Common use of Participation Interests Clause in Contracts

Participation Interests. (a) Upon election by the Seller to deliver a Tier II or Tier III Qualified Loan to Xxxxxx Mac pursuant of this Commitment, Xxxxxx Mac shall be entitled to perform such due diligence as to allow it to determine the value of the related mortgaged property at the time of purchase by Xxxxxx Mac. In the event that (i) Xxxxxx Mac determines that the outstanding principal balance of such Qualified Loan exceeds the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac program at the time of purchase by Xxxxxx Mac and (ii) if applicable, such Qualified Loan is not insured or guaranteed by a qualified mortgage insurer approved by Xxxxxx Mac, Xxxxxx Mac shall so notify the Seller and shall purchase only a pro rata participation interest in such Qualified Loan. Such pro rata participation interest shall be calculated to result in the loan-to-value ratio (based on an appraisal performed in accordance with the Appraisal Standards set forth in the Seller/Servicer Guide) of Xxxxxx Mac's participation interest being equal to the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac loan product. Upon receipt of such notice, the Seller may represent and warrant in writing that, notwithstanding Xxxxxx Mac's calculation of the loan-to-value ratio of such Qualified Loan, the actual loan-to-value ratio of such Qualified Loan on the date of sale of such Qualified Loan is less than or equal to the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac product. In such event, Xxxxxx Mac will accept delivery of the entire Qualified Loan, subject to the Seller's liability for any loss resulting from a breach of the representation and warranty with respect to loan-to value. (i) In the event that Xxxxxx Mac accepts delivery of only a participation interest in a Qualified Loan as described in paragraph (a) above, Xxxxxx Mac shall reimburse the Seller for a portion of the Standby Purchase Commitment Fee collected with respect to such Qualified Loan, which portion shall be calculated as described in subparagraph (ii) below. (ii) The amount of reimbursement due to the Seller in subparagraph (i) with respect to a Qualified Loan where Xxxxxx Mac purchases a participation interest shall be the sum of (A) the unpaid principal balance of such Qualified Loan at the time that such Qualified Loan was made subject to this Commitment, as such amount was set forth in the related Qualified Loan Schedule delivered by the Seller to Xxxxxx Mac pursuant to Section 4.02(a) and (B) the unpaid principal balance of such Qualified Loan at the time that the Seller elects to deliver such Qualified Loan to Xxxxxx Mac pursuant to paragraph (a) above, which sum is divided by two and multiplied by (C) the number of months for which the Seller paid a Standby Purchase Commitment Fee with respect to such Qualified Loan, (D) the Standby Purchase Commitment Fee (divided by 12) and (E) the amount by which 1 exceeds the percentage participation interest purchased by Xxxxxx Mac.

Participation Interests. (a) Upon election by the Seller to deliver a Tier II or Tier III Qualified Loan to Xxxxxx Mac pursuant of this Commitment, Xxxxxx Mac shall be entitled to perform such due diligence as to allow it to determine the value of the related mortgaged property at the time of purchase by Xxxxxx Mac. In the event that (i) Xxxxxx Mac determines that the outstanding principal balance of such Qualified Loan exceeds the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac program at the time of purchase by Xxxxxx Mac and (ii) if applicable, such Qualified Loan is not insured or guaranteed by a qualified mortgage insurer approved by Xxxxxx Mac, Xxxxxx Mac shall so notify the Seller and shall purchase only a pro rata participation interest in such Qualified Loan. Such pro rata participation interest shall be calculated to result in the loan-to-value ratio (based on an appraisal performed in accordance with the Appraisal Standards set forth in the Seller/Servicer Guide) of Xxxxxx Mac's ’s participation interest being equal to the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac loan product. Upon receipt of such notice, the Seller may represent and warrant in writing that, notwithstanding Xxxxxx Mac's ’s calculation of the loan-to-value ratio of such Qualified Loan, the actual loan-to-value ratio of such Qualified Loan on the date of sale of such Qualified Loan is less than or equal to the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac