380.96
20370101 2783.04 450706.67
20370101 6814.94 996647.91
20370101 5312.5 1000000
20361201 2894.76 462267.21
20370101 2635.27 426775.34
20370101 3263.3 528483.48
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MATURITY_DATE STATE1 STATED_REM_TERM
20210601 Alabama 170
20210901 Georgia 173
20360901 Georgia 353
20361101 California 355
20370101 Arizona 357
20370101 New York 357
20370101 Florida 357
20210301 Michigan 167
20361201 Maryland 356
20370101 Maryland 357
20361201 Nevada 356
20360701 Nevada 351
20211201 Vermont 176
20360801 Virginia 352
20260801 California 232
20361201 Illinois 356
20361201 New Jersey 356
20361201 Illinois 356
20360801 Arizona 352
20361201 Virginia 356
20370101 New York 357
20360901 Georgia 353
20360901 New York 353
20360801 Pennsylvania 352
20361001 Illinois 354
20360901 Maine 353
20361201 New York 356
20361001 New York 354
20211201 New York 176
20361001 Georgia 354
20370101 Missouri 357
20211001 Pennsylvania 174
20361001 Missouri 354
20361201 New York 356
20360901 Mississippi 353
20370101 New York 357
20361101 New York 355
20361001 Nevada 354
20370101 Pennsylvania 357
20361201 New York 356
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20370101 SCOTTSDALE 0.25
20361201 FAIRFAX STATION 0.25
20370101 DELRAY BEACH 0.25
20370101 ▇▇▇▇▇▇▇▇ 0.25
20370101 LOCUST GROVE 0.25
20361201 WILDWOOD 0.25
20361201 GLENDALE 0.25
20361201 ▇▇▇▇▇▇▇▇ 0.25
20361201 O FALLON 0.25
20370101 BIRMINGHAM 0.25
20361201 BAKERSFIELD 0.25
20370101 OREGON CITY 0.25
20370101 GATLINBURG 0.25
20361201 SAN DIEGO 0.25
20361201 HIAWASSEE 0.25
20361201 TUCSON 0.25
20361201 FORT MILL 0.25
20361201 MIRAMAR 0.25
20370101 AURORA 0.25
20361201 ANNAPOLIS 0.25
20211201 SAN ▇▇▇▇ 0.25
20370101 MIAMI 0.25
20370101 SAN LEANDRO 0.25
20220101 HILTON HEAD ISLAND 0.25
20361201 BARRINGTON HILLS 0.25
20361201 LAS VEGAS 0.25
20361201 RENO 0.25
20361201 LEXINGTON 0.25
20361201 ▇▇▇▇▇▇▇ 0.25
20361201 HILLSBORO 0.25
20370101 MOORESVILLE 0.25
20370101 ▇▇▇ HILLS 0.25
20361201 SAN FRANCISCO 0.25
20370101 CHINO HILLS 0.25
20361201 SCOTTSDALE 0.25
20361201 LOS ANGELES 0.25
20370101 CARMEL 0.25
20370101 GARDNERVILLE 0.25
20370101 OXNARD 0.25
20211201 EASTON 0.25
20370101 DENVER 0.25
20361201 SAN ▇▇▇▇ 0.25
20361201 CHAPEL HILL 0.25
20370101 FOREST HILLS 0.25
20370101 PRIOR LAKE 0.25
20361201 ATLANTA 0.25
20370101 PHOENIX 0.25
20361201 EL CAJON 0.25
20370101 GLADSTONE 0.25
20361201 MEQUON 0.25
20370101 MIRAMAR 0.25
20361201 ▇▇▇▇▇▇▇▇ 0.25
20370101 HUNTINGTON BEACH 0.25
20361201 TUSCALOOSA 0.25
20370101 PEORIA 0.25
20361201 MINERAL BLUFF 0.25
20370101 SCOTTSDALE 0.25
20370101 ALTADENA 0.25
20370101 GLENDALE 0.25
20370101 SAN ▇▇▇▇ 0.25
20370101 WINNETKA 0.25
20370101 APACHE JUNCTION 0.25
20361201 NATICK 0.25
20370101 ELMHURST 0.25
20370101 BAY HARBOR ISLANDS 0.25
20370101 HINGHAM 0.25
20370101 ALEXANDRIA 0.25
20370101 CHULA VISTA 0.25
20370101 FOREST GROVE 0.25
20361201 SAN FRANCISCO 0.25
20361201 FILER 0.25
20370101 LAKELAND 0.25
20370101 GOODYEAR 0.25
20370101 BUENA PARK 0.25
20370101 VIRGINIA BEACH 0.25
20370101 JACKSONVILLE 0.25
20361201 EDGEWATER 0.25
20370101 TAMPA 0.25
20370101 ROCKFORD 0.25
20361201 ANOKA 0.25
20361201 ▇▇▇▇▇ ▇▇▇▇▇ 0.25
20370101 HAMPSTEAD 0.25
20361201 BEL AIR 0.25
20361201 LAS VEGAS 0.25
20370101 DRESDEN 0.25
20370101 NEW RIVER 0.25
20361201 ▇▇▇▇▇▇▇▇ 0.25
20370101 PORTLAND 0.25
20370101 BALTIMORE 0.25
20370101 EL PASO 0.25
20361201 SAINT PETERSBURG 0.25
20361201 SAINT LOUIS 0.25
20370101 HEBRON 0.25
20370101 MIAMI 0.25
20370101 DESTIN 0.25
20361201 PHOENIX 0.25
20370101 CLARKDALE 0.25
20370101 BRADENTON 0.25
20361201 ▇▇▇▇▇▇ 0.25
20361201 CLOVIS 0.25
20370101 RICHBORO 0.25
20370101 CHULA VISTA 0.25
20370101 SPOKANE 0.25
20370101 PORTLAND 0.25
20361201 CHATHAM 0.25
20370101 FAIRFIELD 0.25
20370101 SAN ▇▇▇▇ 0.25
20370101 VISALIA 0.25
20361201 ▇▇▇▇▇▇▇▇ 0.25
20361201 SPRINGFIELD 0.25
20211201 MUNDELEIN 0.25
20211201 SAINT AUGUSTINE 0.25
20211201 MONTVILLE 0.25
20370101 ASHLAND 0.25
20370101 ORCHARD LAKE 0.25
20361201 CYPRESS 0.25
20370101 BEL AIR 0.25
20370101 FREEHOLD 0.25
20370101 LA HABRA HEIGHTS 0.25
20370101 ▇▇▇▇▇▇▇ 0.25
20370101 ARLINGTON HEIGHTS 0.25
20361201 TUCSON 0.25
20370101 HAMPSTEAD 0.25
20361201 PUYALLUP 0.25
20361201 WHITTIER 0.25
20361201 GLENDALE 0.25
20361201 BOUNTIFUL 0.25
20370101 POTOMAC 0.25
20220101 MONSEY 0.25
20361201 ESTACADA 0.25
20361201 SAN FRANCISCO 0.25
20370101 SEATTLE 0.25
20370101 PHOENIX 0.25
20370101 WESTPORT 0.25
20370101 PHOENIX 0.25
20370101 ROYERSFORD 0.25
20220101 GRANITE BAY 0.25
20370101 ▇▇▇▇▇ 0.25
20370101 GLENDALE 0.25
20361201 UPPER MARLBORO 0.25
20361201 STAUNTON 0.25
20370101 FAIRFIELD 0.25
20370101 SOMERSWORTH 0.25
20370101 CENTRAL ISLIP 0.25
20361201 RANCHO PALOS VERDES 0.25
20370101 STEVENSVILLE 0.25
20370101 MILLBURN 0.25
20370101 STOCKBRIDGE 0.25
20361201 AVONDALE 0.25
20370101 SUWANEE 0.25
20361201 COLORADO SPRINGS 0.25
20361201 SCOTTSDALE 0.25
20370101 OAKLAND 0.25
20370101 MASSAPEQUA 0.25
20361201 HANOVER 0.25
20370101 TUSTIN 0.25
20370101 WASHINGTON 0.25
20370101 SAN FRANCISCO 0.25
20370101 WELLESLEY 0.25
20370101 VIENNA 0.25
20370101 ▇▇▇▇▇ SPRINGS 0.25
20370101 ALAMEDA 0.25
20370101 TAMARAC 0.25
20361201 RANCHO CUCAMONGA 0.25
20370101 SCOTTSDALE 0.25
20370101 GAMBRILLS 0.25
20370101 PORT SAINT LUCIE 0.25
20370101 SAN LEANDRO 0.25
20361201 ARLINGTON 0.25
20370101 SMITHTOWN 0.25
20370101 CHARLOTTE 0.25
20370101 SAINT ▇▇▇▇▇ 0.25
20370101 MERCERVILLE 0.25
20370101 ▇▇▇▇▇▇▇▇ 0.25
20370101 IRVINE 0.25
20370101 CHICAGO 0.25
20220101 HUGHESVILLE 0.25
20370101 SILVER SPRING 0.25
20370101 ▇▇▇▇▇▇▇ 0.25
20370101 YORK HARBOR 0.25
20370101 SECAUCUS 0.25
20370101 ▇▇▇▇▇▇ LEA 0.25
20370101 MIAMI 0.25
20370101 SAN ANTONIO 0.25
20361201 MIAMI 0.25
20361201 KINGWOOD 0.25
20370101 BATH 0.25
20361201 CAVE CREEK 0.25
20370101 ▇▇▇▇▇▇▇ 0.25
20370101 NORTH GRAFTON 0.25
20370101 SNELLVILLE 0.25
20370101 NASHVILLE 0.25
20370101 PACIFIC PALISADES 0.25
20370101 HUNTINGTON BEACH 0.25
20370101 TEMPE 0.25
20361201 PORTLAND 0.25
20361201 BUENA PARK 0.25
20370101 RIO ▇▇▇▇▇ 0.25
20370101 SIGNAL HILL 0.25
20220101 FRESNO 0.25
20361201 BREA 0.25
20370101 MIRAMAR 0.25
20220101 RALEIGH 0.25
20370101 CAPE NEDDICK 0.25
20370101 GALLATIN GATEWAY 0.25
20361201 SEATTLE 0.25
20370101 MOULTONBOROUGH 0.25
20370101 MOULTONBOROUGH 0.25
20370101 ▇▇▇▇▇▇▇ 0.25
20370101 ANNAPOLIS 0.25
20370101 CANTON 0.25
20370101 PHOENIX 0.25
20370101 UPLAND 0.25
20370101 SPOKANE 0.25
20370101 ▇▇▇▇▇▇▇▇▇ 0.25
20370101 BEND 0.25
20370101 ATLANTA 0.25
20370101 ▇▇▇▇▇ 0.25
20211201 LA HABRA HEIGHTS 0.25
20370101 HINSDALE 0.25
20370101 CALEXICO 0.25
20370101 TOMS RIVER 0.25
20370101 WILTON 0.25
20370101 WASHINGTON 0.25
20370101 DENVER 0.25
20361201 TEMECULA 0.25
20370101 PHOENIX 0.25
20361201 SAN CLEMENTE 0.25
20361201 HIGHLAND 0.25
20361201 HIGHLAND 0.25
20361201 ROMOLAND 0.25
20361201 HIGHLAND 0.25
20361201 HIGHLAND 0.25
20361201 HIGHLAND 0.25
20361201 SAN CLEMENTE 0.25
20361201 CORONA 0.25
20361201 SAN CLEMENTE 0.25
20361201 SAN ANTONIO 0.25
20370101 ENCINITAS 0.25
20370101 CHINO HILLS 0.25
20370101 CHICAGO 0.25
20370101 GENEVA 0.25
20370101 LEMONT 0.25
20370101 ARLINGTON 0.25
20370101 DALLAS 0.25
20220101 ANNAPOLIS 0.25
20370101 MAPLEWOOD 0.25
20370101 GAITHERSBURG 0.25
20370101 CHULA VISTA 0.25
20361201 WASHINGTON 0.25
20370101 OCEAN CITY 0.25
20370101 PEACHTREE CITY 0.25
20370101 CARLISLE 0.25
20370101 ▇▇▇▇▇▇▇▇▇ 0.25
20370101 WYOMING 0.25
20370101 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ 0.25
20370101 NEVADA CITY 0.25
20370101 ▇▇▇▇ 0.25
20361201 DISCOVERY BAY 0.25
20370101 CHINO HILLS 0.25
20361201 MICHIGAN CITY 0.25
20370101 FAIRFIELD 0.25
20370101 GLENDALE 0.25
20370101 HAMPTON 0.25
20370101 AUBURN 0.25
20370101 ATLANTA 0.25
20370101 PORTLAND 0.25
20370101 PAYSON 0.25
20370101 MEDIA 0.25
20370101 ALLIANCE 0.25
20370101 LAKE FOREST 0.25
20370101 ORLANDO 0.25
20370101 ▇▇▇▇▇▇ 0.25
20370101 SMITHTOWN 0.25
20370101 AQUEBOGUE 0.25
20370101 FRESNO 0.25
20370101 AURORA 0.25
20370101 SALISBURY 0.25
20370101 LOS ANGELES 0.25
20370101 COCKEYSVILLE 0.25
20370101 BEND 0.25
20370101 ▇▇▇▇▇ SPRINGS 0.25
20370101 THOUSAND OAKS 0.25
20370101 MILFORD 0.25
20370101 CARENCRO 0.25
20370101 PARK CITY 0.25
20370101 HINSDALE 0.25
20370101 ▇▇▇▇▇▇▇ 0.25
20370101 BRIDGEVIEW 0.25
20370101 BETHPAGE 0.25
20370101 SHOREHAM 0.25
20370101 REDWOOD CITY 0.25
20361001 CHULA VISTA 0.25
20361101 JACKSONVILLE 0.25
20360701 AVONDALE 0.25
20361101 WESTPORT 0.25
20370101 REDONDO BEACH 0.25
20370101 WALNUT CREEK 0.25
20361201 BETHESDA 0.25
20370101 LOS GATOS 0.25
20370301 ASHLAND 0.25
20370201 COVINA 0.25
20370201 RANCHO CUCAMONGA 0.25
20370201 LOS ANGELES 0.25
20370201 LONG BEACH 0.25
20370301 STUDIO CITY 0.25
20220201 MANILLA 0.25
20220201 SALISBURY 0.25
20220201 WALTHAM 0.25
20220101 SANTA ▇▇▇▇ 0.25
20220201 COPIAGUE 0.25
20220201 NORTH MIAMI 0.25
20220201 WALTHAM 0.25
20220201 WASHINGTON 0.25
20220201 WEST BLOOMFIELD 0.25
20220201 ROOTSTOWN 0.25
20220201 PARADISE VALLEY 0.25
20220201 BAYSIDE 0.25
20220201 DALLAS 0.25
20220201 RICHMOND 0.25
20220201 SAN DIEGO 0.25
20220201 STANWOOD 0.25
20220201 CARMEL 0.25
20361201 GLENDALE 0.25
20370101 PHOENIX 0.25
20370101 DESERT HOT SPRINGS 0.25
20370201 MOUNT AIRY 0.25
20370201 HOUSTON 0.25
20370101 ▇▇▇▇▇▇▇▇▇ 0.25
20370101 PHOENIX 0.25
20361101 CANTON 0.25
20370301 LOS ALAMITOS 0.25
20370201 SHOREWOOD 0.25
20370201 SAN JACINTO 0.25
20220201 EL DORADO HILLS 0.25
20470301 AZUSA 0.25
20370201 UPPER MARLBORO 0.25
20370201 DUBLIN 0.25
20470201 DENVER 0.25
20370301 NORTH PORT 0.25
20470401 POMONA 0.25
20370301 BROOKLINE 0.25
20370201 NEW YORK 0.25
20370101 BRIARWOOD 0.25
20370301 BROOKLYN 0.25
20370201 NEW YORK 0.25
20220201 JAMAICA 0.25
20370201 BROOKLYN 0.25
20370101 LARCHMONT 0.25
20370201 MIAMI LAKES 0.25
20370201 STERLING HEIGHTS 0.25
20370201 MOUNT KISCO 0.25
20370101 YONKERS 0.25
20370201 FAIRVIEW 0.25
20370101 ACTON 0.25
20470201 DAVIE 0.25
20370101 LOS ANGELES 0.25
20370301 HIALEAH 0.25
20370201 BRONX 0.25
20370301 HUNTINGTON 0.25
20370201 SANDS POINT 0.25
20370101 BRANDYWINE 0.25
20370201 BRENTWOOD 0.25
20370101 EAST ELMHURST 0.25
20370101 ▇▇▇▇▇▇ ▇▇▇▇▇ 0.25
20370301 SAN FRANCISCO 0.25
20370201 EAST HAMPTON 0.25
20370101 WEST PLAINS 0.25
20370301 MILFORD 0.25
20370301 STATEN ISLAND 0.25
20370301 STREETSBORO 0.25
20370201 MACOMB 0.25
20370301 STATEN ISLAND 0.25
20370201 ▇▇▇▇▇▇▇▇ 0.25
20470201 ▇▇▇▇▇▇▇▇ 0.25
20370201 BOUNTIFUL 0.25
20470201 HOUSTON 0.25
20370201 D'IBERVILLE 0.25
20370201 SAN LEANDRO 0.25
20370201 CHICAGO 0.25
20370201 ELGIN 0.25
20370301 NEW YORK 0.25
20370201 MARENGO 0.25
20370201 FALLS CHURCH 0.25
20370201 PROVO 0.25
20370301 MISHAWAKA 0.25
20370201 ▇▇▇▇▇▇ BEACH 0.25
20370201 ▇▇▇▇▇▇▇ 0.25
20370201 CORONA 0.25
20370201 LITTLE ROCK 0.25
20370201 REUNION 0.25
20470301 ▇▇▇▇▇▇▇▇ 0.25
20370201 ELMHURST 0.25
20470201 LOS ANGELES 0.25
20470201 POINT ▇▇▇▇▇ STATION 0.25
20370201 BUFFALO GROVE 0.25
20470201 PORTLAND 0.25
20470301 ANDOVER 0.25
20370201 SPRING VALLEY 0.25
20470201 RIVERTON 0.25
20370301 SCHAUMBURG 0.25
20370201 HOUSTON 0.25
20370201 DUNEDIN 0.25
20370201 ATLANTA 0.25
20370301 BROOKLYN 0.25
20370301 STATEN ISLAND 0.25
20370201 RANDALLSTOWN 0.25
20470401 TAUNTON 0.25
20470301 EL CAJON 0.25
20370301 SEASIDE 0.25
20370201 SUGAR LAND 0.25
20370201 ADDISON 0.25
20370301 STERLING HEIGHTS 0.25
20370201 CUMMING 0.25
20370301 GRAND RAPIDS 0.25
20470201 ▇▇▇▇▇▇▇ 0.25
20370301 FONTANA 0.25
20370301 CHICAGO 0.25
20370201 COLLIERVILLE 0.25
20370201 SOUTHGATE 0.25
20370201 GLENVIEW 0.25
20370301 WOODLAND 0.25
20370201 LEMONT 0.25
20370201 PISMO BEACH 0.25
20370301 PALMDALE 0.25
20470301 LOS ANGELES 0.25
20370201 SACRAMENTO 0.25
20370201 SANTA FE 0.25
20370201 LAS VEGAS 0.25
20370301 PIEDMONT 0.25
20370301 AUBURN 0.25
20361101 WYOMING 0.25
20370201 MISHAWAKA 0.25
20370201 SAINT CLAIR 0.25
20370301 FAIRBURN 0.25
20370201 AZLE 0.25
20370301 HOUSTON 0.25
20370301 HUNTINGTON BEACH 0.25
20370301 LOS ANGELES 0.25
20370301 BRUNSWICK 0.25
20370301 LONG BEACH 0.25
20370301 MOUNT KISCO 0.25
20470301 SANTA ▇▇▇ 0.25
20370301 ▇▇▇▇▇ 0.25
20370301 Washington 0.25
20370201 Washington 0.25
20370301 Leesburg 0.25
20370301 Falls Church 0.25
20370301 Washington 0.25
20370301 North Lauderdale 0.25
20370301 Ashburn 0.25
20370301 Brighton 0.25
20370301 Bowie 0.25
20370301 Williamsburg 0.25
20370301 HUNTINGTON BEACH 0.25
20370301 VENTURA 0.25
20370301 LAS VEGAS 0.25
20370301 ▇▇▇▇▇▇▇▇▇ 0.25
20370301 MOUNTAIN VIEW 0.25
20370301 SIMI VALLEY 0.25
20370301 OXNARD 0.25
20370301 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇.▇▇
▇▇▇▇▇▇▇▇ IRVINE 0.25
20370301 ROUND ROCK 0.25
20370301 ▇▇▇▇▇ 0.25
20370301 QUEEN CREEK 0.25
20370301 ▇▇▇▇▇▇ 0.25
20370301 AMERICAN CANYON 0.25
20370301 ROSEVILLE 0.25
20370301 ▇▇▇▇▇▇▇ 0.25
20370301 SAN DIEGO 0.25
20370201 WASHINGTON 0.25
MATURITY_DATE MSERV LPMI
20210601 0.012 0
20210901 0.012 0
20360901 0.012 0
20361101 0.012 0
20370101 0.012 0
20370101 0.012 0
20370101 0.012 0
20210301 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20360701 0.012 0
20211201 0.012 0
20360801 0.012 0
20260801 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20360801 0.012 0
20361201 0.012 0
20370101 0.012 0
20360901 0.012 0
20360901 0.012 0
20360801 0.012 0
20361001 0.012 0
20360901 0.012 0
20361201 0.012 0
20361001 0.012 0
20211201 0.012 0
20361001 0.012 0
20370101 0.012 1.35
20211001 0.012 0
20361001 0.012 0
20361201 0.012 0
20360901 0.012 0
20370101 0.012 0
20361101 0.012 0
20361001 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361101 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0.85
20370101 0.012 0
20211101 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20211201 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20370101 0.012 0
20220101 0.012 0
20370101 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20211201 0.012 0
20220101 0.012 0
20370101 0.012 0
20211201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361101 0.012 0
20370101 0.012 0
20370101 0.012 0
20370101 0.012 0
20361201 0.012 0
20370101 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20211201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20211201 0.012 0
20361201 0.012 0
20370101 0.012 0
20370101 0.012 0
20370101 0.012 0
20370101 0.012 0.4
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0.85
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20361201 0.012 0
20370101 0.012 0
20370101 0.012 0
20361201 0.012 0
20370101 0.012 0
20211201 0.012 0
20361201 0.012 0
20370101 0.012 0
20370101 0.012 0
20361201 0.012 0
20370101 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20370101 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20370101 0.012 0
20370101 0.012 0
20370101 0.012 0
20361201 0.012 0
20361201 0.012 0
20361201 0.012 0
20370101 0.012 0
20220101 0.012 0
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20361201 2339 360
20370101 92780 360
20370101 20007 360
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20370101 2482 360
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20361201 76012 360
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20370101 28273 360
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20370101 8619 360
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20370101 92606 360
20370101 60645 360
20220101 20637 180
20370101 20906 360
20370101 95490 360
20370101 3911 360
20370101 7094 360
20370101 56007 360
20370101 33134 360
20370101 78250 360
20361201 33184 360
20361201 77339 360
20370101 4530 360
20361201 85331 360
20370101 92227 360
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20370101 37201 360
20370101 90272 360
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20370101 85284 360
20361201 97216 360
20361201 90620 360
20370101 95673 360
20370101 90755 360
20220101 93720 180
20361201 92821 360
20370101 33025 360
20220101 27607 180
20370101 3902 360
20370101 59730 360
20361201 98125 360
20370101 3254 360
20370101 3254 360
20370101 20171 360
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20370101 2021 360
20370101 85048 360
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20370101 99207 360
20370101 21704 360
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20370101 30338 360
20370101 22015 360
20211201 90631 180
20370101 60521 360
20370101 92231 360
20370101 8753 360
20370101 6897 360
20370101 20015 360
20370101 80202 360
20361201 92592 360
20370101 85085 360
20361201 92673 360
20361201 92346 360
20361201 92346 360
20361201 92585 360
20361201 92346 360
20361201 92346 360
20361201 92346 360
20361201 92673 360
20361201 92880 360
20361201 92673 360
20361201 78233 360
20370101 92024 360
20370101 91709 360
20370101 60614 360
20370101 60134 360
20370101 60439 360
20370101 22207 360
20370101 97338 360
20220101 21401 180
20370101 55109 360
20370101 20879 360
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20361201 20001 360
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20370101 50047 360
20370101 89012 360
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20361201 94514 360
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20220201 46150 180
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20361201 85310 360
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20370301 94114 360
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20370301 10312 360
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20370201 48044 180
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MATURITY_DATE PROPTYPE LIEN
20210601 Single Family First Lien
20210901 Single Family First Lien
20360901 Single Family First Lien
20361101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Condominium First Lien
20210301 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20360701 PUD First Lien
20211201 Single Family First Lien
20360801 Single Family First Lien
20260801 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20360801 PUD First Lien
20361201 PUD First Lien
20370101 CO-OP First Lien
20360901 PUD First Lien
20360901 Single Family First Lien
20360801 Single Family First Lien
20361001 Single Family First Lien
20360901 Single Family First Lien
20361201 CO-OP First Lien
20361001 Condominium First Lien
20211201 Single Family First Lien
20361001 Single Family First Lien
20370101 PUD First Lien
20211001 Single Family First Lien
20361001 Single Family First Lien
20361201 Single Family First Lien
20360901 PUD First Lien
20370101 Single Family First Lien
20361101 Single Family First Lien
20361001 PUD First Lien
20370101 Single Family First Lien
20361201 CO-OP First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361101 Single Family First Lien
20370101 PUD First Lien
20361201 2-4 Family First Lien
20361201 Single Family First Lien
20361201 Condominium First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20361201 2-4 Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 Condominium First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Condominium First Lien
20211101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20211201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20220101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20211201 Single Family First Lien
20220101 Single Family First Lien
20370101 PUD First Lien
20211201 Single Family First Lien
20370101 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 2-4 Family First Lien
20361101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20211201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Condominium First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 Condominium First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20361201 Condominium First Lien
20211201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 CO-OP First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 Condominium First Lien
20211201 Single Family First Lien
20361201 Condominium First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Condominium First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20220101 Condominium First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 2-4 Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20220101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20211201 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 2-4 Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20211201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20220101 Condominium First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20361201 Condominium First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Condominium First Lien
20211201 Single Family First Lien
20370101 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Condominium First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Condominium First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Condominium First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Condominium First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20211201 Single Family First Lien
20211201 PUD First Lien
20211201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20220101 Single Family First Lien
20361201 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20220101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 Condominium First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 2-4 Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Condominium First Lien
20370101 Condominium First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20220101 PUD First Lien
20370101 Condominium First Lien
20370101 Single Family First Lien
20370101 Condominium First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Condominium First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Condominium First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20361201 Condominium First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20220101 Single Family First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20220101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20211201 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Condominium First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Condominium First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20220101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Condominium First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20361201 PUD First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Condominium First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Condominium First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 PUD First Lien
20370101 Condominium First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361001 PUD First Lien
20361101 Single Family First Lien
20360701 PUD First Lien
20361101 Single Family First Lien
20370101 Single Family First Lien
20370101 Single Family First Lien
20361201 Single Family First Lien
20370101 PUD First Lien
20370301 Single Family First Lien
20370201 Condominium First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370301 Single Family First Lien
20220201 Single Family First Lien
20220201 PUD First Lien
20220201 Single Family First Lien
20220101 PUD First Lien
20220201 Condominium First Lien
20220201 Single Family First Lien
20220201 Single Family First Lien
20220201 Single Family First Lien
20220201 Condominium First Lien
20220201 Single Family First Lien
20220201 Single Family First Lien
20220201 2-4 Family First Lien
20220201 Single Family First Lien
20220201 Single Family First Lien
20220201 Single Family First Lien
20220201 Single Family First Lien
20220201 PUD First Lien
20361201 PUD First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20370201 Single Family First Lien
20370201 PUD First Lien
20370101 PUD First Lien
20370101 Single Family First Lien
20361101 Condominium First Lien
20370301 Single Family First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20220201 Single Family First Lien
20470301 Condominium First Lien
20370201 PUD First Lien
20370201 Condominium First Lien
20470201 Single Family First Lien
20370301 Single Family First Lien
20470401 Condominium First Lien
20370301 Single Family First Lien
20370201 CO-OP First Lien
20370101 CO-OP First Lien
20370301 CO-OP First Lien
20370201 CO-OP First Lien
20220201 CO-OP First Lien
20370201 CO-OP First Lien
20370101 CO-OP First Lien
20370201 Condominium First Lien
20370201 Single Family First Lien
20370201 Condominium First Lien
20370101 CO-OP First Lien
20370201 Single Family First Lien
20370101 Single Family First Lien
20470201 PUD First Lien
20370101 2-4 Family First Lien
20370301 Single Family First Lien
20370201 CO-OP First Lien
20370301 Single Family First Lien
20370201 Single Family First Lien
20370101 PUD First Lien
20370201 Single Family First Lien
20370101 2-4 Family First Lien
20370101 Single Family First Lien
20370301 Condominium First Lien
20370201 Single Family First Lien
20370101 Single Family First Lien
20370301 Single Family First Lien
20370301 2-4 Family First Lien
20370301 PUD First Lien
20370201 Single Family First Lien
20370301 Single Family First Lien
20370201 PUD First Lien
20470201 Single Family First Lien
20370201 Single Family First Lien
20470201 PUD First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370301 CO-OP First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370301 Single Family First Lien
20370201 CO-OP First Lien
20370201 PUD First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370201 PUD First Lien
20470301 PUD First Lien
20370201 Single Family First Lien
20470201 Condominium First Lien
20470201 Single Family First Lien
20370201 Hi-Rise Condo First Lien
20470201 Single Family First Lien
20470301 Single Family First Lien
20370201 Single Family First Lien
20470201 Single Family First Lien
20370301 Hi-Rise Condo First Lien
20370201 PUD First Lien
20370201 Single Family First Lien
20370201 PUD First Lien
20370301 2-4 Family First Lien
20370301 Single Family First Lien
20370201 Single Family First Lien
20470401 Single Family First Lien
20470301 Single Family First Lien
20370301 Single Family First Lien
20370201 PUD First Lien
20370201 Single Family First Lien
20370301 Single Family First Lien
20370201 PUD First Lien
20370301 Single Family First Lien
20470201 Single Family First Lien
20370301 PUD First Lien
20370301 Single Family First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370201 Condominium First Lien
20370301 Single Family First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370301 Single Family First Lien
20470301 Single Family First Lien
20370201 Single Family First Lien
20370201 PUD First Lien
20370201 PUD First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20361101 Single Family First Lien
20370201 Single Family First Lien
20370201 Single Family First Lien
20370301 PUD First Lien
20370201 PUD First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20370301 Condominium First Lien
20470301 Single Family First Lien
20370301 PUD First Lien
20370301 2-4 Family First Lien
20370201 2-4 Family First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20370301 PUD First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20370301 Single Family First Lien
20370301 PUD First Lien
20370301 Single Family First Lien
20370301 PUD First Lien
20370301 PUD First Lien
20370301 PUD First Lien
20370301 PUD First Lien
20370301 Condominium First Lien
20370301 PUD First Lien
20370301 PUD First Lien
20370301 PUD First Lien
20370301 PUD First Lien
20370301 PUD First Lien
20370301 PUD First Lien
20370301 Single Family First Lien
20370301 PUD First Lien
20370301 Single Family First Lien
20370301 Condominium First Lien
20370201 Single Family First Lien
MATURITY_DATE CURRENT_GROSS_COUPON CURRENT_NET_COUPON
20210601 6.125 5.863
20210901 7.375 7.113
20360901 6.875 6.613
20361101 6.5 6.238
20370101 6.5 6.238
20370101 6.375 6.113
20370101 6.25 5.988
20210301 6.25 5.988
20361201 6.5 6.238
20370101 6.625 6.363
20361201 6.25 5.988
20360701 7.25 6.988
20211201 6.375 6.113
20360801 6.625 6.363
20260801 6.625 6.363
20361201 6.625 6.363
20361201 6.625 6.363
20361201 6.625 6.363
20360801 7 6.738
20361201 5.875 5.613
20370101 6.375 6.113
20360901 6.625 6.363
20360901 6.75 6.488
20360801 6.625 6.363
20361001 6.75 6.488
20360901 6.25 5.988
20361201 6.375 6.113
20361001 6.625 6.363
20211201 6 5.738
20361001 6.375 6.113
20370101 6.875 5.263
20211001 6.75 6.488
20361001 6.625 6.363
20361201 6.5 6.238
20360901 6.625 6.363
20370101 6.375 6.113
20361101 6.875 6.613
20361001 7.125 6.863
20370101 6.25 5.988
20361201 6.375 6.113
20361201 6.375 6.113
20361201 6.625 6.363
20361101 6.375 6.113
20370101 6.375 6.113
20361201 6.5 6.238
20361201 6.375 6.113
20361201 6.25 5.988
20361201 6.5 6.238
20370101 6.375 6.113
20361201 6.5 6.238
20361201 7 6.738
20361201 6.5 6.238
20370101 6.625 6.363
20361201 6.625 6.363
20370101 6.25 5.988
20361201 6.375 6.113
20361201 6.5 6.238
20361201 6.375 6.113
20370101 6.375 6.113
20361201 6.75 6.488
20361201 6.375 6.113
20370101 6.375 6.113
20361201 6.375 6.113
20361201 6.75 6.488
20370101 6.25 5.988
20361201 6.25 5.988
20361201 6.75 5.638
20370101 6.5 6.238
20211101 6 5.738
20370101 6.625 6.363
20361201 6.5 6.238
20361201 6.625 6.363
20370101 6.5 6.238
20361201 6.5 6.238
20361201 6.375 6.113
20361201 7.25 6.988
20361201 6.375 6.113
20361201 6.75 6.488
20211201 6.125 5.863
20361201 6.5 6.238
20361201 6.375 6.113
20370101 6.5 6.238
20361201 6.875 6.613
20370101 6.5 6.238
20220101 6 5.738
20370101 6.25 5.988
20370101 6.375 6.113
20361201 6.25 5.988
20361201 6.25 5.988
20370101 6.5 6.238
20211201 6.25 5.988
20220101 6.5 6.238
20370101 6.75 6.488
20211201 6 5.738
20370101 6.875 6.613
20361201 7.375 7.113
20361201 6.625 6.363
20361201 6.5 6.238
20361101 6.5 6.238
20370101 6.25 5.988
20370101 7.25 6.988
20370101 6.375 6.113
20361201 6.375 6.113
20370101 6.25 5.988
20370101 6.25 5.988
20361201 6.625 6.363
20361201 6.25 5.988
20361201 6.5 6.238
20211201 6 5.738
20361201 6.625 6.363
20361201 6.5 6.238
20361201 6.25 5.988
20361201 6.875 6.613
20370101 6.625 6.363
20361201 6.375 6.113
20361201 6.75 6.488
20361201 6.5 6.238
20370101 6.75 6.488
20361201 6.375 6.113
20361201 6.25 5.988
20361201 6.5 6.238
20361201 6.625 6.363
20361201 7 6.738
20361201 6.5 6.238
20370101 6.375 6.113
20361201 6.25 5.988
20361201 6.625 6.363
20370101 6.375 6.113
20361201 6.5 6.238
20211201 6 5.738
20361201 6.75 6.488
20370101 6.875 6.613
20370101 6.375 6.113
20370101 6.25 5.988
20370101 6.875 6.213
20361201 6.25 5.988
20361201 6.375 6.113
20361201 6.375 6.113
20361201 6.375 6.113
20361201 6.25 5.988
20361201 7.25 6.988
20361201 6.5 6.238
20361201 6.75 5.638
20361201 6.625 6.363
20361201 6.375 6.113
20370101 6.5 6.238
20361201 7.375 7.113
20361201 6 5.738
20370101 6.125 5.863
20361201 6.375 6.113
20370101 6.875 6.613
20370101 6.5 6.238
20361201 6.375 6.113
20370101 6.875 6.613
20211201 6.375 6.113
20361201 6.375 6.113
20370101 6.25 5.988
20370101 6.375 6.113
20361201 6.875 6.613
20370101 6.375 6.113
20370101 6.5 6.238
20361201 6.5 6.238
20361201 6.375 6.113
20370101 6.375 6.113
20370101 6.5 6.238
20361201 6.5 6.238
20361201 6.25 5.988
20370101 6.375 6.113
20370101 6.75 6.488
20370101 6.625 6.363
20361201 6.25 5.988
20361201 7.5 7.238
20361201 6.375 6.113
20361201 6.5 6.238
20361201 7.625 7.363
20370101 6 5.738
20370101 6.5 6.238
20370101 6.5 6.238
20370101 6.875 6.613
20361201 6.625 6.363
20361201 6.25 5.988
20361201 6.5 6.238
20370101 6.5 6.238
20220101 6 5.738
20361201 6.625 6.363
20370101 6.5 6.238
20370101 6.625 6.363
20361201 6.375 6.113
20361201 6.5 6.238
20370101 6.75 6.488
20361201 6.625 6.363
20370101 6.375 6.113
20370101 6.75 6.488
20361201 6.375 6.113
20370101 6 5.738
20220101 6.125 5.863
20361201 6.375 6.113
20361201 6.375 6.113
20361201 6.125 5.863
20361201 6.375 6.113
20370101 7.125 6.863
20370101 6.875 6.613
20370101 6.75 6.488
20361201 6.375 6.113
20361201 6.375 6.113
20361201 6.75 6.488
20361201 6.625 6.363
20211201 6 5.738
20370101 6.25 5.988
20361201 6.5 6.238
20361201 6.5 6.238
20361201 6.5 6.238
20361201 7.625 7.363
20361201 6.75 6.488
20361201 6.5 5.088
20361201 6.375 6.113
20361201 6.5 6.238
20361201 6.375 6.113
20370101 6.625 6.363
20370101 6.25 5.988
20370101 6.625 6.363
20361201 6.375 6.113
20361201 6.375 6.113
20361201 6.375 6.113
20370101 6.5 6.238
20370101 6.875 6.613
20361201 7.75 7.488
20370101 6.75 6.488
20361201 6.625 6.363
20370101 6.625 6.363
20370101 6.5 6.238
20370101 7.25 6.988
20361201 7.375 6.983
20361201 6.875 6.613
20361201 6.5 6.238
20361201 6.375 6.113
20370101 6.75 6.488
20361201 6.25 5.988
20370101 6.25 5.988
20370101 7.5 7.238
20361201 6.375 6.113
20361201 6.5 6.238
20361201 6.375 6.113
20361201 6.375 4.963
20361201 6.375 6.113
20370101 6.25 5.988
20361201 6.5 6.238
20211201 5.875 5.613
20370101 6.625 6.363
20370101 6.375 6.113
20220101 6 5.738
20361201 6.625 6.363
20361201 6.375 6.113
20361201 6.5 6.238
20361201 6.625 6.363
20361201 5.875 5.613
20361201 6.375 6.113
20370101 6.375 6.113
20370101 6.375 6.113
20361201 6.625 6.363
20370101 6.375 6.113
20361201 6.5 6.238
20361201 6.5 6.238
20370101 6.625 6.363
20370101 6.625 6.363
20370101 6.5 6.238
20211201 5.875 5.613
20370101 6.5 6.238
20361201 6.375 6.113
20361201 6.5 6.238
20370101 6.5 6.238
20370101 6.875 6.613
20361201 6.25 5.988
20370101 6.375 6.113
20361201 6.375 6.113
20370101 6.375 6.113
20361201 6.25 5.988
20370101 6.25 5.988
20361201 6.5 6.238
20370101 6.375 6.113
20361201 6.625 6.363
20370101 6.375 6.113
20361201 6.75 6.488
20370101 6.5 6.238
20370101 6.625 6.363
20370101 6.375 6.113
20370101 6.5 6.238
20370101 6.375 6.113
20370101 6.5 6.238
20361201 6.25 5.988
20370101 6.5 6.238
20370101 6.375 6.113
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.125 5.863
20370101 6.375 6.113
20361201 6.375 6.113
20361201 6.5 6.238
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.5 6.238
20370101 6.25 5.988
20370101 6.375 6.113
20361201 6.5 6.238
20370101 6.375 6.113
20370101 6.75 6.488
20361201 6.875 6.613
20361201 6.5 6.238
20370101 6.375 6.113
20361201 6.25 5.988
20361201 6.25 5.988
20370101 6.25 5.988
20370101 6.875 6.613
20361201 6.375 6.113
20370101 6.25 5.988
20370101 6.375 6.113
20370101 6.25 5.988
20361201 6.5 6.238
20361201 6.625 6.363
20370101 6.5 6.238
20370101 6.625 6.363
20370101 6.75 6.488
20361201 6.5 6.238
20370101 6.625 6.363
20370101 6.5 6.238
20361201 6.625 6.363
20361201 6 5.738
20370101 6.125 5.863
20370101 6.125 5.863
20370101 6.5 6.238
20370101 6.375 6.113
20361201 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.375 6.113
20361201 6.375 6.113
20361201 6.125 5.863
20211201 5.75 5.488
20211201 6 5.738
20211201 5.75 5.488
20370101 6.25 5.988
20370101 6.375 6.113
20361201 6.5 6.238
20370101 6.375 6.113
20370101 6.25 5.988
20370101 6.125 5.863
20370101 6.125 5.863
20370101 6.375 6.113
20361201 6.5 6.238
20370101 6.25 5.988
20361201 6.375 6.113
20361201 6.875 6.613
20361201 6.25 5.988
20361201 6.75 6.488
20370101 6.5 6.238
20220101 5.75 5.488
20361201 6.75 6.488
20361201 6 5.738
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.375 6.113
20370101 6.75 5.568
20220101 6 5.738
20370101 6.25 5.988
20370101 6.25 5.988
20361201 6.375 6.113
20361201 6.375 6.113
20370101 6.5 6.238
20370101 6.875 6.613
20370101 6.25 5.368
20361201 6.375 6.113
20370101 6.25 5.988
20370101 6.125 5.863
20370101 6.25 5.988
20361201 6.25 5.988
20370101 6.25 5.988
20361201 6.375 5.493
20361201 6.625 6.363
20370101 6.375 6.113
20370101 6.125 5.863
20361201 6.625 6.363
20370101 7.75 7.488
20370101 6.25 5.988
20370101 6.625 6.363
20370101 6.125 5.863
20370101 6.25 5.988
20370101 7.375 7.113
20370101 6.25 5.988
20370101 6.625 6.363
20361201 6.625 6.363
20370101 6.125 5.863
20370101 6.5 6.238
20370101 6.125 5.863
20370101 6.25 5.988
20361201 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.368
20370101 6.625 6.363
20370101 6.25 5.988
20370101 6.875 6.613
20370101 7.75 7.488
20370101 6.5 6.238
20220101 5.875 5.613
20370101 6.5 6.238
20370101 7.375 7.113
20370101 6.5 6.238
20370101 6.125 5.863
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.75 6.488
20361201 7.375 7.113
20361201 6.375 6.113
20370101 6.375 6.113
20361201 6.25 5.988
20370101 6.5 6.238
20370101 6.375 6.113
20370101 8.125 7.333
20370101 6.5 6.238
20370101 7.75 7.488
20370101 6.25 5.988
20370101 6.25 5.988
20361201 6.625 6.363
20361201 6.375 6.113
20370101 7.375 7.113
20370101 6.375 6.113
20220101 5.875 5.613
20361201 6.625 6.363
20370101 6.5 6.238
20220101 5.625 5.363
20370101 6.5 6.238
20370101 6.625 6.363
20361201 5.75 5.488
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.625 6.363
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.625 6.363
20370101 6.5 6.238
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.988
20211201 6.25 5.988
20370101 6.375 6.113
20370101 6.875 5.463
20370101 6.375 6.113
20370101 6.875 6.613
20370101 6.5 6.238
20370101 6.625 6.363
20361201 6.375 6.113
20370101 6.375 6.113
20361201 5.375 5.113
20361201 6 5.738
20361201 6.25 5.988
20361201 5.875 5.613
20361201 6.25 5.988
20361201 6.375 6.113
20361201 6.5 6.238
20361201 6.5 6.238
20361201 6.625 6.363
20361201 5.75 5.488
20361201 6.75 6.488
20370101 7.375 7.113
20370101 6.375 6.113
20370101 7.375 7.113
20370101 6.875 6.613
20370101 7.25 6.988
20370101 6.375 6.113
20370101 6.375 6.113
20220101 5.875 5.613
20370101 6.375 6.113
20370101 6.625 6.363
20370101 6.375 6.113
20361201 6 5.738
20370101 6.5 6.238
20370101 6.875 6.613
20370101 6.125 5.863
20370101 6.625 6.363
20370101 6.375 6.113
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.988
20361201 6 5.738
20370101 6.5 6.238
20361201 6.375 6.113
20370101 6.375 6.113
20370101 6.375 6.113
20370101 6.625 6.363
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.625 6.363
20370101 6.125 5.863
20370101 7 6.738
20370101 7.375 7.113
20370101 6.25 5.988
20370101 5.75 5.488
20370101 6.375 6.113
20370101 6.5 6.238
20370101 6.5 6.238
20370101 6.375 6.113
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.25 5.988
20370101 6.375 6.113
20370101 6.125 5.863
20370101 6.375 6.113
20370101 6.625 6.363
20370101 6.875 6.613
20370101 6.375 6.113
20370101 6.25 5.988
20370101 6.75 6.488
20370101 6.625 6.363
20370101 6.375 6.113
20370101 5.75 5.488
20370101 6 5.738
20361001 6.375 6.113
20361101 6.625 6.363
20360701 6.625 6.363
20361101 6.875 6.613
20370101 6.25 5.988
20370101 6.375 6.113
20361201 6.375 6.113
20370101 6.125 5.863
20370301 6.125 5.863
20370201 6.875 6.613
20370201 5.99 5.728
20370201 6.375 6.113
20370201 6 5.738
20370301 6.25 5.988
20220201 6.125 5.863
20220201 6.25 5.988
20220201 6 5.738
20220101 5.875 5.613
20220201 6 5.738
20220201 6.875 6.613
20220201 5.875 5.613
20220201 5.75 5.488
20220201 5.875 5.613
20220201 6.375 6.113
20220201 5.875 5.613
20220201 6.625 6.363
20220201 5.875 5.613
20220201 6.125 5.863
20220201 5.625 5.363
20220201 6.25 5.988
20220201 6.125 5.863
20361201 6 5.738
20370101 6.75 6.488
20370101 6.75 6.488
20370201 6.5 6.238
20370201 6.5 6.238
20370101 6.625 6.363
20370101 6.625 6.363
20361101 6.375 6.113
20370301 6.375 6.113
20370201 6 5.738
20370201 6.375 6.113
20220201 6.25 5.988
20470301 6.625 6.363
20370201 7.25 6.988
20370201 6.75 6.488
20470201 7.5 7.238
20370301 8.75 8.488
20470401 6.875 6.613
20370301 6.5 6.238
20370201 6.5 6.238
20370101 6.5 6.238
20370301 6.5 6.238
20370201 6.375 6.113
20220201 6.75 6.488
20370201 6.625 6.363
20370101 6.5 6.238
20370201 6.625 6.363
20370201 7.375 7.113
20370201 6.75 6.488
20370101 6.75 6.488
20370201 6.875 6.613
20370101 7.25 6.988
20470201 6.75 6.488
20370101 7.625 7.363
20370301 7.125 6.863
20370201 6.875 6.613
20370301 6.75 6.488
20370201 6.75 6.488
20370101 6.5 6.238
20370201 7.25 6.988
20370101 7.25 6.988
20370101 7.125 6.863
20370301 7 6.738
20370201 6.75 6.488
20370101 7 6.738
20370301 6.875 6.613
20370301 7.25 6.988
20370301 7.375 7.113
20370201 6.875 6.613
20370301 6.75 6.488
20370201 6.75 6.488
20470201 7 6.738
20370201 6.625 6.363
20470201 7.125 6.863
20370201 7.625 7.363
20370201 7.25 6.988
20370201 7.125 6.863
20370201 7 6.738
20370301 6.125 5.863
20370201 6.75 6.488
20370201 6.375 6.113
20370201 6.875 6.613
20370301 7.375 7.113
20370201 6.875 6.613
20370201 7.125 6.863
20370201 6.875 6.613
20370201 7.125 6.863
20370201 7.375 7.113
20470301 7.25 6.988
20370201 7.75 7.488
20470201 6.875 6.613
20470201 6.5 6.238
20370201 7.5 7.238
20470201 6.375 6.113
20470301 7 6.738
20370201 7.25 6.988
20470201 7 6.738
20370301 6.875 6.613
20370201 7.375 7.113
20370201 6.75 6.488
20370201 6.375 6.113
20370301 7.5 7.238
20370301 6.25 5.988
20370201 6.875 6.613
20470401 7.25 6.988
20470301 7.125 6.863
20370301 6.5 6.238
20370201 7.375 7.113
20370201 6.75 6.488
20370301 7 6.738
20370201 6.375 6.113
20370301 6.875 6.613
20470201 7.125 6.863
20370301 7.25 6.988
20370301 6.625 6.363
20370201 7.75 7.488
20370201 7.375 7.113
20370201 7.25 6.988
20370301 6 5.738
20370201 7.875 7.613
20370201 6.625 6.363
20370301 6.75 6.488
20470301 6.5 6.238
20370201 7 6.738
20370201 7 6.738
20370201 6.875 6.613
20370301 6.625 6.363
20370301 7 6.738
20361101 7.125 6.863
20370201 7.625 7.363
20370201 7 6.738
20370301 6.875 6.613
20370201 7.375 7.113
20370301 7 6.738
20370301 6.5 6.238
20370301 7.25 6.988
20370301 7 6.738
20370301 6.5 6.238
20370301 6.875 6.613
20470301 6.75 6.488
20370301 6.75 6.488
20370301 6 5.738
20370201 6.5 6.238
20370301 6.125 5.863
20370301 6.25 5.988
20370301 6.875 6.613
20370301 6.375 6.113
20370301 6.375 6.113
20370301 7.375 7.113
20370301 6.5 6.238
20370301 6.375 6.113
20370301 6 5.738
20370301 6.375 6.113
20370301 6.375 6.113
20370301 6.375 6.113
20370301 6.375 6.113
20370301 5.875 5.613
20370301 6 5.738
20370301 5.5 5.238
20370301 5.75 5.488
20370301 6.125 5.863
20370301 6.25 5.988
20370301 6.875 6.613
20370301 6.25 5.988
20370301 6.25 5.988
20370301 6.25 5.988
20370301 6.625 6.363
20370301 7.125 6.863
20370201 5.98 5.718
MATURITY_DATE MI BALLOON
20210601 No MI No
20210901 No MI No
20360901 No MI No
20361101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20210301 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20360701 No MI No
20211201 No MI No
20360801 No MI No
20260801 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20360801 No MI No
20361201 No MI No
20370101 No MI No
20360901 No MI No
20360901 No MI No
20360801 No MI No
20361001 No MI No
20360901 No MI No
20361201 No MI No
20361001 No MI No
20211201 No MI No
20361001 No MI No
20370101 GE Capital MI No
20211001 No MI No
20361001 No MI No
20361201 No MI No
20360901 No MI No
20370101 No MI No
20361101 No MI No
20361001 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 Radian Guaranty No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 GE Capital MI No
20370101 No MI No
20211101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 Radian Guaranty No
20361201 No MI No
20361201 No MI No
20211201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 United Guaranty No
20370101 No MI No
20220101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20211201 No MI No
20220101 No MI No
20370101 United Guaranty No
20211201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20211201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 Radian Guaranty No
20370101 No MI No
20361201 No MI No
20361201 Mortgage Guaranty In No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20211201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 Triad Guaranty No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 GE Capital MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 Radian Guaranty No
20211201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20220101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 Radian Guaranty No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20220101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20211201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 United Guaranty No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 Triad Guaranty No
20361201 Radian Guaranty No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 Mortgage Guaranty In No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20211201 No MI No
20370101 No MI No
20370101 No MI No
20220101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20211201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 Mortgage Guaranty In No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 Triad Guaranty No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20211201 No MI No
20211201 No MI No
20211201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20220101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 Mortgage Guaranty In No
20220101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 GE Capital MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 GE Capital MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 United Guaranty No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20220101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 Mortgage Guaranty In No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 PMI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20220101 No MI No
20361201 No MI No
20370101 No MI No
20220101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20211201 No MI No
20370101 No MI No
20370101 Mortgage Guaranty In No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20220101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 Radian Guaranty No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 PMI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 Radian Guaranty No
20370101 No MI No
20370101 Radian Guaranty No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20370101 No MI No
20361001 No MI No
20361101 No MI No
20360701 No MI No
20361101 No MI No
20370101 No MI No
20370101 No MI No
20361201 No MI No
20370101 No MI No
20370301 No MI No
20370201 No MI No
20370201 No MI No
20370201 No MI No
20370201 No MI No
20370301 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220101 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20220201 No MI No
20361201 No MI No
20370101 PMI No
20370101 No MI No
20370201 No MI No
20370201 No MI No
20370101 No MI No
20370101 No MI No
20361101 No MI No
20370301 No MI No
20370201 No MI No
20370201 No MI No
20220201 No MI No
20470301 No MI Yes
20370201 No MI No
20370201 No MI No
20470201 PMI Yes
20370301 PMI No
20470401 No MI Yes
20370301 No MI No
20370201 No MI No
20370101 No MI No
20370301 PMI No
20370201 No MI No
20220201 No MI No
20370201 Radian Guaranty No
20370101 No MI No
20370201 No MI No
20370201 No MI No
20370201 No MI No
20370101 No MI No
20370201 No MI No
20370101 No MI No
20470201 No MI Yes
20370101 No MI No
20370301 No MI No
20370201 No MI No
20370301 No MI No
20370201 No MI No
20370101 No MI No
20370201 No MI No
20370101 No MI No
20370101 No MI Yes
20370301 No MI No
20370201 No MI No
20370101 No MI Yes
20370301 No MI Yes
20370301 No MI No
20370301 PMI No
20370201 No MI Yes
20370301 No MI No
20370201 No MI No
20470201 No MI Yes
20370201 No MI Yes
20470201 No MI Yes
20370201 PMI No
20370201 No MI Yes
20370201 No MI Yes
20370201 No MI Yes
20370301 No MI No
20370201 No MI Yes
20370201 PMI No
20370201 No MI No
20370301 PMI Yes
20370201 No MI No
20370201 No MI No
20370201 No MI No
20370201 PMI No
20370201 No MI No
20470301 No MI Yes
20370201 PMI Yes
20470201 No MI Yes
20470201 No MI Yes
20370201 No MI Yes
20470201 No MI Yes
20470301 No MI Yes
20370201 No MI No
20470201 No MI Yes
20370301 No MI Yes
20370201 PMI No
20370201 No MI No
20370201 No MI No
20370301 No MI No
20370301 No MI No
20370201 No MI No
20470401 No MI Yes
20470301 No MI Yes
20370301 No MI No
20370201 No MI No
20370201 No MI Yes
20370301 No MI Yes
20370201 No MI No
20370301 No MI No
20470201 No MI Yes
20370301 PMI Yes
20370301 No MI No
20370201 PMI No
20370201 No MI Yes
20370201 No MI Yes
20370301 No MI No
20370201 PMI Yes
20370201 No MI No
20370301 No MI No
20470301 No MI Yes
20370201 No MI Yes
20370201 No MI No
20370201 No MI Yes
20370301 No MI No
20370301 No MI No
20361101 PMI Yes
20370201 PMI Yes
20370201 No MI No
20370301 No MI No
20370201 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20470301 No MI Yes
20370301 No MI No
20370301 No MI No
20370201 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370301 No MI No
20370201 No MI No
MATURITY_DATE AMORT_TERM1 PP_DESC
20210601 180 NO PP
20210901 180 NO PP
20360901 360 NO PP
20361101 360 NO PP
20370101 360 6M PP
20370101 360 NO PP
20370101 360 NO PP
20210301 171 2Y PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20360701 360 NO PP
20211201 180 NO PP
20360801 360 NO PP
20260801 240 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20360801 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20360901 360 NO PP
20360901 360 NO PP
20360801 360 NO PP
20361001 360 NO PP
20360901 360 NO PP
20361201 360 NO PP
20361001 360 NO PP
20211201 180 NO PP
20361001 360 NO PP
20370101 360 NO PP
20211001 180 NO PP
20361001 360 NO PP
20361201 360 NO PP
20360901 360 NO PP
20370101 360 NO PP
20361101 360 NO PP
20361001 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20211101 180 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20211201 180 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20211201 180 NO PP
20220101 180 NO PP
20370101 360 NO PP
20211201 180 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20211201 180 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20211201 180 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20211201 180 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20211201 180 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20211201 180 NO PP
20370101 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20211201 180 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20211201 180 NO PP
20211201 180 NO PP
20211201 180 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20361201 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20211201 180 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20220101 180 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361001 360 NO PP
20361101 360 NO PP
20360701 360 NO PP
20361101 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370301 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370301 360 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220101 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20220201 180 NO PP
20361201 360 NO PP
20370101 360 NO PP
20370101 360 NO PP
20370201 360 NO PP
20370201 360 1Y PP
20370101 360 NO PP
20370101 360 NO PP
20361101 360 NO PP
20370301 360 NO PP
20370201 360 NO PP
20370201 360 1Y PP
20220201 180 NO PP
20470301 480 NO PP
20370201 360 NO PP
20370201 360 NO PP
20470201 480 1Y PP
20370301 360 3Y PP
20470401 480 NO PP
20370301 360 NO PP
20370201 360 NO PP
20370101 360 NO PP
20370301 360 NO PP
20370201 360 NO PP
20220201 180 NO PP
20370201 360 NO PP
20370101 360 NO PP
20370201 360 3Y PP
20370201 360 3Y PP
20370201 360 NO PP
20370101 360 NO PP
20370201 360 NO PP
20370101 360 NO PP
20470201 480 NO PP
20370101 360 NO PP
20370301 360 3Y PP
20370201 360 NO PP
20370301 360 NO PP
20370201 360 NO PP
20370101 360 NO PP
20370201 360 NO PP
20370101 360 NO PP
20370101 360 3Y PP
20370301 360 NO PP
20370201 360 NO PP
20370101 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 3Y PP
20370201 360 NO PP
20370301 360 NO PP
20370201 360 3Y PP
20470201 480 NO PP
20370201 360 NO PP
20470201 480 NO PP
20370201 360 3Y PP
20370201 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370301 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370301 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370201 360 3Y PP
20370201 360 1Y PP
20470301 480 NO PP
20370201 360 NO PP
20470201 480 NO PP
20470201 480 NO PP
20370201 360 NO PP
20470201 480 NO PP
20470301 480 NO PP
20370201 360 1Y PP
20470201 480 NO PP
20370301 360 NO PP
20370201 360 3Y PP
20370201 360 3Y PP
20370201 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370201 360 NO PP
20470401 480 NO PP
20470301 480 NO PP
20370301 360 NO PP
20370201 360 3Y PP
20370201 360 NO PP
20370301 360 NO PP
20370201 360 3Y PP
20370301 360 1Y PP
20470201 480 NO PP
20370301 360 NO PP
20370301 360 1Y PP
20370201 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370301 360 1Y PP
20370201 360 NO PP
20370201 360 NO PP
20370301 360 5Y PP
20470301 480 3Y PP
20370201 360 NO PP
20370201 360 NO PP
20370201 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20361101 360 3Y PP
20370201 360 NO PP
20370201 360 3Y PP
20370301 360 3Y PP
20370201 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 5Y PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20470301 480 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370201 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 3Y PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370301 360 NO PP
20370201 360 NO PP
MATURITY_DATE IO_PERIOD O_LTV
20210601 120 44.33
20210901 0 80
20360901 0 99.97
20361101 0 79.93
20370101 0 90
20370101 0 51.55
20370101 120 80
20210301 0 62.7
20361201 0 74.97
20370101 120 90
20361201 0 80
20360701 0 66.67
20211201 0 80
20360801 0 58.58
20260801 0 69.24
20361201 0 80
20361201 0 95
20361201 120 85
20360801 120 51.31
20361201 0 80
20370101 120 75
20360901 0 80
20360901 0 80
20360801 0 80
20361001 0 80
20360901 0 51.2
20361201 120 28
20361001 0 70.42
20211201 0 61.41
20361001 0 79.17
20370101 120 94.99
20211001 0 80
20361001 0 100
20361201 120 80
20360901 0 75.34
20370101 0 100
20361101 120 73.3
20361001 0 71.43
20370101 0 74.07
20361201 0 85
20361201 0 66.06
20361201 0 95
20361101 0 79.17
20370101 120 80
20361201 0 62.31
20361201 0 65.36
20361201 0 90
20361201 0 95
20370101 0 73.91
20361201 0 80
20361201 0 69.53
20361201 120 56.99
20370101 0 80
20361201 0 80
20370101 0 80
20361201 0 60.98
20361201 0 69.55
20361201 120 59.46
20370101 0 78.35
20361201 120 79.74
20361201 120 95
20370101 120 100
20361201 120 90
20361201 0 70
20370101 0 80
20361201 0 59.32
20361201 0 90
20370101 120 80
20211101 0 80
20370101 0 90
20361201 120 94.87
20361201 0 76.69
20370101 0 73.53
20361201 120 95
20361201 0 95
20361201 0 100
20361201 0 100
20361201 120 82
20211201 0 80
20361201 120 96.63
20361201 0 80
20370101 0 95
20361201 120 89.98
20370101 120 69.15
20220101 0 80
20370101 0 75.9
20370101 0 77.78
20361201 120 100
20361201 0 90
20370101 0 90
20211201 0 75
20220101 0 60
20370101 120 88.68
20211201 0 52.18
20370101 120 95
20361201 120 90
20361201 0 89
20361201 0 70
20361101 0 85
20370101 0 90
20370101 0 56.77
20370101 120 74.91
20361201 0 80
20370101 0 80
20370101 0 93
20361201 0 92.94
20361201 0 80
20361201 120 89
20211201 0 66
20361201 0 20.72
20361201 0 95
20361201 0 80
20361201 120 75
20370101 120 58.21
20361201 0 72.03
20361201 0 95
20361201 0 90.79
20370101 0 90
20361201 0 94
20361201 0 82.4
20361201 0 36.74
20361201 120 80
20361201 120 100
20361201 0 69.23
20370101 0 31.75
20361201 0 80
20361201 0 95
20370101 0 100
20361201 0 80
20211201 0 79.36
20361201 0 71.6
20370101 0 77.39
20370101 120 95
20370101 0 75
20370101 120 88.75
20361201 0 80
20361201 120 90
20361201 0 80
20361201 0 69.99
20361201 0 57.15
20361201 120 100
20361201 0 75
20361201 120 90
20361201 0 61.35
20361201 120 74.79
20370101 120 58.33
20361201 120 78.95
20361201 120 90
20370101 120 79.77
20361201 120 90
20370101 120 75.86
20370101 120 75.91
20361201 0 80
20370101 0 100
20211201 0 54.17
20361201 0 75
20370101 0 92
20370101 0 80
20361201 0 90
20370101 120 77
20370101 120 52.94
20361201 120 80
20361201 120 80
20370101 120 70
20370101 120 88.32
20361201 120 80
20361201 120 85
20370101 120 56.67
20370101 120 58.76
20370101 0 95
20361201 0 80
20361201 0 46.47
20361201 120 36.82
20361201 120 79.99
20361201 0 53.25
20370101 0 70
20370101 120 78.27
20370101 0 75
20370101 0 90
20361201 120 80
20361201 0 62.88
20361201 0 79.37
20370101 120 80
20220101 0 80
20361201 0 75
20370101 0 77.5
20370101 0 77.2
20361201 0 83
20361201 120 80
20370101 120 80
20361201 120 90
20370101 0 47.88
20370101 120 78.73
20361201 0 85
20370101 0 76.2
20220101 0 87
20361201 120 60.12
20361201 0 80
20361201 120 100
20361201 120 80
20370101 120 80
20370101 120 69.09
20370101 0 75
20361201 0 69
20361201 120 64.65
20361201 120 99.98
20361201 0 80
20211201 0 68.19
20370101 120 80
20361201 0 95
20361201 0 79.12
20361201 0 79
20361201 0 63.27
20361201 120 95
20361201 120 90
20361201 0 100
20361201 0 70
20361201 0 36.82
20370101 120 66.67
20370101 0 60.79
20370101 0 80
20361201 0 80
20361201 120 100
20361201 0 80
20370101 120 72.44
20370101 0 54.38
20361201 0 69.64
20370101 0 73.69
20361201 120 63.72
20370101 120 60.98
20370101 120 90
20370101 0 100
20361201 120 90
20361201 120 80
20361201 0 90
20361201 0 78.56
20370101 0 80
20361201 0 80
20370101 120 46.46
20370101 0 90
20361201 0 59.46
20361201 0 75
20361201 0 80
20361201 0 90
20361201 0 70
20370101 0 95
20361201 120 60.98
20211201 0 60.71
20370101 120 61.51
20370101 120 88
20220101 0 55.56
20361201 0 51.21
20361201 0 90
20361201 0 95
20361201 0 69.87
20361201 0 90
20361201 120 100
20370101 120 69.76
20370101 120 91
20361201 0 56.43
20370101 120 80
20361201 0 46.15
20361201 0 79.77
20370101 120 69.88
20370101 0 63.76
20370101 120 67.91
20211201 0 80
20370101 120 77.92
20361201 0 75.79
20361201 120 80
20370101 0 62
20370101 0 95
20361201 120 80
20370101 120 59.41
20361201 0 64.52
20370101 0 80
20361201 0 73.75
20370101 0 68.19
20361201 0 80
20370101 0 79.82
20361201 0 90
20370101 120 80
20361201 0 80
20370101 0 80
20370101 0 100
20370101 0 64.27
20370101 120 90
20370101 0 57.54
20370101 0 75
20361201 0 80
20370101 120 70.43
20370101 0 60
20370101 0 80
20370101 0 78.95
20370101 120 80
20370101 0 73.8
20361201 120 63
20361201 0 80
20370101 0 80
20370101 0 79.61
20370101 0 81
20370101 120 79.84
20370101 0 49.02
20361201 0 62.06
20370101 0 80
20370101 0 95
20361201 0 90
20361201 120 78.32
20370101 0 59.13
20361201 0 80
20361201 0 76.55
20370101 120 80
20370101 120 80
20361201 120 80
20370101 120 77.16
20370101 0 75
20370101 0 90
20361201 120 90
20361201 0 78.31
20370101 0 90
20370101 0 75
20370101 120 80
20361201 0 78.6
20370101 120 80
20370101 0 73.28
20361201 0 100
20361201 0 75
20370101 0 94
20370101 0 51.67
20370101 0 100
20370101 120 70.48
20361201 0 65.47
20370101 0 85
20370101 0 95
20370101 0 68.97
20361201 0 51.29
20361201 0 90
20211201 0 48.98
20211201 0 80
20211201 0 76
20370101 0 80
20370101 0 73.49
20361201 0 100
20370101 0 80
20370101 0 95
20370101 0 57.97
20370101 120 35.83
20370101 0 78
20361201 0 80
20370101 120 56.4
20361201 0 80
20361201 0 80
20361201 120 76.82
20361201 0 100
20370101 0 72.46
20220101 0 91
20361201 120 80
20361201 0 70
20370101 0 80
20370101 120 73.02
20370101 120 80
20370101 120 74.38
20370101 0 85
20220101 0 64.94
20370101 0 95
20370101 0 78.27
20361201 120 100
20361201 0 100
20370101 120 94
20370101 0 76.4
20370101 120 85
20361201 0 83
20370101 0 74.25
20370101 0 70
20370101 0 75.52
20361201 120 90
20370101 120 59.8
20361201 0 85
20361201 120 59.66
20370101 120 95
20370101 0 63.13
20361201 0 90
20370101 0 79
20370101 120 65.07
20370101 120 80
20370101 0 69.74
20370101 0 74.65
20370101 0 100
20370101 0 80
20370101 0 95
20361201 0 90
20370101 0 48.19
20370101 120 73.78
20370101 120 69
20370101 0 80
20361201 0 100
20370101 0 56.24
20370101 120 84.27
20370101 120 90
20370101 0 77.47
20370101 0 78.58
20370101 0 69.61
20370101 0 55.95
20220101 0 46.7
20370101 120 68.75
20370101 0 100
20370101 120 58.82
20370101 0 78.86
20370101 0 80
20370101 120 37.5
20370101 0 100
20361201 120 80
20361201 0 99.57
20370101 0 80
20361201 0 54.17
20370101 120 93
20370101 0 87.36
20370101 0 100
20370101 120 100
20370101 0 46.81
20370101 0 85
20370101 120 53.34
20361201 0 94.99
20361201 0 72.79
20370101 120 66.07
20370101 0 80
20220101 0 75
20361201 0 80
20370101 120 80
20220101 0 80
20370101 0 46.49
20370101 120 49.65
20361201 0 85
20370101 120 80
20370101 120 69.88
20370101 0 61.62
20370101 120 81
20370101 0 55.56
20370101 0 80
20370101 120 73.6
20370101 0 100
20370101 0 80
20370101 120 80
20370101 0 73.22
20370101 120 70
20211201 0 37.18
20370101 0 80
20370101 0 90
20370101 120 67.37
20370101 120 95
20370101 120 59.89
20370101 120 80
20361201 0 79.6
20370101 120 67.75
20361201 0 50.7
20361201 0 80
20361201 0 79.99
20361201 120 99.99
20361201 0 82
20361201 120 99.99
20361201 0 99.99
20361201 120 78
20361201 0 95
20361201 120 80
20361201 120 80
20370101 0 40
20370101 0 56.3
20370101 0 66.94
20370101 0 75
20370101 0 60
20370101 0 90
20370101 120 80
20220101 0 26.53
20370101 0 74.92
20370101 120 80
20370101 120 80
20361201 0 80
20370101 120 80
20370101 0 80
20370101 120 95
20370101 120 80
20370101 0 88.92
20370101 0 64.99
20370101 0 58.83
20370101 120 70
20370101 120 89.99
20361201 0 80
20370101 120 68.61
20361201 0 80
20370101 0 70.07
20370101 120 80
20370101 0 79.45
20370101 0 63.55
20370101 0 72.79
20370101 120 100
20370101 120 99.8
20370101 0 75
20370101 0 100
20370101 0 78.95
20370101 120 56.15
20370101 0 62.11
20370101 0 95
20370101 120 73.48
20370101 0 95
20370101 120 90
20370101 120 92.67
20370101 0 74.66
20370101 0 85
20370101 120 70
20370101 0 95
20370101 120 80
20370101 0 94
20370101 120 100
20370101 0 61.86
20370101 0 100
20370101 120 80
20370101 0 80
20370101 0 85
20370101 0 79.99
20370101 0 71.43
20361001 0 95
20361101 120 89.55
20360701 0 80
20361101 120 68.27
20370101 120 55.87
20370101 120 72.22
20361201 120 68.96
20370101 0 79.62
20370301 0 80
20370201 0 73.64
20370201 0 65.2
20370201 0 68.11
20370201 120 62.44
20370301 0 65.7
20220201 0 48.86
20220201 0 80
20220201 0 88.57
20220101 0 79.18
20220201 0 22.66
20220201 0 26.4
20220201 0 89.9
20220201 0 31.32
20220201 0 84.73
20220201 0 80
20220201 0 20.83
20220201 0 56.98
20220201 0 64.95
20220201 0 80
20220201 0 79.33
20220201 0 80
20220201 0 80
20361201 0 80
20370101 0 85.11
20370101 0 100
20370201 0 80
20370201 0 62.12
20370101 0 49.18
20370101 0 66.08
20361101 0 90
20370301 120 80
20370201 120 49.45
20370201 120 100
20220201 0 80
20470301 0 37.46
20370201 120 98.12
20370201 120 100
20470201 0 89.98
20370301 0 100
20470401 0 94
20370301 0 50.51
20370201 0 80
20370101 0 52.38
20370301 0 90
20370201 0 28.07
20220201 0 69.23
20370201 0 90
20370101 0 58.06
20370201 0 75
20370201 0 100
20370201 0 95
20370101 0 80
20370201 0 95
20370101 0 66.97
20470201 0 62.9
20370101 120 80
20370301 120 95
20370201 0 79.36
20370301 0 80
20370201 0 23.33
20370101 120 90
20370201 120 95
20370101 120 100
20370101 0 100
20370301 0 63.89
20370201 0 94.98
20370101 0 100
20370301 0 80
20370301 120 100
20370301 0 100
20370201 0 75
20370301 0 100
20370201 0 100
20470201 0 96.65
20370201 0 78.8
20470201 0 99.96
20370201 0 100
20370201 0 80
20370201 0 95
20370201 0 100
20370301 120 44.39
20370201 0 64.29
20370201 0 84.64
20370201 120 75
20370301 0 100
20370201 0 75
20370201 0 89.99
20370201 0 79.4
20370201 0 100
20370201 0 100
20470301 0 100
20370201 0 100
20470201 0 75.72
20470201 0 55.92
20370201 0 87.54
20470201 0 100
20470301 0 100
20370201 120 90
20470201 0 80
20370301 0 68.71
20370201 0 99.97
20370201 120 100
20370201 120 81.78
20370301 120 100
20370301 120 100
20370201 0 89.21
20470401 0 100
20470301 0 80
20370301 0 92.07
20370201 120 99.95
20370201 0 80
20370301 0 98.52
20370201 0 90
20370301 0 94.58
20470201 0 100
20370301 0 80
20370301 0 71.67
20370201 0 100
20370201 0 100
20370201 0 69.98
20370301 120 100
20370201 0 100
20370201 120 50.39
20370301 120 100
20470301 0 56.05
20370201 0 79.36
20370201 0 80
20370201 0 71.43
20370301 120 100
20370301 120 100
20361101 0 87.5
20370201 0 100
20370201 0 100
20370301 0 99.99
20370201 120 100
20370301 0 100
20370301 0 80
20370301 120 94.98
20370301 0 80
20370301 120 100
20370301 120 95
20470301 0 48.15
20370301 0 90
20370301 0 79.52
20370201 120 75.93
20370301 0 79.74
20370301 0 57.06
20370301 120 50.95
20370301 120 65.54
20370301 120 65.37
20370301 0 80
20370301 0 79.55
20370301 120 84.87
20370301 0 33
20370301 0 90
20370301 0 80
20370301 120 42.44
20370301 120 90
20370301 120 90
20370301 120 79.5
20370301 0 84.35
20370301 120 89.46
20370301 0 99.97
20370301 0 66.32
20370301 0 94.98
20370301 0 100
20370301 120 100
20370301 0 80
20370301 120 80
20370301 120 94.99
20370201 0 53.67
EXHIBIT
C
[Reserved]
EXHIBIT
D
REQUEST
FOR RELEASE OF DOCUMENTS
|
To:
|
▇▇▇▇▇
Fargo Bank, N.A.
|
|
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
RE:
|
Custodial
Agreement dated as of
|
|
April
30, 2007, among ▇▇▇▇ ▇▇,
|
|
|
EMC
Mortgage Corporation, as
|
|
|
Master
Servicer, U.S. Bank National
|
|
|
Association
as Trustee and ▇▇▇▇▇ Fargo
|
|
|
Bank,
National Association as Custodian
|
In
connection with the administration of the Mortgage Loans held by you pursuant
to
the above-captioned Custodial Agreement, we request the release, and hereby
acknowledge receipt, of the Mortgage File for the Mortgage Loan described below,
for the reason indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
|
_____
|
1.
|
Mortgage
Paid in Full and proceeds have been deposited into the Custodial
Account
|
|
|
_____
|
2.
|
Foreclosure
|
|
|
_____
|
3.
|
Substitution
|
|
|
_____
|
4.
|
Other
Liquidation
|
|
|
_____
|
5.
|
Nonliquidation
|
Reason:
__________________________
|
|
_____
|
6.
|
California
Mortgage Loan paid in full
|
|
|
By:
|
||
|
(authorized
signer)
|
||
|
Issuer:
|
||
|
Address:
|
||
|
Date:
|
EXHIBIT
E
FORM
OF
TRANSFEREE AFFIDAVIT AND AGREEMENT
|
Affidavit
pursuant to Section 860E(e)(4)
|
|
of
the Internal Revenue Code of 1986, as
|
|
amended,
and for other purposes
|
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
The
undersigned is the [Title of Officer] of [Name of Transferee] (the “Investor”),
the proposed transferee of an Ownership Interest in the Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2,
Class
[R] Certificates (the “Certificates”) issued pursuant to the Pooling and
Servicing Agreement, dated as of April 1, 2007 (the “Agreement”), among
Structured Asset Mortgage Investments II Inc. as depositor (the “Depositor”),
EMC Mortgage Corporation as seller and master servicer, and U.S. Bank National
Association as trustee (the “Trustee”),
and
makes this affidavit on behalf of the Investor for the benefit of the Depositor
and the Trustee. Capitalized terms used, but not defined herein, shall have
the
meanings ascribed to such terms in the Agreement.
1. The
Investor is, as of the date hereof, and will be, as of the date of the Transfer,
a Permitted Transferee. The Investor is not acquiring its ownership interest
in
the Certificates for the account of a Person other than a Permitted Transferee.
2. The
Investor has been advised and understands that (i) a tax will be imposed on
Transfers of the Certificates to Persons that are not 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 not a Permitted Transferee, on the agent; and (iii) the Person
otherwise liable for the tax shall be relieved of liability for the tax if
a
subsequent transferee furnishes 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.
3. The
Investor has been advised and understands that a tax will be imposed on a
“pass-through entity” holding the Certificates if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Investor 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.)
