EXHIBIT 4.4(c)
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CWHEQ, INC.
Depositor
COUNTRYWIDE HOME LOANS, INC.
Sponsor and Master Servicer
CWHEQ REVOLVING HOME EQUITY LOAN TRUST,
SERIES 200_-_
the Trust
JPMORGAN CHASE BANK, N.A.
Indenture Trustee
________________________________
SALE AND SERVICING AGREEMENT
Dated as of ________, 200_
________________________________
REVOLVING HOME EQUITY LOAN ASSET BACKED NOTES,
SERIES 200_-_
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Table of Contents
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. ............................................................................1
Section 1.02. Other Terms. ............................................................................1
Section 1.03. Rules of Construction. ..................................................................1
Section 1.04. Interest Calculations. ..................................................................3
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; TAX TREATMENT
Section 2.01. Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances
Under Credit Line Agreements...........................................................................3
Section 2.02. Acceptance by Indenture Trustee. ........................................................8
Section 2.03. Representations, Warranties, and Covenants Regarding the Master Servicer. ..............10
Section 2.04. Representations and Warranties of the Sponsor Regarding the Mortgage Loans;
Retransfer of Certain Mortgage Loans..................................................................11
Section 2.05. Covenants of the Depositor. ............................................................14
Section 2.06. Transfers of Mortgage Loans at Election of Transferor. .................................15
Section 2.07. Tax Treatment. .........................................................................16
Section 2.08. Representations and Warranties of the Depositor. .......................................17
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. The Master Servicer. ...................................................................17
Section 3.02. Collection of Certain Mortgage Loan Payments; Establishment of Accounts. ...............21
Section 3.03. Deposits to Payment Account. ...........................................................22
Section 3.04. Maintenance of Hazard Insurance; Property Protection Expenses. .........................23
Section 3.05. Assumption and Modification Agreements. ................................................23
Section 3.06. Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans. .......24
Section 3.07. Indenture Trustee to Cooperate. ........................................................25
Section 3.08. Servicing Compensation; Payment of Certain Expenses by Master Servicer. ................26
Section 3.09. Annual Statement as to Compliance. .....................................................27
Section 3.10. Annual Servicing Report. ...............................................................27
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Section 3.11. Access to Certain Documentation and Information Regarding the Mortgage Loans. ..........28
Section 3.12. Maintenance of Certain Servicing Insurance Policies. ...................................28
Section 3.13. Reports to the Securities and Exchange Commission. .....................................28
Section 3.14. Tax Treatment. .........................................................................29
Section 3.15. Information Required by the Internal Revenue Service Generally and Reports of
Foreclosures and Abandonments of Mortgaged Property.....................................29
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. Servicing Certificate. .................................................................29
Section 4.02. Acknowledgement and Cooperation. .......................................................32
Section 4.03. Optional Advances of the Master Servicer. ..............................................32
Section 4.04. Statements to Noteholders. .............................................................32
ARTICLE V
THE MASTER SERVICER, THE SPONSOR, AND THE DEPOSITOR
Section 5.01. Liability of the Sponsor, the Master Servicer, and the Depositor. ......................33
Section 5.02. Merger or Consolidation of, or Assumption of the Obligations of, the
Master Servicer or the Depositor......................................................................33
Section 5.03. Limitation on Liability of the Master Servicer and Others. .............................33
Section 5.04. Master Servicer Not to Resign. .........................................................34
Section 5.05. Delegation of Duties. ..................................................................35
Section 5.06. Indemnification by the Master Servicer. ................................................35
ARTICLE VI
SERVICING TERMINATION
Section 6.01. Events of Servicing Termination. .......................................................36
Section 6.02. Indenture Trustee to Act; Appointment of Successor. ....................................38
Section 6.03. Notification to Noteholders and the Transferor. ........................................40
ARTICLE VII
TERMINATION
Section 7.01. Termination. ...........................................................................40
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment. .............................................................................41
Section 8.02. Governing Law. .........................................................................41
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Section 8.03. Notices. ...............................................................................42
Section 8.04. Severability of Provisions. ............................................................43
Section 8.05. Assignment. ............................................................................43
Section 8.06. Third-Party Beneficiaries. .............................................................43
Section 8.07. Counterparts; Electronic Delivery.. ....................................................13
Section 8.08. Effect of Headings and Table of Contents. ..............................................43
EXHIBIT A - MORTGAGE LOAN SCHEDULE...................................................................A-1
EXHIBIT B - LETTER OF REPRESENTATIONS................................................................B-1
EXHIBIT C - FORM OF REQUEST FOR RELEASE..............................................................C-1
EXHIBIT D - FORM OF TRANSFER DOCUMENT................................................................D-1
EXHIBIT E - MONTHLY STATEMENT.......................................................................E-1
EXHIBIT F - FORM OF PERFORMANCE CERTIFICATION........................................................F-1
EXHIBIT F-1 FORM OF PERFORMANCE CERTIFICATION (SUBSERVICER).......................................F-1-1
EXHIBIT F-2 FORM OF PERFORMANCE CERTIFICATION (TRUSTEE)...........................................F-2-1
EXHIBIT G - FORM OF SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE STATEMENT.........G-1
EXHIBIT H - LIST OF ITEM 1119 PARTIES................................................................H-1
EXHIBIT I - FORM OF XXXXXXXX-XXXXX CERTIFICATION (REPLACEMENT OF MASTER SERVICER)....................I-1
ANNEX 1 DEFINITIONS........................................................................XXX-1-1
ANNEX 2 ADOPTION ANNEX.....................................................................XXX-2-1
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This SALE AND SERVICING AGREEMENT, dated as of September 30, 2005,
among CWHEQ, INC., as depositor, COUNTRYWIDE HOME LOANS, INC., as sponsor and
master servicer, CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 200_-_, and
JPMORGAN CHASE BANK, N.A., as Indenture Trustee,
WITNESSETH THAT:
The parties agree as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms
are used in this Agreement as defined in Annex 1.
Section 1.02. Other Terms.
Capitalized terms used in this Agreement that are not otherwise
defined have the meanings given to them in the Indenture. Defined terms that
are used only in one section or only in another definition may be omitted from
the list of defined terms in Annex 1. Defined terms used in this Agreement are
sometimes defined after their first use without a reference such as "(as
hereinafter defined)."
Section 1.03. Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless
the context clearly requires otherwise:
(a) Defined terms include, as appropriate, all genders and the plural
as well as the singular.
(b) References to designated articles, sections, subsections,
exhibits, and other subdivisions of this Agreement, such as "Section 6.12
(a)," refer to the designated article, section, subsection, exhibit, or other
subdivision of this Agreement as a whole and to all subdivisions of the
designated article, section, subsection, exhibit, or other subdivision. The
exhibits and other attachments to this Agreement are a part of this Agreement.
The words "herein," "hereof," "hereto," "hereunder," and other words of
similar import refer to this Agreement as a whole and not to any particular
article, section, exhibit, or other subdivision of this Agreement.
(c) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Agreement. References to law are not limited to statutes. References to
statutes include any rules or regulations promulgated under them by a
governmental authority charged
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with the administration of the statute. Any reference to any person includes
references to its successors and assigns.
(d) Any party may execute any of the requirements under this
Agreement either directly or through others, and the right to cause something
to be done rather than doing it directly shall be implicit in every
requirement under this Agreement. Unless a provision is restricted as to time
or limited as to frequency, all provisions under this Agreement are implicitly
available from time to time.
(e) The term "including" and all its variations mean "including but
not limited to." Except when used in conjunction with the word "either," the
word "or" is always used inclusively (for example, the phrase "A or B" means
"A or B or both," not "either A or B but not both").
(f) A reference to "a [thing]" or "any [of a thing]" does not imply
the existence or occurrence of the thing referred to even though not followed
by "if any," and "any [of a thing]" is any and all of it. A reference to the
plural of anything as to which there could be either one or more than one does
not imply the existence of more than one (for instance, the phrase "the
obligors on a note" means "the obligor or obligors on a note"). "Until
[something occurs]" does not imply that it must occur, and will not be
modified by the word "unless." The word "due" and the word "payable" are each
used in the sense that the stated time for payment has passed. The word
"accrued" is used in its accounting sense, i.e., an amount paid is no longer
accrued. In the calculation of amounts of things, differences and sums may
generally result in negative numbers, but when the calculation of the excess
of one thing over another results in zero or a negative number, the
calculation is disregarded and an "excess" does not exist. Portions of things
may be expressed as fractions or percentages interchangeably. The word "shall"
is used in its imperative sense, as for instance meaning a party agrees to
something or something must occur or exist.
(g) All accounting terms used in an accounting context and not
otherwise defined, and accounting terms partly defined in this Agreement, to
the extent not completely defined, shall be construed in accordance with
generally accepted accounting principles in the United States. To the extent
that the definitions of accounting terms in this Agreement are inconsistent
with their meanings under generally accepted accounting principles, the
definitions in this Agreement shall control. Capitalized terms used in this
Agreement without definition that are defined in the Uniform Commercial Code
of the relevant jurisdiction are used in this Agreement as defined in that
Uniform Commercial Code.
(h) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and "beginning"
mean "from and including," the word "after" means "from but excluding," the
words "to" and "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "on or before." The words "preceding," "following," and words of similar
import, mean immediately preceding or following. References to a month or a
year refer to calendar months and calendar years.