product. In such event, Xxxxxx Mac will accept delivery of the entire Qualified Loan, subject to the Seller's ’s liability for any loss resulting from a breach of the representation and warranty with respect to loan-to value. (b) (i) In the event that Xxxxxx Mac accepts delivery of only a participation interest in a Qualified Loan as described in paragraph (a) above, Xxxxxx Mac shall reimburse the Seller for a portion of the Standby Purchase Commitment Fee collected with respect to such Qualified Loan, which portion shall be calculated as described in subparagraph (ii) below. (ii) The amount of reimbursement due to the Seller in subparagraph (i) with respect to a Qualified Loan where Xxxxxx Mac purchases a participation interest shall be the sum of (A) the unpaid principal balance of such Qualified Loan at the time that such Qualified Loan was made subject to this Commitment, as such amount was set forth in the related Qualified Loan Schedule delivered by the Seller to Xxxxxx Mac pursuant to Section 4.02(a) 4.02 and (B) the unpaid principal balance of such Qualified Loan at the time that the Seller elects to deliver such Qualified Loan to Xxxxxx Mac pursuant to paragraph (a) above, which sum is divided by two and multiplied by (C) the number of months for which the Seller paid a Standby Purchase Commitment Fee with respect to such Qualified Loan, (D) the Standby Purchase Commitment Fee (divided by 12) and (E) the amount by which 1 exceeds the percentage participation interest purchased by Xxxxxx Mac.

Participation Interests. (a) Upon election by the Seller to deliver a Tier II or Tier III Qualified Loan to Xxxxxx Mac pursuant of this Commitment, Xxxxxx Mac shall be entitled to perform such due diligence as to allow it to determine the value of the related mortgaged property at the time of purchase by Xxxxxx Mac. In the event that (i) Xxxxxx Mac determines that the outstanding principal balance of such Qualified Loan exceeds the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac program at the time of purchase by Xxxxxx Mac and (ii) if applicable, such Qualified Loan is not insured or guaranteed by a qualified mortgage insurer approved by Xxxxxx Mac, Xxxxxx Mac shall so notify the Seller and shall purchase only a pro rata participation interest in such Qualified Loan. Such pro rata participation interest shall be calculated to result in the loan-to-value ratio (based on an appraisal performed in accordance with the Appraisal Standards set forth in the Seller/Servicer Guide) of Xxxxxx Mac's ’s participation interest being equal to the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac loan product. Upon receipt of such notice, the Seller may represent and warrant in writing that, notwithstanding Xxxxxx Mac's ’s calculation of the loan-to-value ratio of such Qualified Loan, the actual loan-to-value ratio of such Qualified Loan on the date of sale of such Qualified Loan is less than or equal to the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac product. In such event, Xxxxxx Mac will accept delivery of the entire Qualified Loan, subject to the Seller's ’s liability for any loss resulting from a breach of the representation and warranty with respect to loan-to value. (b) (i) In the event that Xxxxxx Mac accepts delivery of only a participation interest in a Qualified Loan as described in paragraph (a) above, Xxxxxx Mac shall reimburse the Seller for a portion of the Standby Purchase Commitment Fee collected with respect to such Qualified Loan, which portion shall be calculated as described in subparagraph (ii) below. (ii) The amount of reimbursement due to the Seller in subparagraph (i) with respect to a Qualified Loan where Xxxxxx Mac purchases a participation interest shall be the sum of (A) the unpaid principal balance of such Qualified Loan at the time that such Qualified Loan was made subject to this Commitment, as such amount was set forth in the related Qualified Loan Schedule delivered by the Seller to Xxxxxx Mac pursuant to Section 4.02(a) and (B) the unpaid principal balance of such Qualified Loan at the time that the Seller elects to deliver such Qualified Loan to Xxxxxx Mac pursuant to paragraph (a) above, which sum is divided by two and multiplied by (C) the number of months for which the Seller paid a Standby Purchase Commitment Fee with respect to such Qualified Loan, (D) the Standby Purchase Commitment Fee (divided by 12) and (E) the amount by which 1 exceeds the percentage participation interest purchased by Xxxxxx Mac.