4. The
Investor has reviewed the provisions of Section 6.02(i) of the Agreement and
understands the legal consequences of the acquisition of an Ownership Interest
in the Certificates, including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding any prohibited
Transfers and mandatory sales. The Investor expressly agrees to be bound by,
and
to abide by, such provisions of the Agreement and the restrictions noted on
the
face of the Certificates. The Investor understands and agrees that any breach
of
any of the representations included herein shall render the Transfer of the
Certificates to the Investor contemplated hereby null and void. The Investor
consents to any amendment of the Agreement that shall be deemed necessary by
the
Depositor (upon advice of nationally recognized counsel) to constitute a
reasonable arrangement to ensure that the Certificates will not be owned
directly or indirectly by a Person other than a Permitted
Transferee.
5. The
Investor agrees not to Transfer the Certificates, or cause the Transfer of
the
Certificates by a Person for whom the Investor is acting as nominee, trustee
or
agent, in each case unless it has received an affidavit and agreement in
substantially the same form as this affidavit and agreement containing these
same representations and covenants from the subsequent transferee. In connection
with any such Transfer by the Investor, the Investor agrees to deliver to the
Trustee and the Depositor an
affidavit
substantially in the form set forth as Exhibit R to the Agreement to the
effect that the Investor has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
6. The
Investor has historically paid its debts as they have come due, intends to
pay
its debts as they come due in the future, and understands that the taxes
associated with holder an ownership interest in the Certificates may exceed
the
cash flow with respect thereto in some or all periods and intends to pay such
taxes as they become due. The Investor does not have the intention, and no
purpose of the Transfer of the Certificates to the Investor is, to impede the
assessment or collection of any tax legally required to be paid with respect
to
the Certificates.
7. The
Investor’s U.S. taxpayer identification number is [_____________].
8. The
Investor is a “United States person” within the meaning of Section 7701(a)(30)
of the Code (a “United State Person”).
9. The
Investor is aware that the Certificates may be a “noneconomic residual interest”
within the meaning of Treasury regulations promulgated under Section 860E of
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.
10. The
Investor will not cause income from the Certificates to be attributable to
a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Investor or any other United States
Person.
11. Check
one
of the following:
o
The Transfer of the Certificates complies with U.S.
Treasury Regulation Sections 1.860E-1(c)(7) and (8) and,
accordingly:
(i)
the
present value of the anticipated tax liabilities associated with holding the
Certificates does not exceed the sum of:
|
(a)
|
the
present value of any consideration given to the Investor to acquire
such
Certificates;
|
|
(b)
|
the
present value of the expected future distributions on such Certificates;
and
|
|
(c)
|
the
present value of the anticipated tax savings associated with holding
such
Certificates as the related REMIC generates losses;
and
|
(ii)
the
Transfer of the Certificates will not result in such Certificates being held,
directly or indirectly, by a foreign permanent establishment or fixed base,
within the meaning of an applicable income tax treaty, of the Investor or any
other United States Person.
For
purposes of the calculation in clause (i) above, (x) the Investor is assumed
to
pay tax at the highest rate currently specified in Section 11(b)(1) 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)(1) of the Code if the Investor
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 (y) 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 Investor.
o
The Transfer of the Certificates complies with U.S. Treasury
Regulation Sections 1.860E-1(c)(5) and (6) and, accordingly:
|
(i)
|
the
Investor is an “eligible corporation,” as defined in U.S. Treasury
Regulation Section 1.860E-1(c)(6)(i), as to which income from the
Certificates will only be taxed in the United
States;
|
|
(ii)
|
at
the time of the Transfer, and at the close of the Investor’s two fiscal
years preceding the fiscal year of the transfer, the Investor had
gross
assets for financial reporting purposes (excluding any obligation
of a
“related person” to the Investor within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii) and any other asset the principal
purpose of which is to permit the Investor to satisfy the condition
of
this clause (ii)) in excess of $100 million and net assets in excess
of
$10 million;
|
|
(iii)
|
the
Investor will transfer the Certificates only to another “eligible
corporation,” as defined in U.S. Treasury Regulation Section
1.860E-1(c)(6)(i), in a transaction in which the requirements of
U.S. Treasury Regulation Sections 1.860E-1(c)(4)(i), (ii) and (iii)
and -1(c)(5) are satisfied and, accordingly, the subsequent transferee
provides a similar affidavit with this box checked;
and
|
|
(iv)
|
the
Investor determined the consideration paid to it to acquire the
Certificates 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 Investor) that it has determined in good
faith and
has concluded that such consideration, together with other assets
of the
Investor, will be sufficient to cover the taxes associated with the
Certificates.
|
o
None
of
the above.
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [Title of
Officer] this ____ day of _________, 20__.
|
[NAME
OF INVESTOR]
|
||
|
By:
|
||
|
Name:
|
[Name
of Officer]
|
|
|
Title:
|
[Title
of Officer]
|
|
|
[Address
of Investor for receipt of distributions]
|
||
|
Address
of Investor for receipt of tax
information:
|
||
Personally
appeared before me the above-named [Name of Officer], known or proved to me
to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Investor, and acknowledged to me that he/she executed the same
as his/her free act and deed and the free act and deed of the
Investor.
Subscribed
and sworn before me this ___ day of _________, 20___.
NOTARY
PUBLIC
COUNTY
OF
STATE
OF
My
commission expires the ___ day of ___________________, 20___.
EXHIBIT
F-1
FORM
OF
INVESTMENT LETTER
[Date]
[SELLER]
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured
Asset Mortgage Investments II Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Structured
Asset Mortgage Investments II Inc., Prime Mortgage Trust,
Series
2007-2 Mortgage Pass-Through Certificates (the
“Certificates”),
including
the Class B-4, Class B-5 and Class B-6 Certificates (the “Privately
Offered Certificates”)
|
Dear
Ladies and Gentlemen:
In
connection with our purchase of the [Privately Offered Certificates], we confirm
that:
|
(i)
|
we
understand that the Privately Offered Certificates are not being
registered under the Securities Act of 1933, as amended (the “Act”) or any
applicable state securities or “Blue Sky” laws, and are being sold to us
in a transaction that is exempt from the registration requirements
of such
laws;
|
|
(ii)
|
any
information we desired concerning the Certificates, including the
Privately Offered Certificates, the trust in which the Certificates
represent the entire beneficial ownership interest (the “Trust”) or any
other matter we deemed relevant to our decision to purchase Privately
Offered Certificates has been made available to
us;
|
|
(iii)
|
we
are able to bear the economic risk of investment in Privately Offered
Certificates; we are an institutional “accredited investor” as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under
the Act
and a sophisticated institutional
investor;
|
|
(iv)
|
we
are acquiring Privately Offered Certificates for our own account,
not as
nominee for any other person, and not with a present view to any
distribution or other disposition of the Privately Offered
Certificates;
|
|
(v)
|
we
agree the Privately Offered Certificates must be held indefinitely
by us
(and may not be sold, pledged, hypothecated or in any way disposed
of)
unless subsequently registered under the Act and any applicable state
securities or “Blue Sky” laws or an exemption from the registration
requirements of the Act and any applicable state securities or “Blue Sky”
laws is available;
|
|
(vi)
|
we
agree that in the event that at some future time we wish to dispose
of or
exchange any of the Privately Offered Certificates (such disposition
or
exchange not being currently foreseen or contemplated), we will not
transfer or exchange any of the Privately Offered Certificates
unless:
|
(A)
(1)
the sale is to an Eligible Purchaser (as defined below), (2) if required by
the
Pooling and Servicing Agreement (as defined below) a letter to substantially
the
same effect as either this letter or, if the Eligible Purchaser is a Qualified
Institutional Buyer as defined under Rule 144A of the Act, the Rule 144A and
Related Matters Certificate in the form attached to the Pooling and Servicing
Agreement (as defined below) (or such other documentation as may be acceptable
to the Trustee) is executed promptly by the purchaser and delivered to the
addressees hereof and (3) all offers or solicitations in connection with the
sale, whether directly or through any agent acting on our behalf, are limited
only to Eligible Purchasers and are not made by means of any form of general
solicitation or general advertising whatsoever; and
(B) if
the
Privately Offered Certificates is not registered under the Act (as to which
we
acknowledge you have no obligation), the Privately Offered Certificates is
sold
in a transaction that does not require registration under the Act and any
applicable state securities or “blue sky” laws and, if U.S. Bank National
Association (the “Trustee”) so requests, a satisfactory Opinion of Counsel is
furnished to such effect, which Opinion of Counsel shall be an expense of the
transferor or the transferee;
|
(vii)
|
we
agree to be bound by all of the terms (including those relating to
restrictions on transfer) of the Pooling and Servicing, pursuant
to which
the Trust was formed; we have reviewed carefully and understand the
terms
of the Pooling and Servicing
Agreement;
|
|
(viii)
|
we
either: (i) are not acquiring the Privately Offered Certificates
directly
or indirectly by, or on behalf of, an employee benefit plan or other
retirement arrangement which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, or section 4975
of the
Internal Revenue Code of 1986, as amended, or (ii) are providing
a
representation to the effect that the proposed transfer and holding
of a
Privately Offered Certificates and the servicing, management and
operation
of the Trust and its assets: (I) will not result in any prohibited
transaction which is not covered under an individual or class prohibited
transaction exemption, including, but not limited to, Prohibited
Transaction Class Exemption (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇
95-60, or PTCE 96-23 and (II) will not give rise to any additional
obligations on the part of the Depositor, the Master Servicer or
the
Trustee or (iii) have attached hereto the opinion specified in Section
5.07 of the Agreement.
|
|
(ix)
|
We
understand that each of the Privately Offered Certificates bears,
and will
continue to bear, a legend to substantiate the following effect:
“THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A
“QIB”),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT
OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE
SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
“INSTITUTIONAL ACCREDITED INVESTOR” WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY
IN
WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING
NOT
FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A)
THE
RECEIPT BY THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED
IN
THE AGREEMENT AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER
IS
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR
IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS CERTIFICATE MAY
NOT BE
ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON BEHALF OF, AN EMPLOYEE
BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I
OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE
PROPOSED
TRANSFER AND HOLDING OF A CERTIFICATE AND THE SERVICING, MANAGEMENT
AND
OPERATION OF THE TRUST AND ITS ASSETS: (1) WILL NOT RESULT IN ANY
PROHIBITED TRANSACTION WHICH IS NOT COVERED UNDER AN INDIVIDUAL OR
CLASS
PROHIBITED TRANSACTION EXEMPTION, INCLUDING, BUT NOT LIMITED TO,
PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇
▇▇-▇, ▇▇▇▇ 95-60 OR PTCE 96-23 AND (II) WILL NOT GIVE RISE TO ANY
ADDITIONAL OBLIGATIONS ON THE PART OF THE DEPOSITOR, THE MASTER SERVICER
OR THE TRUSTEE, WHICH WILL BE DEEMED REPRESENTED BY AN OWNER OF A
BOOK-ENTRY CERTIFICATE OR A GLOBAL CERTIFICATE OR UNLESS THE OPINION
PROVIDED IN SECTION 5.07 OF THE AGREEMENT IS
PROVIDED.”
|
“Eligible
Purchaser”
means a
corporation, partnership or other entity which we have reasonable grounds to
believe and do believe (i) can make representations with respect to itself
to
substantially the same effect as the representations set forth herein, and
(ii)
is either a Qualified Institutional Buyer as defined under Rule 144A of the
Act
or an institutional “Accredited Investor” as defined under Rule 501 of the
Act.
Terms
not
otherwise defined herein shall have the meanings assigned to them in the Pooling
and Servicing Agreement, dated as of April 1, 2007, among Structured Asset
Mortgage Investments II Inc., EMC Mortgage Corporation, as seller and master
servicer and U.S. Bank National Association as Trustee (the “Pooling and
Servicing Agreement’).
If
the
Purchaser proposes that its Certificates be registered in the name of a nominee
on its behalf, the Purchaser has identified such nominee below, and has caused
such nominee to complete the Nominee Acknowledgment at the end of this
letter.
Name
of
Nominee (if any): ____________________
IN
WITNESS WHEREOF, this document has been executed by the undersigned who is
duly
authorized to do so on behalf of the undersigned Eligible Purchaser on the
___
day of ________, 20___.
|
Very
truly yours,
|
||
|
[PURCHASER]
|
||
|
By:
|
||
|
(Authorized
Officer)
|
||
|
[By:
|
||
|
Attorney-in-fact]
|
||
Nominee
Acknowledgment
The
undersigned hereby acknowledges and agrees that as to the Certificates being
registered in its name, the sole beneficial owner thereof is and shall be the
Purchaser identified above, for whom the undersigned is acting as
nominee.
|
[NAME
OF NOMINEE]
|
||
|
By:
|
||
|
(Authorized
Officer)
|
||
|
[By:
|
||
|
Attorney-in-fact]
|
||
EXHIBIT
F-2
FORM
OF
RULE 144A AND RELATED MATTERS CERTIFICATE
[SELLER]
[Date]
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Structured
Asset Mortgage Investments II Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Structured
Asset Mortgage Investments II Inc., Prime Mortgage Trust,
Series
2007-2 Mortgage Pass-Through Certificates (the
“Certificates”),
including
the Class B-4, Class B-5 and Class B-6 Certificates (the “Privately
Offered Certificates”)
|
Dear
Ladies and Gentlemen:
In
connection with our purchase of Privately Offered Certificates, the undersigned
certifies to each of the parties to whom this letter is addressed that it is
a
qualified institutional buyer (as defined in Rule 144A under the Securities
Act
of 1933, as amended (the “Act”)) as follows:
|
1.
|
It
owned and/or invested on a discretionary basis eligible securities
(excluding affiliate’s securities, bank deposit notes and CD’s, loan
participations, repurchase agreements, securities owned but subject
to a
repurchase agreement and swaps), as described
below:
|
Date:
______________, 20__ (must be on or after the close of its most recent fiscal
year)
Amount:
$
_____________________; and
2. The
dollar amount set forth above is:
|
a.
|
greater
than $100 million and the undersigned is one of the following
entities:
|
|
(x)
|
an
insurance company as defined in Section 2(13) of the Act1 ;
or
|
|
(y)
|
an
investment company registered under the Investment Company Act or
any
business development company as defined in Section 2(a)(48) of the
Investment Company Act of 1940; or
|
|
(z)
|
a
Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; or
|
|
(aa)
|
a
plan (i) established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political
subdivisions, the laws of which permit the purchase of securities
of this
type, for the benefit of its employees and (ii) the governing investment
guidelines of which permit the purchase of securities of this type;
or
|
|
(bb)
|
a
business development company as defined in Section 202(a)(22) of
the
Investment Advisers Act of 1940; or
|
|
(cc)
|
a
corporation (other than a U.S. bank, savings and loan association
or
equivalent foreign institution), partnership, Massachusetts or similar
business trust, or an organization described in Section 501(c)(3)
of the
Internal Revenue Code; or
|
|
(dd)
|
a
U.S. bank, savings and loan association or equivalent foreign institution,
which has an audited net worth of at least $25 million as demonstrated
in
its latest annual financial statements;
or
|
|
(ee)
|
an
investment adviser registered under the Investment Advisers Act;
or
|
|
b.
|
greater
than $10 million, and the undersigned is a broker-dealer registered
with
the SEC; or
|
|
c.
|
less
than $10 million, and the undersigned is a broker-dealer registered
with
the SEC and will only purchase Rule 144A securities in transactions
in
which it acts as a riskless principal (as defined in Rule 144A);
or
|
|
d.
|
less
than $100 million, and the undersigned is an investment company registered
under the Investment Company Act of 1940, which, together with one
or more
registered investment companies having the same or an affiliated
investment adviser, owns at least $100 million of eligible securities;
or
|
|
e.
|
less
than $100 million, and the undersigned is an entity, all the equity
owners
of which are qualified institutional
buyers.
|
The
undersigned further certifies that it is purchasing a Privately Offered
Certificates for its own account or for the account of others that independently
qualify as “Qualified Institutional Buyers” as defined in Rule 144A. It is aware
that the sale of the Privately Offered Certificates is being made in reliance
on
its continued compliance with Rule 144A. It is aware that the transferor may
rely on the exemption from the provisions of Section 5 of the Act provided
by
Rule 144A. The undersigned understands that the Privately Offered Certificates
may be resold, pledged or transferred only to (i) a person reasonably believed
to be a Qualified Institutional Buyer that purchases for its own account or
for
the account of a Qualified Institutional Buyer to whom notice is given that
the
resale, pledge or transfer is being made in reliance in Rule 144A, or (ii)
an
institutional “accredited investor,” as such term is defined under Rule 501 of
the Act in a transaction that otherwise does not constitute a public
offering.
The
undersigned agrees that if at some future time it wishes to dispose of or
exchange any of the Privately Offered Certificates, it will not transfer or
exchange any of the Privately Offered Certificates to a Qualified Institutional
Buyer without first obtaining a Rule 144A and Related Matters Certificate in
the
form hereof from the transferee and delivering such certificate to the
addressees hereof. Prior to making any transfer of Privately Offered
Certificates, if the proposed Transferee is an institutional “accredited
investor,” the transferor shall obtain from the transferee and deliver to the
addressees hereof an Investment Letter in the form attached to the Pooling
and
Servicing Agreement, dated as of April 1, 2007, among Structured Asset Mortgage
Investments II Inc., EMC Mortgage Corporation and U.S. Bank National
Association, as Trustee, pursuant to Certificates were issued.
The
undersigned certifies that it either: (i) is not acquiring the Privately Offered
Certificates directly or indirectly by, or on behalf of, an employee benefit
plan or other retirement arrangement which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, or section 4975 of the
Internal Revenue Code of 1986, as amended, or (ii) is providing a representation
or an opinion of counsel to the effect that the proposed transfer and holding
of
a Privately Offered Certificates and the servicing, management and operation
of
the Trust and its assets: (I) will not result in any prohibited transaction
which is not covered under a prohibited transaction exemption, including, but
not limited to, Prohibited Transaction Class Exemption (“PTCE”) 84-14, ▇▇▇▇
▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ 95-60, PTCE 96-23 and (II) will not give rise to any
additional obligations on the part of the Depositor, the Master Servicer or
the
Trustee or (iii) has attached hereto the opinion specified in Section 5.07
of
the Agreement.
If
the
Purchaser proposes that its Certificates be registered in the name of a nominee
on its behalf, the Purchaser has identified such nominee below, and has caused
such nominee to complete the Nominee Acknowledgment at the end of this
letter.
1 A
purchase by an insurance company for one or more of its separate accounts,
as
defined by Section 2(a)(37) of the Investment Company Act of 1940, which
are
neither registered nor required to be registered thereunder, shall be deemed
to
be a purchase for the account of such insurance company.
Name
of
Nominee (if any):
IN
WITNESS WHEREOF, this document has been executed by the undersigned who is
duly
authorized to do so on behalf of the undersigned Eligible Purchaser on the
____
day of ___________, 20___.
|
Very
truly yours,
|
||
|
[PURCHASER]
|
||
|
By:
|
||
|
(Authorized
Officer)
|
||
|
[By:
|
||
|
Attorney-in-fact]
|
||
NOMINEE
ACKNOWLEDGMENT
The
undersigned hereby acknowledges and agrees that as to the Certificates being
registered in its name, the sole beneficial owner thereof is and shall be the
Purchaser identified above, for whom the undersigned is acting as
nominee.
|
[NAME
OF NOMINEE]
|
||
|
By:
|
||
|
(Authorized
Officer)
|
||
|
[By:
|
||
|
Attorney-in-fact]
|
||
EXHIBIT
F-3
FORM
OF
TRANSFER CERTIFICATE FOR EXCHANGE OR
TRANSFER
FROM RULE 144A GLOBAL CERTIFICATE TO
REGULATION
S GLOBAL CERTIFICATE
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Reference
is hereby made to the Pooling and Servicing Agreement (“Pooling and Servicing
Agreement”), dated as of April 1, 2007, among Structured Asset Mortgage
Investments II Inc., as Depositor, EMC Mortgage Corporation, as Seller and
Master Servicer and U.S. Bank National Association as Trustee. Capitalized
terms
used but not defined herein are used as defined in the Pooling and Servicing
Agreement:
The
undersigned (the “Transferor”)
owns
and proposes to transfer the interests in the Rule 144A Global Certificates
specified in Annex A hereto (the “Certificates”)
to
__________ (the “Transferee”), in the principal amounts in such Rule 144A Global
Certificates (the “Transfer”)
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
|
(a)
|
the
Transfer is being effected in accordance with transfer restrictions
set
forth in the Pooling and Servicing Agreement and the
Certificates;
|
|
(b)
|
the
Transfer is being effected pursuant to and in accordance with Rule
903 or
Rule 904 under the Securities Act of 1933, as amended (the “Securities
Act”)
and, accordingly, the Transferor hereby further certifies
that:
|
|
(i)
|
the
Transfer is not being made to a person in the United States and (x)
at the
time the buy order was originated, the Transferee was outside the
United
States or the Transferor and each Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United
States or
(y) the transaction was executed in, on or through the facilities
of a
“designated offshore securities market” (as defined Rule 902 of Regulation
S under the Securities Act) and neither the Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with
a
buyer in the United States,
|
|
(ii)
|
no
directed selling efforts have been made in contravention of the
requirements of Rule 903 or Rule 904 of Regulation S under the Securities
Act, and
|
|
(iii)
|
the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
|
Upon
consummation of the proposed transfer in accordance with the terms of the
Pooling and Servicing Agreement, the transferred beneficial interest will be
subject to the restrictions on transfer enumerated in the legends printed on
the
Regulation S Global Certificates by which the Transferee shall hold its interest
and in the Pooling and Servicing Agreement and the Securities Act.
|
Dated:
|
Very
truly yours,
|
|
|
[Name
of Transferor]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
ANNEX
A
The
Transferor owns and proposes to transfer a beneficial interest in the
following:
|
(i)
|
G
|
Class
[___] Rule 144A Global Certificate, principal amount of $_____________,
|
|
|
(ii)
|
G
|
Class
[___] Rule 144A Global Certificate, principal amount of $_____________,
or
|
|
|
(iii)
|
G
|
Class
[___] Rule 144A Global Certificate, principal amount of
$_____________.
|
EXHIBIT
F-4
FORM
OF
TRANSFER CERTIFICATE FOR EXCHANGE OR
TRANSFER
FROM REGULATION S GLOBAL CERTIFICATE TO
RULE
144A
GLOBAL CERTIFICATE
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Reference
is hereby made to the Pooling and Servicing Agreement (“Pooling and Servicing
Agreement”), dated as of April 1, 2007, among Structured Asset Mortgage
Investments II Inc., as Depositor, EMC Mortgage Corporation, as Seller and
Master Servicer and U.S. Bank National Association as Trustee. Capitalized
terms
used but not defined herein are used as defined in the Pooling and Servicing
Agreement:
The
undersigned (the “Transferor”)
owns
and proposes to transfer the interests in the Regulation S Global Certificates
specified in Annex A hereto (the “Certificates”),
in
the principal amounts in such Regulation S Global Certificates (the
“Transfer”),
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
|
(a)
|
the
Transfer is being effected in accordance with transfer restrictions
set
forth in the Pooling and Servicing Agreement and the
Certificates;
|
|
(b)
|
the
Transfer is being effected pursuant to and in accordance with Rule
144A
under the Securities Act of 1933, as amended (the “Securities
Act”),
and, accordingly, the Transferor hereby further certifies
that:
|
|
(i)
|
the
Transferee is purchasing the beneficial interest for its own account,
or
for one or more accounts with respect to which the Transferee exercises
sole investment discretion,
|
|
(ii)
|
the
Transferor reasonably believes that the Transferee and each such
account
is a “qualified institutional buyer” within the meaning of Rule 144A,
and
|
|
(iii)
|
the
Transfer is in compliance with any applicable blue sky securities
laws of
any state of the United States.
|
Upon
consummation of the proposed Transfer in accordance with the terms of the
Pooling and Servicing Agreement, the transferred beneficial interest will be
subject to the restrictions on transfer enumerated in the legends printed on
the
Rule 144A Global Certificates by which the Transferee shall hold its interest
and in the Pooling and Servicing Agreement and the Securities Act.
|
Dated:
|
Very
truly yours,
|
|
|
[Name
of Transferor]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
ANNEX
A
The
Transferor owns and proposes to transfer a beneficial interest in the
following:
|
(i)
|
G
|
Class
[___] Regulation S Global Certificate, principal amount of $_____________,
|
|
|
(ii)
|
G
|
Class
[___] Regulation S Global Certificate, principal amount of $_____________,
or
|
|
|
(iii)
|
G
|
Class
[___] Regulation S Global Certificate, principal amount of
$_____________.
|
EXHIBIT
G
FORM
OF CUSTODIAL AGREEMENT
THIS
CUSTODIAL AGREEMENT (as amended and supplemented from time to time, the
“Agreement”), dated as of April 30, 2007, by and among U.S. BANK NATIONAL
ASSOCIATION, not individually but solely as trustee under the Pooling and
Servicing Agreement defined below (including its successors under the Pooling
and Servicing Agreement defined below, the “Trustee”), STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as depositor (together with any successor in interest,
the
“Depositor”), EMC MORTGAGE CORPORATION, as
a seller
(in such capacity, “EMC”) as master servicer (together
with any successor in interest or successor under the Pooling and Servicing
Agreement referred to below, the “Master Servicer”), ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as custodian (together with any successor in interest or any
successor appointed hereunder, the “Custodian”) and MASTER FUNDING LLC, as a
seller (“Master Funding”, and together with EMC, the “Sellers”).
WITNESSETH
THAT:
WHEREAS,
the Depositor, EMC Mortgage Corporation, as a seller (in such capacity, “EMC”),
the Master Servicer and the Trustee have entered into a Pooling and Servicing
Agreement, dated as of April 1, 2007, relating to the issuance of Prime Mortgage
Trust, Mortgage Pass-Through Certificates, Series 2007-2 (as in effect on the
date of this agreement, and as amended and supplemented from time to time,
the
“Pooling and Servicing Agreement”).
WHEREAS,
the Custodian has agreed to act as agent for the Trustee on behalf of the
Certificateholders for the purposes of receiving and holding certain documents
and other instruments delivered by the Depositor, the Sellers or the Master
Servicer under the Pooling and Servicing Agreement and the Servicers under
their
respective Servicing Agreements, all upon the terms, conditions and obligations
and subject to the limitations hereinafter set forth. In the event any custodian
terms, conditions and obligations are defined in the Pooling and Servicing
Agreement, this custodial agreement shall supersede.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the Trustee, the Depositor, the Sellers,
the
Master Servicer and the Custodian hereby agree as follows:
ARTICLE
I
DEFINITIONS
Capitalized
terms used in this Agreement and not defined herein shall have the meanings
assigned in the Pooling and Servicing Agreement, unless otherwise required
by
the context herein.
ARTICLE
II
CUSTODY
OF MORTGAGE DOCUMENTS
Section
2.1. Custodian
to Act as Agent: Acceptance of Mortgage Files.
The
Custodian, as the duly appointed custodial agent of the Trustee for these
purposes, acknowledges (subject to any exceptions noted in the Initial
Certification referred to in Section 2.3(a)) receipt of the Mortgage Files
relating to the Mortgage Loans identified on the schedule attached hereto (the
“Mortgage Files”) and declares that it holds and will hold such Mortgage Files
as agent for the Trustee, in trust, for the use and benefit of all present
and
future Certificateholders.
Section
2.2. Recordation
of Assignments.
If any
Mortgage File includes one or more assignments of Mortgage that have not been
recorded pursuant to the provisions of Section 2.01 of the Pooling and Servicing
Agreement and the related Mortgage Loan is not a MOM Loan or the related
Mortgaged Properties are located in jurisdictions specifically excluded by
the
Opinion of Counsel delivered to the Trustee pursuant to Section 2.01 of the
Pooling and Servicing Agreement, each such assignment shall be delivered by
the
Custodian to the Depositor for the purpose of recording it in the appropriate
public office for real property records, and the Depositor, at no expense to
the
Custodian, shall promptly cause to be recorded in the appropriate public office
for real property records each such assignment of Mortgage and, upon receipt
thereof from such public office, shall return each such assignment of Mortgage
to the Custodian.
Section
2.3. Review
of Mortgage Files.
(a) On
or
prior to the Closing Date, in accordance with Section 2.02 of the Pooling and
Servicing Agreement, the Custodian shall deliver to EMC (on its own behalf
and
on behalf of Master Funding), the Depositor, the Master Servicer and the Trustee
an Initial Certification in the form annexed hereto as Exhibit One evidencing
receipt (subject to any exceptions noted therein) of a Mortgage File for each
of
the Mortgage Loans listed on Schedule A attached hereto (the “Mortgage Loan
Schedule”).
(b) Within
90
days of the Closing Date, the Custodian agrees, for the benefit of
Certificateholders, to review, in accordance with the provisions of Section
2.02
of the Pooling and Servicing Agreement, each such document, and shall deliver
to
EMC (on its own behalf and on behalf of Master Funding), the Depositor, the
Master Servicer and the Trustee an Interim Certification in the form annexed
hereto as Exhibit Two to the effect that all such documents have been executed
and received and that such documents relate to the Mortgage Loans identified
on
the Mortgage Loan Schedule, except for any exceptions listed on Schedule A
attached to such Interim Certification. The Custodian shall be under no duty
or
obligation to inspect, review or examine said documents, instruments,
certificates or other papers to determine that the same are genuine,
enforceable, or appropriate for the represented purpose or that they have
actually been recorded or that they are other than what they purport to be
on
their face.
(c) Not
later
than 180 days after the Closing Date, the Custodian shall review, for the
benefit of Certificateholders, the Mortgage Files as provided in Section 2.02
of
the Pooling and Servicing Agreement and deliver to EMC (on its own behalf and
on
behalf of Master Funding), the Depositor, the Master Servicer and the Trustee
a
Final Certification in the form annexed hereto as Exhibit Three evidencing
the
completeness of the Mortgage Files.
(d) In
reviewing the Mortgage Files as provided herein and in the Pooling and Servicing
Agreement, the Custodian shall make no representation as to and shall not be
responsible to verify (i) the validity, legality, enforceability, due
authorization, recordability, sufficiency or genuineness of any of the documents
included in any Mortgage File or (ii) the collectability, insurability,
effectiveness or suitability of any of the documents in any Mortgage
File.
Upon
receipt of written request from EMC, the Master Servicer or the Trustee, the
Custodian shall as soon as practicable supply such Person with a list of all
of
the documents relating to the Mortgage Loans missing from the Mortgage
Files.
Section
2.4. Notification
of Breaches of Representations and Warranties.
Upon
discovery by the Custodian of a breach of any representation or warranty made
by
the Depositor as set forth in the Pooling and Servicing Agreement with respect
to a Mortgage Loan relating to a Mortgage File, the Custodian shall give prompt
written notice to the Depositor, the Master Servicer and the
Trustee.
Section
2.5. Custodian
to Cooperate: Release of Mortgage Files.
Upon
receipt of written notice from the Depositor that EMC has repurchased one or
more Mortgage Loans pursuant to Article II of the Pooling and Servicing
Agreement, and a request for release (a “Request for Release”) confirming that
the purchase price therefor has been deposited in the Master Servicer Collection
Account or the Distribution Account, then the Custodian agrees to promptly
release to the Seller the related Mortgage Files.
Upon
the
Custodian’s receipt of a Request for Release substantially in the form of
Exhibit D to the Pooling and Servicing Agreement signed by a Servicing Officer
of the related Servicer, stating that it has received payment in full of a
Mortgage Loan or that payment in full will be escrowed in a manner customary
for
such purposes, the Custodian agrees promptly to release to the related Servicer,
the related Mortgage File. The Depositor shall deliver to the Custodian and
the
Custodian agrees to review in accordance with the provisions of this Agreement
the Mortgage Note and other documents constituting the Mortgage File with
respect to any Substitute Mortgage Loan.
From
time
to time as is appropriate for the servicing or foreclosure of any Mortgage
Loan,
including, for this purpose collection under any Primary Insurance Policy,
the
related Servicer (or if the Servicer does not, the Master Servicer) shall
deliver to the Custodian a Request for Release signed by a Servicing Officer
requesting that possession of all of the Mortgage File be released to the
related
Servicer
and
certifying as to the reason for such release and that such release will not
invalidate any insurance coverage provided in respect of the Mortgage Loan
under
any of the Insurance Policies. Upon receipt of the foregoing, the Custodian
shall deliver the Mortgage File to the related Servicer. All Mortgage Files
so
released to the related Servicer shall be held by it in trust for the Trustee
for the use and benefit of all present and future Certificateholders. The
related Servicer shall cause each Mortgage File or any document therein so
released to be returned to the Custodian when the need therefor by the related
Servicer no longer exists, unless (i) the Mortgage Loan has been liquidated
and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in
the Master Servicer Collection Account or the Distribution Account or (ii)
the
Mortgage File or such document has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the related Servicer
has delivered to the Custodian a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such
delivery.
At
any
time that the related Servicer is required to deliver to the Custodian a Request
for Release, the related Servicer shall deliver two copies of the Request for
Release if delivered in hard copy or the related Servicer may furnish such
Request for Release electronically to the Custodian, in which event the
Servicing Officer transmitting the same shall be deemed to have signed the
Request for Release. In connection with any Request for Release of a Mortgage
File because of a repurchase of a Mortgage Loan, such Request for Release shall
be followed by an assignment of mortgage, without recourse, representation
or
warranty from the Trustee to the Seller (unless such Mortgage Loan is a MOM
Loan) and the related Mortgage Note shall be endorsed without recourse,
representation or warranty by the Trustee and be returned to the Seller;
provided, however, that in the case of a Mortgage Loan that is registered on
the
MERS System, no assignment of mortgage or endorsement of the Mortgage Note
by
the Trustee shall be required. In connection with any Request for Release of
a
Mortgage File because of the payment in full of a Mortgage Loan, such Request
for Release shall be accompanied by a certificate of satisfaction or other
similar instrument to be executed by or on behalf of the Trustee and returned
to
the related Servicer.
Section
2.6. Assumption
Agreements.
In the
event that any assumption agreement, substitution of liability agreement or
sale
of servicing agreement is entered into with respect to any Mortgage Loan subject
to this Agreement in accordance with the terms and provisions of the Pooling
and
Servicing Agreement, the Master Servicer shall enforce any obligation of the
related Servicer under the related Servicing Agreement to notify the Custodian
that such assumption or substitution agreement has been completed by forwarding
to the Custodian the original of such assumption or substitution agreement,
which shall be added to the related Mortgage File and, for all purposes, shall
be considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting parts thereof.
ARTICLE
III
CONCERNING
THE CUSTODIAN
Section
3.1. Custodian
as Bailee and Agent of the Trustee.
With
respect to each Mortgage Note, Mortgage and other documents constituting each
Mortgage File which are delivered to the Custodian, the Custodian is exclusively
the bailee and custodial agent of the Trustee and has no instructions to hold
any Mortgage Note or Mortgage for the benefit of any person other than the
Trustee and the Certificateholders and undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement and in the
Pooling and Servicing Agreement. Except upon compliance with the provisions
of
Section 2.5 of this Agreement, no Mortgage Note, Mortgage or Mortgage File
shall
be delivered by the Custodian to the Depositor, the Servicers or the Master
Servicer or otherwise released from the possession of the
Custodian.
Section
3.2. Custodian
May Own Certificates.
The
Custodian in its individual or any other capacity may become the owner or
pledgee of Mortgage Pass-Through Certificates with the same rights it would
have
if it were not Custodian.
Section
3.3. Trustee
to Pay Custodian’s Fees.
The
Trustee covenants and agrees to pay to the Custodian from time to time, and
the
Custodian shall be entitled to, reasonable compensation for all services
rendered by it in the exercise and performance of any of the powers and duties
hereunder of the Custodian.
Section
3.4. Custodian
May Resign; Trustee May Remove Custodian.
The
Custodian may resign from the obligations and duties hereby imposed upon it
as
such obligations and duties relate to its acting as Custodian of the Mortgage
Loans. Upon receiving such written notice of resignation, the Trustee shall
either take custody of the Mortgage Files itself and give prompt written notice
thereof to the Depositor, the Master Servicer and the Custodian, or promptly
appoint a successor Custodian by written instrument, in duplicate, one copy
of
which instrument shall be delivered to the resigning Custodian and one copy
to
the successor Custodian. If the Trustee shall not have taken custody of the
Mortgage Files and no successor Custodian shall have been so appointed and
have
accepted appointment within 30 days after the giving of such written notice
of
resignation, the resigning Custodian may petition any court of competent
jurisdiction for the appointment of a successor Custodian.
The
Trustee may remove the Custodian at any time with the consent of the Master
Servicer. In such event, the Trustee shall appoint, or petition a court of
competent jurisdiction to appoint, a successor Custodian hereunder. Any
successor Custodian shall be a depository institution subject to supervision
or
examination by federal or state authority, shall be able to satisfy the other
requirements contained in Section 3.6 and shall be unaffiliated with the
Servicer, or the Depositor.
Any
resignation or removal of the Custodian and appointment of a successor Custodian
pursuant to any of the provisions of this Section 3.4 shall become effective
upon acceptance of appointment by the successor Custodian. The Trustee shall
give prompt notice to the Depositor and the Master Servicer of the appointment
of any successor Custodian. No successor Custodian shall be appointed by the
Trustee without the prior approval of the Depositor and the Master
Servicer.
Section
3.5. Merger
or Consolidation of Custodian.
Any
Person into which the Custodian may be merged or converted or with which it
may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person succeeding
to the business of the Custodian, shall be the successor of the Custodian
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided that such successor is a depository institution
subject to supervision or examination by federal or state authority and is
able
to satisfy the other requirements contained in Section 3.6 and is unaffiliated
with the Master Servicer or the Depositor.
Section
3.6. Representations
of the Custodian.
The
Custodian hereby represents that it is a depository institution subject to
supervision or examination by a federal or state authority, has a combined
capital and surplus of at least $15,000,000 and is qualified to do business
in
the jurisdictions in which it will hold any Mortgage File.
ARTICLE
IV
COMPLIANCE
WITH REGULATION AB
Section
4.1. Intent
of the Parties; Reasonableness.
The
parties hereto acknowledge and agree that the purpose of this Article IV is
to
facilitate compliance by the Depositor with the provisions of Regulation AB
and
related rules and regulations of the Commission. The Depositor shall not
exercise its right to request delivery of information or other performance
under
these provisions other than in good faith, or for purposes other than compliance
with the Securities Act, the Exchange Act and the rules and regulations of
the
Commission under the Securities Act and the Exchange Act. Each of the parties
hereto acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the mortgage-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Depositor in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation AB.
The
Custodian shall cooperate reasonably with the Depositor to deliver to the
Depositor (including any of its assignees or designees), any and all disclosure,
statements, reports, certifications, records and any other information necessary
in the reasonable, good faith determination of the Depositor to permit the
Depositor to comply with the provisions of Regulation AB.
Section
4.2. Additional
Representations and Warranties of the Custodian.
(a) The
Custodian hereby represents and warrants that the information set forth in
the
Prospectus Supplement under the caption “Description of the Certificates - The
Custodians” (the “Custodian Disclosure”) does not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading.
(b) The
Custodian shall be deemed to represent to the Depositor as of the date hereof
and on each date on which information is provided to the Depositor under Section
4.3 that, except as disclosed in writing to the Depositor prior to such date:
(i) there are no aspects of its financial condition that could have a material
adverse effect on the performance by it of its Custodian obligations under
this
Agreement or any other Securitization Transaction as to which it is the
custodian; (ii) there are no material legal or governmental proceedings pending
(or known to be contemplated) against it; and (iii) there are no affiliations,
relationships or transactions relating to the Custodian with respect to the
Depositor or any sponsor, issuing entity, servicer, trustee, originator,
significant obligor, enhancement or support provider or other material
transaction party (as such terms are used in Regulation AB) relating to the
Securitization Transaction contemplated by the Agreement, as identified by
the
Depositor to the Custodian in writing as of the Closing Date (each, a
“Transaction Party”).
(c) If
so
requested by the Depositor on any date following the Closing Date, the Custodian
shall, within five Business Days following such request, confirm in writing
the
accuracy of the representations and warranties set forth in paragraph (a) of
this Section or, if any such representation and warranty is not accurate as
of
the date of such confirmation, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party. Any such request from
the
Depositor shall not be given more than once each calendar quarter, unless the
Depositor shall have a reasonable basis for a determination that any of the
representations and warranties may not be accurate.
Section
4.3. Additional
Information to Be Provided by the Custodian.
For so
long as the Certificates are outstanding, for the purpose of satisfying the
Depositor's reporting obligation under the Exchange Act with respect to any
class of Certificates, the Custodian shall (a) notify the Depositor in writing
of any material litigation or governmental proceedings pending against the
Custodian that would be material to Certificateholders, and (b) provide to
the
Depositor a written description of such proceedings. Any notices and
descriptions required under this Section 4.3 shall be given no later than five
Business Days prior to the Determination Date following the month in which
the
Custodian has knowledge of the occurrence of the relevant event. As of the
date
the Depositor, the Trustee or Master Servicer files each Report on Form 10-D
or
Form 10-K with respect to the Certificates, the Custodian will be deemed to
represent that any information previously provided under this Section 4.3,
if
any, is materially correct and does not have any material omissions unless
the
Custodian has provided an update to such information.
Section
4.4. Report
on Assessment of Compliance and Attestation.
On or
before March 15 of each calendar year, the Custodian shall:
deliver
to the Master Servicer, the Trustee and the Depositor a report regarding the
Custodian’s assessment of compliance (an “Assessment of Compliance”) with the
Servicing Criteria (as identified and marked in Exhibit Four attached hereto)
during the preceding calendar year, as required under Rules 13a-18 and 15d-18
of
the Exchange Act and Item 1122 of Regulation AB. The Assessment of Compliance,
as set forth in Regulation AB, must contain (i) a statement by such officer
of
its responsibility for assessing compliance with the Servicing Criteria
applicable to the Custodian, (ii) a statement by such officer that the Custodian
used the Servicing Criteria attached as Exhibit Four hereto, and which will
also
be attached to the Assessment of Compliance, to assess compliance with the
Servicing Criteria applicable to the Custodian, (iii) an assessment by such
officer of the Custodian’s compliance with the applicable Servicing Criteria for
the period consisting of the preceding calendar year, including disclosure
of
any material instance of noncompliance with respect thereto during such period,
which assessment shall be based on the activities the Custodian performs with
respect to asset-backed securities transactions taken as a whole involving
the
Custodian, that are backed by the same asset type as the Mortgage Loans, (iv)
a
statement that a registered public accounting firm has issued an attestation
report on the Custodian’s Assessment of Compliance for the period consisting of
the preceding calendar year, and (v) a statement as to which of the Servicing
Criteria, if any, are not applicable to the Custodian, which statement shall
be
based on the activities the Custodian performs with respect to asset-backed
securities transactions taken as a whole involving the Custodian, that are
backed by the same asset type as the Mortgage Loans. Such report at a minimum
shall address each of the Servicing Criteria identified and marked on Exhibit
Four attached hereto as being applicable to the Custodian; and
deliver
to the Master Servicer, the Trustee and the Depositor an Attestation Report
(an
“Attestation Report”) by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance made by the Custodian, as required
by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation
AB, which Attestation Report must be made in accordance with standards for
attestation reports issued or adopted by the Public Company Accounting Oversight
Board.
Notwithstanding
the foregoing, an Assessment of Compliance is not required to be delivered
by
the Custodian unless it is required as part of a Form 10-K with respect to
the
Trust Fund.
In
the
event the Custodian is terminated under, or resigns pursuant to, the terms
of
this Agreement, the Custodian shall provide an Assessment of Compliance and
cause to be provided an Attestation Report pursuant to this Section 4.4
notwithstanding any such termination or resignation.
Section
4.5. Indemnification;
Remedies.
The
Custodian shall indemnify the Depositor, each affiliate of the Depositor, the
Trustee, the Master Servicer and each broker dealer acting as underwriter,
placement agent or initial purchaser of the Certificates or each Person who
controls any of such parties (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon:
(A)
any
untrue statement of a material fact contained or alleged to be contained in
the
Custodian Disclosure and any information, report, certification, accountants’
attestation or other material provided under this Article IV by or on behalf
of
the Custodian (collectively, the “Custodian Information”), or (B) the omission
or alleged omission to state in the Custodian Information a material fact
required to be stated in the Custodian Information or necessary in order to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; or
any
failure by the Custodian to deliver any information, report, certification,
accountants’ attestation or other material when and as required under this
Article IV.
In
the
case of any failure of performance described in clause (ii) of Section 4.5(a),
the Custodian shall promptly reimburse the Depositor for all costs reasonably
incurred by the Depositor in order to obtain the information, report,
certification, accountants’ letter or other material not delivered as required
by the Custodian.
ARTICLE
V
MISCELLANEOUS
PROVISIONS
Section
5.1. Notices.
All
notices, requests, consents and demands and other communications required under
this Agreement or pursuant to any other instrument or document delivered
hereunder shall be in writing and, unless otherwise specifically provided,
may
be delivered personally, by telegram or telex, or by registered or certified
mail, postage prepaid, return receipt requested, at the addresses specified
on
the signature page hereof (unless changed by the particular party whose address
is stated herein by similar notice in writing).
Section
5.2. Amendments.
No
modification or amendment of or supplement to this Agreement shall be valid
or
effective unless the same is in writing and signed by all parties hereto, and
neither the Depositor, the Master Servicer nor the Trustee shall enter into
any
amendment hereof except as permitted by the Pooling and Servicing Agreement.
The
Trustee shall give prompt notice to the Custodian of any amendment or supplement
to the Pooling and Servicing Agreement and furnish the Custodian with written
copies thereof..
Section
5.3. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTION
5-1401 AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED
BY
THE LAWS OF THE STATE OF NEW YORK.
Section
5.4. Recordation
of Agreement.
To the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Depositor and at the
Trust’s expense, but only upon direction accompanied by an Opinion of Counsel
reasonably satisfactory to the Depositor to the effect that the failure to
effect such recordation is likely to materially and adversely affect the
interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
Section
5.5. Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the holders thereof.
[Signature
Page Follows]
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
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Address:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services, PRIME 2007-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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U.S.
BANK NATIONAL ASSOCIATION,
not
individually but solely as Trustee
By:
__________________________________________
Name:
Title:
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Address:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.,
as
Depositor
By:
__________________________________________
Name:
Title:
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Address:
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
(Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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EMC
MORTGAGE CORPORATION,
as
Master Servicer and Seller
By:
__________________________________________
Name:
Title:
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Address:
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇▇▇
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MASTER
FUNDING LLC,
as
Seller
By:
__________________________________________
Name:
Title:
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Address:
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 0031
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
PRIME 2007-2
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▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
as
Custodian
By:
__________________________________________
Name:
Title:
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STATE
OF MASSACHUSETTS
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)
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)
ss:
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COUNTY
OF
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)
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On
the
30th
day of
April 2007 before me, a notary public in and for said State, personally appeared
_________________ known to me to be a(n) __________________of U.S. Bank National
Association, one of the parties that executed the within agreement, and also
known to me to be the person who executed the within agreement on behalf of
said
national banking association and acknowledged to me that such national banking
association executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
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Notary
Public
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[SEAL]
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STATE
OF NEW YORK
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)
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)
ss:
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COUNTY
OF NEW YORK
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)
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On
the
30th
day of
April 2007 before me, a notary public in and for said State, personally appeared
____________________,
known to
me to be a(n) ____________________ of Structured Asset Mortgage Investments
II
Inc., one of the corporations that executed the within instrument, and also
known to me to be the person who executed it on behalf of said corporation,
and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
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Notary
Public
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[SEAL]
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STATE
OF TEXAS
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)
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)
ss:
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COUNTY
OF DALLAS
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)
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On
the
30th
day of
April 2007 before me, a notary public in and for said State, personally appeared
_______________________, known to me to be a(n) __________________ of EMC
Mortgage Corporation, one of the parties that executed the within instrument,
and also known to me to be the person who executed the within instrument on
behalf of said party, and acknowledged to me that such party executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
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Notary
Public
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[SEAL]
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STATE
OF TEXAS
|
)
|
|
)
ss:
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|
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COUNTY
OF DALLAS
|
)
|
On
the
30th
day of
April 2007 before me, a notary public in and for said State, personally appeared
_______________________, known to me to be a(n) __________________ of Master
Funding LLC, one of the parties that executed the within instrument, and also
known to me to be the person who executed the within instrument on behalf of
said party, and acknowledged to me that such party executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
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Notary
Public
|
[SEAL]
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STATE
OF MINNESOTA
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)
|
|
)
ss:
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COUNTY
OF HENNEPIN
|
)
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On
the
30th
day of
April 2007 before me, a notary public in and for said State, personally appeared
_________________ known to me to be a(n) __________________of ▇▇▇▇▇ Fargo Bank,
N.A., one of the parties that executed the within agreement, and also known
to
me to be the person who executed the within agreement on behalf of said national
banking association and acknowledged to me that such national banking
association executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
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Notary
Public
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[SEAL]
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
(PROVIDED
UPON REQUEST)
EXHIBIT
ONE
FORM
OF
CUSTODIAN INITIAL CERTIFICATION
April
30,
2007
U.S.
Bank
National Association
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Attention:
Corporate Trust Services, PRIME 2007-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
EMC
Mortgage Corporation
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Facsimile:
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Attention:
General Counsel
Structured
Asset Mortgage Investments II Inc.
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Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
PRIME 2007-2
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Re:
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Custodial
Agreement, dated as of April 30, 2007, by and among Structured Asset
Mortgage Investments II Inc., EMC Mortgage Corporation, U.S. Bank
National
Association and ▇▇▇▇▇ Fargo Bank, National Association as Custodian
relating to Prime Mortgage Trust 2007-2, Mortgage Pass-Through
Certificates, Series 2007-2
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Ladies
and Gentlemen:
In
accordance with Section 2.3(a) of the above-captioned Custodial Agreement,
and
subject to Section 2.02(a) of the Pooling and Servicing Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage
File
(which contains an original Mortgage Note or lost note affidavit) to the extent
required in Section 2.01 of the Pooling and Servicing Agreement with respect
to
each Mortgage Loan listed in the Mortgage Loan Schedule, with any exceptions
listed on Schedule A attached hereto.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Custodial Agreement.
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FARGO BANK, NATIONAL ASSOCIATION
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By:
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Name:
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Title:
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SCHEDULE
A
(Provided
upon request)
EXHIBIT
TWO
FORM
OF
CUSTODIAN INTERIM CERTIFICATION
[DATE]
U.S.
Bank
National Association
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Attention:
Corporate Trust Services, PRIME 2007-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
EMC
Mortgage Corporation
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Facsimile:
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Attention:
General Counsel
Structured
Asset Mortgage Investments II Inc.
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Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
PRIME 2007-2
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Re:
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Custodial
Agreement, dated as of April 30, 2007, by and among Structured Asset
Mortgage Investments II Inc., EMC Mortgage Corporation, U.S. Bank
National
Association and ▇▇▇▇▇ Fargo Bank, National Association as Custodian
relating to Prime Mortgage Trust 2007-2, Mortgage Pass-Through
Certificates, Series 2007-2
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Ladies
and Gentlemen:
In
accordance with Section 2.3(b) of the above-captioned Custodial Agreement and
subject to Section 2.02(a) of the Pooling and Servicing Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage
File
to the extent required pursuant to Section 2.01 of the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule, and it has reviewed the Mortgage File and the Mortgage Loan Schedule
and has determined that: all required documents have been executed and received
and that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Custodial Agreement.
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FARGO BANK, NATIONAL ASSOCIATION
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By:
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Name:
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Title:
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SCHEDULE
A
(PROVIDED
UPON REQUEST)
EXHIBIT
THREE
FORM
OF
CUSTODIAN FINAL CERTIFICATION
[DATE]
U.S.
Bank
National Association
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Attention:
Corporate Trust Services, PRIME 2007-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
EMC
Mortgage Corporation
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
General Counsel
Structured
Asset Mortgage Investments II Inc.
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▇▇▇
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Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
PRIME 2007-2
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Re:
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Custodial
Agreement, dated as of April 30, 2007, by and among Structured Asset
Mortgage Investments II Inc., EMC Mortgage Corporation, U.S. Bank
National
Association and ▇▇▇▇▇ Fargo Bank, National Association, as Custodian
relating to Prime Mortgage Trust 2007-2, Mortgage Pass-Through
Certificates, Series 2007-2
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Ladies
and Gentlemen:
In
accordance with Section 2.3(c) of the above-captioned Custodial
Agreement
and,
subject to Section 2.02(b) of the Pooling and Servicing Agreement, the
undersigned, as Custodian, hereby certifies that it has received a Mortgage
File
to the extent required pursuant to Section 2.01 of the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule, and it has reviewed the Mortgage File and the Mortgage Loan Schedule
and has determined that: all required documents have been executed and received
and that such documents relate to the Mortgage Loans identified on the Mortgage
Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the above-captioned Custodial Agreement or in the Pooling and Servicing
Agreement, as applicable.
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FARGO BANK, NATIONAL ASSOCIATION
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By:
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Name:
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Title:
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SCHEDULE
A
(provided
upon request)
EXHIBIT
FOUR
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Custodian shall address, at
a
minimum, the criteria identified below as “Applicable Servicing
Criteria”:
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Servicing
Criteria
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Applicable
Servicing
Criteria
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Reference
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Criteria
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General
Servicing Considerations
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1122(d)(1)(i)
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Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements
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1122(d)(1)(ii)
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If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities
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1122(d)(1)(iii)
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Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
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1122(d)(1)(iv)
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A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
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Cash
Collection and Administration
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1122(d)(2)(i)
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Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in
the
transaction agreements.
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1122(d)(2)(ii)
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Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
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1122(d)(2)(iii)
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Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances are
made,
reviewed and approved as specified in the transaction
agreements.
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1122(d)(2)(iv)
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The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
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1122(d)(2)(v)
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Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institutions” with respect
to a foreign financial institution means a foreign financial
institution
that meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
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1122(d)(2)(vi)
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Unissued
checks are safeguarded so as to prevent unauthorized
access.
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1122(d)(2)(vii)
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Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 45 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliations; and (D) contain explanations for reconciling
items, These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
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Investor
Remittances and Reporting
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1122(d)(3)(i)
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Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements, (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors; or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the
servicer.
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1122(d)(3)(ii)
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Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
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1122(d)(3)(iii)
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Disbursements
made to an investor are posted within two business days to the
servicer’s
investor records, or such other number of days specified in the
transaction agreements.
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1122(d)(3)(iv)
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Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
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Pool
Asset Administration
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1122(d)(4)(i)
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Collateral
or security on pool assets is maintained as required by the transaction
agreements or related asset pool documents.
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√
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1122(d)(4)(ii)
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Pool
assets and related documents are safeguarded as required by the
transaction agreements.
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√
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1122(d)(4)(iii)
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Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements
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1122(d)(4)(iv)
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Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
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1122(d)(4)(v)
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The
servicer’s records regarding the pool assets agree with the servicer’s
records with respect to an obligor’s unpaid principal
balance.
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1122(d)(4)(vi)
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Changes
with respect to the terms or status of an obligor’s pool asset (e.g., loan
modifications or re-agings) are made, reviewed and approved by
authorized
personnel in accordance with the transaction agreements and related
pool
asset documents.
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1122(d)(4)(vii)
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Loss
mitigation of recovery actions (e.g., forbearance plans, modifications
and
deed in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
documents.
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1122(d)(4)(viii)
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Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.,
Such
records are maintained in at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
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1122(d)(4)(ix)
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Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
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1122(d)(4)(x)
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Regarding
any funds held in trust for an obligor (such as escrow accounts);
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 3-
calendar
days of full repayment of the related pool asset, or such other
number of
days specified in the transaction agreements.
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1122(d)(4)(xi)
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Payments
made on behalf of an obligor (such as tax ore insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the service at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
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1122(d)(4)(xii)
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Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
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1122(d)(4)(xiii)
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Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
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1122(d)(4)(xiv)
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Delinquencies,
charge-offs and uncollectible funds are recognized and recorded
in
accordance with the transaction agreements.
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1122(d)(4)(xv)
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Any
external enhancement or other support, identified in item 1114(a)(1)
through (3) or item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
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EXHIBIT
H
FORM
OF
MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of April 30, 2007, as amended and supplemented
by any and all amendments hereto (collectively, the “Agreement”),
by
and among EMC MORTGAGE CORPORATION, a Delaware corporation (“EMC” or a
“Seller”), MASTER FUNDING LLC, a Delaware limited liability company (“Master
Funding” or a “Seller”, and together with EMC, the “Sellers”)
and
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., a Delaware corporation (the
“Purchaser”).
Upon
the
terms and subject to the conditions of this Agreement, each Seller agrees to
sell, and the Purchaser agrees to purchase, certain conventional, first lien
mortgage loans secured primarily by one- to four-family residential properties
and individual condominium units (collectively, the “Mortgage
Loans”)
as
described herein. The Purchaser intends to deposit the Mortgage Loans into
a
trust fund (the “Trust
Fund”)
and
create Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2
(the “Certificates”),
under
a pooling and servicing agreement, to be dated as of April 1, 2007 (the
“Pooling
and Servicing Agreement”),
among
the Purchaser, as depositor, U.S. Bank National Association, as trustee (the
“Trustee”)
and
EMC Mortgage Corporation, as seller and master servicer.
The
Purchaser has filed with the Securities and Exchange Commission (the
“Commission”)
a
registration statement on Form S-3 (Number 333-140247) relating to its
Mortgage
Pass-Through Certificates
and the
offering of certain series thereof (including certain classes of the
Certificates) from time to time in accordance with Rule 415 under the Securities
Act of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder (the “Securities
Act”).
Such
registration statement, when it became effective under the Securities Act,
and
the prospectus relating to the public offering of certain classes of the
Certificates by the Purchaser (the “Public
Offering”),
as
each may be amended or supplemented from time to time pursuant to the Securities
Act or otherwise, are referred to herein as the “Registration
Statement”
and
the
“Prospectus,”
respectively. The “Term
Sheet Supplement”
shall
mean the free writing prospectus, dated April 27, 2007. The
“Prospectus
Supplement”
shall
mean the final supplement, dated April
30,
2007,
to the
Prospectus, dated March
20,
2007,
relating to certain classes of the Certificates. With
respect to the Public Offering of certain classes of the Certificates, the
Purchaser and Bear, ▇▇▇▇▇▇▇ & Co. Inc. (“Bear
▇▇▇▇▇▇▇”)
have
entered into a terms agreement dated as of April 27, 2007 to an underwriting
agreement dated February 26, 2007, between the Purchaser and Bear ▇▇▇▇▇▇▇
(together, the “Underwriting
Agreement”).
Now,
therefore, in consideration of the premises and the mutual agreements set forth
herein, the parties hereto agree as follows:
SECTION
1. Definitions.
Certain
terms are defined herein. Capitalized terms used herein but not defined herein
shall have the meanings specified in the Pooling and Servicing Agreement. The
following other terms are defined as follows:
Acquisition
Price:
With
respect to EMC and the sale of the EMC Mortgage Loans, cash in an amount equal
to $______ (plus $______ in accrued interest)2 .
With
respect to Master Funding and the sale of the Master Funding Mortgage Loans,
cash in an amount equal to $______ (plus $______ in accrued
interest)2.
Bear
▇▇▇▇▇▇▇:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
Closing
Date:
April
30, 2007.
Cut-off
Date:
April
1, 2007.
Cut-off
Date Balance:
Shall
mean $331,901,017.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Substitute Mortgage
Loan.
Due
Date:
With
respect to each Mortgage Loan, the date in each month on which its scheduled
payment is due if such due date is the first day of a month and otherwise is
deemed to be the first day of the following month or such other date specified
in the related Servicing Agreement.
EMC:
EMC
Mortgage Corporation.
EMC
Flow Loans:
The
Mortgage Loans purchased by EMC pursuant to a flow loan purchase
agreement.
EMC
Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which EMC
is
the applicable Seller.
Fitch:
Fitch
Ratings, or its successor in interest.
Master
Funding:
Master
Funding LLC.
Master
Funding Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule for which Master
Funding is the applicable Seller.
Master
Servicer:
EMC
Mortgage Corporation.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
Mortgage:
The
mortgage or deed of trust creating a first lien on an interest in real property
securing a Mortgage Note.
Mortgage
File:
The
items referred to in Exhibit
1
pertaining to a particular Mortgage Loan and any additional documents required
to be added to such documents pursuant to this Agreement.
Mortgage
Interest Rate:
The
annual rate of interest borne by a Mortgage Note as stated therein.
Mortgagor:
The
obligor(s) on a Mortgage Note.
Net
Rate:
For
each Mortgage Loan, the Mortgage Interest Rate for such Mortgage Loan less
the
Servicing Fee Rate and the Lender-Paid PMI Rate (if applicable).
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for a Seller or the Purchaser,
reasonably acceptable to the Trustee.
Person:
Any
legal person, including any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Purchase
Price:
With
respect to any Mortgage Loan (or any property acquired with respect thereto)
required to be repurchased by EMC (on its own behalf as a Seller and on behalf
of Master Funding) pursuant to this Agreement or Article II of the Pooling
and
Servicing Agreement, an amount equal to the sum of (i)(a) 100% of the
Outstanding Principal Balance of such Mortgage Loan as of the date of repurchase
(or if the related Mortgaged Property was acquired with respect thereto, 100%
of
the Outstanding Principal Balance at the date of the acquisition), plus (b)
accrued but unpaid interest on the Outstanding Principal Balance at the related
Mortgage Interest Rate, through and including the last day of the month of
repurchase, plus (c) any unreimbursed Monthly Advances and servicing advances
payable to the Servicer of the Mortgage Loan and (ii) any costs and damages
(if
any) incurred by the Trust in connection with any violation of such Mortgage
Loan of any anti-predatory lending laws.
Rating
Agencies:
Fitch
and S&P, each a “Rating
Agency.”
Securities
Act:
The
Securities Act of 1933, as amended.
Security
Instrument:
A
written instrument creating a valid first lien on a Mortgaged Property securing
a Mortgage Note, which may be any applicable form of mortgage, deed of trust,
deed to secure debt or security deed, including any riders or addenda
thereto.
Servicing
Agreements:
Shall
have the meaning assigned to such term in the Pooling and Servicing
Agreement.
Standard
& Poor’s or S&P:
Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or its
successors in interest.
Substitute
Mortgage Loan:
A
mortgage loan substituted for a Deleted Mortgage Loan which must meet on the
date of such substitution the requirements stated herein and in the Pooling
and
Servicing Agreement; upon such substitution, such mortgage loan shall be a
“Mortgage Loan” hereunder.
Value:
The
value of the Mortgaged Property at the time of origination of the related
Mortgage Loan, such value being the lesser of (i) the value of such property
set
forth in an appraisal accepted by the applicable originator of the Mortgage
Loan
or (ii) the sales price of such property at the time of
origination.
SECTION
2. Purchase
and Sale of the Mortgage Loans and Related Rights.
(a)
Upon
satisfaction of the conditions set forth in Section 11 hereof, each Seller
agrees to sell, and the Purchaser agrees to purchase Mortgage Loans sold by
such
Seller having an aggregate outstanding principal balance as of the Cut-off
Date
equal to the Cut-off Date Balance.
(b) The
closing for the purchase and sale of the Mortgage Loans and the closing for
the
issuance of the Certificates will take place on the Closing Date at the office
of the Purchaser’s counsel in New York, New York or such other place as the
parties shall agree.
(c) Upon
the
satisfaction of the conditions set forth in Section 11 hereof, on the Closing
Date, the Purchaser shall pay to each respective Seller the related Acquisition
Price for the Mortgage Loans sold by such Seller in immediately available funds
by wire transfer to such account or accounts as shall be designated by such
Seller.
(d) In
addition to the foregoing, on the Closing Date each Seller assigns to the
Purchaser all of its right, title and interest in the Servicing Agreements
(other than its right to enforce the representations and warranties set forth
therein).
SECTION
3. Mortgage
Loan Schedule.
EMC (on
its own behalf as a Seller and on behalf of Master Funding) agrees to provide
to
the Purchaser as of the Cut-off Date a listing of the Mortgage Loans (the
“Mortgage
Loan Schedule”)
setting forth the information listed on Exhibit
2
to this
Agreement with respect to each of the Mortgage Loans being sold by the
respective Seller. The Mortgage Loan Schedule shall be delivered to the
Purchaser on the Closing Date and shall be in form and substance mutually agreed
to by EMC (on its own behalf as a Seller and on behalf of Master Funding) and
the Purchaser.
SECTION
4. Mortgage
Loan Transfer.
(a) The
Purchaser will be entitled to all scheduled payments of principal and interest
on the Mortgage Loans due after the Cut-off Date (regardless of when actually
collected) and all payments thereon, other than scheduled principal and interest
due on or before the Cut-off Date but received after the Cut-off Date. Each
Seller will be entitled to all scheduled payments of principal and interest
on
the Mortgage Loans due on or before the Cut-off Date (including payments
collected after the Cut-off Date) and all payments thereon, other than scheduled
principal and interest due after the Cut-off Date but received on or before
the
Cut-off Date. Such principal amounts and any interest thereon belonging to
the
related Seller as described above will not be included in the aggregate
outstanding principal balance of the Mortgage Loans as of the Cut-off Date
as
set forth on the Mortgage Loan Schedule.
(b) Pursuant
to various conveyancing documents to be executed on the Closing Date and
pursuant to the Pooling and Servicing Agreement, the Purchaser will assign
on
the Closing Date all of its right, title and interest in and to the Mortgage
Loans to the Trustee for the benefit of the Certificateholders. In connection
with the transfer and assignment of the Mortgage Loans, each Seller has
delivered or will deliver or cause to be delivered to the Trustee by the Closing
Date or such later date as is agreed to by the Purchaser and such Seller (each
of the Closing Date and such later date is referred to as a “Mortgage
File Delivery Date”),
the
items of each Mortgage File, provided,
however,
that in
lieu of the foregoing, each Seller may deliver the following documents, under
the circumstances set forth below: (w) in lieu of the original Security
Instrument (other than the Mortgages related to the EMC Flow Loans), assignments
to the Trustee or intervening assignments thereof which have been delivered,
are
being delivered or will, upon receipt of recording information relating to
the
Security Instrument required to be included thereon, be delivered to recording
offices for recording and have not been returned to the related Seller in time
to permit their delivery as specified above, the related Seller may deliver
a
true copy thereof with a certification, on the face of such copy, substantially
as follows: “Certified to be a true and correct copy of the original”; (x) in
lieu of the Security Instrument (other than the Mortgages related to the EMC
Flow Loans), assignments to the Trustee or intervening assignments thereof,
if
the applicable jurisdiction retains the originals of such documents (as
evidenced by a certification from such Seller to such effect) such Seller may
deliver photocopies of such documents containing an original certification
by
the judicial or other governmental authority of the jurisdiction where such
documents were recorded; (y) in lieu of the Mortgage Notes relating to the
Mortgage Loans, each identified in the list delivered by the Purchaser to the
Trustee on the Closing Date and attached hereto as Exhibit 5, the related Seller
may deliver lost note affidavits and indemnities of such Seller; and (z) the
related Seller shall not be required to deliver intervening assignments or
Mortgage Note endorsements between the related Underlying Seller and such
Seller, between such Seller and the Depositor, and between the Depositor and
the
Trustee; and provided further, however, that in the case of Mortgage Loans
which
have been prepaid in full after the Cut-off Date and prior to the Closing Date,
the such Seller, in lieu of delivering the above documents, may deliver to
the
Trustee a certification by such Seller or the Master Servicer to such effect
and
shall deposit all amounts paid in respect of such Mortgage Loans in the Master
Servicer Collection Account on the Closing Date. Each Seller shall deliver
such
original documents (including any original documents as to which certified
copies had previously been delivered) or such certified copies to the Trustee
promptly after they are received. EMC (on its own behalf as a Seller and on
behalf of Master Funding) shall cause the Mortgage and intervening assignments,
if any, and the assignment of the Security Instrument to be recorded not later
than 180 days after the Closing Date, unless such assignment is not required
to
be recorded under the terms set forth in Section 6(a) hereof.
(c) In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, EMC (on its own behalf as a Seller and on behalf of Master Funding)
further agrees that it will cause, at EMC’s own expense, within 30 days after
the Closing Date, the MERS® System to indicate that such Mortgage Loans have
been assigned by the related Seller to the Purchaser and by the Purchaser to
the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
(a) the code in the field which identifies the specific Trustee and (b) the
code
in the field “Pool Field” which identifies the series of the Certificates issued
in connection with such Mortgage Loans. EMC (on its own behalf as a Seller
and
on behalf of Master Funding) further agrees that it will not, and will not
permit any Servicer or the Master Servicer, and the Master Servicer agrees
that
it will not, alter the codes referenced in this paragraph with respect to any
Mortgage Loan during the term of the Pooling and Servicing Agreement unless
and
until such Mortgage Loan is repurchased in accordance with the terms of the
Pooling and Servicing Agreement.
(d) Each
Seller and the Purchaser acknowledge hereunder that all of the Mortgage Loans
and the related servicing will ultimately be assigned to U.S. Bank National
Association, as Trustee for the Holders of the Mortgage, on the date
hereof.
SECTION
5. Examination
of Mortgage Files.
(a) On
or
before the Mortgage File Delivery Date, each Seller will have made the related
Mortgage Files available to the Purchaser or its agent for examination which
may
be at the offices of the Trustee or the related Seller and/or such Seller’s
custodian. The fact that the Purchaser or its agent has conducted or has failed
to conduct any partial or complete examination of the related Mortgage Files
shall not affect the Purchaser’s rights to demand cure, repurchase, substitution
or other relief as provided in this Agreement. In furtherance of the foregoing,
each Seller shall make the related Mortgage Files available to the Purchaser
or
its agent from time to time so as to permit the Purchaser to confirm such
Seller’s compliance with the delivery and recordation requirements of this
Agreement and the Pooling and Servicing Agreement. In addition, upon request
of
the Purchaser, each Seller agrees to provide to the Purchaser, Bear ▇▇▇▇▇▇▇
and
to any investors or prospective investors in the Certificates information
regarding the Mortgage Loans and their servicing, to make the related Mortgage
Files available to the Purchaser, Bear ▇▇▇▇▇▇▇ and to such investors or
prospective investors (which may be at the offices of the related Seller and/or
such Seller’s custodian) and to make available personnel knowledgeable about the
related Mortgage Loans for discussions with the Purchaser, Bear ▇▇▇▇▇▇▇ and
such
investors or prospective investors, upon reasonable request during regular
business hours, sufficient to permit the Purchaser, Bear ▇▇▇▇▇▇▇ and such
investors or potential investors to conduct such due diligence as any such
party
reasonably believes is appropriate.
(b) Pursuant
to the Pooling and Servicing Agreement, on the Closing Date the Custodian,
on
behalf of the Trustee, for the benefit of the Certificateholders, will
acknowledge receipt of each Mortgage Loan by delivery to EMC (on its own behalf
as a Seller and on behalf of Master Funding), the Purchaser and the Trustee
of
an initial certification in the form attached as Exhibit One to the Custodial
Agreement.
(c) Pursuant
to the Pooling and Servicing Agreement, within 90 days of the Closing Date
(or,
with respect to any Substitute Mortgage Loan, within five Business Days after
the receipt by the Trustee or Custodian thereof), the Trustee will review or
shall cause the Custodian to review items of the Mortgage Files as set forth
on
Exhibit
1
and will
deliver to EMC (on its own behalf as a Seller and on behalf of Master Funding),
the Purchaser and the Trustee an interim certification substantially in the
form
of Exhibit Two to the Custodial Agreement. If the Trustee or Custodian, as
its
agent, finds any document listed on Exhibit
1
not to
have been executed or received, or to be unrelated, determined on the basis
of
the Mortgagor name, original principal balance and loan number, to the Mortgage
Loans identified in the Final Mortgage Loan Schedule or to appear defective
on
its face (a “Material
Defect”),
the
Trustee or the Custodian, as its agent, shall promptly notify EMC of such
Material Defect. EMC (on its own behalf as a Seller and on behalf of Master
Funding) shall correct or cure any such Material Defect within 90 days from
the
date of notice from the Trustee or the Custodian, as its agent, of the Material
Defect and if EMC (on its own behalf as a Seller and on behalf of Master
Funding) fails to correct or cure such Material Defect within such period and
such defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, EMC (on its own behalf as
a
Seller and on behalf of Master Funding) will, in accordance with the terms
of
the Pooling and Servicing Agreement, within 90 days of the date of notice,
provide the Trustee with a Substitute Mortgage Loan (if within two years of
the
Closing Date) or purchase the related Mortgage Loan at the applicable Purchase
Price; provided
that,
if such
defect would cause the Mortgage Loan to be other than a “qualified mortgage” as
defined in Section 860G(a)(3) of the Code, any such cure, repurchase or
substitution must occur within 90 days from the date such breach was discovered;
provided, however,
that if
such defect relates solely to the inability of EMC (on its own behalf as a
Seller and on behalf of Master Funding) to deliver the original Security
Instrument or intervening assignments thereof, or a certified copy because
the
originals of such documents, or a certified copy, have not been returned by
the
applicable jurisdiction, EMC shall not be required to purchase such Mortgage
Loan if EMC (on its own behalf as a Seller and on behalf of Master Funding)
delivers such original documents or certified copy promptly upon receipt, but
in
no event later than 360 days after the Closing Date. The foregoing repurchase
obligation shall not apply in the event that EMC (on its own behalf as a Seller
and on behalf of Master Funding) cannot deliver such original or copy of any
document submitted for recording to the appropriate recording office in the
applicable jurisdiction because such document has not been returned by such
office; provided that EMC (on its own behalf as a Seller and on behalf of Master
Funding) shall instead deliver a recording receipt of such recording office
or,
if such receipt is not available, a certificate confirming that such documents
have been accepted for recording, and delivery to the Trustee or the Custodian,
as its agent, shall be effected by EMC (on its own behalf as a Seller and on
behalf of Master Funding) within thirty days of its receipt of the original
recorded document.
(d) Pursuant
to the Pooling and Servicing Agreement, within 180 days of the Closing Date
(or,
with respect to any Substitute Mortgage Loan, within five Business Days after
the receipt by the Trustee or Custodian thereof) the Trustee will review or
cause the Custodian to review items of the Mortgage Files as set forth on
Exhibit
1
and will
deliver to EMC (on its own behalf as a Seller and on behalf of Master Funding),
the Purchaser and the Trustee a final certification substantially in the form
of
Exhibit Three to the Custodial Agreement. If the Trustee or Custodian, as its
agent, finds a Material Defect, the Trustee or the Custodian, as its agent,
shall promptly notify EMC of such Material Defect. EMC (on its own behalf as
a
Seller and on behalf of Master Funding) shall correct or cure any such Material
Defect within 90 days from the date of notice from the Trustee or the Custodian,
as its agent, of the Material Defect and if EMC (on its own behalf as a Seller
and on behalf of Master Funding) fails to correct or cure such Material Defect
within such period and such defect materially and adversely affects the
interests of the Certificateholders in the related Mortgage Loan, EMC (on its
own behalf as a Seller and on behalf of Master Funding) will, in accordance
with
the terms of the Pooling and Servicing Agreement, within 90 days of the date
of
notice, provide the Trustee with a Substitute Mortgage Loan (if within two
years
of the Closing Date) or purchase the related Mortgage Loan at the applicable
Purchase Price; provided
that,
if such
defect would cause the Mortgage Loan to be other than a “qualified mortgage” as
defined in Section 860G(a)(3) of the Code, any such cure, repurchase or
substitution must occur within 90 days from the date such breach was discovered;
provided, however,
that if
such defect relates solely to the inability of EMC (on its own behalf as a
Seller and on behalf of Master Funding) to deliver the original Security
Instrument or intervening assignments thereof, or a certified copy because
the
originals of such documents, or a certified copy, have not been returned by
the
applicable jurisdiction, EMC shall not be required to purchase such Mortgage
Loan if EMC (on its own behalf as a Seller and on behalf of Master Funding)
delivers such original documents or certified copy promptly upon receipt, but
in
no event later than 360 days after the Closing Date. The foregoing repurchase
obligation shall not apply in the event that EMC (on its own behalf as a Seller
and on behalf of Master Funding) cannot deliver such original or copy of any
document submitted for recording to the appropriate recording office in the
applicable jurisdiction because such document has not been returned by such
office; provided that EMC (on its own behalf as a Seller and on behalf of Master
Funding) shall instead deliver a recording receipt of such recording office
or,
if such receipt is not available, a certificate confirming that such documents
have been accepted for recording, and delivery to the Trustee or the Custodian,
as its agent, shall be effected by EMC (on its own behalf as a Seller and on
behalf of Master Funding) within thirty days of its receipt of the original
recorded document.
(e) At
the
time of any substitution, EMC (on its own behalf as a Seller and on behalf
of
Master Funding) shall deliver or cause to be delivered the Substitute Mortgage
Loan, the related Mortgage File and any other documents and payments required
to
be delivered in connection with a substitution pursuant to the Pooling and
Servicing Agreement. At the time of any purchase or substitution, the Trustee
in
accordance with the terms of the Pooling and Servicing Agreement shall (i)
assign to EMC (on its own behalf as a Seller and on behalf of Master Funding)
and cause the Custodian to release the documents (including, but not limited
to,
the Mortgage, Mortgage Note and other contents of the Mortgage File) in the
possession of the Custodian relating to the Deleted Mortgage Loan and (ii)
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be necessary to vest in EMC (on its own behalf as
a
Seller and on behalf of Master Funding) title to such Deleted Mortgage
Loan.
SECTION
6. Recordation
of Assignments of Mortgage.