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(i) Any reference to the enforceability of any agreement against a
party means that it is enforceable against the party in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, and other
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
Section 1.04. Interest Calculations.
All calculations of interest on the Asset Balance of a Mortgage Loan
under this Agreement are on a daily basis using a 365-day year. All
calculations of interest on the Notes are on the basis of the actual number of
days in an Interest Period and a year of 360 days. The calculation of the
Servicing Fee is on the basis of a 360-day year consisting of twelve 30-day
months. All dollar amounts calculated under this Agreement are rounded to the
nearest cent with one-half of one cent being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; TAX TREATMENT
Section 2.01. Conveyance of Mortgage Loans; Retention of Obligation
to Fund Advances Under Credit Line Agreements.
(a) Initial Transfer. Concurrently with the execution and delivery of
this Agreement, the Depositor hereby transfers to the Trust without recourse
(subject to Sections 2.02 and 2.04) all of its right, title, and interest in
(i) each Initial Mortgage Loan, including its Asset Balance
(including all Additional Balances), the related Mortgage File, all
property that secures the Mortgage Loan, and all collections received
on it after the Cut-off Date (excluding payments due by the Cut-off
Date);
(ii) property that secured an Initial Mortgage Loan that is
acquired by foreclosure or deed in lieu of foreclosure;
(iii) the Depositor's rights under the Purchase Agreement;
(iv) the Depositor's rights under the hazard insurance policies;
(v) all rights under any guaranty executed in connection
with a Mortgage Loan;
(vi) all other assets included or to be included in the
Trust for the benefit of the Noteholders and the Credit Enhancer; and
(vii) all proceeds of the foregoing.
This transfer to the Trust is to the Owner Trustee, on behalf of the Trust,
and each reference in this Agreement to this transfer shall be construed
accordingly. In addition, by the Closing Date, the Depositor shall cause the
Credit Enhancer to deliver the Policy to the Indenture Trustee for the benefit
of the Noteholders.
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(b) Additional Transfers. Conditions Precedent to Subsequent
Additions.
(i) The Depositor may sell to the Trust Additional Home
Equity Loans on any Subsequent Closing Date designated by the
Depositor by the Latest Subsequent Closing Date. The Depositor shall
notify the Owner Trustee, the Indenture Trustee, the Credit Enhancer,
and each Rating Agency of its designation of a Subsequent Closing
Date at least one Business Day in advance. On each Subsequent Closing
Date the Depositor shall deliver a Transfer Document to the Owner
Trustee and the Officer's Certificate referred to in Section
2.01(b)(ii)(I) to the Owner Trustee, the Indenture Trustee, and the
Credit Enhancer, and the Indenture Trustee shall pay, on behalf of
the Trust, to the order of the Depositor, from the Additional Loan
Account, and set aside in an account under its control for the
benefit of the Depositor for later delivery to the Depositor, the
purchase price in an amount equal to the Cut-off Date Asset Balance
specified in the Transfer Document, up to the amount of funds
remaining in the Additional Loan Account. Upon delivery of the
Transfer Document and payment of the purchase price, the Depositor
hereby transfers to the Trust without recourse (subject to Sections
2.02 and 2.04) all of its right, title, and interest in each
Additional Home Equity Loan identified in the Transfer Document,
including its Asset Balance (including all Additional Balances) and
all collections received on it after the relevant Subsequent Cut-off
Date (excluding payments due by the Subsequent Cut-off Date) and all
proceeds of the foregoing. This transfer to the Trust is to the Owner
Trustee, on behalf of the Trust, and each reference in this Agreement
to this transfer shall be construed accordingly.
The Depositor shall also deliver to the Owner Trustee, the
Indenture Trustee, and the Credit Enhancer by the Opinion Delivery
Date an opinion of counsel relating to each Subsequent Closing Date
to the effect that a court in a bankruptcy context addressing the
transfer of the Additional Home Equity Loans would characterize the
transfer as a sale rather than as a secured lending and an opinion of
counsel relating to the perfection of security interest in the
Additional Home Equity Loans. On the day the revised Mortgage Loan
Schedule and that opinion of counsel are delivered, the Indenture
Trustee shall deliver, on behalf of the Trust, to the order of the
Depositor the funds for the purchase price for the Additional Home
Equity Loans set aside on the relevant Subsequent Closing Date, and
any earnings on those funds since the relevant Subsequent Closing
Date.
(ii) The obligation of the Indenture Trustee on behalf of
the Trust to pay the purchase price from the relevant Additional Loan
Account for the benefit of the Depositor and the acceptance by the
Owner Trustee of the transfer of the Additional Home Equity Loans and
the other property and rights relating to them on the related
Subsequent Closing Date are subject to the satisfaction of each of
the following conditions by the Subsequent Closing Date:
(A) the Depositor shall have delivered to the Owner
Trustee a properly completed and executed Transfer Document
and the Custodian shall
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have executed and delivered the Initial Certification
pursuant to Section 2.02(a);
(B) as of the related Subsequent Closing Date,
neither the Sponsor nor the Depositor is insolvent nor shall
either of them be made insolvent by the transfer of the
Additional Home Equity Loans nor is either of them aware of
any pending insolvency;
(C) the addition shall not result in a material
adverse federal tax consequence to the Trust, the
Transferor, or the Noteholders;
(D) the Subsequent Closing Date is not after the
Latest Subsequent Closing Date;
(E) neither the Depositor nor the Trust shall have
been advised in writing by any Rating Agency that the
transfer of the Additional Home Equity Loans would result in
a reduction or withdrawal of the Rating Agency's then
current rating of the Notes (without regard to the Policy);
(F) the Sponsor represents and warrants that on the
Subsequent Closing Date each of the representations and
warranties in Section 2.04(a) by virtue of repetition of
Section 3.02(a) of the Purchase Agreement (excluding clauses
(18), (30), (32), (33), and (34) of Section 3.02(a) of the
Purchase Agreement) are true with respect to the Additional
Home Equity Loans;
(G) the Sponsor represents and warrants that the
addition of the Additional Home Equity Loans will not result
in a significant variance as of the Subsequent Closing Date
from the Mortgage Loan pool characteristics covered by the
representations and warranties in Section 3.02(a)(18), (30),
(32), (33), and (34) of the Purchase Agreement after taking
into account the addition of the Additional Home Equity
Loans;
(H) as of the relevant Subsequent Closing Date, the
Sponsor is not aware of any mechanics' or similar liens or
claims that have been filed for work, labor, or material
affecting the related Mortgaged Property that are, or may
be, liens prior or equal to the lien of the related
mortgage, except liens that are fully insured against by the
title insurance policy referred to in Section 3.02(16) of
the Purchase Agreement; and
(I) the Depositor shall have delivered or caused
the Sponsor to deliver to the Owner Trustee, the Indenture
Trustee, and the Credit Enhancer an Officer's Certificate
confirming the satisfaction of each of these conditions
precedent.
Neither the Owner Trustee nor the Indenture Trustee need
investigate or otherwise verify compliance with these conditions,
except for its receipt of the documents specified above, and except
for the Indenture Trustee's determination whether or not the Initial
Certificate delivered to it pursuant to clause (A) above and the
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Officer's Certificate delivered to it pursuant to clause (I) above
conform to the requirements of this Agreement, and they may rely on
the required Officer's Certificate.
The Credit Enhancer may by its prior written consent and its sole
discretion permit the transfer to the Trust of any Additional Home Equity
Loans regardless of whether they meet the requirements for Additional Home
Equity Loans in this Section 2.01(b).
(c) Additional Balances; Future Fundings. Additional Balances shall
be part of the Asset Balance and are hereby transferred to the Trust on the
Closing Date for the Initial Mortgage Loans and on the relevant Subsequent
Closing Date for the Additional Home Equity Loans pursuant to this Section
2.01, and therefore are part of the Trust property. Neither the Owner Trustee
nor the Trust nor the Indenture Trustee assumes the obligation under any
Credit Line Agreement that provides for the funding of future advances to the
mortgagor under it, and neither the Trust nor the Owner Trustee nor the
Indenture Trustee may fund these future advances.
(d) Delayed Delivery. In connection with the transfer under Section
2.01(a) by the Depositor, the Depositor shall effect delivery of the Mortgage
Loan Schedule to the Trust and the Indenture Trustee by the Closing Date and
delivery of the Initial Mortgage Files to the Trust, and the Trust shall
deliver them to the Indenture Trustee,
(i) no later than the Closing Date, with respect to no less
than 50% of the Initial Mortgage Loans in each Loan Group,
(ii) no later than the twentieth day after the Closing Date,
with respect to no less than 40% of the Initial Mortgage Loans in
each Loan Group in addition to those delivered on the Closing Date,
and
(iii) within thirty days following the Closing Date, with
respect to the remaining Initial Mortgage Loans.
In connection with the transfers by the Depositor under Section 2.01(b), the
Depositor shall effect delivery of a revised Mortgage Loan Schedule reflecting
the addition of the Additional Home Equity Loans to the Indenture Trustee
within 15 days following the relevant Subsequent Closing Date and of the
relevant Initial Mortgage Files to the Custodian,
(A) no later than the relevant Subsequent Closing
Date, with respect to no less than 10% of the relevant
Additional Home Equity Loans, and
(B) within twenty days following the relevant
Subsequent Closing Date, with respect to the remaining
relevant Additional Home Equity Loans.