Participation Interests. (a) Upon election by the Seller execution of the Subordination of Interest Agreement and the BoA Acknowledgment Agreement, the Servicer hereby agrees from time to deliver time to create one or more participation interests evidencing an exclusive right of the Certificateholder to participate in the ownership of certain Excess Servicing Fee Receivables (each a Tier II or Tier III Qualified Loan “Participation Interest”) relating to Xxxxxx Mac pursuant a group of this Commitment, Xxxxxx Mac Servicing Rights described in Schedule I to the related Purchase Offer (defined below) (each an “Investment Pool”). Each Participation Interest shall be entitled evidenced by a recording on the books and records of the Servicer naming the Certificateholder as an owner in the right to perform receive such due diligence Excess Servicing Fee Receivables. The Servicer shall appoint a registrar, initially the Servicer (the “Registrar”) which shall maintain, or cause to be maintained, a register of the Participation Interests issued and outstanding (the “Interest Register”) in which, subject to such reasonable regulations as it may prescribe, the Registrar shall provide for the registration of Participation Interests and of transfers and exchanges as provided in this Agreement. With respect to allow it each Participation Interest, in addition to determine the value information described in Section 1(c), the Interest Register shall clearly identify the Certificateholder (or any applicable successor or permitted assign) as the owner of the Participation Interest (the “Owner”), the related Investment Pool and the Excess Servicing Fees, the portion of the related mortgaged property at Excess Servicing Fees that are considered Excess Servicing Fee Receivables and that are being assigned pursuant to such Participation Interest and any other Participation Interest related to the time same Investment Pool, and the Owner’s percentage of purchase by Xxxxxx Mac. In the event that (i) Xxxxxx Mac determines that the outstanding principal balance of such Qualified Loan exceeds the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac program at the time of purchase by Xxxxxx Mac and (ii) if applicable, such Qualified Loan is not insured or guaranteed by a qualified mortgage insurer approved by Xxxxxx Mac, Xxxxxx Mac shall so notify the Seller and shall purchase only a pro rata participation undivided interest in such Qualified Loan. Such pro rata participation interest shall be calculated to result in the loan-to-value ratio (based on an appraisal performed in accordance with the Appraisal Standards set forth in the Seller/Servicer Guide) of Xxxxxx Mac's participation interest being equal to the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac loan product. Upon receipt of such notice, the Seller may represent and warrant in writing that, notwithstanding Xxxxxx Mac's calculation of the loan-to-value ratio of such Qualified Loan, the actual loan-to-value ratio of such Qualified Loan on the date of sale of such Qualified Loan is less than or equal to the maximum loan-to-value ratio for eligibility for the appropriate Xxxxxx Mac product. In such event, Xxxxxx Mac will accept delivery of the entire Qualified Loan, subject to the Seller's liability for any loss resulting from a breach of the representation and warranty with respect to loan-to valueExcess Servicing Fee Receivables. (i) In The Parties may in the event that Xxxxxx Mac accepts delivery future agree (with a frequency not to exceed monthly) to the sale and purchase of only a participation interest in Participation Interest related to Servicing Rights created or to be acquired at a Qualified Loan as described in paragraph purchase price (a) above, Xxxxxx Mac shall reimburse the Seller for a portion of the Standby Purchase Commitment Fee collected with respect to such Qualified Loaneach Participation Interest, the “Purchase Price”), mutually agreed by the Parties. At least two (2) Business Days (which portion is any day except a Saturday, Sunday or holiday on which the commercial banks in New York City, New York are permitted or authorized by law or executive order to be closed, a “Business Day”) prior to the proposed purchase date (a “Purchase Date”), the Servicer shall be calculated deliver to the Certificateholder, a Purchase Offer in substantially the form annexed hereto as described in subparagraph Exhibit B (ii) belowthe “Purchase Offer”). (ii) The amount Certificateholder shall accept or reject the Purchase Offer within [ ] Business Days. The Certificateholder shall not accept any Purchase Offer unless (1) the Agency has entered into the Subordination