(a) EMC
(on
its own behalf as a Seller and on behalf of Master Funding) shall cause each
assignment of the Security Instrument from the Sellers to the Trustee to be
recorded not later than 180 days after the Closing Date, unless (a) such
recordation is not required by the Rating Agencies or an Opinion of Counsel
has
been provided to the Trustee (with a copy to the Custodian) which states that
the recordation of such assignments is not necessary to protect the interests
of
the Certificateholders in the related Mortgage Loans or (b) MERS is identified
on the Mortgage or a properly recorded assignment of the Mortgage, as the
Mortgagee of record solely as nominee for the related Seller and its successors
and assigns; provided,
however,
notwithstanding the foregoing, each assignment shall be submitted for recording
by EMC (on its own behalf as a Seller and on behalf of Master Funding) in the
manner described above, at no expense to the Trust or Trustee, upon the earliest
to occur of (i) reasonable direction by the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the portion
of
the Trust related to such Classes, (ii) the occurrence of an Event of Default,
(iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to
EMC
and (iv) the occurrence of a servicing transfer as described in Section 8.02
of
the Pooling and Servicing Agreement.
While
each such Mortgage or assignment is being recorded, if necessary, EMC (on its
own behalf as a Seller and on behalf of Master Funding) shall leave or cause
to
be left with the Trustee a certified copy of such Mortgage or assignment. All
customary recording fees and reasonable expenses relating to the recordation
of
the assignments of mortgage to the Trustee or the Opinion of Counsel, as the
case may be, shall be borne by EMC.
(b) It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by each Seller to the Purchaser, as contemplated by this Agreement be, and
be
treated as, a sale. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans by such Seller to the
Purchaser to secure a debt or other obligation of that Seller. However, in
the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held by a court to continue to be property of such Seller, then (a) this
Agreement shall also be deemed to be a security agreement within the meaning
of
Articles 8 and 9 of the applicable Uniform Commercial Code; (b) the transfer
of
the Mortgage Loans provided for herein shall be deemed to be a grant by such
Seller to the Purchaser of a security interest in all of such Seller’s right,
title and interest in and to the Mortgage Loans and all amounts payable to
the
holders of the Mortgage Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, to the extent the Purchaser
would otherwise be entitled to own such Mortgage Loans and proceeds pursuant
to
Section 4 hereof, including all amounts, other than investment earnings, from
time to time held or invested in any accounts created pursuant to the Pooling
and Servicing Agreement, whether in the form of cash, instruments, securities
or
other property; (c) the possession by the Purchaser or the Trustee of Mortgage
Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be “possession by the
secured party” for purposes of perfecting the security interest pursuant to
Section 9-313 (or comparable provision) of the applicable Uniform Commercial
Code; and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser for the purpose of perfecting such security interest under applicable
law. Any assignment of the interest of the Purchaser pursuant to any provision
hereof or pursuant to the Pooling and Servicing Agreement shall also be deemed
to be an assignment of any security interest created hereby. EMC (on its own
behalf as a Seller and on behalf of Master Funding) and the Purchaser shall,
to
the extent consistent with this Agreement, take such actions as may be
reasonably necessary to ensure that, if this Agreement were deemed to create
a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law
and
will be maintained as such throughout the term of the Pooling and Servicing
Agreement.
SECTION
7. Representations
and Warranties of EMC Concerning the Mortgage Loans.
EMC
hereby represents and warrants to the Purchaser as of the Closing Date or such
other date as may be specified below with respect to each Mortgage
Loan:
(i) the
information set forth in the Mortgage Loan Schedule attached hereto is true
and
correct in all material;
(ii) immediately
prior to the transfer to the Purchaser, the related Seller was the sole owner
of
beneficial title and holder of each Mortgage and Mortgage Note relating to
the
Mortgage Loans and is conveying the same free and clear of any and all liens,
claims, encumbrances, participation interests, equities, pledges, charges or
security interests of any nature and such Seller has full right and authority
to
sell or assign the same pursuant to this Agreement;
(iii) each
Mortgage Loan at the time it was made complied in all material respects with
all
applicable laws and regulations, including, without limitation, usury, equal
credit opportunity, disclosure and recording laws and all applicable
anti-predatory lending laws; and each Mortgage Loan has been serviced in all
material respects in accordance with all applicable laws and regulations,
including, without limitation, usury, equal credit opportunity, disclosure
and
recording laws and all applicable anti-predatory lending laws and the terms
of
the related Mortgage Note, the Mortgage and other loan documents;
(iv) there
is
no monetary default existing under any Mortgage or the related Mortgage Note
and
there is no material event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a default, breach
or event of acceleration; and neither the related Seller, any of its affiliates
nor any servicer of any related Mortgage Loan has taken any action to waive
any
default, breach or event of acceleration; and no foreclosure action is
threatened or has been commenced with respect to the Mortgage Loan;
(v) the
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, (i) if required by
law
in the jurisdiction where the Mortgaged Property is located, or (ii) to protect
the interests of the Trustee on behalf of the Certificateholders;
(vi) no
selection procedure reasonably believed by the related Seller to be adverse
to
the interests of the Certificateholders was utilized in selecting the Mortgage
Loans;
(vii) each
Mortgage is a valid and enforceable first lien on the property securing the
related Mortgage Note and each Mortgaged Property is owned by the Mortgagor
in
fee simple (except with respect to common areas in the case of condominiums,
PUDs and de minimis
PUDs) or
by leasehold for a term longer than the term of the related Mortgage, subject
only to (i) the lien of current real property taxes and assessments, (ii)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage, such
exceptions being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal obtained in connection with the
origination of the related Mortgage Loan or referred to in the lender’s title
insurance policy delivered to the originator of the related Mortgage Loan and
(iii) other matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended to be provided
by such Mortgage;
(viii) there
is
no mechanics’ lien or claim for work, labor or material affecting the premises
subject to any Mortgage which is or may be a lien prior to, or equal with,
the
lien of such Mortgage except those which are insured against by the title
insurance policy referred to in (xiii) below;
(ix) there
was
no delinquent tax or assessment lien against the property subject to any
Mortgage, except where such lien was being contested in good faith and a stay
had been granted against levying on the property;
(x) there
is
no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal and
interest on such Mortgage Note;
(xi) the
physical property subject to any Mortgage is free of material damage and is
in
good repair and there is no proceeding pending or threatened for the total
or
partial condemnation of any Mortgaged Property;
(xii) the
Mortgaged Property and all improvements thereon comply with all requirements
of
any applicable zoning and subdivision laws and ordinances;
(xiii) a
lender’s title insurance policy (on an ALTA or CLTA form) or binder, or other
assurance of title customary in the relevant jurisdiction therefor in a form
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, was issued on the date that each
Mortgage Loan was created by a title insurance company which, to the best of
the
related Seller’s knowledge, was qualified to do business in the jurisdiction
where the related Mortgaged Property is located, insuring such Seller and its
successors and assigns that the Mortgage is a first priority lien on the related
Mortgaged Property in the original principal amount of the Mortgage Loan. The
related Seller is the sole insured under such lender’s title insurance policy,
and such policy, binder or assurance is valid and remains in full force and
effect, and each such policy, binder or assurance shall contain all applicable
endorsements including a negative amortization endorsement, if
applicable;
(xiv) at
the
time of origination, each Mortgaged Property was the subject of an appraisal
which conformed to the underwriting requirements of the originator of the
Mortgage Loan and, the appraisal is in a form acceptable to ▇▇▇▇▇▇ Mae or
FHLMC.
(xv) the
improvements on each Mortgaged Property securing a Mortgage Loan is insured
(by
an insurer which is acceptable to the related Seller) against loss by fire
and
such hazards as are covered under a standard extended coverage endorsement
in
the locale in which the Mortgaged Property is located, in an amount which is
not
less than the lesser of the maximum insurable value of the improvements securing
such Mortgage Loan or the outstanding principal balance of the Mortgage Loan,
but in no event in an amount less than an amount that is required to prevent
the
Mortgagor from being deemed to be a co-insurer thereunder; if the improvement
on
the Mortgaged Property is a condominium unit, it is included under the coverage
afforded by a blanket policy for the condominium project; if upon origination
of
the related Mortgage Loan, the improvements on the Mortgaged Property were
in an
area identified as a federally designated flood area, a flood insurance policy
is in effect in an amount representing coverage not less than the least of
(i)
the outstanding principal balance of the Mortgage Loan, (ii) the restorable
cost
of improvements located on such Mortgaged Property or (iii) the maximum coverage
available under federal law; and each Mortgage obligates the Mortgagor
thereunder to maintain the insurance referred to above at the Mortgagor’s cost
and expense;
(xvi) each
Mortgage Loan constitutes a “qualified mortgage” under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6),
(7)
and (9) without reliance on the provisions of Treasury Regulation Section
1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other
provision that would allow a Mortgage Loan to be treated as a “qualified
mortgage” notwithstanding its failure to meet the requirements of Section
860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2),
(4), (5), (6), (7) and (9);
(xvii) none
of
the Mortgage Loans are (a) loans subject to 12 CFR Part 226.31, 12 CFR Part
226.32 or 12 CFR Part 226.34 of Regulation Z, the regulation implementing TILA,
which implements the Home Ownership and Equity Protection Act of 1994, as
amended or (b) “high cost home,” “covered” (excluding home loans defined as
“covered home loans” in the New Jersey Home Ownership Security Act of 2002 that
were originated between November 26, 2003 and July 7, 2004), “high risk home” or
“predatory” loans under any applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees);
(xviii) the
information set forth in Schedule A of the Prospectus Supplement with respect
to
the Mortgage Loans is true and correct in all material respects;
(xix) no
Mortgage Loan (a) is a “high cost loan” or “covered loan” as applicable (as such
terms are defined in the then current Standard & Poor’s LEVELS® Glossary,
which is now Version 5.7, Appendix E, attached hereto as Exhibit 6 or (b) was
originated on or after October 1, 2002 and before March 7, 2003, which is
governed by the Georgia Fair Lending Act;
(xx) each
Mortgage Loan was originated in accordance with the underwriting guidelines
of
the related originator;
(xxi) each
original Mortgage has been recorded or is in the process of being recorded
in
accordance with the requirements of Section 2.01 of the Pooling and Servicing
Agreement in the appropriate jurisdictions wherein such recordation is required
to perfect the lien thereof for the benefit of the Trust Fund;
(xxii) the
related Mortgage File contains each of the documents and instruments listed
in
Section 2.01 of the Pooling and Servicing Agreement, subject to any exceptions,
substitutions and qualifications as are set forth in such Section;
(xxiii) the
Mortgage Loans are currently being serviced in accordance with accepted
servicing practices; and
(xxiv) with
respect to each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and will be enforced by the related Seller
and
each prepayment penalty is permitted pursuant to federal, state and local law.
In addition, with respect to each Mortgage Loan (i) no Mortgage Loan will impose
a prepayment penalty for a term in excess of five years from the date such
Mortgage Loan was originated and (ii) such prepayment penalty is at least equal
to the lesser of (A) the maximum amount permitted under applicable law and
(B)
six months interest at the related Mortgage Interest Rate on the amount prepaid
in excess of 20% of the original principal balance of such Mortgage
Loan.
(xxv) if
any of
the Mortgage Loans are secured by a leasehold interest, with respect to each
leasehold interest: the use of leasehold estates for residential properties
is
an accepted practice in the area where the related Mortgaged Property is
located; residential property in such area consisting of leasehold estates
is
readily marketable; the lease is recorded and no party is in any way in breach
of any provision of such lease; the leasehold is in full force and effect and
is
not subject to any prior lien or encumbrance by which the leasehold could be
terminated or subject to any charge or penalty; and the remaining term of the
lease does not terminate less than ten years after the maturity date of such
Mortgage Loan;
(xxvi) each
Mortgage Loan was originated (a) by a savings and loan association, savings
bank, commercial bank, credit union, insurance company or similar institution
that is supervised and examined by a federal or state authority, (b) by a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to
Sections 203 and 211 of the National Housing Act, as amended, or (c) by a
mortgage broker or correspondent lender in a manner such that the related
Mortgage Loan would be regarded for purposes of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended, as having been originated by an
entity described in clauses (a) or (b) above.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 7 will inure to the benefit of the Purchaser, its successors and
assigns, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or assignment of Mortgage or the examination of any Mortgage
File.
Upon any substitution for a Mortgage Loan, the representations and warranties
set forth above shall be deemed to be made by the related Seller as to any
Substitute Mortgage Loan as of the date of substitution.
Upon
discovery or receipt of notice by EMC, the Purchaser or the Trustee of a breach
of any representation or warranty of EMC set forth in this Section 7 which
materially and adversely affects the value of the interests of the Purchaser,
the Certificateholders or the Trustee in any of the Mortgage Loans delivered
to
the Purchaser pursuant to this Agreement, the party discovering or receiving
notice of such breach shall give prompt written notice to the others. In the
case of any such breach of a representation or warranty set forth in this
Section 7, within 90 days from the date of discovery by EMC, or the date EMC
is
notified by the party discovering or receiving notice of such breach (whichever
occurs earlier), EMC will (i) cure such breach in all material respects, (ii)
purchase the affected Mortgage Loan at the applicable Purchase Price or (iii)
if
within two years of the Closing Date, substitute a qualifying Substitute
Mortgage Loan in exchange for such Mortgage Loan; provided that, (A) in the
case
of a breach of the representation and warranty concerning the Mortgage Loan
Schedule contained in clause (i) of this Section 7, if such breach is material
and relates to any field on the Mortgage Loan Schedule which identifies any
Prepayment Charge or (B) in the case of a breach of the representation contained
in clause (x) of this Section 7, then, in each case, in lieu of purchasing
such
Mortgage Loan from the Trust Fund at the Purchase Price, EMC shall pay the
amount of the Prepayment Charge (net of any amount previously collected by
or
paid to the Trust Fund in respect of such Prepayment Charge) from its own funds
and without reimbursement therefor, and EMC shall have no obligation to
repurchase or substitute for such Mortgage Loan. The obligations of EMC to
cure,
purchase or substitute a qualifying Substitute Mortgage Loan shall constitute
the Purchaser’s, the Trustee’s and the Certificateholder’s sole and exclusive
remedy under this Agreement or otherwise respecting a breach of representations
or warranties hereunder with respect to the Mortgage Loans, except for the
obligation of EMC to indemnify the Purchaser for such breach as set forth in
and
limited by Section 14 hereof.
Any
cause
of action against EMC or relating to or arising out of a breach by EMC of any
representations and warranties made in this Section 7 shall accrue as to any
Mortgage Loan upon (i) discovery of such breach by EMC or notice thereof by
the
party discovering such breach and (ii) failure by EMC to cure such breach,
purchase such Mortgage Loan or substitute a qualifying Substitute Mortgage
Loan
pursuant to the terms hereof.
SECTION
8. Representations
and Warranties Concerning EMC.
As of
the date hereof and as of the Closing Date, EMC represents and warrants to
the
Purchaser and Master Funding as to itself in the capacity indicated as
follows:
(a) EMC
(i)
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Delaware and (ii) is qualified and in good standing to
do
business in each jurisdiction where such qualification is necessary, except
where the failure so to qualify would not reasonably be expected to have a
material adverse effect on EMC’s business as presently conducted or on EMC’s
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(b) EMC
has
full power to own its property, to carry on its business as presently conducted
and to enter into and perform its obligations under this Agreement;
(c) the
execution and delivery by EMC of this Agreement have been duly authorized by
all
necessary action on the part of EMC; and neither the execution and delivery
of
this Agreement, nor the consummation of the transactions herein contemplated,
nor compliance with the provisions hereof, will conflict with or result in
a
breach of, or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on EMC or
its
properties or the charter or by-laws of EMC, except those conflicts, breaches
or
defaults which would not reasonably be expected to have a material adverse
effect on EMC’s ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(d) the
execution, delivery and performance by EMC of this Agreement and the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made and, in connection
with the recordation of the Mortgages, powers of attorney or assignments of
Mortgages not yet completed;
(e) this
Agreement has been duly executed and delivered by EMC and, assuming due
authorization, execution and delivery by the Purchaser, constitutes a valid
and
binding obligation of EMC enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally);
(f) there
are
no actions, suits or proceedings pending or, to the knowledge of EMC, threatened
against EMC, before or by any court, administrative agency, arbitrator or
governmental body (i) with respect to any of the transactions contemplated
by
this Agreement or (ii) with respect to any other matter which in the judgment
of
EMC will be determined adversely to EMC and will if determined adversely to
EMC
materially and adversely affect EMC’s ability to perform its obligations under
this Agreement; and EMC is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement;
and
(g) the
Sellers’ Information (as defined in Section 14(a) hereof) does not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made, in light of the circumstances under which
they were made, not misleading.
SECTION
9. Representations
and Warranties Concerning the Purchaser.
As of
the date hereof and as of the Closing Date, the Purchaser represents and
warrants to the Sellers as follows:
(a) the
Purchaser (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and (ii) is qualified and
in
good standing as a foreign corporation to do business in each jurisdiction
where
such qualification is necessary, except where the failure so to qualify would
not reasonably be expected to have a material adverse effect on the Purchaser’s
business as presently conducted or on the Purchaser’s ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(b) the
Purchaser has full corporate power to own its property, to carry on its business
as presently conducted and to enter into and perform its obligations under
this
Agreement;
(c) the
execution and delivery by the Purchaser of this Agreement have been duly
authorized by all necessary corporate action on the part of the Purchaser;
and
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Purchaser or its properties or the articles of
incorporation or by-laws of the Purchaser, except those conflicts, breaches
or
defaults which would not reasonably be expected to have a material adverse
effect on the Purchaser’s ability to enter into this Agreement and to consummate
the transactions contemplated hereby;
(d) the
execution, delivery and performance by the Purchaser of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made;
(e) this
Agreement has been duly executed and delivered by the Purchaser and, assuming
due authorization, execution and delivery by the Sellers, constitutes a valid
and binding obligation of the Purchaser enforceable against it in accordance
with its terms (subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors
generally);
(f) there
are
no actions, suits or proceedings pending or, to the knowledge of the Purchaser,
threatened against the Purchaser, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this Agreement or (ii) with respect to any other matter which
in
the judgment of the Purchaser will be determined adversely to the Purchaser
and
will if determined adversely to the Purchaser materially and adversely affect
the Purchaser’s ability to perform its obligations under this Agreement; and the
Purchaser is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to materially
and
adversely affect the transactions contemplated by this Agreement;
and
(g) the
Purchaser’s Information (as defined in Section 14(b) hereof) does not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading.
SECTION
10. Representations
and Warranties Concerning Master Funding.
As of
the date hereof and as of the Closing Date, Master Funding represents and
warrants to EMC and the Purchaser as follows:
(a) Master
Funding (i) is a limited liability company duly organized, validly existing
and
in good standing under the laws of the State of Delaware and (ii) is qualified
and in good standing to do business in each jurisdiction where such
qualification is necessary, except where the failure so to qualify would not
reasonably be expected to have a material adverse effect on Master Funding’s
business as presently conducted or on Master Funding’s ability to enter into
this Agreement and to consummate the transactions contemplated
hereby;
(b) Master
Funding has full power to own its property, to carry on its business as
presently conducted and to enter into and perform its obligations under this
Agreement;
(c) The
execution and delivery by Master Funding of this Agreement has been duly
authorized by all necessary action on the part of Master Funding; and neither
the execution and delivery of this Agreement, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof
or
thereof, will conflict with or result in a breach of, or constitute a default
under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on Master Funding or its properties or the
written consent of the sole member or limited liability company agreement of
Master Funding, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on Master Funding’s
ability to enter into this Agreement and to consummate the transactions
contemplated hereby;
(d) The
execution, delivery and performance by Master Funding of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with, or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except those consents, approvals, notices, registrations
or
other actions as have already been obtained, given or made and, in connection
with the recordation of the Mortgages, powers of attorney or assignments of
Mortgages not yet completed;
(e) This
Agreement has been duly executed and delivered by Master Funding and, assuming
due authorization, execution and delivery by the Purchaser or the parties
thereto, constitutes a valid and binding obligation of Master Funding
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally); and
(f) There
are
no actions, suits or proceedings pending or, to the knowledge of Master Funding,
threatened against Master Funding, before or by any court, administrative
agency, arbitrator or governmental body (i) with respect to any of the
transactions contemplated by this Agreement or (ii) with respect to any other
matter which in the judgment of Master Funding could reasonably be expected
to
be determined adversely to Master Funding and if determined adversely to Master
Funding materially and adversely affect Master Funding’s ability to perform its
obligations under this Agreement; and Master Funding is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement.
SECTION
11. Conditions
to Closing.
(a) The
obligations of the Purchaser under this Agreement will be subject to the
satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) Each
of
the obligations of each Seller required to be performed at or prior to the
Closing Date pursuant to the terms of this Agreement shall have been duly
performed and complied with in all material respects; all of the representations
and warranties of each Seller under this Agreement shall be true and correct
as
of the date or dates specified in all material respects; and no event shall
have
occurred which, with notice or the passage of time, would constitute a default
under this Agreement, or the Pooling and Servicing Agreement; and the Purchaser
shall have received certificates to that effect signed by authorized officers
of
each of the Sellers.
(ii) The
Purchaser shall have received all of the following closing documents, in such
forms as are agreed upon and reasonably acceptable to the Purchaser, duly
executed by all signatories (other than the Purchaser) as required pursuant
to
the respective terms thereof:
(1) The
Pooling and Servicing Agreement, in form and substance reasonably satisfactory
to the Trustee and the Purchaser, and all documents required thereby duly
executed by all signatories;
(2) A
certificate of an officer of EMC dated as of the Closing Date, in a form
reasonably acceptable to the Purchaser, and attached thereto the resolutions
of
EMC authorizing the transactions contemplated by this Agreement, together with
copies of the charter and by-laws of EMC;
(3) A
certificate of an officer of Master Funding dated as of the Closing Date, in
a
form reasonably acceptable to the Purchaser, and attached thereto the
resolutions of Master Funding authorizing the transactions contemplated by
this
Agreement, together with copies of the written consent of the sole member,
limited liability company agreement and certificate of good standing of Master
Funding;
(4) One
or
more opinions of counsel from the Sellers’ counsel otherwise in form and
substance reasonably satisfactory to the Purchaser, the Trustee and each Rating
Agency;
(5) A
letter
from each of the Rating Agencies giving each Class of Certificates set forth
on
Schedule A the rating set forth on Schedule A; and
(6) Such
other documents, certificates (including additional representations and
warranties) and opinions as may be reasonably necessary to secure the intended
ratings from each Rating Agency for the Certificates.
(iii) The
Certificates to be sold to Bear ▇▇▇▇▇▇▇ pursuant to the Underwriting Agreement
and the Purchase Agreement shall have been issued and sold to Bear
▇▇▇▇▇▇▇.
(iv) Each
Seller shall have furnished to the Purchaser such other certificates of its
officers or others and such other documents and opinions of counsel to evidence
fulfillment of the conditions set forth in this Agreement and the transactions
contemplated hereby as the Purchaser and its counsel may reasonably
request.
(b) The
obligations of each Seller under this Agreement shall be subject to the
satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) The
obligations of the Purchaser required to be performed by it on or prior to
the
Closing Date pursuant to the terms of this Agreement shall have been duly
performed and complied with in all material respects, and all of the
representations and warranties of the Purchaser under this Agreement shall
be
true and correct in all material respects as of the date hereof and as of the
Closing Date, and no event shall have occurred which would constitute a breach
by it of the terms of this Agreement, and each Seller shall have received a
certificate to that effect signed by an authorized officer of the
Purchaser.
(ii) Each
Seller shall have received copies of all of the following closing documents,
in
such forms as are agreed upon and reasonably acceptable to each Seller, duly
executed by all signatories other than the related Seller as required pursuant
to the respective terms thereof:
(1) The
Pooling and Servicing Agreement, in form and substance reasonably satisfactory
to EMC, and all documents required thereby duly executed by all
signatories;
(2) A
certificate of an officer of the Purchaser dated as of the Closing Date, in
a
form reasonably acceptable to each Seller, and attached thereto the resolutions
of the Purchaser authorizing the transactions contemplated by this Agreement
and
the Pooling and Servicing Agreement, together with copies of the Purchaser’s
articles of incorporation, and evidence as to the good standing of the Purchaser
dated as of a recent date;
(3) One
or
more opinions of counsel from the Purchaser’s counsel in form and substance
reasonably satisfactory to each Seller;
(4) Such
other documents, certificates (including additional representations and
warranties) and opinions as may be reasonably necessary to secure the intended
rating from each Rating Agency for the Certificates.
SECTION
12. Fees
and Expenses.
Subject
to Section 17 hereof, EMC (on its own behalf as a Seller and on behalf of Master
Funding) shall pay on the Closing Date or such later date as may be agreed
to by
the Purchaser (i) the fees and expenses of the Sellers’ attorneys and the
reasonable fees and expenses of the Purchaser’s attorneys, (ii) the fees and
expenses of Deloitte & Touche LLP, (iii) the fee for the use of Purchaser’s
Registration Statement based on the aggregate original principal amount of
the
Certificates and the filing fee of the Commission as in effect on the date
on
which the Registration Statement was declared effective, (iv) the fees and
expenses including counsel’s fees and expenses in connection with any “blue sky”
and legal investment matters, (v) the fees and expenses of the Trustee which
shall include without limitation the fees and expenses of the Trustee (and
the
fees and disbursements of its counsel) with respect to (A) legal and document
review of this Agreement, the Pooling and Servicing Agreement, the Certificates
and related agreements, (B) attendance at the Closing and (C) review of the
Mortgage Loans to be performed by the Custodian, (vi) the expenses for printing
or otherwise reproducing the Certificates, the Prospectus and the Prospectus
Supplement, (vii) the fees and expenses of each Rating Agency (both initial
and
ongoing), (viii) the fees and expenses relating to the preparation and
recordation of mortgage assignments (including intervening assignments, if
any
and if available, to evidence a complete chain of title from the originator
to
the Trustee) from each Seller to the Trustee or the expenses relating to the
Opinion of Counsel referred to in Section 6(a) hereof, as the case may be,
and
(ix) Mortgage File due diligence expenses and other out-of-pocket expenses
incurred by the Purchaser in connection with the purchase of the Mortgage Loans
and by Bear ▇▇▇▇▇▇▇ in connection with the sale of the Certificates. EMC (on
its
own behalf as a Seller and on behalf of Master Funding) additionally agrees
to
pay directly to any third party on a timely basis the fees provided for above
which are charged by such third party and which are billed
periodically.
SECTION
13. Accountants’
Letters.
(a) Deloitte
& Touche LLP will review the characteristics of a sample of the Mortgage
Loans described in the Mortgage Loan Schedule and will compare those
characteristics to the description of the Mortgage Loans contained in the
Prospectus Supplement under the captions “Summary of Prospectus Supplement—The
Mortgage Loans”, “The Mortgage Pool” and “Certain Characteristics of the
Mortgage Loans” in Schedule A thereto. EMC (on its own behalf as a Seller and on
behalf of Master Funding) will cooperate with the Purchaser in making available
all information and taking all steps reasonably necessary to permit such
accountants to complete the review and to deliver the letters required of them
under the Underwriting Agreement. Deloitte & Touche LLP will also confirm
certain calculations as set forth under the caption “Yield On The Certificates”
in the Prospectus Supplement.
(b) To
the
extent statistical information with respect to the Master Servicer or any
Servicer’s servicing portfolio is included in the Prospectus Supplement under
the caption “The Master Servicer and the Servicers,” a letter from the certified
public accountant for such Master Servicer, Servicer or Servicers, as
applicable, will be delivered to the Purchaser dated the date of the Prospectus
Supplement, in the form previously agreed to by EMC and the Purchaser, with
respect to such statistical information.
SECTION
14. Indemnification.
(a) EMC
(on
its own behalf as a Seller and on behalf of Master Funding) shall indemnify
and
hold harmless the Purchaser and its directors, officers and controlling persons
(as defined in Section 15 of the Securities Act) from and against any loss,
claim, damage or liability or action in respect thereof, to which they or any
of
them may become subject, under the Securities Act or otherwise, insofar as
such
loss, claim, damage, liability or action arises out of, or is based upon (i)
any
untrue statement of a material fact contained in the Sellers’
Information
as
identified in Exhibit
3,
the
omission to state in the Prospectus Supplement or Prospectus (or any amendment
thereof or supplement thereto approved by EMC (on its own behalf as a Seller
and
on behalf of Master Funding) and in which additional Sellers’ Information is
identified), in reliance upon and in conformity with Sellers’ Information a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made, not misleading,
(ii) any representation or warranty assigned or made by EMC in Section 7 or
Section 8 or by Master Funding in Section 10 hereof being, or alleged to be,
untrue or incorrect, or (iii) any failure by EMC (on its own behalf as a Seller
and on behalf of Master Funding) to perform its obligations under this
Agreement; and EMC (on its own behalf as a Seller and on behalf of Master
Funding) shall reimburse the Purchaser and each other indemnified party for
any
legal and other expenses reasonably incurred by them in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action.
The
foregoing indemnity agreement is in addition to any liability which EMC or
Master Funding otherwise may have to the Purchaser or any other such indemnified
party.
(b) The
Purchaser shall indemnify and hold harmless each Seller and its respective
directors, officers and controlling persons (as defined in Section 15 of the
Securities Act) from and against any loss, claim, damage or liability or action
in respect thereof, to which they or any of them may become subject, under
the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or
action arises out of, or is based upon (i) any untrue statement of a material
fact contained in the Purchaser’s
Information
as
identified in Exhibit
4,
the
omission to state in the Prospectus Supplement or Prospectus (or any amendment
thereof or supplement thereto approved by the Purchaser and in which additional
Purchaser’s Information is identified), in reliance upon and in conformity with
the Purchaser’s Information, a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in which
they were made, not misleading, (ii) any representation or warranty made by
the
Purchaser in Section 9 hereof being, or alleged to be, untrue or incorrect,
or
(iii) any failure by the Purchaser to perform its obligations under this
Agreement; and the Purchaser shall reimburse each Seller, and each other
indemnified party for any legal and other expenses reasonably incurred by them
in connection with investigating or defending or preparing to defend any such
loss, claim, damage, liability or action. The foregoing indemnity agreement
is
in addition to any liability which the Purchaser otherwise may have to the
Sellers, or any other such indemnified party,
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify each party against whom indemnification is to be sought
in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 14 except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
it
may elect by written notice delivered to the indemnified party promptly (but,
in
any event, within 30 days) after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be
at
the expense of such indemnified party or parties unless (i) the employment
of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
or
(iii) such indemnified party or parties shall have reasonably concluded that
there is a conflict of interest between itself or themselves and the
indemnifying party in the conduct of the defense of any claim or that the
interests of the indemnified party or parties are not substantially co-extensive
with those of the indemnifying party (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf of
the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties; provided,
however,
that
the indemnifying party shall be liable only for the fees and expenses of one
counsel in addition to one local counsel in the jurisdiction involved. Anything
in this subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement or any claim or action effected without its
written consent; provided,
however,
that
such consent was not unreasonably withheld.
(d) If
the
indemnification provided for in paragraphs (a) and (b) of this Section 14 shall
for any reason be unavailable to an indemnified party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to in
Section 14, then the indemnifying party shall in lieu of indemnifying the
indemnified party contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
benefits received by the Sellers on the one hand and the Purchaser on the other
from the purchase and sale of the Mortgage Loans, the offering of the
Certificates and the other transactions contemplated hereunder. No person found
liable for a fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who
is
not also found liable for such fraudulent misrepresentation.
(e) The
parties hereto agree that reliance by an indemnified party on any publicly
available information or any information or directions furnished by an
indemnifying party shall not constitute negligence, bad faith or willful
misconduct by such indemnified party.
SECTION
15. Notices.
All
demands, notices and communications hereunder shall be in writing but may be
delivered by facsimile transmission subsequently confirmed in writing. Notices
to EMC shall be directed to EMC Mortgage Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
notices to Master Funding shall be directed to Master Funding LLC, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇) Attention:
▇▇▇▇
▇▇▇▇▇▇▇▇; and notices to the Purchaser shall be directed to Structured Asset
Mortgage Investments II Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(Telecopy: (212-272-7206)), Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; or to any other
address as may hereafter be furnished by one party to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed
to
have been received on the date received at the premises of the addressee (as
evidenced, in the case of registered or certified mail, by the date noted on
the
return receipt) provided that it is received on a business day during normal
business hours and, if received after normal business hours, then it shall
be
deemed to be received on the next business day.
SECTION
16. Transfer
of Mortgage Loans.
The
Purchaser retains the right to assign the Mortgage Loans and any or all of
its
interest under this Agreement to the Trustee without the consent of the Sellers,
and, upon such assignment, the Trustee shall succeed to the applicable rights
and obligations of the Purchaser hereunder; provided,
however,
the
Purchaser shall remain entitled to the benefits set forth in Sections 12, 14
and
18 hereto and as provided in Section 2(a). Notwithstanding the foregoing, the
sole and exclusive right and remedy of the Trustee with respect to a breach
of
representation or warranty of the Sellers shall be the purchase or substitution
obligations of EMC contained in Sections 5 and 7 hereof.
SECTION
17. Termination.
This
Agreement may be terminated (a) by the mutual consent of the parties hereto
prior to the Closing Date, (b) by the Purchaser, if the conditions to the
Purchaser’s obligation to close set forth under Section 11(a) hereof are not
fulfilled as and when required to be fulfilled or (c) by any Seller, if the
conditions to the Sellers’ obligation to close set forth under Section 11(b)
hereof are not fulfilled as and when required to be fulfilled. In the event
of
termination pursuant to clause (b), EMC (on its own behalf as a Seller and
on
behalf of Master Funding) shall pay, and in the event of termination pursuant
to
clause (c), the Purchaser shall pay, all reasonable out-of-pocket expenses
incurred by the other in connection with the transactions contemplated by this
Agreement. In the event of a termination pursuant to clause (a), each party
shall be responsible for its own expenses.
SECTION
18. Representations,
Warranties and Agreements to Survive Delivery.
All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Sellers submitted pursuant hereto,
shall remain operative and in full force and effect and shall survive delivery
of the Mortgage Loans to the Purchaser (and by the Purchaser to the Trustee).
Subsequent to the delivery of the Mortgage Loans to the Purchaser, EMC’s
representations and warranties contained herein with respect to the Mortgage
Loans shall be deemed to relate to the Mortgage Loans actually delivered to
the
Purchaser and included in the Mortgage Loan Schedule and any Substitute Mortgage
Loan.
SECTION
19. Severability.
If any
provision of this Agreement shall be prohibited or invalid under applicable
law,
the Agreement shall be ineffective only to such extent, without invalidating
the
remainder of this Agreement.
SECTION
20. Counterparts.
This
Agreement may be executed in counterparts, each of which will be an original,
but which together shall constitute one and the same agreement.
SECTION
21. Amendment.
This
Agreement cannot be amended or modified in any manner without the prior written
consent of each party.
SECTION
22. GOVERNING
LAW.
THIS
AGREEMENT shall be governed by, and construed in accordance with, the laws
of
the State of New York, without regard to conflict of laws principles thereof
other than Section 5-1401 of the New York General Obligations Law.
SECTION
23. Further
Assurances.
Each of
the parties agrees to execute and deliver such instruments and take such actions
as another party may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement including
any amendments hereto which may be required by either Rating
Agency.
SECTION
24. Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by each
of
the Sellers and the Purchaser and their permitted successors and assigns and,
to
the extent specified in Section 14 hereof, Bear ▇▇▇▇▇▇▇, and their directors,
officers and controlling persons (within the meaning of federal securities
laws). The Sellers acknowledge and agree that the Purchaser may assign its
rights under this Agreement (including, without limitation, with respect to
EMC’s representations and warranties respecting the Mortgage Loans) to the
Trustee. Any person into which any Seller may be merged or consolidated (or
any
person resulting from any merger or consolidation involving such Seller), any
person resulting from a change in form of such Seller or any person succeeding
to the business of such Seller, shall be considered the “successor” of such
Seller hereunder and shall be considered a party hereto without the execution
or
filing of any paper or any further act or consent on the part of any party
hereto. Except as provided in the two preceding sentences, this Agreement cannot
be assigned, pledged or hypothecated by either party hereto without the written
consent of the other parties to this Agreement and any such assignment or
purported assignment shall be deemed null and void.
SECTION
25. The
Sellers.
EMC
will
keep in full force and effect its existence, all rights and franchises as a
corporation under the laws of the State of its incorporation and will obtain
and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is necessary to perform its obligations
under this Agreement. Master Funding will keep in full force and effect its
existence, all rights and franchises as a limited liability company under the
laws of the State of its formation and will obtain and preserve its
qualification to do business as a foreign limited liability company in each
jurisdiction in which such qualification is necessary to perform its obligations
under this Agreement.
SECTION
26. Entire
Agreement.
This
Agreement contains the entire agreement and understanding between the parties
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof.
SECTION
27. No
Partnership.
Nothing herein contained shall be deemed or construed to create a partnership
or
joint venture between the parties hereto.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
2 Please
contact Bear, ▇▇▇▇▇▇▇ & Co. Inc. for Purchase
Price.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective duly authorized officers as of the date first above
written.
|
EMC
MORTGAGE CORPORATION
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
MASTER
FUNDING LLC
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
|
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|
By:
|
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|
Name:
|
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|
Title:
|
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EXHIBIT
1
CONTENTS
OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser or
its
designee, and which shall be delivered to the Purchaser or its designee pursuant
to the terms of the Agreement.
(i)
The
original Mortgage Note, endorsed without recourse (a) to the order of the
Trustee or (b) in the case of a Mortgage Loan registered on the MERS system,
endorsed in blank, in either case showing an unbroken chain of endorsements
from
the originator thereof to the Person endorsing it to the Trustee, or lost note
affidavit together with a copy of the related Mortgage Note;
(ii) The
original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the
presence of the MIN and language indicating that such Mortgage Loan is a MOM
Loan, which shall have been recorded (or, for Mortgage Loans other than the
EMC
Flow Loans, if the original is not available, a copy), with evidence of such
recording indicated thereon (or if the original is not available, a copy),
with
evidence of such recording indicated thereon (or if the original Security
Instrument, assignments to the Trustee or intervening assignments thereof which
have been delivered, are being delivered or will, upon receipt of recording
information relating to the Security Instrument required to be included thereon,
be delivered to recording offices for recording and have not been returned
to
the related Seller in time to permit their recording as specified in Section
2.01(b) of the Pooling and Servicing Agreement, shall be in recordable
form);
(iii) unless
the Mortgage Loan is a MOM Loan or has been assigned in the name of MERS, a
certified copy of the assignment (which may be in the form of a blanket
assignment if permitted in the jurisdiction in which the Mortgaged Property
is
located) to “U.S. Bank National Association, as Trustee”, with evidence of
recording with respect to each Mortgage Loan in the name of the Trustee thereon
(or if (A) the original Security Instrument, assignments to the Trustee or
intervening assignments thereof which have been delivered, are being delivered
or will, upon receipt of recording information relating to the Security
Instrument required to be included thereon, be delivered to recording offices
for recording and have not been returned to the related Seller in time to permit
their delivery as specified in Section 2.01(b) of the Pooling and Servicing
Agreement, the related Seller may deliver a true copy thereof with a
certification, on the face of such copy, substantially as follows: “Certified to
be a true and correct copy of the original” or (B) the related Mortgaged
Property is located in a state other than Maryland or an Opinion of Counsel
has
been provided as set forth in Section 2.01(b) of the Pooling and Servicing
Agreement, shall be in recordable form);
(iv) all
intervening assignments of the Security Instrument, if applicable and only
to
the extent available to the Sellers with evidence of recording
thereon;
(v) the
original or a copy of the policy or certificate of primary mortgage guaranty
insurance, to the extent available, if any;
(vi) the
original policy of title insurance or mortgagee’s certificate of title insurance
or commitment or binder for title insurance or, in the event such original
title
policy has not been received from the title insurer, such original title policy
will be delivered within one year of the Closing Date or, in the event such
original title policy is unavailable, a photocopy of such title policy or,
in
lieu thereof, a current lien search on the related Mortgaged Property;
and
(vii) originals
of all modification agreements, if applicable and available.
EXHIBIT
2
MORTGAGE
LOAN SCHEDULE INFORMATION
The
Mortgage Loan Schedule shall set forth the following information with respect
to
each Mortgage Loan:
|
(a)
|
the
city, state and zip code of the Mortgaged Property;
|
|
(b)
|
the
property type;
|
|
(c)
|
the
Mortgage Rate;
|
|
(d)
|
the
Servicing Fee Rate;
|
|
(e)
|
the
Master Servicer’s Fee Rate, if applicable;
|
|
(f)
|
the
LPMI Fee, if applicable;
|
|
(g)
|
the
Trustee Fee Rate, if applicable;
|
|
(h)
|
the
Net Rate;
|
|
(i)
|
the
maturity date;
|
|
(j)
|
the
stated original term to maturity;
|
|
(k)
|
the
stated remaining term to maturity;
|
|
(l)
|
the
original principal balance;
|
|
(m)
|
the
first payment date;
|
|
(n)
|
the
principal and interest payment in effect as of the Cut-off
Date;
|
|
(o)
|
the
unpaid principal balance as of the Cut-off Date;
|
|
(p)
|
the
Loan-to-Value Ratio at origination;
|
|
(q)
|
the
insurer of any Primary Mortgage Insurance Policy;
|
|
(r)
|
the
MIN with respect to each MOM Loan;
|
|
(s)
|
the
Gross Margin, if applicable;
|
|
(t)
|
the
next Adjustment Date, if applicable;
|
|
(u)
|
the
Maximum Lifetime Mortgage Rate, if applicable;
|
|
(v)
|
the
Minimum Lifetime Mortgage Rate, if applicable;
|
|
(w)
|
the
Periodic Rate Cap, if applicable;
|
|
(x)
|
the
Loan Group, if applicable;
|
|
(y)
|
a
code indicating whether the Mortgage Loan is negatively
amortizing;
|
|
(z)
|
which
Mortgage Loans adjust after an initial fixed rate period of one,
two,
three, five, seven or ten years or any other period;
|
|
(aa)
|
the
Prepayment Charge, if any;
|
|
(bb)
|
lien
position (e.g., first lien or second lien);
|
|
(cc)
|
a
code indicating whether the Mortgage Loan is has a balloon
payment;
|
|
(dd)
|
a
code indicating whether the Mortgage Loan is an interest-only loan;
|
|
(ee)
|
the
interest-only term, if applicable;
|
|
(ff)
|
the
Mortgage Loan Seller; and
|
|
(gg)
|
the
original amortization term.
|
Such
schedule also shall set forth for all of the Mortgage Loans, the total number
of
Mortgage Loans, the total of each of the amounts described under (n) and (o)
above, the weighted average by principal balance as of the Cut-off Date of
each
of the rates described under (c) through (h) above, and the weighted average
remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
EXHIBIT
3
SELLERS’
INFORMATION
All
information in the Prospectus Supplement described under the following Sections:
“SUMMARY OF PROSPECTUS SUPPLEMENT—The Mortgage Loans,” “THE MORTGAGE POOL”, “THE
SPONSOR" and “SCHEDULE A—CERTAIN CHARACTERISTICS OF THE MORTGAGE
LOANS.”
EXHIBIT
4
PURCHASER’S
INFORMATION
All
information in the Prospectus Supplement and the Prospectus, except the Sellers’
Information.
EXHIBIT
5
SCHEDULE
OF LOST NOTES
Available
Upon Request
EXHIBIT
6
REVISED
October 20, ▇▇▇▇
▇▇▇▇▇▇▇▇
▇ - STANDARD & POOR’S PREDATORY LENDING CATEGORIES
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set
forth in
those laws. Note that certain loans classified by the relevant statute as
Covered are included in Standard & Poor’s High Cost Loan Category because
they included thresholds and tests that are typical of what is generally
considered High Cost by the industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code ▇▇▇. §§ ▇▇-▇▇-▇▇▇ et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. ▇▇▇. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
et seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. ▇▇▇. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Indiana
|
Indiana
Home Loan Practices Act, Ind. Code ▇▇▇. §§ 24-9-1-1 et seq.
Effective
January 1, 2005; amended by 2005 HB 1179, effective July 1, 2005.
|
High
Cost Home Loans
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. ▇▇▇. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id. § 16a-3-207) and;
High
APR Consumer Loan (id.
§16a-3-308a)
|
|
Kentucky
|
2003
KY H.B. ▇▇▇ - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇. Rev. Stat. §§ 360.100
et seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq.
and 209 C.M.R. §§ 40.01 et seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
▇▇▇▇ No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code ▇▇▇.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
Rhode
Island
|
Rhode
Island Home Loan Protection Act, R.I. Gen. Laws §§ 34-25.2-1 et seq.
Effective
December 31, 2006.
|
High
Cost Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
Tennessee
|
Tennessee
Home Loan Protection Act, Tenn. Code ▇▇▇. §§ ▇▇-▇▇-▇▇▇ et seq.
Effective
January 1, 2007.
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
▇▇▇. §§ 31-17-1 et seq.
Effective
June 5, ▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇▇▇▇ Mortgage Loan Act
Loan
|
|
Standard
& Poor’s Covered Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending
Law/Effective
Date
|
Category
under
Applicable
Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code ▇▇▇. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code ▇▇▇.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
Revised
10/20/06
SCHEDULE
A
REQUIRED
RATINGS FOR EACH CLASS OF CERTIFICATES
Public
Certificates
|
Class
|
S&P
|
Fitch
|
||
|
Class
A-1
|
AAA
|
Aaa
|
||
|
Class
A-2
|
AAA
|
Aaa
|
||
|
Class
A-3
|
AAA
|
Aaa
|
||
|
Class
B-1
|
AA
|
AA
|
||
|
Class
B-2
|
A
|
A
|
||
|
Class
B-3
|
BBB
|
BBB
|
||
|
Class
X
|
AAA
|
Aaa
|
||
|
Class
PO
|
AAA
|
Aaa
|
||
|
Class
R
|
AAA
|
Aaa
|
None
of the above
ratings have been lowered since the respective dates of such
letters.
Private
Certificates
|
Class
|
S&P
|
Fitch
|
||
|
Class
▇-▇
|
▇▇
|
▇▇
|
||
|
▇▇▇▇▇
▇-▇
|
▇
|
▇
|
||
|
Class
B-6
|
--
|
--
|
None
of the above
ratings have been lowered since the respective dates of such
letters.
SCHEDULE
B
MORTGAGE
LOAN SCHEDULE
[Provided
upon request]
EXHIBIT
I-1
EMC
SERVICING AGREEMENT
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
Owner
and
EMC
MORTGAGE CORPORATION
Servicer
SERVICING
AGREEMENT
Dated
as
of April 1, 2007
Mortgage
Pass-Through Certificates
Series
2007-2
EXHIBITS
|
Exhibit
A
|
Mortgage
Loan Schedule
|
|
Exhibit
B
|
Custodial
Account Letter Agreement
|
|
Exhibit
C
|
Escrow
Account Letter Agreement
|
|
Exhibit
D
|
Form
of Request for Release
|
|
Exhibit
E
|
Remittance
Overview Report
|
|
Exhibit
F
|
Remittance
Summary Report
|
|
Exhibit
G
|
Form
of Owner Certification
|
|
Exhibit
H
|
Summary
of Regulation AB Servicing Criteria
|
|
Exhibit
I
|
Summary
of Applicable Regulation AB Requirements
|
|
Exhibit
J
|
Servicing
Criteria to be Addressed in Assessment of Compliance
|
|
Exhibit
K
|
Default
Overview Report
|
|
Exhibit
L
|
Delinquent
Summary Report
|
|
Exhibit
M
|
Calculation
of Gain-Loss Delinquent Loans
|
|
Exhibit
N
|
Modified
Loans Report
|
|
Exhibit
O
|
Claims
Submitted Report
|
|
Exhibit
P
|
Loss
Severity Summary Report
|
THIS
IS A
SERVICING AGREEMENT, dated as of April 1, 2007, and is executed between
Structured Asset Mortgage Investments II Inc. (the "Owner") and EMC Mortgage
Corporation (the "Servicer").
W
I T N E
S S E T H :
WHEREAS,
the Owner is the owner of the Mortgage Loans;
WHEREAS,
the Owner and the Servicer wish to prescribe the permanent management, servicing
and control of the Mortgage Loans;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Owner and the Servicer agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices:
The
procedures, including prudent collection and loan administration procedures,
and
the standard of care (i) employed by prudent mortgage servicers which service
mortgage loans of the same type as the Mortgage Loans in the jurisdictions
in
which the related Mortgage Properties are located or (ii) in accordance
with the
▇▇▇▇▇▇ ▇▇▇ Guide or ▇▇▇▇▇▇▇ Mac Guide, subject to any variances negotiated
with
▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac and
subject to the express provisions of this Agreement. Such standard of care
shall
not be lower than that the Servicer customarily employs and exercises in
servicing and administering similar mortgage loans for its own account
and shall
be in full compliance with all federal, state, and local laws, ordinances,
rules
and regulations.
Adjustment
Date:
As to
each ARM Loan, the date on which the Mortgage Interest Rate is adjusted
in
accordance with the terms of the related Mortgage Note.
Agreement:
This
Servicing Agreement including all exhibits hereto, amendments hereof and
supplements hereto.
ARM
Loans:
First
lien, conventional, 1-4 family residential Mortgage Loans with interest
rates
which adjust from time to time in accordance with the related Index and
are
subject to Periodic Rate Caps and Lifetime Rate Caps and which may permit
conversion to fixed interest rates.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a legal holiday in the States
of
Maryland, Minnesota, New York or the jurisdiction in which the Servicer
conducts
its servicing activities, or (iii) a day on which banks in the States of
Maryland, Minnesota, New York or the jurisdiction in which the Servicer
conducts
its servicing activities are authorized or obligated by law or executive
order
to be closed.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time,
or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission
or SEC:
The
Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor
in
accordance with the terms of the related Mortgage Loan Documents.
Custodial
Account:
One or
more demand account or accounts created and maintained pursuant to Section
4.04
which shall be entitled "PRIME 2007-2 Custodial Account in trust for ▇▇▇▇
▇▇,
Owner of Whole Loan Mortgages and various Mortgagors" established at a
Qualified
Depository, each of which accounts shall be held by such Qualified Depository
in
a fiduciary capacity, separate and apart from its funds and general
assets.
Custodian:
U.S.
Bank National Association, or such other custodian as Owner shall designate.
Cut-off
Date:
With
respect to any Mortgage Loan, the opening of business on the first day
of the
month in which the related closing date with respect to such Mortgage Loan
occurs.
Delinquent:
As
defined in the related pooling and servicing agreement.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Pass-Through Transfer.
Determination
Date:
The
15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the Remittance
Date.
Due
Date:
Each
day on which payments of principal and interest are required to be paid
in
accordance with the terms of the related Mortgage Note, exclusive of any
days of
grace.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day
of the
month preceding the month of such Remittance Date and ending on the first
day of
the month of the Remittance Date.
Escrow
Account:
The
separate trust account or accounts created and maintained pursuant to Section
4.06 which shall be entitled "PRIME 2007-2 Escrow Account, in trust for
▇▇▇▇ ▇▇,
Owner of Whole Loan Mortgages and various Mortgagors" and shall be established
at a Qualified Depository, each of which accounts shall in no event contain
funds in excess of the FDIC insurance limits.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and
any other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 9.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇
Mae:
▇▇▇▇▇▇
▇▇▇, or any successor thereto.
▇▇▇▇▇▇
Mae Guide:
The
▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae Servicing Guide and all amendments
or additions thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer pursuant to Section
4.12.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as
amended
from time to time.
▇▇▇▇▇▇▇
Mac:
▇▇▇▇▇▇▇
Mac, or any successor thereto.
▇▇▇▇▇▇▇
Mac Guide:
The
▇▇▇▇▇▇▇ Mac Selling Guide and the ▇▇▇▇▇▇▇ Mac Servicing Guide and all amendments
or additions thereto.
Full
Principal Prepayment:
A
Principal Prepayment made by a Mortgagor of the entire principal balance
of a
Mortgage Loan.
GAAP:
Generally accepted accounting procedures, consistently applied.
HUD:
The
United States Department of Housing and Urban Development or any
successor.
Index:
With
respect to each ARM Loan, on the related Adjustment Date, the index used
to
determine the Mortgage Interest Rate on each such ARM Loan.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring
the
Mortgage Loan or the related Mortgaged Property.
Lifetime
Rate Cap:
With
respect to each ARM Loan, the maximum Mortgage Interest Rate over the term
of
such Mortgage Loan, as specified in the related Mortgage Note.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds and Condemnation Proceeds, received
in
connection with the liquidation of a defaulted Mortgage Loan, whether through
the sale or assignment of such Mortgage Loan, trustee's sale, foreclosure
sale
or otherwise, and any other amounts received with respect to an REO Property
pursuant to Section 4.13.
Margin:
With
respect to each ARM Loan, the fixed percentage amount set forth in each
related
Mortgage Note which is added to the Index in order to determine the related
Mortgage Interest Rate.
Master
Servicer:
EMC
Mortgage Corporation, its successors in interest and assigns, or any successor
thereto designated by the Owner.
Monthly
Advance:
The
aggregate of the advances made by the Servicer on any Remittance Date pursuant
to Section 5.03.
Monthly
Payment:
With
respect to each Mortgage Loan, the scheduled monthly payment of principal
and
interest thereon which is payable by the related Mortgagor under the related
Mortgage Note.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first lien on an unsubordinated estate in fee simple in real
property
securing the Mortgage Note.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan in accordance
with
the provisions of the related Mortgage Note, and in the case of an ARM
Loan, as
adjusted from time to time on each Adjustment Date for such Mortgage Loan
to
equal the Index for such Mortgage Loan plus the Margin for such Mortgage
Loan,
and subject to the limitations on such interest rate imposed by the Periodic
Rate Cap and the Lifetime Rate Cap.
Mortgage
Loan:
An
individual Mortgage Loan described herein and as further identified on
the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the
Mortgage Loan Documents, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds, and all other rights, benefits, proceeds and obligations arising
from
or in connection with such Mortgage Loan.
Mortgage
Loan Documents:
The
original mortgage loan legal documents held by the Custodian.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to
the
Owner, which shall be equal to the related Mortgage Interest Rate minus
the
Servicing Fee Rate.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans attached hereto as Exhibit
A,
such
schedule being acceptable to the Owner and the Servicer.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
underlying real property securing repayment of a Mortgage Note.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Liquidation Proceeds:
As to
any Mortgage Loan, Liquidation Proceeds net of unreimbursed Servicing Advances,
Servicing Fees and Monthly Advances and expenses incurred by the Servicer
in
connection with the liquidation of the Mortgage Loan and the related Mortgaged
Property.
Nonrecoverable
Advance:
Any
advance previously made by the Servicer pursuant to Section 5.03 or any
Servicing Advance proposed to be made by the Servicer in respect of a Mortgage
Loan or REO Property which, in the good faith judgment of the Servicer,
may not
be ultimately recoverable by the Servicer from Liquidation Proceeds or
Insurance
Proceeds on such Mortgage Loan or REO Property as provided herein. The
determination by the Servicer that it has made a Nonrecoverable Advance,
or that
a proposed advance may constitute a Nonrecoverable Advance, shall be evidenced
by an Officer's Certificate of the Servicer delivered to the Owner and
detailing
the reasons for such determination.
Officer's
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President, a Senior Vice President or a Vice President or by the Treasurer
or the Secretary or one of the Assistant Treasurers or Assistant Secretaries
of
the Servicer, and delivered to the Owner as required by this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf
of
whom the opinion is being given, reasonably acceptable to the
Owner.
Owner:
Structured Asset Mortgage Investments II Inc., its successors in interest
and
assigns (including the Trustee in connection with a Pass-Through
Transfer).
Partial
Principal Prepayment:
A
Principal Prepayment by a Mortgagor of a partial principal balance of a
Mortgage
Loan.
Pass-Through
Transfer:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Periodic
Rate Cap:
With
respect to each ARM Loan, the maximum increase or decrease in the Mortgage
Interest Rate on any Adjustment Date.
Permitted
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations the timely payment of which are fully guaranteed
by the United States of America or any agency or instrumentality of the
United
States of America the obligations of which are backed by the full faith
and
credit of the United States of America;
(ii) (a)
demand or time deposits, federal funds or bankers' acceptances issued by
any
depository institu-tion or trust company incorporated under the laws of
the
United States of America or any state thereof (including any Trustee or
the
Master Servicer) and subject to supervision and examination by federal
and/or
state banking authorities, provided that the commercial paper and/or the
short-term deposit rating and/or the long-term unsecured debt obligations
or
deposits of such depository institution or trust company at the time of
such
investment or contractual commitment providing for such investment are
rated in
one of the two highest rating categories by each Rating Agency and (b)
any other
demand or time deposit or certificate of deposit that is fully insured
by the
Federal Deposit Insurance Cor-poration;
(iii) repurchase
obligations with respect to (a) any security described in clause (i) above
or
(b) any other security issued or guaranteed by an agency or instrumen-tality
of
the United States of America, the obligations of which are backed by the
full
faith and credit of the United States of America, in either case entered
into
with a depository institution or trust company (acting as principal) described
in clause (ii)(a) above;
(iv) securities
bearing interest or sold at a discount issued by any corporation (including
any
Trustee or the Master Servicer) incorporated under the laws of the United
States
of America or any state thereof that are rated in one of the two highest
rating
categories by each Rating Agency at the time of such in-vestment or contractual
commitment providing for such investment; provided,
however,
that
securities issued by any particular corporation will not be Permitted
Investments to the extent that investments therein will cause the then
outstanding principal amount of secur-ities issued by such corporation
and held
as Permitted Investments to exceed 10% of the aggregate outstand-ing principal
balances and amounts of all the Permitted Investments;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obliga-tions payable on demand or on a specified date
not more
than one year after the date of issuance there-of) which are rated in one
of the
two highest rating categories by each Rating Agency at the time of such
investment;
(vi) any
other
demand, money market or time deposit, obligation, security or investment
as may
be acceptable to each Rating Agency; and
(vii) any
money
market funds the collateral of which consists of obligations fully guaranteed
by
the United States of America or any agency or instru-ment-al-ity of the
United
States of America the obligations of which are backed by the full faith
and
credit of the United States of America (which may include repurchase obligations
secured by collateral described in clause (i)) and other securities (including
money market or common trust funds for which any Trustee or the Master
Servicer
or any affiliate thereof acts as a manager or an advisor) and which money
market
funds are rated in one of the two highest rating categories by each Rating
Agency;
provided,
however,
that no
instrument or security shall be a Permitted Investment if such instrument
or
security evidences a right to receive only interest payments with respect
to the
ob-li-ga-tions underlying such instrument or if such security provides
for
payment of both principal and interest with a yield to matur-ity in excess
of
120% of the yield to maturity at par.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
Prepayment
Charge:
Any
prepayment premium, penalty or charge payable by a Mortgagor in connection
with
any Principal Prepayment on a Mortgage Loan pursuant to the terms of the
related
Mortgage Note.
Prepayment
Interest Excess:
With
respect to any Remittance Date, for each Mortgage Loan that was the subject
of a
Principal Prepayment in full or in part during the portion of the related
Prepayment Period occurring between the first day of the calendar month
in which
such Remittance Date occurs and the Determination Date of the calendar
month in
which such Remittance Date occurs, an amount equal to interest (to the
extent
received) at the applicable Mortgage Loan Remittance Rate on the amount
of such
Principal Prepayment for the number of days commencing on the first day
of the
calendar month in which such Remittance Date occurs and ending on the last
date
through which interest is collected from the related Mortgagor.
Prepayment
Interest Shortfall:
With
respect to any Remittance Date, for each such Mortgage Loan that was the
subject
of a Principal Prepayment during the portion of the related Prepayment
Period
occurring between the first day of the related Prepayment Period and the
last
day of the calendar month preceding the month in which such Remittance
Date
occurs, an amount equal to interest (to be paid by the Servicer out of
its own
funds without reimbursement therefor) at the applicable Mortgage Loan Remittance
Rate on the amount of such Principal Prepayment for the number of days
commencing on the date on which the prepayment is applied and ending on
the last
day of the calendar month preceding such Remittance Date.
Prepayment
Period:
As to
any Remittance Date, (a) in the case of Full Principal Prepayments, the
period
commencing on the 16th
day of
the month prior to the month in which the related Remittance
Date
occurs and ending on the 15th
day of
the month in which such Remittance Date occurs, and (b) in the case of
Partial
Principal Prepayments or other recoveries, the preceding calendar
month.
Primary
Mortgage Insurance Policy:
Each
primary policy of mortgage insurance, or any replacement policy therefor
obtained by the Servicer pursuant to Section 4.08.
Prime
Rate:
The
prime rate of U.S. money center banks as published from time to time in
The
Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan full or partial
which
is received in advance of its scheduled Due Date, including any Prepayment
Charge and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment. Partial Principal Prepayments shall be applied
in
accordance with the terms of the related Mortgage Note.
Qualified
Appraiser:
An
appraiser, duly appointed by the Servicer, who had no interest, direct
or
indirect in the Mortgaged Property or in any loan made on the security
thereof,
and whose compensation is not affected by the approval or disapproval of
the
Mortgage Loan, which appraiser and the appraisal made by such appraiser
both
satisfy the requirements of Title XI of FIRREA and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated.
Qualified
Depository:
(a) The
Custodian, (b) a depository, the accounts of which are insured by the FDIC
and
the short term debt ratings and the long term deposit ratings of which
are rated
in one of the two highest rating categories by either of ▇▇▇▇▇’▇ Investors
Service, Inc. or Fitch, Inc., or (c) a depository, the short-term debt
obligations, or other short-term deposits of which are rated at least ‘A-2’ and
the long-term unsecured debt obligations of which are rated at least ‘AA-’ by
Standard & Poor's Ratings Service, a division of The McGraw Hill Companies
Inc.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, approved as an insurer by ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac.
Rating
Agency:
Standard & Poor's Ratings Service, a division of The McGraw Hill Companies
Inc., and ▇▇▇▇▇'▇ Investors Service, Inc.
Reconstitution
Agreement:
Any
agreement involving any Pass-Through Transfer or Whole Loan
Transfer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as amended from time to time, and subject to such
clarification and interpretation as have been provided by the Commission
in the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission,
or
as may be provided by the Commission or its staff from time to
time.
REMIC:
A "real
estate mortgage
investment conduit" within the meaning of Section 860D of the Code.
REMIC
Provisions:
The
provisions of the Federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of the Code, and related provisions, and regulations,
rulings or pronouncements promulgated thereunder, as the foregoing may
be in
effect from time to time.
Remittance
Date:
The
Remittance Date shall be the 18th day of any month, or if such 18th day
is not a
Business Day, the first Business Day immediately preceding such 18th
day.
REO
Disposition:
The
final sale by the Servicer of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Servicer in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Owner as described
in Section 4.13.
▇▇▇▇
▇▇:
Structured Asset Mortgage Investments II Inc.
Sarbanes
Certification:
A
certification required pursuant to The
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations or amendments thereof
by
the Commission’s staff).
Securities
Act:
The
Securities Act of 1933, as amended.
Servicer:
EMC
Mortgage Corporation, or any of its successors in interest or any successor
under this Agreement appointed as herein provided.
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses
(including reasonable attorneys' fees and disbursements) incurred in the
performance by the Servicer of its servicing obligations relating to each
Mortgage Loan, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement,
administrative or judicial proceedings, or any legal work or advice specifically
related to servicing the Mortgage Loans, including but not limited to,
foreclosures, bankruptcies, condemnations, drug seizures, elections,
foreclosures by subordinate or superior lienholders, and other legal actions
incidental to the servicing of the Mortgage Loans (provided that such expenses
are reasonable and that the Servicer specifies the Mortgage Loan(s) to
which
such expenses relate), (c) the management and liquidation of the Mortgaged
Property if the Mortgaged Property is acquired in full or partial satisfaction
of the Mortgage, (d) taxes, assessments, water rates, sewer rates and other
charges which are or may become a lien upon the Mortgaged Property, and
Primary
Mortgage Insurance Policy premiums and fire and hazard insurance coverage
and
(e) compliance with the obligations under Section 4.08.
Servicing
Criteria:
As of
any date of determination, the “servicing criteria” set forth in Item 1122(d) of
Regulation AB, or any amendments thereto, a summary of the requirements
of which
as of the date hereof is attached hereto as Exhibit H for convenience of
reference only. In the event of a conflict or inconsistency between the
terms of
Exhibit H and the text of Item 1122(d) of Regulation AB, the text of Item
1122(d) of Regulation AB shall control (or those Servicing Criteria otherwise
mutually agreed to by the Owner, the Servicer and any Person that will
be
responsible for signing any Sarbanes Certification with respect to a
Pass-Through Transfer in response to evolving interpretations of Regulation
AB
and incorporated into a revised Exhibit H).
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual servicing fee the
Owner
shall pay to the Servicer, which shall, for a period of one full month,
be equal
to one--twelfth of the product of (a) the applicable Servicing Fee Rate
and (b)
the outstanding principal balance of the Mortgage Loan. Such fee shall
be
payable monthly, computed on the basis of the same principal amount and
period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Owner to pay the Servicing Fee is limited to, and
the
Servicing Fee is payable from the interest portion of such Monthly Payment
collected by the Servicer or as otherwise provided under Section
4.05.
Servicing
Fee Rate:
The
Servicing Fee Rate shall be a rate per annum equal to 0.25%.
Servicing
File:
The
documents, records and other items pertaining to a particular Mortgage
Loan and
any additional documents relating to such Mortgage Loan as are in, or as
may
from time to time come into, the Servicer's possession.
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Servicer to the Owner upon request, as such list
may
from time to time be amended.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the principal balance
of
such Mortgage Loan after giving effect to payments of principal due and
received
or for which a Monthly Advance has been made, minus (ii) all amounts previously
distributed to the Owner with respect to the Mortgage Loan representing
Principal Prepayments.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Trustee:
The
Person appointed as trustee in connection with any Pass-Through
Transfer.
Whole
Loan Transfer:
The
sale or transfer of some or all of the ownership interest in the Mortgage
Loans
by the Owner to one or more third parties in whole loan or participation
format,
which third party may be ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac.
ARTICLE
II
SERVICING
OF MORTGAGE LOANS; POSSESSION OF SERVICING FILES; BOOKS AND RECORDS; DELIVERY
OF
MORTGAGE LOAN DOCUMENTS
Section
2.01. Servicing
of Mortgage Loans.
The
Servicer does hereby agree to service the Mortgage Loans in accordance
with the
terms of this Agreement. The rights of the Owner to receive payments with
respect to the Mortgage Loans shall be as set forth in this
Agreement.
Section
2.02. Maintenance
of Servicing Files.
The
Servicer shall maintain a Servicing File consisting of all documents necessary
to service the Mortgage Loans. The possession of each Servicing File by
the
Servicer is for the sole purpose of servicing the Mortgage Loan, and such
retention and possession by the Servicer is in a custodial capacity only.
The
Servicer acknowledges that the ownership of each Mortgage Loan, including
the
Note, the Mortgage, all other Mortgage Loan Documents and all rights, benefits,
proceeds and obligations arising therefrom or in connection therewith,
has been
vested in the Owner. All rights arising out of the Mortgage Loans including,
but
not limited to, all funds received on or in connection with the Mortgage
Loans
and all records or documents with respect to the Mortgage Loans prepared
by or
which come into the possession of the Servicer shall be received and held
by the
Servicer in trust for the exclusive benefit of the Owner as the owner of
the
related Mortgage Loans. Any portion of the related Servicing Files retained
by
the Servicer shall be appropriately identified in the Servicer's computer
system
to clearly reflect the ownership of the related Mortgage Loans by the Owner.
The
Servicer shall release its custody of the contents of the related Servicing
Files only in accordance with written instructions of the Owner, except
when
such release is required as incidental to the Servicer's servicing of the
Mortgage Loans, such written instructions shall not be required.
Section
2.03. Books
and Records.
The
Servicer shall be responsible for maintaining, and shall maintain, a complete
set of books and records for the Mortgage Loans which shall be appropriately
identified in the Servicer's computer system to clearly reflect the ownership
of
the Mortgage Loan by the Owner. In particular, the Servicer shall maintain
in
its possession, available for inspection by the Owner, or its designee
and shall
deliver to the Owner upon demand, evidence of compliance with all federal,
state
and local laws, rules and regulations, and requirements of ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇
Mac, as applicable, including but not limited to documentation as to the
method
used in determining the applicability of the provisions of the Flood Disaster
Protection Act of 1973, as amended, to the Mortgaged Property, documentation
evidencing insurance coverage and eligibility of any condominium project
for
approval by ▇▇▇▇▇▇ Mae and periodic inspection reports as required by Section
4.13. To the extent that original documents are not required for purposes
of
realization of Liquidation Proceeds or Insurance Proceeds, documents maintained
by the Servicer may be in the form of microfilm or microfiche or such other
reliable means of recreating original documents, including but not limited
to,
optical imagery techniques so long as the Servicer complies with the
requirements of the ▇▇▇▇▇▇ ▇▇▇ Guide.
The
Servicer shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Owner or its designee the related Servicing
File
(or copies thereof) during the time the Owner retains ownership of a Mortgage
Loan and thereafter in accordance with applicable laws and
regulations.
Section
2.04. Transfer
of Mortgage Loans.
No
transfer of a Mortgage Loan may be made unless such transfer is in compliance
with the terms hereof. For the purposes of this Agreement, the Servicer
shall be
under no obligation to deal with any person with respect to this Agreement
or
any Mortgage Loan unless a notice of the transfer of such Mortgage Loan
has been
delivered to the Servicer in accordance with this Section 2.04. The Owner
may,
subject to the terms of this Agreement, sell and transfer one or more of
the
Mortgage Loans in accordance with Sections 10.02 and 11.12, provided,
however, that the transferee will not be deemed to be an Owner hereunder
binding
upon the Servicer unless such transferee shall agree in writing to be bound
by
the terms of this Agreement and an assignment and assumption of this Agreement
reasonably acceptable to the Servicer. The Owner shall advise the Servicer
in
writing of the transfer. Upon receipt of notice of the permitted transfer,
the
Servicer shall ▇▇▇▇ its books and records to reflect the ownership of the
Mortgage Loans of such assignee, and shall release the previous Owner from
its
obligations hereunder with respect to the Mortgage Loans sold or
transferred.
Section
2.05. Delivery
of Mortgage Loan Documents.
The
Servicer shall forward to the Custodian on behalf of the Owner original
documents evidencing an assumption, modification, consolidation or extension
of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01
within 4
week(s) of their execution; provided, however, that the Servicer shall
provide
the Custodian on behalf of the Owner with a certified true copy of any
such
document submitted for recordation within 4 week(s) after its execution,
and
shall provide the original of any document submitted for recordation or
a copy
of a recorded document if the original is not available. If delivery is
not
completed within 180 days solely due to delays in making such delivery
by reason
of the fact that such documents shall not have been returned by the appropriate
recording office, the Servicer shall continue to use its best efforts to
effect
delivery as soon as possible thereafter.
From
time
to time the Servicer may have a need for Mortgage Loan Documents to be
released
by the Custodian. If the Servicer shall require any of the Mortgage Loan
Documents, the Servicer shall notify the Custodian in writing of such request
in
the form of the request for release attached hereto as Exhibit
D.
The
Custodian shall deliver to the Servicer within five (5) Business Days,
any
requested Mortgage Loan Document previously delivered to the Custodian,
provided
that such documentation is promptly returned to the Custodian when the
Servicer
no longer requires possession of the document, and provided that during
the time
that any such documentation is held by the Servicer, such possession is
in trust
for the benefit of the Owner.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SERVICER
The
Servicer represents, warrants and covenants to the Owner that as of the
date
hereof or as of such date specifically provided herein:
(a)
The
Servicer is a validly existing corporation in good standing under the laws
of
the State of its organization and is qualified to transact business in,
is in
good standing under the laws of, and possesses all licenses necessary for
the
conduct of its business in, each state in which any Mortgaged Property
is
located or is otherwise exempt or not required under applicable law to
effect
such qualification or license and no demand for such qualification or license
has been made upon the Servicer by any such state, and in any event the
Servicer
is in compliance with the laws of each such State to the extent necessary
to
ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loans in accordance with the terms of this Agreement;
(b)
The
Servicer has full power and authority to execute, deliver and perform,
and to
enter into and consummate all transactions contemplated by this Agreement
and to
conduct its business as presently conducted, has duly authorized the execution,
delivery and performance of this Agreement, has duly executed and delivered
this
Agreement, and this Agreement constitutes a legal, valid and binding obligation
of the Servicer, enforceable against it in accordance with its terms subject
to
bankruptcy laws and other similar laws of general application affecting
rights
of creditors and subject to the application of the rules of equity, including
those respecting the availability of specific performance;
(c)
None
of the execution and delivery of this Agreement, the consummation of the
transactions contemplated thereby and hereby, or the fulfillment of or
compliance with the terms and conditions of this Agreement will conflict
with
any of the terms, conditions or provisions of the Servicer's articles of
incorporation or by-laws or materially conflict with or result in a breach
of
any of the terms, conditions or provisions of any legal restriction or
any
agreement or instrument to which the Servicer is now a party or by which
it is
bound, or constitute a default or result in an acceleration under any of
the
foregoing, or result in the material violation of any law, rule, regulation,
order, judgment or decree to which the Servicer or its property is
subject;
(d)
There
is no litigation pending or, to the Servicer's knowledge, threatened with
respect to the Servicer which is reasonably likely to have a material adverse
effect on the execution, delivery or enforceability of this Agreement,
or which
is reasonably likely to have a material adverse effect on the financial
condition of the Servicer;
(e)
No
consent, approval, authorization or order of any court or governmental
agency or
body is required for the execution, delivery and performance by the Servicer
of
or compliance by the Servicer with this Agreement or the consummation of
the
transactions contemplated by this Agreement except for consents, approvals,
authorizations and orders which have been obtained;
(f)
The
Servicer is an approved seller/servicer of residential mortgage loans for
▇▇▇▇▇▇
▇▇▇ and ▇▇▇▇▇▇▇ Mac. The Servicer is in good standing to service mortgage
loans
for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and no event has occurred which would make
the
Servicer unable to comply with eligibility requirements or which would
require
notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(g)
As of
the date of each Pass-Through Transfer, and except as has been otherwise
disclosed to the Owner, the Master Servicer and any Depositor, or disclosed
in
any public filing: (1) no default or servicing related performance trigger
has
occurred as to any other Pass-Through Transfer due to any act or failure
to act
of the Servicer; (2) no material noncompliance with applicable servicing
criteria as to any other Pass-Through Transfer has occurred, been disclosed
or
reported by the Servicer; (3) the Servicer has not been terminated as servicer
in a residential mortgage loan Pass-Through Transfer, either due to a servicing
default or to application of a servicing performance test or trigger; (4)
no
material changes to the Servicer’s servicing policies and procedures for similar
loans have occurred in the preceding three years; (5) there are no aspects
of
the Servicer’s financial condition that could have a material adverse impact on
the performance by the Servicer of its obligations hereunder; (6) there
are no
legal proceedings pending, or known to be contemplated by governmental
authorities, against the Servicer that could be material to investors in
the
securities issued in such Pass-Through Transfer; and (7) there are no
affiliations, relationships or transactions relating to the Servicer of
a type
that are described under Item 1119 of Regulation AB;
(h)
If so
requested by the Owner, the Master Servicer or any Depositor on any date,
the
Servicer shall, within five Business Days following such request, confirm
in
writing the accuracy of the representations and warranties set forth in
clause
(g) of this Article or, if any such representation and warranty is not
accurate
as of the date of such request, provide reasonably adequate disclosure
of the
pertinent facts, in writing, to the requesting party;
(i)
Notwithstanding anything to the contrary in the Agreement, the Servicer
shall
(or shall cause each Subservicer) (i) immediately notify the Owner, the
Master
Servicer and any Depositor in writing of (A) any material litigation or
governmental proceedings pending against the Servicer or any Subservicer,
(B)
any affiliations or relationships that develop following the closing date
of a
Pass-Through Transfer between the Servicer or any Subservicer and any of
the
parties specified in clause (7) of paragraph (g) of this Article (and any
other
parties identified in writing by the requesting party) with respect to
such
Pass-Through Transfer, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation
or sale
of substantially all of the assets of the Servicer, and (E) the Servicer’s entry
into an agreement with a Subservicer to perform or assist in the performance
of
any of the Servicer’s obligations under this Agreement or any Reconstitution
Agreement and (ii) provide to the Owner and any Depositor a description
of such
proceedings, affiliations or relationships;
(j)
As a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any
Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner, the Master Servicer
and
any Depositor, at least 15 calendar days prior to the effective date of
such
succession or appointment, (x) written notice to the Owner, the Master
Servicer
and any Depositor of such succession or appointment and (y) in writing
and in
form and substance reasonably satisfactory to the Owner, the Master Servicer
and
such Depositor, all information reasonably requested by the Owner, the
Master
Servicer or any Depositor in order to comply with its reporting obligation
under
Item 6.02 of Form 8-K with respect to any class of asset-backed securities;
and
(k)
Servicer
has delivered to the Owner and the Master Servicer financial statements
of its
parent, for its last two complete fiscal years. All such financial information
fairly presents the pertinent results of operations and financial position
for
the period identified and has been prepared in accordance with GAAP consistently
applied throughout the periods involved, except as set forth in the notes
thereto. There has been no change in the servicing policies and procedures,
business, operations, financial condition, properties or assets of the
Servicer
since the date of the Servicer’s financial information that would have a
material adverse effect on its ability to perform its obligations under
this
Agreement.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01. Servicer
to Act as Servicer.