In lieu of delivery of original documentation, the Depositor may
deliver documents that have been imaged optically on delivery of an opinion of
counsel to the Indenture Trustee that the imaged documents are enforceable to
the same extent as the originals and do not impair the enforceability of the
transfer to the Trust of the Mortgage Loans, if the retention of the imaged
documents in the delivered format will not result in a reduction in the then
current rating of the Notes without regard to the Policy.
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(e) Xxxx Records. The Sponsor hereby confirms to the Owner Trustee
and the Indenture Trustee, that it has caused the portions of the Electronic
Ledgers relating to the Initial Mortgage Loans to be clearly and unambiguously
marked, and has made the appropriate entries in its general accounting
records, to indicate that the Initial Mortgage Loans have been transferred to
the Trust at the direction of the Depositor. The Master Servicer hereby
confirms to the Owner Trustee and the Indenture Trustee that it has clearly
and unambiguously made appropriate entries in its general accounting records
indicating that those Initial Mortgage Loans constitute part of the Trust and
are serviced by it on behalf of the Trust in accordance with this Agreement.
By the relevant Subsequent Closing Date, the Sponsor shall cause the
portions of the Electronic Ledgers relating to the Additional Home Equity
Loans to be clearly and unambiguously marked, and shall make appropriate
entries in its general accounting records, to indicate that those Additional
Home Equity Loans have been transferred to the Trust at the direction of the
Depositor. By the relevant Subsequent Closing Date, the Master Servicer shall
clearly and unambiguously make appropriate entries in its general accounting
records indicating that those Additional Home Equity Loans constitute part of
the Trust and are serviced by it on behalf of the Trust in accordance with
this Agreement.
(f) UCC Filings. The Depositor and the Trust agree (subject to
Section 2.01(h)) to effect any actions and execute any documents necessary to
perfect and protect the Trust's, the Indenture Trustee's, the Noteholders',
and the Credit Enhancer's interests in each Cut-off Date Asset Balance and
Additional Balances and their proceeds, including filing all necessary
Continuation Statements for the UCC1 Financing Statements filed in the State
of Delaware (which shall have been filed by the Closing Date) describing the
Cut-off Date Asset Balances and Additional Balances and naming the Depositor
as debtor and the Trust as secured party or naming the Trust as debtor and the
Indenture Trustee as secured party and any amendments to UCC1 Financing
Statements required to reflect a change in the UCC or in the name or
organizational structure of the Depositor or the Trust or the filing of any
additional UCC1 Financing Statements due to the change in the state of
organization of the Depositor or the Trust (within 30 days of any event
necessitating the filing).
(g) Sponsor Rating Downgrade. If the long term senior unsecured
corporate debt rating of Countrywide Home Loans, Inc. falls below "BBB" by
Standard & Poor's or "Baa2" by Xxxxx'x, then as promptly as practicable but in
any case within 90 days of the event, the Master Servicer shall, at its
expense, either
(x) request that the Indenture Trustee deliver to it the
original Assignment of Mortgage, previously delivered to the
Indenture Trustee pursuant to Section 2.01(d), and then record the
Assignment of Mortgage in favor of the Indenture Trustee (which may
be a blanket assignment if permitted by applicable law) in the
appropriate real property or other records,
(y) deliver to the Indenture Trustee an Opinion of Counsel
addressed to the Indenture Trustee and the Credit Enhancer to the
effect that recording is not required to protect the Indenture
Trustee's interest in the related Mortgage Loan or, in case a court
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should recharacterize the sale of the Mortgage Loans as a financing,
to perfect a first priority Security Interest in favor of the
Indenture Trustee in the related Mortgage Loan, which Opinion of
Counsel also shall be reasonably acceptable to each of the Rating
Agencies (as evidenced in writing) and the Credit Enhancer, or
(z) cause the MERS(R) System to indicate (and provide
evidence to the Indenture Trustee that it has done so) that the
Mortgage Loans have been assigned by the Trust to the Indenture
Trustee in accordance with this Agreement for the benefit of the
Noteholders and the Credit Enhancer by including (or deleting, in the
case of Mortgage Loans that are repurchased in accordance with this
Agreement) in the MERS computer files (a) the appropriate code that
identifies the Indenture Trustee in the field for identifying the
assignee and (b) the appropriate code that has been assigned to
identify the Notes to the MERS(R) System in the field "Pool Field"
identifying the Notes issued in connection with the Mortgage Loans.
(h) Sale Treatment. Notwithstanding the characterization of the Notes
as debt of the Transferor for federal, state, and local income and franchise
tax purposes, the transfer of the Mortgage Loans is a sale by the Sponsor to
the Depositor and by the Depositor to the Trust of all of the Sponsor's and
then all the Depositor's interest in the Mortgage Loans and other property
described above. From the time the Notes are issued until such time as all or
a portion of the Notes are sold to one or more unaffiliated parties, the
Sponsor will report the transfer of the Mortgage Loans and the related
Additional Balances to the Depositor as a transfer of assets in exchange for
beneficial interests in the form of asset-backed securities and servicing
rights. If the transfer were to be characterized as a transfer for security
and not as a sale, however, then the Depositor hereby grants to the Trust a
Security Interest in all of the Depositor's right, title, and interest in the
Mortgage Loans whether existing now or in the future, all monies due or to
become due on the Mortgage Loans, and all their proceeds; and this Agreement
shall constitute a Security Agreement under applicable law.
Section 2.02. Acceptance by Indenture Trustee.
(a) On the Closing Date, the Custodian shall execute and deliver to
the Depositor, the Master Servicer, and the Sponsor (with a copy to the
Issuer, the Indenture Trustee, and the Credit Enhancer) the Initial
Certification pursuant to the Custodial Agreement. If either (i) Initial
Mortgage Loans have been delivered after the Closing Date or (ii) Additional
Home Equity Loans have been delivered after the Subsequent Closing date
pursuant to Section 2.01(d), the Custodian shall execute and deliver to the
Depositor, the Master Servicer, and the Sponsor (with a copy to the Issuer,
the Indenture Trustee, and the Credit Enhancer) a Delay Delivery Certification
pursuant to the Custodial Agreement within the period specified in the
Custodial Agreement. Within 180 days after the Closing Date, Custodian shall
deliver to the Depositor, the Master Servicer, and the Sponsor (with a copy to
the Credit Enhancer) a Final Certification pursuant to the Custodial
Agreement. The Sponsor shall correct any defect noted in the Final
Certification within 90 days of its receipt.
(b) Upon the satisfaction of the requirements of Section 2.07, all
interest of the Trust in a Mortgage Loan shall automatically be retransferred
without recourse, representation, or
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warranty to the Sponsor and the Asset Balance of the Mortgage Loan shall be
deducted from the Loan Group Balance of the related Loan Group, if
(i) the Indenture Trustee does not receive the Mortgage File
for any Mortgage Loan as required by Section 2.01(d),
(ii) the time to correct any defect in the Mortgage Loan
noted on the Final Certification has expired,
(iii) the Trust ever incurs any loss on the Mortgage Loan
because any document in its Mortgage File is defective, or
(iv) an Assignment of Mortgage to the Indenture Trustee has
not been recorded in accordance with Section 2.01(g) and the Mortgage
Loan is not registered on the MERS(R) System.
Subject to the prior satisfaction of the requirements of Section
2.07, the Owner Trustee shall execute any documents of transfer presented by
the Sponsor, without recourse, representation, or warranty, and take any other
actions reasonably requested by the Sponsor to effect the transfer by the
Trust of the Defective Mortgage Loan pursuant to this Section as promptly as
practical.
The sole remedy of the Noteholders, the Transferor, the Owner
Trustee, the Indenture Trustee, and the Credit Enhancer against the Sponsor
for the transfer of a Defective Mortgage Loan to the Trust is the Sponsor's
obligation to accept a transfer of a Defective Mortgage Loan and to convey an
Eligible Substitute Mortgage Loan or to make a deposit of any Transfer Deposit
Amount into the Collection Account in accordance with Section 2.07.
Promptly following the transfer of any Defective Mortgage Loan from
the Trust pursuant to this Section or Section 2.07, the Master Servicer shall
amend the Mortgage Loan Schedule, deliver the amended Mortgage Loan Schedule
to the Indenture Trustee, and make appropriate entries in its general account
records to reflect the transfer. Following the retransfer, the Master Servicer
shall appropriately xxxx its records to indicate that it is no longer
servicing the Mortgage Loan on behalf of the Trust. The Sponsor shall
appropriately xxxx its Electronic Ledger and make appropriate entries in its
general account records to reflect the transfer promptly following the
transfer.
(c) The Sponsor shall deliver to the Indenture Trustee any documents
required to be held by the Indenture Trustee in accordance with Section 2.01
with respect to any Eligible Substitute Mortgage Loans. The Master Servicer
shall determine the Transfer Deposit Amount in any Collection Period during
which the Sponsor substitutes Eligible Substitute Mortgage Loans and the
Sponsor shall deposit that amount in the Collection Account at the time of
substitution. All amounts received on the Eligible Substitute Mortgage Loans
during the Collection Period in which the circumstances giving rise to their
transfer to the Trust occur shall not be a part of the Trust and shall not be
deposited by the Master Servicer in the Collection Account. All amounts
received on a removed Defective Mortgage Loan during the Collection Period in
which the circumstances giving rise to its transfer to the Trust occur shall
be a part of
9
the Trust and shall be deposited by the Master Servicer in the Collection
Account. An Eligible Substitute Mortgage Loan will be subject to the terms of
this Agreement in all respects when transferred to the Trust, and the Sponsor
hereby makes the representations, warranties, and covenants in Section 2.04
with respect to the Eligible Substitute Mortgage Loan as of the date of
substitution.