of reimbursement due Interest Agreement with respect to the Seller Servicing Rights relating to the Participation Interest subject to the Purchase Offer, (2) Bank of America, N.A. has entered into the BoA Acknowledgment Agreement with respect to the Servicing Rights relating to the Participation Interest subject to the Purchase Offer, (3) no Event of Default (as defined herein) shall have occurred, and (4) no event shall have occurred which event if left uncured beyond any applicable cure period described in subparagraph Section 5(a) below would constitute an Event of Default. It is not the intention of the Parties to transfer any of the Servicer’s right, title, interest or obligations in, to and under the Agency Agreement, but merely for the Servicer to transfer to the Certificateholder the Participation Interest in the related Excess Servicing Fee Receivables in accordance with the terms hereof. (iiii) The Servicer shall remit to the Certificateholder by the [ ] Business Day of each month (the “Distribution Date”) the amount due with respect to each Participation Interest and the related Investment Pool in accordance with the following: The Gross Servicing Fees collected in each month with respect to an Investment Pool shall be allocated as follows, in each case with respect to the Mortgage Loans included in the related Investment Pool: (1) First, to pay any accrued and unpaid Subservicing Fees and any other costs of servicing; (2) Second, to pay any accrued and unpaid Retained Servicing Fees to the Servicer to the extent it exceeds the amounts payable pursuant to clause (1), it being understood that the amounts in clause (1) are treated as paid out of the Retained Servicing Fees; and (3) Third, all remaining amounts, if any, to pay to the Owner of the Participation Interest as Excess Servicing Fee Receivables. Except as provided herein, under no circumstances shall the Servicer be required to remit to the Certificateholder in any month an amount with respect to a Qualified Loan where Xxxxxx Mac purchases a participation interest Participation Interest that is greater than the amount specified in clause (3) above for the related Investment Pool for such month. In the event the amount specified in clause (1) above exceeds the Gross Servicing Fees collected for any month, any shortfall amount shall be paid by the Servicer. In addition, in the event the amount specified in clause (1) exceeds the Retained Servicing Fee for any month (such excess is referred to as the “Subservicing Excess”), the Servicer shall be responsible for paying an additional amount to the Owner of the Participation Interest (beyond the amount distributed from the Gross Servicing Fees collected in such month pursuant to clause (3) above) equal to the Subservicing Excess out of its own funds, but only after all amounts described in clause (1) above have been paid. In addition, in the event that Gross Servicing Fees retained pursuant to the Credit Agreement exceed the Retained Servicing Fee for any month (such excess is referred to as the “Letter of Credit Holdback”), the Servicer shall be responsible for paying an additional amount to the Owner of the Participation Interest (beyond the amount distributed from the Gross Servicing Fees collected in such month pursuant to clause (3) above) equal to the Letter of Credit Holdback out of its own funds. (c) Upon transfer of any Participation Interest, the Registrar shall note in the Interest Register the ownership percentage transferred, the original purchase price of the Participation Interest, the date of transfer and the name and address of the transferee or transferees or, in the case of an exchange, the name and address of the Owner all within the meaning of U.S. Treasury Regulations Section 5(f).103-1(c); provided, as a condition to any registration of transfer, each transferee shall be deemed to have made all the representations, warranties and covenants set forth in Section 3 of this Agreement. Each Participation Interest shall be registered and may be transferred to any third person only by notice from the Owner to the Registrar and the recordation by the Registrar of a new Participation Interest assigned to the transferee, as required under U.S. Treasury Regulations Section 1.871-14(c). The Servicer and the Registrar shall treat the Owner whose name is recorded in the Interest Register pursuant to the terms hereof as the beneficial owner of such Participation Interest for all purposes under this Agreement. (d) No service charge shall be made for any registration of transfer or exchange of Participation Interests, but the Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any such