The
Servicer, as independent contract servicer, shall service and administer
the
Mortgage Loans in accordance with this Agreement and with Accepted Servicing
Practices (giving due consideration to the Owner's reliance on the Servicer),
and shall have full power and authority, acting alone, to do or cause to
be done
any and all things in connection with such servicing and administration
which
the Servicer may deem necessary or desirable and consistent with the terms
of
this Agreement and with Accepted Servicing Practices and shall exercise
the same
care that it customarily employs for its own account. In addition, the
Servicer
shall furnish information regarding the borrower credit files related to
such
Mortgage Loan to credit reporting agencies in compliance with the provisions
of
the Fair Credit Reporting Act and the applicable implementing regulations.
Except as set forth in this Agreement, the Servicer shall service the Mortgage
Loans in accordance with Accepted Servicing Practices in compliance with
the
servicing provisions of the ▇▇▇▇▇▇ ▇▇▇ Guide, which include, but are not
limited
to, provisions regarding the liquidation of Mortgage Loans, the collection
of
Mortgage Loan payments, the payment of taxes, insurance and other charges,
the
maintenance of hazard insurance with a Qualified Insurer, the maintenance of
fidelity bond and errors and omissions insurance, inspections, the restoration
of Mortgaged Property, the maintenance of Primary Mortgage Insurance Policies,
insurance claims, and title insurance, management of REO Property, permitted
withdrawals with respect to REO Property, liquidation reports, and reports
of
foreclosures and abandonments of Mortgaged Property, the transfer of Mortgaged
Property, the release of Mortgage Loan Documents, annual statements, and
examination of records and facilities. In the event of any conflict,
inconsistency or discrepancy between any of the servicing provisions of
this
Agreement and any of the servicing provisions of the ▇▇▇▇▇▇ Mae Guide,
the
provisions of this Agreement shall control and be binding upon the Owner
and the
Servicer. The Owner may, at its option, deliver powers-of-attorney to the
Servicer sufficient to allow the Servicer as servicer to execute all
documentation requiring execution on behalf of Owner with respect to the
servicing of the Mortgage Loans, including satisfactions, partial releases,
modifications and foreclosure documentation or, in the alternative, shall
as
promptly as reasonably possible, execute and return such documentation
to the
Servicer.
Consistent
with and in addition to the terms set forth in this Agreement, if a Mortgage
Loan is in default or such default is reasonably foreseeable, the Servicer
may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any mortgagor, including without limitation, to (1)
capitalize any amounts owing on the Mortgage Loan by adding such amount
to the
outstanding principal balance of the Mortgage Loan, (2) defer such amounts
to a
later date or the final payment date of such Mortgage Loan, (3) extend
the
maturity of any such Mortgage Loan, (4) amend the related Mortgage Note
to
reduce the related Mortgage Rate with respect to any Mortgage Loan, (5)
convert
the Mortgage Rate on any Mortgage Loan from a fixed rate to an adjustable
rate
or vice versa, (6) with respect to a mortgage loan with an initial fixed
rate
period followed by an adjustable rate period, extend the fixed period and
reduce
the adjustable rate period, and/or (7) forgive the amount of any interest
and
principal owed by the related Mortgagor; provided that, in the
Servicer’s
reasonable and prudent determination, such waiver, modification, postponement
or
indulgence: (A) is not materially adverse to the interests
of the Owner on a present value basis using reasonable assumptions (including
taking into account any estimated Realized Loss that might result absent
such
action); and (B) does not amend the related Mortgage Note to extend the
maturity
thereof later than the date of the Latest Possible Maturity Date (as such
term
is defined in the related pooling and servicing agreement); provided,
further, with respect to any Mortgage Loan that is not in default or if
default
is not reasonably foreseeable, unless the Servicer has provided to the
Owner a
certification addressed to the Owner, based on the advice of counsel or
certified public accountants that have a national reputation with respect
to
taxation of REMICs that a modification of such Mortgage Loan will not result
in
the imposition of taxes on or disqualify from REMIC status any of the REMICs
and
has obtained the prior written consent of the Owner, the Servicer shall
not
permit any modification with respect to any Mortgage Loan. Notwithstanding
the foregoing, for any modification which may result in a realized loss
of 20%
or more of the outstanding principal balance of a Mortgage Loan, the Company
shall present such proposed modification, together with any supporting
documentation, to the Master Servicer for consideration and
approval.
In
the
event of any such waiver, modification, postponement or indulgence which
has
been agreed to in writing by the Owner and which permits the deferral of
interest or principal payments on any Mortgage Loan, the Servicer shall,
on the
Business Day immediately preceding the related Remittance Date in any month
in
which any such principal or interest payment has been deferred, deposit
in the
Custodial Account from its own funds, in accordance with Section 4.04 and
Section 5.03, the difference between (a) such month's principal and one
month's
interest at the related Mortgage Loan Remittance Rate on the unpaid principal
balance of such Mortgage Loan and (b) the amount paid by the Mortgagor.
The
Servicer shall be entitled to reimbursement for such advances to the same
extent
as for all other advances pursuant to Section 4.05. Without limiting the
generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered, to prepare, execute and deliver, all instruments
of
satisfaction or cancellation, or of partial or full release, discharge
and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties.
The
Servicer shall perform all of its servicing responsibilities hereunder
or may
cause a subservicer to perform any such servicing responsibilities on its
behalf, but the use by the Servicer of a subservicer shall not release
the
Servicer from any of its obligations hereunder and the Servicer shall remain
responsible hereunder for all acts and omissions of each subservicer as
fully as
if such acts and omissions were those of the Servicer. Any such subservicer
must
be a ▇▇▇▇▇▇ ▇▇▇ approved seller/servicer or a ▇▇▇▇▇▇▇ Mac seller/servicer
in
good standing and no event shall have occurred, including but not limited
to, a
change in insurance coverage, which would make it unable to comply with
the
eligibility requirements for lenders imposed by ▇▇▇▇▇▇ ▇▇▇ or for
seller/servicers by ▇▇▇▇▇▇▇ Mac, or which would require notification to
▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac. The Servicer shall pay all fees and expenses of each
subservicer from its own funds, and a subservicer's fee shall not exceed
the
Servicing Fee.
At
the
cost and expense of the Servicer, without any right of reimbursement from
the
Custodial Account, the Servicer shall be entitled to terminate the rights
and
responsibilities of a subservicer and arrange for any servicing responsibilities
to be performed by a successor subservicer meeting the requirements in
the
preceding paragraph, provided, however, that nothing contained herein shall
be
deemed to prevent or prohibit the Servicer, at the Servicer's option, from
electing to service the related Mortgage Loans itself. In the event that
the
Servicer's responsibilities and duties under this Agreement are terminated
pursuant to Section 8.04, 9.01 or 10.01, and if requested to do so by the
Owner,
the Servicer shall at its own cost and expense terminate the rights and
responsibilities of each subservicer effective as of the date of termination
of
the Servicer. The Servicer shall pay all fees, expenses or penalties necessary
in order to terminate the rights and responsibilities of each subservicer
from
the Servicer's own funds without reimbursement from the Owner.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Servicer and a subservicer or any reference herein to actions
taken
through a subservicer or otherwise, the Servicer shall not be relieved
of its
obligations to the Owner and shall be obligated to the same extent and
under the
same terms and conditions as if it alone were servicing and administering
the
Mortgage Loans. The Servicer shall be entitled to enter into an agreement
with a
subservicer for indemnification of the Servicer by the subservicer and
nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
Any
subservicing agreement and any other transactions or services relating
to the
Mortgage Loans involving a subservicer shall be deemed to be between such
subservicer and Servicer alone, and the Owner shall have no obligations,
duties
or liabilities with respect to such Subservicer including no obligation,
duty or
liability of Owner to pay such subservicer's fees and expenses. For purposes
of
distributions and advances by the Servicer pursuant to this Agreement,
the
Servicer shall be deemed to have received a payment on a Mortgage Loan
when a
subservicer has received such payment.
Section
4.02. Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Servicer will proceed with diligence to collect all
payments
due under each Mortgage Loan when the same shall become due and payable
and
shall, to the extent such procedures shall be consistent with this Agreement
and
the terms and provisions of related Primary Mortgage Insurance Policy,
follow
such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Further,
the
Servicer will take reasonable care in ascertaining and estimating annual
ground
rents, taxes, assessments, water rates, fire and hazard insurance premiums,
mortgage insurance premiums, and all other charges that, as provided in
the
Mortgage, will become due and payable to the end that the installments
payable
by the Mortgagors will be sufficient to pay such charges as and when they
become
due and payable.
The
Servicer shall not waive any Prepayment Charge unless: (i) the enforceability
thereof shall have been limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally,
(ii) the enforcement thereof is illegal, or any local, state or federal
agency
has threatened legal action if the prepayment penalty is enforced, (iii)
the
mortgage debt has been accelerated in connection with a foreclosure or
other
involuntary payment or (iv) such waiver is standard and customary in servicing
similar Mortgage Loans and relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of the Servicer, maximize
recovery
of total proceeds taking into account the value of such Prepayment Charge
and
the related Mortgage Loan.
Section
4.03. Realization
Upon Defaulted Mortgage Loans.
The
Servicer shall use its reasonable efforts, consistent with the procedures
that
the Servicer would use in servicing loans for its own account and the
requirements of the ▇▇▇▇▇▇ Mae Guide, to foreclose upon or otherwise comparably
convert the ownership of properties securing such of the Mortgage Loans
as come
into and continue in default and as to which no satisfactory arrangements
can be
made for collection of delinquent payments pursuant to Section 4.01. In
determining the delinquency status of any Mortgage Loan, the Servicer will
apply
the definition of Delinquent as such term is defined under the related
pooling
and servicing agreement. The Servicer shall use its reasonable efforts
to
realize upon defaulted Mortgage Loans in such manner as will maximize the
receipt of principal and interest by the Owner, taking into account, among
other
things, the timing of foreclosure proceedings. The foregoing is subject
to the
provisions that, in any case in which Mortgaged Property shall have suffered
damage, the Servicer shall not be required to expend its own funds toward
the
restoration of such property unless it shall determine in its discretion
(i)
that such restoration will increase the proceeds of liquidation of the
related
Mortgage Loan to the Owner after reimbursement to itself for such expenses,
and
(ii) that such expenses will be recoverable by the Servicer through Insurance
Proceeds or Liquidation Proceeds from the related Mortgaged Property, as
contemplated in Section 4.05. The Servicer shall be responsible for all
costs
and expenses incurred by it in any such proceedings or functions as Servicing
Advances; provided, however, that it shall be entitled to reimbursement
therefor
as provided in Section 4.05. Notwithstanding anything to the contrary contained
herein, in connection with a foreclosure or acceptance of a deed in lieu
of
foreclosure, in the event the Servicer has reasonable cause to believe
that a
Mortgaged Property is contaminated by hazardous or toxic substances or
wastes,
or if the Owner otherwise requests an environmental inspection or review
of such
Mortgaged Property, such an inspection or review is to be conducted by
a
qualified inspector. Upon completion of the inspection, the Servicer shall
promptly provide the Owner with a written report of the environmental
inspection. After reviewing the environmental inspection report, the Owner
shall
determine how the Servicer shall proceed with respect to the Mortgaged
Property.
Section
4.04. Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts.
Each
Custodial Account shall be established with a Qualified Depository. To
the
extent such funds are not deposited in a Custodial Account, such funds
may be
invested in Permitted Investments for the benefit of the Owner (with any
income
earned thereon for the benefit of the Servicer). Custodial Accounts will
be
reconciled within 45 calendar days after the bank statement cut-off date.
Funds
deposited in the Custodial Account may be drawn on by the Servicer in accordance
with Section 4.05. The creation of any Custodial Account shall be evidenced
by a
letter agreement in the form shown in Exhibit
B
hereto.
The original of such letter agreement shall be furnished to the Owner upon
request. The Servicer acknowledges and agrees that the Servicer shall bear
any
losses incurred with respect to Permitted Investments. The amount of any
such
losses shall be immediately deposited by the Servicer in the Custodial
Account,
out of the Servicer's own funds, with no right to reimbursement
therefor.
The
Servicer shall deposit in a mortgage clearing account on a daily basis,
and in
the Custodial Account or Accounts no later than 48 hours after receipt
and
identification of funds and retain therein the following payments and
collections:
(i) all
payments on account of principal, including Principal Prepayments (exclusive
of
Prepayment Charges) and penalties, on the Mortgage Loans received after
the
Cut-off Date;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the related
Mortgage Loan Remittance Rate received after the Cut-off Date;
(iii) all
Liquidation Proceeds received after the Cut-off Date;
(iv) any
net
amounts received by the Servicer after the Cut-off Date in connection with
any
REO Property pursuant to Section 4.13;
(v) all
Insurance Proceeds received after the Cut-off Date including amounts required
to
be deposited pursuant to Sections 4.08 and 4.10, other than proceeds to
be held
in the Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Servicer's
normal
servicing procedures, the loan documents or applicable law;
(vi) all
Condemnation Proceeds affecting any Mortgaged Property received after the
Cut-off Date other than proceeds to be held in the Escrow Account and applied
to
the restoration or repair of the Mortgaged Property or released to the
Mortgagor
in accordance with the Servicer's normal servicing procedures, the loan
documents or applicable law;
(vii) any
Monthly Advances as provided in Section 5.03;
(viii) any
amounts received after the Cut-off Date and required to be deposited in
the
Custodial Account pursuant to Section 6.02; and
(ix) with
respect to each full or partial Principal Prepayment received after the
Cut-off
Date, any Prepayment Interest Shortfalls, to the extent of the Servicer's
aggregate Servicing Fee received with respect to the related Due
Period.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of
the
foregoing, payments in the nature of late payment charges, Prepayment Charges
and assumption fees, to the extent permitted by Section 6.01, and all Prepayment
Interest Excess need not be deposited by the Servicer in the Custodial
Account.
Section
4.05. Permitted
Withdrawals From the Custodial Account.
The
Servicer may, from time to time, make withdrawals from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Owner in the amounts and in the manner provided for in
Section
5.01;
(ii) to
reimburse itself for Monthly Advances, the Servicer's right to reimburse
itself
pursuant to this subclause (ii) being limited to amounts received on the
related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) of principal and/or interest respecting which any such advance was
made;
(iii) to
reimburse itself for unreimbursed Servicing Advances and Monthly Advances,
the
Servicer's right to reimburse itself pursuant to this subclause (iii) with
respect to any Mortgage Loan being limited to Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds received after the Cut-off Date related
to such
Mortgage Loan; provided, however, the Servicer must provide documentation
to the
Master Servicer supporting Servicing Advances related to Liquidation Proceeds
prior to withdrawing such amounts from the Custodial Account;
(iv) to
pay to
itself as servicing compensation (a) any interest earned on funds in the
Custodial Account (all such interest to be withdrawn monthly not later
than each
Remittance Date) and (b) the Servicing Fee from that portion of any payment
recovery attributable to interest on a particular Mortgage Loan;
(v) to
reimburse itself for any Nonrecoverable Advances;
(vi) to
transfer funds to another Qualified Depository in accordance with Section
4.09
hereof;
(vii) to
reimburse itself as provided in Section 8.03 hereof;
(viii) to
remove
funds inadvertently placed in the Custodial Account in error by the Servicer;
and
(ix) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
4.06. Establishment
of Escrow Accounts; Deposits in Escrow Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart
from any
of its own funds and general assets and shall establish and maintain one
or more
Escrow Accounts. Each Escrow Account shall be established with a Qualified
Depository. To the extent such funds are not deposited in an Escrow Account,
such funds may be invested in Permitted Investments. Funds deposited in
an
Escrow Account may be drawn on by the Servicer in accordance with Section
4.07.
The creation of any Escrow Account shall be evidenced by a letter agreement
in
the form shown in Exhibit
C.
The
original of such letter agreement shall be furnished to the Owner upon
request.
The Servicer acknowledges and agrees that the Servicer shall bear any losses
incurred with respect to Permitted Investments. The amount of any such
losses
shall be immediately deposited by the Servicer in the Escrow Account, as
appropriate, out of the Servicer's own funds, with no right to reimbursement
therefor.
The
Servicer shall deposit in a mortgage clearing account on a daily basis,
and in
the Escrow Account or Accounts no later than 48 hours after receipt of
funds and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any items as are required under the terms of
this
Agreement;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair
of any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient
to
cover escrow disbursements.
The
Servicer shall make withdrawals from an Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth in and in accordance with Section 4.07. Except as
provided
in Section 4.07, the Servicer shall be entitled to retain any interest
paid on
funds deposited in an Escrow Account by the Qualified Depository.
Section
4.07. Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by the Servicer only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, fire
and
hazard insurance premiums, Primary Mortgage Insurance Policy premiums,
if
applicable, and comparable items;
(ii) to
reimburse Servicer for any Servicing Advance made by Servicer with respect
to a
related Mortgage Loan but only from amounts received on the related Mortgage
Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii) to
refund
to the Mortgagor any funds as may be determined to be overages;
(iv) for
transfer to the Custodial Account in connection with an acquisition of
REO
Property;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to
the Servicer, or to the Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account;
(vii) to
pay to
the Mortgagors or other parties Insurance Proceeds deposited in accordance
with
Section 4.06;
(viii) to
remove
funds inadvertently placed in an Escrow Account in error by the Servicer;
and
(ix) to
clear
and terminate the Escrow Account on the termination of this Agreement.
As
part
of its servicing duties, the Servicer shall pay to the Mortgagors interest
on
funds in an Escrow Account, to the extent required by law, and to the extent
that interest earned on funds in the Escrow Account is insufficient, shall
pay
such interest from its own funds, without any reimbursement
therefor.
Section
4.08. Payment
of Taxes, Insurance and Other Charges, Maintenance of Primary Mortgage
Insurance
Policies, Collections Thereunder.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates
and other
charges which are or may become a lien upon the Mortgaged Property and
the
status of Primary Mortgage Insurance Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges, including renewal premiums and shall effect payment
thereof prior to the applicable penalty or termination date and at a time
appropriate for securing maximum discounts allowable, employing for such
purpose
deposits of the Mortgagor in the Escrow Account which shall have been estimated
and accumulated by the Servicer in amounts sufficient for such purposes,
as
allowed under the terms of the Mortgage or applicable law. To the extent
that
the Mortgage does not provide for Escrow Payments, the Servicer shall determine
that any such payments are made by the Mortgagor when due. The Servicer
assumes
full responsibility for the timely payment of all such bills and shall
effect
timely payments of all such bills irrespective of the Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments
and
shall make advances from its own funds to effect such payments.
The
Servicer will maintain in full force and effect Primary Mortgage Insurance
Policies issued by a Qualified Insurer with respect to each Mortgage Loan
for
which such coverage is herein required. Such coverage will be maintained
until
the ratio of the current outstanding principal balance of the related Mortgage
Loan to the appraised value of the related Mortgaged Property, based on
the most
recent appraisal of the Mortgaged Property performed by a Qualified Appraiser,
such appraisal to be included in the Servicing File, is reduced to an amount
for
which ▇▇▇▇▇▇ ▇▇▇ no longer requires such insurance to be maintained. The
Servicer will not cancel or refuse to renew any Primary Mortgage Insurance
Policy that is required to be kept in force under this Agreement unless
a
replacement Primary Mortgage Insurance Policy for such canceled or nonrenewed
policy is obtained from and maintained with a Qualified Insurer. The Servicer
shall not take any action which would result in non-coverage under any
applicable Primary Mortgage Insurance Policy of any loss which, but for
the
actions of the Servicer would have been covered thereunder. In connection
with
any assumption or substitution agreement entered into or to be entered
into
pursuant to Section 6.01, the Servicer shall promptly notify the insurer
under
the related Primary Mortgage Insurance Policy, if any, of such assumption
or
substitution of liability in accordance with the terms of such policy and
shall
take all actions which may be required by such insurer as a condition to
the
continuation of coverage under the Primary Mortgage Insurance Policy. If
such
Primary Mortgage Insurance Policy is terminated as a result of such assumption
or substitution of liability, the Servicer shall obtain a replacement Primary
Mortgage Insurance Policy as provided above.
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Owner, claims to the insurer under
any
Primary Mortgage Insurance Policy in a timely fashion in accordance with
the
terms of such Primary Mortgage Insurance Policy and, in this regard, to
take
such action as shall be necessary to permit recovery under any Primary
Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section
4.04,
any amounts collected by the Servicer under any Primary Mortgage Insurance
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 4.05.
Section
4.09. Transfer
of Accounts.
The
Servicer may transfer the Custodial Account or the Escrow Account to a
different
Qualified Depository from time to time. The Servicer shall notify the Owner
of
any such transfer within 15 Business Days of transfer. If any one of the
investment ratings of a Qualified Depository holding funds or Eligible
Investments in the Custodial Account or Escrow Account is downgraded by
the
issuing rating agency, the Servicer shall, within three (3) Business Days
of
receipt of notice of the downgrading, transfer all such accounts, funds
and
Permitted Investments to a different Qualified Depository in accordance
with
this Agreement.
Section
4.10. Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is customary in the area where the
Mortgaged
Property is located in an amount which is equal to the lesser of (i) the
maximum
insurable value of the improvements securing such Mortgage Loan or (ii)
the
greater of (a) the outstanding principal balance of the Mortgage Loan,
and (b)
the percentage such that the proceeds thereof shall be sufficient to prevent
the
Mortgagor and/or the Mortgagee from becoming a co-insurer. If the Mortgaged
Property is in an area identified in the Federal Register by the Federal
Emergency Management Agency as being a special flood hazard area that has
federally-mandated flood insurance requirements, the Servicer will cause
to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration with a generally acceptable
insurance carrier, in an amount representing coverage not less than the
least of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the maximum
insurable value of the improvements securing such Mortgage Loan or (iii)
the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The Servicer shall also maintain on
the REO
Property, fire and hazard insurance with extended coverage in an amount
which is
at least equal to the maximum insurable value of the improvements which
are a
part of such property, liability insurance and, to the extent required
and
available under the Flood Disaster Protection Act of 1973, as amended,
flood
insurance in an amount as provided above. Any amounts collected by the
Servicer
under any such policies other than amounts to be deposited in the Escrow
Account
and applied to the restoration or repair of the Mortgaged Property or REO
Property, or released to the Mortgagor in accordance with the Servicer's
normal
servicing procedures, shall be deposited in the Custodial Account, subject
to
withdrawal pursuant to Section 4.05. It is understood and agreed that no
other
additional insurance need be required by the Servicer or the Mortgagor
or
maintained on property acquired in respect of the Mortgage Loans, other
than
pursuant to the ▇▇▇▇▇▇ Mae Guide or such applicable state or federal laws
and
regulations as shall at any time be in force and as shall require such
additional insurance. All such policies shall be endorsed with standard
mortgagee clauses with loss payable to the Servicer and its successors
and/or
assigns and shall provide for at least thirty days prior written notice
of any
cancellation, reduction in the amount or material change in coverage to
the
Servicer. The Servicer shall not interfere with the Mortgagor's freedom
of
choice in selecting either his insurance carrier or agent, provided, however,
that the Servicer shall not accept any such insurance policies from insurance
companies unless such companies currently reflect a General Policy Rating
in
Best's Key Rating Guide currently acceptable to ▇▇▇▇▇▇ ▇▇▇ and are licensed
to
do business in the state wherein the property subject to the policy is
located.
Section
4.11 Maintenance
of Mortgage Impairment Insurance Policy.
In
the
event that the Servicer shall obtain and maintain a mortgage impairment
or
blanket policy issued by an issuer that has a Best rating of A:VI insuring
against hazard losses on all of Mortgaged Properties securing the Mortgage
Loans, then, to the extent such policy provides coverage in an amount equal
to
the amount required pursuant to Section 4.10 and otherwise complies with
all
other requirements of Section 4.10, the Servicer shall conclusively be
deemed to
have satisfied its obligations as set forth in Section 4.10, it being understood
and agreed that such policy may contain a deductible clause, in which case
the
Servicer shall, in the event that there shall not have been maintained
on the
related Mortgaged Property or REO Property a policy complying with Section
4.10,
and there shall have been one or more losses which would have been covered
by
such policy, deposit in the Custodial Account the amount not otherwise
payable
under the blanket policy because of such deductible clause. In connection
with
its activities as Servicer of the Mortgage Loans, the Servicer agrees to
prepare
and present, on behalf of the Owner, claims under any such blanket policy
in a
timely fashion in accordance with the terms of such policy. Upon request
of the
Owner, the Servicer shall cause to be delivered to the Owner a certified
true
copy of such policy and a statement from the insurer thereunder that such
policy
shall in no event be terminated or materially modified without thirty (30)
days
prior written notice to the Owner.
Section
4.12. Fidelity
Bond, Errors and Omissions Insurance.
The
Servicer shall maintain, at its own expense, a blanket fidelity bond and
an
errors and omissions insurance policy, with broad coverage with responsible
companies that would meet the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac
on all
officers, employees or other persons acting in any capacity with regard
to the
Mortgage Loans and who handle funds, money, documents and papers relating
to the
Mortgage Loans. The Fidelity Bond and errors and omissions insurance shall
be in
the form of the Mortgage Banker's Blanket Bond and shall protect and insure
the
Servicer against losses, including forgery, theft, embezzlement, fraud,
errors
and omissions and negligent acts of such persons. Such Fidelity Bond and
errors
and omissions insurance shall also protect and insure the Servicer against
losses in connection with the failure to maintain any insurance policies
required pursuant to this Agreement and the release or satisfaction of
a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.12 requiring the Fidelity
Bond
and errors and omissions insurance shall diminish or relieve the Servicer
from
its duties and obligations as set forth in this Agreement. The minimum
coverage
under any such Fidelity Bond and insurance policy shall be at least equal
to the
corresponding amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇ Guide or
by
▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Guide. The Servicer shall, upon request
of Owner,
deliver to the Owner a certificate from the surety and the insurer as to
the
existence of the Fidelity Bond and errors and omissions insurance policy
and
shall obtain a statement from the surety and the insurer that such Fidelity
Bond
or insurance policy shall in no event be terminated or materially modified
without thirty days prior written notice to the Owner. The Servicer shall
notify
the Owner within five Business Days of receipt of notice that such Fidelity
Bond
or insurance policy will be, or has been, materially modified or terminated.
The
Owner and its successors or assigns as their interests may appear must
be named
as loss payees on the Fidelity Bond and as additional insured on the errors
and
omissions policy.
Section
4.13. Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken
in the
name of the Owner or its designee. Any such Person or Persons holding such
title
other than the Owner shall acknowledge in writing that such title is being
held
as nominee for the benefit of the Owner.
The
Servicer shall assume the responsibility for marketing each REO Property
in
accordance with Accepted Servicing Practices. Thereafter, the Servicer
shall
continue to provide certain administrative services to the Owner relating
to
such REO Property as set forth in this Section 4.13. The REO Property must
be
sold within three years following the end of the calendar year of the date
of
acquisition, unless a REMIC election has been made with respect to the
arrangement under which the Mortgage Loans and REO Property are held and
(i) the
Owner shall have been supplied with an Opinion of Counsel (at the Servicer's
expense) to the effect that the holding by the related trust of such Mortgaged
Property subsequent to such three-year period (and specifying the period
beyond
such three-year period for which the Mortgaged Property may be held) will
not
result in the imposition of taxes on "prohibited transactions" of the related
trust as defined in Section 860F of the Code, or cause the related REMIC
to fail
to qualify as a REMIC, in which case the related trust may continue to
hold such
Mortgaged Property (subject to any conditions contained in such Opinion
of
Counsel), or (ii) the Owner (at the Servicer's expense) or the Servicer
shall
have applied for, prior to the expiration of such three-year period, an
extension of such three-year period in the manner contemplated by Section
856(e)(3) of the Code, in which case the three-year period shall be extended
by
the applicable period. If a period longer than three years is permitted
under
the foregoing sentence and is necessary to sell any REO Property, the Servicer
shall report monthly to the Owner as to progress being made in selling
such REO
Property.
Notwithstanding
any other provision of this Agreement, if a REMIC election has been made,
no
Mortgaged Property held by a REMIC shall be rented (or allowed to continue
to be
rented) or otherwise used for the production of income by or on behalf
of the
related trust or sold or managed in such a manner or pursuant to any terms
that
would (i) cause such Mortgaged Property to fail to qualify at any time
as
"foreclosure property" within a meaning of Section 860G(a)(8) of the Code,
(ii)
subject the related trust to the imposition of any federal or state income
taxes
on "net income from foreclosure property" with respect to such Mortgaged
Property within the meaning of Section 860G(c) of the Code, or (iii) cause
the
sale of such Mortgaged Property to result in the receipt by the related
trust or
any income from non-permitted assets as described in Section 860F(a) (2)(B)
of
the Code, unless the Servicer has agreed to indemnify and hold harmless
the
related trust with respect to the imposition of any such taxes.
The
Servicer shall deposit or cause to be deposited, on a daily basis in each
Custodial Account all revenues received with respect to the related REO
Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property, including the cost of
maintaining any hazard insurance pursuant to Section 4.10 hereof. The Servicer
shall maintain separate records with respect to each REO Property identifying
all deposits and withdrawals from the Custodial Account for each REO
Property.
The
Servicer shall furnish to the Owner on each Remittance Date, an operating
statement for each REO Property covering the operation of each REO Property
for
the previous month. Such operating statement shall be accompanied by such
other
information as the Owner shall reasonably request.
The
Servicer shall, either itself or through an agent selected by the Servicer,
and
in accordance with the ▇▇▇▇▇▇ Mae Guide, manage, conserve, protect and
operate
each REO Property in the same manner that it manages, conserves, protects
and
operates other foreclosed property for its own account, and in the same
manner
that similar property in the same locality as the REO Property is managed.
Each
REO Disposition shall be carried out by the Servicer at such price and
upon such
terms and conditions as the Servicer deems to be in the best interest of
the
Owner. The REO Disposition Proceeds from the sale of the REO Property shall
be
promptly deposited in the Custodial Account. As soon as practical thereafter,
the expenses of such sale shall be paid and the Servicer shall be entitled
to
reimburse itself for any related unreimbursed Servicing Advances, unpaid
Servicing Fees or Monthly Advances made. Such reimbursement will be subject
to
Master Servicer approval of claims submitted within 90 days of liquidation
(such
approval will be rendered within 30 days of the Master Servicer’s receipt of the
complete claim of loss notification package), and on the Remittance Date
immediately following the Principal Prepayment Period in which such sale
proceeds are received the proceeds of such sale deposited in the Custodial
Account shall be distributed to the Purchaser.
The
Servicer shall cause each REO Property to be inspected promptly upon the
acquisition of title thereto and shall cause each REO Property to be inspected
at least monthly thereafter or more frequently as may be required by the
circumstances. The Servicer shall make or cause the inspector to make a
written
report of each such inspection. Such reports shall be retained in the Servicing
File and copies thereof shall be forwarded by the Servicer to the
Owner.
Section
4.14. Notification of Adjustments.
With
respect to each Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date in compliance with
requirements of applicable law and the related Mortgage and Mortgage Note.
The
Servicer shall execute and deliver any and all necessary notices required
under
applicable law and the terms of the related Mortgage Note and Mortgage
regarding
the Mortgage Interest Rate adjustments. The Servicer shall promptly, upon
written request therefor, deliver to the Owner such notifications and any
additional applicable data regarding such adjustments and the methods used
to
calculate and implement such adjustments. Upon the discovery by the Servicer
or
the receipt of notice from the Owner that the Servicer has failed to adjust
a
Mortgage Interest Rate in accordance with the terms of the related Mortgage
Note
and Mortgage, the Servicer shall immediately deposit in the Custodial Account
from its own funds the amount of any interest loss or deferral caused to
the
Owner thereby.
ARTICLE
V
PAYMENTS
TO THE OWNER
Section
5.01. Remittances.
On
each
Remittance Date, the Servicer shall remit to the Owner (i) all amounts
credited
to the Custodial Account as of the close of business on the last day of
the
calendar month preceding the Determination Date, net of charges against
or
withdrawals from the Custodial Account pursuant to Section 4.05, except
(a) Full
Principal Prepayments received on or before the 15th day of the month in
which a
Remittance Date occurs shall be remitted to the Owner on the Remittance
Date of
such month, and (b) Full Principal Prepayments received after the 15th
day of
the month in which a Remittance Date occurs shall be remitted to the Owner
on
the next following Remittance Date, plus, to the extent not already deposited
in
the Custodial Account, the sum of (ii) all Monthly Advances, if any, which
the
Servicer is obligated to distribute pursuant to Section 5.03 and (iii)
all
Prepayment Interest Shortfalls the Servicer is required to make up pursuant
to
Section 4.04, minus (iv) any amounts attributable to Monthly Payments collected
after the Cut-off Date but due on a Due Date or Dates subsequent to the
last day
of the related Due Period, which amounts shall be remitted on the related
Remittance Date next succeeding the Due Period for such amounts.
With
respect to any remittance received by the Owner after the Business Day
on which
such payment was due, the Servicer shall pay to the Owner interest on any
such
late payment at an annual rate equal to the Prime Rate, adjusted as of
the date
of each change, plus two percentage points, but in no event greater than
the
maximum amount permitted by applicable law. Such interest shall be remitted
to
the Owner by the Servicer on the date such late payment is made and shall
cover
the period commencing with the day following such Business Day and ending
with
the Business Day on which such payment is made, both inclusive. The payment
by
the Servicer of any such interest shall not be deemed an extension of time
for
payment or a waiver of any Event of Default by the Servicer.
Section
5.02 Statements
to the Owner and the Master Servicer.
The
Servicer shall furnish to the Owner and the Master Servicer an individual
Mortgage Loan accounting report (a ”Report”), as of the last Business Day of
each month and the end of the related Prepayment Period, as applicable,
in the
Servicer's assigned loan number order to document Mortgage Loan payment
activity
on an individual Mortgage Loan basis. With respect to each month, such
Report
shall be received by the Owner and the Master Servicer no later than the
fifth
Business Day of the month of the related Remittance Date (or, with respect
to
information as to Full Principal Prepayments and prepayment penalties no
later
than one (1) Business Day after the end of each Prepayment Period), a report
in
an Excel (or compatible) electronic format, in such format as may be mutually
agreed upon by both the Owner and the Servicer, and which shall provide
the
information required to be contained in the monthly statements to
certificateholders as specified in the related pooling and servicing Agreement,
to the extent applicable to the Servicer.
In
addition, the Servicer shall provide to the Master Servicer and the Owner
such
other information known or available to the Servicer that is necessary
in order
to provide the distribution and pool performance information as required
under
Regulation AB, as amended from time to time, as determined by the Owner
in its
sole discretion. The Servicer shall also provide a monthly report, in the
form
of Exhibit
E
and
Exhibit
F
hereto,
or such other form as is mutually acceptable to the Servicer, the Owner
and the
Master Servicer, Exhibit
K
and
Exhibit
L
with
respect to defaulted mortgage loans, Exhibit
M
with
respect to realized losses and gains, Exhibit
N
with
respect to modified mortgage loans, Exhibit
O
with
respect to claims submitted and Exhibit
P
with
respect to loss severity, with each such report.
The
Servicer shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or
to
Owner or the Master Servicer pursuant to any applicable law with respect
to the
Mortgage Loans and the transactions contemplated hereby. In addition, the
Servicer shall provide the Owner and the Master Servicer with such information
concerning the Mortgage Loans as is necessary for the Owner and
the
Master Servicer
to
prepare its federal income tax return as Owner and the Master Servicer
may
reasonably request from time to time.
In
addition, not more than 60 days after the end of each calendar year, the
Servicer shall furnish to each Person who was an Owner and the Master Servicer
at any time during such calendar year an annual statement in accordance
with the
requirements of applicable federal income tax law as to the aggregate of
remittances of principal and interest for the applicable portion of such
year.
Section
5.03. Monthly
Advances by the Servicer.
Not
later
than the close of business on the Business Day preceding each Remittance
Date,
the Servicer shall deposit in the Custodial Account an amount equal to
all
payments not previously advanced by the Servicer, whether or not deferred
pursuant to Section 4.01, of Monthly Payments, adjusted to the related
Mortgage
Loan Remittance Rate, which are delinquent at the close of business on
the
related Determination Date; provided, however, that the amount of any such
deposit may be reduced by the Amount Held for Future Distribution (as defined
below) then on deposit in the Custodial Account. Any portion of the Amount
Held
for Future Distribution used to pay Monthly Advances shall be replaced
by the
Servicer by deposit into the Custodial Account on any future Remittance
Date to
the extent that the funds that are available in the Custodial Account for
remittance to the Owner on such Remittance Date are less than the amount
of
payments required to be made to the Owner on such Remittance Date.
The
"Amount Held for Future Distribution" as to any Remittance Date shall be
the
total of the amounts held in the Custodial Account at the close of business
on
the preceding Determination Date which were received after the Cut-off
Date on
account of (i) Liquidation Proceeds, Insurance Proceeds, and Principal
Prepayments received or made in the month of such Remittance Date, and
(ii)
payments which represent early receipt of scheduled payments of principal
and
interest due on a date or dates subsequent to the related Due Date.
The
Servicer's obligation to make such Monthly Advances as to any Mortgage
Loan will
continue through the final disposition or liquidation of the Mortgaged
Property,
unless the Servicer deems such advance to be nonrecoverable from Liquidation
Proceeds, REO Disposition Proceeds or Insurance Proceeds with respect to
the
applicable Mortgage Loan. In such latter event, the Servicer shall deliver
to
the Owner an Officer's Certificate of the Servicer to the effect that an
officer
of the Servicer has reviewed the related Servicing File and has obtained
a
recent appraisal and has made the reasonable determination that any additional
advances are nonrecoverable from Liquidation or Insurance Proceeds with
respect
to the applicable Mortgage Loan.
Section
5.04. Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Owner pursuant to a deed-in--lieu of foreclosure, the Servicer shall submit
to
the Owner a liquidation report with respect to such Mortgaged Property
in such
form as the Servicer and the Owner shall agree. The Servicer shall also
provide
reports on the status of REO Property containing such information as Owner
may
reasonably require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01. Assumption
Agreements.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of a Mortgaged Property (whether by absolute
conveyance or by contract of, sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any "due-on-sale"
clause to the extent permitted by law; provided, however, that the Servicer
shall not exercise any such rights if prohibited by law or the terms of
the
Mortgage Note from doing so or if the exercise of such rights would impair
or
threaten to impair any recovery under the related Primary Mortgage Insurance
Policy, if any. If the Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, the Servicer, will
enter
into an assumption agreement with the person to whom the Mortgaged Property
has
been conveyed or is proposed to be conveyed, pursuant to which such person
becomes liable under the Mortgage Note and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. Where an assumption
is allowed pursuant to this Section 6.01, the Servicer, with the prior
consent
of the primary mortgage insurer, if any, is authorized to enter into a
substitution of liability agreement with the person to whom the Mortgaged
Property has been conveyed or is proposed to be conveyed pursuant to which
the
original mortgagor is released from liability and such Person is substituted
as
mortgagor and becomes liable under the related Mortgage Note. Any such
substitution of liability agreement shall be in lieu of an assumption
agreement.
In
connection with any such assumption or substitution of liability, the Servicer
shall follow the underwriting practices and procedures of the ▇▇▇▇▇▇ ▇▇▇
Guide.
With respect to an assumption or substitution of liability, the Mortgage
Interest Rate borne by the related Mortgage Note and the amount of the
Monthly
Payment may not be changed. The Servicer shall notify the Owner that any
such
substitution of liability or assumption agreement has been completed by
forwarding to the Owner the original of any such substitution of liability
or
assumption agreement, which document shall be added to the related Mortgage
Loan
Documents and shall, for all purposes, be considered a part of such related
mortgage file to the same extent as all other documents and instruments
constituting a part thereof. All fees collected by the Servicer for entering
into an assumption or substitution of liability agreement shall belong
to the
Servicer.
Notwithstanding
the foregoing paragraphs of this section or any other provision of this
Agreement, the Servicer shall not be deemed to be in default, breach or
any
other violation of its obligations hereunder by reason of any assumption
of a
Mortgage Loan by operation of law or any assumption which the Servicer
may be
restricted by law from preventing, for any reason whatsoever. For purposes
of
this Section 6.01, the term "assumption" is deemed to also include a sale
of the
Mortgaged Property subject to the Mortgage that is not accompanied by an
assumption or substitution of liability agreement.
Section
6.02. Satisfaction
of Mortgages and Release of Mortgage Loan Documents.
Upon
the
payment in full of any Mortgage Loan, the Servicer will immediately notify
the
Custodian with a certification and request for release by a Servicing Officer,
which certification shall include a statement to the effect that all amounts
received in connection with such payment which are required to be deposited
in
the Custodial Account pursuant to Section 4.04 have been so deposited,
and a
request for delivery to the Servicer of the portion of the Mortgage Loan
Documents held by the Custodian. Upon receipt of such certification and
request,
the Owner shall promptly release or cause the Custodian to promptly release
the
related Mortgage Loan Documents to the Servicer and the Servicer shall
prepare
and deliver for execution by the Owner or at the Owner's option execute
under
the authority of a power of attorney delivered to the Servicer by the Owner
any
satisfaction or release. No expense incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account.
In
the
event the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Owner may have under the mortgage instruments,
the Servicer, upon written demand, shall remit within one Business Day
to the
Owner the then outstanding principal balance of the related Mortgage Loan
by
deposit thereof in the Custodial Account. The Servicer shall maintain the
Fidelity Bond insuring the Servicer against any loss it may sustain with
respect
to any Mortgage Loan not satisfied in accordance with the procedures set
forth
herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loans, including for the purpose of collection under any Primary Mortgage
Insurance Policy, upon request of the Servicer and delivery to the Custodian
of
a servicing receipt signed by a Servicing Officer, the Custodian shall
release
the portion of the Mortgage Loan Documents held by the Custodian to the
Servicer. Such servicing receipt shall obligate the Servicer to promptly
return
the related Mortgage Loan Documents to the Custodian, when the need therefor
by
the Servicer no longer exists, unless the Mortgage Loan has been liquidated
and
the Liquidation Proceeds relating to the Mortgage Loan have been deposited
in
the Custodial Account or such documents have been delivered to an attorney,
or
to a public trustee or other public official as required by law, for purposes
of
initiating or pursuing legal action or other proceedings for the foreclosure
of
the Mortgaged Property either judicially or non-judicially, and the Servicer
has
promptly delivered to the Owner or the Custodian a certificate of a Servicing
Officer certifying as to the name and address of the Person to which such
documents were delivered and the purpose or purposes of such delivery.
Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan
was liquidated, the servicing receipt shall be released by the Owner or
the
Custodian, as applicable, to the Servicer.
Section
6.03. Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall be entitled
to
withdraw from the Custodial Account or to retain from interest payments
on the
Mortgage Loans the amounts provided for as the Servicer's Servicing Fee.
Additional servicing compensation in the form of assumption fees, as provided
in
Section 6.01, late payment charges and other ancillary fees shall be retained
by
the Servicer to the extent not required to be deposited in the Custodial
Account. The Servicer shall be required to pay all expenses incurred by
it in
connection with its servicing activities hereunder and shall not be entitled
to
reimbursement therefor except as specifically provided for.
Section
6.04. Annual
Statement as to Compliance; Annual Certification.
(a) The
Servicer will deliver to the Owner and the Master Servicer, not later than
March
15th of each calendar year beginning in 2008, an Officer’s Certificate (an
“Annual Statement of Compliance”) stating, as to each signatory thereof, that
(i) a review of the activities of the Servicer during the preceding calendar
year and of performance under this Agreement or other applicable servicing
agreement has been made under such officer’s supervision and (ii) to the best of
such officer’s knowledge, based on such review, the Servicer has fulfilled all
of its obligations under this Agreement or other applicable servicing agreement
in all material respects throughout such year, or, if there has been a
failure
to fulfill any such obligation in any material respect, specifying each
such
failure known to such officer and the nature and status of cure provisions
thereof. Such Annual Statement of Compliance shall contain no restrictions
or
limitations on its use. Copies of such statement shall be provided by the
Servicer to the Owner upon request and by the Owner to any Person identified
as
a prospective purchaser of the Mortgage Loans. In the event that the Servicer
has delegated any servicing responsibilities with respect to the Mortgage
Loans
to a Subservicer, the Servicer shall deliver an Annual Statement of Compliance
of the Subservicer as described above as to each Subservicer as and when
required with respect to the Servicer.
(b) With
respect to the Mortgage Loans, by March 15th of each calendar year beginning
in
2008, an officer of the Servicer shall execute and deliver an Officer’s
Certificate (an “Annual Certification”) to the Owner, the Master Servicer, the
Trustee, and any related Depositor for the benefit of each such entity
and such
entity’s affiliates and the officers, directors and agents of any such entity
and such entity’s affiliates, in the form attached hereto as Exhibit
G.
In the
event that the Servicer has delegated any servicing responsibilities with
respect to the Mortgage Loans to a Subservicer or a Subcontractor, to the
extent
such Subcontractor is “participating in the servicing function” pursuant to Item
1122 of Regulation AB, the Servicer shall deliver an Annual Certification
as to
each such Subservicer and Subcontractor, as and when required with respect
to
the Servicer.
In
the
event the Servicer or any Subservicer or Subcontractor engaged by it is
terminated, assigns its rights and obligations under, or resigns pursuant
to the
terms of this Agreement, or any other applicable agreement in the case
of a
Subservicer or Subcontractor, as the case may be, such party shall provide
an
Annual Statement of Compliance pursuant to this Section 6.04 or to the
related
section of such other applicable agreement, as the case may be, as to the
performance of its obligations with respect to the period of time it was
subject
to this Agreement or any other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
The
Servicer shall indemnify and hold harmless the Master Servicer and its
officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
the Servicer or any of its officers, directors, agents or affiliates of
its
obligations under this Section 6.04 or Section 6.09 or the negligence,
bad faith
or willful misconduct of the Servicer in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Master Servicer, then the Servicer agrees that it shall contribute
to the amount paid or payable by the Master Servicer as a result of the
losses,
claims, damages or liabilities of the Master Servicer in such proportion
as is
appropriate to reflect the relative fault of the Master Servicer on the
one hand
and the Servicer on the other in connection with a breach of the Servicer’s
obligations under this Section 6.04 or Section 6.09 or the Servicer’s
negligence, bad faith or willful misconduct in connection
therewith.
Upon
request by the Owner or the Master Servicer, the Servicer will deliver
to such
requesting party a copy of the audited (if such financial statements are
available, otherwise unaudited) financial statements of the Servicer for
the
most recent fiscal year of the Servicer.
Section
6.05. [Reserved]
Section
6.06. Owner's
Right to Examine Servicer Records.
The
Owner
shall have the right to examine and audit, at its expense, upon reasonable
notice to the Servicer, during business hours or at such other times as
might be
reasonable under applicable circumstances, any and all of the books, records,
documentation or other information of the Servicer, or held by another
for the
Servicer or on its behalf or otherwise, which relate to the performance
or
observance by the Servicer of the terms, covenants or conditions of this
Agreement.
The
Servicer shall provide to the Owner and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction
over the
Owner access to any documentation regarding the Mortgage Loans in the possession
of the Servicer which may be required by any applicable regulations. Such
access
shall be afforded without charge, upon reasonable request, during normal
business hours and at the offices of the Servicer, and in accordance with
the
applicable federal or state government regulations.
Section
6.07. Compliance
with REMIC Provisions.
If
a
REMIC election has been made with respect to the arrangement under which
the
Mortgage Loans and REO Property are held, the Servicer shall not take any
action, cause the REMIC to take any action or fail to take (or fail to
cause to
be taken) any action that, under the REMIC Provisions, if taken or not
taken, as
the case may be could (i) endanger the status of the REMIC as a REMIC or
(ii)
result in the imposition of a tax upon the REMIC (including but not limited
to
the tax on "prohibited transactions" as defined in Section 860F(a)(2) of
the
Code and the tax on "contribution" to a REMIC set forth in Section 860G(d)
of
the Code unless the Servicer has received an Opinion of Counsel (at the
expense
of the party seeking to take such actions) to the effect that the contemplated
action will not endanger such REMIC status or result in the imposition
of any
such tax.
Section
6.08. Non-solicitation.
The
Servicer shall not knowingly conduct any solicitation exclusively targeted
to
the Mortgagors for the purpose of inducing or encouraging the early prepayment
or refinancing of the related Mortgage Loans. It is understood and agreed
that
promotions undertaken by the Servicer or any agent or affiliate of the
Servicer
which are directed to the general public at large, including, without
limitation, mass mailings based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this section. Nothing contained herein shall prohibit the Servicer
from
(i) distributing to Mortgagors any general advertising including information
brochures, coupon books, or other similar documentation which indicates
services
the Servicer offers, including refinances or (ii) providing financing of
home
equity loans to Mortgagors at the Mortgagor's request.
Section
6.09. Assessment
of Compliance with Servicing Criteria.
On
and
after January 1, 2007, the Servicer shall service and administer, and shall
cause each subservicer to service or administer, the Mortgage Loans in
accordance with all applicable requirements of the Servicing
Criteria.
With
respect to the Mortgage Loans, the Servicer shall deliver to the Owner
or its
designee, the Master Servicer, the Trustee, and any Depositor on or before
March
15th of each calendar year beginning in 2008, a report (an “Assessment of
Compliance”) regarding the Servicer’s assessment of compliance with the
Servicing Criteria during the preceding calendar year as required by Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB, or
as
otherwise required by the Master Servicer, which as of the date hereof,
require
a report by an authorized officer of the Servicer that contains the
following:
(a) A
statement by such officer of its responsibility for assessing compliance
with
the Servicing Criteria applicable to the Servicer;
(b) A
statement by such officer that such officer used the Servicing Criteria
to
assess compliance with the Servicing Criteria applicable to the
Servicer;
(c) An
assessment by such officer of the Servicer’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar
year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as
a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit
J
hereto.
With
respect to the Mortgage Loans, on or before March 15th of each calendar
year
beginning in 2008, the Servicer shall furnish to the Owner or its designee,
the
Master Servicer, the Trustee and any Depositor a report (an “Attestation
Report”) by a registered public accounting firm that attests to, and reports on,
the Assessment of Compliance made by the Servicer, as required by Rules
13a-18
and 15d-18 of the Exchange Act and Item 1122(b) of Regulation AB, or as
otherwise required by the Master Servicer, which Attestation Report must
be made
in accordance with standards for attestation reports issued or adopted
by the
Public Company Accounting Oversight Board.
The
Servicer shall cause each Subservicer, and each Subcontractor determined
by the
Servicer pursuant to Section 11.15 to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Owner, the Master Servicer, the Trustee and any Depositor an assessment
of
compliance and accountants’ attestation as and when provided in Section
6.09.
In
the event the Servicer or any Subservicer or Subcontractor engaged by it
is
terminated, assigns its rights and obligations under, or resigns pursuant
to,
the terms of this Agreement, or any other applicable agreement in the case
of a
Subservicer or Subcontractor, as the case may be, such party shall provide
an
Assessment of Compliance and cause to be provided an Attestation Report
pursuant
to this Section 6.09 or to the related section of such other applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation.
Section
6.10. Intent
of the Parties; Reasonableness.
The
Owner
and the Servicer acknowledge and agree that a purpose of clause (g) of
Article
III, Sections 5.02, 6.04, 6.09 and 10.02 of this Agreement is to facilitate
compliance by the Owner and any Depositor with the provisions of Regulation
AB
and related rules and regulations of the Commission. None of the Owner,
the
Master Servicer or any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder.
The
Servicer acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by
the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply
with
requests made by the Owner or any Depositor in good faith for delivery
of
information under these provisions on the basis of evolving interpretations
of
Regulation AB. In connection with any Pass-Through Transfer, the Servicer
shall
cooperate fully with the Owner to deliver to the Owner (including any of
its
assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good
faith
determination of the Owner or any Depositor to permit the Owner or such
Depositor to comply with the provisions of Regulation AB, together with
such
disclosures relating to the Servicer, any Subservicer and the Mortgage
Loans, or
the servicing of the Mortgage Loans, reasonably believed by the Owner or
any
Depositor to be necessary in order to effect such compliance.
ARTICLE
VII
REPORTS
TO BE PREPARED BY SERVICER
Section
7.01. Servicer
Shall Provide Information as Reasonably Required.
The
Servicer shall furnish to the Owner upon request, during the term of this
Agreement, such periodic, special or other reports or information, whether
or
not provided for herein, as shall be necessary, reasonable or appropriate
with
respect to the purposes of this Agreement. The Servicer may negotiate with
the
Owner for a reasonable fee for providing such report or information, unless
(i)
the Servicer is required to supply such report or information pursuant
to any
other section of this Agreement, or (ii) the report or information has
been
requested in connection with Internal Revenue Service or other regulatory
agency
requirements. All such reports or information shall be provided by and
in
accordance with all reasonable instructions and directions given by the
Owner.
The Servicer agrees to execute and deliver all such instruments and take
all
such action as the Owner, from time to time, may reasonably request in
order to
effectuate the purpose and to carry out the terms of this
Agreement.
ARTICLE
VIII
THE
SERVICER
Section
8.01. Indemnification;
Third Party Claims.
The
Servicer agrees to indemnify the Owner, its successors and assigns, any
agent of
the Owner, and the Master Servicer, and hold each of such Persons harmless
from
and against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and
expenses
that such Person may sustain in any way related to the failure of the Servicer
to perform in any way its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement and for breach of any representation
or warranty of the Servicer contained herein. The Servicer shall immediately
notify the Owner or other indemnified Person if a claim is made by a third
party
with respect to this Agreement or the Mortgage Loans, assume (with the
consent
of the Owner and such other Indemnified Person and with counsel reasonably
satisfactory to the Owner and such Person) the defense of any such claim
and pay
all expenses in connection therewith, including counsel fees, and promptly
pay,
discharge and satisfy any judgment or decree which may be entered against
it or
such other indemnified Person in respect of such claim but failure to so
notify
the Owner and such other indemnified Person shall not limit its obligations
hereunder. The Servicer agrees that it will not enter into any settlement
of any
such claim without the consent of the Owner and such other indemnified
Person
unless such settlement includes an unconditional release of the Owner and
such
other indemnified Person from all liability that is the subject matter
of such
claim. The provisions of this Section 8.01 shall survive termination of
this
Agreement.
Section
8.02. Merger
or Consolidation of the Servicer.
The
Servicer will keep in full effect its existence, rights and franchises
as a
corporation under the laws of the state of its incorporation except as
permitted
herein, and will obtain and preserve its qualification to do business as
a
foreign corporation in each jurisdiction in which such qualification is
or shall
be necessary to protect the validity and enforceability of this Agreement
or any
of the Mortgage Loans and to perform its duties under this
Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer
whether or not related to loan servicing, shall be the successor of the
Servicer
hereunder, without the execution or filing of any paper or any further
act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
shall
be an institution (i) having a GAAP net worth of not less than $25,000,000,
(ii)
the deposits of which are insured by the FDIC, or which is a HUD-approved
mortgagee whose primary business is in origination and servicing of first
lien
mortgage loans, and (iii) which is a ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac approved
seller/servicer in good standing.
Section
8.03. Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the officers, employees or agents of the Servicer
shall
be under any liability to the Owner for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for
errors
in judgment made in good faith; provided, however, that this provision
shall not
protect the Servicer or any such person against any breach of warranties
or
representations made herein, or failure to perform in any way its obligations
in
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of gross negligence
or any
breach of the terms and conditions of this Agreement. The Servicer and
any
officer, employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by the
Owner
respecting any matters arising hereunder. The Servicer shall not be under
any
obligation to appear in, prosecute or defend any legal action which is
not
incidental to its duties to service the Mortgage Loans in accordance with
this
Agreement and which in its opinion may involve it in any expenses or liability;
provided, however, that the Servicer may, with the consent of the Owner,
which
consent shall not be unreasonably withheld, undertake any such action which
it
may deem necessary or desirable with respect to this Agreement and the
rights
and duties of the parties hereto. In such event, the reasonable legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities for which the Owner will be liable, and
the
Servicer shall be entitled to be reimbursed therefor from the Custodial
Account
pursuant to Section 4.05.
Section
8.04. Servicer
Not to Resign.
The
Servicer shall not resign from the obligations and duties hereby imposed
on it
except by mutual consent of the Servicer and the Owner or upon the determination
that its duties hereunder are no longer permissible under applicable law
and
such incapacity cannot be cured by the Servicer. Any such determination
permitting the resignation of the Servicer shall be evidenced by an Opinion
of
Counsel to such effect delivered to the Owner which Opinion of Counsel
shall be
in form and substance acceptable to the Owner. No such resignation shall
become
effective until a successor shall have assumed the Servicer's responsibilities
and obligations hereunder in the manner provided in Section 11.01.
Section
8.05. No
Transfer of Servicing.
With
respect to the retention of the Servicer to service the Mortgage Loans
hereunder, the Servicer acknowledges that the Owner has acted in reliance
upon
the Servicer's independent status, the adequacy of its servicing facilities,
plan, personnel, records and procedures, its integrity, reputation and
financial
standing and the continuance thereof. Without in any way limiting the generality
of this section, the Servicer shall not either assign this Agreement or
the
servicing hereunder or delegate its rights or duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written approval of the Owner, which
approval shall not be unreasonably withheld; provided that the Servicer
may
assign the Agreement and the servicing hereunder without the consent of
Owner to
an affiliate of the Servicer to which all servicing of the Servicer is
assigned
so long as (i) such affiliate is a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved
servicer
and (ii) if it is intended that such affiliate be spun off to the shareholders
of the Servicer, such affiliate have a GAAP net worth of at least $25,000,000
and (iii) such affiliate shall deliver to the Owner a certification pursuant
to
which such affiliate shall agree to be bound by the terms and conditions
of this
Agreement and shall certify that such affiliate is a ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇
Mac
approved servicer in good standing.
ARTICLE
IX
DEFAULT
Section
9.01. Events
of Default.
In
case
one or more of the following Events of Default by the Servicer shall occur
and
be continuing, that is to say:
(i) any
failure by the Servicer to remit to the Owner any payment required to be
made
under the terms of this Agreement which continues unremedied for one (1)
Business Day after written notice thereof (it being understood that this
subparagraph shall not affect Servicer's obligation pursuant to Section
5.01 to
pay default interest on any remittance received by the Owner after the
Business
Day on which such payment was due); or
(ii) any
failure on the part of the Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
set
forth in this Agreement (other than those described in clause (ix) hereof),
the
breach of which has a material adverse effect and which continue unremedied
for
a period of thirty days (except that such number of days shall be fifteen
in the
case of a failure to pay any premium for any insurance policy required
to be
maintained under this Agreement and such failure shall be deemed to have
a
material adverse effect) after the date on which written notice of such
failure,
requiring the same to be remedied, shall have been given to the Servicer
by the
Owner; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and liabilities
or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(iv) the
Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(v) the
Servicer shall admit in writing its inability to pay its debts generally
as they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) the
Servicer ceases to be approved by either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac (to
the
extent such entities are then operating in a capacity similar to that in
which
they operate on the date hereof) as a mortgage loan servicer for more than
thirty days to the extent such entities perform similar functions;
or
(vii) the
Servicer attempts to assign its right to servicing compensation hereunder
or the
Servicer attempts, without the consent of the Owner, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its
duties
hereunder or any portion thereof except as otherwise permitted herein;
or
(viii) the
Servicer ceases to be qualified to transact business in any jurisdiction
where
it is currently so qualified, but only to the extent such non-qualification
materially and adversely affects the Servicer's ability to perform its
obligations hereunder; or
(ix) failure
by the Servicer to duly perform, within the required time period, its
obligations under Section 6.04, 6.09 or any of clauses (v) through (viii)
of
Section 10.02;
then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Owner, by notice in writing to the Servicer may, in addition
to
whatever rights the Owner may have under Section 8.01 and at law or equity
to
damages, including injunctive relief and specific performance, terminate
all the
rights and obligations of the Servicer (and if the Servicer is servicing
any of
the Mortgage Loans in a Pass-Through Transfer, appoint a successor servicer
reasonably acceptable to the Master Servicer for such Pass-Through Transfer)
under this Agreement and in and to the Mortgage Loans and the proceeds
thereof
without compensating the Servicer for the same. On or after the receipt
by the
Servicer of such written notice, all authority and power of the Servicer
under
this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall
pass to and be vested in the successor appointed pursuant to Section 11.01.
Upon
written request from the Owner, the Servicer shall prepare, execute and
deliver,
any and all documents and other instruments, place in such successor's
possession all Servicing Files, and do or accomplish all other acts or
things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise, at the Servicer's sole expense.
The
Servicer agrees to cooperate with the Owner and such successor in effecting
the
termination of the Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to such successor for administration by
it of
all cash amounts which shall at the time be credited by the Servicer to
the
Custodial Account or Escrow Account or thereafter received with respect
to the
Mortgage Loans or any REO Property.
The
Servicer shall promptly reimburse the Owner (or any designee of the Owner,
such
as a master servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Owner (or such designee) or such Depositor, as
such are
incurred, in connection with the termination of the Servicer as servicer
and the
transfer of servicing of the Mortgage Loans to a successor servicer, if
the
termination and/or transfer of servicing is for cause related to a servicer
default. The provisions of this paragraph shall not limit whatever rights
the
Owner or any Depositor may have under other provisions of this Agreement
and/or
any applicable Reconstitution Agreement or otherwise, whether in equity
or at
law, such as an action for damages, specific performance or injunctive
relief.
Section
9.02. Waiver
of Defaults.
The
Owner
may waive only by written notice any default by the Servicer in the performance
of its obligations hereunder and its consequences. Upon any such waiver
of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose
of
this Agreement. No such waiver shall extend to any subsequent or other
default
or impair any right consequent thereon except to the extent expressly so
waived
in writing.
ARTICLE
X
TERMINATION
Section
10.01. Termination.
The
respective obligations and responsibilities of the Servicer shall terminate
upon: (i) the later of the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or the disposition of all
REO
Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Servicer and the Owner in writing; or (iii) termination
by the
Owner pursuant to Section 9.01. Simultaneously with any such termination
and the
transfer of servicing hereunder, the Servicer shall be entitled to be reimbursed
for any outstanding Servicing Advances and Monthly Advances.
Section
10.02. Cooperation
of Servicer with a Reconstitution.
The
Servicer and the Owner agree that with respect to some or all of the Mortgage
Loans, on or after the related closing date, on one or more dates (each
a
"Reconstitution Date") at the Owner's sole option, the Owner may effect
a sale
(each, a "Reconstitution") of some or all of the Mortgage Loans then subject
to
this Agreement, without recourse, to:
(a) one
or
more third party purchasers in one or more in whole loan transfers (each,
a
"Whole Loan Transfer"); or
(b) one
or
more trusts or other entities to be formed as part of one or more Pass-Through
Transfers.
The
Servicer agrees to execute in connection with any agreements among the
Owner,
the Servicer, and any servicer in connection with a Whole Loan Transfer,
an
assignment, assumption and recognition agreement, or, at Owner’s request, a
seller's warranties and servicing agreement or a participation and servicing
agreement or similar agreement in form and substance reasonably acceptable
to
the parties, and in connection with a Pass-Through Transfer, a pooling
and
servicing agreement in form and substance reasonably acceptable to the
parties.
It is understood that any such Reconstitution Agreements will not contain
any
greater obligations on the part of Servicer than are contained in this
Agreement.
With
respect to each Whole Loan Transfer and each Pass-Through Transfer entered
into
by the Owner, the Servicer agrees (1) to cooperate fully with the Owner
and any
prospective purchaser with respect to all reasonable requests and due diligence
procedures; (2) to execute, deliver and perform all Reconstitution Agreements
required by the Owner; (3) to restate the representations and warranties
set
forth in this Agreement as of the settlement or closing date in connection
with
such Reconstitution (each, a "Reconstitution Date").
In
addition, the Servicer shall provide to such servicer or issuer, as the case may
be, and any other participants in such Reconstitution:
(i) any
and
all information and appropriate verification of information which may be
reasonably available to the Servicer, whether through letters of its auditors
and counsel or otherwise, as the Owner or any such other participant shall
request upon reasonable demand;
(ii) such
additional representations, warranties, covenants, opinions of counsel,
letters
from auditors, and certificates of public officials or officers of the
Servicer
as are reasonably agreed upon by the Servicer and the Owner or any such
other
participant;
(iii) within
5
Business Days after request by the Owner, the information with respect
to the
Servicer (as servicer) as required by Item 1108(b) and (c) of Regulation
AB, a
summary of the requirements of which as of the date hereof is attached
hereto as
Exhibit
I
for
convenience of reference only, as determined by Owner in its sole discretion.
In
the event that the Servicer has delegated any servicing responsibilities
with
respect to the Mortgage Loans to a Subservicer, the Servicer shall provide
the
information required pursuant to this clause with respect to the
Subservicer;
(iv) within
5
Business Days after request by the Owner,
(a)
information regarding any legal proceedings pending (or known to be
contemplated) against the Servicer (as servicer) and each Subservicer as
required by Item 1117 of Regulation AB, a summary of the requirements of
which
as of the date hereof is attached hereto as Exhibit
I
for
convenience of reference only, as determined by Owner in its sole
discretion,
(b)
information regarding affiliations with respect to the Servicer (as servicer)
and each Subservicer as required by Item 1119(a) of Regulation AB, a summary
of
the requirements of which as of the date hereof is attached hereto as
Exhibit
I
for
convenience of reference only, as determined by Owner in its sole discretion,
and
(c)
information regarding relationships and transactions with respect to the
Servicer (as servicer) and each Subservicer as required by Item 1119(b)
and (c)
of Regulation AB, a summary of the requirements of which as of the date
hereof
is attached hereto as Exhibit
I
for
convenience of reference only, as determined by Owner in its sole
discretion;
(v) for
the
purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Servicer shall (or
shall
cause each Subservicer to) (i) provide prompt notice to the Owner, the
Master
Servicer and any Depositor in writing of (A) any material litigation or
governmental proceedings involving the Servicer or any Subservicer, (B)
any
affiliations or relationships that develop following the closing date of
a
Pass-Through Transfer between the Servicer or any Subservicer and any of
the
parties specified in clause (D) of paragraph (a) of this Section (and any
other
parties identified in writing by the requesting party) with respect to
such
Pass-Through Transfer, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation
or sale
of substantially all of the assets of the Servicer, and (E) the Servicer’s entry
into an agreement with a Subservicer to perform or assist in the performance
of
any of the Servicer’s obligations under this Agreement or any Reconstitution
Agreement and (ii) provide to the Owner and any Depositor a description
of such
proceedings, affiliations or relationships;
(vi) as
a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any
Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner, the Master Servicer,
and
any Depositor, at least 15 calendar days prior to the effective date of
such
succession or appointment, (x) written notice to the Owner and any Depositor
of
such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Owner and such Depositor, all information
reasonably requested by the Owner or any Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K with respect to any class
of
asset-backed securities;
(vii) in
addition to such information as the Servicer, as servicer, is obligated
to
provide pursuant to other provisions of this Agreement, not later than
ten days
prior to the deadline for the filing of any distribution report on Form
10-D in
respect of any Pass-Through Transfer that includes any of the Mortgage
Loans
serviced by the Servicer or any Subservicer, the Servicer or such Subservicer,
as applicable, shall, to the extent the Servicer or such Subservicer has
knowledge, provide to the party responsible for filing such report (including,
if applicable, the Master Servicer) notice of the occurrence of any of
the
following events along with all information, data, and materials related
thereto
as may be required to be included in the related distribution report on
Form
10-D (as specified in the provisions of Regulation AB referenced
below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(C) information
regarding new asset-backed securities issuances backed by the same pool
assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB);
and
(viii) the
Servicer shall provide to the Owner, the Master Servicer and any Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors
and
Omission Insurance policy, financial information and reports, and such
other
information related to the Servicer or any Subservicer or the Servicer
or such
Subservicer’s performance hereunder.
In
the
event of a conflict or inconsistency between the terms of Exhibit
I
and the
text of the applicable Item of Regulation AB as cited above, the text of
Regulation AB, its adopting release and other public statements of the
SEC shall
control.
The
Servicer shall indemnify the Owner, each affiliate of the Owner, and each
of the
following parties participating in a Pass-Through Transfer: each issuing
entity;
each Person (including, but not limited to, the Master Servicer, if applicable)
responsible for the preparation, execution or filing of any report required
to
be filed with the Commission with respect to such Pass-Through Transfer,
or for
execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under
the Exchange Act with respect to such Pass-Through Transfer; each broker
dealer
acting as underwriter, placement agent or initial purchaser, each Person
who
controls any of such parties or the Depositor (within the meaning of Section
15
of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees, agents and affiliates
of each
of the foregoing and of the Depositor (each, an “Indemnified Party”), and shall
hold each of them harmless from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may
sustain
arising out of or based upon:
(i)(A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, data, accountants’ letter or other
material provided under this Section 10.02 by or on behalf of the Servicer,
or
provided under this Section 10.02, Sections 6.04 and 6.09 and by or on
behalf of
any Subservicer or Subcontractor (collectively, the “Servicer Information”), or
(B) the omission or alleged omission to state in the Servicer Information
a
material fact required to be stated in the Servicer Information or necessary
in
order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided, by way of clarification,
that
clause (B) of this paragraph shall be construed solely by reference to
the
Servicer Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or separately
from
such other information;
(ii)
any
breach by the Servicer of its obligations under this Section 10.02, including
particularly any failure by the Servicer, any Subservicer or any Subcontractor
to deliver any information, report, certification, accountants’ letter or other
material when and as required under this Section 10.02, including any failure
by
the Servicer to identify pursuant to Section 11.15 any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB;
(iii)
any
breach by the Servicer of a representation or warranty set forth in Section
Article III or in a writing furnished pursuant to clause (h) of Article
III and
made as of a date prior to the closing date of the related Pass-Through
Transfer, to the extent that such breach is not cured by such closing date,
or
any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to clause (h) of Article III to the extent made as of
a date
subsequent to such closing date; or
(iv)
the
negligence bad faith or willful misconduct of the Servicer in connection
with
its performance under this Section 10.02.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Servicer agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of
any
claims, losses, damages or liabilities incurred by such Indemnified Party
in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Servicer on the other.
In
the
case of any failure of performance described above, the Servicer shall
promptly
reimburse the Owner, any Depositor, as applicable, and each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Pass-Through Transfer, or for execution
of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Pass-Through Transfer, for all costs reasonably
incurred by each such party in order to obtain the information, report,
certification, accountants’ letter or other material not delivered pursuant to
this Section or Section 6.04 or Section 6.09 as required by the Servicer,
any
Subservicer or any Subcontractor.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
All
Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer
or Pass
Through Transfer shall be subject to this Agreement and shall continue
to be
serviced in accordance with the terms of this Agreement and with respect
thereto
this Agreement shall remain in full force and effect.
Section
10.03. Master
Servicer.
The
Servicer, including any successor servicer hereunder, shall be subject
to the
supervision of the Master Servicer, which Master Servicer shall be obligated
to
ensure that the Servicer services the Mortgage Loans in accordance with
the
provisions of this Agreement. The Master Servicer, acting on behalf of
the
Owner, shall have the same rights as the Owner to enforce the obligations
of the
Servicer under this Agreement. The Master Servicer, or the entity specified
in
the related pooling and servicing agreement, shall be entitled to terminate
the
rights and obligations of the Servicer under this Agreement upon the failure
of
the Servicer to perform any of its obligations under this Agreement if
such
failure constitutes an Event of Default as provided in Article IX of this
Agreement. Notwithstanding anything to the contrary, in no event shall
the
Master Servicer assume any of the obligations of the Owner under this
Agreement.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01. Successor
to the Servicer.
Prior
to
termination of the Servicer's responsibilities and duties under this Agreement
pursuant to Sections 8.04, 9.01 or 10.01(ii), the Owner shall (i) succeed
to and
assume all of the Servicer's responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor having the characteristics
set
forth in Section 8.02 hereof and which shall succeed to all rights and
assume
all of the responsibilities, duties and liabilities of the Servicer under
this
Agreement prior to the termination of the Servicer's responsibilities,
duties
and liabilities under this Agreement. In connection with such appointment
and
assumption, the Owner may make such arrangements for the compensation of
such
successor out of payments on Mortgage Loans as the Owner and such successor
shall agree. In the event that the Servicer's duties, responsibilities
and
liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge
of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and
shall
take no action whatsoever that might impair or prejudice the rights or
financial
condition of its successor. The resignation or removal of the Servicer
pursuant
to the aforementioned sections shall not become effective until a successor
shall be appointed pursuant to this section and shall in no event relieve
the
Servicer of the representations and warranties made pursuant to Article
III and
the remedies available to the Owner under Section 8.01, it being understood
and
agreed that the provisions of such Article III and Section 8.01 shall be
applicable to the Servicer notwithstanding any such resignation or termination
of the Servicer, or the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer and to the Owner an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights,
powers,
duties, responsibilities, obligations and liabilities of the Servicer,
with like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Servicer or this Agreement pursuant to Section 8.04,
9.01 or
10.01 shall not affect any claims that the Owner may have against the Servicer
arising prior to any such termination or resignation.
The
Servicer shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Servicing Files and related documents
and
statements held by it hereunder and the Servicer shall account for all
funds.
The Servicer shall execute and deliver such instruments and do such other
things
all as may reasonably be required to more fully and definitely vest and
confirm
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Servicer. The successor shall make such arrangements
as
it may deem appropriate to reimburse the Servicer for unrecovered Monthly
Advances and Servicing Advances which the successor retains hereunder and
which
would otherwise have been recovered by the Servicer pursuant to this Agreement
but for the appointment of the successor servicer.
Upon
a
successor's acceptance of appointment as such, the Servicer shall notify
the
Owner of such appointment.
All
reasonable costs and expenses incurred in connection with replacing the
Servicer
upon its resignation or the termination of the Servicer in accordance with
the
terms of this Agreement, including, without limitation, (i) all legal costs
and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an Event of
Default
and (ii) all costs and expenses associated with the complete transfer of
servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be
required
by the successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor service to service
the
Mortgage Loans in accordance with this Agreement, shall be payable on demand
by
the resigning or terminated Servicer without any right of reimbursement
therefor.
Section
11.02. Amendment.
This
Agreement may be amended from time to time by the Servicer and the Owner
by
written agreement signed by the Servicer and the Owner.
Section
11.03. Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of all the properties subject
to the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Servicer at the Owner's
expense on direction of the Owner accompanied by an opinion of counsel
to the
effect that such recordation materially and beneficially affects the interest
of
the Owner or is necessary for the administration or servicing the Mortgage
Loans.
Section
11.04. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAWS. THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section
11.05. Notices.
Any
demands, notices or other communications permitted or required hereunder
shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return
receipt
requested or transmitted by telecopier and confirmed by a similar mailed
writing, as follows:
(i) if
to the
Servicer:
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if
to the
Owner:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Global Credit Administration
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if
to the
Master Servicer:
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
or
such
other address as may hereafter be furnished to the other party by like
notice.
Any such demand, notice, or communication hereunder shall be deemed to
have been
received on the date delivered to or received at the premises of the address
(as
evidenced, in the case of registered or certified mail, by the date noted
on the
return receipt).
Section
11.06. Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which
prohibits
or renders void or unenforceable any provision hereof. If the invalidity
of any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement,
the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of
this
Agreement without regard to such invalidity.
Section
11.07. Exhibits
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
11.08. General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii) references
herein to "Articles," "Sections," "Subsections," "Paragraphs," and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v) the
words
"herein," "hereof," "hereunder" and other words of similar import refer
to this
Agreement as a whole and not to any particular provision; and
(vi) the
term
"include" or "including" shall mean without limitation by reason of
enumeration.
Section
11.09. Reproduction
of Documents.
This
Agreement and all documents relating hereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may
be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in
any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
11.10. Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become
privy to
non-public information regarding the financial condition, operations and
prospects of the other party. Except as required to be disclosed by law,
each
party agrees to keep all non-public information regarding the other party
strictly confidential, and to use all such information solely in order
to
effectuate the purpose of this Agreement.
Section
11.11. Assignment
by the Owner.
The
Owner
shall have the right, without the consent of the Servicer hereof, to assign,
in
whole or in part, its interest under this Agreement with respect to some
or all
of the Mortgage Loans, and designate any person to exercise any rights
of the
Owner hereunder, by executing an assignment and assumption agreement reasonably
acceptable to the Servicer and the assignee or designee shall accede to
the
rights and obligations hereunder of the Owner with respect to such Mortgage
Loans. In no event shall Owner sell a partial interest in any Mortgage
Loan. All
references to the Owner in this Agreement shall be deemed to include its
assignees or designees. It is understood and agreed between the Owners
and the
Servicer that no more than five (5) Persons shall have the right of owner
under
this Agreement at any one time.
Section
11.12. No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership
or
joint venture between the parties hereto and the services of the Servicer
shall
be rendered as an independent contractor and not as agent for
Owner.
Section
11.13. Execution,
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.05, this Agreement shall inure
to
the benefit of and be binding upon the Servicer and the Owner and their
respective successors and assigns.
Section
11.14. Entire
Agreement.
Each
of
the Servicer and the Owner acknowledge that no representations, agreements
or
promises were made to it by the other party or any of its employees other
than
those representations, agreements or promises specifically contained herein.
This Agreement sets forth the entire understanding between the parties
hereto
and shall be binding upon all successors of both parties.
Section
11.15. Use
of
Subservicers and Subcontractors.
(a) The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
or any Reconstitution Agreement unless the Servicer complies with the provisions
of paragraph (b) of this Section. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the servicers of any Subcontractor, to fulfill
any
of the obligations of the Servicer as servicer under this Agreement or
any
Reconstitution Agreement unless the Servicer complies with the provisions
of
paragraph (d) of this Section. The Servicer must notify the Owner, the
Master
Servicer and any Depositor in writing of any affiliations or relationships
that
develop following the closing date between the Servicer or any Subservicer.