(d) The Custodian shall retain possession of each Mortgage File on
behalf of the Indenture Trustee in accordance with the Custodial Agreement.
The Master Servicer shall promptly deliver to the Indenture Trustee the
originals of any other documents constituting the Mortgage File coming into
its possession on their execution or receipt. Any documents to be delivered to
the Indenture Trustee under this Agreement may be delivered to the Custodian
acting on behalf of the Indenture Trustee.
Section 2.03. Representations, Warranties, and Covenants Regarding
the Master Servicer.
The Master Servicer represents and warrants to the Indenture Trustee
and the Credit Enhancer that as of the Closing Date:
(i) The Master Servicer is a New York corporation, validly
existing and in good standing under the laws of the State of New
York, and has the corporate power to own its assets and to transact
the business in which it is currently engaged. The Master Servicer is
duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of its business
or any properties owned or leased by it requires such qualification
and in which the failure so to qualify would have a material adverse
effect on the business, properties, assets, or condition (financial
or other) of the Master Servicer.
(ii) The Master Servicer has the power and authority to
make, execute, deliver, and perform this Agreement and all of the
transactions contemplated under this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery, and
performance of this Agreement. When executed and delivered, this
Agreement will constitute a valid and legally binding obligation of
the Master Servicer enforceable in accordance with its terms.
(iii) The Master Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau, or agency in connection with the
execution, delivery, performance, validity, or enforceability of this
Agreement, except for consents, licenses, approvals or
authorizations, or registrations or declarations that have been
obtained or filed, as the case may be, before the Closing Date.
(iv) The execution, delivery, and performance of this
Agreement by the Master Servicer will not violate any existing law or
regulation or any order or decree of any court applicable to the
Master Servicer or the certificate of incorporation or bylaws of the
Master Servicer, or constitute a material breach of any mortgage,
indenture,
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contract, or other agreement to which the Master Servicer is a party
or by which the Master Servicer may be bound.
(v) No litigation or administrative proceeding of or before any court,
tribunal, or governmental body is currently pending, or to the
knowledge of the Master Servicer threatened, against the Master
Servicer or any of its properties or with respect to this Agreement,
the Indenture, or the Notes that in the opinion of the Master
Servicer has a reasonable likelihood of resulting in a material
adverse effect on the transactions contemplated by the Transaction
Documents.
(vi) If any Mortgage Loan has been registered on the MERS(R) System, the
Master Servicer is a member of MERS in good standing.
The Master Servicer covenants that it will fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on its credit files for the related Mortgagor for each Mortgage
Loan to Equifax, Experian, and Trans Union Credit Information Company on a
monthly basis.
The representations, warranties, and covenants in this Section shall
survive the transfer of the Mortgage Loans to the Trust. Upon discovery of a
breach of any representation, warranty, or covenant that materially and
adversely affects the interests of the Transferor, the Noteholders, or the
Credit Enhancer, the person discovering the breach shall give prompt notice to
the other parties and to the Credit Enhancer. The Master Servicer shall cure
in all material respects any breach of any representation, warranty, or
covenant within 90 days of becoming aware of it or, with the consent of a
Responsible Officer of the Indenture Trustee, any longer period specified in
the consent.
Section 2.04. Representations and Warranties Regarding the Mortgage
Loans; Retransfer of Certain Mortgage Loans.
(a) The Sponsor by this reference repeats and incorporates in this
Agreement each representation and warranty made by it (as a Seller) in Section
3.02(a) of the Purchase Agreement (other than Section 3.02(a)(1) and (2)) to
the Indenture Trustee, the Trust, and the Credit Enhancer and, in addition,
represents and warrants to the Indenture Trustee, the Trust, and the Credit
Enhancer that as of the Cut-off Date, unless specifically stated otherwise:
(i) As of the Closing Date with respect to the Initial
Mortgage Loans, the relevant Subsequent Closing Date with respect to
any Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, this
Agreement constitutes a valid and legally binding obligation of the
Sponsor, enforceable against the Sponsor in accordance with its
terms.
(ii) As of the Closing Date with respect to the Initial
Mortgage Loans, the relevant Subsequent Closing Date with respect to
any Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, either
(A) the Purchase Agreement constitutes a valid
transfer to the Depositor of all right, title, and interest
of the Sponsor in the Mortgage Loans,
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all collections received from the Mortgage Loans after the
Cut-off Date (excluding payments due by the Cut-off Date),
all proceeds of the Mortgage Loans, and any funds from time
to time deposited in the Collection Account and in the
Payment Account and all other property specified in Section
2.01(a) or (b), as applicable, and this Agreement
constitutes a valid transfer to the Trust of the foregoing
property such that, on execution of this Agreement, it is
owned by the Trust free of all liens and other encumbrances,
and is part of the corpus of the Trust conveyed to the Trust
by the Sponsor, and upon payment for the Additional
Balances, the Purchase Agreement and this Agreement will
constitute a valid transfer to the Trust of all right,
title, and interest of the Sponsor in the Additional
Balances, all monies due or to become due on them, all
proceeds of the Additional Balances, and all other property
specified in Section 2.01(a) relating to the Additional
Balances free of all liens and other encumbrances, or
(B) the Purchase Agreement or this Agreement, as
appropriate, constitutes a Grant of a Security Interest to
the Owner Trustee on behalf of the Trust in the property
described in clause (A) above and the Indenture constitutes
a Grant of a Security Interest to the Indenture Trustee in
the Collateral. The Indenture Trustee has a first priority
perfected Security Interest in the Collateral, subject to
the effect of Section 9-315 of the UCC with respect to
collections on the Mortgage Loans that are deposited in the
Collection Account in accordance with the next to last
paragraph of Section 3.02(b), and if this Agreement
constitutes the Grant of a Security Interest in the property
described in clause (A) above to the Trust, the Trust has a
first priority perfected Security Interest in the property,
subject to the same limitations. This Security Interest is
enforceable as such against creditors of and purchasers from
the Trust, the Depositor, and the Sponsor.
(b) If the substance of any representation and warranty in this
Section made to the best of the Sponsor's knowledge or as to which the Sponsor
has no knowledge is inaccurate and the inaccuracy materially and adversely
affects the interest of the Trust, the Noteholders or the Credit Enhancer in
the related Mortgage Loan then, notwithstanding that the Sponsor did not know
the substance of the representation and warranty was inaccurate at the time
the representation or warranty was made, the inaccuracy shall be a breach of
the applicable representation or warranty.
(c) The representations and warranties in this Section shall survive
delivery of the respective Mortgage Files to the Custodian pursuant to the
Custodial Agreement and the termination of the rights and obligations of the
Master Servicer pursuant to Section 5.04 or 6.02. If the Sponsor, the
Depositor, the Master Servicer, the Credit Enhancer, or a Responsible Officer
of the Indenture Trustee discovers a breach of any of the foregoing
representations and warranties, without regard to any limitation concerning
the knowledge of the Sponsor, that materially and adversely affects the
interests of the Trust, the Indenture Trustee under the
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Indenture, the Noteholders, or the Credit Enhancer in the Mortgage Loan, the
party discovering the breach shall give prompt notice to the other parties and
the Credit Enhancer.
(d) The Sponsor shall use all reasonable efforts to cure in all
material respects any breach of any of the foregoing representations and
warranties (other than a breach of the representation and warranty in Section
2.04 by virtue of the repetition of Section 3.02(a)(5) of the Purchase
Agreement) within 90 days of becoming aware of it or, not later than the
Business Day before the Payment Date in the month following the Collection
Period in which the cure period expired (or any later date that the Indenture
Trustee and the Credit Enhancer consent to), all interest of the Trust in the
Defective Mortgage Loan shall, subject to the satisfaction of the requirements
of Section 2.07, automatically be retransferred without recourse,
representation, or warranty to the Sponsor and the Asset Balance of the
Mortgage Loan shall be deducted from the Loan Balance.
The cure for any breach of a representation and warranty relating to
the characteristics of the Initial Mortgage Loans in the related Loan Group in
the aggregate shall be a repurchase of or substitution for only the Initial
Mortgage Loans necessary to cause the characteristics to comply with the
related representation and warranty.
Subject to the prior satisfaction of the requirements of Section
2.07, the Owner Trustee shall execute any documents of transfer presented by
the Sponsor, without recourse, representation, or warranty, and take any other
actions reasonably requested by the Sponsor to effect the transfer by the
Trust of the Defective Mortgage Loan pursuant to this Section as promptly as
practical.
Promptly following the transfer of any Defective Mortgage Loan from
the Trust pursuant to this Section, the Master Servicer shall amend the
Mortgage Loan Schedule, deliver the amended Mortgage Loan Schedule to the
Indenture Trustee, and make appropriate entries in its general account records
to reflect the transfer. Following the retransfer, the Master Servicer shall
appropriately xxxx its records to indicate that it is no longer servicing the
Mortgage Loan on behalf of the Trust. The Sponsor shall appropriately xxxx its
Electronic Ledger and make appropriate entries in its general account records
to reflect the transfer promptly following the transfer.