transfer or exchange. (e) The Registrar shall not be responsible for determining compliance with the restrictions on transfer in this Agreement. (f) The Owner effecting transfer thereof shall indemnify the Registrar, in its individual and fiduciary capacities, and the other Owners against any liability that may result if the transfer is not exempt from the registration requirements of the Securities Act of 1933. Each Owner shall be deemed by its acceptance and holding of its Participation Interest to agree that none of the Registrar or any Owner is under an obligation to register the Participation Interests under the Securities Act of 1933, as amended (the “Securities Act”) or any other securities law. (g) The Participation Interests may not be offered, transferred or sold except to Accredited Investors within the meaning of Regulation D promulgated under the Securities Act (an “Accredited Investor”) in reliance of an exemption from the registration requirements of the Securities Act. (h) The Participation Interests have not been registered or qualified under the Securities Act, or any state securities law. No transfer, sale, pledge or other disposition of any Participation Interest shall be made unless such disposition is made pursuant to an effective registration statement under the Securities Act and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. In addition, no transfer, sale, pledge or other disposition of any Participation Interest shall be made without prior written consent of the Servicer in compliance with the terms of this Agreement, which consent will not be unreasonably withheld. (i) No offer, sale, transfer or other disposition (including pledge) of a Participation Interest shall be made to any Person (which means and include natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and government authorities, a “Person”) which is, or is purchasing for, or on behalf of (A) the unpaid principal balance of such Qualified Loan at the time that such Qualified Loan was made an employee benefit plan, retirement arrangement, individual retirement account or Xxxxx plan subject to this Commitmenteither Title I of the Employee Retirement Income Security Act of 1974, as such amount was set forth in amended, or Section 4975 of the related Qualified Loan Schedule delivered by the Seller to Xxxxxx Mac pursuant to Section 4.02(a) and Internal Revenue Code of 1986, as amended, or (B) an entity (including an insurance company general account) whose underlying assets include plan assets by reason of any such plan’s arrangements or account’s investment in any such entity. (j) Unless and until otherwise directed in writing by the unpaid principal balance Owner registered in the Interest Register, any payments or distributions on the related Participation Interest shall be made via wire transfer of immediately available funds to a bank account designated in writing by the Certificateholder. (k) The Registrar shall furnish or cause to be furnished to one or more Owners within three (3) calendar days after receipt by the Registrar of a written request therefor, a list of the names and addresses of the Owners as of the most recent Record Date for payments to Owners. If one or more Owners (hereinafter referred to as “Applicants”), apply in writing to the Registrar, and such Qualified Loan at the time application states that the Seller elects Applicants desire to deliver such Qualified Loan to Xxxxxx Mac pursuant to paragraph (a) above, which sum is divided by two and multiplied by (C) the number of months for which the Seller paid a Standby Purchase Commitment Fee communicate with other Owners with respect to their rights under this Agreement or under the Participation Interests, then the Registrar shall, within three (3) Business Days after the receipt of such Qualified Loanapplication, afford such Applicants access, during normal business hours, to the current list of Owners. (Dl) Notwithstanding anything herein to the Standby Purchase Commitment Fee contrary, the parties hereto acknowledge that the Participation Interests (divided by 121) will not be issued unless the Subordination of Interest Agreement has been executed with respect to the Servicing Rights related to the Participation Interests to be issued; (2) will be acquired from the Servicer in a transaction or chain of transactions not involving any public offering; (3) are uncertificated and ownership thereof is recorded only on the books of the Servicer, as Registrar, in the name of the Certificateholder; and (E4) are not transferable without the amount by which 1 exceeds prior consent of the percentage participation interest purchased by Xxxxxx MacServicer.