(b) The
Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Owner and any Depositor to comply with
the
provisions of this Section and with clauses (g) and (j) of Article III,
Sections
6.04, 6.09 and 10.02 of this Agreement to the same extent as if such Subservicer
were the Owner, and to provide the information required with respect to
such
Subservicer under Section 3.01(i) of this Agreement. The Servicer shall
be
responsible for obtaining from each Subservicer and delivering to the Owner,
the
Master Servicer and any Depositor any Annual Statement of Compliance required
to
be delivered by such Subservicer under Section 6.04(a), any Assessment
of
Compliance and Attestation Report required to be delivered by such Subservicer
under Section 6.09, any Annual Certification required under Section 6.04(b),
any
Additional Form 10-D Disclosure and any Form 8-K Disclosure Information,
as and
when required to be delivered.
(c) The
Servicer shall promptly upon request provide to the Owner, the Master Servicer
and any Depositor (or any designee of the Depositor, such as an administrator)
a
written description (in form and substance satisfactory to the Owner, the
Master
Servicer and such Depositor) of the role and function of each Subcontractor
utilized by the Servicer or any Subservicer, specifying (i) the identity
of each
such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will
be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
(d) As
a condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by
the
Servicer (or by any Subservicer) for the benefit of the Owner and any Depositor
to comply with the provisions of Sections 6.07 and 10.02 of this Agreement
to
the same extent as if such Subcontractor were the Servicer. The Servicer
shall
be responsible for obtaining from each Subcontractor and delivering to
the Owner
and any Depositor any Assessment of Compliance and Attestation Report and
other
certificates required to be delivered by such Subservicer and such Subcontractor
under Section 6.09 (and any Annual Certification required under Section
6.09(b)), in each case as and when required to be delivered.
11.16. Third
Party Beneficiary
For
purposes of this Agreement, each Master Servicer shall be considered a
third
party beneficiary to this Agreement, entitled to all the rights and benefits
hereof as if it were a direct party to this Agreement.
IN
WITNESS WHEREOF, the Servicer and the Owner have caused their names to
be signed
hereto by their respective officers thereunto duly authorized as of the
date and
year first above written.
|
EMC
MORTGAGE CORPORATION,
as
Servicer
|
|||||||||||||
|
By:
|
|
||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II
INC.,
as
Owner
|
|||||||||||||
|
By:
|
|
||||||||||||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||||||||||||
|
Title:
|
Vice President | ||||||||||||
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
(date)
| To: | |||
|
(the
"Depository")
|
As
"Servicer" under the Servicing Agreement, dated as of April 1, 2007, (the
"Agreement"), we hereby authorize and request you to establish an account,
as a
Custodial Account pursuant to Section 4.04 of the Agreement, to be designated
as
"EMC Custodial Account, in trust for ▇▇▇▇ ▇▇, Owner of Whole Loan Mortgages,
and
various Mortgagors." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. You may refuse any deposit which
would result in violation of the requirement that the account be fully
insured
as described below. This letter is submitted to you in duplicate. Please
execute
and return one original to us.
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
The
undersigned, as "Depository", hereby certifies that the above described
account
has been established under Account Number __________, at the office of
the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance Fund
or
will be invested in Permitted Investments as defined in the
Agreement.
| [ ] | ||||||||||||||
| (name of Depository) | ||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
(date)
| To: | |||
|
(the
"Depository")
|
As
"Servicer" under the Servicing Agreement, dated as of April 1, 2007 (the
"Agreement"), we hereby authorize and request you to establish an account,
as an
Escrow Account pursuant to Section 4.06 of the Agreement, to be designated
as
"EMC Escrow Account, in trust for ▇▇▇▇ ▇▇, Owner of Whole Loan Mortgages,
and
various Mortgagors." All deposits in the account shall be subject to withdrawal
therefrom by order signed by the Servicer. You may refuse any deposit which
would result in violation of the requirement that the account be fully
insured
as described below. This letter is submitted to you in duplicate. Please
execute
and return one original to us.
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
The
undersigned, as "Depository", hereby certifies that the above described
account
has been established under Account Number __________, at the office of
the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account
will be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance
Fund or
will be invested in Permitted Investments as defined in the
Agreement.
| [ ] | ||||||||||||||
| (name of Depository) | ||||||||||||||
|
By:
|
||||||||||||||
|
Name:
|
||||||||||||||
|
Title:
|
||||||||||||||
EXHIBIT
D
REQUEST
FOR RELEASE OF DOCUMENTS
|
To:
|
U.S.
Bank National Association
|
|
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
|
|
|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
Attn:
________________
|
|
Re:
|
Custodial
Agreement dated as of April 30, 2007, between EMC Mortgage Corporation
and
U.S. Bank National Association, as
Custodian
|
In
connection with the administration of the Mortgage Loans held by you as
Custodian for the Owner pursuant to the above-captioned Custody Agreement,
we
request the release, and hereby acknowledge receipt, of the Custodian's
Mortgage
File for the Mortgage Loan described below, for the reason
indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
_______ 1. Mortgage
Paid in Full
_______ 2. Foreclosure
_______ 3.
Substitution
_______ 4. Other
Liquidation (Repurchases, etc.)
_______ 5. Nonliquidation
[Reason:_______________________________]
|
Address
to which Custodian should
|
||
|
Deliver
the Custodian's Mortgage File:
|
|
|
|
|
||
|
|
||
| By: |
|
|
|
(authorized
signer)
|
||
| Issuer: |
|
|
| Address: |
|
|
|
|
||
| Date: |
|
Custodian
U.S.
Bank
National Association
Please
acknowledge the execution of the above request by your signature and date
below:
____________________________________
_________________
Signature Date
Documents
returned to Custodian:
____________________________________ _________________
Custodian Date
EXHIBIT
E
EMC
FORM
- REMITTANCE OVERVIEW REPORT
Remittance
Overview Report:
Provides loan level detail regarding the remittance that will be submitted
to
EMC Master Servicing and contains the following data fields in the order
below:
|
Field
|
Field
Description
|
|
Deal
Name
|
VARCHAR
(15)
|
|
Master
Servicer Loan Number
|
NUMERIC
(9,0)
|
|
Current
Investor Category
|
VARCHAR
(5)
|
|
Original
Investor Category
|
VARCHAR
(5)
|
|
Servicer
Loan Number
|
VARCHAR
(15)
|
|
Cutoff
Date
|
DATE
(MM/DD/YYYY)
|
|
Loan
Next Due Date
|
DATE
(MM/DD/YYYY)
|
|
Gross
Interest Rate
|
NUMERIC
(7,7)
|
|
Net
Interest Rate
|
NUMERIC
(7,7)
|
|
Pending
Interest Rate
|
NUMERIC
(7,7)
|
|
Servicing
Fee Rate
|
NUMERIC
(7,7)
|
|
MI
Rate
|
NUMERIC
(7,7)
|
|
Scheduled
P&I Amount (P & I Constant)
|
NUMERIC
(12,2)
|
|
ARM
Index
|
NUMERIC
(7,7)
|
|
Pending
ARM Index
|
NUMERIC
(7,7)
|
|
Beginning
Scheduled Principal Balance
|
NUMERIC
(12,2)
|
|
Actual
Principal Remitted
|
NUMERIC
(12,2)
|
|
Actual
Principal Curtailment Remitted
|
NUMERIC
(12,2)
|
|
Curtailment
Adjustment Remitted
|
NUMERIC
(12,2)
|
|
Liquidation
Principal Remitted
|
NUMERIC
(12,2)
|
|
Principal
Not Advanced (stop advance loans only)
|
NUMERIC
(12,2)
|
|
Scheduled
Gross Interest
|
NUMERIC
(12,2)
|
|
Actual
Interest Remitted
|
NUMERIC
(12,2)
|
|
Scheduled
Service Fee Amount
|
NUMERIC
(12,2)
|
|
Soldiers
and Sailors Variance
|
NUMERIC
(12,2)
|
|
Net
Interest Not Advanced
|
NUMERIC
(12,2)
|
|
Prepayment
Penalty Remitted
|
NUMERIC
(12,2)
|
|
PMI
Premium Remitted
|
NUMERIC
(12,2)
|
|
Additional
Fees Remitted
|
NUMERIC
(12,2)
|
|
Ending
Scheduled Balance
|
NUMERIC
(12,2)
|
|
Actual
Amount Remitted Total (each loan)
|
NUMERIC
(12,2)
|
|
Beginning
Actual Balance
|
NUMERIC
(12,2)
|
|
Actual
Principal Collected
|
NUMERIC
(12,2)
|
|
Actual
Curtailments Collected
|
NUMERIC
(12,2)
|
|
Curtailment
Adjustment Collected
|
NUMERIC
(12,2)
|
|
Gross
Interest Collected
|
NUMERIC
(12,2)
|
|
Net
Interest Collected
|
NUMERIC
(12,2)
|
|
Service
Fee Collected
|
NUMERIC
(12,2)
|
|
Actual
Ending Principal Balance
|
NUMERIC
(12,2)
|
|
Liquidation
Date
|
DATE
(MM/DD/YYYY)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Gross
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
Liquidation
Expenses
|
NUMERIC
(12,2)
|
|
Principal
and Interest Advanced Balance
|
NUMERIC
(12,2)
|
|
Delinquent
Service Fee
|
NUMERIC
(12,2)
|
|
Calculated
Loss to Trust
|
NUMERIC
(12,2)
|
|
Net
Interest Remitted
|
NUMERIC
(12,2)
|
|
Collected
Interest Not Remitted
|
NUMERIC
(12,2)
|
|
Ending
Advance Balance
|
NUMERIC
(12,2)
|
|
Soldiers
and Sailors Flag
|
VARCHAR
(1)
|
|
Soldiers
and Sailors Old Rate
|
NUMERIC
(7,7)
|
|
Soldiers
and Sailors Old P & I
|
NUMERIC
(12,2)
|
|
Modified
Date
|
DATE
(MM/DD/YYYY)
|
|
Stop
Advance Flag
|
|
|
Stop
Advance Date
|
DATE
(MM/DD/YYYY)
|
|
BPO
Value
|
NUMERIC
(12,2)
|
|
Cash
Flow Group
|
VARCHAR
(2)
|
|
MSP
Principal Balance
|
NUMERIC
(12,2)
|
|
Debt
Forgiven / Charged Off
|
NUMERIC
(12,2)
|
|
Mortgagor
PITI Payment
|
NUMERIC
(12,2)
|
|
Bankruptcy
Status
|
VARCHAR
(2)
|
|
Foreclosure
Status
|
VARCHAR
(2)
|
|
Modification
Status
|
|
|
Interest
Only Loan
|
VARCHAR
(2)
|
|
Escrowed
Loan
|
VARCHAR
(2)
|
|
Monthly
Escrow Deposit
|
NUMERIC
(12,2)
|
|
Escrow
Balance
|
NUMERIC
(12,2)
|
|
Escrow
Advance Balance
|
NUMERIC
(12,2)
|
|
Restricted
Escrow Balance
|
NUMERIC
(12,2)
|
|
Mortgagor
Recoverable Corporate Expense Balance
|
NUMERIC
(12,2)
|
|
Non-Recoverable
Corporate Expense Balance
|
NUMERIC
(12,2)
|
|
HUD
235 Loan Status
|
VARCHAR
(2)
|
|
HUD
235 Balance
|
NUMERIC
(12,2)
|
|
Late
Charge Balance
|
NUMERIC
(12,2)
|
|
Buydown
Loan Status
|
VARCHAR
(2)
|
|
Monthly
Buydown Amount
|
NUMERIC
(12,2)
|
|
Monthly
Buydown Funds Balance
|
NUMERIC
(12,2)
|
|
Prepayment
Penalty Amount Waived
|
NUMERIC
(12,2)
|
|
Prepayment
Penalty Waived Reason Code
|
VARCHAR
(3)
|
|
Material
Breach Status
|
VARCHAR
(3)
|
|
Material
Breach Code
|
VARCHAR
(3)
|
|
Prefunding
Date
|
DATE
(MM/DD/YYYY)
|
|
3rd
Party Recoverable Expenses
|
NUMERIC
(12,2)
|
EXHIBIT
F
EMC
FORM
- REMITTANCE SUMMARY REPORT
Remittance
Summary Report:
Provides summary data at a deal (investor/category) level regarding the
remittance that will be submitted to EMC Master Servicing and contains
the
following data fields in the order below:
|
Field
|
Field
Description
|
|
Deal
|
VARCHAR
(15)
|
|
Investor
|
VARCHAR
(5)
|
|
Category
|
VARCHAR
(5)
|
|
Principal
Remitted
|
NUMERIC
(15,2)
|
|
Curtailments
Remitted
|
NUMERIC
(15,2)
|
|
Curtailment
Adjustments Remitted
|
NUMERIC
(15,2)
|
|
Liquidation
Proceeds Remitted
|
NUMERIC
(15,2)
|
|
Principal
Not Advanced (stop advance loans only)
|
NUMERIC
(15,2)
|
|
Principal
Amounts Called/Collapsed
|
NUMERIC
(15,2)
|
|
Total
Principal Remitted
|
NUMERIC
(15,2)
|
|
Interest
Remitted
|
NUMERIC
(15,2)
|
|
PMI
Premiums Remitted
|
NUMERIC
(15,2)
|
|
Soldiers
and Sailors Difference
|
NUMERIC
(15,2)
|
|
Net
Interest Not Advanced
|
NUMERIC
(15,2)
|
|
Non
Comp Interest Remitted
|
NUMERIC
(15,2)
|
|
Prepayment
Penalties Remitted
|
NUMERIC
(15,2)
|
|
Total
Interest Remitted
|
NUMERIC
(15,2)
|
|
Arrearage
Amount Remitted
|
NUMERIC
(15,2)
|
|
Aggregate
Loss to Trust
Total
Manual Adjustments
|
NUMERIC
(15,2)
|
|
Debt
Forgiven/ Charged Off
|
NUMERIC
(15,2)
|
|
Additional
Fees Collected
|
NUMERIC
(15,2)
|
|
Total
Remittance
|
NUMERIC
(15,2)
|
EXHIBIT
G
FORM
OF
SERVICER CERTIFICATION
Re: The
[ ]
agreement dated as of [ l,
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
____________________________, the _______________________ of [NAME OF COMPANY]
(the “Company”), certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Trustee], and their officers, with the knowledge and intent
that they
will rely upon this certification, that:
I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all servicing
reports, Officer’s Certificates and other information relating to the servicing
of the Mortgage Loans by the Company during 200[ ] that were delivered
by the
Company to the [Depositor] [Master Servicer] [Trustee] pursuant to the
Agreement
(collectively, the “Company Servicing Information”);
Based
on
my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor]
[Master
Servicer] [Trustee];
I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed
in the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Company has fulfilled its obligations under the Agreement in all material
respects; and
The
Compliance Statement required to be delivered by the Company pursuant to
this
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Company and by any Subservicer and Subcontractor pursuant
to the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any
material
instances of noncompliance described in such reports have been disclosed
to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
EXHIBIT
H
SUMMARY
OF REGULATION AB SERVICING
CRITERIA
NOTE:
This Exhibit H is provided for convenience of reference only. In the event
of a
conflict or inconsistency between the terms of this Exhibit H and the text
of
Regulation AB, the text of Regulation AB, its adopting release and other
public
statements of the SEC shall control.
Item
1122(d)
| (a) |
General
servicing considerations.
|
(1) Policies
and procedures are instituted to monitor any performance or other triggers
and
events of default in accordance with the transaction agreements.
(2) If
any
material servicing activities are outsourced to third parties, policies
and
procedures are instituted to monitor the third party’s performance and
compliance with such servicing activities.
(3) Any
requirements in the transaction agreements to maintain a back-up servicer
for
the mortgage loans are maintained.
(4) A
fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period
in the
amount of coverage required by and otherwise in accordance with the terms
of the
transaction agreements.
| (b) |
Cash
collection and administration.
|
(1) Payments
on mortgage loans are deposited into the appropriate custodial bank accounts
and
related bank clearing accounts no more than two business days following
receipt,
or such other number of days specified in the transaction
agreements.
(2) Disbursements
made via wire transfer on behalf of an obligor or
to an
investor are made only by authorized personnel.
(3) Advances
of funds or guarantees regarding collections, cash flows or distributions,
and
any interest or other fees charged for such advances, are made, reviewed
and
approved as specified in the transaction agreements.
(4) The
related accounts for the transaction, such as cash reserve accounts or
accounts
established as a form of overcollateralization, are separately maintained
(e.g.,
with respect to commingling of cash) as set forth in the transaction
agreements.
(5) Each
custodial account is maintained at a federally insured depository institution
as
set forth in the transaction agreements. For purposes of this criterion,
“federally insured depository institution” with respect to a foreign financial
institution means a foreign financial institution that meets the requirements
of
Rule 13k-1(b)(1) of the Securities Exchange Act.
(6) Unissued
checks are safeguarded so as to prevent unauthorized access.
(7) Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank
accounts, including custodial accounts and related bank clearing accounts.
These
reconciliations are (A) mathematically accurate; (B) prepared within 30
calendar
days after the bank statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and approved by someone
other than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are resolved
within
90 calendar days of their original identification, or such other number
of days
specified in the transaction agreements.
| (c) |
Investor
remittances and reporting.
|
(1) Reports
to investors, including those to be filed with the Commission, are maintained
in
accordance with the transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared in accordance
with
timeframes and other terms set forth in the transaction agreements; (B)
provide
information calculated in accordance with the terms specified in the transaction
agreements; (C) are filed with the Commission as required by its rules
and
regulations; and (D) agree with investors’ or the trustee’s records as to the
total unpaid principal balance and number of mortgage loans serviced by
the
Servicer.
(2) Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
(3) Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the transaction
agreements.
(4) Amounts
remitted to investors per the investor reports agree with cancelled checks,
or
other form of payment, or custodial bank statements.
| (d) |
Mortgage
Loan administration.
|
(1) Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
(2) Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
(3) Any
additions, removals or substitutions to the asset pool are made, reviewed
and
approved in accordance with any conditions or requirements in the transaction
agreements.
(4) Payments
on mortgage loans, including any payoffs, made in accordance with the related
mortgage loan documents are posted to the Servicer’s obligor records maintained
no more than two business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to principal, interest
or
other items (e.g., escrow) in accordance with the related mortgage loan
documents.
(5) The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
(6) Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements and related mortgage
loan documents.
(7) Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and deeds
in lieu of foreclosure, foreclosures and repossessions, as applicable)
are
initiated, conducted and concluded in accordance with the timeframes or
other
requirements established by the transaction agreements.
(8) Records
documenting collection efforts are maintained during the period a mortgage
loan
is delinquent in accordance with the transaction agreements. Such records
are
maintained on at least a monthly basis, or such other period specified
in the
transaction agreements, and describe the entity’s activities in monitoring
delinquent mortgage loans including, for example, phone calls, letters
and
payment rescheduling plans in cases where delinquency is deemed temporary
(e.g.,
illness or unemployment).
(9) Adjustments
to interest rates or rates of return for mortgage loans with variable rates
are
computed based on the related mortgage loan documents.
(10) Regarding
any funds held in trust for an obligor (such as escrow accounts): (A) such
funds
are analyzed, in accordance with the obligor’s mortgage loan documents, on at
least an annual basis, or such other period specified in the transaction
agreements; (B) interest on such funds is paid, or credited, to obligors
in
accordance with applicable mortgage loan documents and state laws; and
(C) such
funds are returned to the obligor within 30 calendar days of full repayment
of
the related mortgage loans, or such other number of days specified in the
transaction agreements.
(11) Payments
made on behalf of an obligor (such as tax or insurance payments) are made
on or
before the related penalty or expiration dates, as indicated on the appropriate
bills or notices for such payments, provided that such support has been
received
by the Servicer at least 30 calendar days prior to these dates, or such
other
number of days specified in the transaction agreements.
(12) Any
late
payment penalties in connection with any payment to be made on behalf of
an
obligor are paid from the Servicer’s funds and not charged to the obligor,
unless the late payment was due to the obligor’s error or omission.
(13) Disbursements
made on behalf of an obligor are posted within two business days to the
obligor’s records maintained by the Servicer, or such other number of days
specified in the transaction agreements.
(14) Delinquencies,
charge-offs and uncollectable accounts are recognized and recorded in accordance
with the transaction agreements.
(15) Any
external enhancement or other support, identified in Item 1114(a)(1) through
(3)
or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
EXHIBIT
I
SUMMARY
OF APPLICABLE REGULATION AB REQUIREMENTS
NOTE:
This Exhibit I is provided for convenience of reference only. In the event
of a
conflict or inconsistency between the terms of this Exhibit I and the text
of
Regulation AB, the text of Regulation AB, its adopting release and other
public
statements of the SEC shall control.
Item
1108(b) and (c)
Provide
the following information with respect to each servicer that will service,
including interim service, 20% or more of the mortgage loans in any loan
group
in the securitization issued in the Pass-Through Transfer:
-a
description of the Owner’s form of organization;
-a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of mortgage loans of the type similar to
the Mortgage Loans and information on factors related to the Servicer that
may
be material to any analysis of the servicing of the Mortgage Loans or the
related asset-backed securities, as applicable, including whether any default
or
servicing related performance trigger has occurred as to any other
securitization due to any act or failure to act of the Servicer, whether
any
material noncompliance with applicable servicing criteria as to any other
securitization has been disclosed or reported by the Servicer, and the
extent of
outsourcing the Servicer uses;
-a
description of any material changes to the Servicer’s policies or procedures in
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of the type similar to the
Mortgage
Loans during the past three years;
-information
regarding the Servicer’s financial condition to the extent that there is a
material risk that the effect on one or more aspects of servicing resulting
from
such financial condition could have a material impact on the performance
of the
securities issued in the Pass-Through Transfer, or on servicing of mortgage
loans of the same asset type as the Mortgage Loans;
-any
special or unique factors involved in servicing loans of the same type
as the
Mortgage Loans, and the Servicer’s processes and procedures designed to address
such factors;
-statistical
information regarding principal and interest advances made by the Servicer
on
the Mortgage Loans and the Servicer’s overall servicing portfolio for the past
three years; and
-the
Owner’s process for handling delinquencies, losses, bankruptcies and recoveries,
such as through liquidation of REO Properties, foreclosure, sale of the
Mortgage
Loans or workouts.
Item
1117
-describe
any legal proceedings pending against the Servicer or against any of its
property, including any proceedings known to be contemplated by governmental
authorities, that may be material to the holders of the securities issued
in the
Pass-Through Transfer.
Item
1119(a)
-describe
any affiliations of the Servicer, each other originator of the Mortgage
Loans
and each Subservicer with the sponsor, depositor, issuing entity, trustee,
any
originator, any other servicer, any significant obligor, enhancement or
support
provider or any other material parties related to the Pass-Through
Transfer.
Item
1119(b)
-describe
any business relationship, agreement, arrangement, transaction or understanding
entered into outside of the ordinary course of business or on terms other
than
those obtained in an arm’s length transaction with an unrelated third party,
apart from the Pass-Through Transfer, between the Servicer, each other
originator of the Mortgage Loans and each Subservicer, or their respective
affiliates, and the sponsor, depositor or issuing entity or their respective
affiliates, that exists currently or has existed during the past two years,
that
may be material to the understanding of an investor in the securities issued
in
the Pass-Through Transfer.
Item
1119(c)
-describe
any business relationship, agreement, arrangement, transaction or understanding
involving or relating to the Mortgage Loans or the Pass-Through Transfer,
including the material terms and approximate dollar amount involved, between
the
Servicer, each other originator of the Mortgage Loans and each Subservicer,
or
their respective affiliates and the sponsor, depositor or issuing entity
or
their respective affiliates, that exists currently or has existed during
the
past two years.
EXHIBIT
J
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
(RMBS
unless otherwise noted)
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify
in
their management assertion that they are attesting only to the portion
of the
distribution chain they are responsible for in the related transaction
agreements.
|
RegAB
Reference
|
Servicing
Criteria
|
Servicers
|
|
General
Servicing Considerations
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
|
|
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
| [NAME OF OWNER] [NAME OF SUBSERVICER] | |||||||||||||
| Date: | |||||||||||||
|
By:
|
|
||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
EXHIBIT
K
EMC
FORM
- DEFAULT OVERVIEW REPORT
Default
Overview Report:
Provides loan level detail regarding the defaulted loans that are being
serviced
and reported to EMC Master Servicing. The report contains the following
data
fields in the order below:
|
Field
|
Field
Description
|
|
Servicer
loan number
|
VARCHAR
(15)
|
|
SBO
loan number
|
VARCHAR
(9)
|
|
Zip
Code
|
VARCHAR
(5)
|
|
Original
loan amount
|
NUMERIC
(12,2)
|
|
Original
value amount
|
NUMERIC
(12,2)
|
|
Origination
date
|
DATE
(MM/DD/YYYY)
|
|
Loan
type
|
VARCHAR
(2)
|
|
Actual
due date
|
DATE
(MM/DD/YYYY)
|
|
Current
loan amount
|
NUMERIC
(12,2)
|
|
Corporate
expense balance
|
NUMERIC
(12,2)
|
|
Escrow
balance/advance balance
|
NUMERIC
(12,2)
|
|
Suspense
balance
|
NUMERIC
(12,2)
|
|
Restricted
escrow balance
|
NUMERIC
(12,2)
|
|
Current
Value date
|
DATE
(MM/DD/YYYY)
|
|
Current
value amount
|
NUMERIC
(12,2)
|
|
Current
value source
|
VARCHAR
(15)
|
|
VA
LGC/ FHA Case number
|
VARCHAR
(15)
|
|
%
of MI coverage
|
NUMERIC
(7,7)
|
|
MI
certificate number
|
VARCHAR
(15)
|
|
LPMI
Cost
|
NUMERIC
(7,7)
|
|
Occupancy
status
|
VARCHAR
(1)
|
|
First
vacancy date
|
DATE
(MM/DD/YYYY)
|
|
Property
condition
|
VARCHAR
(2)
|
|
Property
type
|
VARCHAR
(2)
|
|
Delinquency
flag
|
VARCHAR
(2)
|
|
Reason
for default
|
VARCHAR
(2)
|
|
FNMA
action code
|
VARCHAR
(3)
|
|
FNMA
delinquency reason code
|
VARCHAR
(3)
|
|
Loss
mit flag
|
VARCHAR
(2)
|
|
Loss
mit type
|
VARCHAR
(2)
|
|
Loss
mit approval date
|
DATE
(MM/DD/YYYY)
|
|
Loss
mit removal date
|
DATE
(MM/DD/YYYY)
|
|
Repay
first due date
|
DATE
(MM/DD/YYYY)
|
|
Repay
next due date
|
DATE
(MM/DD/YYYY)
|
|
Repay
plan broken/reinstated/closed date
|
DATE
(MM/DD/YYYY)
|
|
Repay
plan created date
|
DATE
(MM/DD/YYYY)
|
|
Foreclosure
flag
|
VARCHAR
(2)
|
|
Foreclosure
attorney referral date
|
DATE
(MM/DD/YYYY)
|
|
Actual
first legal date
|
DATE
(MM/DD/YYYY)
|
|
Date
FC sale scheduled
|
DATE
(MM/DD/YYYY)
|
|
Foreclosure
actual sale date
|
DATE
(MM/DD/YYYY)
|
|
Actual
redemption end date
|
DATE
(MM/DD/YYYY)
|
|
Actual
eviction complete date
|
DATE
(MM/DD/YYYY)
|
|
Actual
eviction start date
|
DATE
(MM/DD/YYYY)
|
|
Bankruptcy
flag
|
VARCHAR
(2)
|
|
Actual
bankruptcy start date
|
DATE
(MM/DD/YYYY)
|
|
Bankruptcy
chapter
|
VARCHAR
(2)
|
|
Bankruptcy
Case Number
|
VARCHAR
(15)
|
|
Post
petition due date
|
DATE
(MM/DD/YYYY)
|
|
Actual
discharge date
|
DATE
(MM/DD/YYYY)
|
|
Date
relief/dismissal granted
|
DATE
(MM/DD/YYYY)
|
|
Actual
MI claim filed date
|
DATE
(MM/DD/YYYY)
|
|
Actual
MI claim amount filed
|
NUMERIC
(12,2)
|
|
MI
claim amount paid
|
NUMERIC
(12,2)
|
|
MI
claim funds received date
|
DATE
(MM/DD/YYYY)
|
|
Title
approval letter received date
|
DATE
(MM/DD/YYYY)
|
|
Title
package HUD/VA date
|
DATE
(MM/DD/YYYY)
|
|
FHA
27011A transmitted date
|
DATE
(MM/DD/YYYY)
|
|
FHA
Part A funds received date
|
DATE
(MM/DD/YYYY)
|
|
FHA
27011 B transmitted date
|
DATE
(MM/DD/YYYY)
|
|
FHA
Part B funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
▇▇▇ submitted date
|
DATE
(MM/DD/YYYY)
|
|
VA
first funds received amount
|
NUMERIC
(12,2)
|
|
VA
first funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
claim funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
claim submitted date
|
DATE
(MM/DD/YYYY)
|
|
VA
claims funds received amount
|
NUMERIC
(12,2)
|
|
REO
flag
|
VARCHAR
(2)
|
|
REO
repaired value
|
NUMERIC
(12,2)
|
|
REO
value (as is)
|
NUMERIC
(12,2)
|
|
REO
value date
|
DATE
(MM/DD/YYYY)
|
|
REO
value source
|
VARCHAR
(15)
|
|
REO
original list date
|
DATE
(MM/DD/YYYY)
|
|
REO
original list price
|
NUMERIC
(12,2)
|
|
REO
list price adjustment amount
|
NUMERIC
(12,2)
|
|
REO
list price adjustment date
|
DATE
(MM/DD/YYYY)
|
|
Date
REO offer received
|
DATE
(MM/DD/YYYY)
|
|
Date
REO offer accepted
|
DATE
(MM/DD/YYYY)
|
|
REO
scheduled close date
|
DATE
(MM/DD/YYYY)
|
|
REO
actual closing date
|
DATE
(MM/DD/YYYY)
|
|
REO
sales price
|
NUMERIC
(12,2)
|
|
REO
net sales proceeds
|
NUMERIC
(12,2)
|
|
Estimated
loss
|
NUMERIC
(12,2)
|
EXHIBIT
L
EMC
FORM
- DELINQUENCY SUMMARY REPORT
Delinquency
Summary Report:
Provides summary data at the servicer investor level regarding loan performance
that will be submitted to EMC Master Servicing and contains the following
data
fields in the order below:
|
Field
|
Field
Description
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Performance
type (Current, 30 days, 60 days, 90+ days, Foreclosure, Bankruptcy
or
PIF)
|
VARCHAR
(6)
|
|
Count
of Loans
|
NUMERIC
(10,0)
|
|
Percent
of Investor Number
|
NUMERIC
(7,7)
|
|
Deal
UPB
|
NUMERIC
(14,2)
|
|
Percent
of Deal UPB
|
NUMERIC
(7,7)
|
|
Arrears
Balance
|
NUMERIC
(14,2)
|
|
Percent
of Arrears Balance
|
NUMERIC
(7,7)
|
|
Foreclosure
Quick Sale
|
NUMERIC
(12,2)
|
|
REO
Book Value
|
NUMERIC
(12,2)
|
EXHIBIT
M
EMC
FORM
- CALCULATION OF GAIN-LOSS DELINQUENT LOANS
EMC
Master Servicing Calculation of Gain/Loss on Delinquent Loan
Worksheet
|
Date:
|
|||||||||||||
|
Prepared
By
|
Phone
Number
|
Email
Address
|
|
Servicer
Loan Number
|
Servicer
Address
|
EMC
Loan Number
|
|
Borrower
Name
|
Property
Address
|
|
|
|
Liquidation
Type
|
REO
|
Third
Party
|
Short
Sale
|
Charge
off
|
Deed
In Lieu
|
| Has this loan been previously modified? |
Yes
|
No
|
|
| Has this loan been crammed down in a bankruptcy? |
Yes
|
No
|
|
|
If
“Yes”,
provide amount
|
|||
Liquidation
and Acquisition Expenses:
Amounts
requiring Amortization Schedule for backup:
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
|
|
Interest
Accrued at Net Rate Less Servicing Fees
|
|
|
Accrued
Servicing Fees
|
Amounts
requiring Additional backup:
|
Attorney’s
Fees
|
Corporate
advance history defining amounts paid, reimbursed, payee and
reason
codes
|
|
|
Attorney’s
Costs
|
Corporate
advance history defining amounts paid, reimbursed, payee and
reason
codes
|
|
|
Taxes
|
Payment
history showing disbursements
|
|
|
Property
Maintenance
|
Corporate
advance history defining amounts paid, reimbursed, payee and
reason
codes
|
|
|
Property
Inspection
|
Corporate
advance history defining amounts paid, reimbursed, payee and
reason
codes
|
|
|
PMI/Hazard
Insurance Premiums
|
Payment
history showing disbursements
|
|
|
Utility
Expenses
|
Payment
history showing disbursements
|
|
|
Appraisal/BPO
Expenses
|
Corporate
advance history defining amounts paid, reimbursed, payee and
reason
codes
|
|
|
▇▇▇
▇▇▇▇
|
Payment
history showing disbursements
|
|
|
Cash
For Keys
|
Corporate
advance history defining amounts paid, reimbursed, payee and
reason
codes
|
|
|
Miscellaneous
(itemized)
|
Requires
Itemization and supporting detail
|
|
|
Total
Expenses
|
|
Credits
to Loan:
|
Escrow
Balance/Advance
|
Payment
history showing disbursements and ending balance
|
|
|
Rental
Receipts
|
Payment
history showing application of funds to loan
|
|
|
Hazard
Claim Proceeds
|
Payment
history showing credit to account
|
|
|
PMI
Funds
|
EOB
document
|
|
|
Government
Insurance Funds (Part A Funds)
|
EOB
document
|
|
|
REO
Proceeds
|
HUD
1 Settlement Statement
|
|
|
Government
Insurance Funds (Part B Funds)
|
EOB
document
|
|
|
Pool
Insurance Proceeds
|
Payment
history showing credit to account
|
|
|
Other
Credits (itemized)
|
Payment
history showing credit to account
|
|
|
Total
Credits
|
|
Total
Realized Loss (or Amount of Gain) $________________
NOTE:
Do not combine or net remit items. All expenses and credits should be documented
individually. Claim packages are due by the fifth business day of the month
following receipt of liquidation proceeds. Late claims may result in delayed
claim payment. The Servicer is responsible to remit all funds pending loss
approval and /or resolution of any disputed items.
EXHIBIT
N
EMC
FORM
- MODIFIED LOANS REPORT
Modified
Loans Report: Provides
loan level data regarding all loans that the Servicer has modified with
the
first modified payment due within thirty days following the end of the
reporting
cycle. The report contains the following data fields in the order
below:
|
Field
Description
|
Field
Description
|
|
Loan
|
VARCHAR
(15)
|
|
Investor
|
VARCHAR
(5)
|
|
Original
Category
|
VARCHAR
(5)
|
|
Current
Category
|
VARCHAR
(5)
|
|
Stop
Adv Flag
|
VARCHAR
(3)
|
|
Modified
Due Date
|
DATE
(MM/DD/YYYY)
|
|
Mod
Loan Curtailment
|
NUMERIC
(15,2)
|
|
Mod
Loan ▇▇▇▇ Adjustment
|
NUMERIC
(15,2)
|
|
Principal
Advanced Capped
|
NUMERIC
(15,2)
|
|
Net
Interest Advanced Capped
|
NUMERIC
(15,2)
|
|
Service
Fee Advanced Capped
|
NUMERIC
(15,2)
|
|
Third
Party Bal Capped
|
NUMERIC
(15,2)
|
|
Amount
of Other Capped
|
NUMERIC
(15,2)
|
|
Borrower
Interest Contribution
|
NUMERIC
(15,2)
|
|
Borrower
Fee Code Arrearage Contribution
|
NUMERIC
(15,2)
|
|
Borrower
Principal Contribution
|
NUMERIC
(15,2)
|
|
Amt
Forgiven
|
NUMERIC
(15,2)
|
|
Beg
Delq Prin Bal
|
NUMERIC
(15,2)
|
|
Beg
Delq Int Bal
|
NUMERIC
(15,2)
|
|
Beg
Pre Prin Bal
|
NUMERIC
(15,2)
|
|
Beg
Pre Int Bal
|
NUMERIC
(15,2)
|
|
Excess
Int Adjust
|
NUMERIC
(15,2)
|
|
Excess
Interest on Mod
|
NUMERIC
(15,2)
|
EXHIBIT
O
EMC
FORM
- CLAIMS SUBMITTED REPORT
Claims
Submitted Report:
Provides loan level detail regarding claims submitted by the servicer’s investor
number that will be submitted to EMC Master Servicing and contains the
following
data fields in the order below:
|
Field
|
Field
Description
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Servicer
Investor Category
|
VARCHAR
(5)
|
|
Loan
Number
|
VARCHAR
(15)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Escrow
Balance or Advance Balance
|
NUMERIC
(12,2)
|
|
Corporate
Expense Balance
|
NUMERIC
(12,2)
|
|
Restricted
Escrow Balance
|
NUMERIC
(12,2)
|
|
Replacement
Reserve Balance
|
NUMERIC
(12,2)
|
|
Suspense
Balance
|
NUMERIC
(12,2)
|
|
Third
Party Expense Balance
|
NUMERIC
(12,2)
|
|
Charge
Off Amount
|
NUMERIC
(12,2)
|
|
Side
Note Collections
|
NUMERIC
(12,2)
|
|
Claim
Amount Submitted
|
NUMERIC
(12,2)
|
EXHIBIT
P
EMC
FORM
- LOSS SEVERITY SUMMARY REPORT
Loss
Severity Summary Report:
Provides summary data at the deal level regarding loss severity that will
be
submitted to EMC Master Servicing and contains the following data fields
in the
order below:
|
Field
|
Field
Description
|
|
Month
End
|
DATE
(MM/DD/YYYY)
|
|
Deal
Name
|
VARCHAR
(15)
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Servicer
Investor Category
|
VARCHAR
(5)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Loan
Number
|
VARCHAR
(15)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Loan
Due Date
|
DATE
(MM/DD/YYYY)
|
|
PIF
Date
|
DATE
(MM/DD/YYYY)
|
|
Gross
Interest Rate
|
NUMERIC
(7,7)
|
|
Net
Interest Rate
|
NUMERIC
(7,7)
|
|
Service
Fee Rate
|
NUMERIC
(7,7)
|
|
P
& I Constant
|
NUMERIC
(12,2)
|
|
Scheduled
Beginning Balance
|
NUMERIC
(12,2)
|
|
Arrearage
Balance
|
NUMERIC
(12,2)
|
|
Total
Legal and Other Expenses
|
NUMERIC
(12,2)
|
|
Scheduled
Advanced Interest
|
NUMERIC
(12,2)
|
|
Scheduled
Liquidated Amount
|
NUMERIC
(12,2)
|
|
Gross
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
P
& I Advance Balance
|
NUMERIC
(12,2)
|
|
Delinquent
Service Fee
|
NUMERIC
(12,2)
|
|
Net
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
Scheduled
Net Interest
|
NUMERIC
(12,2)
|
|
Net
Liquidated Funds Remitted
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) Amount
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) to Trust
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) to Servicer
|
NUMERIC
(12,2)
|
|
Total
Loss Severity %
|
NUMERIC
(7,7)
|
|
Total
Loss Severity % to Trust
|
NUMERIC
(7,7)
|
|
Total
Liquidated Remitted
|
NUMERIC
(12,2)
|
|
Claim
on Trust Loss
|
NUMERIC
(12,2)
|
|
Claim
on Servicer Loss
|
NUMERIC
(12,2)
|
|
Total
Claim Amount
|
NUMERIC
(12,2)
|
EXHIBIT
I-2
NCMC
SERVICING AGREEMENT
EMC
MORTGAGE CORPORATION
Purchaser,
NATIONAL
CITY MORTGAGE COMPANY
Company,
PURCHASE,
WARRANTIES AND SERVICING AGREEMENT
Dated
as
of October 1, 2001
(Fixed
and Adjustable Rate Mortgage Loans)
TABLE
OF CONTENTS
|
ARTICLE
I
|
|
|
Section
1.01
|
Defined
Terms
|
|
ARTICLE
II
|
|
|
Section
2.01
|
Agreement
to Purchase
|
|
Section
2.02
|
Purchase
Price
|
|
Section
2.03
|
Servicing
of Mortgage Loans
|
|
Section
2.04
|
Record
Title and Possession of Mortgage Files; Maintenance of Servicing
Files
|
|
Section
2.05
|
Books
and Records
|
|
Section
2.06
|
Transfer
of Mortgage Loans
|
|
Section
2.07
|
Delivery
of Mortgage Loan Documents
|
|
Section
2.08
|
Quality
Control Procedures
|
|
Section
2.09
|
Near-term
Principal Prepayments; Near Term Payment Defaults
|
|
ARTICLE
III
|
|
|
Section
3.01
|
Representations
and Warranties of the Company
|
|
Section
3.02
|
Representations
and Warranties as to Individual Mortgage Loans
|
|
Section
3.03
|
Repurchase;
Substitution 36
|
|
Section
3.04
|
Representations
and Warranties of the Purchaser
|
|
ARTICLE
IV
|
|
|
Section
4.01
|
Company
to Act as Servicer
|
|
Section
4.02
|
Collection
of Mortgage Loan Payments
|
|
Section
4.03
|
Realization
Upon Defaulted Mortgage Loans
|
|
Section
4.04
|
Establishment
of Custodial Accounts; Deposits in Custodial Accounts
|
|
Section
4.05
|
Permitted
Withdrawals from the Custodial Account
|
|
Section
4.06
|
Establishment
of Escrow Accounts; Deposits in Escrow Accounts
|
|
Section
4.07
|
Permitted
Withdrawals From Escrow Account
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary
Mortgage
Insurance Policies; Collections Thereunder
|
|
Section
4.09
|
Transfer
of Accounts
|
|
Section
4.10
|
Maintenance
of Hazard Insurance
|
|
Section
4.11
|
Maintenance
of Mortgage Impairment Insurance Policy
|
|
Section
4.12
|
Fidelity
Bond, Errors and Omissions Insurance
|
|
Section
4.13
|
Title,
Management and Disposition of REO Property
|
|
Section
4.14
|
Notification
of Maturity Date
|
|
ARTICLE
V
|
|
|
Section
5.01
|
Distributions
|
|
Section
5.02
|
Statements
to the Purchaser
|
|
Section
5.03
|
Monthly
Advances by the Company
|
|
Section
5.04
|
Liquidation
Reports
|
|
ARTICLE
VI
|
|
|
Section
6.01
|
Assumption
Agreements
|
|
Section
6.02
|
Satisfaction
of Mortgages and Release of Mortgage Files
|
|
Section
6.03
|
Servicing
Compensation
|
|
Section
6.04
|
Annual
Statement as to Compliance
|
|
Section
6.05
|
Annual
Independent Certified Public Accountants’ Servicing
Report
|
|
Section
6.06
|
Purchaser’s
Right to Examine Company Records
|
|
ARTICLE
VII
|
|
|
Section
7.01
|
Company
Shall Provide Information as Reasonably Required
|
|
ARTICLE
VIII
|
|
|
Section
8.01
|
Indemnification;
Third Party Claims
|
|
Section
8.02
|
Merger
or Consolidation of the Company
|
|
Section
8.03
|
Limitation
on Liability of the Company and Others
|
|
Section
8.04
|
Company
Not to Assign or Resign
|
|
Section
8.05
|
No
Transfer of Servicing
|
|
|
|
|
ARTICLE
IX
|
|
|
Section
9.01
|
Events
of Default
|
|
Section
9.02
|
Waiver
of Defaults
|
|
ARTICLE
X
|
|
|
Section
10.01
|
Termination
|
|
ARTICLE
XI
|
|
|
Section
11.01
|
Successor
to the Company
|
|
Section
11.02
|
Amendment
|
|
Section
11.03
|
Recordation
of Agreement
|
|
Section
11.04
|
Governing
Law
|
|
Section
11.05
|
Notices
|
|
Section
11.06
|
Severability
of Provisions
|
|
Section
11.07
|
Exhibits
|
|
Section
11.08
|
General
Interpretive Principles
|
|
Section
11.09
|
Reproduction
of Documents
|
|
Section
11.10
|
Confidentiality
of Information
|
|
Section
11.11
|
Recordation
of Assignment of Mortgage
|
|
Section
11.12
|
Assignment
by Purchaser
|
|
Section
11.13
|
No
Partnership
|
|
Section
11.14
|
Execution:
Successors and Assigns
|
|
Section
11.15
|
Entire
Agreement
|
|
Section
11.16
|
No
Solicitation
|
|
Section
11.17
|
Closing
|
|
Section
11.18
|
Cooperation
of Company with
Reconstitution
|
|
EXHIBITS
|
|
|
A
|
Contents
of Mortgage File
|
|
B
|
Custodial
Account Letter Agreement
|
|
C
|
Escrow
Account Letter Agreement
|
|
D
|
Form
of Assignment, Assumption and Recognition Agreement
|
|
E
|
Form
of Trial Balance
|
|
F
|
[reserved]
|
|
G
|
Request
for Release of Documents and Receipt
|
|
H
|
Company’s
Underwriting Guidelines
|
|
I
|
Form
of Term Sheet
|
This
is a
Purchase, Warranties and Servicing Agreement, dated as of October 1, 2001
and is
executed between EMC MORTGAGE CORPORATION, as Purchaser (the "Purchaser"),
and
NATIONAL CITY MORTGAGE COMPANY (the "Company").
W I T N E
60;S S E T H
:
WHEREAS,
the Purchaser has heretofore agreed to purchase from the Company and the
Company
has heretofore agreed to sell to the Purchaser, from time to time, certain
Mortgage Loans on a servicing retained basis, pursuant to the terms of this
Agreement and the related Term Sheet.
WHEREAS,
each of the Mortgage Loans is secured by a mortgage, deed of trust or other
security instrument creating a first lien on a residential dwelling located
in
the jurisdiction indicated on the Mortgage Loan Schedule, which is annexed
to
the related Term Sheet; and
WHEREAS,
the Purchaser and the Company wish to prescribe the representations and
warranties of the Company with respect to itself and the Mortgage Loans and
the
management, servicing and control of the Mortgage Loans;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meaning specified in this
Article:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (including
collection procedures) of prudent mortgage banking institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction
where
the related Mortgaged Property is located, and which are in accordance with
▇▇▇▇▇▇ ▇▇▇ servicing practices and procedures, for MBS pool mortgages, as
defined in the ▇▇▇▇▇▇ Mae Guides including future updates.
Adjustment
Date:
As to
each adjustable rate Mortgage Loan, the date on which the Mortgage Interest
Rate
is adjusted in accordance with the terms of the related Mortgage
Note.
Agreement:
This
Purchase, Warranties and Servicing Agreement including all exhibits hereto,
amendments hereof and supplements hereto.
Appraised
Value:
With
respect to any Mortgaged Property, the value thereof as determined by an
appraisal made for the originator of the Mortgage Loan at the time of
origination of the Mortgage Loan by an appraiser who met the requirements
of the
Company and ▇▇▇▇▇▇ ▇▇▇.
Assignment:
An
individual assignment of the Mortgage, notice of transfer or equivalent
instrument, in recordable form, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect of record the
sale
or transfer of the Mortgage Loan.
BIF:
The
Bank Insurance Fund, or any successor thereto.
Business
Day:
Any day
other than: (i) a Saturday or Sunday, or (ii) a legal holiday in the State
of
New York or Ohio, or (iii) a day on which banks in the State of New York
or Ohio
are authorized or obligated by law or executive order to be closed.
Closing
Date:
With
respect to any Mortgage Loan, the date stated on the related Term Sheet,
which
are expected to be the dates set forth in the related Confirmation.
Code: The
Internal Revenue Code of 1986, or any successor statute thereto.
Company: National
City Mortgage Company, their successors in interest and assigns, as permitted
by
this Agreement.
Company's
Officer's Certificate:
A
certificate signed by the Chairman of the Board, President, any Vice President
or Treasurer of Company stating the date by which Company expects to receive
any
missing documents sent for recording from the applicable recording
office.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Confirmation:
The
Trade
Confirmation Letter between the Purchaser and the Company which relates to
the
Mortgage Loans.
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.
Current
Appraised Value: With
respect to any Mortgaged Property, the value thereof as determined by an
appraisal made for the Company (by an appraiser who met the requirements
of the
Company and ▇▇▇▇▇▇ Mae) at the request of a Mortgagor for the purpose of
canceling a Primary Mortgage Insurance Policy in accordance with federal,
state
and local laws and regulations or otherwise made at the request of the Company
or Mortgagor.
Current
LTV: The
ratio
of the Stated Principal Balance of a Mortgage Loan to the Current Appraised
Value of the Mortgaged Property.
Custodial
Account:
Each
separate demand account or accounts created and maintained pursuant to Section
4.04 which shall be entitled "National City Mortgage Company, in trust for
the
[Purchaser], Owner of Mortgage Loans" and shall be established in an Eligible
Account, in the name of the Person that is the "Purchaser" with respect to
the
related Mortgage Loans.
Custodian:
With
respect to any Mortgage Loan, the entity stated on the related Term Sheet,
and
its successors and assigns, as custodian for the Purchaser.
Cut-off
Date:
With
respect to any Mortgage Loan, the date stated on the related Term Sheet.
Determination
Date:
The
15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the related Remittance
Date.
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace, which is the first day of the month.
Due
Period:
With
respect to any Remittance Date, the period commencing on the second day of
the
month preceding the month of such Remittance Date and ending on the first
day of
the month of the Remittance Date.
Eligible
Account:
An
account established and maintained: (i) within FDIC insured accounts created,
maintained and monitored by the Company so that all funds deposited therein
are
fully insured, or (ii) as
a trust
account with the corporate trust department of a depository institution or
trust
company organized under the laws of the United States of America or any one
of
the states thereof or the District of Columbia which is not affiliated with
the
Company (or any sub-servicer) or (iii) with an entity which is an institution
whose
deposits are insured by the FDIC, the unsecured and uncollateralized long-term
debt obligations of which shall be rated “A2” or higher by ▇▇▇▇▇’▇ and “A” or
higher by either Standard & Poor’s or Fitch, Inc. or
one of
the two highest short-term ratings by any applicable Rating Agency, and which
is
either (a) a federal savings association duly organized, validly existing
and in
good standing under the federal banking laws, (b) an institution duly organized,
validly existing and in good standing under the applicable banking laws of
any
state, (c) a national banking association under the federal banking laws,
or (d)
a principal subsidiary of a bank holding company,
or (iv)
if ownership of the Mortgage Loans is evidenced by mortgaged-backed securities,
the equivalent required ratings of each Rating Agency, and held such that
the
rights of the Purchaser and the owner of the Mortgage Loans shall be fully
protected against the claims of any creditors of the Company (or any
sub-servicer) and of any creditors or depositors of the institution in which
such account is maintained or (v) in a separate non-trust account without
FDIC
or other insurance in an Eligible Institution. In the event that a Custodial
Account is established pursuant to clause (iii), (iv) or (v) of the preceding
sentence, the Company shall provide the Purchaser with written notice on
the
Business Day following the date on which the applicable institution fails
to
meet the applicable ratings requirements.
Eligible
Institution:
National City Bank Ohio, or an institution having (i) the highest short-term
debt rating, and one of the two highest long-term debt ratings of each Rating
Agency; or (ii) with respect to any Custodial Account, an unsecured long-term
debt rating of at least one of the two highest unsecured long-term debt ratings
of each Rating Agency.
Equity
Take-Out Refinanced Mortgage Loan:
A
Refinanced Mortgage Loan the proceeds of which were in excess of the outstanding
principal balance of the existing mortgage loan as defined in the ▇▇▇▇▇▇
▇▇▇
Guide(s).
Escrow
Account:
Each
separate trust account or accounts created and maintained pursuant to Section
4.06 which shall be entitled " National City Mortgage Company, in trust for
the
[Purchaser], Owner of Mortgage Loans, and various Mortgagors" and shall be
established in an Eligible Account, in the name of the Person that is the
"Purchaser" with respect to the related Mortgage Loans.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 9.01.
▇▇▇▇▇▇
Mae: The
Federal National Mortgage Association, or any successor thereto.
▇▇▇▇▇▇
▇▇▇ Guide(s):
The
▇▇▇▇▇▇ Mae Selling Guide and the ▇▇▇▇▇▇ ▇▇▇ Servicing Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
The
Federal Home Loan Mortgage Corporation, or any successor thereto.
FHLMC
Guide:
The
FHLMC Single Family Seller/Servicer Guide and all amendments or additions
thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Company pursuant to Section
4.12.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of
1989.
GAAP:
Generally accepted accounting principles, consistently applied.
HUD:
The
United States Department of Housing and Urban Development or any
successor.
Index:
With
respect to any adjustable rate Mortgage Loan, the index identified on the
Mortgage Loan Schedule and set forth in the related Mortgage Note for the
purpose of calculating the interest rate thereon.
Initial
Rate Cap: As
to
each adjustable rate Mortgage Loan, where applicable, the maximum increase
or
decrease in the Mortgage Interest Rate on the first Adjustment
Date.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Lender
Primary Mortgage Insurance Policy: Any
Primary Mortgage Insurance Policy for which premiums are paid by the
Company.
Lender
Paid Mortgage Insurance Rate:
The
Lender Paid Mortgage Insurance Rate shall be a rate per annum equal to the
percentage shown on the Mortgage Loan Schedule.
Lifetime
Rate Cap:
As to
each Mortgage Loan, the maximum Mortgage Interest Rate over the term of such
Mortgage Loan.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee's sale,
foreclosure sale or otherwise.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of the original outstanding principal
amount of the Mortgage Loan, to (i) the Appraised Value of the Mortgaged
Property as of the Origination Date with respect to a Refinanced Mortgage
Loan,
and (ii) the lesser of the Appraised Value of the Mortgaged Property as of
the
Origination Date or the purchase price of the Mortgaged Property with respect
to
all other Mortgage Loans.
Margin:
With
respect to each adjustable rate Mortgage Loan, the fixed percentage amount
set
forth in each related Mortgage Note which is added to the Index in order
to
determine the related Mortgage Interest Rate, as set forth in the Mortgage
Loan
Schedule.
Monthly
Advance:
The
aggregate of the advances made by the Company on any Remittance Date pursuant
to
Section 5.03.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage Loan which
is
payable by a Mortgagor under the related Mortgage Note.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note which
creates a first lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note.
Mortgage
File:
The
mortgage documents pertaining to a particular Mortgage Loan which are specified
in Exhibit A hereto and any additional documents required to be added to
the
Mortgage File pursuant to this Agreement.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as required by Section
4.11.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan, which may be
adjusted from time to time for an adjustable rate Mortgage Loan, in accordance
with the provisions of the related Mortgage Note.
Mortgage
Loan:
An
individual mortgage loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
Mortgage Loan Schedule attached to the related Term Sheet, which Mortgage
Loan
includes without limitation the Mortgage File, the Monthly Payments, Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding
replaced or repurchased mortgage loans.
Mortgage
Loan Documents:
The
documents listed in
Exhibit A.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate minus the Lender Paid Mortgage Insurance Rate, if
any.
Mortgage
Loan Schedule:
The
schedule of Mortgage Loans annexed to the related Term Sheet, such schedule
setting forth the following information with respect to each Mortgage Loan
in
the related Mortgage Loan Package:
(1) the
Company's Mortgage Loan identifying number;
(2) the
Mortgagor's first and last name;
(3)
the
street address of the Mortgaged Property including the city, state and zip
code;
(4) a
code
indicating whether the Mortgaged Property is owner-occupied, a second home
or an
investor property;
(5) the
type
of residential property constituting the Mortgaged Property;
(6)
the
original months to maturity of the Mortgage Loan;
(7)
the
remaining months to maturity from the related Cut-off Date, based on the
original amortization schedule and, if different, the maturity expressed
in the
same manner but based on the actual amortization schedule;
(8) the
Sales
Price, if applicable, Appraised Value and Loan-to-Value Ratio, at
origination;
(9) the
Mortgage Interest Rate as of origination and as of the related Cut-off Date;
with respect to each adjustable rate Mortgage Loan, the initial Adjustment
Date,
the next Adjustment Date immediately following the related Cut-off Date,
the
Index, the Margin, the Initial Rate Cap, if any, Periodic Rate Cap, if any,
minimum Mortgage Interest Rate under the terms of the Mortgage Note and the
Lifetime Rate Cap;
(10) the
Origination Date of the Mortgage Loan;
(11) the
stated maturity date;
(12) the
amount of the Monthly Payment at origination;
(13) the
amount of the Monthly Payment as of the related Cut-off Date;
(14) the
original principal amount of the Mortgage Loan;
(15) the
scheduled Stated 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 on or before the related Cut-off Date whether or not collected;
(16)
a
code
indicating the purpose of the Mortgage Loan (i.e., purchase, rate and term
refinance, equity take-out refinance);
(17)
a
code
indicating the documentation style (i.e. full, alternative, etc.);
(18) the
number of times during the twelve (12) month period preceding the related
Closing Date that any Monthly Payment has been received after the month of
its
scheduled due date;
(19) the
date
on which the first payment is or was due;
(20)
a
code
indicating whether or not the Mortgage Loan is the subject of a Primary
Mortgage
Insurance Policy and
the
name of the related insurance carrier;
(21)
a
code
indicating whether or not the Mortgage Loan is the subject of a Lender
Primary
Mortgage Insurance Policy and
the
name of the related insurance carrier;
(22)
a
code
indicating whether or not the Mortgage Loan is currently convertible and
the
conversion spread;
(23)
the
last
Due Date on which a Monthly Payment was actually applied to the unpaid
principal
balance of the Mortgage Loan.
(24)
product
type (i.e. fixed, 3/1, 5/1, etc.);
(25)
credit
score and/or mortgage score, if applicable;
(26)
the
Lender Paid Mortgage Insurance Rate;
(27)
a
code
indicating whether or not the Mortgage Loan has a prepayment penalty and
if so,
the amount and term thereof; and
(28)
the
Current Appraised Value of the Mortgage Loan and Current LTV, if
applicable.
With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
attached to the related Term Sheet shall set forth the following information,
as
of the related Cut-off Date:
(1) the
number of Mortgage Loans;
(2) the
current aggregate outstanding principal balance of the Mortgage
Loans;
(3) the
weighted average Mortgage Interest Rate of the Mortgage Loans;
(4) the
weighted average maturity of the Mortgage Loans; and
(5)
the
weighted average months to next Adjustment Date;
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
underlying real property securing repayment of a Mortgage Note, consisting
of a
single parcel of real estate considered to be real estate under the laws
of the
state in which such real property is located which may include condominium
units
and planned unit developments, improved by a residential dwelling; except
that
with respect to real property located in jurisdictions in which the use of
leasehold estates for residential properties is a widely-accepted practice,
a
leasehold estate of the Mortgage, the term of which is equal to or longer
than
the term of the Mortgage.
Mortgagor:
The
obligor on a Mortgage Note.
OCC:
Office
of the Comptroller of the Currency, its successors and assigns.
Officers'
Certificate:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President, a Senior Vice President or a Vice President or by the Treasurer
or the Secretary or one of the Assistant Treasurers or Assistant Secretaries
of
the Company, and delivered to the Purchaser as required by this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf
of
whom the opinion is being given, reasonably acceptable to the
Purchaser.
Origination
Date:
The
date on which a Mortgage Loan funded, which date shall not, in connection
with a
Refinanced Mortgage Loan, be the date of the funding of the debt being
refinanced, but rather the closing of the debt currently outstanding under
the
terms of the Mortgage Loan Documents.
Periodic
Rate Cap:
As to
each adjustable rate Mortgage Loan, the maximum increase or decrease in the
Mortgage Interest Rate on any Adjustment Date, as set forth in the related
Mortgage Note and the related Mortgage Loan Schedule.
Permitted
Investments:
Any one
or more of the following obligations or securities:
(i) direct
obligations of, and obligations fully guaranteed by the United States of
America
or any agency or instrumentality of the United States of America the obligations
of which are backed by the full faith and credit of the United States of
America;
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(ii)
(a) demand or time deposits, federal funds or bankers' acceptances
issued
by any depository institu-tion or trust company incorporated under
the
laws of the United States of America or any state thereof and subject
to
supervision and examination by federal and/or state banking authorities,
provided that the commercial paper and/or the short-term deposit
rating
and/or the long-term unsecured debt obligations or deposits of
such
depository institution or trust company at the time of such investment
or
contractual commitment providing for such investment are rated
in one of
the two highest rating categories by each Rating Agency and (b)
any other
demand or time deposit or certificate of deposit that is fully
insured by
the FDIC;
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(iii)
repurchase obligations with a term not to exceed thirty (30) days
and with
respect to (a) any security described in clause (i) above and entered
into
with a depository institution or trust company (acting as principal)
described in clause (ii)(a) above;
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(iv)
securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of
America or
any state thereof that are rated in one of the two highest rating
categories by each Rating Agency at the time of such in-vestment
or
contractual commitment providing for such investment; provided,
however,
that securities issued by any particular corporation will not be
Permitted
Investments to the extent that investments therein will cause the
then
outstanding principal amount of secur-ities issued by such corporation
and
held as Permitted Investments to exceed 10% of the aggregate outstand-ing
principal balances of all of the Mortgage Loans and Permitted
Investments;
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(v)
commercial paper (including both non-interest-bearing discount
obligations
and interest-bearing obliga-tions payable on demand or on a specified
date
not more than one year after the date of issuance there-of) which
are
rated in one of the two highest rating categories by each Rating
Agency at
the time of such investment;
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(vi)
any other demand, money market or time deposit, obligation, security
or
investment as may be acceptable to each Rating Agency as evidenced
in
writing by each Rating Agency; and
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(vii)
any money market funds the collateral of which consists of obligations
fully guaranteed by the United States of America or any agency
or
instru-ment-al-ity of the United States of America the obligations
of
which are backed by the full faith and credit of the United States
of
America (which may include repurchase obligations secured by collateral
described in clause (i)) and other securities and which money market
funds
are rated in one of the two highest rating categories by each Rating
Agency.
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provided,
however,
that no
instrument or security shall be a Permitted Investment if such instrument
or
security evidences a right to receive only interest payments with respect
to the
ob-li-ga-tions underlying such instrument or if such security provides for
payment of both principal and interest with a yield to matur-ity in excess
of
120% of the yield to maturity at par or if such investment or security is
purchased at a price greater than par.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Prepayment
Interest Shortfall:
With
respect to any Remittance Date, for each Mortgage Loan that was the subject
of a
Principal Prepayment during the related Prepayment Period, an amount equal
to
the excess of one month’s interest at the applicable Mortgage Loan Remittance
Rate on the amount of such Principal Prepayment over the amount of interest
(adjusted to the Mortgage Loan Remittance Rate) actually paid by the related
Mortgagor with respect to such Prepayment Period.
Prepayment
Period: With
respect to any Remittance Date, the calendar month preceding the month in
which
such Remittance Date occurs.
Primary
Mortgage Insurance Policy:
Each
primary policy of mortgage insurance represented to be in effect pursuant
to
Section 3.02(hh), or any replacement policy therefor obtained by the Company
pursuant to Section 4.08.
Prime
Rate:
The
prime rate announced to be in effect from time to time as published as the
average rate in the Wall Street Journal (Northeast Edition).
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan full or partial
which
is received in advance of its scheduled Due Date, including any prepayment
penalty or premium thereon and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or
months
subsequent to the month of prepayment.
Purchase
Price:
As
defined in Section 2.02.
Purchaser:
EMC
Mortgage Corporation, its successors in interest and assigns.
Qualified
Appraiser:
An
appraiser, duly appointed by the Company, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the security thereof,
and whose compensation is not affected by the approval or disapproval of
the
Mortgage Loan, and such appraiser and the appraisal made by such appraiser
both
satisfy the requirements of Title XI of FIRREA and the regulations promulgated
thereunder and the requirements of ▇▇▇▇▇▇ ▇▇▇, all as in effect on the date
the
Mortgage Loan was originated.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in
which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, approved as an insurer by ▇▇▇▇▇▇ Mae or FHLMC.
Rating
Agency:
▇▇▇▇▇’▇
Investors Service, Standard & Poor's, Fitch, Inc. or, in the event that some
or all of the ownership of the Mortgage Loans is evidenced by mortgage-backed
securities, the nationally recognized rating agencies issuing ratings with
respect to such securities, if any.
Refinanced
Mortgage Loan:
A
Mortgage Loan which was made to a Mortgagor who owned the Mortgaged Property
prior to the origination of such Mortgage Loan and the proceeds of which
were
used in whole or part to satisfy an existing mortgage.
REMIC:
A "real
estate mortgage investment conduit," as such term is defined in Section 860D
of
the Code.
REMIC
Provisions:
The
provisions of the federal income tax law relating to REMICs, which appear
at
Sections 860A through 860G of the Code, and the related provisions and
regulations promulgated thereunder, as the foregoing may be in effect from
time
to time.
Remittance
Date:
The
18th day of any month, beginning with the First Remittance Date, or if such
18th
day is not a Business Day, the first Business Day immediately preceding such
18th day.
REO
Disposition:
The
final sale by the Company of any REO Property.
REO
Disposition Proceeds:
Amounts
received by the Company in connection with a related REO
Disposition.
REO
Property:
A
Mortgaged Property acquired by the Company on behalf of the Purchaser as
described in Section 4.13.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the
product of the greater of 100% or the percentage of par as stated in the
Confirmation multiplied by the Stated Principal Balance
of such Mortgage Loan on the repurchase date,
plus
(ii) interest on such outstanding principal balance at the Mortgage Loan
Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the end of the month of repurchase, plus,
(iii)
third party expenses incurred in connection with the transfer of the Mortgage
Loan being repurchased; less amounts received or advanced in respect of such
repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase.
Servicing
Advances:
All
customary, reasonable and necessary "out of pocket" costs and expenses
(including reasonable attorneys' fees and disbursements) incurred in the
performance by the Company of its servicing obligations, including, but not
limited to, the cost of (a) the preservation, restoration and protection
of the
Mortgaged Property, (b) any enforcement, administrative or judicial proceedings,
or any legal work or advice specifically related to servicing the Mortgage
Loans, including but not limited to, foreclosures, bankruptcies, condemnations,
drug seizures, elections, foreclosures by subordinate or superior lienholders,
and other legal actions incidental to the servicing of the Mortgage Loans
(provided that such expenses are reasonable and that the Company specifies
the
Mortgage Loan(s) to which such expenses relate and, upon Purchaser’s request,
provides documentation supporting such expense (which documentation would
be
acceptable to ▇▇▇▇▇▇ ▇▇▇), and provided further that any such enforcement,
administrative or judicial proceeding does not arise out of a breach of any
representation, warranty or covenant of the Company hereunder), (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in full or partial satisfaction of the Mortgage, (d) taxes,
assessments, water rates, sewer rates and other charges which are or may
become
a lien upon the Mortgaged Property, and Primary Mortgage Insurance Policy
premiums and fire and hazard insurance coverage, (e) any expenses reasonably
sustained by the Company with respect to the liquidation of the Mortgaged
Property in accordance with the terms of this Agreement and (f) compliance
with
the obligations under Section 4.08.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser
shall
pay to the Company, which shall, for a period of one full month, be equal
to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting
which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion of such Monthly Payment collected
by
the Company, or as otherwise provided under Section 4.05 and in accordance
with
the ▇▇▇▇▇▇ Mae Guide(s). Any fee payable to the Company for administrative
services related to any REO Property as described in Section 4.13 shall be
payable from Liquidation Proceeds of the related REO Property.
Servicing
Fee Rate:
As set
forth in the related Term Sheet.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Company consisting
of
originals of all documents in the Mortgage File which are not delivered to
the
Purchaser and copies of the Mortgage Loan Documents listed in Exhibit A,
the
originals of which are delivered to the Purchaser or its designee pursuant
to
Section 2.04.
Servicing
Officer:
Any
officer of the Company involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Company to the Purchaser upon request, as such
list
may from time to time be amended.
Stated
Principal Balance:
As to
each Mortgage Loan as of any date of determination, (i) the principal balance
of
such Mortgage Loan at the Cut-off Date after giving effect to payments of
principal due on or before such date, whether or not received, minus (ii)
all
amounts previously distributed to the Purchaser with respect to the Mortgage
Loan representing payments or recoveries of principal or advances in lieu
thereof.
Subservicer:
Any
subservicer which is subservicing the Mortgage Loans pursuant to a Subservicing
Agreement. Any subservicer shall meet the qualifications set forth in Section
4.01.
Subservicing
Agreement:
An
agreement between the Company and a Subservicer, if any, for the servicing
of
the Mortgage Loans.
Term
Sheet:
A
supplemental agreement in the form attached hereto as Exhibit I which shall
be
executed and delivered by the Company and the Purchaser to provide for the
sale
and servicing pursuant to the terms of this Agreement of the Mortgage Loans
listed on Schedule I attached thereto, which supplemental agreement shall
contain certain specific information relating to such sale of such Mortgage
Loans and may contain additional covenants relating to such sale of such
Mortgage Loans.
ARTICLE
II
SERVICING
OF MORTGAGE LOANS;
RECORD
TITLE AND POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY
OF MORTGAGE LOAN DOCUMENTS
Section
2.01 Agreement
to Purchase.
The
Company agrees to sell and the Purchaser agrees to purchase the Mortgage
Loans
having an aggregate Stated Principal Balance on the related Cut-off Date
set
forth in the related Term Sheet in an amount as set forth in the Confirmation,
or in such other amount as agreed by the Purchaser and the Company as evidenced
by the actual aggregate Stated Principal Balance of the Mortgage Loans accepted
by the Purchaser on the related Closing Date, with servicing retained by
the
Company. The Company shall deliver the related Mortgage Loan Schedule attached
to the related Term Sheet for the Mortgage Loans to be purchased on the related
Closing Date to the Purchaser at least two (2) Business Days prior to the
related Closing Date. The Mortgage Loans shall be sold pursuant to this
Agreement, and the related Term Sheet shall be executed and delivered on
the
related Closing Date.
Section
2.02 Purchase
Price.
The
Purchase Price for each Mortgage Loan shall be the percentage of par as stated
in the Confirmation (subject to adjustment as provided therein), multiplied
by
the Stated Principal Balance, as of the related Cut-off Date, of the Mortgage
Loan listed on the related Mortgage Loan Schedule attached to the related
Term
Sheet, after application of scheduled payments of principal due on or before
the
related Cut-off Date whether or not collected.
In
addition to the Purchase Price as described above, the Purchaser shall pay
to
the Company, at closing, accrued interest on the Stated Principal Balance
of
each Mortgage Loan as of the related Cut-off Date at the Mortgage Loan
Remittance Rate of each Mortgage Loan from the related Cut-off Date through
the
day prior to the related Closing Date, inclusive.
The
Purchase Price plus accrued interest as set forth in the preceding paragraph
shall be paid on the related Closing Date by wire transfer of immediately
available funds.
Purchaser
shall be entitled to (1) all scheduled principal due after the related Cut-off
Date, (2) all other recoveries of principal collected on or after the related
Cut-off Date (provided, however, that all scheduled payments of principal
due on
or before the related Cut-off Date and collected by the Company or any successor
servicer after the related Cut-off Date shall belong to the Company), and
(3)
all payments of interest on the Mortgage Loans net of applicable Servicing
Fees
(minus that portion of any such payment which is allocable to the period
prior
to the related Cut-off Date). The outstanding principal balance of each Mortgage
Loan as of the related Cut-off Date is determined after application of payments
of principal due on or before the related Cut-off Date whether or not collected,
together with any unscheduled principal prepayments collected prior to the
related Cut-off Date; provided, however, that payments of scheduled principal
and interest prepaid for a Due Date beyond the related Cut-off Date shall
not be
applied to the principal balance as of the related Cut-off Date. Such prepaid
amounts shall be the property of the Purchaser. The Company shall deposit
any
such prepaid amounts into the Custodial Account, which account is established
for the benefit of the Purchaser for subsequent remittance by the Company
to the
Purchaser.
Section
2.03 Servicing
of Mortgage Loans.
Simultaneously
with the execution and delivery of each Term Sheet, the Company does hereby
agree to directly service the Mortgage Loans listed on the related Mortgage
Loan
Schedule attached to the related Term Sheet subject to the terms of this
Agreement and the related Term Sheet. The rights of the Purchaser to receive
payments with respect to the related Mortgage Loans shall be as set forth
in
this Agreement.
Section
2.04 Record
Title and Possession of Mortgage Files;
Maintenance of Servicing Files.
As
of the
related Closing Date, the Company sold, transferred, assigned, set over and
conveyed to the Purchaser, without recourse, and the Company hereby acknowledges
that the Purchaser has, but subject to the terms of this Agreement and the
related Term Sheet, all the right, title and interest of the Company in and
to
the Mortgage Loans. Company will deliver the Mortgage Files to the Custodian
designated by Purchaser, on or before the related Closing Date, at the expense
of the Company. The Company shall maintain a Servicing File consisting of
a copy
of the contents of each Mortgage File and the originals of the documents
in each
Mortgage File not delivered to the Purchaser. The Servicing File shall contain
all documents necessary to service the Mortgage Loans. The possession of
each
Servicing File by the Company is at the will of the Purchaser, for the sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Company is in a custodial capacity only. From the related
Closing Date, the ownership of each Mortgage Loan, including the Mortgage
Note,
the Mortgage, the contents of the related Mortgage File and all rights,
benefits, proceeds and obligations arising therefrom or in connection therewith,
has been vested in the Purchaser. All rights arising out of the Mortgage
Loans
including, but not limited to, all funds received on or in connection with
the
Mortgage Loans and all records or documents with respect to the Mortgage
Loans
prepared by or which come into the possession of the Company shall be received
and held by the Company in trust for the benefit of the Purchaser as the
owner
of the Mortgage Loans. Any portion of the Mortgage Files retained by the
Company
shall be appropriately identified in the Company's computer system to clearly
reflect the ownership of the Mortgage Loans by the Purchaser. The Company
shall
release its custody of the contents of the Mortgage Files only in accordance
with written instructions of the Purchaser, except when such release is required
as incidental to the Company's servicing of the Mortgage Loans or is in
connection with a repurchase of any Mortgage Loan or Loans with respect thereto
pursuant to this Agreement and the related Term Sheet, such written instructions
shall not be required.
Section
2.05 Books
and Records.
The
sale
of each Mortgage Loan has been reflected on the Company's balance sheet and
other financial statements as a sale of assets by the Company. The Company
shall
be responsible for maintaining, and shall maintain, a complete set of books
and
records for the Mortgage Loans that shall be appropriately identified in
the
Company's computer system to clearly reflect the ownership of the Mortgage
Loan
by the Purchaser. In particular, the Company shall maintain in its possession,
available for inspection by the Purchaser, or its designee and shall deliver
to
the Purchaser upon demand, evidence of compliance with all federal, state
and
local laws, rules and regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or FHLMC,
as
applicable, including but not limited to documentation as to the method used
in
determining the applicability of the provisions of the Flood Disaster Protection
Act of 1973, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage of any condominium project as required by ▇▇▇▇▇▇ Mae or
FHLMC, and periodic inspection reports as required by Section 4.13. To the
extent that original documents are not required for purposes of realization
of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Company
may be in the form of microfilm or microfiche.
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Purchaser or its designee the related Servicing
File during the time the Purchaser retains ownership of a Mortgage Loan and
thereafter in accordance with applicable laws and regulations.
In
addition to the foregoing, Company shall provide to any supervisory agents
or
examiners that regulate Purchaser, including but not limited to, the FDIC
and
other similar entities, access, during normal business hours, upon reasonable
advance notice to Company and without charge to Company or such supervisory
agents or examiners, to any documentation regarding the Mortgage Loans that
may
be required by any applicable regulator.
Section
2.06. Transfer
of Mortgage Loans.
The
Company shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Company shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the terms hereof. For the purposes of
this
Agreement, the Company shall be under no obligation to deal with any person
with
respect to this Agreement or any Mortgage Loan unless a notice of the transfer
of such Mortgage Loan has been delivered to the Company in accordance with
this
Section 2.06 and the books and records of the Company show such person as
the
owner of the Mortgage Loan. The Purchaser may, subject to the terms of this
Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that the transferee will not be deemed to be a Purchaser hereunder
binding upon the Company unless such transferee shall agree in writing to
be
bound by the terms of this Agreement and an original counterpart of the
instrument of transfer in an Assignment and Assumption of this Agreement
substantially in the form of Exhibit D hereto executed by the transferee
shall
have been delivered to the Company. The Purchaser also shall advise the Company
of the transfer. Upon receipt of notice of the transfer, the Company shall
▇▇▇▇
its books and records to reflect the ownership of the Mortgage Loans of such
assignee, and the previous Purchaser shall be released from its obligations
hereunder with respect to the Mortgage Loans sold or transferred.
Section
2.07 Delivery
of Mortgage Loan Documents.