(e) The sole remedy of the Noteholders, the Indenture Trustee on
behalf of Noteholders, the Owner Trustee, and the Credit Enhancer against the
Sponsor for the breach of a representation or warranty (other than the
representation and warranty in Section 2.04(a) by virtue of the repetition of
Section 3.02(a)(5) of the Purchase Agreement) is the Sponsor's obligation to
accept a transfer of a Mortgage Loan as to which a breach has occurred and is
continuing and to make any required deposit in the Collection Account or to
substitute an Eligible Substitute Mortgage Loan.
(f) If the representation and warranty in Section 2.04(a) by virtue
of the repetition of Section 3.02(a)(5) of the Purchase Agreement is breached,
the transfer of the affected Mortgage Loans to the Trust shall be void and the
Sponsor shall pay to the Trust the sum of (i) the amount of the related Asset
Balances, plus accrued interest on each Asset Balance at the applicable
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Loan Rate to the date of payment and (ii) the amount of any loss or expense
incurred by the Transferor, the Noteholders, the Trust, or the Credit Enhancer
with respect to the affected Mortgage Loans. The Indenture Trustee may enforce
the Sponsor's obligations under this Section in its own right or as the owner
of the Trust's right to seek enforcement as the assignee of the Trust's rights
under this Agreement pursuant to the Indenture.
(g) A breach of any one of the representations in Sections
3.02(a)(58) to (65) of the Purchase Agreement will be considered to materially
adversely affect the interests of the Noteholders.
(h) The Sponsor shall defend and indemnify the Indenture Trustee, the
Owner Trustee, the Credit Enhancer, and the Noteholders against all reasonable
costs and expenses, and all losses, damages, claims, and liabilities,
including reasonable fees and expenses of counsel and the amount of any
settlement entered into with the consent of the Sponsor (this consent not to
be unreasonably withheld), that may be asserted against or incurred by any of
them as a result of any third-party action arising out of any breach of a
representation and warranty.
Section 2.05. Covenants of the Depositor.
The Depositor covenants that:
(a) Security Interests. Except for the transfer under this Agreement,
the Depositor will not transfer any Mortgage Loan to any other person, or
create or suffer to exist any Lien on any Mortgage Loan or any interest in
one, whether existing now or in the future; the Depositor will notify the
Indenture Trustee of the existence of any Lien on any Mortgage Loan
immediately on its discovery; and the Depositor will defend the right, title,
and interest of the Trust in the Mortgage Loans, whether existing now or in
the future, against all claims of third parties claiming through the
Depositor. Nothing in this Section shall prohibit the Depositor from suffering
to exist on any Mortgage Loan any Liens for municipal or other local taxes and
other governmental charges if the taxes or governmental charges are not due at
the time or if the Depositor is contesting their validity in good faith by
appropriate proceedings and has set aside on its books adequate reserves with
respect to them.
(b) Negative Pledge. The Depositor shall not transfer or grant a
Security Interest in the Transferor Certificates except in accordance with
Section 3.10 of the Trust Agreement.
(c) Additional Indebtedness. So long as the Notes are outstanding the
Depositor will not incur any debt other than debt that (i) is non-recourse to
the assets of the Depositor other than the mortgage loans specifically pledged
as security for the debt, (ii) is subordinated in right of payment to the
rights of the Noteholders, or (iii) is assigned a rating by each of the Rating
Agencies that is the same as the then current rating of the Notes.
(d) Downgrading. The Depositor will not engage in any activity that
would result in a downgrading of the Notes without regard to the Policy.
(e) Amendment to Certificate of Incorporation. The Depositor will not
amend its Certificate of Incorporation or state of incorporation without prior
notice to the Rating Agencies, the Indenture Trustee, and the Credit Enhancer.
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Section 2.06. Transfers of Mortgage Loans at Election of Transferor.
Subject to the conditions below, the Transferor may require the
transfer of Mortgage Loans in a Loan Group from the Trust to the Transferor as
of the close of business on a Payment Date (the "Transfer Date"). In
connection with any transfer, the related Allocated Transferor Interest shall
be reduced by the aggregate Asset Balances as of their Transfer Date of the
Mortgage Loans transferred. On the fifth Business Day (the "Transfer Notice
Date") before the Transfer Date designated in the notice, the Transferor shall
give the Owner Trustee, the Indenture Trustee, the Master Servicer, and the
Credit Enhancer a notice of the proposed transfer that contains a list of the
Mortgage Loans to be transferred. These transfers of Mortgage Loans shall be
permitted if the following conditions are satisfied:
(i) No Rapid Amortization Event has occurred. (ii) On the
Transfer Date
(A) the Allocated Transferor Interest with respect
to the related Loan Group (after giving effect to the
removal of the Mortgage Loans proposed to be transferred)
exceeds
(B) the related Required Transferor Subordinated
Amount.
(iii) The transfer of any Mortgage Loans from either Loan
Group on any Transfer Date during the Managed Amortization Period
shall not, in the reasonable belief of the Transferor, cause a Rapid
Amortization Event to occur or an event that with notice or lapse of
time or both would constitute a Rapid Amortization Event.
(iv) By the Transfer Date, the Transferor shall have
delivered to the Indenture Trustee a revised Mortgage Loan Schedule,
reflecting the proposed transfer and the Transfer Date, and the
Master Servicer shall have marked the Electronic Ledger to show that
the Mortgage Loans transferred to the Transferor are no longer owned
by the Trust.
(v) The Transferor shall represent and warrant that the
Mortgage Loans to be removed from the Trust were selected randomly.
(vi) In connection with each transfer of Mortgage Loans
pursuant to this Section, each Rating Agency and the Credit Enhancer
shall have received by the related Transfer Notice Date notice of the
proposed transfer of Mortgage Loans and, before the Transfer Date,
each Rating Agency shall have notified in writing the Transferor, the
Indenture Trustee, and the Credit Enhancer that the transfer of
Mortgage Loans would not result in a reduction or withdrawal of its
then current rating of the Notes without regard to the Policy.
(vii) The Transferor shall have delivered to the Owner
Trustee, the Indenture Trustee, and the Credit Enhancer an Officer's
Certificate certifying that the items in subparagraphs (i) through
(vi), inclusive, have been performed or are true, as the case may be.
The Owner Trustee and the Indenture Trustee may conclusively rely on
the
15
Officer's Certificate, shall have no duty to make inquiries with
regard to the matters in it, and shall incur no liability in so
relying.
Upon receiving the requisite information from the Transferor, the
Master Servicer shall perform in a timely manner those acts required of it, as
specified above. Upon satisfaction of the above conditions, on the Transfer
Date the Indenture Trustee shall effect delivery to the Transferor the
Mortgage File for each Mortgage Loan being so transferred, and the Indenture
Trustee shall execute and deliver to the Transferor any other documents
prepared by the Transferor reasonably necessary to transfer the Mortgage Loans
to the Transferor. This transfer of the Trust's interest in Mortgage Loans
shall be without recourse, representation, or warranty by the Indenture
Trustee or the Trust to the Transferor.
Section 2.07. Retransfers and Transfer Deficiencies.
(a) The Indenture Trustee shall determine if reducing the relevant
Loan Group Balance by the Asset Balance of any retransferred Mortgage Loan
pursuant to Section 2.02(b) or 2.04(d) would cause a Transfer Deficiency for
the related Loan Group. If so, the Indenture Trustee shall notify the Sponsor
of the deficiency, and the Sponsor shall transfer to the Trust within five
Business Days Eligible Substitute Mortgage Loans or deposit into the
Collection Account an amount in immediately available funds equal to the
amount of the Transfer Deficiency reduced by the Asset Balance of any such
Eligible Substitute Mortgage Loans transferred to the Trust (the "Transfer
Deposit Amount").
(b) The Sponsor shall deliver to the Indenture Trustee any documents
required to be held by the Indenture Trustee in accordance with Section 2.01
with respect to any Eligible Substitute Mortgage Loans.
(c) All amounts received on Eligible Substitute Mortgage Loans during
the Collection Period in which the circumstances giving rise to their transfer
to the Trust occur shall not be a part of the Trust and shall not be deposited
by the Master Servicer in the Collection Account.
All amounts received on a removed Defective Mortgage Loan during the
Collection Period in which the circumstances giving rise to its transfer to
the Trust occur shall be a part of the Trust and shall be deposited by the
Master Servicer in the Collection Account.
(d) An Eligible Substitute Mortgage Loan will be subject to the terms
of this Agreement in all respects when transferred to the Trust, and the
Sponsor hereby makes the representations, warranties, and covenants in Section
2.04 with respect to the Eligible Substitute Mortgage Loan as of the date of
its transfer to the Trust.
(e) Promptly following the transfer of any Eligible Substitute
Mortgage Loan to the Trust pursuant to this Section, the Master Servicer shall
amend the Mortgage Loan Schedule, deliver the amended Mortgage Loan Schedule
to the Indenture Trustee, and make appropriate entries in its general account
records to reflect the transfer. The Sponsor shall appropriately xxxx its
Electronic Ledger and make appropriate entries in its general account records
to reflect the transfer promptly following the transfer.
16
Section 2.08. Tax Treatment.
The Depositor and the Transferor intend that the Notes will be
indebtedness of the Transferor for federal, state, and local income and
franchise tax purposes and for purposes of any other tax imposed on or
measured by income. The Transferor and the Depositor agree to treat the Notes
for purposes of federal, state, and local income or franchise taxes and any
other tax imposed on or measured by income, as indebtedness of the Transferor
secured by the assets of the Trust and to report the transactions contemplated
by this Agreement on all applicable tax returns in a manner consistent with
this treatment. The Administrator pursuant to the Administration Agreement
will prepare and file all tax reports required under this Agreement on behalf
of the Trust. Section 2.09. Representations and Warranties of the Depositor.
The Depositor represents and warrants to the Indenture Trustee on
behalf of the Noteholders and the Credit Enhancer as follows:
(i) This Agreement constitutes a valid and legally binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms.
(ii) Immediately before the sale and assignment by the
Depositor to the Trust of each Mortgage Loan, the Depositor was the
sole beneficial owner of each Mortgage Loan (insofar as the title was
conveyed to it by the Sponsor) subject to no prior lien, claim,
participation interest, mortgage, Security Interest, pledge, charge,
or other encumbrance or other interest of any nature.
(iii) As of the Closing Date with respect to the Initial
Mortgage Loans, the relevant Subsequent Closing Date with respect to
any Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, the
Depositor has transferred all right, title, and interest in the
Eligible Substitute Mortgage Loan to the Trust.
(iv) The Depositor has not transferred the Mortgage Loans to
the Trust with any intent to hinder, delay, or defraud any of its
creditors.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. The Master Servicer.
The Master Servicer shall service and administer the Mortgage Loans
in a manner consistent with the terms of this Agreement and with general
industry practice and shall have full power and authority, acting alone or
through a subservicer, (i) to execute and deliver, on behalf of the
Noteholders, the Trust, and the Indenture 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 (but only in the manner provided in this Agreement), (iii) to
collect any Insurance Proceeds and other Liquidation Proceeds, and (iv)
17
to effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing any Mortgage Loan. The Master Servicer shall
remain responsible to the parties to this Agreement and the Credit Enhancer
for its obligations under this Agreement. Any amounts received by any
subservicer on a Mortgage Loan shall be considered to have been received by
the Master Servicer whether or not actually received by it. Without limiting
the generality of the foregoing, the Master Servicer may execute and deliver,
on behalf of itself, the Noteholders, and the Indenture Trustee, or any of
them, any instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to
the Mortgage Loans and with respect to the Mortgaged Properties, in each case
to the extent not inconsistent with this Agreement.
At the request of a Servicing Officer, the Indenture Trustee shall
furnish the Master Servicer with any powers of attorney and other documents
appropriate to enable the Master Servicer to carry out its servicing and
administrative duties under this Agreement. The Master Servicer in this
capacity may also consent to the placing of a lien senior to that of any
mortgage on the related Mortgaged Property, if
(i) the new senior lien secures a mortgage loan that
refinances an existing first mortgage loan and
(ii) either
(a) the Loan-to-Value Ratio of the new mortgage
loan (without taking into account any closing costs that may
be financed by the new mortgage loan) is equal to or less
than the Loan-to-Value Ratio of the first mortgage loan to
be replaced (for purposes of calculating the Loan-to-Value
Ratio, the Valuation of the Mortgaged Property will be
measured by the lesser of (A) the Valuation of the Mortgaged
Property as of the Cut-off Date and (B) the Valuation of the
Mortgaged Property as of the date of the refinancing
referenced in clause (i)) or
(b) the Combined Loan-to-Value Ratio of the new
mortgage loan (without taking into account any closing costs
that may be financed by the new mortgage loan) and the
existing Mortgage Loan is equal to less than 70% (for
purposes of calculating the Combined Loan-to-Value Ratio,
the Valuation of the Mortgaged Property will be measured as
the lesser of (A) the Valuation of the Mortgage Loan as of
the Cut-off Date and (B) the Valuation of the Mortgage Loan
as of the date of the refinancing referenced in clause (i)).
The aggregate Asset Balance of all the Mortgage Loans with respect to which
the senior lien may be so modified may not exceed 50% of the Original Note
Principal Balance.
The Master Servicer may also, without approval from the Rating
Agencies or the Credit Enhancer, increase the Credit Limits on Mortgage Loans
if
(i) new appraisals are obtained and the weighted average
Combined Loan-to-Value Ratios of the Mortgage Loans after giving
effect to the increase are less than or equal to the weighted average
Combined Loan-to-Value Ratios of the Mortgage Loans as of the Cut-off
Date and
18
(ii) the increases are consistent with the Master Servicer's
underwriting policies.
In addition, the Master Servicer may increase the Credit Limits on Mortgage
Loans having aggregate Asset Balances of up to an additional 5.00% of the
Original Note Principal Balance, if
(w) the increase does not cause the Combined Loan-to-Value
Ratio of the Mortgage Loans in the related Loan Group to exceed 100%,
(x) the increase in the Credit Limit of a Mortgage Loan does
not cause the Combined Loan-to-Value Ratio of the Mortgage Loan to
exceed 100%,
(y) the increase in the Credit Limit of a Mortgage Loan does
not cause the Combined Loan-to-Value Ratio of the Mortgage Loan to
increase by more than 25% (for example, a Combined Loan-to-Value
Ratio of 50% can be increased to 75%, a Combined Loan-to-Value Ratio
of 60% can be increased to 85%, and so forth), and
(z) the increase is consistent with the Master Servicer's
underwriting policies.
Furthermore, the Sponsor, without prior approval from the Rating
Agencies or the Credit Enhancer, may solicit mortgagors for a reduction in
Loan Rates. The Loan Rates of Mortgage Loans in a Loan Group having Asset
Balances at the time of the proposed modification that aggregate over time not
more than 5.0% of the related Original Note Principal Balance may be subject
to reduction. If a mortgagor notifies the Sponsor or the Master Servicer that
it wants a reduction in Loan Rate, the Sponsor shall purchase the Mortgage
Loan from the Trust as described below. Effective immediately on the same
Business Day on which the Sponsor delivers the Purchase Price for the relevant
Mortgage Loan to the Master Servicer, all interest of the Trust in the
relevant Mortgage Loan shall automatically be transferred and assigned to the
Sponsor and all benefits and burdens of ownership of the relevant Mortgage
Loan, including the right to accrued interest on it from the date of purchase
and the risk of default on the Mortgage Loan, shall pass to the Sponsor.
The Master Servicer shall promptly deliver to the Indenture Trustee a
certification signed by a Servicing Officer to the effect that all of the
requirements for a purchase of a Mortgage Loan in connection with a request by
a mortgagor for a reduction in Loan Rate have been satisfied with respect to
the relevant Mortgage Loan. The Sponsor shall deliver the Purchase Price for
the relevant Mortgage Loan to the Master Servicer promptly after a mortgagor
notifies the Sponsor or the Master Servicer that it wants a reduction in Loan
Rate, and the Master Servicer shall deposit the Purchase Price for the
modified Mortgage Loan in the Collection Account pursuant to Section 3.02
within one Business Day after its receipt of the Purchase Price for the
modified Mortgage Loan. Upon receipt by the Indenture Trustee of written
notification of the deposit signed by a Servicing Officer, the Indenture
Trustee shall release to the Sponsor the related Mortgage File and shall
execute and deliver any instruments of transfer or assignment delivered to it
for execution and reasonably acceptable to it, in each case without recourse,
representation, or warranty, necessary to release the Mortgage Loan from the
lien of the Indenture and vest in the Sponsor the Mortgage Loan previously
transferred and
19
assigned pursuant to this provision. The certification and written
notification of the deposit each from a Servicing Officer may be delivered to
the Indenture Trustee electronically, and to the extent the transmission
originates on its face from a Servicing Officer, need not be manually signed.
In addition, the Master Servicer may agree to changes in the terms of
a Mortgage Loan at the request of the mortgagor if the changes (i) do not
materially and adversely affect the interests of Noteholders, the Transferor,
or the Credit Enhancer, and (ii) are consistent with prudent and customary
business practice as evidenced by a certificate signed by a Servicing Officer
delivered to the Indenture Trustee and the Credit Enhancer.
In addition, the Master Servicer may solicit mortgagors to change any
other terms of the related Mortgage Loans if the changes (i) do not materially
and adversely affect the interests of the Noteholders, the Transferor, or the
Credit Enhancer and (ii) are consistent with prudent and customary business
practice as evidenced by a certificate signed by a Servicing Officer delivered
to the Indenture Trustee and the Credit Enhancer. Nothing in this Agreement
shall limit the right of the Master Servicer to solicit mortgagors with
respect to new loans (including mortgage loans) that are not Mortgage Loans.
The Master Servicer may register any Mortgage Loan on the MERS(R)
System, or cause the removal from registration of any Mortgage Loan on the
MERS(R) System, and execute and deliver, on behalf of the Owner Trustee, any
instruments of assignment and other comparable instruments with respect to the
assignment or re-recording of a mortgage in the name of MERS, solely as
nominee for the Owner Trustee and its successors and assigns.