The
Company shall deliver and release to the Purchaser or its designee the Mortgage
Loan Documents in accordance with the terms of this Agreement and the related
Term Sheet. The documents enumerated as items (1), (2), (3), (4), (5), (6),
(7),
(8), (9) and (16) in Exhibit A hereto shall be delivered by the Company to
the
Purchaser or its designee no later than three (3) Business Days prior to
the
related Closing Date pursuant to a bailee letter agreement. All other documents
in Exhibit A hereto, together with all other documents executed in connection
with the Mortgage Loan that Company may have in its possession, shall be
retained by the Company in trust for the Purchaser. If the Company cannot
deliver the original recorded Mortgage Loan Documents or the original policy
of
title insurance, including riders and endorsements thereto, on the related
Closing Date, the Company shall, promptly upon receipt thereof and in any
case
not later than 120 days from the related Closing Date, deliver such original
documents, including original recorded documents, to the Purchaser or its
designee (unless the Company is delayed in making such delivery by reason
of the
fact that such documents shall not have been returned by the appropriate
recording office). If delivery is not completed within 120 days solely due
to
delays in making such delivery by reason of the fact that such documents
shall
not have been returned by the appropriate recording office, Company shall
deliver such document to Purchaser, or its designee, within such time period
as
specified in a Company's Officer's Certificate. In the event that documents
have
not been received by the date specified in the Company's Officer's Certificate,
a subsequent Company's Officer's Certificate shall be delivered by such date
specified in the prior Company's Officer's Certificate, stating a revised
date
for receipt of documentation. The procedure shall be repeated until the
documents have been received and delivered. If
delivery is not completed within 180 days solely due to delays in making
such
delivery by reason of the fact that such documents shall not have been returned
by the appropriate recording office, the Company shall continue to use its
best
efforts to effect delivery as soon as possible thereafter, provided that
if such
documents are not delivered by the 270th day from the date of the related
Closing Date, the Company shall repurchase the related Mortgage Loans at
the
Repurchase Price in accordance with Section 3.03 hereof.
The
Company shall pay all initial recording fees, if any, for the assignments
of
mortgage and any other fees in connection with the transfer of all original
documents to the Purchaser or its designee. Company shall prepare, in recordable
form, all assignments of mortgage necessary to assign the Mortgage Loans
to
Purchaser, or its designee. Company shall be responsible for recording the
assignments of mortgage.
Company
shall provide an original or duplicate original of the title insurance policy
to
Purchaser or its designee within ninety (90) days of the receipt of the recorded
documents (required for issuance of such policy) from the applicable recording
office.
Any
review by the Purchaser, or its designee, of the Mortgage Files shall in
no way
alter or reduce the Company's obligations hereunder.
If
the
Purchaser or its designee discovers any defect with respect to a Mortgage
File,
the Purchaser shall, or shall cause its designee to, give written specification
of such defect to the Company which may be given in the exception report
or the
certification delivered pursuant to this Section 2.07, or otherwise in writing
and the Company shall cure or repurchase such Mortgage Loan in accordance
with
Section 3.03.
The
Company shall forward to the Purchaser, or its designee, original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
one
week of their execution; provided, however, that the Company shall provide
the
Purchaser, or its designee, with a certified true copy of any such document
submitted for recordation within one week of its execution, and shall provide
the original of any document submitted for recordation or a copy of such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within sixty (60) days of its submission for
recordation.
From
time
to time the Company may have a need for Mortgage Loan Documents to be released
from Purchaser, or its designee. Purchaser shall, or shall cause its designee,
upon the written request of the Company, within ten (10) Business Days, deliver
to the Company, any requested documentation previously delivered to Purchaser
as
part of the Mortgage File, provided that such documentation is promptly returned
to Purchaser, or its designee, when the Company no longer requires possession
of
the document, and provided that during the time that any such documentation
is
held by the Company, such possession is in trust for the benefit of Purchaser.
Company shall indemnify Purchaser, and its designee, from and against any
and
all losses, claims, damages, penalties, fines, forfeitures, costs and expenses
(including court costs and reasonable attorney's fees) resulting from or
related
to the loss, damage, or misplacement of any documentation delivered to Company
pursuant to this paragraph.
Section
2.08 Quality
Control Procedures.
The
Company must have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program must
be
capable of evaluating and monitoring the overall quality of its loan production
and servicing activities. The program is to ensure that the Mortgage Loans
are
originated and serviced in accordance with prudent mortgage banking practices
and accounting principles; guard against dishonest, fraudulent, or negligent
acts; and guard against errors and omissions by officers, employees, or other
authorized persons.
Section
2.09 Near-term Principal Prepayments; Near Term Payment
Defaults
In
the
event any Principal Prepayment is made by a Mortgagor on or prior to sixty
(60)
days after the related Closing Date, the Company shall remit to the Purchaser
an
amount equal to the excess, if any, of the Purchase Price Percentage over
par
multiplied by the amount of such Principal Prepayment. Such remittance shall
be
made by the Company to Purchaser no later than the third Business Day following
receipt of such Principal Prepayment by the Company.
In
the
event any of the first two (2) scheduled Monthly Payments which are due under
any Mortgage Loan after the related Cut-off Date are not made during the
month
in which such Monthly Payments are due, then not later than five (5) Business
Days after notice to the Company by Purchaser (and at Purchaser’s sole option),
the Company, shall repurchase such Mortgage Loan from the Purchaser pursuant
to
the repurchase provisions contained in this Subsection 3.03.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF
THE
COMPANY; REPURCHASE; REVIEW OF MORTGAGE LOANS
Section
3.01 Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to the Purchaser that, as of the
related Closing Date or as of such date specifically provided
herein:
(a) The
Company is a corporation, duly organized, validly existing and in good standing
under the laws of the State of Ohio and has all licenses necessary to carry
out
its business as now being conducted, and is licensed and qualified to transact
business in and is in good standing under the laws of each state in which
any
Mortgaged Property is located or is otherwise exempt under applicable law
from
such licensing or qualification or is otherwise not required under applicable
law to effect such licensing or qualification and no demand for such licensing
or qualification has been made upon such Company by any such state, and in
any
event such Company is in compliance with the laws of any such state to the
extent necessary to ensure the enforceability of each Mortgage Loan and the
servicing of the Mortgage Loans in accordance with the terms of this
Agreement;
(b)
The
Company has the full power and authority and legal right to hold, transfer
and
convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver
and perform, and to enter into and consummate all transactions contemplated
by
this Agreement and the related Term Sheet and to conduct its business as
presently conducted, has duly authorized the execution, delivery and performance
of this Agreement and the related Term Sheet and any agreements contemplated
hereby, has duly executed and delivered this Agreement and the related Term
Sheet, and any agreements contemplated hereby, and this Agreement and the
related Term Sheet and each Assignment to the Purchaser and any agreements
contemplated hereby, constitutes a legal, valid and binding obligation of
the
Company, enforceable against it in accordance with its terms, and all requisite
corporate action has been taken by the Company to make this Agreement and
the
related Term Sheet and all agreements contemplated hereby valid and binding
upon
the Company in accordance with their terms;
(c)
Neither the execution and delivery of this Agreement and the related Term
Sheet,
nor the origination or purchase of the Mortgage Loans by the Company, the
sale
of the Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement and the related Term Sheet will conflict with
any
of the terms, conditions or provisions of the Company's charter or by-laws
or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions of any legal restriction or any agreement or instrument
to which the Company is now a party or by which it is bound, or constitute
a
default or result in an acceleration under any of the foregoing, or result
in
the material violation of any law, rule, regulation, order, judgment or decree
to which the Company or its properties are subject, or impair the ability
of the
Purchaser to realize on the Mortgage Loans.
(d)
There
is no litigation, suit, proceeding or investigation pending or, to the best
of
Company’s knowledge, threatened, or any order or decree outstanding, with
respect to the Company which, either in any one instance or in the aggregate,
is
reasonably likely to have a material adverse effect on the sale of the Mortgage
Loans, the execution, delivery, performance or enforceability of this Agreement
and the related Term Sheet, or which is reasonably likely to have a material
adverse effect on the financial condition of the Company.
(e)
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Company
of
or compliance by the Company with this Agreement or the related Term Sheet,
or
the sale of the Mortgage Loans and delivery of the Mortgage Files to the
Purchaser or the consummation of the transactions contemplated by this Agreement
or the related Term Sheet, except for consents, approvals, authorizations
and
orders which have been obtained;
(f)
The
consummation of the transactions contemplated by this Agreement or the related
Term Sheet is in the ordinary course of business of the Company and Company,
and
the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by the Company pursuant to this Agreement or the related Term Sheet are not
subject to bulk transfer or any similar statutory provisions in effect in
any
applicable jurisdiction;
(g)
The
origination and servicing practices used by the Company and any prior originator
or servicer with respect to each Mortgage Note and Mortgage have been legal
and
in accordance with applicable laws and regulations and the Mortgage Loan
Documents, and in all material respects proper and prudent in the mortgage
origination and servicing business. Each Mortgage Loan has been serviced
in all
material respects with Accepted Servicing Practices. With respect to escrow
deposits and payments that the Company, on behalf of an investor, is entitled
to
collect, all such payments are in the possession of, or under the control
of,
the Company, and there exist no deficiencies in connection therewith for
which
customary arrangements for repayment thereof have not been made. All escrow
payments have been collected in full compliance with state and federal law
and
the provisions of the related Mortgage Note and Mortgage. As to any Mortgage
Loan that is the subject of an escrow, escrow of funds is not prohibited
by
applicable law and has been established in an amount sufficient to pay for
every
escrowed item that remains unpaid and has been assessed but is not yet due
and
payable. No escrow deposits or other charges or payments due under the Mortgage
Note have been capitalized under any Mortgage or the related Mortgage
Note;
(h)
The
Company used no selection procedures that identified the Mortgage Loans as
being
less desirable or valuable than other comparable mortgage loans in the Company's
portfolio at the related Cut-off Date;
(i) The
Company will treat the sale of the Mortgage Loans to the Purchaser as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(j) Company
is an approved seller/servicer of residential mortgage loans for ▇▇▇▇▇▇ Mae,
FHLMC and HUD, with such facilities, procedures and personnel necessary for
the
sound servicing of such mortgage loans. The Company is duly qualified, licensed,
registered and otherwise authorized under all applicable federal, state and
local laws, and regulations, if applicable, meets the minimum capital
requirements set forth by the OCC, and is in good standing to sell mortgage
loans to and service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and FHLMC and no event
has
occurred which would make Company unable to comply with eligibility requirements
or which would require notification to either ▇▇▇▇▇▇ Mae or FHLMC;
(k) The
Company does not believe, nor does it have any cause or reason to believe,
that
it cannot perform each and every covenant contained in this Agreement or
the
related Term Sheet. The Company is solvent and the sale of the Mortgage Loans
will not cause the Company to become insolvent. The sale of the Mortgage
Loans
is not undertaken with the intent to hinder, delay or defraud any of the
Company's creditors;
(l) No
statement, tape, diskette, form, report or other document prepared by, or
on
behalf of, Company pursuant to this Agreement or the related Term Sheet or
in
connection with the transactions contemplated hereby, contains or will contain
any statement that is or will be inaccurate or misleading in any material
respect;
(m)
The
Company acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Company, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement. In the opinion of Company, the consideration received
by
Company upon the sale of the Mortgage Loans to Purchaser under this Agreement
and the related Term Sheet constitutes fair consideration for the Mortgage
Loans
under current market conditions.
(n)
Company
has delivered to the Purchaser financial statements of its parent, for its
last
two complete fiscal years. All such financial information fairly presents
the
pertinent results of operations and financial position for the period identified
and has been prepared in accordance with GAAP consistently applied throughout
the periods involved, except as set forth in the notes thereto. There has
been
no change in the business, operations, financial condition, properties or
assets
of the Company since the date of the Company’s financial information that would
have a material adverse effect on its ability to perform its obligations
under
this Agreement;
(o)
The
Company 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;
Section
3.02 Representations
and Warranties as to Individual
Mortgage Loans.
References
in this Section to percentages of Mortgage Loans refer in each case to the
percentage of the aggregate Stated Principal Balance of the Mortgage Loans
as of
the related Cut-off Date, based on the outstanding Stated Principal Balances
of
the Mortgage Loans as of the related Cut-off Date, and giving effect to
scheduled Monthly Payments due on or prior to the related Cut-off Date, whether
or not received. References to percentages of Mortgaged Properties refer,
in
each case, to the percentages of expected aggregate Stated Principal Balances
of
the related Mortgage Loans (determined as described in the preceding sentence).
The Company hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the related Closing Date as follows:
(a)
The
information set forth in the Mortgage Loan Schedule attached to the related
Term
Sheet is true, complete and correct in all material respects as of the related
Cut-Off Date;
(b) The
Mortgage creates a valid, subsisting and enforceable first lien or a first
priority ownership interest in an estate in fee simple in real property securing
the related Mortgage Note subject to principles of equity, bankruptcy,
insolvency and other laws of general application affecting the rights of
creditors;
(c)
All
payments due prior to the related Cut-off Date for such Mortgage Loan have
been
made as of the related Closing Date; the Mortgage Loan has not been dishonored;
there are no material defaults under the terms of the Mortgage Loan; the
Company
has not advanced its own funds, or induced, solicited or knowingly received
any
advance of funds from a party other than the owner of the Mortgaged Property
subject to the Mortgage, directly or indirectly, for the payment of any amount
required by the Mortgage Loan. As
of the
related Closing Date, all of the Mortgage Loans will have an actual Interest
Paid to Date of their related Cut-off Date(or later) and will be due for
the
scheduled monthly payment next succeeding the Cut-off Date (or later), as
evidenced by a posting to Company's servicing collection system. No payment
under any Mortgage Loan is delinquent as of the related Closing Date nor
has any
scheduled payment been delinquent at any time during the twelve (12) months
prior to the month of the related Closing Date. For purposes of this paragraph,
a Mortgage Loan will be deemed delinquent if any payment due thereunder was
not
paid by the Mortgagor in the month such payment was due;
(d)
There
are no defaults by Company in complying with the terms of the Mortgage, and
all
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(e)
The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments which have
been recorded to the extent any such recordation is required by law, or,
necessary to protect the interest of the Purchaser. No instrument of waiver,
alteration or modification has been executed except in connection with a
modification agreement and which modification agreement is part of the Mortgage
File and the terms of which are reflected in the related Mortgage Loan Schedule,
and no Mortgagor has been released, in whole or in part, from the terms thereof
except in connection with an assumption agreement and which assumption agreement
is part of the Mortgage File and the terms of which are reflected in the
related
Mortgage Loan Schedule; the substance of any such waiver, alteration or
modification has been approved by the issuer of any related Primary Mortgage
Insurance Policy, Lender Primary Mortgage Insurance Policy and title insurance
policy, to the extent required by the related policies;
(f)
The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note or
the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note
or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and as of the related Closing Date the Mortgagor
was not a debtor in any state or federal bankruptcy or insolvency
proceeding;
(g)
All
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the ▇▇▇▇▇▇ ▇▇▇ or FHLMC Guides,
against loss by fire, hazards of extended coverage and such other hazards
as are
provided for in the ▇▇▇▇▇▇ Mae or FHLMC Guide, as well as all additional
requirements set forth in Section 4.10 of this Agreement. All such standard
hazard policies are in full force and effect and contain a standard mortgagee
clause naming the Company and its successors in interest and assigns as loss
payee and such clause is still in effect and all premiums due thereon have
been
paid. If required by the Flood Disaster Protection Act of 1973, as amended,
the
Mortgage Loan is covered by a flood insurance policy meeting the requirements
of
the current guidelines of the Federal Insurance Administration which policy
conforms to ▇▇▇▇▇▇ ▇▇▇ or FHLMC requirements, as well as all additional
requirements set forth in Section 4.10 of this Agreement. Such policy was
issued
by an insurer acceptable under ▇▇▇▇▇▇ Mae or FHLMC guidelines. The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at the
Mortgagor's cost and expense, and on the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor.
Neither
the Company (nor any prior originator or servicer of any of the Mortgage
Loans)
nor any Mortgagor has engaged in any act or omission which has impaired or
would
impair the coverage of any such policy, the benefits of the endorsement provided
for herein, or the validity and binding effect of either;
(h)
Any
and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity or disclosure laws applicable
to the
Mortgage Loan have been complied with in all material respects; the Company
maintains, and shall maintain, evidence of such compliance as required by
applicable law or regulation and shall make such evidence available for
inspection at the Company's office during normal business hours upon reasonable
advance notice;
(i)
The
Mortgage has not been satisfied, canceled or subordinated, in whole or in
part,
or rescinded, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission.
The
Company has not waived the performance by the Mortgagor of any action, if
the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Company waived any default resulting from any action
or
inaction by the Mortgagor;
(j) The
Mortgage is a valid, subsisting, enforceable and perfected first lien on
the
Mortgaged Property, including all buildings on the Mortgaged Property and
all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note's original principal balance subject to principles of equity,
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors. The Mortgage and the Mortgage Note do not contain any
evidence of any security interest or other interest or right thereto. Such
lien
is free and clear of all adverse claims, liens and encumbrances having priority
over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording which
are
acceptable to mortgage lending institutions generally and either (A) which
are
referred to in the lender’s title insurance policy delivered to the originator
or otherwise considered in the appraisal made for the originator of the Mortgage
Loan, or (B) which do not adversely affect the residential use or Appraised
Value of the Mortgaged Property as set forth in such appraisal, and (3) other
matters to which like properties are commonly subject which do not individually
or in the aggregate materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property. Any security agreement,
chattel
mortgage or equivalent document related to and delivered in connection with
the
Mortgage Loan establishes and creates a valid, subsisting, enforceable and
perfected first lien and first priority security interest on the property
described therein, and the Company has the full right to sell and assign
the
same to the Purchaser;
(k)
The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to principles of equity,
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors, and the Company has taken all action necessary to transfer
such rights of enforceability to the Purchaser. All parties to the Mortgage
Note
and the Mortgage had the legal capacity to enter into the Mortgage Loan and
to
execute and deliver the Mortgage Note and the Mortgage. The Mortgage Loan
Documents are on forms acceptable to ▇▇▇▇▇▇ ▇▇▇ and FHLMC. The Mortgage Note
and
the Mortgage have been duly and properly executed by such parties. No fraud,
error, omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of Company or the
Mortgagor, or on the part of any other party involved in the origination
or
servicing of the Mortgage Loan. The proceeds of the Mortgage Loan have been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing
the
Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor
is
not entitled to any refund of any amounts paid or due under the Mortgage
Note or
Mortgage;
(l)
The
Company is the sole owner and holder of the Mortgage Loan and the indebtedness
evidenced by the Mortgage Note. Upon the sale of the Mortgage Loan to the
Purchaser, the Company will retain the Mortgage File or any part thereof
with
respect thereto not delivered to the Purchaser or the Purchaser’s designee in
trust only for the purpose of servicing and supervising the servicing of
the
Mortgage Loan. Immediately prior to the transfer and assignment to the
Purchaser, the Mortgage Loan, including the Mortgage Note and the Mortgage,
were
not subject to an assignment, sale or pledge to any person other than Purchaser,
and the Company had good and marketable title to and was the sole owner thereof
and had full right to transfer and sell the Mortgage Loan to the Purchaser
free
and clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to this Agreement and following the sale of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or
security interest. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in this Agreement. After the related Closing Date,
the Company will not have any right to modify or alter the terms of the sale
of
the Mortgage Loan and the Company will not have any obligation or right to
repurchase the Mortgage Loan or substitute another Mortgage Loan, except
as
provided in this Agreement, or as otherwise agreed to by the Company and
the
Purchaser;
(m)
Each
Mortgage Loan is covered by an ALTA lender's title insurance policy or other
generally acceptable form of policy or insurance acceptable to ▇▇▇▇▇▇ ▇▇▇
or
FHLMC (including adjustable rate endorsements), issued by a title insurer
acceptable to ▇▇▇▇▇▇ Mae or FHLMC and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to
the
exceptions contained in (j)(1), (2) and (3) above) the Company, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan and against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions
of the
Mortgage providing for adjustment in the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been
given
the opportunity to choose the carrier of the required mortgage title insurance.
The Company, its successors and assigns, is the sole insured of such lender's
title insurance policy, such title insurance policy has been duly and validly
endorsed to the Purchaser or the assignment to the Purchaser of the Company's
interest therein does not require the consent of or notification to the insurer
and such lender's title insurance policy is in full force and effect and
will be
in full force and effect upon the consummation of the transactions contemplated
by this Agreement. No claims have been made under such lender's title insurance
policy, and no prior holder or servicer of the related Mortgage, including
the
Company, nor any Mortgagor, has done, by act or omission, anything which
would
impair the coverage of such lender's title insurance policy;
(n)
There
is no default, breach, violation or event of acceleration existing under
the
Mortgage or the related Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event permitting acceleration;
and
neither the Company, nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration;
(o)
There
are no mechanics' or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under law could give
rise
to such liens) affecting the related Mortgaged Property which are or may
be
liens prior to or equal to the lien of the related Mortgage;
(p)
All
improvements subject to the Mortgage which were considered in determining
the
appraised value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (m) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q)
Each
Mortgage Loan was originated by or for the Company pursuant to, and conforms
with, the Company’s underwriting guidelines attached as Exhibit H hereto. The
Mortgage Loan bears interest at an adjustable rate (if applicable) as set
forth
in the related Mortgage Loan Schedule, and Monthly Payments under the Mortgage
Note are due and payable on the first day of each month. The Mortgage contains
the usual and enforceable provisions of the Company at the time of origination
for the acceleration of the payment of the unpaid principal amount of the
Mortgage Loan if the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder;
(r)
The
Mortgaged Property is not subject to any material damage. At origination
of the
Mortgage Loan there was not, since origination of the Mortgage Loan there
has
not been, and there currently is no proceeding pending for the total or partial
condemnation of the Mortgaged Property. The Company has not received
notification that any such proceedings are scheduled to commence at a future
date;
(s)
The
related Mortgage contains customary and enforceable provisions such as to
render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided thereby,
including, (1) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (2) otherwise by judicial foreclosure. There is no homestead
or other exemption available to the Mortgagor which would interfere with
the
right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage;
(t)
If
the Mortgage constitutes a deed of trust, a trustee, authorized and duly
qualified if required under applicable law to act as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees
or
expenses, except as may be required by local law, are or will become payable
by
the Purchaser to the trustee under the deed of trust, except in connection
with
a trustee's sale or attempted sale after default by the Mortgagor;
(u)
The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, approved by the Company, who had no interest, direct or indirect,
in
the Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of ▇▇▇▇▇▇
▇▇▇ or FHLMC and Title XI of the Federal Institutions Reform, Recovery, and
Enforcement Act of 1989 and the regulations promulgated thereunder, all as
in
effect on the date the Mortgage Loan was originated. The appraisal is in
a form
acceptable to ▇▇▇▇▇▇ Mae or FHLMC;
(v)
All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(w)
The
related Mortgage Note is not and has not been secured by any collateral except
the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to above and such
collateral does not serve as security for any other obligation;
(x)
The
Mortgagor has received and has executed, where applicable, all disclosure
materials required by applicable law with respect to the making of such mortgage
loans;
(y)
The
Mortgage Loan does not contain balloon or "graduated payment" features; No
Mortgage Loan is subject to a buydown agreement or contains any buydown
provision;
(z)
The
Mortgagor is not in bankruptcy and, the Mortgagor is not insolvent and the
Company has no knowledge of any circumstances or conditions with respect
to the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor's credit
standing that could reasonably be expected to cause investors to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage Loan to become
delinquent, or materially adversely affect the value or marketability of
the
Mortgage Loan;
(aa)
Each
Mortgage Loan bears interest based upon a thirty (30) day month and a three
hundred and sixty (360) day year. The Mortgage Loans have an original term
to
maturity of not more than thirty (30) years, with interest payable in arrears
on
the first day of each month. As to each adjustable rate Mortgage Loan, on
each
applicable Adjustment Date, the Mortgage Interest Rate will be adjusted to
equal
the sum of the Index, plus the applicable Margin; provided, that the Mortgage
Interest Rate, on each applicable Adjustment Date, will not increase by more
than the Initial Rate Cap or Periodic Rate Cap, as applicable. Over the term
of
each adjustable rate Mortgage Loan, the Mortgage Interest Rate will not exceed
such Mortgage Loan's Lifetime Rate Cap. None of the Mortgage Loans are
“interest-only” Mortgage Loans or “negative amortization” Mortgage Loans. With
the respect to each adjustable rate Mortgage Loan, each ▇▇▇▇-▇▇▇▇ Note requires
a monthly payment which is suffi-cient (a) during the period prior to the
first
adjust-ment to the Mortgage Interest Rate, to fully amortize the original
principal balance over the original term thereof and to pay interest at the
related Mortgage Interest Rate, and (b) during the period following each
Adjust-ment Date, to fully amortize the outstanding principal balance as
of the
first day of such period over the then remaining term of such Mortgage Note
and
to pay interest at the related Mortgage Interest Rate. With the respect to
each
adjustable rate Mortgage Loan, the Mortgage Note provides that when the Mortgage
Interest Rate changes on an Adjustment Date, the then outstanding principal
balance will be reamortized over the remaining life of the Mortgage Loan.
No
Mortgage Loan contains terms or provi-sions which would result in negative
amortization. None of the Mortgage Loans contain a conversion feature which
would cause the Mortgage Loan interest rate to convert to a fixed interest
rate.
None of the Mortgage Loans are considered agricultural loans;
(bb)
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(cc)
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(dd)
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(ee)
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(ff)
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(gg)
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(hh) Unless
set forth in the related Term Sheet, in the event the Mortgage Loan had an
LTV
at origination greater than 80.00%, either (i) the excess of the principal
balance of the Mortgage Loan over 75.0% of the Appraised Value of the Mortgaged
Property with respect to a Refinanced Mortgage Loan, or the lesser of the
Appraised Value or the purchase price of the Mortgaged Property with respect
to
a purchase money Mortgage Loan was insured as to payment defaults by a Primary
Mortgage Insurance Policy issued by a Qualified Insurer or (ii) the Mortgage
Loan was insured as to payment defaults by a Lender Primary Mortgage Insurance
Policy issued by a Qualified Insurer. No Mortgage Loan has an LTV over 95%.
All
provisions of such Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy, as applicable, have been and are being complied with, such
policy is in full force and effect, and all premiums due thereunder have
been
paid. No Mortgage Loan requires payment of such premiums, in whole or in
part,
by the Purchaser. No action, inaction, or event has occurred and no state
of
facts exists that has, or will result in the exclusion from, denial of, or
defense to coverage. Any Mortgage Loan subject to a Primary Mortgage Insurance
Policy obligates the Mortgagor thereunder to maintain the Primary Mortgage
Insurance Policy, subject to state and federal law, and to pay all premiums
and
charges in connection therewith. Any Mortgage Loan subject to a Lender Primary
Mortgage Insurance Policy obligates the Company to maintain the Lender Primary
Mortgage Insurance Policy and to pay all premiums and charges in connection
therewith. No action has been taken or failed to be taken, on or prior to
the
Closing Date which has resulted or will result in an exclusion from, denial
of,
or defense to coverage under any Primary Mortgage Insurance Policy or Lender
Primary Mortgage Insurance Policy (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability
of
the timely payment of the full amount of the loss otherwise due thereunder
to
the insured) whether arising out of actions, representations, errors, omissions,
negligence, or fraud of the Company or the Mortgagor, or for any other reason
under such coverage; With respect to any Primary Mortgage Insurance Policy,
the
mortgage interest rate for the Mortgage Loan as set forth on the related
Mortgage Loan Schedule is net of any such insurance premium;
(ii) The
Assignment is in recordable form and is acceptable for recording under the
laws
of the jurisdiction in which the Mortgaged Property is located;
(jj) Unless
otherwise specified in the related Term Sheet, none of the Mortgage Loans
are
secured by an interest in a leasehold estate. The Mortgaged Property is located
in the state identified in the related Mortgage Loan Schedule and consists
of a
single parcel of real property with a detached single family residence erected
thereon, or a townhouse, or a two-to four-family dwelling, or an individual
condominium unit in a condominium project, or an individual unit in a planned
unit development or a de minimis planned unit development, provided, however,
that no residence or dwelling is a single parcel of real property with a
manufactured home not affixed to a permanent foundation, or a mobile home.
Any
condominium unit or planned unit development conforms with the Company’s
underwriting guidelines. As
of the
date of origination, no portion of any Mortgaged Property is used for commercial
purposes, and since the Origination Date, no portion of any Mortgaged Property
has been, or currently is, used for commercial purposes;
(kk) Payments
on the Mortgage Loan commenced no more than sixty (60) days after the funds
were
disbursed in connection with the Mortgage Loan. The Mortgage Note is payable
on
the first day of each month in monthly installments of principal and interest,
which installments are subject to change due to the adjustments to the Mortgage
Interest Rate on each Adjustment Date, with interest calculated and payable
in
arrears. Each of the Mortgage Loans will amortize fully by the stated maturity
date, over an original term of not more than thirty years from commencement
of
amortization;
(ll) As
of the
Closing Date of the Mortgage Loan, the Mortgage Property was lawfully occupied
under applicable law, and all inspections, licenses and certificates required
to
be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including
but
not limited to certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities;
(mm) 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 Mortgaged Property; and the Company has not received any notice of
any
environmental hazard on the Mortgaged Property and nothing further remains
to be
done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(nn) The
Mortgagor has not notified the Company, and the Company has no knowledge
of any
relief requested or allowed to the Mortgagor under the Soldiers' and Sailors'
Civil Relief Act of 1940;
(oo)
No
Mortgage Loan is a construction or rehabilitation Mortgage Loan or was made
to
facilitate the trade-in or exchange of a Mortgaged Property;
(pp) The
Mortgagor for each Mortgage Loan is a natural person;
(qq) None
of
the Mortgage Loans are Co-op Loans;
(rr)
With
respect to each Mortgage Loan that has a prepayment penalty feature, each
such
prepayment penalty is enforceable and will be enforced by the Company and
each
prepayment penalty is permitted pursuant to federal, state and local law.
No
Mortgage Loan will impose a prepayment penalty for a term in excess of five
years from the date such Mortgage Loan was originated. Except as otherwise
set
forth on the Mortgage Loan Schedule, with respect to each Mortgage Loan that
contains a prepayment penalty, such prepayment penalty is at least equal
to the
lesser of (A) the maximum amount permitted under applicable law and (B) six
months interest at the related Mortgage Interest Rate on the amount prepaid
in
excess of 20% of the original principal balance of such Mortgage
Loan;
(ss)
With
respect to each Mortgage Loan either (i) the fair market value of the Mortgaged
Property securing such Mortgage Loan was at least equal to 80 percent of
the
original principal balance of such Mortgage Loan at the time such Mortgage
Loan
was originated or (ii) (a) the Mortgage Loan is only secured by the Mortgage
Property and (b) substantially all of the proceeds of such Mortgage Loan
were
used to acquire or to improve or protect the Mortgage Property. For the purposes
of the preceding sentence, if the Mortgage Loan has been significantly modified
other than as a result of a default or a reasonable foreseeable default,
the
modified Mortgage Loan will be viewed as having been originated on the date
of
the modification;
(tt)
The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the National Housing
Act, a savings and loan association, a savings bank, a commercial bank, credit
union, insurance company or similar institution which is supervised and examined
by a federal or state authority;
(uu)
None
of the Mortgage Loans are simple interest Mortgage Loans and none of the
Mortgaged Properties are timeshares;
(vv)
All
of the terms of the Mortgage pertaining to interest rate adjustments, payment
adjustments and adjustments of the outstanding principal balance are
enforceable, all such adjustments have been properly made, including the
mailing
of required notices, and such adjustments do not and will not affect the
priority of the Mortgage lien. With respect to each Mortgage Loan which has
passed its initial Adjustment Date, Company has performed an audit of the
Mortgage Loan to determine whether all interest rate adjustments have been
made
in accordance with the terms of the Mortgage Note and Mortgage; and
(ww)
Each
Mortgage Note, each Mortgage, each Assignment and any other documents required
pursuant to this Agreement to be delivered to the Purchaser or its designee,
or
its assignee for each Mortgage Loan, have been, on or before the related
Closing
Date, delivered to the Purchaser or its designee, or its assignee.
Section
3.03 Repurchase;
Substitution.
It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans and delivery
of the Mortgage Loan Documents to the Purchaser, or its designee, and shall
inure to the benefit of the Purchaser, notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment or the examination,
or
lack of examination, of any Mortgage File. Upon discovery by either the Company
or the Purchaser of a breach of any of the foregoing representations and
warranties which materially and adversely affects the value of the Mortgage
Loans or the interest of the Purchaser in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other. The
Company shall have a period of sixty (60) days from the earlier of its discovery
or its receipt of notice of any such breach within which to correct or cure
such
breach. The Company hereby covenants and agrees that if any such breach is
not
corrected or cured within such sixty day period, the Company shall, at the
Purchaser's option and not later than ninety (90) days of its discovery or
its
receipt of notice of such breach, repurchase such Mortgage Loan at the
Repurchase Price or, with the Purchaser's prior consent and at Purchaser’s sole
option, substitute a Mortgage Loan as provided below. In the event that any
such
breach shall involve any representation or warranty set forth in Section
3.01,
and such breach is not cured within sixty (60) days of the earlier of either
discovery by or notice to the Company of such breach, all Mortgage Loans
shall,
at the option of the Purchaser, be repurchased by the Company at the Repurchase
Price. Any such repurchase shall be accomplished by wire transfer of immediately
available funds to Purchaser in the amount of the Repurchase Price.
If
the
Company is required to repurchase any Mortgage Loan pursuant to this Section
3.03, the Company may, with the Purchaser's prior consent and at Purchaser’s
sole option, within ninety (90) days from the related Closing Date, remove
such
defective Mortgage Loan from the terms of this Agreement and substitute another
mortgage loan for such defective Mortgage Loan, in lieu of repurchasing such
defective Mortgage Loan. Any substitute Mortgage Loan is subject to Purchaser
acceptability. Any substituted Loans will comply with the representations
and
warranties set forth in this Agreement as of the substitution date
The
Company shall amend the related Mortgage Loan Schedule to reflect the withdrawal
of the removed Mortgage Loan from this Agreement and the substitution of
such
substitute Mortgage Loan therefor. Upon such amendment, the Purchaser shall
review the Mortgage File delivered to it relating to the substitute Mortgage
Loan. In the event of such a substitution, accrued interest on the substitute
Mortgage Loan for the month in which the substitution occurs and any Principal
Prepayments made thereon during such month shall be the property of the
Purchaser and accrued interest for such month on the Mortgage Loan for which
the
substitution is made and any Principal Prepayments made thereon during such
month shall be the property of the Company. The principal payment on a
substitute Mortgage Loan due on the Due Date in the month of substitution
shall
be the property of the Company and the principal payment on the Mortgage
Loan
for which the substitution is made due on such date shall be the property
of the
Purchaser.
It
is
understood and agreed that the obligation of the Company set forth in this
Section 3.03 to cure, repurchase or substitute for a defective Mortgage Loan,
and to indemnify Purchaser pursuant to Section 8.01, constitute the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties. If the Company fails to repurchase or substitute for a defective
Mortgage Loan in accordance with this Section 3.03, or fails to cure a defective
Mortgage Loan to Purchaser's reasonable satisfaction in accordance with this
Section 3.03, or to indemnify Purchaser pursuant to Section 8.01, that failure
shall be an Event of Default and the Purchaser shall be entitled to pursue
all
remedies available in this Agreement as a result thereof. No provision of
this
paragraph shall affect the rights of the Purchaser to terminate this Agreement
for cause, as set forth in Sections 10.01 and 11.01.
Any
cause
of action against the Company relating to or arising out of the breach of
any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) the earlier of discovery of such breach by the
Company or notice thereof by the Purchaser to the Company, (ii) failure by
the
Company to cure such breach or repurchase such Mortgage Loan as specified
above,
and (iii) demand upon the Company by the Purchaser for compliance with this
Agreement.
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, with respect to any Mortgage Loan that is not
in
default or as to which no default is imminent, no substitution pursuant to
Subsection 3.03 shall be made after the applicable REMIC's "start up day"
(as
defined in Section 860G(a) (9) of the Code), unless the Company has obtained
an
Opinion of Counsel to the effect that such substitution will not (i) result
in
the imposition of taxes on "prohibited transactions" of such REMIC (as defined
in Section 860F of the Code) or otherwise subject the REMIC to tax, or (ii)
cause the REMIC to fail to qualify as a REMIC at any time.
Section
3.04 Representations
and Warranties of the Purchaser.
The
Purchaser represents, warrants and convenants to the Company that, as of
the
related Closing Date or as of such date specifically provided
herein:
(a) The
Purchaser is a corporation, dully organized validly existing and in good
standing under the laws of the State of Delaware and is qualified to transact
business in, is in good standing under the laws of, and possesses all licenses
necessary for the conduct of its business in, each state in which any Mortgaged
Property is located or is otherwise except or not required under applicable
law
to effect such qualification or license;
(b) The
Purchaser has full power and authority to hold each Mortgage Loan, to purchase
each Mortgage Loan pursuant to this Agreement and the related Term Sheet
and to
execute, deliver and perform, and to enter into and consummate all transactions
contemplated by this Agreement and the related Term Sheet and to conduct
its
business as presently conducted, has duly authorized the execution, delivery
and
performance of this Agreement and the related Term Sheet, has duly executed
and
delivered this Agreement and the related Term Sheet;
(c) None
of
the execution and delivery of this Agreement and the related Term Sheet,
the
purchase of the Mortgage Loans, the consummation of the transactions
contemplated hereby, or the fulfillment of or compliance with the terms and
conditions of this Agreement and the related Term Sheet will conflict with
any
of the terms, conditions or provisions of the Purchaser’s charter or by-laws or
materially conflict with or result in a material breach of any of the terms,
conditions or provisions
of any legal restriction or any agreement or instrument to which the 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 material violation
of
any law, rule, regulation, order, judgment or decree to which the Purchaser
or
its property is subject;
(d) There
is
no litigation pending or to the best of the Purchaser’s knowledge, threatened
with respect to the Purchaser which is reasonably likely to have a material
adverse effect on the purchase of the related Mortgage Loans, the execution,
delivery or enforceability of this Agreement and the related Term Sheet,
or
which is reasonably likely to have a material adverse effect on the financial
condition of the Purchaser;
(e) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Purchaser
of
or compliance by the Purchaser with this Agreement and the related Term Sheet,
the purchase of the Mortgage Loans or the consummation of the transactions
contemplated by this Agreement and the related Term Sheet except for consents,
approvals, authorizations and orders which have been obtained;
(f) The
consummation of the transactions contemplated by this Agreement and the related
Term Sheet is in the ordinary course of business of the Purchaser;
(h) The
Purchaser will treat the purchase of the Mortgage Loans from the Company
as a
purchase for reporting, tax and accounting purposes; and
(i) The
Purchaser does not believe, nor does it have any cause or reason to believe,
that it cannot perform each and every of its covenants contained in this
Agreement and the related Term Sheet.
The
Purchaser shall indemnify the Company and hold it harmless against any claims,
proceedings, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and other costs and expenses
resulting from a breach by the Purchaser of the representations and warranties
contained in this Section 3.04. It is understood and agreed that the obligations
of the Purchaser set forth in this Section 3.04 to indemnify the Seller as
provided herein constitute the sole remedies of the Seller respecting a breach
of the foregoing representations and warranties.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Company
to Act as Servicer.
The
Company, as independent contract servicer, shall service and administer the
Mortgage Loans in accordance with this Agreement and the related Term Sheet
and
with Accepted Servicing Practices, and shall have full power and authority,
acting alone, to do or cause to be done any and all things in connection
with
such servicing and administration which the Company may deem necessary or
desirable and consistent with the terms of this Agreement and the related
Term
Sheet and with Accepted Servicing Practices and exercise the same care that
it
customarily employs for its own account. Except as set forth in this Agreement
and the related Term Sheet, the Company shall service the Mortgage Loans
in
strict compliance with the servicing provisions of the ▇▇▇▇▇▇ ▇▇▇ Guides
(special servicing option), which include, but are not limited to, provisions
regarding the liquidation of Mortgage Loans, the collection of Mortgage Loan
payments, the payment of taxes, insurance and other charges, the maintenance
of
hazard insurance with a Qualified Insurer, the maintenance of mortgage
impairment insurance, the maintenance of fidelity bond and errors and omissions
insurance, inspections, the restoration of Mortgaged Property, the maintenance
of Primary Mortgage Insurance Policies and Lender Primary Mortgage Insurance
Policies, insurance claims, the title, management and disposition of REO
Property, permitted withdrawals with respect to REO Property, liquidation
reports, and reports of foreclosures and abandonments of Mortgaged Property,
the
transfer of Mortgaged Property, the release of Mortgage Files, annual
statements, and examination of records and facilities. In the event of any
conflict, inconsistency or discrepancy between any of the servicing provisions
of this Agreement and the related Term Sheet and any of the servicing provisions
of the ▇▇▇▇▇▇ Mae Guides, the provisions of this Agreement and the related
Term
Sheet shall control and be binding upon the Purchaser and the Company.
Consistent
with the terms of this Agreement and the related Term Sheet, the Company
may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of any such term or in any manner grant indulgence to any Mortgagor
if in the Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, that unless the Company has obtained the prior
written consent of the Purchaser, the Company shall not permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest
Rate,
defer for more than ninety days or forgive any payment of principal or interest,
reduce or increase the outstanding principal balance (except for actual payments
of principal) or change the final maturity date on such Mortgage Loan. In
the
event of any such modification which has been agreed to in writing by the
Purchaser and which permits the deferral of interest or principal payments
on
any Mortgage Loan, the Company shall, on the Business Day immediately preceding
the Remittance Date in any month in which any such principal or interest
payment
has been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 4.04, the difference between (a) such month's principal
and one month's interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. The Company shall be entitled to reimbursement for such advances
to
the same extent as for all other advances pursuant to Section 4.05. Without
limiting the generality of the foregoing, the Company shall continue, and
is
hereby authorized and empowered, to prepare, execute and deliver, all
instruments of satisfaction or cancellation, or of partial or full release,
discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties. Notwithstanding anything
herein to the contrary, the Company may not enter into a forbearance agreement
or similar arrangement with respect to any Mortgage Loan which runs more
than
180 days after the first delinquent Due Date. Any such agreement shall be
approved by Purchaser and, if required, by the Primary Mortgage Insurance
Policy
insurer and Lender Primary Mortgage Insurance Policy insurer, if required.
Notwithstanding
anything in this Agreement to the contrary, if any Mortgage Loan becomes
subject
to a Pass-Through Transfer, the Company (a) with respect to such Mortgage
Loan,
shall not permit any modification with respect to such Mortgage Loan that
would
change the Mortgage Interest Rate and (b) shall not (unless the Mortgagor
is in
default with respect to such Mortgage Loan or such default is, in the judgment
of the Company, reasonably foreseeable) make or permit any modification,
waiver
or amendment of any term of such Mortgage Loan that would both (i) effect
an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code
(or
Treasury regulations promulgated thereunder) and (ii) cause any REMIC to
fail to
qualify as a REMIC under the Code or the imposition of any tax on “prohibited
transactions” or “contriburions” after the startup date under the REMIC
Provisions.
Prior
to
taking any action with respect to the Mortgage Loans subject to a Pass-Through
Transfer, which is not contemplated under the terms of this Agreement, the
Company will obtain an Opinion of Counsel acceptable to the trustee in such
Pass-Through Transfer with respect to whether such action could result in
the
imposition of a tax upon any REMIC (including but not limited to the tax
on
prohibited transactions as defined in Section 860F(a)(2) of the Code and
the tax
on contributions to a REMIC set forth in Section 860G(d) of the Code)(either
such event, an “Adverse REMIC Event”), and the Company shall not take any such
actions as to which it has been advised that an Adverse REMIC Event could
occur.
The
Company shall not permit the creation of any “interests” (within the meaning of
Section 860G of the Code) in any REMIC. The Company shall not enter into
any
arrangement by which a REMIC will receive a fee or other compensation for
services nor permit a REMIC to receive any income from assets other than
“qualified mortgages” as defined in Section 860G(a)(3) of the Code or “permitted
investments” as defined in Section 860G(a)(5) of the Code.
In
servicing and administering the Mortgage Loans, the Company shall employ
Accepted Servicing Practices, giving due consideration to the Purchaser's
reliance on the Company. Unless a different time period is stated in this
Agreement or the related Term Sheet, Purchaser shall be deemed to have given
consent in connection with a particular matter if Purchaser does not
affirmatively grant or deny consent within five (5) Business Days from the
date
Purchaser receives a second written request for consent for such matter from
Company as servicer.
The
Mortgage Loans may be subserviced by a Subservicer on behalf of the Company
provided that the Subservicer is an entity that engages in the business of
servicing loans, and in either case shall be authorized to transact business,
and licensed to service mortgage loans, in the state or states where 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, and in either case shall
be a
FHLMC or ▇▇▇▇▇▇ ▇▇▇ approved mortgage servicer in good standing, and no event
has occurred, including but not limited to a change in insurance coverage,
which
would make it unable to comply with the eligibility requirements for lenders
imposed by ▇▇▇▇▇▇ Mae or for seller/servicers imposed by ▇▇▇▇▇▇ ▇▇▇ or FHLMC,
or
which would require notification to ▇▇▇▇▇▇ Mae or FHLMC. In addition, each
Subservicer will obtain and preserve its qualifications to do business as
a
foreign corporation and its licenses to service mortgage loans, in each
jurisdiction in which such qualifications and/or licenses are or shall be
necessary to protect the validity and enforceability of this Agreement, or
any
of the Mortgage Loans and to perform or cause to be performed its duties
under
the related Subservicing Agreement. The Company may perform any of its servicing
responsibilities hereunder or may cause the Subservicer to perform any such
servicing responsibilities on its behalf, but the use by the Company of the
Subservicer shall not release the Company from any of its obligations hereunder
and the Company shall remain responsible hereunder for all acts and omissions
of
the Subservicer as fully as if such acts and omissions were those of the
Company. The Company shall pay all fees and expenses of the Subservicer from
its
own funds, and the Subservicer's fee shall not exceed the Servicing Fee.
Company
shall notify Purchaser promptly in writing upon the appointment of any
Subservicer.
At
the
cost and expense of the Company, without any right of reimbursement from
the
Custodial Account, the Company shall be entitled to terminate the rights
and
responsibilities of the Subservicer and arrange for any servicing
responsibilities to be performed by a successor subservicer meeting the
requirements in the preceding paragraph, provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Company, at the
Company's option, from electing to service the related Mortgage Loans itself.
In
the event that the Company's responsibilities and duties under this Agreement
are terminated pursuant to Section 4.13, 8.04, 9.01 or 10.01 and if requested
to
do so by the Purchaser, the Company shall at its own cost and expense terminate
the rights and responsibilities of the Subservicer effective as of the date
of
termination of the Company. The Company shall pay all fees, expenses or
penalties necessary in order to terminate the rights and responsibilities
of the
Subservicer from the Company's own funds without reimbursement from the
Purchaser.
Notwithstanding
any of the provisions of this Agreement relating to agreements or arrangements
between the Company and the Subservicer or any reference herein to actions
taken
through the Subservicer or otherwise, the Company shall not be relieved of
its
obligations to the Purchaser and shall be obligated to the same extent and
under
the same terms and conditions as if it alone were servicing and administering
the Mortgage Loans. The Company shall be entitled to enter into an agreement
with the Subservicer for indemnification of the Company by the Subservicer
and
nothing contained in this Agreement shall be deemed to limit or modify such
indemnification. The Company will indemnify and hold Purchaser harmless from
any
loss, liability or expense arising out of its use of a Subservicer to perform
any of its servicing duties, responsibilities and obligations
hereunder.
Any
Subservicing Agreement and any other transactions or services relating to
the
Mortgage Loans involving the Subservicer shall be deemed to be between the
Subservicer and Company alone, and the Purchaser shall have no obligations,
duties or liabilities with respect to the Subservicer including no obligation,
duty or liability of Purchaser to pay the Subservicer's fees and expenses.
For
purposes of distributions and advances by the Company pursuant to this
Agreement, the Company shall be deemed to have received a payment on a Mortgage
Loan when the Subservicer has received such payment.
Section
4.02 Collection
of Mortgage Loan Payments.
Continuously
from the date hereof until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Company will proceed diligently to collect all payments
due
under each Mortgage Loan when the same shall become due and payable and shall,
to the extent such procedures shall be consistent with this Agreement, Accepted
Servicing Practices, and the terms and provisions of any related Primary
Mortgage Insurance Policy and Lender Primary Mortgage Insurance Policy, follow
such collection procedures as it follows with respect to mortgage loans
comparable to the Mortgage Loans and held for its own account. Further, the
Company will take special care in ascertaining and estimating annual escrow
payments, and all other charges that, as provided in the Mortgage, will become
due and payable, so that the installments payable by the Mortgagors will
be
sufficient to pay such charges as and when they become due and
payable.
In
no
event will the Company waive its right to any prepayment penalty or premium
without the prior written consent of Purchaser and Company will use diligent
efforts to collect same when due except as otherwise provided in the prepayment
penalty rider to the Mortgage.
Section
4.03 Realization
Upon Defaulted Mortgage
The
Company shall use its best efforts, consistent with the procedures that the
Company would use in servicing loans for its own account, consistent with
Accepted Servicing Practices, any Primary Mortgage Insurance Policies and
Lender
Primary Mortgage Insurance Policies and the best interest of Purchaser, to
foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default
and as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 4.01. Foreclosure or comparable proceedings
shall
be initiated or a notice of default sent within ninety (90) days of default
for
Mortgaged Properties for which no satisfactory arrangements can be made for
collection of delinquent payments, subject to state and federal law and
regulation. The Company shall use its best efforts to realize upon defaulted
Mortgage Loans in such manner as will maximize the receipt of principal and
interest by the Purchaser, taking into account, among other things, the timing
of foreclosure proceedings. The foregoing is subject to the provisions that,
in
any case in which a Mortgaged Property shall have suffered damage, the Company
shall not be required to expend its own funds toward the restoration of such
property unless it shall determine in its discretion (i) that such restoration
will increase the proceeds of liquidation of the related Mortgage Loan to
the
Purchaser after reimbursement to itself for such expenses, and (ii) that
such
expenses will be recoverable by the Company through Insurance Proceeds or
Liquidation Proceeds from the related Mortgaged Property, as contemplated
in
Section 4.05. Company shall obtain prior approval of Purchaser as to repair
or
restoration expenses in excess of ten thousand dollars ($10,000). The Company
shall notify the Purchaser in writing of the commencement of foreclosure
proceedings. The Company shall be responsible for all costs and expenses
incurred by it in any such proceedings or functions; provided, however, that
it
shall be entitled to reimbursement thereof from the related property, as
contemplated in Section 4.05. Notwithstanding anything to the contrary contained
herein, in connection with a foreclosure or acceptance of a deed in lieu
of
foreclosure, in the event the Company has reasonable cause to believe that
a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Purchaser otherwise requests an environmental inspection or review
of
such Mortgaged Property, such an inspection or review is to be conducted
by a
qualified inspector at the Purchaser's expense. Upon completion of the
inspection, the Company shall promptly provide the Purchaser with a written
report of the environmental inspection. After reviewing the environmental
inspection report, the Purchaser shall determine how the Company shall proceed
with respect to the Mortgaged Property.
Notwithstanding
anything to the contrary contained herein, the Purchaser may, at the Purchaser's
sole option, terminate the Company as servicer of any Mortgage Loan which
becomes ninety (90) days or greater delinquent in payment of a scheduled
Monthly
Payment, without payment of any termination fee with respect thereto, provided
that the Company shall on the date said termination takes effect be reimbursed
for any unreimbursed advances of the Company's funds made pursuant to Section
5.03 and any unreimbursed Servicing Advances and Servicing Fees in each case
relating to the Mortgage Loan underlying such delinquent Mortgage Loan
notwithstanding anything to the contrary set forth in Section 4.05. In the
event
of any such termination, the provisions of Section 11.01 hereof shall apply
to
said termination and the transfer of servicing responsibilities with respect
to
such delinquent Mortgage Loan to the Purchaser or its designee.
In
the
event that a Mortgage Loan becomes part of a REMIC, and becomes REO Property,
such property shall be disposed of by the Company, with the consent of Purchaser
as required pursuant to this Agreement, before the close of the third taxable
year following the taxable year in which the Mortgage Loan became an REO
Property, unless the Company provides to the trustee under such REMIC an
opinion
of counsel to the effect that the holding of such REO Property subsequent
to the
close of the third taxable year following the taxable year in which the Mortgage
Loan became an REO Property, will not result in the imposition of taxes on
"prohibited transactions" as defined in Section 860F of the Code, or cause
the
transaction to fail to qualify as a REMIC at any time that certificates are
outstanding. Company shall manage, conserve, protect and operate each such
REO
Property for the certificateholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such property to fail
to
qualify as "foreclosure property" within the meaning of Section 860F(a)(2)(E)
of
the Code, or any "net income from foreclosure property" which is subject
to
taxation under the REMIC provisions of the Code. Pursuant to its efforts
to sell
such property, the Company shall either itself or through an agent selected
by
Company, protect and conserve such property in the same manner and to such
an
extent as is customary in the locality where such property is located.
Section
4.04 Establishment
of Custodial Accounts; Deposits in
Custodial Accounts.
The
Company shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts. The
Custodial Account shall be an Eligible Account. Funds
deposited in the Custodial Account, which shall be deposited within 24 hours
of
receipt, shall at all times be insured by the FDIC up to the FDIC insurance
limits, or must be invested in Permitted Investments for the benefit of the
Purchaser. Funds
deposited in the Custodial Account may be drawn on by the Company in accordance
with Section 4.05. The creation of any Custodial Account shall be evidenced
by a
letter agreement in the form shown in Exhibit B hereto. The original of such
letter agreement shall be furnished to the Purchaser on the Closing Date,
and
upon the request of any subsequent Purchaser.
The
Company shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received or made by it subsequent
to the Cut-off Date, or received by it prior to the Cut-off Date but allocable
to a period subsequent thereto, other than in respect of principal and interest
on the Mortgage Loans due on or before the Cut-off Date:
(i) all
payments on account of principal, including Principal Prepayments on the
Mortgage Loans;
(ii)
all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii)
all
Liquidation Proceeds;
(iv)
any
amounts required to be deposited by the Company in connection with any REO
Property pursuant to Section 4.13 and in connection therewith, the Company
shall
provide the Purchaser with written detail itemizing all of such
amounts;
(v)
all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 4.08, 4.10 and 4.11, other than proceeds to be held in the Escrow
Account and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with Accepted Servicing Practices,
the
Mortgage Loan Documents or applicable law;
(vi)
all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with Accepted Servicing Practices, the loan
documents or applicable law;
(vii)
any
Monthly Advances;
(viii)
with
respect to each full or partial Principal Prepayment, any Prepayment Interest
Shortfalls, to the extent of the Company’s aggregate Servicing Fee received with
respect to the related Prepayment Period;
(ix)
any
amounts required to be deposited by the Company pursuant to Section 4.10
in
connection with the deductible clause in any blanket hazard insurance policy,
such deposit shall be made from the Company's own funds, without reimbursement
therefor; and
(x)
any
amounts required to be deposited in the Custodial Account pursuant to Section
4.01, 4.13 or 6.02.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges and assumption
fees,
to the extent permitted by Section 6.01, need not be deposited by the Company
in
the Custodial Account. Any interest paid on funds deposited in the Custodial
Account by the depository institution shall accrue to the benefit of the
Company
and the Company shall be entitled to retain and withdraw such interest from
the
Custodial Account pursuant to Section 4.05 (iv). The
Purchaser shall not be responsible for any losses suffered with respect to
investment of funds in the Custodial Account.
Section
4.05 Permitted
Withdrawals From the Custodial Account.
The
Company may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 5.01;
(ii)
to
reimburse itself for Monthly Advances, the Company's right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the
related
Mortgage Loan which represent late collections (net of the related Servicing
Fees) of principal and/or interest respecting which any such advance was
made,
it being understood that, in the case of such reimbursement, the Company's
right
thereto shall be prior to the rights of the Purchaser, except that, where
the
Company is required to repurchase a Mortgage Loan, pursuant to Section 3.03,
the
Company's right to such reimbursement shall be subsequent to the payment
to the
Purchaser of the Repurchase Price pursuant to such Section and all other
amounts
required to be paid to the Purchaser with respect to such Mortgage
Loan;
(iii)
to
reimburse itself for unreimbursed Servicing Advances and any unpaid Servicing
Fees(or REO administration fees described in Section 4.13), the Company's
right
to reimburse itself pursuant to this subclause (iii) with respect to any
Mortgage Loan being limited to related proceeds from Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds in accordance with the relevant
provisions of the ▇▇▇▇▇▇ ▇▇▇ Guides or as otherwise set forth in this Agreement;
any recovery shall be made upon liquidation of the REO Property;
(iv) to
pay to
itself as part of its servicing compensation (a) any interest earned on funds
in
the Custodial Account (all such interest to be withdrawn monthly not later
than
each Remittance Date), and (b) the Servicing Fee from that portion of any
payment or recovery as to interest with respect to a particular Mortgage
Loan;
(v) to
pay to
itself with respect to each Mortgage Loan that has been repurchased pursuant
to
Section 3.03 all amounts received thereon and not distributed as of the date
on
which the related repurchase price is determined,
(vi) to
transfer funds to another Eligible Account in accordance with Section 4.09
hereof;
(vii) to
remove
funds inadvertently placed in the Custodial Account by the Company;
and
(vi) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
4.06 Establishment
of Escrow Accounts; Deposits
in Escrow Accounts.
The
Company shall segregate and hold all funds collected and received pursuant
to
each Mortgage Loan which constitute Escrow Payments separate and apart from
any
of its own funds and general assets and shall establish and maintain one
or more
Escrow Accounts. The Escrow Account shall be an Eligible Account. Funds
deposited in each Escrow Account shall at all times be insured in a manner
to
provide maximum insurance under the insurance limitations of the FDIC, or
must
be invested in Permitted Investments. Funds
deposited in the Escrow Account may be drawn on by the Company in accordance
with Section 4.07. The creation of any Escrow Account shall be evidenced
by a
letter agreement in the form shown in Exhibit C. The original of such letter
agreement shall be furnished to the Purchaser on the Closing Date, and upon
request to any subsequent purchaser.
The
Company shall deposit in the Escrow Account or Accounts on a daily basis,
and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of
this
Agreement;
(ii) all
Insurance Proceeds which are to be applied to the restoration or repair of
any
Mortgaged Property; and
(iii) all
Servicing Advances for Mortgagors whose Escrow Payments are insufficient
to
cover escrow disbursements.
The
Company shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, and for such other purposes
as
shall be as set forth or in accordance with Section 4.07. The Company shall
be
entitled to retain any interest paid on funds deposited in the Escrow Account
by
the depository institution other than interest on escrowed funds required
by law
to be paid to the Mortgagor and, to the extent required by law, the Company
shall pay interest on escrowed funds to the Mortgagor notwithstanding that
the
Escrow Account is non-interest bearing or that interest paid thereon is
insufficient for such purposes. The
Purchaser shall not be responsible for any losses suffered with respect to
investment of funds in the Escrow Account.
Section
4.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account may be made by Company only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, Primary
Mortgage Insurance Policy premiums, if applicable, fire and hazard insurance
premiums, condominium assessments and comparable items;
(ii) to
reimburse Company for any Servicing Advance made by Company with respect
to a
related Mortgage Loan but only from amounts received on the related Mortgage
Loan which represent late payments or collections of Escrow Payments
thereunder;
(iii) to
refund
to the Mortgagor any funds as may be determined to be overages;
(iv) for
transfer to the Custodial Account in accordance with the terms of this
Agreement;
(v) for
application to restoration or repair of the Mortgaged Property;
(vi) to
pay to
the Company, or to the Mortgagor to the extent required by law, any interest
paid on the funds deposited in the Escrow Account;
(vii)
to
clear
and terminate the Escrow Account on the termination of this Agreement. As
part
of its servicing duties, the Company shall pay to the Mortgagors interest
on
funds in Escrow Account, to the extent required by law, and to the extent
that
interest earned on funds in the Escrow Account is insufficient, shall pay
such
interest from its own funds, without any reimbursement therefor;
and
(viii)
to
pay to the Mortgagors or other parties Insurance Proceeds deposited in
accordance with Section 4.06.
Section
4.08 Payment
of Taxes, Insurance and Other Charges; Maintenance of Primary
Mortgage
Insurance
Policies; Collections Thereunder.
With
respect to each Mortgage Loan, the Company shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates and
other
charges which are or may become a lien upon the Mortgaged Property and the
status of primary mortgage insurance premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges, including renewal premiums and shall effect payment thereof prior
to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits
of the
Mortgagor in the Escrow Account which shall have been estimated and accumulated
by the Company in amounts sufficient for such purposes, as allowed under
the
terms of the Mortgage or applicable law. To the extent that the Mortgage
does
not provide for Escrow Payments, the Company shall determine that any such
payments are made by the Mortgagor at the time they first become due. The
Company assumes full responsibility for the timely payment of all such bills
and
shall effect timely payments of all such bills irrespective of the Mortgagor's
faithful performance in the payment of same or the making of the Escrow Payments
and shall make advances from its own funds to effect such payments.
The
Company will maintain in full force and effect Primary Mortgage Insurance
Policies and Lender Primary Mortgage Insurance Policies issued by a Qualified
Insurer with respect to each Mortgage Loan for which such coverage is herein
required. Such coverage will be terminated only with the approval of Purchaser,
or as required by applicable law or regulation. The Company will not cancel
or
refuse to renew any Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy in effect on the Closing Date that is required to be kept
in
force under this Agreement unless a replacement Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy for such canceled or
nonrenewed policy is obtained from and maintained with a Qualified Insurer.
The
Company shall not take any action which would result in non-coverage under
any
applicable Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Company would
have been covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 6.01, the
Company shall promptly notify the insurer under the related Primary Mortgage
Insurance Policy or Lender Primary Mortgage Insurance Policy, if any, of
such
assumption or substitution of liability in accordance with the terms of such
policy and shall take all actions which may be required by such insurer as
a
condition to the continuation of coverage under the Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy. If such Primary Mortgage
Insurance Policy or Lender Primary Mortgage Insurance Policy is terminated
as a
result of such assumption or substitution of liability, the Company shall
obtain
a replacement Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy as provided above.
In
connection with its activities as servicer, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
Primary Mortgage Insurance Policy or Lender Primary Mortgage Insurance Policy
in
a timely fashion in accordance with the terms of such Primary Mortgage Insurance
Policy or Lender Primary Mortgage Insurance Policy and, in this regard, to
take
such action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy or Lender Primary Mortgage Insurance Policy respecting a
defaulted Mortgage Loan. Pursuant to Section 4.04, any amounts collected
by the
Company under any Primary Mortgage Insurance Policy or Lender Primary Mortgage
Insurance Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section
4.09 Transfer
of Accounts.
The
Company may transfer the Custodial Account or the Escrow Account to a different
Eligible Account from time to time. Such transfer shall be made only upon
obtaining the prior written consent of the Purchaser, which consent will
not be
unreasonably withheld.
Section
4.10 Maintenance
of Hazard Insurance.
The
Company shall cause to be maintained for each Mortgage Loan fire and hazard
insurance with extended coverage as is acceptable to ▇▇▇▇▇▇ ▇▇▇ or FHLMC
and
customary in the area where the Mortgaged Property is located in an amount
which
is equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan or (ii) the greater of (a) the outstanding principal
balance of the Mortgage Loan, and (b) an amount such that the proceeds thereof
shall be sufficient to prevent the Mortgagor and/or the mortgagee from becoming
a co-insurer. If required by the Flood Disaster Protection Act of 1973, as
amended, each Mortgage Loan shall be covered by a flood insurance policy
meeting
the requirements of the current guidelines of the Federal Insurance
Administration in effect with an insurance carrier acceptable to ▇▇▇▇▇▇ Mae
or
FHLMC, in an amount representing coverage not less than the least of (i)
the
outstanding principal balance of the Mortgage Loan, (ii) the maximum insurable
value of the improvements securing such Mortgage Loan or (iii) the maximum
amount of insurance which is available under the Flood Disaster Protection
Act
of 1973, as amended. If at any time during the term of the Mortgage Loan,
the
Company determines in accordance with applicable law and pursuant to the
▇▇▇▇▇▇
▇▇▇ Guides that a Mortgaged Property is located in a special flood hazard
area
and is not covered by flood insurance or is covered in an amount less than
the
amount required by the Flood Disaster Protection Act of 1973, as amended,
the
Company shall notify the related Mortgagor that the Mortgagor must obtain
such
flood insurance coverage, and if said Mortgagor fails to obtain the required
flood insurance coverage within forty-five (45) days after such notification,
the Company shall immediately force place the required flood insurance on
the
Mortgagor’s behalf. The Company shall also maintain on each REO Property, fire
and hazard insurance with extended coverage in an amount which is at least
equal
to the maximum insurable value of the improvements which are a part of such
property, and, to the extent required and available under the Flood Disaster
Protection Act of 1973, as amended, flood insurance in an amount as provided
above. Any amounts collected by the Company under any such policies other
than
amounts to be deposited in the Escrow Account and applied to the restoration
or
repair of the Mortgaged Property or REO Property, or released to the Mortgagor
in accordance with Accepted Servicing Practices, shall be deposited in the
Custodial Account, subject to withdrawal pursuant to Section 4.05. It is
understood and agreed that no other additional insurance need be required
by the
Company of the Mortgagor or maintained on property acquired in respect of
the
Mortgage Loan, other than pursuant to this Agreement, the ▇▇▇▇▇▇ Mae Guides
or
such applicable state or federal laws and regulations as shall at any time
be in
force and as shall require such additional insurance. All such policies shall
be
endorsed with standard mortgagee clauses with loss payable to the Company
and
its successors and/or assigns and shall provide for at least thirty days
prior
written notice of any cancellation, reduction in the amount or material change
in coverage to the Company. The Company shall not interfere with the Mortgagor's
freedom of choice in selecting either his insurance carrier or agent, provided,
however, that the Company shall not accept any such insurance policies from
insurance companies unless such companies are Qualified Insurers.
Section
4.11 Maintenance
of Mortgage Impairment Insurance
Policy.
In
the
event that the Company shall obtain and maintain a blanket policy issued
by an
insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or FHLMC insuring against hazard losses
on all
of the Mortgage Loans, then, to the extent such policy provides coverage
in an
amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4.10, it
being
understood and agreed that such policy may contain a deductible clause, in
which
case the Company shall, in the event that there shall not have been maintained
on the related Mortgaged Property or REO Property a policy complying with
Section 4.10, and there shall have been a loss which would have been covered
by
such policy, deposit in the Custodial Account the amount not otherwise payable
under the blanket policy because of such deductible clause. In connection
with
its activities as servicer of the Mortgage Loans, the Company agrees to prepare
and present, on behalf of the Purchaser, claims under any such blanket policy
in
a timely fashion in accordance with the terms of such policy. Upon request
of
the Purchaser, the Company shall cause to be delivered to the Purchaser a
certified true copy of such policy and shall use its best efforts to obtain
a
statement from the insurer thereunder that such policy shall in no event
be
terminated or materially modified without thirty (30) days' prior written
notice
to the Purchaser.
Section
4.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Company shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies on all officers, employees or other persons acting in any capacity
with regard to the Mortgage Loan to handle funds, money, documents and papers
relating to the Mortgage Loan. The Fidelity Bond shall be in the form of
the
Mortgage Banker's Blanket Bond and shall protect and insure the Company against
losses, including forgery, theft, embezzlement and fraud of such persons.
The
errors and omissions insurance shall protect and insure the Company against
losses arising out of errors and omissions and negligent acts of such persons.
Such errors and omissions insurance shall also protect and insure the Company
against losses in connection with the failure to maintain any insurance policies
required pursuant to this Agreement and the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.12 requiring the Fidelity
Bond
or errors and omissions insurance shall diminish or relieve the Company from
its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the
corresponding amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇ Guides. Upon
request by the Purchaser, the Company shall deliver to the Purchaser a
certificate from the surety and the insurer as to the existence of the Fidelity
Bond and errors and omissions insurance policy and shall obtain a statement
from
the surety and the insurer that such Fidelity Bond or insurance policy shall
in
no event be terminated or materially modified without thirty (30) days' prior
written notice to the Purchaser. The Company shall notify the Purchaser within
five (5) business days of receipt of notice that such Fidelity Bond or insurance
policy will be, or has been, materially modified or terminated. The Purchaser
(or any party having the status of Purchaser hereunder) and any subsidiary
thereof and their successors or assigns as their interests may appear must
be
named as loss payees on the Fidelity Bond and as additional insured on the
errors and omissions policy. Upon request by Purchaser, Company shall provide
Purchaser with an insurance certificate certifying coverage under this Section
4.12, and will provide an update to such certificate upon request, or upon
renewal or material modification of coverage.
Section
4.13 Title,
Management and Disposition of REO Property.
In
the
event that title to the Mortgaged Property is acquired in foreclosure or
by deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in
the
name of the Purchaser or its designee, or in the event the Purchaser or its
designee is not authorized or permitted to hold title to real property in
the
state where the REO Property is located, or would be adversely affected under
the "doing business" or tax laws of such state by so holding title, the deed
or
certificate of sale shall be taken in the name of such Person or Persons
as
shall be consistent with an opinion of counsel obtained by the Company from
an
attorney duly licensed to practice law in the state where the REO Property
is
located. Any Person or Persons holding such title other than the Purchaser
shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Purchaser.
The
Company shall notify the Purchaser in accordance with the ▇▇▇▇▇▇ Mae Guides
of
each acquisition of REO Property upon such acquisition (and, in any event,
shall
provide notice of the consummation of any foreclosure sale within three (3)
Business Days of the date Company receives notice of such consummation),
together with a copy of the drive by appraisal or brokers price opinion of
the
Mortgaged Property obtained in connection with such acquisition, and thereafter
assume the responsibility for marketing such REO property in accordance with
Accepted Servicing Practices. Thereafter, the Company shall continue to provide
certain administrative services to the Purchaser relating to such REO Property
as set forth in this Section 4.13. The fee for such administrative services
shall be $2,000 to be paid upon liquidation of the REO Property. No Servicing
Fee shall be assessed or otherwise accrue on any REO Property from and after
the
date on which it becomes an REO Property.
The
Company shall, either itself or through an agent selected by the Company,
and in
accordance with the ▇▇▇▇▇▇ ▇▇▇ Guides manage, conserve, protect and operate
each
REO Property in the same manner that it manages, conserves, protects and
operates other foreclosed property for its own account, and in the same manner
that similar property in the same locality as the REO Property is managed.
The
Company shall cause each REO Property to be inspected promptly upon the
acquisition of title thereto and shall cause each REO Property to be inspected
at least monthly thereafter or more frequently as required by the circumstances.
The Company shall make or cause to be made a written report of each such
inspection. Such reports shall be retained in the Mortgage File and copies
thereof shall be forwarded by the Company to the Purchaser.
The
Company shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within one year after
title has been taken to such REO Property, unless the Company determines,
and
gives an appropriate notice to the Purchaser to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If
a
longer period than one (1) year is permitted under the foregoing sentence
and is
necessary to sell any REO Property, the Company shall report monthly to the
Purchaser as to the progress being made in selling such REO Property. No
REO
Property shall be marketed for less than the Appraised Value, without the
prior
consent of Purchaser. No REO Property shall be sold for less than ninety
five
percent (95%) of its Appraised Value, without the prior consent of Purchaser.
All requests for reimbursement of Servicing Advances shall be in accordance
with
the ▇▇▇▇▇▇ Mae Guides. The disposition of REO Property shall be carried out
by
the Company at such price, and upon such terms and conditions, as the Company
deems to be in the best interests of the Purchaser (subject to the above
conditions) only with the prior written consent of the Purchaser. Company
shall
provide monthly reports to Purchaser in reference to the status of the marketing
of the REO Properties.
Notwithstanding
anything to the contrary contained herein, the Purchaser may, at the Purchaser's
sole option, terminate the Company as servicer of any such REO Property without
payment of any termination fee with respect thereto, provided that the Company
shall on the date said termination takes effect be reimbursed for any
unreimbursed advances of the Company's funds made pursuant to Section 5.03
and
any unreimbursed Servicing Advances and Servicing Fees in each case relating
to
the Mortgage Loan underlying such REO Property notwithstanding anything to
the
contrary set forth in Section 4.05. In the event of any such termination,
the
provisions of Section 11.01 hereof shall apply to said termination and the
transfer of servicing responsibilities with respect to such REO Property
to the
Purchaser or its designee. Within five Business Days of any such termination,
the Company shall, if necessary convey such property to the Purchaser and
shall
further provide the Purchaser with the following information regarding the
subject REO Property: the related drive by appraisal or brokers price opinion,
and copies of any related Mortgage Impairment Insurance Policy claims. In
addition, within five Business Days, the Company shall provide the Purchaser
with the following information regarding the subject REO Property: the related
trustee’s deed upon sale and copies of any related hazard insurance claims, or
repair bids.
Section
4.14 Notification
of Maturity Date.
With
respect to each Mortgage Loan, the Company shall execute and deliver to the
Mortgagor any and all necessary notices required under applicable law and
the
terms of the related Mortgage Note and Mortgage regarding the maturity date
if
required under applicable law.
ARTICLE
V
PAYMENTS
TO THE PURCHASER
Section
5.01 Distributions.
On
each
Remittance Date, the Company shall distribute by wire transfer of immediately
available funds to the Purchaser (i) all amounts credited to the Custodial
Account as of the close of business on the preceding Determination Date,
net of
charges against or withdrawals from the Custodial Account pursuant to Section
4.05, plus (ii) all Monthly Advances, if any, which the Company is obligated
to
distribute pursuant to Section 5.03, plus, (iii) interest at the Mortgage
Loan
Remittance Rate on any Principal Prepayment from the date of such Principal
Prepayment through the end of the month for which disbursement is made provided
that the Company’s obligation as to payment of such interest shall be limited to
the Servicing Fee earned during the month of the distribution, plus (iv)
unless
otherwise stated in the related Confirmation or related Term Sheet, any amount
received by the Company that represents a prepayment penalty with respect
to a
Mortgage Loan, minus (v) any amounts attributable to Monthly Payments collected
but due on a Due Date or Dates subsequent to the preceding Determination
Date,
which amounts shall be remitted on the Remittance Date next succeeding the
Due
Period for such amounts. It is understood that, by operation of Section 4.04,
the remittance on the first Remittance Date with respect to Mortgage Loans
purchased pursuant to the related Term Sheet is to include principal collected
after the Cut-off Date through the preceding Determination Date plus interest,
adjusted to the Mortgage Loan Remittance Rate collected through such
Determination Date exclusive of any portion thereof allocable to the period
prior to the Cut-off Date, with the adjustments specified in clauses (ii),
(iii)
and (iv) above.
With
respect to any remittance received by the Purchaser after the Remittance
Date,
the Company shall pay to the Purchaser interest on any such late payment
at an
annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three (3) percentage points, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall cover the period
commencing with the day following the Business Day such payment was due and
ending with the Business Day on which such payment is made to the Purchaser,
both inclusive. The payment by the Company of any such interest shall not
be
deemed an extension of time for payment or a waiver of any Event of Default
by
the Company. On each Remittance Date, the Company shall provide a remittance
report detailing all amounts being remitted pursuant to this Section
5.01.
Section
5.02 Statements
to the Purchaser.
The
Company shall furnish to Purchaser an individual loan accounting report,
as of
the last Business Day of each month, in the Company's assigned loan number
order
to document Mortgage Loan payment activity on an individual Mortgage Loan
basis.
With respect to each month, the corresponding individual loan accounting
report
shall be received by the Purchaser no later than the fifth Business Day of
the
following month on a disk or tape or other computer-readable format in such
format as may be mutually agreed upon by both Purchaser and Company, and
no
later than the fifth Business Day of the following month in hard copy, and
shall
contain the following:
(i)
With
respect to each Monthly Payment, the amount of such remittance allocable
to
principal (including a separate breakdown of any Principal Prepayment, including
the date of such prepayment, and any prepayment penalties or premiums, along
with a detailed report of interest on principal prepayment amounts remitted
in
accordance with Section 4.04);
(ii)
with
respect to each Monthly Payment, the amount of such remittance allocable
to
interest;
(iii)
the
amount of servicing compensation received by the Company during the prior
distribution period;
(iv)
the
aggregate Stated Principal Balance of the Mortgage Loans;
(v)
the
aggregate of any expenses reimbursed to the Company during the prior
distribution period pursuant to Section 4.05;
(vi)
The
number and aggregate outstanding principal balances of Mortgage Loans (a)
delinquent (1) 30 to 59 days, (2) 60 to 89 days, (3) 90 days or more; (b)
as to
which foreclosure has commenced; and (c) as to which REO Property has been
acquired; and
The
Company shall also provide a trial balance, sorted in Purchaser's assigned
loan
number order, in the form of Exhibit E hereto, with each such
Report.
The
Company shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or
to
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby.
Section
5.03 Monthly
Advances by the Company.
Not
later
than the close of business on the Business Day preceding each Remittance
Date,
the Company shall deposit in the Custodial Account an amount equal to all
payments not previously advanced by the Company, whether or not deferred
pursuant to Section 4.01, of principal (due after the Cut-off Date) and interest
not allocable to the period prior to the Cut-off Date, adjusted to the Mortgage
Loan Remittance Rate, which were due on a Mortgage Loan and delinquent at
the
close of business on the related Determination Date.
The
Company's obligation to make such Monthly Advances as to any Mortgage Loan
will
continue through the last Monthly Payment due prior to the payment in full
of
the Mortgage Loan, or through the Remittance Date prior to the date on which
the
Mortgaged Property liquidates (including Insurance Proceeds, proceeds from
the
sale of REO Property or Condemnation Proceeds) with respect to the Mortgage
Loan
unless the Company deems such advance to be nonrecoverable. In such event,
the
Company shall deliver to the Purchaser an Officer's Certificate of the Company
to the effect that an officer of the Company has reviewed the related Mortgage
File and has made the reasonable determination that any additional advances
are
nonrecoverable.
Section
5.04 Liquidation
Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Purchaser pursuant to a deed-in-lieu of foreclosure, the Company shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged Property
in a
form mutually acceptable to Company and Purchaser. The Company shall also
provide reports on the status of REO Property containing such information
as
Purchaser may reasonably require.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
Section
6.01 Assumption
Agreements.