For so long as any Mortgage Loan is registered on the MERS(R) System,
the Master Servicer shall maintain in good standing its membership in MERS and
shall comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS. If any Mortgage Loans are registered on the MERS(R) System, the Master
Servicer may cause MERS to execute and deliver an assignment of mortgage in
recordable form to transfer any of the Mortgage Loans registered on the
MERS(R) System from MERS to the Owner Trustee. The Master Servicer shall
promptly notify MERS of any transfer of beneficial ownership or release of any
Security Interest in any MOM Loan.
The relationship of the Master Servicer to the Trust and the
Indenture Trustee under this Agreement is intended by the parties to be that
of an independent contractor and not that of a joint venturer, partner, or
agent of the Trust or the Indenture Trustee.
(b) If the rights and obligations of the Master Servicer are terminated under
this Agreement, any successor to the Master Servicer in its sole discretion
may terminate the existing subservicer arrangements with any subservicer or
assume the terminated Master Servicer's rights under those subservicing
arrangements to the extent permitted by applicable law and the subservicing
agreements.
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Section 3.02. Collection of Certain Mortgage Loan Payments;
Establishment of Accounts.
(a) The Master Servicer shall make reasonable efforts to collect all
payments called for under the Mortgage Loans, and shall follow the collection
procedures it follows for mortgage loans in its servicing portfolio comparable
to the Mortgage Loans, to the extent consistent with this Agreement.
Consistent with the foregoing, and without limiting the generality of the
foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any assumption fees or other fees that may be collected in
the ordinary course of servicing the Mortgage Loans and (ii) arrange with a
mortgagor a schedule for the payment of interest due and unpaid if the
arrangement is consistent with the Master Servicer's policies with respect to
the mortgage loans it owns or services. Notwithstanding any arrangement, the
Mortgage Loans will be included in the information regarding delinquent
Mortgage Loans in the Servicing Certificate and monthly statement to
Noteholders pursuant to Section 7.04 of the Indenture.
(b) The Master Servicer shall establish and maintain a trust account
(the "Collection Account") with the title specified in the Adoption Annex. The
Collection Account shall be an Eligible Account and will initially be
established by the Master Servicer at Countrywide Bank, N.A., which is an
affiliate of the Master Servicer. The Master Servicer or the Sponsor, as the
case may be, shall deposit or cause to be deposited in the Collection Account
within two Business Days following its receipt the following payments and
collections received or made by it (without duplication):
(1) all collections on the Mortgage Loans;
(2) the amounts deposited to the Collection Account pursuant
to Section 4.03;
(3) Net Liquidation Proceeds net of any related Foreclosure
Profit;
(4) Insurance Proceeds; and
(5) any amounts required to be deposited pursuant to Section
7.01.
No other amounts are to be deposited to the Collection Account,
including amounts representing Foreclosure Profits, fees (including annual
fees) or late charge penalties payable by mortgagors, or amounts received by
the Master Servicer for the accounts of mortgagors for application towards the
payment of taxes, insurance premiums, assessments, excess pay off amounts, and
similar items. The Master Servicer shall remit all Foreclosure Profits to the
Sponsor. The Master Servicer may retain, from payments of interest on the
Mortgage Loans in each Loan Group in each Collection Period, the related
Servicing Fee for the Collection Period and any unreimbursed optional advance
with respect to the related Loan Group made by the Master Servicer pursuant to
Section 4.03.
The Master Servicer may make a net deposit in the Collection Account
of the amounts required by this Section.
On the Business Day before each Payment Date to the extent on deposit
in the Collection Account, the Master Servicer shall withdraw from the
Collection Account and remit to the Indenture Trustee, the amount to be
applied on that Payment Date by the Indenture
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Trustee pursuant to Section 8.03 of the Indenture with respect to both Loan
Groups, and the Indenture Trustee will deposit that amount in the Payment
Account pursuant to the Indenture.
The Indenture Trustee shall hold amounts deposited in the Payment
Account as trustee for the Noteholders, the Transferor, and the Credit
Enhancer. In addition, the Master Servicer shall notify the Indenture Trustee
and the Credit Enhancer on each Determination Date of the amount of
collections in the Collection Account to be transferred to the Payment Account
and their allocation to Interest Collections and Principal Collections for the
Mortgage Loans in each Loan Group for the related Payment Date. Following this
notification, the Master Servicer may withdraw from the Collection Account and
retain any amounts that constitute income realized from the investment of the
collections. The Master Servicer will be entitled to receive, as additional
servicing compensation, income earned on the collections in the Payment
Account.
Amounts on deposit in the Collection Account will be invested in
Eligible Investments maturing no later than the day before the next Payment
Date at the direction of the Master Servicer. All income realized from any
investment in Eligible Investments of funds in the Collection Account shall be
the property of the Master Servicer and may be withdrawn from time to time
from the Collection Account. Any losses incurred on these investments that
reduce their principal amount shall be deposited in the Collection Account by
the Master Servicer out of its own funds immediately as realized.
(c) Upon its receipt of the Officer's Certificate specified in
Section 2.01(b)(ii)(I) confirming satisfaction of the conditions precedent to
subsequent additions in Section 2.01(c) on a Subsequent Closing Date
designated by the Depositor, the Indenture Trustee shall withdraw from the
Additional Loan Account and set aside for the benefit of the Depositor for
later delivery pursuant to Section 3.02(d) an amount equal to the Cut-off Date
Asset Balance in the Transfer Document to purchase the Additional Home Equity
Loans covered by the Transfer Document.
(d) On the date on which the revised Mortgage Loan Schedule
reflecting the addition of the Additional Home Equity Loans covered by a
Transfer Document is delivered to the Indenture Trustee and the Credit
Enhancer along with an opinion of counsel to the effect that a court in a
bankruptcy context addressing the transfer of the Additional Home Equity Loans
would characterize the transfer as a sale rather than as a secured lending,
the Indenture Trustee shall deliver to the order of the Depositor an amount in
cash equal to the actual Cut-off Date Asset Balance of the relevant Additional
Home Equity Loans, and to the Master Servicer any earnings on those funds
since the relevant Subsequent Closing Date. If after that payment any funds
remain from the original set aside with respect to the Transfer Document
pursuant to Section 2.01(b), then they shall be returned to the Additional
Loan Account. If on the Latest Subsequent Closing Date any funds remain in the
Indenture Trustee's possession from any set aside under Section 3.01(b), then
they shall be returned to the Additional Loan Account.
Section 3.03. Deposits to Payment Account.
The Master Servicer shall
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(i) on the Business Day before each of the first three
Payment Dates, deposit in the Payment Account any shortfall in the
amount required to pay the Note Interest on those Payment Dates for
each Class of Notes resulting solely from the failure of any Mortgage
Loans to be fully indexed and
(ii) on the Business Day before the first Payment Date,
deposit in the Payment Account
(A) an amount for each Loan Group equal to the
excess of the aggregate amount payable pursuant to Sections
8.03(a)(i) and (ii) of the Indenture for that Loan Group on
the first Payment Date over what the aggregate Investor
Interest Collections for that Loan Group would be if the
Minimum Monthly Payments on the related Mortgage Loans due
during the first Collection Period were made on each
Mortgage Loan and
(B) for each Loan Group any amounts representing
payments on, and any collections in respect of, the Mortgage
Loans in each Loan Group received after the Cut-off Date and
before the Closing Date (exclusive of payments of accrued
interest due by the Cut-off Date).
Section 3.04. Maintenance of Hazard Insurance; Property Protection
Expenses.
The Master Servicer shall cause to be maintained for each Mortgage
Loan hazard insurance naming the Master Servicer or the related subservicer as
loss payee under it providing extended coverage in an amount that is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing the Mortgage Loan from time to time or (ii) the combined principal
balance owing on the Mortgage Loan and any mortgage loan senior to the
Mortgage Loan from time to time. The Master Servicer shall also maintain on
property acquired through foreclosure, or by deed in lieu of foreclosure,
hazard insurance with extended coverage in an amount which is at least equal
to the lesser of (i) the maximum insurable value from time to time of the
improvements that are a part of the property or (ii) the combined principal
balance owing on the Mortgage Loan and any mortgage loan senior to the
Mortgage Loan at the time of the foreclosure or deed in lieu of foreclosure
plus accrued interest and the good-faith estimate of the Master Servicer of
related Liquidation Expenses to be incurred.
Amounts collected by the Master Servicer under these policies shall
be deposited in the Collection Account to the extent called for by Section
3.02. The hazard insurance to be maintained for the related Mortgage Loan
shall include flood insurance when the Mortgaged Property is located in a
federally designated flood area. The flood insurance shall be in the amount
required under applicable guidelines of the Federal Flood Emergency Act. No
other insurance need be carried on any Mortgaged Properties pursuant to this
Agreement.
Section 3.05. Assumption and Modification Agreements.
When a Mortgaged Property has been or is about to be conveyed by the
mortgagor, the Master Servicer shall exercise its right to accelerate the
maturity of the Mortgage Loan consistent with the then current practice of the
Master Servicer and without regard to the inclusion of the Mortgage Loan in
the Trust. If it elects not to enforce its right to accelerate or if
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it is prevented from doing so by applicable law, the Master Servicer (so long
as its action conforms with the underwriting standards generally acceptable in
the industry at the time for new origination) may enter into an assumption and
modification agreement with the person to whom the Mortgaged Property has been
or is about to be conveyed, pursuant to which that person becomes liable under
the Credit Line Agreement and, to the extent permitted by applicable law, the
mortgagor remains liable on it. The Master Servicer shall notify the Indenture
Trustee that any assumption and modification agreement has been completed by
delivering to the Indenture Trustee an Officer's Certificate certifying that
the agreement is in compliance with this Section and by forwarding the
original copy of the assumption and modification agreement to the Indenture
Trustee. Any assumption and modification agreement shall be a part of the
related Mortgage File. No change in the terms of the related Credit Line
Agreement may be made by the Master Servicer in connection with the assumption
to the extent that the change would not be permitted to be made in the
original Credit Line Agreement pursuant to Section 3.01(a). Any fee collected
by the Master Servicer for entering into the assumption and modification
agreement will be retained by the Master Servicer as additional servicing
compensation.