The
Company will, to the extent it has knowledge of any conveyance or prospective
conveyance by any Mortgagor of the Mortgaged Property (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under any "due-on-sale"
clause to the extent permitted by law; provided, however, that the Company
shall
not exercise any such rights if prohibited by law or the terms of the Mortgage
Note from doing so or if the exercise of such rights would impair or threaten
to
impair any recovery under the related Primary Mortgage Insurance Policy or
Lender Primary Mortgage Insurance Policy, if any. If the Company reasonably
believes it is unable under applicable law to enforce such "due-on-sale"
clause,
the Company, with the approval of the Purchaser, will enter into an assumption
agreement with the person to whom the Mortgaged Property has been conveyed
or is
proposed to be conveyed, pursuant to which such person becomes liable under
the
Mortgage Note and, to the extent permitted by applicable state law, the
Mortgagor remains liable thereon. Where an assumption is allowed pursuant
to
this Section 6.01, the Company, with the prior consent of the Purchaser and
the
primary mortgage insurer, if any, is authorized to enter into a substitution
of
liability agreement with the person to whom the Mortgaged Property has been
conveyed or is proposed to be conveyed pursuant to which the original mortgagor
is released from liability and such Person is substituted as mortgagor and
becomes liable under the related Mortgage Note. Any such substitution of
liability agreement shall be in lieu of an assumption agreement.
In
connection with any such assumption or substitution of liability, the Company
shall follow the underwriting practices and procedures of the Company. With
respect to an assumption or substitution of liability, the Mortgage Interest
Rate borne by the related Mortgage Note, the amount of the Monthly Payment
and
the maturity date may not be changed (except pursuant to the terms of the
Mortgage Note). If the credit of the proposed transferee does not meet such
underwriting criteria, the Company diligently shall, to the extent permitted
by
the Mortgage or the Mortgage Note and by applicable law, accelerate the maturity
of the Mortgage Loan. The Company shall notify the Purchaser that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Purchaser the original of any such substitution of liability
or assumption agreement, which document shall be added to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File
to
the same extent as all other documents and instruments constituting a part
thereof. All fees collected by the Company for entering into an assumption
or
substitution of liability agreement shall belong to the Company.
Notwithstanding
the foregoing paragraphs of this Section or any other provision of this
Agreement, the Company shall not be deemed to be in default, breach or any
other
violation of its obligations hereunder by reason of any assumption of a Mortgage
Loan by operation of law or any assumption which the Company may be restricted
by law from preventing, for any reason whatsoever. For purposes of this Section
6.01, the term "assumption" is deemed to also include a sale of the Mortgaged
Property subject to the Mortgage that is not accompanied by an assumption
or
substitution of liability agreement.
Section
6.02 Satisfaction
of Mortgages and Release of Mortgage
Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Company of a
notification that payment in full will be escrowed in a manner customary
for
such purposes, the Company will immediately notify the Purchaser by a
certification, which certification shall include a statement to the effect
that
all amounts received or to be received in connection with such payment which
are
required to be deposited in the Custodial Account pursuant to Section 4.04
have
been or will be so deposited, of a Servicing Officer and shall request delivery
to it of the portion of the Mortgage File held by the Purchaser. The Purchaser
shall no later than five Business Days after receipt of such certification
and
request, release or cause to be released to the Company, the related Mortgage
Loan Documents and, upon its receipt of such documents, the Company shall
promptly prepare and deliver to the Purchaser the requisite satisfaction
or
release. No later than five (5) Business Days following its receipt of such
satisfaction or release, the Purchaser shall deliver, or cause to be delivered,
to the Company the release or satisfaction properly executed by the owner
of
record of the applicable mortgage or its duly appointed attorney in fact.
No
expense incurred in connection with any instrument of satisfaction or deed
of
reconveyance shall be chargeable to the Custodial Account.
In
the
event the Company satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Purchaser may have under the mortgage
instruments, the Company, upon written demand, shall remit within two (2)
Business Days to the Purchaser the then outstanding principal balance of
the
related Mortgage Loan by deposit thereof in the Custodial Account. The Company
shall maintain the Fidelity Bond and errors and omissions insurance insuring
the
Company against any loss it may sustain with respect to any Mortgage Loan
not
satisfied in accordance with the procedures set forth herein.
From
time
to time and as appropriate for the servicing or foreclosure of the Mortgage
Loan, including for the purpose of collection under any Primary Mortgage
Insurance Policy or Lender Primary Mortgage Insurance Policy, the Purchaser
shall, upon request of the Company and delivery to the Purchaser of a servicing
receipt signed by a Servicing Officer, release the portion of the Mortgage
File
held by the Purchaser to the Company. Such servicing receipt shall obligate
the
Company to return the related Mortgage documents to the Purchaser when the
need
therefor by the Company no longer exists, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have
been
deposited in the Custodial Account or the Mortgage File or such document
has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or
other
proceedings for the foreclosure of the Mortgaged Property either judicially
or
non-judicially, and the Company has delivered to the Purchaser a certificate
of
a Servicing Officer certifying as to the name and address of the Person to
which
such Mortgage File or such document was delivered and the purpose or purposes
of
such delivery. Upon receipt of a certificate of a Servicing Officer stating
that
such Mortgage Loan was liquidated, the servicing receipt shall be released
by
the Purchaser to the Company.
Section
6.03 Servicing
Compensation.
As
compensation for its services hereunder, the Company shall be entitled to
withdraw from the Custodial Account (to the extent of interest payments
collected on the Mortgage Loans) or to retain from interest payments collected
on the Mortgage Loans, the amounts provided for as the Company's Servicing
Fee,
subject to payment of compensating interest on Principal Prepayments as capped
by the Servicing Fee pursuant to Section 5.01 (iii). Additional servicing
compensation in the form of assumption fees, as provided in Section 6.01,
and
late payment charges or otherwise shall be retained by the Company to the
extent
not required to be deposited in the Custodial Account. No Servicing Fee shall
be
payable in connection with partial Monthly Payments. The Company shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor
except
as specifically provided for.
Section
6.04 Annual
Statement as to Compliance.
The
Company will deliver to the Purchaser not later than 90 days following the
end
of each fiscal year of the Company beginning in March 2002,
an
Officers' Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Company during the preceding calendar year and of
performance under this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Company has fulfilled all of its obligations under this Agreement throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officers and the nature
and status of cure provisions thereof. Copies of such statement shall be
provided by the Company to the Purchaser upon request.
Section
6.05 Annual
Independent Certified Public Accountants'
Servicing Report.
Within
ninety (90) days of Company's fiscal year end beginning in March 2002 the
Company at its expense shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants
to
furnish a statement to the Purchaser to the effect that such firm has examined
certain documents and records relating to the Company's servicing of mortgage
loans of the same type as the Mortgage Loans pursuant to servicing agreements
substantially similar to this Agreement, which agreements may include this
Agreement, and that, on the basis of such an examination, conducted
substantially in the uniform single audit program for mortgage bankers, such
firm is of the opinion that the Company's servicing has been conducted in
compliance with the agreements examined pursuant to this Section 6.05, except
for (i) such exceptions as such firm shall believe to be immaterial, and
(ii)
such other exceptions as shall be set forth in such statement. Copies of
such
statement shall be provided by the Company to the Purchaser. In addition,
on an
annual basis, Company shall provided Purchaser with copies of its audited
financial statements.
Section
6.06 Purchaser's
Right to Examine Company Records.
The
Purchaser shall have the right to examine and audit upon reasonable notice
to
the Company, during business hours or at such other times as might be reasonable
under applicable circumstances, any and all of the books, records, documentation
or other information of the Company, or held by another for the Company or
on
its behalf or otherwise, which relates to the performance or observance by
the
Company of the terms, covenants or conditions of this Agreement.
The
Company shall provide to the Purchaser and any supervisory agents or examiners
representing a state or federal governmental agency having jurisdiction over
the
Purchaser, including but not limited to FDIC and other similar entities,
access
to any documentation regarding the Mortgage Loans in the possession of the
Company which may be required by any applicable regulations. Such access
shall
be afforded without charge, upon reasonable request, during normal business
hours and at the offices of the Company, and in accordance with the federal
government, FDIC, or any other similar regulations.
ARTICLE
VII
REPORTS
TO BE PREPARED BY SERVICER
Section
7.01 Company
Shall Provide Information as Reasonably
Required.
The
Company shall furnish to the Purchaser during the term of this Agreement
such
periodic, special or other reports, information or documentation, not provided
for herein, as shall be necessary, reasonable or appropriate in respect to
the
Purchaser, or otherwise in respect to the Mortgage Loans and the performance
of
the Company under this Agreement, including any reports, information or
documentation reasonably required to comply with any regulations regarding
any
supervisory agents or examiners of the Purchaser all such reports or information
to be as provided by and in accordance with such applicable instructions
and
directions as the Purchaser may reasonably request in relation to this Agreement
or the performance of the Company under this Agreement. Such periodic, special
or other reports, information or documentation furnished to the Purchaser
at the
Purchaser’s request pursuant to the preceding sentence shall be at the expense
of the Purchaser. The Company agrees to execute and deliver all such instruments
and take all such action as the Purchaser, from time to time, may reasonably
request in order to effectuate the purpose and to carry out the terms of
this
Agreement.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser audited financial statements of the Company for
the
most recently completed two (2) fiscal years for which such statements are
available, as well as a Consolidated Statement of Condition at the end of
the
last two (2) fiscal years covered by any Consolidated Statement of Operations.
If it has not already done so, the Company shall furnish promptly to the
Purchaser or a prospective purchaser copies of the statements specified
above.
The
Company shall make reasonably available to the Purchaser or any prospective
Purchaser a knowledgeable financial or accounting officer for the purpose
of
answering questions and to permit any prospective purchaser to inspect the
Company’s servicing facilities for the purpose of satisfying such prospective
purchaser that the Company has the ability to service the Mortgage Loans
as
provided in this Agreement.
ARTICLE
VIII
THE
SERVICER
Section
8.01 Indemnification;
Third Party Claims.
The
Company agrees to indemnify the Purchaser and hold it harmless against any
and
all claims, losses, damages, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Purchaser may sustain in any way related to the failure of the Company to
observe and perform its duties, obligations, covenants, and agreements to
service the Mortgage Loans in strict compliance with the terms of this
Agreement. The Company agrees to indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, fees and expenses
that the Purchaser may sustain in any way related to the breach of a
representation or warranty set forth in Sections 3.01 or 3.02 of this Agreement.
The Company shall immediately notify the Purchaser if a claim is made by
a third
party against Company with respect to this Agreement or the Mortgage Loans,
assume (with the consent of the Purchaser) the defense of any such claim
and pay
all expenses in connection therewith, including counsel fees, whether or
not
such claim is settled prior to judgment, and promptly pay, discharge and
satisfy
any judgment or decree which may be entered against it or the Purchaser in
respect of such claim. The Company shall follow any written instructions
received from the Purchaser in connection with such claim. The Purchaser
shall
promptly reimburse the Company for all amounts advanced by it pursuant to
the
two preceding sentences except when the claim relates to the failure of the
Company to service and administer the Mortgages in strict compliance with
the
terms of this Agreement, the breach of representation or warranty set forth
in
Sections 3.01 or 3.02, or the gross negligence, bad faith or willful misconduct
of Company. The provisions of this Section 8.01 shall survive termination
of
this Agreement.
Section
8.02 Merger
or Consolidation of the Company.
The
Company 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 Company may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Company
shall be a party, or any Person succeeding to the business of the Company
whether or not related to loan servicing, shall be the successor of the Company
hereunder, without the execution or filing of any paper or any further act
on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person
shall
be an institution (i) having a GAAP net worth of not less than $25,000,000,
(ii)
the deposits of which are insured by the FDIC and/or BIF, and which is a
HUD-approved mortgagee whose primary business is in origination and servicing
of
first lien mortgage loans, and (iii) who is a ▇▇▇▇▇▇ ▇▇▇ or FHLMC approved
seller/servicer in good standing; provided, further, however, that the Company
shall give sixty (60) days written notice to the Purchaser of any merger,
conversion or consolidation to which the Company shall be a party, or of
any
Person succeeding to the business of the Company, and the Purchaser, at it
sole
option, shall make the determination as to whether such successor of the
Company
shall continue to service the Mortgage Loans hereunder.
Section
8.03 Limitation
on Liability of the Company and Others.
Neither
the Company nor any of the officers, employees or agents of the Company shall
be
under any liability to the Purchaser for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, or for
errors
in judgment made in good faith; provided, however, that this provision shall
not
protect the Company or any such person against any breach of warranties or
representations made herein, or failure to perform its obligations in strict
compliance with any standard of care set forth in this Agreement, or any
liability which would otherwise be imposed by reason of negligence, bad faith
or
willful misconduct, or any breach of the terms and conditions of this Agreement.
The Company and any officer, employee or agent of the Company may rely in
good
faith on any document of any kind prima facie properly executed and submitted
by
the Purchaser respecting any matters arising hereunder. The Company shall
not be
under any obligation to appear in, prosecute or defend any legal action which
is
not incidental to its duties to service the Mortgage Loans in accordance
with
this Agreement and which in its reasonable opinion may involve it in any
expenses or liability; provided, however, that the Company may, with the
consent
of the Purchaser, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the reasonable legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
for which the Purchaser will be liable, and the Company shall be entitled
to be
reimbursed therefor from the Purchaser upon written demand.
Section
8.04 Company
Not to Assign or Resign.
The
Company shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except by mutual consent of the Company and the
Purchaser or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Company. Any such determination permitting the resignation of the Company
shall
be evidenced by an Opinion of Counsel to such effect delivered to the Purchaser
which Opinion of Counsel shall be in form and substance acceptable to the
Purchaser. No such resignation shall become effective until a successor shall
have assumed the Company's responsibilities and obligations hereunder in
the
manner provided in Section 11.01.
Section
8.05 No
Transfer of Servicing.
With
respect to the retention of the Company to service the Mortgage Loans hereunder,
the Company acknowledges that the Purchaser has acted in reliance upon the
Company's independent status, the adequacy of its servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the generality
of this Section, the Company shall not either assign this Agreement or the
servicing hereunder or delegate its rights or duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written approval of the Purchaser,
which
consent shall be granted or withheld in the Purchaser's sole
discretion.
Without
in any way limiting the generality of this Section 8.05, in the event that
the
Company either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof without
(i)
satisfying the requirements set forth herein or (ii) the prior written consent
of the Purchaser, then the Purchaser shall have the right to terminate this
Agreement, without any payment of any penalty or damages and without any
liability whatsoever to the Company (other than with respect to accrued but
unpaid Servicing Fees and Servicing Advances remaining unpaid) or any third
party.
ARTICLE
IX
DEFAULT
Section
9.01 Events
of Default.
In
case
one or more of the following Events of Default by the Company shall occur
and be
continuing, that is to say:
(i)
any
failure by the Company to remit to the Purchaser any payment required to
be made
under the terms of this Agreement which continues unremedied for a period
of one
(1) Business Day; or
(ii)
failure on the part of the Company duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Company
set
forth in this Agreement which continues unremedied for a period of thirty
(30)
days after the date on which written notice of such failure, requiring the
same
to be remedied, shall have been given to the Company by the Purchaser;
or
(iii)
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation
of its
affairs, shall have been entered against the Company and such decree or order
shall have remained in force undischarged or unstayed for a period of sixty
days; or
(iv)
the
Company shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Company
or
of or relating to all or substantially all of its property; or
(v)
the
Company shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi)
Company ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a mortgage
loan
seller or servicer for more than thirty days; or
(vii)
the
Company attempts to assign its right to servicing compensation hereunder
or the
Company attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its
duties
hereunder or any portion thereof; or
(viii)
the Company ceases to be (a) licensed to service first lien residential mortgage
loans in any jurisdiction in which a Mortgaged Property is located and such
licensing is required, and (b) qualified to transact business in any
jurisdiction where it is currently so qualified, but only to the extent such
non-qualification materially and adversely affects the Company's ability
to
perform its obligations hereunder; or
(ix)
the
Company fails to meet the eligibility criteria set forth in the last sentence
of
Section 8.02.
Then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied, the Purchaser, by notice in writing to the Company (except in the
case
of an Event of Default under clauses (iii), (iv) or (v) above, in which case,
automatically and without notice) Company may, in addition to whatever rights
the Purchaser may have under Sections 3.03 and 8.01 and at law or equity
or to
damages, including injunctive relief and specific performance, terminate
all the
rights and obligations of the Company under this Agreement and in and to
the
Mortgage Loans and the proceeds thereof without compensating the Company
for the
same. On or after the receipt by the Company of such written notice (or,
in the
case of an Event of Default under clauses (iii), (iv) or (v) above, in which
case, automatically and without notice), all authority and power of the Company
under this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the successor appointed pursuant to Section
11.01. Upon written request from the Purchaser, the Company shall prepare,
execute and deliver, any and all documents and other instruments, place in
such
successor's possession all Mortgage Files, and do or accomplish all other
acts
or things necessary or appropriate to effect the purposes of such notice
of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise, at the Company's
sole
expense. The Company agrees to cooperate with the Purchaser and such successor
in effecting the termination of the Company's responsibilities and rights
hereunder, including, without limitation, the transfer to such successor
for
administration by it of all cash amounts which shall at the time be credited
by
the Company to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans or any REO Property.
Section
9.02 Waiver
of Defaults.
The
Purchaser may waive only by written notice any default by the Company in
the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event
of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent
or
other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
ARTICLE
X
TERMINATION
Section
10.01 Termination.
The
respective obligations and responsibilities of the Company shall terminate
upon:
(i) the later of the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and the disposition of all remaining
REO Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Company and the Purchaser in writing; or (iii) termination
with
cause under the terms of this Agreement.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Successor
to the Company.
Prior
to
termination of Company's responsibilities and duties under this Agreement
pursuant to Sections 4.13, 8.04, 9.01, 10.01 (ii) or (iii), the Purchaser
shall
(i) succeed to and assume all of the Company's responsibilities, rights,
duties
and obligations under this Agreement, or (ii) appoint a successor having
the
characteristics set forth in Section 8.02 hereof and which shall succeed
to all
rights and assume all of the responsibilities, duties and liabilities of
the
Company under this Agreement prior to the termination of Company's
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Purchaser may make such arrangements
for the compensation of such successor out of payments on Mortgage Loans
as the
Purchaser and such successor shall agree. In the event that the Company's
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned Sections, the Company shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under
this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of Company pursuant to the aforementioned Sections shall not become effective
until a successor shall be appointed pursuant to this Section and shall in
no
event relieve the Company of the representations and warranties made pursuant
to
Sections 3.01, 3.02 and 3.03 and the remedies available to the Purchaser
thereunder and under Section 8.01, it being understood and agreed that the
provisions of such Sections 3.01, 3.02, 3.03 and 8.01 shall be applicable
to the
Company notwithstanding any such resignation or termination of the Company,
or
the termination of this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Company and to the Purchaser an instrument accepting such appointment,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Company, with
like
effect as if originally named as a party to this Agreement. Any termination
or
resignation of the Company or this Agreement pursuant to Section 4.13, 8.04,
9.01 or 10.01 shall not affect any claims that the Purchaser may have against
the Company arising prior to any such termination or resignation.
The
Company shall promptly deliver to the successor the funds in the Custodial
Account and the Escrow Account and the Mortgage Files and related documents
and
statements held by it hereunder and the Company shall account for all funds.
The
Company shall execute and deliver such instruments and do such other things
all
as may reasonably be required to more fully and definitely vest and confirm
in
the successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Company. The successor shall make arrangements as it may
deem
appropriate to reimburse the Company for unrecovered Servicing Advances which
the successor retains hereunder and which would otherwise have been recovered
by
the Company pursuant to this Agreement but for the appointment of the successor
servicer.
Upon
a
successor's acceptance of appointment as such, the Company shall notify by
mail
the Purchaser of such appointment.
Section
11.02 Amendment.
This
Agreement may be amended from time to time by the Company and the Purchaser
by
written agreement signed by the Company and the Purchaser.
Section
11.03 Recordation
of Agreement.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any of the properties subject to
the
Mortgages are situated, and in any other appropriate public recording office
or
elsewhere, such recordation to be effected by the Company at the Company's
expense on direction of the Purchaser accompanied by an opinion of counsel
to
the effect that such recordation materially and beneficially affects the
interest of the Purchaser or is necessary for the administration or servicing
of
the Mortgage Loans.
Section
11.04 Governing
Law.
This
Agreement and the related Term Sheet shall be governed by and construed in
accordance with the laws of the State of New York except to the extent preempted
by Federal law. The obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
Section
11.05 Notices.
Any
demands, notices or other communications permitted or required hereunder
shall
be in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, postage prepaid, and return receipt
requested or certified mail, return receipt requested, or transmitted by
telex,
telegraph or telecopier and confirmed by a similar mailed writing, as
follows:
(i)
if
to the
Company:
National
City Mortgage Company
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Servicing
contact:
National
City Mortgage Company
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention:
▇. ▇▇▇▇▇▇▇ Case
(ii)
if
to the
Purchaser:
EMC
Mortgage Corporation
Mac
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy to:
Bear
▇▇▇▇▇▇▇ Mortgage Capital Corporation
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇▇▇
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
Section
11.06 Severability
of Provisions.
Any
part,
provision, representation or warranty of this Agreement and the related Term
Sheet which is prohibited or which is held to be void or unenforceable shall
be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction
shall
be ineffective, as to such jurisdiction, to the extent of such prohibition
or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law that prohibits or renders void or unenforceable
any
provision hereof. If the invalidity of any part, provision, representation
or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate,
in good
faith, to develop a structure the economic effect of which is nearly as possible
the same as the economic effect of this Agreement without regard to such
invalidity.
Section
11.07 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof
and
are an integral part of this Agreement.
Section
11.08 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i)
the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender
herein
shall be deemed to include the other gender;
(ii)
accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii)
references
herein to "Articles", "Sections", Subsections", "Paragraphs", and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(iv)
a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(v)
the
words
"herein", "hereof ", "hereunder" and other words of similar import refer
to this
Agreement as a whole and not to any particular provision;
(vi)
the
term
"include" or "including" shall mean without limitation by reason of enumeration;
and
(viii)
headings
of the Articles and Sections in this Agreement are for reference purposes
only
and shall not be deemed to have any substantive effect.
Section
11.09 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(i)
consents, waivers and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial statements,
certificates and other information previously or hereafter furnished, may
be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
11.10 Confidentiality
of Information.
Each
party recognizes that, in connection with this Agreement, it may become privy
to
non-public information regarding the financial condition, operations and
prospects of the other party. Each party agrees to keep all non-public
information regarding the other party strictly confidential, and to use all
such
information solely in order to effectuate the purpose of the Agreement, provided
that each party may provide confidential information to its employees, agents
and affiliates who have a need to know such information in order to effectuate
the transaction, provided further that such information is identified as
confidential non-public information. In addition, confidential information
may
be provided to a regulatory authority with supervisory power over Purchaser,
provided such information is identified as confidential non-public
information.
Section
11.11 Recordation
of Assignments of Mortgage.
To
the
extent permitted by applicable law, each of the Assignments 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 and at the Company’s
expense in the event recordation is either necessary under applicable law
or
requested by the Purchaser at its sole option.
Section
11.12 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Company, to assign,
in whole or in part, its interest under this Agreement with respect to some
or
all of the Mortgage Loans, and designate any person to exercise any rights
of
the Purchaser hereunder, by executing an Assignment and Assumption Agreement
substantially in the form of Exhibit D hereto and the assignee or designee
shall
accede to the rights and obligations hereunder of the Purchaser with respect
to
such Mortgage Loans. In no event shall Purchaser sell a partial interest
in any
Mortgage Loan without the written consent of Company, which consent shall
not be
unreasonably denied. All references to the Purchaser in this Agreement shall
be
deemed to include its assignee or designee.
Section
11.13 No
Partnership.
Nothing
herein contained shall be deemed or construed to create a co-partnership
or
joint venture between the parties hereto and the services of the Company
shall
be rendered as an independent contractor and not as agent for
Purchaser.
Section
11.14 Execution:
Successors and Assigns.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed,
shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.04, this Agreement shall inure
to
the benefit of and be binding upon the Company and the Purchaser and their
respective successors and assigns.
Section
11.15 Entire
Agreement.
The
Company acknowledges that no representations, agreements or promises were
made
to the Company by the Purchaser or any of its employees other than those
representations, agreements or promises specifically contained herein and
in the
Confirmation. The Confirmation and this Agreement and the related Term Sheet
sets forth the entire understanding between the parties hereto; provided,
however, only this Agreement and the related Term Sheet shall be binding
upon
all successors of both parties. In the event of any inconsistency between
the
Confirmation and this Agreement, this Agreement and the related Term Sheet
shall
control.
Section
11.16. No
Solicitation.
From
and
after the Closing Date, the Company agrees that it will not take any action
or
permit or cause any action to be taken by any of its agents or affiliates,
to
personally, by telephone or mail, solicit the borrower or obligor under any
Mortgage Loan to refinance the Mortgage Loan, in whole or in part, without
the
prior written consent of the Purchaser. Notwithstanding the foregoing, it
is
understood and agreed that (i) promotions undertaken by the Company or any
affiliate of the Company which are directed to the general public at large,
or
segments thereof, provided that no segment shall consist primarily of the
Mortgage Loans, including, without limitation, mass mailing based on
commercially acquired mailing lists, newspaper, radio and television
advertisements, and customer portfolio and (ii) responses to unsolicited
requests or inquiries made by a Mortgagor or an agent of a Mortgagor, shall
not
constitute solicitation under this Section 11.16. This Section 11.16 shall
not
be deemed to preclude the Company or any of its affiliates from soliciting
any
Mortgagor for any other financial products or services. From and after the
Closing Date, the Purchaser 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 Purchaser’s behalf, to personally by telephone or
mail, solicit the borrower or obligor under any Mortgage Loan to refinance
the
Mortgage Loan, in whole or in part, without the prior written consent of
the
Company,. In addition, the Purchaser or any of its affiliates shall not solicit
any Mortgagor for any other financial products or services. Notwithstanding
the
foregoing, it is understood and agreed that (i) promotions undertaken by
the
Purchasr or any affiliate of the Purchaser which are directed to the general
public at large, or segments thereof, provided that no segment shall consist
primarily of the Mortgage Loans, including, without limitation, mass mailing
based on commercially acquired mailing lists, newspaper, radio and television
advertisements and (ii) responses to unsolicited requests or inquiries made
by a
Mortgagor or an agent of a Mortgagor, shall not constitute solicitation under
this Section 11.16 The Company shall use its best efforts to prevent the
sale of
the name of any Mortgagor to any Person who is not affiliate of the
Company.
Section
11.17. Closing.
The
closing for the purchase and sale of the Mortgage Loans shall take place
on the
related Closing Date. The closing shall be either: by telephone, confirmed
by
letter or wire as the parties shall agree, or conducted in person, at such
place
as the parties shall agree.
The
closing for the Mortgage Loans to be purchased on the related Closing Date
shall
be subject to each of the following conditions:
(a) at
least
one (1) Business Day prior to the related Closing Date, the Company shall
deliver to the Purchaser a magnetic diskette, or transmit by modem, a listing
on
a loan-level basis of the information contained in the related Mortgage Loan
Schedule attached to the related Term Sheet;
(b) all
of
the representations and warranties of the Company under this Agreement shall
be
materially true and correct as of the related Closing Date and no event shall
have occurred which, with notice or the passage of time, would constitute
a
material default under this Agreement;
(c) the
Purchaser shall have received, or the Purchaser's attorneys shall have received
in escrow, all documents required pursuant to this Agreement, the related
Term
Sheet, an opinion of counsel and an officer's certificate, all in such forms
as
are agreed upon and acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required pursuant to the terms
hereof;
(d) the
Company shall have delivered and released to the Purchaser (or its designee)
on
or prior to the related Closing Date all documents required pursuant to the
terms of this Agreement and the related Term Sheet; and
(e) all
other
terms and conditions of this Agreement, the related Term Sheet and the
Confirmation shall have been materially complied with.
Subject
to the foregoing conditions, the Purchaser shall pay to the Company on the
related Closing Date the Purchase Price, plus accrued interest pursuant to
Section 2.02 of this Agreement, by wire transfer of immediately available
funds
to the account designated by the Company.
Section
11.18. Cooperation
of Company with a Reconstitution.
The
Company and the Purchaser agree that with respect to some or all of the Mortgage
Loans, on or after the related Closing Date, on one or more dates (each a
"Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect
a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then
subject to this Agreement, without recourse, to:
(a)
one or
more third party purchasers in one or more in whole loan transfers (each,
a
"Whole Loan Transfer"); or
(b) one
or
more trusts or other entities to be formed as part of one or more pass-through
transfers (each, a "Pass-Through Transfer").
The
Company agrees to execute in connection with any agreements among the Purchaser,
the Company, and any servicer in connection with a Whole Loan Transfer, an
Assignment, Assumption and Recognition Agreement substantially in the form
of
Exhibit D hereto, or, at Purchaser’s request, a seller's warranties and
servicing agreement or a participation and servicing agreement or similar
agreement in form and substance reasonably acceptable to the parties, and
in
connection with a Pass-Through Transfer, a pooling and servicing agreement
in
form and substance reasonably acceptable to the parties, (collectively the
agreements referred to herein are designated, the "Reconstitution Agreements").
It is understood that any such Reconstitution Agreements will not contain
any
greater obligations on the part of Company than are contained in this
Agreement.
With
respect to each Whole Loan Transfer and each Pass-Through Transfer entered
into
by the Purchaser, the Company agrees (1) to cooperate fully with the Purchaser
and any prospective purchaser with respect to all reasonable requests and
due
diligence procedures; (2) to execute, deliver and perform all Reconstitution
Agreements required by the Purchaser; (3) to restate the representations
and
warranties set forth in this Agreement as of the settlement or closing date
in
connection with such Reconstitution (each, a "Reconstitution Date"). In that
connection, the Company shall provide to such servicer or issuer, as the
case
may be, and any other participants in such Reconstitution: (i) any and all
information (including servicing portfolio information) and appropriate
verification of information (including servicing portfolio information) which
may be reasonably available to the Company, whether through letters of its
auditors and counsel or otherwise, as the Purchaser or any such other
participant shall request upon reasonable demand; and (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Company
as are
reasonably agreed upon by the Company and the Purchaser or any such other
participant. In connection with each Pass-Through Transfer, the Company agrees
to provide reasonable and customary indemnification to the Purchaser and
its
affiliates for disclosure contained in any offering document relating to
the
Company or its affiliates, the Mortgage Loans and the underwriting standards
of
the Mortgage Loans. The Purchaser shall be responsible for the costs relating
to
the delivery of such information. With respect to each Pass-Through Transfer,
the Purchaser shall provide thirty (30) days notice of such transfer, unless
otherwise agreed by the parties in the related Confirmation. With respect
to
each Whole Loan Transfer, limits on frequency of Reconstitution may be provided
in the related Confirmation or related Term Sheet for the related Mortgage
Loans.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall
remain
subject to, and serviced in accordance with the terms of, this Agreement
and the
related Term Sheet, and with respect thereto this Agreement and the related
Term
Sheet shall remain in full force and effect.
IN
WITNESS WHEREOF, the Company and the Purchaser have caused their names to
be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
| EMC MORTGAGE CORPORATION | ||
|
Purchaser
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
| NATIONAL CITY MORTGAGE COMPANY | ||
|
Company
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
EXHIBIT
A
CONTENTS
OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser,
and
which shall be retained by the Company in the Servicing File or delivered
to the
Purchaser or its designee pursuant to Sections 2.04 and 2.05 of the Purchase,
Warranties and Servicing Agreement.
1.
The
original Mortgage Note endorsed "Pay to the order of
____________________________________________________, without recourse,"
and
signed via original signature in the name of the Company by an authorized
officer, with all intervening endorsements showing a complete chain of title
from the originator to the Company, together with any applicable riders.
In no
event may an endorsement be a facsimile endorsement. If the Mortgage Loan
was
acquired by the Company in a merger, the endorsement must be by "[Company],
successor by merger to the [name of predecessor]". If the Mortgage Loan was
acquired or originated by the Company while doing business under another
name,
the endorsement must be by "[Company] formerly known as [previous name]".
Mortgage Notes may be in the form of a lost note affidavit subject to Purchaser
acceptability.
2.
The
original Mortgage (together with a standard adjustable rate mortgage rider)
with
evidence of recording thereon, or a copy thereof certified by the public
recording office in which such mortgage has been recorded or, if the original
Mortgage has not been returned from the applicable public recording office,
a
true certified copy, certified by the Company.
3.
The
original or certified copy, certified by the Company, of the Primary Mortgage
Insurance Policy or Lender Primary Mortgage Insurance Policy, if
required.
4. The
original Assignment, from the Company to _____________________________________,
or in accordance with Purchaser's instructions, which assignment shall, but
for
any blanks requested by Purchaser, be in form and substance acceptable for
recording. If the Mortgage Loan was acquired or originated by the Company
while
doing business under another name, the Assignment must be by "[Company] formerly
known as [previous name]". If the Mortgage Loan was acquired by the Company
in a
merger, the endorsement must be by "[Company], successor by merger to the
[name
of predecessor]". None of the Assignments are blanket assignments of
mortgage.
5. The
original policy of title insurance, including riders and endorsements thereto,
or if the policy has not yet been issued, a written commitment or interim
binder
or preliminary report of title issued by the title insurance or escrow
company.
6. Originals
of all recorded intervening Assignments, or copies thereof, certified by
the
public recording office in which such Assignments have been recorded showing
a
complete chain of title from the originator to the Company, with evidence
of
recording thereon, or a copy thereof certified by the public recording office
in
which such Assignment has been recorded or, if the original Assignment has
not
been returned from the applicable public recording office, a true certified
copy, certified by the Company.
7. Originals,
or copies thereof certified by the public recording office in which such
documents have been recorded, of each assumption, extension, modification,
written assurance or substitution agreements, if applicable, or if the original
of such document has not been returned from the applicable public recording
office, a true certified copy, certified by the Company.
8. If
the
Mortgage Note or Mortgage or any other material document or instrument relating
to the Mortgage Loan has been signed by a person on behalf of the Mortgagor,
the
original or copy of power of attorney or other instrument that authorized
and
empowered such person to sign bearing evidence that such instrument has been
recorded, if so required in the appropriate jurisdiction where the Mortgaged
Property is located, or a copy thereof certified by the public recording
office
in which such instrument has been recorded or, if the original instrument
has
not been returned from the applicable public recording office, a true certified
copy, certified by the Company.
9. reserved.
10. Mortgage
Loan closing statement (Form HUD-1) and any other truth-in-lending or real
estate settlement procedure forms required by law.
11.
Residential loan application.
12. Uniform
underwriter and transmittal summary (▇▇▇▇▇▇ ▇▇▇ Form 1008) or reasonable
equivalent.
13. Credit
report on the mortgagor.
14. Business
credit report, if applicable.
15. Residential
appraisal report and attachments thereto.
16. The
original of any guarantee executed in connection with the Mortgage
Note.
17. Verification
of employment and income except for Mortgage Loans originated under a limited
documentation program, all in accordance with Company's underwriting
guidelines.
18. Verification
of acceptable evidence of source and amount of down payment, in accordance
with
Company's underwriting guidelines.
19. Photograph
of the Mortgaged Property (may be part of appraisal).
20. Survey
of
the Mortgaged Property, if any.
21. Sales
contract, if applicable.
22. If
available, termite report, structural engineer’s report, water portability and
septic certification.
23. Any
original security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
24. Name
affidavit, if applicable.
Notwithstanding
anything to the contrary herein, Company may provide one certificate for
all of
the Mortgage Loans indicating that the documents were delivered for
recording.
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
______________,
2001
To: [_______________________]
(the
"Depository")
As
"Company" under the Purchase, Warranties and Servicing Agreement, dated as
of
October 1, 2001 (the "Agreement"), we hereby authorize and request you to
establish an account, as a Custodial Account pursuant to Section 4.04 of
the
Agreement, to be designated as " National City Mortgage Company, in trust
for
the [Purchaser], Owner of Mortgage Loans". All deposits in the account shall
be
subject to withdrawal therefrom by order signed by the Company. This letter
is
submitted to you in duplicate. Please execute and return one original to
us.
NATIONAL
CITY MORTGAGE COMPANY
By:____________________________
Name:__________________________
Title:___________________________
The
undersigned, as "Depository", hereby certifies that the above described account
has been established under Account Number [__________], at the office of
the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance Fund
or
will be invested in Permitted Investments as defined in the
Agreement.
[___________________________]
By:____________________________
Name:__________________________
Title:___________________________
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
_____________,
2001
To: [_______________________]
(the
"Depository")
As
“Company” under the Purchase Warranties and Servicing Agreement, dated as of
October 1, 2001 (the "Agreement"), we hereby authorize and request you to
establish an account, as an Escrow Account pursuant to Section 4.06 of the
Agreement, to be designated as "National City Mortgage Company, in trust
for the
[Purchaser], Owner of Mortgage Loans, and various Mortgagors." All deposits
in
the account shall be subject to withdrawal therefrom by order signed by the
Company. This letter is submitted to you in duplicate. Please execute and
return
one original to us.
NATIONAL
CITY MORTGAGE COMPANY
By:____________________________
Name:__________________________
Title:___________________________
The
undersigned, as "Depository", hereby certifies that the above described account
has been established under Account Number __________, at the office of the
depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will
be
insured up to applicable limits by the Federal Deposit Insurance Corporation
through the Bank Insurance Fund or the Savings Association Insurance Fund
or
will be invested in Permitted Investments as defined in the
Agreement.
[___________________________]
By:____________________________
Name:__________________________
Title:___________________________
EXHIBIT
D
FORM
OF
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This
is a
Purchase, Assignment, Assumption and Recognition Agreement (this “PAAR
Agreement”) made as of __________, 200__, among EMC Mortgage Corporation (the
“Assignor”), ___________________ (the “Assignee”), and _______________________
(the “Company”).
In
consideration of the mutual promises contained herein the parties hereto
agree
that the residential mortgage loans (the “Assigned Loans”) listed on Attachment
1 annexed hereto (the "Assigned Loan Schedule") now serviced by Company for
Assignor and its successors and assigns pursuant to the Purchase, Warranties
and
Servicing Agreement, dated as of _________, 200__, between Assignor and Company
(the “Purchase Agreement”) shall be subject to the terms of this PAAR Agreement.
Capitalized terms used herein but not defined shall have the meanings ascribed
to them in the Purchase Agreement.
Purchase,
Assignment and Assumption
1. Assignor
hereby grants, transfers and assigns to Assignee all of the right, title
and
interest of Assignor in the Assigned Loans and, as they relate to the Assigned
Loans, all of its right, title and interest in, to and under the Purchase
Agreement.
2. Simultaneously
with the execution hereof, (i) Assignee shall pay to Assignor the “Funding
Amount” as set forth in that certain letter agreement, dated as of _________
____, between Assignee and Assignor (the “Confirmation”) and (ii) Assignor, at
its expense, shall have caused to be delivered to Assignee or its designee
the
Mortgage File for each Assigned Loan in Assignor's or its custodian's
possession, as set forth in the Purchase Agreement, along with, for each
Assigned Loan, an endorsement of the Mortgage Note from the applicable Company,
in blank, and an assignment of mortgage in recordable form from the applicable
Company, in blank. Assignee shall pay the Funding Amount by wire transfer
of
immediately available funds to the account specified by Assignor. Assignee
shall
be entitled to all scheduled payments due on the Assigned Loans after
___________, 200__ and all unscheduled payments or other proceeds or other
recoveries on the Assigned Loans received on and after _____________,
200__.
Representations,
Warranties and Covenants
3. Assignor
warrants and represents to Assignee and Company as of the date
hereof:
(a) Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase Agreement,
which agreement is in full force and effect as of the date hereof and the
provisions of which have not been waived, amended or modified in any respect,
nor has any notice of termination been given thereunder;
(b) Assignor
is the lawful owner of the Assigned Loans with full right to transfer the
Assigned Loans and any and all of its interests, rights and obligations under
the Purchase Agreement as they relate to the Assigned Loans, free and clear
from
any and all claims and encumbrances; and upon the transfer of the Assigned
Loans
to Assignee as contemplated herein, Assignee shall have good title to each
and
every Assigned Loan, as well as any and all of Assignee’s interests, rights and
obligations under the Purchase Agreement as they relate to the Assigned Loans,
free and clear of any and all liens, claims and encumbrances;
(c) There
are
no offsets, counterclaims or other defenses available to Company with respect
to
the Assigned Loans or the Purchase Agreement;
(d) Assignor
has no knowledge of, and has not received notice of, any waivers under, or
any
modification of, any Assigned Loan;
(e) Assignor
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation, and has all requisite power and authority
to
acquire, own and sell the Assigned Loans;
(f) Assignor
has full corporate power and authority to execute, deliver and perform its
obligations under this PAAR Agreement, and to consummate the transactions
set
forth herein. The consummation of the transactions contemplated by this PAAR
Agreement is in the ordinary course of Assignor’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Assignor’s charter or by-laws or any legal restriction, or any material
agreement or instrument to which Assignor is now a party or by which it is
bound, or result in the violation of any law, rule, regulation, order, judgment
or decree to which Assignor or its property is subject. The execution, delivery
and performance by Assignor of this PAAR Agreement and the consummation by
it of
the transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of Assignor. This PAAR Agreement has been duly executed
and delivered by Assignor and, upon the due authorization, execution and
delivery by Assignee and Company, will constitute the valid and legally binding
obligation of Assignor enforceable against Assignor in accordance with its
terms
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect relating
to creditors’ rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at law;
(g) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
Assignor in connection with the execution, delivery or performance by Assignor
of this PAAR Agreement, or the consummation by it of the transactions
contemplated hereby; and
(h) Neither
Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold
or otherwise disposed of the Assigned Loans or any interest in the Assigned
Loans, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Assigned Loans, or any interest in the Assigned Loans
or
otherwise approached or negotiated with respect to the Assigned Loans, or
any
interest in the Assigned Loans with any Person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Assigned
Loans under the Securities Act of 1933, as amended (the “1933 Act”) or which
would render the disposition of the Assigned Loans a violation of Section
5 of
the 1933 Act or require registration pursuant thereto.
4. Assignee
warrants and represents to, and covenants with, Assignor and Company as of
the
date hereof:
(a) Assignee
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its organization and has all requisite power and authority
to
acquire, own and purchase the Assigned Loans;
(b) Assignee
has full corporate power and authority to execute, deliver and perform its
obligations under this PAAR Agreement, and to consummate the transactions
set
forth herein. The consummation of the transactions contemplated by this PAAR
Agreement is in the ordinary course of Assignee’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Assignee’s charter or by-laws or any legal restriction, or any material
agreement or instrument to which Assignee is now a party or by which it is
bound, or result in the violation of any law, rule, regulation, order, judgment
or decree to which Assignee or its property is subject. The execution, delivery
and performance by Assignee of this PAAR Agreement and the consummation by
it of
the transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of Assignee. This PAAR Agreement has been duly executed
and delivered by Assignee and, upon the due authorization, execution and
delivery by Assignor and Company, will constitute the valid and legally binding
obligation of Assignee enforceable against Assignee in accordance with its
terms
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect relating
to creditors’ rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
Assignee in connection with the execution, delivery or performance by Assignee
of this PAAR Agreement, or the consummation by it of the transactions
contemplated hereby; and
(d) Assignee
agrees to be bound as “Purchaser” by all of the terms, covenants and conditions
of the Purchase Agreement with respect to the Assigned Loans, and from and
after
the date hereof, Assignee assumes for the benefit of each of Assignor and
Company all of Assignor's obligations as “Purchaser” thereunder but solely with
respect to such Assigned Loans.
5. Company
warrants and represents to, and covenant with, Assignor and Assignee as of
the
date hereof:
(a) Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase Agreement,
which agreement is in full force and effect as of the date hereof and the
provisions of which have not been waived, amended or modified in any respect,
nor has any notice of termination been given thereunder;
(b)
Company
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation, and has all requisite power and authority
to
service the Assigned Loans and otherwise to perform its obligations under
the
Purchase Agreement;
(c)
Company
has full corporate power and authority to execute, deliver and perform
its
obligations under this PAAR Agreement, and to consummate the transactions
set
forth herein. The consummation of the transactions contemplated by this
PAAR
Agreement is in the ordinary course of Company’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Company’s charter or by-laws or any legal restriction, or any material agreement
or instrument to which Company is now a party or by which it is bound,
or result
in the violation of any law, rule, regulation, order, judgment or decree
to
which Company or its property is subject. The execution, delivery and
performance by Company of this PAAR Agreement and the consummation by it
of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of Company. This PAAR Agreement has been duly
executed
and delivered by Company, and, upon the due authorization, execution and
delivery by Assignor and Assignee, will constitute the valid and legally
binding
obligation of Company, enforceable against Company in accordance with its
terms
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect
relating
to creditors’ rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at
law;
(d)
No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
Assignee in connection with the execution, delivery or performance by Company
of
this PAAR Agreement, or the consummation by it of the transactions contemplated
hereby; and
(e)
No
event
has occurred
from the
Closing Date to the date hereof which would render the representations
and
warranties as to the related Assigned Loans made by the Company in Sections
3.01
and 3.02 of the Purchase Agreement to be untrue in any material
respect.
Recognition
of Assignee
6. From
and
after the date hereof, Company shall recognize Assignee as owner of the Assigned
Loans and will service the Assigned Loans in accordance with the Purchase
Agreement. It is the intention of Assignor, Company and Assignee that this
PAAR
Agreement shall be binding upon and for the benefit of the respective successors
and assigns of the parties hereto. Neither Company nor Assignor shall amend
or
agree to amend, modify, waiver, or otherwise alter any of the terms or
provisions of the Purchase Agreement which amendment, modification, waiver
or
other alteration would in any way affect the Assigned Loans without the prior
written consent of Assignee.
Miscellaneous
7. All
demands, notices and communications related to the Assigned Loans, the Purchase
Agreement and this PAAR Agreement shall be in writing and shall be deemed
to
have been duly given if personally delivered at or mailed by registered mail,
postage prepaid, as follows:
(a)
In
the
case of Company,
____________________
____________________
____________________
____________________
____________________
With
a
copy to ______________________________________.
| (b) |
In
the case of Assignor,
|
____________________
____________________
____________________
____________________
____________________
(c)
In
the
case of Assignee,
EMC
Mortgage Corporation
Mac
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
___________________
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
___________
Telecopier
No.: (212) 272-____
8. Each
party will pay any commissions it has incurred and the fees of its attorneys
in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this PAAR Agreement.
9. This
PAAR
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.
10. No
term
or provision of this PAAR 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.
11. This
PAAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which Assignor, Assignee or Company may be
merged or consolidated shall, without the requirement for any further writing,
be deemed Assignor, Assignee or Company, respectively, hereunder.
12. This
PAAR
Agreement shall survive the conveyance of the Assigned Loans, the assignment
of
the Purchase Agreement to the extent of the Assigned Loans by Assignor to
Assignee and the termination of the Purchase Agreement.
13. This
PAAR
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.
14. In
the
event that any provision of this PAAR Agreement conflicts with any provision
of
the Purchase Agreement with respect to the Assigned Loans, the terms of this
PAAR Agreement shall control. In the event that any provision of this PAAR
Agreement conflicts with any provision of the Confirmation with respect to
the
Assigned Loans, the terms of this PAAR Agreement shall control.
[Modification
of Purchase Agreement
15.
The
Company and Assignor hereby amend the Purchase Agreement as
follows:
(a) The
following definitions are added to Section 1.01 of the Purchase
Agreement:
Securities
Administrator: ________________________
Supplemental
PMI Insurer: ________________________
Supplemental
PMI Policy: The
primary guarantee insurance policy of the Supplemental PMI Insurer attached
hereto as Exhibit J, or any successor Supplemental PMI Policy given to the
Servicer by the Assignee.
Trustee:
________________________
(b) The
following definition is amended and restated:
Insurance
Proceeds: Proceeds
of any Primary Mortgage Insurance Policy
or
Lender Primary Mortgage Insurance Policy,
the
Supplemental PMI Policy, any title policy, any hazard insurance policy or
any
other insurance policy covering a Mortgage Loan or other related Mortgaged
Property, including any amounts required to be deposited in the Custodial
Account pursuant to Section 4.04, to the extent such proceeds are not to
be
applied to the restoration of the related Mortgaged Property or released
to the
Mortgagor in accordance with Accepted Servicing Practices.
(c) The
following are added as the fourth, fifth and sixth paragraphs of Section
4.08:
“In
connection with its activities as servicer, the Company agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the Supplemental
PMI
Insurer with respect to the Supplemental PMI Policy and, in this regard,
to take
such action as shall be necessary to permit recovery under any Supplemental
PMI
Policy respecting a defaulted Mortgage Loan. Pursuant to Section 4.04, any
amounts collected by the Company under any Supplemental PMI Policy shall
be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05.
In
accordance with the Supplemental PMI Policy, the Company shall provide to
the
Supplemental PMI Insurer any required information regarding the Mortgage
Loans.
The
Company shall provide to the [Securities Administrator] on a monthly basis
via
computer tape, or other mutually acceptable format, the unpaid principal
balance, insurer certificate number, lender loan number, and premium due
the
Supplemental PMI Insurer for each Mortgage Loan covered by the Supplemental
PMI
Policy. In addition, the Company agrees to forward to the Purchaser and the
[Securities Administrator] any statements or other reports given by the
Supplemental PMI Insurer to the Servicer in connection with a claim under
the
Supplemental PMI Policy.”
(d) Clause
(vi) of Section 6.1 is amended to read as follows:
“Company
ceases to be approved by either ▇▇▇▇▇▇ ▇▇▇ or FHLMC as a mortgage loan seller
or
servicer for more than thirty days, or the Company fails to meet the servicer
eligibility requirements of the Supplemental PMI Insurer; or”]
IN
WITNESS WHEREOF, the parties hereto have executed this PAAR Agreement as
of the
day and year first above written.
| EMC MORTGAGE CORPORATION | ||
|
Assignor
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
Assignee
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
Company
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
ATTACHMENT
1
ASSIGNED
LOAN SCHEDULE
ATTACHMENT
2
PURCHASE,
WARRANTIES AND SERVICING AGREEMENT
EXHIBIT
E
FORM
OF
TRIAL BALANCE
EXHIBIT
G
REQUEST
FOR RELEASE OF DOCUMENTS AND RECEIPT
RE: Mortgage
Loan #___________________________________
BORROWER:__________________________________________________
PROPERTY:
__________________________________________________
Pursuant
to a Purchase, Warranties and Servicing Agreement (the "Agreement") between
the
Company and the Purchaser, the undersigned hereby certifies that he or she
is an
officer of the Company requesting release of the documents for the reason
specified below. The undersigned further certifies that:
(Check
one of the items below)
_____ On
_________________, the above captioned mortgage loan was paid in full or
that
the Company has been notified that payment in full has been or will be escrowed.
The Company hereby certifies that all amounts with respect to this loan which
are required under the Agreement have been or will be deposited in the Custodial
Account as required.
_____ The
above
captioned loan is being repurchased pursuant to the terms of the Agreement.
The
Company hereby certifies that the repurchase price has been credited to the
Custodial Account as required under the Agreement.
_____ The
above
captioned loan is being placed in foreclosure and the original documents
are
required to proceed with the foreclosure action. The Company hereby certifies
that the documents will be returned to the Purchaser in the event of
reinstatement.
_____ Other
(explain)
_______________________________________________________
_______________________________________________________
All
capitalized terms used herein and not defined shall have the meanings assigned
to them in the Agreement.
Based
on
this certification and the indemnities provided for in the Agreement, please
release to the Company all original mortgage documents in your possession
relating to this loan.
Dated:_________________
By:________________________________
Signature
___________________________________
Title
Send
documents to: _____________________________________________
_____________________________________________
_____________________________________________
Acknowledgement:
Purchaser
hereby acknowledges that all original documents previously released on the
above
captioned mortgage loan have been returned and received by the
Purchaser.
Dated:________________
By:________________________________
Signature
_______________________________
Title
EXHIBIT
H
COMPANY’S
UNDERWRITING GUIDELINES
EXHIBIT
I
TERM
SHEET
This
TERM
SHEET (the "Term Sheet") dated _____________, between National City Mortgage
Company, a ________ corporation, located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇ (the “Company”) and EMC Mortgage Corporation, a Delaware corporation,
located at ______________ (the "Purchaser") is made pursuant to the terms
and
conditions of that certain Purchase, Warranties and Servicing Agreement (the
"Agreement") dated as of October 1, 2001, between the Company and the Purchaser,
the provisions of which are incorporated herein as if set forth in full herein,
as such terms and conditions may be modified or supplemented hereby. All
initially capitalized terms used herein unless otherwise defined shall have
the
meanings ascribed thereto in the Agreement.
The
Purchaser hereby purchases from the Company and the Company hereby sells
to the
Purchaser, all of the Company’s right, title and interest in and to the Mortgage
Loans described on the Mortgage Loan Schedule annexed hereto as Schedule
I,
pursuant to and in accordance with the terms and conditions set forth in
the
Agreement, as same may be supplemented or modified hereby. Hereinafter, the
Company shall service the Mortgage Loans for the benefit of the Purchaser
and
all subsequent transferees of the Mortgage Loans pursuant to and in accordance
with the terms and conditions set forth in the Agreement.
1. Definitions
For
purposes of the Mortgage Loans to be sold pursuant to this Term Sheet, the
following terms shall have the following meanings:
Aggregate
Principal Balance
(as
of
the Cut-Off Date):
Closing
Date:
Custodian:
Cut-off
Date:
Initial
Weighted Average
Mortgage
Loan Remittance Rate:
Mortgage
Loan:
Purchase
Price Percentage:
Servicing
Fee Rate:
Additional
Closing Conditions:
In
addition to the conditions specified in the Agreement, the obligation of
each of
the Company and the Purchaser is subject to the fulfillment, on or prior
to the
applicable Closing Date, of the following additional conditions: [None].
Additional
Loan Documents:
In
addition to the contents of the Mortgage File specified in the Agreement,
the
following documents shall be delivered with respect to the Mortgage Loans:
[None]
[Additional]
[Modification] of Representations and Warranties:
[In
addition to the representations and warranties set forth in the Agreement,
as of
the date hereof, the Company makes the following additional representations
and
warranties with respect to the Mortgage Loans: [None]. [Notwithstanding anything
to the contrary set forth in the Agreement, with respect to each Mortgage
Loan
to be sold on the Closing Date, the representation and warranty set forth
in
Section ______ of the Agreement shall be modified to read as
follows:]
Except
as
modified herein, Section ______ of the Agreement shall remain in full force
and
effect as of the date hereof.
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective duly authorized officers as of the date first above
written.
| NATIONAL CITY MORTGAGE COMPANY | ||
|
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
|
EMC
MORTGAGE CORPORATION
|
||
|
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title: | ||
SCHEDULE I
MORTGAGE
LOAN SCHEDULE
EXHIBIT
J-1
EMC
ASSIGNMENT AGREEMENT
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
This
Assignment, Assumption and Recognition Agreement (the “AAR Agreement”) is made
and entered into as of April 30, 2007 (the “Closing Date”), among Structured
Asset Mortgage Investments II Inc. (the “Assignor”), U.S. Bank National
Association,
not
individually but solely as trustee for the holders of Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2007-2 (the “Assignee”) and EMC
Mortgage Corporation (the “Company”).
Whereas,
the Assignor and the Company entered into that certain Servicing Agreement,
dated as of April 1, 2007 (the “Servicing Agreement”), pursuant to which the
Company agreed to service certain mortgage loans (the “Mortgage Loans”) on
behalf of the Assignor.
In
consideration of the mutual promises and agreements contained herein, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree that the Mortgage Loans listed
on
Attachment
1
annexed
hereto (the “Assigned Loans”) shall be subject to the terms of this AAR
Agreement. Any capitalized term used and not otherwise defined herein shall
have
the meaning assigned to such term in the Servicing Agreement.
Assignment
and Assumption
1. Except
as
expressly provided for herein, the Assignor hereby grants, transfers and
assigns
to the Assignee all of its right, title and interest as in, to and under
the
Assigned Loans, and as they relate to the Assigned Loans, the Servicing
Agreement. Notwithstanding anything to the contrary contained herein, the
Assignor is not assigning to the Assignee any of its right, title and interest
in, to and under the Servicing Agreement with respect to any other mortgage
loan
other than the Assigned Loans. Except as is otherwise expressly provided
herein,
the Assignor makes no representations, warranties or covenants to the Assignee
and the Assignee acknowledges that the Assignor has no obligations to the
Assignee under the terms of the Servicing Agreement or otherwise relating
to the
transaction contemplated herein (including, but not limited to, any obligation
to indemnify the Assignee).
The
Assignor acknowledges and agrees that upon execution of this AAR Agreement,
with
respect to the Assigned Loans, the Assignee shall become the “Owner” under the
Servicing Agreement, and all representations, warranties and covenants
by the
“Servicer” to the “Owner” under the Servicing Agreement including, but not
limited to, the rights to receive indemnification, shall accrue to the
Assignee
by virtue of this AAR Agreement.
Representations,
Warranties and Covenants
2. The
Assignor warrants and represents to, and covenants with, the Assignee and
the
Company as of the date hereof that:
| a. |
Attached
hereto as Attachment
2
is
a true and correct copy of the Servicing Agreement, which Servicing
Agreement is in full force and effect as of the date hereof and
the
provisions of which have not been waived, amended or modified in
any
respect, nor has any notice of termination been given
thereunder;
|
| b. |
The
Assignor was the lawful owner of the Assigned Loans with full right
to
transfer the Assigned Loans and any and all of its interests, rights
and
obligations under the Servicing Agreement they relate to the Assigned
Loans, free and clear from any and all claims and encumbrances;
and upon
the transfer of the Assigned Loans to the Assignee as contemplated
herein,
the Assignee shall have good title to each and every Assigned Loan,
as
well as any and all of the Assignee’s interests, rights and obligations
under the Servicing Agreement as they relate to the Assigned Loans,
free
and clear of any and all liens, claims and
encumbrances;
|
| c. |
There
are no offsets, counterclaims or other defenses available to the
Company
with respect to the Servicing Agreement;
|
| d. |
The
Assignor has no knowledge of, and has not received notice of, any
waivers
under, or any modification of, any Assigned
Loan;
|
| e. |
The
Assignor is duly organized, validly existing and in good standing
under
the laws of the jurisdiction of its incorporation, and has all
requisite
power and authority to acquire, own and sell the Assigned
Loans;
|
| f. |
The
Assignor has full corporate power and authority to execute, deliver
and
perform its obligations under this AAR Agreement, and to consummate
the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of
the
Assignor’s business and will not conflict with, or result in a breach of,
any of the terms, conditions or provisions of the Assignor’s charter or
by-laws or any legal restriction, or any material agreement or
instrument
to which the Assignor is now a party or by which it is bound, or
result in
the violation of any law, rule, regulation, order, judgment or
decree to
which the Assignor or its property is subject. The execution, delivery
and
performance by the Assignor of this AAR Agreement and the consummation
by
it of the transactions contemplated hereby, have been duly authorized
by
all necessary corporate action on part of the Assignor. This AAR
Agreement
has been duly executed and delivered by the Assignor and, upon
the due
authorization, execution and delivery by the Assignee and the parties
hereto, will constitute the valid and legally binding obligation
of the
Assignor enforceable against the Assignor in accordance with its
terms
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in
effect
relating to creditors’ rights generally, and by general principles of
equity regardless of whether enforceability is considered in a
proceeding
in equity or at law;
|
| g. |
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by the Assignor in connection with the execution, delivery
or
performance by the Assignor of this AAR Agreement, or the consummation
by
it of the transactions contemplated hereby. Neither the Assignor
nor
anyone acting on its behalf has offered, transferred, pledged,
sold or
otherwise disposed of the Assigned Loans or any interest in the
Assigned
Loans, or solicited any offer to buy or accept a transfer, pledge
or other
disposition of the Assigned Loans, or any interest in the Assigned
Loans
or otherwise approached or negotiated with respect to the Assigned
Loans,
or any interest in the Assigned Loans with any Person in any manner,
or
made any general solicitation by means of general advertising or
in any
other manner, or taken any other action which would constitute
a
distribution of the Assigned Loans under the Securities Act of
1933, as
amended (the “1933 Act”)
or
which would render the disposition of the Assigned Loans a violation
of
Section 5 of the 1933 Act or require registration pursuant thereto;
and
|
| h. |
There
is no action, suit, proceeding, investigation or litigation pending
or, to
the Assignor's knowledge, threatened, which either in any instance
or in
the aggregate, if determined adversely to the Assignor, would adversely
affect the Assignor's execution or delivery of, or the enforceability
of,
this AAR Agreement, or the Assignor's ability to perform its obligations
under this AAR Agreement.
|
3. The
Assignee warrants and represents to, and covenants with, the Assignor and
the
Company as of the date hereof that:
| a. |
The
Assignee is duly organized, validly existing and in good standing
under
the laws of the jurisdiction of its organization and has all requisite
power and authority to hold the Assigned Loans as trustee on behalf
of the
holders of Prime Mortgage Trust, Mortgage Pass-Through Certificates,
Series 2007-2;
|
| b. |
The
Assignee has full corporate power and authority to execute, deliver
and
perform its obligations under this AAR Agreement, and to consummate
the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of
the
Assignee’s business and will not conflict with, or result in a breach of,
any of the terms, conditions or provisions of the Assignee’s charter or
by-laws or any legal restriction, or any material agreement or
instrument
to which the Assignee is now a party or by which it is bound, or
result in
the violation of any law, rule, regulation, order, judgment or
decree to
which the Assignee or its property is subject. The execution, delivery
and
performance by the Assignee of this AAR Agreement and the consummation
by
it of the transactions contemplated hereby, have been duly authorized
by
all necessary corporate action on part of the Assignee. This AAR
Agreement
has been duly executed and delivered by the Assignee and, upon
the due
authorization, execution and delivery by the Assignor and the parties
hereto, will constitute the valid and legally binding obligation
of the
Assignee enforceable against the Assignee in accordance with its
terms
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in
effect
relating to creditors’ rights generally, and by general principles of
equity regardless of whether enforceability is considered in a
proceeding
in equity or at law;
|
| c. |
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by the Assignee in connection with the execution, delivery
or
performance by the Assignee of this AAR Agreement, or the consummation
by
it of the transactions contemplated hereby;
|
| d. |
There
is no action, suit, proceeding, investigation or litigation pending
or, to
the Assignee's knowledge, threatened, which either in any instance
or in
the aggregate, if determined adversely to the Assignee, would adversely
affect the Assignee's execution or delivery of, or the enforceability
of,
this AAR Agreement, or the Assignee's ability to perform its obligations
under this AAR Agreement; and
|
| e. |
The
Assignee assumes for the benefit of each of Assignor and Company
all of
the Assignor’s rights as “Owner” under the Servicing Agreement but solely
with respect to the Assigned Loans.
|
4. Company
warrants and represents to, and covenants with, the Assignee and the Assignor,
as of the date hereof, that:
| a. |
Attached
hereto as Attachment
2
is
a true and accurate copy of the Servicing Agreement, which agreement
is in
full force and effect as of the date hereof and the provisions
of which
have not been waived, amended or modified in any respect, nor has
any
notice of termination been given
thereunder;
|
| b. |
The
Company is duly organized, validly existing and in good standing
under the
laws of the jurisdiction of its incorporation, and has all requisite
power
and authority to service the Assigned Loans and otherwise to perform
its
obligations under the Servicing
Agreement;
|
| c. |
The
Company has full corporate power and authority to execute, deliver
and
perform its obligations under this AAR Agreement, and to consummate
the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of
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
by-laws 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 AAR Agreement and the consummation
by
it of the transactions contemplated hereby, have been duly authorized
by
all necessary corporate action on part of the Company. This AAR
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;
|
| d. |
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by the Company in connection with the execution, delivery
or
performance by the Company of this AAR Agreement, or the consummation
by
it of the transactions contemplated hereby;
|
| e. |
The
Company shall establish a Custodial Account and an Escrow Account
under
the Servicing Agreement in favor of the Assignee with respect to
the
Assigned Loans separate from the Custodial Account and Escrow Account
previously established under the Servicing Agreement in favor of
the
Assignor;
|
| f. |
Pursuant
to Section 10.02 of the Servicing Agreement, the Company hereby
restates
the representations and warranties set forth in Article III of
the
Servicing Agreement with respect to the Company and/or the Assigned
Loans;
and
|
| g. |
Neither
this AAR Agreement nor any certification, statement, report or
other
agreement, document or instrument furnished or to be furnished
by the
Company pursuant to this AAR Agreement contains or will contain
any
materially untrue statement of fact or omits or will omit to state
a fact
necessary to make the statements contained therein not
misleading.
|
5. The
Company warrants and represents to, and covenants with the Assignor as
of the
date hereof:
(a) The
Company is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any
other
securitization due to any act or failure to act of the Company;
(b) No
material noncompliance with the applicable servicing criteria with respect
to
other securitizations of residential mortgage loans involving the Company
as
servicer has been disclosed or reported by the Company;
(c) The
Company has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of
a
servicing performance test or trigger;
(d) No
material changes to the Company’s policies or procedures with respect to the
servicing function it will perform under the Servicing Agreement and this
AAR
Agreement for mortgage loans of a type similar to the Assigned Loans have
occurred during the three-year period immediately preceding the date
hereof;
(e) There
are
no aspects of the Company’s financial condition that could have a material
adverse effect on the performance by the Company of its servicing obligations
under the Servicing Agreement and this AAR Agreement;
(f) There
are
no material legal or governmental proceedings pending (or known to be
contemplated) against the Company, any Subservicer or any third-party
originator; and
(g) There
are
no affiliations, relationships or transactions relating to the Company
or any
Subservicer with respect to this Securitization Transaction and any party
thereto of a type described in Item 1119 of Regulation AB.
Notwithstanding
anything to the contrary in the Agreement, the Company shall (or shall
cause any
Third-Party Originator to) (i) immediately notify the Assignor and ▇▇▇▇
▇▇ in
writing of (A) legal proceedings pending against the Company, or proceedings
known to be contemplated by governmental authorities against the Company
which
in the judgment of the Company would be, in each case, material to purchasers
of
securities backed by the Assigned Loans, (B) any affiliations or relationships
of the type described in Item 1119(b) of Regulation AB that develop following
the date hereof between the Company and any of the above listed parties
or other
parties identified in writing by the Assignor or ▇▇▇▇ ▇▇ with respect to
the
Securitization Transaction and (ii) provide to the Assignor and ▇▇▇▇ ▇▇
a
description of such proceedings, affiliations or relationships
6. The
Assignor hereby agrees to indemnify and hold the Assignee (and its successors
and assigns) harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses that the Assignee (and its successors and assigns) may sustain
in
any way related to any breach of the representations or warranties of the
Assignor set forth in this AAR Agreement or the breach of any covenant
or
condition contained herein.
Recognition
of Assignee
7. From
and after the date hereof, the Company shall recognize the Assignee as
owner of
the Assigned Loans, and acknowledges that the Assigned Loans will be part
of a
REMIC, and will service the Assigned Loans in accordance with the Servicing
Agreement but in no event in a manner that would (i) cause any REMIC to
fail to
qualify as a REMIC or (ii) result in the imposition of a tax upon any REMIC
(including but not limited to the tax on prohibited transactions as defined
in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC
set forth
in Section 860G(d) of the Code). It is the intention of the Assignor, the
Company and the Assignee that this AAR Agreement shall be binding upon
and for
the benefit of the respective successors and assigns of the parties hereto.
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 Servicing
Agreement which amendment, modification, waiver or other alteration would
in any
way affect the Assigned Loans without the prior written consent of the
Assignee.
8. The
Company shall prepare for and deliver to the Assignee and EMC Mortgage
Corporation, as master servicer (in such capacity, the “Master Servicer”) a
statement with respect to each mortgaged property acquired through foreclosure
or deed-in-lieu of foreclosure in connection with a defaulted Assigned
Loan
(“REO Property”) that has been rented showing the aggregate rental income
received and all expenses incurred in connection with the management and
maintenance of such REO Property at such times as is necessary to enable
the
Assignee to comply with the reporting requirements of the REMIC provisions
of
the Code. The net monthly rental income, if any, from such REO Property
shall be
deposited in the related collection account no later than the close of
business
on each determination date. The Company shall perform, or cause to be performed,
the tax reporting and withholding related to foreclosures, abandonments
and
cancellation of indebtedness income as specified by Sections 1445, 6050J
and
6050P of the Code by preparing and filing such tax and information returns,
as
may be required. In the event that Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-2 acquires any REO Property as aforesaid or otherwise
in connection with a default or default becoming reasonably foreseeable
on an
Assigned Loan, the Company shall cause such REO Property to be disposed
prior to
three years after its acquisition by Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-2 or, at the expense of Prime Mortgage Trust,
Mortgage
Pass-Through Certificates, Series 2007-2, request more than 60 days prior
to the
day on which such three-year period would otherwise expire, an extension
of the
three-year grace period unless the Assignee shall have been supplied with
an
opinion of counsel addressed to the Assignee rendered by nationally recognized
tax counsel specializing in such matters (such opinion not to be an expense
of
the Assignee) to the effect that the holding by Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2007-2 of such REO Property subsequent
to such
three-year period will not result in the imposition of taxes on “prohibited
transactions” of any REMIC as defined in Section 860F of the Code or cause any
REMIC to fail to qualify as a REMIC, in which case Prime Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2007-2 may continue to hold
such REO
Property (subject to any conditions contained in such opinion of counsel).
Notwithstanding any other provision of the Servicing Agreement, no REO
Property
acquired by Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series
2007-2 shall be rented (or allowed to continue to be rented) or otherwise
used
for the production of income by or on behalf of Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2007-2 in such a manner or pursuant to
any
terms that would (i) cause such REO Property to fail to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code or (ii) subject
any REMIC to the imposition of any federal, state or local income taxes
on the
income earned from such REO Property under Section 860G(c) of the Code
or
otherwise, unless the Company has agreed to indemnify and hold harmless
Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2 with
respect
to the imposition of any such taxes.
9. Notwithstanding
any term hereof to the contrary, the execution and delivery of this AAR
Agreement by the Assignee is solely in its capacity as trustee for Prime
Mortgage Trust,
Mortgage Pass-Through Certificates, Series 2007-2 and not individually,
and any
recourse against the Assignee in respect of any obligations it may have
under or
pursuant to the terms of this AAR Agreement shall be limited solely to
the
assets it may hold as trustee of Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-2.
Miscellaneous
10. All
demands, notices and communications related to the Assigned Loans, the
Servicing
Agreement and this AAR Agreement shall be in writing and shall be deemed
to have
been duly given if personally delivered at or mailed by registered mail,
postage
prepaid, as follows:
| a. |
In
the case of the Company,
|
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
| b. |
In
the case of the Assignor,
|
Structured
Asset Mortgage Investments II Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
| c. |
In
the case of the Assignee,
|
U.S.
Bank
National Association,
as
Trustee
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services, PRIME 2007-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
11. The
Company hereby acknowledges that EMC Mortgage Corporation has been appointed
as
the master servicer of the Assigned Loans pursuant to the Pooling and Servicing
Agreement, dated as of April 1, 2007, among the Assignor, the Assignee
and the
Company, as seller and master servicer, and therefor has the right to enforce
all obligations of the Company, as they relate to the Assigned Loans, under
the
Servicing Agreement. Such right will include, without limitation, the right
to
terminate the Company under the Servicing Agreement upon the occurrence
of an
event of default thereunder, the right to receive all remittances required
to be
made by the Company under the Servicing Agreement, the right to receive
all
monthly reports and other data required to be delivered by the Company
under the
Servicing Agreement, the right to examine the books and records of the
Company,
indemnification rights, and the right to exercise certain rights of consent
and
approval relating to actions taken by the Company. The Company shall make
all
distributions under the Servicing Agreement, as they relate to the Assigned
Loans, to the Master Servicer by wire transfer of immediately available
funds
to:
EMC
Master Servicing Remittances
Bank:
Chase Bank of Texas
Branch:
Irving, Texas
Account
Name: EMC Mortgage Corporation
ABA
#
▇▇▇▇▇▇▇▇▇
ACCOUNT
#
000000709377717
Reference:
M/S Remittance April 1, 2007 Remit for EMC Mortgage Corporation
Attention:
LSBO Group-MS
and
the
Company shall deliver all reports required to be delivered under the Servicing
Agreement, as they relate to the Assigned Loans, to the Assignee at the
address
set forth in Section 10 herein and to the Master Servicer at:
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
12. THIS
AAR
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH
SUCH LAWS.
13. No
term
or provision of this AAR Agreement may be waived or modified unless such
waiver
or modification is in writing and signed by the party against whom such
waiver
or modification is sought to be enforced.
14. This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which the Assignor, the Assignee or the
Company
may be merged or consolidated shall, without the requirement for any further
writing, be deemed the Assignor, the Assignee or the Company, respectively,
hereunder.
15. This
AAR
Agreement shall survive the conveyance of the Assigned Loans, the assignments
of
the Servicing Agreement to the extent of the Assigned Loans by the Assignor
to
the Assignee and the termination of the Servicing Agreement.
16. This
AAR
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
17. In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Servicing Agreement with respect to the Assigned Loans, the terms of
this
AAR Agreement shall control.
IN
WITNESS WHEREOF, the parties hereto have executed this AAR Agreement on
the date
first above written.
|
STRUCTURED
ASSET MORTGAGE
INVESTMENTS
II INC.,
the
Assignor
|
U.S.
BANK NATIONAL ASSOCIATION,
not
individually but solely as trustee for the
holders
of Prime Mortgage Trust, Mortgage
Pass-Through
Certificates, Series 2007-2,
|
|||||
|
the
Assignee
|
||||||
|
By:
|
By:
|
|||||
|
Name:
|
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ |
Name:
|
||||
|
Title:
|
Vice President |
Title:
|
||||
|
|
||||||
|
EMC
MORTGAGE CORPORATION,
|
||||||
|
the
Company
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
Acknowledged
and Agreed:
|
||||||
|
EMC
MORTGAGE CORPORATION,
|
||||||
|
the
Master Servicer
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
Attachment
I
Assigned
Loans
Attachment
II
Servicing
Agreement
EXHIBIT
J-2
NCMC
ASSIGNMENT AGREEMENT
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
This
is
an Assignment, Assumption and Recognition Agreement (this “AAR Agreement”) made
as of April 30, 2007, among EMC Mortgage Corporation (the “Assignor”), U.S. Bank
National Association, not individually but solely as trustee for the holders
of
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2 (the
“Assignee”), National City Mortgage Co. (the “Company”) and Structured Asset
Mortgage Investments II Inc. (“▇▇▇▇ ▇▇”).
In
consideration of the mutual promises contained herein the parties hereto
agree
that the residential mortgage loans (the “Assigned Loans”) listed on Attachment
1 annexed hereto (the “Assigned Loan Schedule”) purchased by Assignor from
Company pursuant to (a) the Purchase, Warranties and Servicing Agreement,
dated
as of October 1, 2001, between Assignor and Company as amended by Amendment
Reg
AB to the Purchase, Warranties and Servicing Agreement, dated as of March
1,
2006 (the “Purchase Agreement”) and (b) those certain Term Sheets, dated March
13, 2007 and March 23, 2007 between Assignor and Company (the “Term Sheets” and
together with the Purchase Agreement, the “Agreements”), shall be subject to the
terms of this AAR Agreement. Capitalized terms used herein but not defined
shall
have the meanings ascribed to them in the Agreements.
In
consideration of the mutual promises and agreements contained herein, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree that the Assigned Loans shall
be
subject to the terms of this AAR Agreement. Capitalized terms used herein
but
not defined shall have the meanings ascribed to them in the Purchase
Agreement.
Assignment
and Assumption
1. Assignor
hereby grants, transfers and assigns to Assignee all of the right, title
and
interest of Assignor in the Assigned Loans and, as they relate to the Assigned
Loans, all of its right, title and interest in, to and under the Agreements.
Assignor specifically reserves and does not assign to Assignee any right
title
and interest in, to or under any Mortgage Loans subject to the Agreements
other
than those set forth on Attachment l. Notwithstanding anything to the contrary
contained herein, the Assignor is retaining the right to enforce the
representations and warranties set forth in Article III of the Purchase
Agreement and
in
the Term Sheets,
and any
obligation of the Company to cure, repurchase or substitute for a mortgage
loan
and to indemnify the Assignor with respect to a breach of such representations
and warranties pursuant to Section 3.03 and Section 8.01 of the Purchase
Agreement against the Company. In addition, the Assignor specifically reserves
and does not assign to the Assignee any right, title and interest in, to
or
under Section 2.09 of the Purchase Agreement and Section 4.03 and Section
4.13
of the Purchase Agreement (but only insofar as such Sections grant to the
Purchaser the right to terminate the servicing of defaulted Assigned Loans
and/or REO Properties by the Company).
Representations;
Warranties and Covenants
2. Assignor
warrants and represents to Assignee and Company as of the date hereof:
| a. |
Attached
hereto as Attachment 2 are true and accurate copies of the Agreements,
which agreements are in full force and effect as of the date hereof
and
the provisions of which have not been waived, amended or modified
in any
respect, nor has any notice of termination been given thereunder;
|
| b. |
Assignor
is the lawful owner of the Assigned Loans with full right to transfer
the
Assigned Loans and any and all of its interests, rights and obligations
under the Agreements as they relate to the Assigned Loans, free
and clear
of any and all liens, claims and encumbrances; and upon the transfer
of
the Assigned Loans to Assignee as contemplated herein, Assignee
shall have
good title to each and every Assigned Loan, as well as any and
all of
Assignor's interests, rights and obligations under the Agreements
as they
relate to the Assigned Loans, free and clear of any and all liens,
claims
and encumbrances;
|
| c. |
Assignor
has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to Company with respect
to the
Assigned Loans or the Agreements;
|
| d. |
Assignor
has not waived or agreed to any waiver under, or agreed to any
amendment
or other modifications of, the Agreements. Assignor has no knowledge
of,
and has not received notice of, any waivers under or any amendments
or
other modifications of, or assignment of rights or obligations
under the
Agreements;
|
| e. |
Assignor
is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation, and has all
requisite
power and authority to acquire, own and sell the Assigned Loans;
|
| f. |
Assignor
has full power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignor's business
and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignor's charter or by-laws or any
legal
restriction, or any material agreement or instrument to which Assignor
is
now a party or by which it is bound, or result in the violation
of any
law, rule, regulation, order, judgment or decree to which Assignor
or its
property is subject. The execution, delivery and performance by
Assignor
of this AAR Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
action on
the part of Assignor. This AAR Agreement has been duly executed
and
delivered by Assignor and, upon the due authorization, execution
and
delivery by Assignee and Company, will constitute the valid and
legally
binding obligation of Assignor enforceable against Assignor in
accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now
or
hereafter in effect relating to creditors' rights generally, and
by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at law;
|
| g. |
No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by Assignor in connection with the execution,
delivery or
performance by Assignor of this AAR Agreement, or the consummation
by it
of the transactions contemplated hereby. Neither Assignor nor anyone
acting on its behalf has offered, transferred, pledged, sold or
otherwise
disposed of the Assigned Loans or any interest in the Assigned
Loans, or
solicited any offer to buy or accept transfer, pledge or other
disposition
of the Assigned Loans, or any interest in the Assigned Loans, or
otherwise
approached or negotiated with respect to the Assigned Loans, or
any
interest in the Assigned Loans, with any Person in any manner,
or made any
general solicitation by means of general advertising or in any
other
manner, or taken any other action which would constitute a distribution
of
the Assigned Loans under the Securities Act of 1933, as amended
(the “1933
Act”) or which would render the disposition of the Assigned Loans a
violation of Section 5 of the 1933 Act or require registration
pursuant
thereto;
|
| h. |
There
is no action, suit, proceeding, investigation or litigation pending
or, to
Assignor's knowledge, threatened, which either in any instance
or in the
aggregate, if determined adversely to Assignor, would adversely
affect
Assignee's execution or delivery of, or the enforceability of,
this AAR
Agreement, or the Assignor's ability to perform its obligations
under this
AAR Agreement; and
|
| i. |
Assignor
has received from Company, and has delivered to Assignee, all documents
required to be delivered to Assignor by Company prior to the date
hereof
pursuant to Section 2.07 of the Purchase Agreement with respect
to the
Assigned Loans.
|
3. Assignee
warrants and represents to, and covenants with, Assignor and Company as of
the
date hereof:
|
a.
|
Assignee
is duly organized, validly existing and in good standing under
the laws of
the jurisdiction of its organization and has all requisite power
and
authority to acquire and hold the Assigned Loans as trustee on
behalf of
the holders of Prime Mortgage Trust, Mortgage Pass-Through Certificates,
Series 2007-2;
|
|
b.
|
Assignee
has full power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignee's business
and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignee's charter or by-laws or any
legal
restriction, or any material agreement or instrument to which Assignee
is
now a party or by which it is bound, or result in the violation
of any
law, rule, regulation, order, judgment or decree to which Assignee
or its
property is subject. The execution, delivery and performance by
Assignee
of this AAR Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
action on
the part of Assignee. This AAR Agreement has been duly executed
and
delivered by Assignee and, upon the due authorization, execution
and
delivery by Assignor and Company, will constitute the valid and
legally
binding obligation of Assignee enforceable against Assignee in
accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now
or
hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at law;
|
|
c.
|
No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by Assignee in connection with the execution,
delivery or
performance by Assignee of this AAR Agreement, or the consummation
by it
of the transactions contemplated hereby;
and
|
|
d.
|
There
is no action, suit, proceeding, investigation or litigation pending
or, to
Assignee's knowledge, threatened, which either in any instance
or in the
aggregate, if determined adversely to Assignee, would adversely
affect
Assignee's execution or delivery of, or the enforceability of,
this AAR
Agreement, or the Assignee's ability to perform its obligations
under this
AAR Agreement.
|
4. Company
warrants and represents to, and covenants with, Assignor and Assignee as
of the
date hereof:
|
a.
|
Attached
hereto as Attachment 2 are true and accurate copies of the Agreements,
which agreements are in full force and effect as of the date hereof
and
the provisions of which have not been waived, amended or modified
in any
respect, nor has any notice of termination been given thereunder;
|
|
b.
|
Company
is duly organized, validly existing and in good standing under
the laws of
the jurisdiction of its incorporation, and has all requisite power
and
authority to service the Assigned Loans and otherwise to perform
its
obligations under the Agreements;
|
|
c.
|
Company
has full corporate power and authority to execute, deliver and
perform its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Company's business
and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Company’s charter or by-laws or any legal
restriction, or any material agreement or instrument to which Company
is
now a party or by which it is bound, or result in the violation
of any
law, rule, regulation, order, judgment or decree to which Company
or its
property is subject. The execution, delivery and performance by
Company of
this AAR Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate
action on the part of Company. This AAR Agreement has been duly
executed
and delivered by Company, and, upon the due authorization, execution
and
delivery by Assignor and Assignee, will constitute the valid and
legally
binding obligation of Company, enforceable against Company in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now
or
hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at law;
|
|
d.
|
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Company in connection with the execution, delivery or performance
by Company of this AAR Agreement, or the consummation by it of
the
transactions contemplated hereby;
|
|
e.
|
Company
shall establish a Custodial Account and an Escrow Account under
the
Purchase Agreement in favor of Assignee with respect to the Assigned
Loans
separate from the Custodial Account and the Escrow Account previously
established under the Purchase Agreement in favor of
Assignor;
|
|
f.
|
No
event has occurred from the applicable Closing Date to the date
hereof
which would render the representations and warranties as to the
related
Mortgage Loans made by the Company in Section 3.02 of the Purchase
Agreement or in the related Term Sheets to be untrue in any material
respect; and
|
|
g.
|
Pursuant
to Section 11.18 of the Purchase Agreement, the Company hereby
restates
the representations and warranties set forth in Article III of
the
Purchase Agreement and in the Term Sheets with respect to the Company
and
the Assigned Loans as of the Closing
Date.
|
5. Company
warrants and represents to, and covenants with, Assignor and ▇▇▇▇ ▇▇ as of
the
date hereof:
|
a.
|
Company
is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred
as to any
other securitization due to any act or failure to act of the
Company;
|
|
b.
|
No
material noncompliance with the applicable servicing criteria with
respect
to other securitizations of residential mortgage loans involving
the
Company as servicer has been disclosed or reported by the
Company;
|
|
c.
|
Company
has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application
of a
servicing performance test or
trigger;
|
|
d.
|
No
material changes to the Company’s policies or procedures with respect to
the servicing function it will perform under the Purchase Agreement
and
this AAR Agreement for mortgage loans of a type similar to the
Assigned
Loans have occurred during the three-year period immediately preceding
the
date hereof;
|
|
e.
|
There
are no aspects of the Company’s financial condition that could have a
material adverse effect on the performance by the Company of its
servicing
obligations under the Purchase Agreement and this AAR
Agreement;
|
|
f.
|
There
are no material legal or governmental proceedings pending (or known
to be
contemplated) against the Company, any Subservicer or any third-party
originator; and
|
|
g.
|
There
are no affiliations, relationships or transactions relating to
the Company
or any Subservicer with respect to this Securitization Transaction
and any
party thereto of a type described in Item 1119 of Regulation
AB.
|
Notwithstanding
anything to the contrary in the Agreement, the Company shall (or shall cause
any
Third-Party Originator to) (i) immediately notify Assignor and ▇▇▇▇ ▇▇ in
writing of (A) legal proceedings pending against the Company, or proceedings
known to be contemplated by governmental authorities against the Company
which
in the judgment of the Company would be, in each case, material to purchasers
of
securities backed by the Assigned Loans, (B) any affiliations or relationships
of the type described in Item 1119(b) of Regulation AB that develop following
the date hereof between the Company and any of the above listed parties or
other
parties identified in writing by the Assignor or ▇▇▇▇ ▇▇ with respect to
the
Securitization Transaction and (ii) provide to the Assignor and ▇▇▇▇ ▇▇ a
description of such proceedings, affiliations or relationships.
Each
such
notice/update should be sent to the Assignor by e-mail to
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇. Additionally, all such notifications, other
than
those pursuant to (i)(A) above, should be sent to:
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
With
a
copy to:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇,
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Global Credit Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Notifications
pursuant to (i)(A) above should be sent to:
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
General Counsel
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
With
copies to:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇,
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Global Credit Administration
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
6. Notwithstanding
any term hereof to the contrary, the execution and delivery of this AAR
Agreement by the Assignee is solely in its capacity as trustee for Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2 and not
individually, and any recourse against the Assignee in respect of any
obligations it may have under or pursuant to the terms of this AAR Agreement
shall be limited solely to the assets it may hold as trustee of Prime Mortgage
Trust, Mortgage Pass-Through Certificates, Series 2007-2.
Recognition
of Assignee
7. From
and
after the date hereof, Company shall recognize Assignee as owner of the Assigned
Loans and will service the Assigned Loans for Assignee as if Assignee and
Company had entered into a separate servicing agreement for the servicing
of the
Assigned Loans in the form of the Purchase Agreement (as modified herein),
the
terms of which are incorporated herein by reference. In addition, Company
hereby
acknowledges that from and after the date hereof, the Assigned Loans will
be
subject to the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”), dated as of April 1, 2007, by and among, Structured Asset Mortgage
Investments II Inc., EMC Mortgage Corporation as master servicer (the “Master
Servicer”) and U.S. Bank National Association. Pursuant to the Pooling and
Servicing Agreement, the Master Servicer has the right to monitor and enforce,
on behalf of the Assignee, the performance by Company of its servicing
obligations under this AAR Agreement. Such right will include, without
limitation, the right to terminate the Company under the Purchase Agreement
upon
the occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Company under the Purchase Agreement,
the
right to receive all monthly reports and other data required to be delivered
by
the Company under the Purchase Agreement, the right to examine the books
and
records of the Company, indemnification rights, and the right to exercise
certain rights of consent and approval relating to actions taken by the Company.
In connection therewith, Company hereby agrees that all remittances required
to
be made with respect to the Assigned Loans pursuant to the Purchase Agreement
will be made in accordance with the following wire transfer
instructions:
EMC
Master Servicing Remittances
Bank:
Chase Bank of Texas
Branch:
Irving, Texas
Account
Name: EMC Mortgage Corporation
ABA
#
▇▇▇▇▇▇▇▇▇
ACCOUNT
#
000000709377717
Reference:
M/S Remittance April 1, 2007 Remit for National City Mortgage
Company
Attention:
LSBO Group-MS
and
the
Company shall deliver all reports and other notices required to be delivered
under the Purchase Agreement to the Assignee and to the Master Servicer
at:
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
It
is the
intention of Assignor, Company and Assignee that this AAR Agreement shall
be
binding upon and for the benefit of the respective successors and assigns
of the
parties hereto. Neither Company nor Assignor shall amend or agree to amend,
modify, waive, or otherwise alter any of the terms or provisions of the
Agreements which amendment, modification, waiver or other alteration would
in
any way affect the Assigned Loans without the prior written consent of Assignee.
The
Company shall prepare for and deliver to the Assignee and the Master Servicer
(and the securities administrator, if any) a statement with respect to each
mortgaged property acquired through foreclosure or deed-in-lieu of foreclosure
in connection with a defaulted Assigned Loan (“REO Property”) that has been
rented showing the aggregate rental income received and all expenses incurred
in
connection with the management and maintenance of such REO Property at such
times as is necessary to enable the Assignee (or the securities administrator,
if any) to comply with the reporting requirements of the REMIC provisions
of the
Code. The net monthly rental income, if any, from such REO Property shall
be
deposited in the related collection account no later than the close of business
on each determination date. The Company shall perform, or caused to be
performed, the tax reporting and withholding related to foreclosures,
abandonments and cancellation of indebtedness income as specified by Sections
1445, 6050J and 6050P of the Code by preparing and filing such tax and
information returns, as may be required. In the event that the Prime Mortgage
Trust, Mortgage Pass-Through Certificates, Series 2007-2 acquires any REO
Property as aforesaid or otherwise in connection with a default or default
becoming reasonably foreseeable on an Assigned Loan, the Company shall cause
such REO Property to be disposed prior to three years after its acquisition
by
the Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2
or,
at the expense of the Prime Mortgage Trust, Mortgage Pass-Through Certificates,
Series 2007-2, request more than 60 days prior to the day on which such
three-year period would otherwise expire, an extension of the three-year
grace
period unless the Assignee (or the securities administrator, if any) shall
have
been supplied with an opinion of counsel addressed to the Assignee (and the
securities administrator, if any) rendered by nationally recognized tax counsel
specializing in such matters (such opinion not to be an expense of the Trustee
or the Securities Administrator) to the effect that the holding by the Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2 of such
REO
Property subsequent to such three-year period will not result in the imposition
of taxes on “prohibited transactions” of any REMIC as defined in Section 860F of
the Code or cause any REMIC to fail to qualify as a REMIC, in which case
the
Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2 may
continue to hold such REO Property (subject to any conditions contained in
such
opinion of counsel). Notwithstanding any other provision of the Servicing
Agreement, no REO Property acquired by the Prime Mortgage Trust, Mortgage
Pass-Through Certificates, Series 2007-2 shall be rented (or allowed to continue
to be rented) or otherwise used for the production of income by or on behalf
of
the Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2
in
such a manner or pursuant to any terms that would (i) cause such REO Property
to
fail to qualify as “foreclosure property” within the meaning of Section
860G(a)(8) of the Code or (ii) subject any REMIC to the imposition of any
federal, state or local income taxes on the income earned from such REO Property
under Section 860G(c) of the Code or otherwise, unless the Company has agreed
to
indemnify and hold harmless the Prime Mortgage Trust, Mortgage Pass-Through
Certificates, Series 2007-2 with respect to the imposition of any such
taxes.
Company
shall indemnify and hold harmless the Assignor, each affiliate of the Assignor,
▇▇▇▇ ▇▇, the Assignee, Bear, ▇▇▇▇▇▇▇ & Co. Inc. (the “Underwriter”) and each
affiliate of the Underwriter, each Person (including, but not limited to,
the
Master Servicer) responsible for the preparation, execution or filing of
any
report required to be filed with the Commission, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act, each Person who controls the Assignor, ▇▇▇▇ ▇▇, the Assignee or the
Underwriter (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act); and the respective present and former directors,
officers, employees, agents and affiliates of each of the foregoing (each,
an
“Indemnified Party”), and shall hold each of them harmless from and against any
claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments, and any other costs, fees and expenses that
any of
them may sustain arising out of or based upon:
(i) (A)any
untrue statement of a material fact contained or alleged to be contained
in any
information, report, certification, accountants’ letter or other material
provided under Article 1 of Amendment Reg AB by or on behalf of the Company,
or
provided under this Article 1 by or on behalf of any Subservicer, Subcontractor
or Third-Party Originator (collectively, the “Company Information”), or (B) the
omission or alleged omission to state in the Company Information a material
fact
required to be stated in the Company Information or necessary in order to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; provided,
by way of clarification,
that clause (B) of this paragraph shall be construed solely by reference
to the
Company Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Company
Information or any portion thereof is presented together with or separately
from
such other information;
or
(ii) any
breach by the Company of its obligations under Article I of Amendment Reg
AB,
including particularly the failure by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator to deliver any information, report,
certification, accountants’ letter or other material when and as required under
Article I of Amendment Reg AB, including any failure by the Company to identify
pursuant to Section 6(b) any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB;
or
(iii) any
breach by the Company of a representation or warranty set forth in Section
2(a)
or in a writing furnished pursuant to Section 2(b) and made as of a date
prior
to the closing date of the related Securitization Transaction, to the extent
that such breach is not cured by such closing date, or any breach by the
Company
of a representation or warranty in a writing furnished pursuant to Section
2(b)
to the extent made as of a date subsequent to such closing date.
If
the indemnification provided for herein is unavailable or insufficient to
hold
harmless an Indemnified Party, then the Company agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party
in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
In
the case of any failure of performance described in clause (a)(ii) of Section
7
of Amendment Reg AB, the Company shall promptly reimburse the Assignor, each
affiliate of the Assignor and ▇▇▇▇ ▇▇, as applicable, and each Person
responsible for the preparation, execution or filing of any report required
to
be filed with the Commission with respect to such Securitization Transaction,
or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction, for
all
costs reasonably incurred by each such party in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator.
Modification
of the Purchase Agreement
8. The
Purchase Agreement, as it relates to the Assigned Loans, shall be amended
by the
Company and the Assignor as follows:
(a) Section
1.01 of the Purchase Agreement shall be amended by adding the following
definitions thereto:
Master
Servicer:
EMC
Mortgage Corporation, or its successors in interest who meet the qualifications
of the Pooling and Servicing Agreement and this Agreement.
Nonrecoverable
Advance:
Any
advance previously made by the Company pursuant to Section 5.03 or any Servicing
Advance which, in the good faith judgment of the Company, may not be ultimately
recoverable by the Company from Liquidation Proceeds or otherwise. The
determination by the Company that it has made a Nonrecoverable Advance, shall
be
evidenced by an Officer’s Certificate of the Company delivered to the Purchaser
and the Master Servicer and detailing the reasons for such
determination.
Pooling
and Servicing Agreement:
That
certain pooling and servicing agreement, dated as of April 1, 2007, among
Structured Asset Mortgage Investments II Inc., EMC Mortgage Corporation,
as the
Master Servicer, and U.S. Bank National Association, as trustee.
(b) The
definition of “Servicing Fee Rate” is deleted in its entirety and replaced with
the following definition:
Servicing
Fee Rate:
a per
annum rate equal to 0.25%.
(c) Subsection
3.02(nn) of the Purchase Agreement shall be deleted in its entirety and replaced
with the following:
The
Mortgagor has not notified the Company, and the Company has no knowledge
of any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act;
(d) The
following sentence is added as the last sentence of the definition of Principal
Prepayment:
Partial
principal Prepayments shall be applied in accordance with the terms of the
related Mortgage Note.
(e) Section
4.01 of the Purchase Agreement is hereby amended by changing the first sentence
of the second paragraph to the following:
Consistent
with and in addition to the terms set forth in this Agreement and the related
Term Sheet, if a Mortgage Loan is in default or such default is reasonably
foreseeable, the Servicer may waive, modify or vary any term of any
Mortgage Loan or consent to the postponement of strict compliance with any
such
term or in any manner grant indulgence to any mortgagor, including without
limitation, to (1) capitalize any amounts owing on the Mortgage Loan by adding
such amount to the outstanding principal balance of the Mortgage Loan, (2)
defer
such amounts to a later date or the final payment date of such Mortgage Loan,
(3) extend the maturity of any such Mortgage Loan, (4) amend the related
Mortgage Note to reduce the related Mortgage Interest Rate with respect to
any Mortgage Loan, (5) convert the Mortgage Rate on any Mortgage Loan from
a
fixed rate to an adjustable rate or vice versa, (6) with respect to a mortgage
loan with an initial fixed rate period followed by an adjustable rate period,
extend the fixed period and reduce the adjustable rate period, and/or (7)
forgive the amount of any interest and principal owed by the related Mortgagor;
provided that, in the Company's reasonable and prudent determination, such
waiver, modification, postponement or indulgence: (A) is not materially adverse
to the interests of the Owner on a present value basis using reasonable
assumptions (including taking into account any estimated Realized Loss that
might result absent such action); and (B) does not amend the related Mortgage
Note to extend the maturity thereof later than the date of the Latest Possible
Maturity Date (as such term is defined in the related pooling and servicing
agreement); provided, further, with respect to any Mortgage Loan that is
not in
default or if default is not reasonably foreseeable, unless the Company has
provided to the Purchaser a certification addressed to the Purchaser, based
on
the advice of counsel or certified public accountants that have a national
reputation with respect to taxation of REMICs that a modification of such
Mortgage Loan will not result in the imposition of taxes on or disqualify
from
REMIC status any of the REMICs and has obtained the prior written consent
of the
Owner, the Company shall not permit any modification with respect to any
Mortgage Loan. Notwithstanding the foregoing, for any modification which
may
result in a realized loss of 20% or more of the outstanding principal balance
of
a Mortgage Loan, the Company shall present such proposed modification, together
with any supporting documentation, to the Master Servicer for consideration
and
approval.
(f) Section
4.03 of the Purchase Agreement is hereby amended by adding the following
paragraph to the end of the section:
The
Master Servicer shall fully reimburse the Company for Servicing Advances
and
Monthly Advances related to Liquidation Proceeds on the Remittance Date after
such Servicing Advances and Monthly Advances are approved; provided, however,
the Company must provide documentation in the form of Exhibit P hereto to
the
Master Servicer seeking approval within 90 days of final liquidation of a
Mortgage Loan. The Master Servicer shall provide such approval or denial
to the
Company no later than thirty (30) days after receipt of such claim; provided,
however, such claim must be complete with all supporting documentation. The
Company’s obligation to make such Servicing Advances and Monthly Advances as to
any Mortgage Loan shall continue through the final liquidation of the Mortgaged
Property, unless the Company deems such advance nonrecoverable and submits
an
officer’s certificate in accordance with Section 5.03.
(g) Section
4.05(iii) is hereby amended by deleting “Liquidation Proceeds,” after “limited
to related” in Subsection 4.05(iii).
(h) The
following is added as Section 4.05(ix) of the Purchase Agreement:
(ix) to
reimburse itself for Nonrecoverable Advances, to the extent not reimbursed
pursuant to clause (ii) or clause (iii), upon prior approval from the Master
Servicer. The Master Servicer shall provide such approval or denial to the
Company no later than thirty (30) days after receipt of such claim; provided,
however, such claim must be complete with all supporting
documentation.
(i) The
second sentence of the second paragraph of Section 5.02 of the Purchase
Agreement is hereby deleted and replaced with the following:
The
Company shall also provide a monthly report in the form of Exhibit
K
and
Exhibit
L,
with
respect to remittances, Exhibit
J
(within
fifteen (15) calendar days from remittance of liquidation proceeds), with
respect to realized losses and gains, Exhibit
M
(within
five (5) business days of month end), with respect to defaulted mortgage
loans,
Exhibit
N,
with
respect to delinquent mortgage loans, Exhibit
O,
with
respect to modified mortgage loans, Exhibit
P,
with
respect to claims submitted and Exhibit
Q,
with
respect to loss severity, with each such report.
(j) Section
6.02 of the Purchase Agreement is hereby amended by including the words “(or if
the Company does not, the Master Servicer may)” after the word “will” and before
the word “immediately” in the third line thereof.
(k) Section
6.04 of the Purchase Agreement shall be deleted in its entirety.
(l) Section
6.05 of the Purchase Agreement shall be deleted in its entirety.
(m) Section
9.01 of the Purchase Agreement is hereby amended by adding the word “or” at the
end of clause (ix) thereof and inserting the following as clause
(x):
(x) failure
by the Company to duly perform, within the required time period, its obligations
under Section 4 and Section 5 of Article 1 of Amendment Reg. AB to the Servicing
Agreement which failure continues unremedied for a period of ten (10) days
after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company by any party to this Agreement
or
by any Master Servicer. This paragraph shall supersede any other provision
of
this Agreement or other Agreement to the contrary.
(n) The
following is added as Subsection 4.05(vii) of the Purchase
Agreement:
(vii) to
reimburse itself for any Nonrecoverable Advances;
(o) Section
11.04 of the Purchase Agreement is deleted in its entirety and replaced with
the
following:
Section
11.04 Governing
Law.
This
Agreement and the related Term Sheets shall be governed by and construed
in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws other than Section 5-1401 of the New York General
Obligations Law which shall govern. The obligations, rights and remedies
of the
parties hereunder shall be determined in accordance with such laws.
(p) The
Purchase Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit J to the Purchase Agreement, a copy of which is annexed hereto as
Exhibit 1.
(q) The
Purchase Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit K to the Purchase Agreement, a copy of which is annexed hereto as
Exhibit 2.
(r) The
Purchase Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit L to the Purchase Agreement, a copy of which is annexed hereto as
Exhibit 3.
(s) The
Purchase Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit M to the Purchase Agreement, a copy of which is annexed hereto as
Exhibit 4.
(t) The
Purchase Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit N to the Purchase Agreement, a copy of which is annexed hereto as
Exhibit 5.
(u) The
Purchase Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit O to the Purchase Agreement, a copy of which is annexed hereto as
Exhibit 6.
(v) The
Purchase Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit P to the Purchase Agreement, a copy of which is annexed hereto as
Exhibit 7.
(w) The
Purchase Agreement is hereby amended as of the date hereof by inserting a
new
Exhibit Q to the Purchase Agreement, a copy of which is annexed hereto as
Exhibit 8.
(x) The
following is added as the last sentence of Section 4 of the Amendment Reg
AB:
In
the
event the Servicer or any subservicer or subcontractor engaged by it is
terminated, assigns its rights and obligations under, or resigns pursuant
to the
terms of this Agreement, or any other applicable agreement in the case of
a
subservicer or subcontractor, as the case may be, such party shall provide
an
Annual Statement of Compliance pursuant to this Section 4 or to the related
section of such other applicable agreement, as the case may be, as to the
performance of its obligations with respect to the period of time it was
subject
to this Agreement or any other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
(y) The
following is added as the last sentence of Section 5 of the Amendment Reg
AB:
In
the event the Servicer or any subservicer or subcontractor engaged by it
is
terminated, assigns its rights and obligations under, or resigns pursuant
to,
the terms of this Agreement, or any other applicable agreement in the case
of a
subservicer or subcontractor, as the case may be, such party shall provide
an
Assessment of Compliance and cause to be provided an Attestation Report pursuant
to this Section 5 or to the related section of such other applicable agreement,
as the case may be, notwithstanding any such termination, assignment or
resignation.
Miscellaneous
9. All
demands, notices and communications related to the Assigned Loans, the
Agreements and this AAR Agreement shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by registered mail,
postage prepaid, as follows:
a.
In
the
case of Company,
National
City Mortgage Co.
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
b.
In
the
case of Assignor,
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
with
a
copy to:
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
c.
In the
case
of Assignee,
U.S.
Bank
National Association, as Trustee
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services, PRIME 2007-2
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
d.
In
the
case of the Master Servicer,
EMC
Mortgage Corporation
▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
General Counsel
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
10. This
AAR
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
11. No
term
or provision of this AAR Agreement may be waived or modified unless such
waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
12. This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which Assignor, Assignee or Company may be
merged or consolidated shall without the requirement for any further writing,
be
deemed Assignor, Assignee or Company, respectively hereunder. Any Master
Servicer shall be considered a third party beneficiary of this AAR Agreement,
entitled to all the rights and benefits accruing to any Master Servicer herein
as if it were a direct party to this AAR Agreement. A copy of all assessments,
attestations, reports and certifications required to be delivered by the
servicer under the Purchase Agreement and this AAR Agreement shall be delivered
to the Master Servicer by the date(s) specified herein or therein and where
such
documents are required to be addressed to such party, such addressee shall
include the Master Servicer and the Master Servicer shall be entitled to
rely on
such documents.
13. This
AAR
Agreement shall survive the conveyance of the Assigned Loans as contemplated
in
this AAR Agreement.
14. This
AAR
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
15. In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Agreements with respect to the Assigned Loans, the terms of this AAR
Agreement shall control.
IN
WITNESS WHEREOF,
the
parties hereto have executed this AAR Agreement as of the day and year first
above written.
EMC
MORTGAGE CORPORATION
Assignor
By:
Name:
Title:
U.S.
BANK
NATIONAL ASSOCIATION,
not
in
its individual capacity but solely as Trustee
for
the
holders of Prime Mortgage Trust,
Mortgage
Pass-Through Certificates, Series 2007-2,
as
Assignee
By:
Name:
Title:
NATIONAL
CITY MORTGAGE CO.
Company
By:
Name:
Title:
Acknowledged
and Agreed:
EMC
MORTGAGE CORPORATION
Master
Servicer
By:
Name:
Title:
STRUCTURED
ASSET MORTGAGE
INVESTMENTS
II INC.
By:
Name:
Title:
ATTACHMENT
l
ASSIGNED
LOAN SCHEDULE
(Provided
upon request)
ATTACHMENT
2
PURCHASE
AGREEMENT AND TERM SHEETS
(Provided
upon request)
Exhibit
1
EXHIBIT
J to the Purchase Agreement
EMC
FORM
- CALCULATION OF GAIN-LOSS DELINQUENT LOANS
EMC
Master Servicing Calculation of Gain/Loss on Delinquent Loan
Worksheet
Date:
|
Prepared
By
|
Phone
Number
|
Email
Address
|
|
Servicer
Loan Number
|
Servicer
Address
|
EMC
Loan Number
|
|
Borrower
Name
|
Property
Address
|
|
|
|
Liquidation
Type
|
REO
|
Third
Party
|
Short
Sale
|
Charge
off
|
Deed
In Lieu
|
Has
this loan been previously
modified?
Yes No
Has
this loan been crammed down in a bankruptcy? Yes No
If
“Yes”,
provide
amount _______________________________
Liquidation
and Acquisition Expenses:
Amounts
requiring Amortization Schedule for backup:
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
|
|
Interest
Accrued at Net Rate Less Servicing Fees
|
|
|
Accrued
Servicing Fees
|
Amounts
requiring Additional backup:
|
Attorney’s
Fees
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Attorney’s
Costs
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Taxes
|
Payment
history showing disbursements
|
|
|
Property
Maintenance
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Property
Inspection
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
PMI/Hazard
Insurance Premiums
|
Payment
history showing disbursements
|
|
|
Utility
Expenses
|
Payment
history showing disbursements
|
|
|
Appraisal/BPO
Expenses
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
▇▇▇
▇▇▇▇
|
Payment
history showing disbursements
|
|
|
Cash
For Keys
|
Corporate
advance history defining amounts paid, reimbursed, payee and reason
codes
|
|
|
Miscellaneous
(itemized)
|
Requires
Itemization and supporting detail
|
|
|
Total
Expenses
|
------------------------------------------------
|
Credits
to Loan:
|
Escrow
Balance/Advance
|
Payment
history showing disbursements and ending balance
|
|
|
Rental
Receipts
|
Payment
history showing application of funds to loan
|
|
|
Hazard
Claim Proceeds
|
Payment
history showing credit to account
|
|
|
PMI
Funds
|
EOB
document
|
|
|
Government
Insurance Funds (Part A Funds)
|
EOB
document
|
|
|
REO
Proceeds
|
HUD
1 Settlement Statement
|
|
|
Government
Insurance Funds (Part B Funds)
|
EOB
document
|
|
|
Pool
Insurance Proceeds
|
Payment
history showing credit to account
|
|
|
Other
Credits (itemized)
|
Payment
history showing credit to account
|
|
|
Total
Credits
|
------------------------------------------------
|
Total
Realized Loss (or Amount of Gain) $________________
NOTE:
Do not combine or net remit items. All expenses and credits should be documented
individually. Claim packages are due by the fifth business day of the month
following receipt of liquidation proceeds. Late claims may result in delayed
claim payment. The Servicer is responsible to remit all funds pending loss
approval and /or resolution of any disputed items.
Exhibit
2
EXHIBIT
K to the Purchase Agreement
EMC
FORM
- REMITTANCE OVERVIEW REPORT
Remittance
Overview Report:
Provides loan level detail regarding the remittance that will be submitted
to
EMC Master Servicing and contains the following data fields in the order
below:
|
Field
|
Field
Description
|
|
Deal
Name
|
VARCHAR
(15)
|
|
Master
Servicer Loan Number
|
NUMERIC
(9,0)
|
|
Current
Investor Category
|
VARCHAR
(5)
|
|
Original
Investor Category
|
VARCHAR
(5)
|
|
Servicer
Loan Number
|
VARCHAR
(15)
|
|
Cutoff
Date
|
DATE
(MM/DD/YYYY)
|
|
Loan
Next Due Date
|
DATE
(MM/DD/YYYY)
|
|
Gross
Interest Rate
|
NUMERIC
(7,7)
|
|
Net
Interest Rate
|
NUMERIC
(7,7)
|
|
Pending
Interest Rate
|
NUMERIC
(7,7)
|
|
Servicing
Fee Rate
|
NUMERIC
(7,7)
|
|
MI
Rate
|
NUMERIC
(7,7)
|
|
Scheduled
P&I Amount (P & I Constant)
|
NUMERIC
(12,2)
|
|
ARM
Index
|
NUMERIC
(7,7)
|
|
Pending
ARM Index
|
NUMERIC
(7,7)
|
|
Beginning
Scheduled Principal Balance
|
NUMERIC
(12,2)
|
|
Actual
Principal Remitted
|
NUMERIC
(12,2)
|
|
Actual
Principal Curtailment Remitted
|
NUMERIC
(12,2)
|
|
Curtailment
Adjustment Remitted
|
NUMERIC
(12,2)
|
|
Liquidation
Principal Remitted
|
NUMERIC
(12,2)
|
|
Principal
Not Advanced (stop advance loans only)
|
NUMERIC
(12,2)
|
|
Scheduled
Gross Interest
|
NUMERIC
(12,2)
|
|
Actual
Interest Remitted
|
NUMERIC
(12,2)
|
|
Scheduled
Service Fee Amount
|
NUMERIC
(12,2)
|
|
Soldiers
and Sailors Variance
|
NUMERIC
(12,2)
|
|
Net
Interest Not Advanced
|
NUMERIC
(12,2)
|
|
Prepayment
Penalty Remitted
|
NUMERIC
(12,2)
|
|
PMI
Premium Remitted
|
NUMERIC
(12,2)
|
|
Additional
Fees Remitted
|
NUMERIC
(12,2)
|
|
Ending
Scheduled Balance
|
NUMERIC
(12,2)
|
|
Actual
Amount Remitted Total (each loan)
|
NUMERIC
(12,2)
|
|
Beginning
Actual Balance
|
NUMERIC
(12,2)
|
|
Actual
Principal Collected
|
NUMERIC
(12,2)
|
|
Actual
Curtailments Collected
|
NUMERIC
(12,2)
|
|
Curtailment
Adjustment Collected
|
NUMERIC
(12,2)
|
|
Gross
Interest Collected
|
NUMERIC
(12,2)
|
|
Net
Interest Collected
|
NUMERIC
(12,2)
|
|
Service
Fee Collected
|
NUMERIC
(12,2)
|
|
Actual
Ending Principal Balance
|
NUMERIC
(12,2)
|
|
Liquidation
Date
|
DATE
(MM/DD/YYYY)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Gross
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
Liquidation
Expenses
|
NUMERIC
(12,2)
|
|
Principal
and Interest Advanced Balance
|
NUMERIC
(12,2)
|
|
Delinquent
Service Fee
|
NUMERIC
(12,2)
|
|
Calculated
Loss to Trust
|
NUMERIC
(12,2)
|
|
Net
Interest Remitted
|
NUMERIC
(12,2)
|
|
Collected
Interest Not Remitted
|
NUMERIC
(12,2)
|
|
Ending
Advance Balance
|
NUMERIC
(12,2)
|
|
Soldiers
and Sailors Flag
|
VARCHAR
(1)
|
|
Soldiers
and Sailors Old Rate
|
NUMERIC
(7,7)
|
|
Soldiers
and Sailors Old P & I
|
NUMERIC
(12,2)
|
|
Modified
Date
|
DATE
(MM/DD/YYYY)
|
|
Stop
Advance Flag
|
|
|
Stop
Advance Date
|
DATE
(MM/DD/YYYY)
|
|
BPO
Value
|
NUMERIC
(12,2)
|
|
Cash
Flow Group
|
VARCHAR
(2)
|
|
MSP
Principal Balance
|
NUMERIC
(12,2)
|
|
Debt
Forgiven / Charged Off
|
NUMERIC
(12,2)
|
|
Mortgagor
PITI Payment
|
NUMERIC
(12,2)
|
|
Bankruptcy
Status
|
VARCHAR
(2)
|
|
Foreclosure
Status
|
VARCHAR
(2)
|
|
Modification
Status
|
|
|
Interest
Only Loan
|
VARCHAR
(2)
|
|
Escrowed
Loan
|
VARCHAR
(2)
|
|
Monthly
Escrow Deposit
|
NUMERIC
(12,2)
|
|
Escrow
Balance
|
NUMERIC
(12,2)
|
|
Escrow
Advance Balance
|
NUMERIC
(12,2)
|
|
Restricted
Escrow Balance
|
NUMERIC
(12,2)
|
|
Mortgagor
Recoverable Corporate Expense Balance
|
NUMERIC
(12,2)
|
|
Non-Recoverable
Corporate Expense Balance
|
NUMERIC
(12,2)
|
|
HUD
235 Loan Status
|
VARCHAR
(2)
|
|
HUD
235 Balance
|
NUMERIC
(12,2)
|
|
Late
Charge Balance
|
NUMERIC
(12,2)
|
|
Buydown
Loan Status
|
VARCHAR
(2)
|
|
Monthly
Buydown Amount
|
NUMERIC
(12,2)
|
|
Monthly
Buydown Funds Balance
|
NUMERIC
(12,2)
|
|
Prepayment
Penalty Amount Waived
|
NUMERIC
(12,2)
|
|
Prepayment
Penalty Waived Reason Code
|
VARCHAR
(3)
|
|
Material
Breach Status
|
VARCHAR
(3)
|
|
Material
Breach Code
|
VARCHAR
(3)
|
|
Prefunding
Date
|
DATE
(MM/DD/YYYY)
|
|
3rd
Party Recoverable Expenses
|
NUMERIC
(12,2)
|
Exhibit
3
EXHIBIT
L to the Purchase Agreement
EMC
FORM
- REMITTANCE SUMMARY REPORT
Remittance
Summary Report:
Provides summary data at a deal (investor/category) level regarding the
remittance that will be submitted to EMC Master Servicing and contains the
following data fields in the order below:
|
Field
|
Field
Description
|
|
Deal
|
VARCHAR
(15)
|
|
Investor
|
VARCHAR
(5)
|
|
Category
|
VARCHAR
(5)
|
|
Principal
Remitted
|
NUMERIC
(15,2)
|
|
Curtailments
Remitted
|
NUMERIC
(15,2)
|
|
Curtailment
Adjustments Remitted
|
NUMERIC
(15,2)
|
|
Liquidation
Proceeds Remitted
|
NUMERIC
(15,2)
|
|
Principal
Not Advanced (stop advance loans only)
|
NUMERIC
(15,2)
|
|
Principal
Amounts Called/Collapsed
|
NUMERIC
(15,2)
|
|
Total
Principal Remitted
|
NUMERIC
(15,2)
|
|
Interest
Remitted
|
NUMERIC
(15,2)
|
|
PMI
Premiums Remitted
|
NUMERIC
(15,2)
|
|
Soldiers
and Sailors Difference
|
NUMERIC
(15,2)
|
|
Net
Interest Not Advanced
|
NUMERIC
(15,2)
|
|
Non
Comp Interest Remitted
|
NUMERIC
(15,2)
|
|
Prepayment
Penalties Remitted
|
NUMERIC
(15,2)
|
|
Total
Interest Remitted
|
NUMERIC
(15,2)
|
|
Arrearage
Amount Remitted
|
NUMERIC
(15,2)
|
|
Aggregate
Loss to Trust
Total
Manual Adjustments
|
NUMERIC
(15,2)
|
|
Debt
Forgiven/ Charged Off
|
NUMERIC
(15,2)
|
|
Additional
Fees Collected
|
NUMERIC
(15,2)
|
|
Total
Remittance
|
NUMERIC
(15,2)
|
Exhibit
4
EXHIBIT
M to the Purchase Agreement
EMC
FORM
- DEFAULT OVERVIEW REPORT
Default
Overview Report:
Provides loan level detail regarding the defaulted loans that are being serviced
and reported to EMC Master Servicing. The report contains the following data
fields in the order below:
|
Field
|
Field
Description
|
|
Servicer
loan number
|
VARCHAR
(15)
|
|
SBO
loan number
|
VARCHAR
(9)
|
|
Zip
Code
|
VARCHAR
(5)
|
|
Original
loan amount
|
NUMERIC
(12,2)
|
|
Original
value amount
|
NUMERIC
(12,2)
|
|
Origination
date
|
DATE
(MM/DD/YYYY)
|
|
Loan
type
|
VARCHAR
(2)
|
|
Actual
due date
|
DATE
(MM/DD/YYYY)
|
|
Current
loan amount
|
NUMERIC
(12,2)
|
|
Corporate
expense balance
|
NUMERIC
(12,2)
|
|
Escrow
balance/advance balance
|
NUMERIC
(12,2)
|
|
Suspense
balance
|
NUMERIC
(12,2)
|
|
Restricted
escrow balance
|
NUMERIC
(12,2)
|
|
Current
Value date
|
DATE
(MM/DD/YYYY)
|
|
Current
value amount
|
NUMERIC
(12,2)
|
|
Current
value source
|
VARCHAR
(15)
|
|
VA
LGC/ FHA Case number
|
VARCHAR
(15)
|
|
%
of MI coverage
|
NUMERIC
(7,7)
|
|
MI
certificate number
|
VARCHAR
(15)
|
|
LPMI
Cost
|
NUMERIC
(7,7)
|
|
Occupancy
status
|
VARCHAR
(1)
|
|
First
vacancy date
|
DATE
(MM/DD/YYYY)
|
|
Property
condition
|
VARCHAR
(2)
|
|
Property
type
|
VARCHAR
(2)
|
|
Delinquency
flag
|
VARCHAR
(2)
|
|
Reason
for default
|
VARCHAR
(2)
|
|
FNMA
action code
|
VARCHAR
(3)
|
|
FNMA
delinquency reason code
|
VARCHAR
(3)
|
|
Loss
mit flag
|
VARCHAR
(2)
|
|
Loss
mit type
|
VARCHAR
(2)
|
|
Loss
mit approval date
|
DATE
(MM/DD/YYYY)
|
|
Loss
mit removal date
|
DATE
(MM/DD/YYYY)
|
|
Repay
first due date
|
DATE
(MM/DD/YYYY)
|
|
Repay
next due date
|
DATE
(MM/DD/YYYY)
|
|
Repay
plan broken/reinstated/closed date
|
DATE
(MM/DD/YYYY)
|
|
Repay
plan created date
|
DATE
(MM/DD/YYYY)
|
|
Foreclosure
flag
|
VARCHAR
(2)
|
|
Foreclosure
attorney referral date
|
DATE
(MM/DD/YYYY)
|
|
Actual
first legal date
|
DATE
(MM/DD/YYYY)
|
|
Date
FC sale scheduled
|
DATE
(MM/DD/YYYY)
|
|
Foreclosure
actual sale date
|
DATE
(MM/DD/YYYY)
|
|
Actual
redemption end date
|
DATE
(MM/DD/YYYY)
|
|
Actual
eviction complete date
|
DATE
(MM/DD/YYYY)
|
|
Actual
eviction start date
|
DATE
(MM/DD/YYYY)
|
|
Bankruptcy
flag
|
VARCHAR
(2)
|
|
Actual
bankruptcy start date
|
DATE
(MM/DD/YYYY)
|
|
Bankruptcy
chapter
|
VARCHAR
(2)
|
|
Bankruptcy
Case Number
|
VARCHAR
(15)
|
|
Post
petition due date
|
DATE
(MM/DD/YYYY)
|
|
Actual
discharge date
|
DATE
(MM/DD/YYYY)
|
|
Date
relief/dismissal granted
|
DATE
(MM/DD/YYYY)
|
|
Actual
MI claim filed date
|
DATE
(MM/DD/YYYY)
|
|
Actual
MI claim amount filed
|
NUMERIC
(12,2)
|
|
MI
claim amount paid
|
NUMERIC
(12,2)
|
|
MI
claim funds received date
|
DATE
(MM/DD/YYYY)
|
|
Title
approval letter received date
|
DATE
(MM/DD/YYYY)
|
|
Title
package HUD/VA date
|
DATE
(MM/DD/YYYY)
|
|
FHA
27011A transmitted date
|
DATE
(MM/DD/YYYY)
|
|
FHA
Part A funds received date
|
DATE
(MM/DD/YYYY)
|
|
FHA
27011 B transmitted date
|
DATE
(MM/DD/YYYY)
|
|
FHA
Part B funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
▇▇▇ submitted date
|
DATE
(MM/DD/YYYY)
|
|
VA
first funds received amount
|
NUMERIC
(12,2)
|
|
VA
first funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
claim funds received date
|
DATE
(MM/DD/YYYY)
|
|
VA
claim submitted date
|
DATE
(MM/DD/YYYY)
|
|
VA
claims funds received amount
|
NUMERIC
(12,2)
|
|
REO
flag
|
VARCHAR
(2)
|
|
REO
repaired value
|
NUMERIC
(12,2)
|
|
REO
value (as is)
|
NUMERIC
(12,2)
|
|
REO
value date
|
DATE
(MM/DD/YYYY)
|
|
REO
value source
|
VARCHAR
(15)
|
|
REO
original list date
|
DATE
(MM/DD/YYYY)
|
|
REO
original list price
|
NUMERIC
(12,2)
|
|
REO
list price adjustment amount
|
NUMERIC
(12,2)
|
|
REO
list price adjustment date
|
DATE
(MM/DD/YYYY)
|
|
Date
REO offer received
|
DATE
(MM/DD/YYYY)
|
|
Date
REO offer accepted
|
DATE
(MM/DD/YYYY)
|
|
REO
scheduled close date
|
DATE
(MM/DD/YYYY)
|
|
REO
actual closing date
|
DATE
(MM/DD/YYYY)
|
|
REO
sales price
|
NUMERIC
(12,2)
|
|
REO
net sales proceeds
|
NUMERIC
(12,2)
|
|
Estimated
loss
|
NUMERIC
(12,2)
|
Exhibit
5
EXHIBIT
N to the Purchase Agreement
EMC
FORM
- DELINQUENCY SUMMARY REPORT
Delinquency
Summary Report:
Provides summary data at the servicer investor level regarding loan performance
that will be submitted to EMC Master Servicing and contains the following
data
fields in the order below:
|
Field
|
Field
Description
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Performance
type (Current, 30 days, 60 days, 90+ days, Foreclosure, Bankruptcy
or
PIF)
|
VARCHAR
(6)
|
|
Count
of Loans
|
NUMERIC
(10,0)
|
|
Percent
of Investor Number
|
NUMERIC
(7,7)
|
|
Deal
UPB
|
NUMERIC
(14,2)
|
|
Percent
of Deal UPB
|
NUMERIC
(7,7)
|
|
Arrears
Balance
|
NUMERIC
(14,2)
|
|
Percent
of Arrears Balance
|
NUMERIC
(7,7)
|
|
Foreclosure
Quick Sale
|
NUMERIC
(12,2)
|
|
REO
Book Value
|
NUMERIC
(12,2)
|
Exhibit
6
EXHIBIT
O to the Purchase Agreement
EMC
FORM
- MODIFIED LOANS REPORT
Modified
Loans Report: Provides
loan level data regarding all loans that the Servicer has modified with the
first modified payment due within thirty days following the end of the reporting
cycle. The report contains the following data fields in the order
below:
|
Field
Description
|
Field
Description
|
|
Loan
|
VARCHAR
(15)
|
|
Investor
|
VARCHAR
(5)
|
|
Original
Category
|
VARCHAR
(5)
|
|
Current
Category
|
VARCHAR
(5)
|
|
Stop
Adv Flag
|
VARCHAR
(3)
|
|
Modified
Due Date
|
DATE
(MM/DD/YYYY)
|
|
Mod
Loan Curtailment
|
NUMERIC
(15,2)
|
|
Mod
Loan ▇▇▇▇ Adjustment
|
NUMERIC
(15,2)
|
|
Principal
Advanced Capped
|
NUMERIC
(15,2)
|
|
Net
Interest Advanced Capped
|
NUMERIC
(15,2)
|
|
Service
Fee Advanced Capped
|
NUMERIC
(15,2)
|
|
Third
Party Bal Capped
|
NUMERIC
(15,2)
|
|
Amount
of Other Capped
|
NUMERIC
(15,2)
|
|
Borrower
Interest Contribution
|
NUMERIC
(15,2)
|
|
Borrower
Fee Code Arrearage Contribution
|
NUMERIC
(15,2)
|
|
Borrower
Principal Contribution
|
NUMERIC
(15,2)
|
|
Amt
Forgiven
|
NUMERIC
(15,2)
|
|
Beg
Delq Prin Bal
|
NUMERIC
(15,2)
|
|
Beg
Delq Int Bal
|
NUMERIC
(15,2)
|
|
Beg
Pre Prin Bal
|
NUMERIC
(15,2)
|
|
Beg
Pre Int Bal
|
NUMERIC
(15,2)
|
|
Excess
Int Adjust
|
NUMERIC
(15,2)
|
|
Excess
Interest on Mod
|
NUMERIC
(15,2)
|
Exhibit
7
EXHIBIT
P to the Purchase Agreement
EMC
FORM
- CLAIMS SUBMITTED REPORT
Claims
Submitted Report:
Provides loan level detail regarding claims submitted by the servicer’s investor
number that will be submitted to EMC Master Servicing and contains the following
data fields in the order below:
|
Field
|
Field
Description
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Servicer
Investor Category
|
VARCHAR
(5)
|
|
Loan
Number
|
VARCHAR
(15)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Escrow
Balance or Advance Balance
|
NUMERIC
(12,2)
|
|
Corporate
Expense Balance
|
NUMERIC
(12,2)
|
|
Restricted
Escrow Balance
|
NUMERIC
(12,2)
|
|
Replacement
Reserve Balance
|
NUMERIC
(12,2)
|
|
Suspense
Balance
|
NUMERIC
(12,2)
|
|
Third
Party Expense Balance
|
NUMERIC
(12,2)
|
|
Charge
Off Amount
|
NUMERIC
(12,2)
|
|
Side
Note Collections
|
NUMERIC
(12,2)
|
|
Claim
Amount Submitted
|
NUMERIC
(12,2)
|
Exhibit
8
EXHIBIT
Q to the Purchase Agreement
EMC
FORM
- LOSS SEVERITY SUMMARY REPORT
Loss
Severity Summary Report:
Provides summary data at the deal level regarding loss severity that will
be
submitted to EMC Master Servicing and contains the following data fields
in the
order below:
|
Field
|
Field
Description
|
|
Month
End
|
DATE
(MM/DD/YYYY)
|
|
Deal
Name
|
VARCHAR
(15)
|
|
Servicer
Investor Number
|
VARCHAR
(5)
|
|
Servicer
Investor Category
|
VARCHAR
(5)
|
|
Mortgage
Group
|
VARCHAR
(1)
|
|
Loan
Number
|
VARCHAR
(15)
|
|
Liquidation
Type
|
VARCHAR
(1)
|
|
Loan
Due Date
|
DATE
(MM/DD/YYYY)
|
|
PIF
Date
|
DATE
(MM/DD/YYYY)
|
|
Gross
Interest Rate
|
NUMERIC
(7,7)
|
|
Net
Interest Rate
|
NUMERIC
(7,7)
|
|
Service
Fee Rate
|
NUMERIC
(7,7)
|
|
P
& I Constant
|
NUMERIC
(12,2)
|
|
Scheduled
Beginning Balance
|
NUMERIC
(12,2)
|
|
Arrearage
Balance
|
NUMERIC
(12,2)
|
|
Total
Legal and Other Expenses
|
NUMERIC
(12,2)
|
|
Scheduled
Advanced Interest
|
NUMERIC
(12,2)
|
|
Scheduled
Liquidated Amount
|
NUMERIC
(12,2)
|
|
Gross
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
P
& I Advance Balance
|
NUMERIC
(12,2)
|
|
Delinquent
Service Fee
|
NUMERIC
(12,2)
|
|
Net
Liquidation Proceeds
|
NUMERIC
(12,2)
|
|
Scheduled
Net Interest
|
NUMERIC
(12,2)
|
|
Net
Liquidated Funds Remitted
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) Amount
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) to Trust
|
NUMERIC
(12,2)
|
|
Total
Loss (Gain) to Servicer
|
NUMERIC
(12,2)
|
|
Total
Loss Severity %
|
NUMERIC
(7,7)
|
|
Total
Loss Severity % to Trust
|
NUMERIC
(7,7)
|
|
Total
Liquidated Remitted
|
NUMERIC
(12,2)
|
|
Claim
on Trust Loss
|
NUMERIC
(12,2)
|
|
Claim
on Servicer Loss
|
NUMERIC
(12,2)
|
|
Total
Claim Amount
|
NUMERIC
(12,2)
|
EXHIBIT
K
FORM
OF
BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The
[ ]
agreement dated as of [ ],
200[ ]
(the “Agreement”), among [IDENTIFY PARTIES]
I,
________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Depositor] and the [Master Servicer] [Trustee], and
their officers, with the knowledge and intent that they will rely upon this
certification, that:
(1)
I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the Depositor and the
Trustee pursuant to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period of time
covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor and the
Trustee;
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any subservicer or subcontractor pursuant to
the
Agreement, have been provided to the Depositor and the Trustee. Any material
instances of noncompliance described in such reports have been disclosed to
the
Depositor and the Trustee. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
|
Date:
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
EXHIBIT
L
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Definitions
Primary
Servicer - transaction party having borrower contact
Master
Servicer - aggregator of pool assets
Trustee
-
waterfall calculator; fiduciary of the transaction
Back-up
Servicer - named in the transaction (in the event a Back up Servicer becomes
the
Primary Servicer, follow Primary Servicer obligations)
Custodian
- safe keeper of pool assets
Note:
The
definitions above describe the essential function that the party performs,
rather than the party’s title.
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key: X
- obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Master
Servicer
|
Trustee
|
Custodian
|
|
General
Servicing Considerations
|
|||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
X
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
||||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
X
|
||
|
Cash
Collection and Administration
|
|||||
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
[This
Agreement states that payments will be deposited within two business
days
after “receipt and
identification”.
]
|
X
|
X
|
X
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction agreements.
|
X
|
X
|
X
(to
the extent an advance is made)
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
X
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
X
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
|||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
[This
Agreement states that reconciliations will be prepared within 45
calendar days after the bank statement cut-off date.]
|
X
|
X
|
X
|
|
|
Investor
Remittances and Reporting
|
|||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
X
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
X
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
X
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
|
X
|
X
|
X
|
|
|
Pool
Asset Administration
|
|||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
||
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with
the related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance
with the
related pool asset documents.
|
X
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
X
|
||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
|||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
|||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in
the
transaction agreements; (B) interest on such funds is paid, or
credited,
to obligors in accordance with applicable pool asset documents
and state
laws; and (C) such funds are returned to the obligor within 30
calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|||
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements. In this transaction there is no external
enhancement or other support.
|
X
|
X
|
EXHIBIT
M
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the party identified
as responsible for preparing the Securities Exchange Act Reports pursuant to
Section 4.18 of the Pooling and Servicing Agreement.
Under
Item 1 of Form 10-D: a) items marked “Monthly Statements to Certificateholders”
are required to be included in the periodic Distribution Date statement under
Section 6.06, provided by the Trustee based on information received from the
party providing such information; and b) items marked “Form 10-D report” are
required to be in the Form 10-D report but not the Monthly Statements to
Certificateholders, provided by the party indicated. Information under all
other
Items of Form 10-D is to be included in the Form 10-D report. All such
information and any other Items on Form 8-K and Form 10-D set forth in this
Exhibit shall be sent to the Trustee and the Depositor.
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Trustee
|
Custodian
|
Depositor
|
Sponsor
|
|
10-D
|
Must
be filed within 15 days of the distribution date for the asset-backed
securities.
|
|||||||
|
1
|
Distribution
and Pool Performance Information
|
|||||||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
||||||||
|
(1)
Any applicable record dates, accrual dates, determination dates
for
calculating distributions and actual distribution dates for the
distribution period.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(2)
Cash flows received and the sources thereof for distributions,
fees and
expenses.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of
the general
purpose of such payments and the party receiving such
payments.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(iii)
Principal, interest and other distributions accrued and paid on
the
asset-backed securities by type and by class or series and any
principal
or interest shortfalls or carryovers.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(6)
Beginning and ending balances of transaction accounts, such as
reserve
accounts, and material account activity during the period.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(8)
Number and amount of pool assets at the beginning and ending of
each
period, and updated pool composition information, such as weighted
average
coupon, weighted average remaining term, pool factors and prepayment
amounts.
|
X
(Monthly
Statements to Certificateholders)
|
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||||||
|
(9)
Delinquency and loss information for the period.
|
X
|
X
|
X
(Monthly
Statements to Certificateholders)
|
|||||
|
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool assets.
(methodology)
|
X
|
|||||||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
X
|
X
|
X
(Monthly
Statements to Certificateholders)
|
|||||
|
(11)
Any material modifications, extensions or waivers to pool asset
terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
X
|
X
|
X
(Monthly
Statements to Certificateholders)
|
|||||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
X
|
X
|
X
(if
agreed upon by the parties)
|
X
|
||||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
X
(Monthly
Statements to Certificateholders)
|
|||||||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
|
X
|
|||||||
|
information
regarding any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such
as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
|
X
|
X
|
X
|
X
|
||||
|
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
X
|
X
|
||||||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
X
|
|||||||
|
2
|
Legal
Proceedings
|
|||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
|
||||||||
|
Sponsor
(Seller)
|
X
|
|||||||
|
Depositor
|
X
|
|||||||
|
Trustee
|
X
|
|||||||
|
Issuing
entity
|
X
|
|||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
X
|
||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
|||||||
|
Custodian
|
X
|
|||||||
|
3
|
Sales
of Securities and Use of Proceeds
|
|||||||
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
X
|
|||||||
|
4
|
Defaults
Upon Senior Securities
|
|||||||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
X
|
|||||||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
|||||||
|
Information
from Item 4 of Part II of Form 10-Q
|
X
|
|||||||
|
6
|
Significant
Obligors of Pool Assets
|
|||||||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
X
|
|||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
||||||||
|
7
|
Significant
Enhancement Provider Information
|
|||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
||||||||
|
Determining
applicable disclosure threshold
|
X
|
X
|
||||||
|
Obtain
required financial information or effecting incorporation by
reference
|
X
|
X
|
||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
||||||||
|
Determining
current maximum probable exposure
|
X
|
|||||||
|
Determining
current significance percentage. In this transaction there is no
current
significance percentage.
|
X
|
|||||||
|
Notify
derivative counterparty of significance percentage and request
required
financial information. In this transaction there is no current
significance percentage.
|
X
|
|||||||
|
Obtain
required financial information or effecting incorporation by
reference
|
X
|
|||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
||||||||
|
8
|
Other
Information
|
|||||||
|
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
||||||||
|
9
|
Exhibits
|
|||||||
|
Distribution
report
|
X
|
|||||||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
X
|
|||||||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
|||||||
|
1.01
|
Entry
into a Material Definitive Agreement
|
|||||||
|
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
X
|
X
|
X
|
X
|
X
|
|||
|
1.02
|
Termination
of a Material Definitive Agreement
|
X
|
X
|
X
|
X
|
X
|
||
|
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
||||||||
|
1.03
|
Bankruptcy
or Receivership
|
|||||||
|
Disclosure
is required regarding the bankruptcy or receivership, if known
to the
Master Servicer, with respect to any of the following:
Sponsor
(Seller), Depositor, Master Servicer, affiliated Servicer, other
Servicer
servicing 20% or more of pool assets at time of report, other material
servicers, Certificate Administrator, Trustee, significant obligor,
credit
enhancer (10% or more), derivatives counterparty,
Custodian
|
X
|
X
|
X
|
X
|
X
|
X
|
||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
|||||||
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the Monthly Statement to Certificateholders
|
X
|
X
|
||||||
|
3.03
|
Material
Modification to Rights of Security Holders
|
|||||||
|
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
X
|
X
|
||||||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
|||||||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
X
|
|||||||
|
5.06
|
Change
in Shell Company Status
|
|||||||
|
[Not
applicable to ABS issuers]
|
X
|
|||||||
|
6.01
|
ABS
Informational and Computational Material
|
|||||||
|
[Not
included in reports to be filed under Section 3.18]
|
X
|
|||||||
|
6.02
|
Change
of Servicer or Trustee
|
|||||||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers, certificate
administrator or trustee.
|
X
|
X
|
X
|
X
|
||||
|
Reg
AB disclosure about any new servicer is also required.
|
X
|
|||||||
|
Reg
AB disclosure about any new trustee is also required.
|
X
(to the extent of a new trustee)
|
|||||||
|
6.03
|
Change
in Credit Enhancement or Other External Support [In this transaction
there
is no external enhancement or other support.]
|
|||||||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
X
|
X
|
||||||
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
X
|
X
|
||||||
|
6.04
|
Failure
to Make a Required Distribution
|
X
|
||||||
|
6.05
|
Securities
Act Updating Disclosure
|
|||||||
|
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
X
|
|
||||||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
X
|
|||||||
|
7.01
|
Regulation
FD Disclosure
|
X
|
X
|
X
|
X
|
X
|
||
|
8.01
|
Other
Events
|
|||||||
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
X
|
|||||||
|
9.01
|
Financial
Statements and Exhibits
|
|||||||
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
|||||||
|
9B
|
Other
Information
|
|||||||
|
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
||||||||
|
15
|
Exhibits
and Financial Statement Schedules
|
|||||||
|
Item
1112(b) - Significant
Obligor Financial Information
|
X
|
|||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
|
||||||||
|
Determining
applicable disclosure threshold
|
X
|
X
|
||||||
|
Obtain
required financial information or effecting incorporation by
reference
|
X
|
X
|
||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information
|
||||||||
|
Determining
current maximum probable exposure
|
X
|
|||||||
|
Determining
current significance percentage. [In this transaction there is
no current
significance percentage.]
|
X
|
|||||||
|
Notify
derivative counterparty of significance percentage and request
required
financial information. [In this transaction there is no current
significance percentage.]
|
X
|
|||||||
|
Obtain
required financial information or effecting incorporation by
reference
|
X
|
|||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
|
||||||||
|
Sponsor
(Seller)
|
X
|
|||||||
|
Depositor
|
X
|
|||||||
|
Trustee
|
X
|
|||||||
|
Issuing
entity
|
X
|
|||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
X
|
||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
|||||||
|
Custodian
|
X
|
|||||||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
|
||||||||
|
Sponsor
(Seller)
|
X
|
|||||||
|
Depositor
|
X
|
|||||||
|
Trustee
|
X
|
|||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
X
|
||||||
|
Originator
|
X
|
|||||||
|
Custodian
|
X
|
|||||||
|
Credit
Enhancer/Support Provider
|
X
|
|||||||
|
Significant
Obligor
|
X
|
|||||||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
X
|
X
|
X
|
X
|
||||
|
Item
1123 - Servicer Compliance Statement
|
X
|
X
|
||||||
EXHIBIT
N
ADDITIONAL
DISCLOSURE NOTIFICATION
Structured
Asset Mortgage Investment II Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
E-Mail:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
U.S.
Bank
National Association as Trustee
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
(617) 603-663
E-mail:
▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
|
Attn:
|
Corporate
Trust Services - Prime Mortgage Trust 2007-2-
|
|
SEC
REPORT PROCESSING
|
RE:
**Additional Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section 3.18 of the Pooling and Servicing Agreement, dated
as of
April 1, 2007, among EMC Mortgage Corporation, as Seller and Master Servicer
and
U.S. Bank National Association as Trustee. The undersigned hereby notifies
you
that certain events have come to our attention that [will][may] need to be
disclosed on Form [ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
|
[NAME
OF PARTY]
|
||
|
as
[role]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
O
Aggregate
Planned Principal Schedules
(Provided
Upon Request)
EXHIBIT
P
FORM
OF
TRUSTEE LIMITED POWER OF ATTORNEY
|
KNOW
ALL MEN BY THESE PRESENTS, that U.S. Bank National Association, a
national
banking association, having a place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, not individually, but solely
as
Trustee (and in no personal or other representative capacity) under
the
Pooling and Servicing Agreement, dated as of April 1, 2007, by and
among
Structured Asset Mortgage Investments II Inc., the Trustee and EMC
Mortgage Corporation (as amended, restated, supplemented or otherwise
modified from time to time, the “Agreement”; capitalized terms not defined
herein have the definitions assigned to such terms in the Agreement),
relating to the Prime Mortgage Trust, Certificates, Series 2007-2,
hereby
appoints _______________, in its capacity as a Servicer under the
Agreement, as the Trustee’s true and lawful Special Attorney-in-Fact, in
the Trustee’s name, place and stead and for the Trustee’s benefit, but
only in its capacity as Trustee aforesaid, to perform all acts and
execute
all documents as may be customary, necessary and appropriate to effectuate
the following enumerated transactions in respect of any mortgage,
deed of
trust, promissory note or real estate owned from time to time owned
(beneficially or in title, whether the Trustee is named therein as
mortgagee or beneficiary or has become mortgagee or beneficiary by
virtue
of endorsement, assignment or other conveyance) or held by or registered
to the Trustee (directly or through custodians or nominees), or in
respect
of which the Trustee has a security interest or other lien, all as
provided under the applicable Agreement and only to the extent the
respective Trustee has an interest therein under the Agreement, and
in
respect of which the Servicer is acting as servicer pursuant to the
Agreement (the “Mortgage
Documents”).
|
This
appointment shall apply to the following enumerated transactions under the
Agreement only:
The
modification or re-recording of any Mortgage Document for the purpose of
correcting it to conform to the original intent of the parties thereto or to
correct title errors discovered after title insurance was issued and where
such
modification or re-recording does not adversely affect the lien under the
Mortgage Document as insured.
2.
The
subordination of the lien under a Mortgage Document to an easement in favor
of a
public utility company or a state or federal agency or unit with powers of
eminent domain including, without limitation, the execution of partial
satisfactions/releases, partial reconveyances and the execution of requests
to
trustees to accomplish same.
3. The
conveyance of the properties subject to a Mortgage Document to the applicable
mortgage insurer, or the closing of the title to the property to be acquired
as
real estate so owned, or conveyance of title to real estate so
owned.
4. The
completion of loan assumption and modification agreements in respect of Mortgage
Documents.
5. The
full
or partial satisfaction/release of a Mortgage Document or full conveyance upon
payment and discharge of all sums secured thereby, including, without
limitation, cancellation of the related note.
6. The
assignment of any Mortgage Document, in connection with the repurchase of the
mortgage loan secured and evidenced thereby.
7. The
full
assignment of a Mortgage Document upon payment and discharge of all sums secured
thereby in conjunction with the refinancing thereof, including, without
limitation, the assignment of the related note.
8. With
respect to a Mortgage Document, the foreclosure, the taking of a deed in lieu
of
foreclosure, or the completion of judicial or non-judicial foreclosure or
termination, cancellation or rescission of any such foreclosure, including,
without limitation, any and all of the following acts:
|
a.
|
the
substitution of trustee(s) serving under a deed of trust, in accordance
with state law and the deed of trust;
|
|
|
b.
|
the
preparation and issuance of statements of breach or
non-performance;
|
|
|
c.
|
the
preparation and filing of notices of default and/or notices of
sale;
|
|
|
d.
|
the
cancellation/rescission of notices of default and/or notices of
sale;
|
|
|
e.
|
the
taking of a deed in lieu of foreclosure; and
|
|
|
f.
|
the
preparation and execution of such other documents and performance
of such
other actions as may be necessary under the terms of the Mortgage
Document
or state law to expeditiously complete said transactions in paragraphs
8(a) through 8(e), above.
|
9.
Demand,
▇▇▇ for, recover, collection and receive each and every sum of money, debt,
account and interest (which now is, or hereafter shall become due and payable)
belonging to or claimed by the Trustee under the Mortgage Documents, and to
use
or take any lawful means for recovery thereof by legal process or
otherwise.
10. Endorse
on behalf of the Trustee all checks, drafts and/or negotiable instruments made
payable to the Trustee in respect of the Mortgage Documents.
The
Trustee gives the Special Attorney-in-Fact full power and authority to execute
such instruments and to do and perform all and every act and thing necessary
and
proper to carry into effect the power or powers granted by this Limited Power
of
Attorney, subject to the terms and conditions set forth in the Agreement
including the standard of care applicable to servicers in the Agreement, and
hereby does ratify and confirm what such Special Attorney-in-Fact shall lawfully
do or cause to be done by authority hereof.
IN
WITNESS WHEREOF, the Trustee has caused its corporate name to be hereto signed
and affixed and these presents to be acknowledged by its duly elected and
authorized officer this ___ day of ___ , 2007.
|
U.S.
Bank National Association, not individually, but solely as Trustee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
WITNESS:
|
WITNESS:
|
|
|
Name:
|
Name:
|
|
|
Title:
|
Title:
|
|
▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
|
|
|
▇▇
|
|
|
▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
|
▇▇
______________, 2007, before me, the undersigned, a Notary Public in and for
said state, personally appeared __________________, personally known to me
to be
the person whose name is subscribed to the within instrument, and such person
acknowledged to me that such person executed the within instrument in such
person’s authorized capacity, and that by such signature on the within
instrument the entity upon behalf of which such person acted executed the
instrument.
WITNESS
my hand and official seal.
|
Notary
Public
|
EXHIBIT
Q
FORM
OF
CERTIFICATION TO BE
PROVIDED
BY THE TRUSTEE TO DEPOSITOR
Re: Structured
Asset Mortgage Investments II Inc. Prime Mortgage Trust (the “Trust”),
Certificates Series 2007-2, issued pursuant to the Pooling and Servicing
Agreement, dated as of April 1, 2007, among Structured Asset Mortgage
Investments II Inc, as Depositor, EMC Mortgage Corporation, as Seller and Master
Servicer and U.S. Bank National Association as Trustee.
The
Trustee hereby certifies 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 10-D required to be filed in respect of period
covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of the Trust;
(2) To
my
knowledge, (a) the Reports, taken as a whole, do 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 with respect to the period covered by the Annual
Report, and (b) the Trustee’s assessment of compliance and related attestation
report referred to below, taken as a whole, do 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 with respect to the period covered by such assessment
of
compliance and attestation report;
(3) To
my
knowledge, the distribution information required to be provided by the Trustee
under the Pooling and Servicing Agreement for inclusion in the Reports is
included in the Reports;
(4) I
am
responsible for reviewing the activities performed by the Trustee under the
Pooling and Servicing Agreement, and based on my knowledge, and except as
disclosed in the Reports, the Trustee has fulfilled its obligations under the
Pooling and Servicing Agreement in all material respects; and
(5) The
report on assessment of compliance with servicing criteria applicable to the
Trustee for asset-backed securities of the Trustee and each Subcontractor
utilized by the Trustee and related attestation report on assessment of
compliance with servicing criteria applicable to it required to be included
in
the Annual Report in accordance with Item 1122 of Regulation AB and Exchange
Act
Rules 13a-18 and 15d-18 has been included as an exhibit to the Annual Report.
Any material instances of non-compliance are described in such report and have
been disclosed in the Annual Report.
In
giving
the certifications above, the Trustee has reasonably relied on information
provided to it by the following unaffiliated parties: [names of servicer(s),
master servicer, subservicer, depositor, trustee, custodian(s)]
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Date:
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[Signature]
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[Title]
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EXHIBIT
R
Form
of
the Master Servicer's Data Layout Report
Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2
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US
BANK FIELDS
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SBO
FIELDS
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SBO
DESCRIPTION
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LOAN
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LOAN_NUMBER
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Loan
number
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STOP_ADV_FLAG
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ACTUAL_ACTUAL_OVERRIDE
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Pertains
to resold scheduled/actual and scheduled/scheduled pools. A code
indicating if the specific loan should be remitted on an actual/actual
basis.
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RATE
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LOAN_NOTE_RATE
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Interest
rate associated with the next payment due on the loan when the investor
cutoff
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SF_RATE
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LOAN_FEE_AMT
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Fixed
monthly fee due the strip holder.
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LPMI_RATE
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MIRF_AMT
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LPMI
refund from MI companies (i.e. Radian, MGIC) for LPMI cancellations,
recisions, rate errors, payments made on loans without at
payoff
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BEG_SCHED
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BEGINNING_SCHEDULED_BALANCE
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The
amortized balance on which interest is expected as of the beginning
of the
month.
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END_SCHED
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ENDING_SCHEDULED_BALANCE
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Ending
scheduled balance. The balance on which interest should be earned
next
month.
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END_ACT
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PARTICIPANT_BALANCE
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Ending
actual participant balance of the pool as of the cutoff
date
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P&I
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LOAN_PAYMENT_AMOUNT
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Loan's
payment constant at the time of record creation.
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GROSS_INT
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SCHEDULED_INTEREST_AMOUNT
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Scheduled
gross interest for the remittance cycle
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SCHED_P
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SCHEDULED_PRINCIPAL_AMOUNT
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Scheduled
principal for the remittance cycle
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CURTAIL
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CURTAILMENT_AMOUNT
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Calculated
curtailment amount for the specified period of time.
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PREPAY
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LIQUIDATION_PRINCIPAL
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Amount
of principal reported as payoff principal.
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PREPAY_DATE
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LIQUIDATION_DATE
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Liquidation
date
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PREPAY_CODE
PIF
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LIQUIDATION_TYPE
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A
code indicating the reason for the liquidation.
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NEXT_DUE
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LOAN_DUE_DATE
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Loan's
due date when the investor cutoff
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STATUS
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LOAN_STATUS
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The
status of the loan as of the cutoff date.
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BKCY_DATE
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BANKRUPTCY_STATUS
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Code
which corresponds to the loan's bankruptcy status. See codes table
for
valid codes and their corresponding meaning.
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FCLS_DATE
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FORECLOSURE_STATUS
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Code
which corresponds to the loan's foreclosure status. See codes table
for
valid codes and their corresponding meaning.
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REO_DATE
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REO_STATUS
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A
code indicating if the loan was an REO when the investor
cutoff.
Y
=
yes
N
=
no.
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DELINQ
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MONTHS_DELINQUENT_24
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0,1,30,60,90,120
( 1 = 1-29, 30 = 30-59, etc…)
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PPIS
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Interest
Shortfall
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Interest
shortfall adjustment
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RAIS
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SSRA_AMT
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Interest
adjustments for Soldiers & Sailors Relief Act Loans
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PPP_Collected
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ANCILLARY_FEE_AMOUNT
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Amount
of the fee (100%) paid by the borrower.
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REMIT
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Total_Remittance_Amt
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total
remit for the loan
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ADV_P&I_CUR
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Svc
Prin Adv
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Principal
advance by servicer
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ADV_P&I_CUR
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Svc
Int Adv
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Interest
advance by servicer
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LIQUIDATION_FLAG
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LIQUIDATION_FLAG
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Loan
status
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EXHIBIT
S
FORM
OF
TRANSFEROR AFFIDAVIT
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STATE
OF NEW YORK
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)
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)
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ss.:
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COUNTY
OF NEW YORK
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)
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The
undersigned is the [Title of Officer] of [Name of Transferor] (the “Owner”), the
proposed transferor of an Ownership Interest in the Prime
Mortgage Trust, Mortgage Pass-Through Certificates, Series 2007-2,
Class
[R] Certificate (the “Certificate”) issued
pursuant to the Pooling and Servicing Agreement, dated as of April 1, 2007
(the
“Agreement”), among
Structured Asset Mortgage Investments II Inc. as depositor (the “Depositor”),
EMC Mortgage Corporation as seller and master servicer, and U.S. Bank National
Association as trustee (the “Trustee”),
and
makes this affidavit on behalf of the Owner for the benefit of the
Depositor
and the
Trustee. Capitalized terms used, but not defined herein, shall have the meanings
ascribed to such terms in the
Agreement.
1.
The
Owner
is not transferring the Certificate to impede the assessment or collection
of
any tax.
2. The
Owner
has no actual knowledge that the proposed transferee of the Certificate: (i)
has
insufficient assets to pay any taxes that would be owed by such transferee
as
Holder of the Certificate; (ii) may become insolvent or subject to a bankruptcy
proceeding for so long as the Certificate remains outstanding; and (iii) is
not
a Permitted Transferee.
3. The
Owner
understands that the proposed transferee has delivered to the Trustee and the
Depositor a transfer affidavit and agreement in the form attached to the
Agreement as Exhibit C. The Owner does not know or believe that any
representation contained therein is false.
4. At
the
time of transfer, the Owner has conducted a reasonable investigation of the
financial condition of the proposed transferee as contemplated by Treasury
Regulation Section 1.860E-1(c)(4)(i) and, as a result of that investigation,
the
Owner has determined that the proposed transferee has historically paid its
debts as they became due and has found no significant evidence to indicate
that
the proposed transferee will not continue to pay its debts as they become due
in
the future. The Owner understands that the transfer of the Certificate may
not
be respected for U.S. federal income tax purposes (and the Owner may continue
to
be liable for U.S. federal income taxes associated therewith) unless the Owner
has conducted such an investigation.
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its [Title of
Officer] this ____ day of _________, 20__.
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[NAME
OF OWNER]
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By:
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Name:
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[Name
of Officer]
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Title:
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[Title
of Officer]
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Personally
appeared before me the above-named [Name of Officer], known or proved to me
to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Owner, and acknowledged to me that he/she executed the same
as
his/her free act and deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ___ day of _________, 20___.
NOTARY
PUBLIC
COUNTY
OF
STATE
OF
My
commission expires the ___ day of ___________________, 20___.