Section 3.06. Realization Upon Defaulted Mortgage Loans; Repurchase
of Certain Mortgage Loans.
The Master Servicer shall foreclose or otherwise comparably convert
to ownership Mortgaged Properties securing defaulted Mortgage Loans when, in
the opinion of the Master Servicer based on normal and usual practices and
procedures, no satisfactory arrangements can be made for collection of
delinquent payments pursuant to Section 3.02. Alternatively, the Master
Servicer may forego foreclosure and charge off a defaulted Mortgage Loan if in
the Master Servicer's opinion the proceeds of foreclosure and liquidation are
likely to produce an amount less than the unpaid principal balance of senior
liens on the Mortgaged Property. If the Master Servicer has actual knowledge
or reasonably believes that any Mortgaged Property is affected by hazardous or
toxic wastes or substances and that the acquisition of the Mortgaged Property
would not be commercially reasonable, then the Master Servicer will not cause
the Trust to acquire title to the Mortgaged Property in a foreclosure or
similar proceeding. In connection with foreclosure or other conversion (or a
decision to forego foreclosure and charge off a defaulted Mortgage Loan), the
Master Servicer shall follow the practices and procedures it deems appropriate
and that are normal and usual in its general mortgage servicing activities,
including advancing funds to correct a default on a related senior mortgage
loan. However, the Master Servicer shall not be required to expend its own
funds in connection with any foreclosure or towards the correction of any
default on a related senior mortgage loan or restoration of any property
unless it determines, in its sole discretion, that the expenditure will
increase Net Liquidation Proceeds and the Master Servicer acts in accordance
with the servicing standards in this Agreement.
If title to any Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure, the deed or certificate of sale shall be issued
to the Indenture Trustee, or to its nominee on behalf of Noteholders. The
Master Servicer shall dispose of the Mortgaged Property as soon as practicable
in a manner that maximizes its Liquidation Proceeds.
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The Master Servicer, in its sole discretion, may purchase for its own
account from the Trust any Mortgage Loan that is 151 days or more delinquent.
The price for any Mortgage Loan purchased shall be 100% of its Asset Balance
plus accrued interest on it at the applicable Loan Rate from the date through
which interest was last paid by the related mortgagor to the first day of the
month in which the purchase price is to be distributed to the Noteholders. The
purchase price shall be deposited in the Collection Account. The Master
Servicer may only exercise this right on or before the penultimate day of the
calendar month in which the Mortgage Loan became 151 days delinquent. Any
delinquent Mortgage Loan that becomes current but thereafter again becomes 151
days or more delinquent may be purchased by the Master Servicer pursuant to
this Section.
Upon receipt of a certificate from the Master Servicer in the form of
Exhibit C, the Indenture Trustee shall release to the Master Servicer the
related Mortgage File and shall execute and deliver any instruments of
transfer prepared by the Master Servicer, without recourse, necessary to vest
in the purchaser of the Mortgage Loan any Mortgage Loan released to it and the
Master Servicer shall succeed to all the Trust's interest in the Mortgage Loan
and all related security and documents. This assignment shall be an assignment
outright and not for security. The Master Servicer shall then own the Mortgage
Loan, and all security and documents, free of any further obligation to the
Trust, the Owner Trustee, the Indenture Trustee, the Credit Enhancer, the
Transferor, or the Noteholders with respect to it. The certification by the
Master Servicer may be delivered to the Indenture Trustee electronically, and
if it is, its form may differ from Exhibit C so long as it contains the
information required by Exhibit C (that is, the relevant loan number, at least
one of the five reasons for requesting file as found in Exhibit C, and the
acknowledgment that the Mortgage File will be held in accordance with this
Agreement and will promptly be returned to the Indenture Trustee when the need
for it by the Master Servicer no longer exists unless the Mortgage Loan has
been liquidated or retransferred), and to the extent the transmission
originates on its face from a Servicing Officer, need not be manually signed.
Section 3.07. Indenture Trustee to Cooperate.
By each Payment Date, the Master Servicer will notify the Indenture
Trustee whenever the Asset Balance of any Mortgage Loan has been paid in full
during the preceding Collection Period. A Servicing Officer shall certify that
the Mortgage Loan has been paid in full and that all amounts received in
connection with the payment that are required to be deposited in the
Collection Account pursuant to Section 3.02 have been so deposited or
credited. Upon payment in full pursuant to Section 3.01, the Master Servicer
is authorized to execute an instrument of satisfaction regarding the related
mortgage, which instrument of satisfaction shall be recorded by the Master
Servicer if required by applicable law and be delivered to the person entitled
to it.
If the mortgage has been registered on the MERS(R) System, the Master
Servicer shall cause the removal of the mortgage from registration on the
MERS(R) System and execute and deliver, on behalf of the Indenture Trustee and
the Noteholders, any instruments of satisfaction or cancellation or of partial
or full release. No expenses incurred in connection with the instrument of
satisfaction or transfer shall be reimbursed from amounts deposited in the
Collection Account or the Payment Account.
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As appropriate for the servicing or foreclosure of any Mortgage Loan,
or in connection with the payment in full of the Asset Balance of any Mortgage
Loan, upon request of the Master Servicer and delivery to the Indenture
Trustee of a Request for Release substantially in the form of Exhibit C signed
by a Servicing Officer, the Indenture Trustee shall release the related
Mortgage File to the Master Servicer and the Indenture Trustee shall execute
any documents provided by the Master Servicer necessary to the prosecution of
any proceedings or the taking of other servicing actions. The Request for
Release by a Servicing Officer may be delivered to the Indenture Trustee
electronically, and if it is, its form may differ from Exhibit C so long as it
contains the information required by Exhibit C (that is, the relevant loan
number, at least one of the five reasons for requesting file as found in
Exhibit C, and the acknowledgment that the Mortgage File will be held in
accordance with this Agreement and will promptly be returned to the Indenture
Trustee when the need for it by the Master Servicer no longer exists unless
the Mortgage Loan has been liquidated or retransferred), and to the extent the
transmission originates on its face from a Servicing Officer, need not be
manually signed. The Master Servicer shall return the Mortgage File to the
Indenture Trustee when the need for it by the Master Servicer no longer
exists, unless the Mortgage Loan is liquidated, in which case, upon receipt of
a certificate of a Servicing Officer similar to that specified above, the
Request for Release shall be released by the Indenture Trustee to the Master
Servicer.
To facilitate the foreclosure of the mortgage securing any Mortgage
Loan that is in default following recordation of the assignments of mortgage
in accordance with this Agreement, if so requested by the Master Servicer, the
Indenture Trustee shall execute an appropriate assignment in the form provided
to the Indenture Trustee by the Master Servicer to assign the Mortgage Loan
for the purpose of collection to the Master Servicer or a subservicer. The
assignment shall unambiguously indicate that the assignment is for the purpose
of collection only. The Master Servicer will then bring all required actions
in its own name and otherwise enforce the terms of the Mortgage Loan and
deposit the Net Liquidation Proceeds, exclusive of Foreclosure Profits, in the
Collection Account. If all delinquent payments due under the Mortgage Loan are
paid by the mortgagor and any other defaults are cured, then the Master
Servicer shall promptly reassign the Mortgage Loan to the Indenture Trustee
and return the related Mortgage File to the place where it was being
maintained.
Section 3.08. Servicing Compensation; Payment of Certain Expenses by
Master Servicer.
The Master Servicer may retain the Servicing Fee pursuant to Section
3.02 as compensation for its services in servicing the Mortgage Loans.
Moreover, additional servicing compensation in the form of late payment
charges or other receipts not required to be deposited in the Collection
Account (other than Foreclosure Profits) shall be retained by the Master
Servicer. The Master Servicer must pay all expenses incurred by it in
connection with its activities under this Agreement (including payment of all
other fees and expenses not expressly stated under this Agreement to be for
the account of another person) and shall not be entitled to reimbursement
under this Agreement except as specifically provided in this Agreement.
Liquidation Expenses are reimbursable to the Master Servicer
FIRST, from related Liquidation Proceeds and
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SECOND, from the Payment Account from funds attributable to the
related Loan Group pursuant to Section 8.03(a)(x) of the Indenture.
Section 3.09. Annual Statement as to Compliance.
(a) The Master Servicer will deliver to the Indenture Trustee, the
Credit Enhancer, and the Rating Agencies, by the date in each year specified
in the Adoption Annex, beginning on the date specified in the Adoption Annex,
an Officer's Certificate stating that (i) a review of the activities of the
Master Servicer during the preceding fiscal year (or the applicable shorter
period for the first report) and of its performance under this Agreement has
been made under the officer's supervision, (ii) to the best of the officer's
knowledge, based on the review, the Master Servicer has fulfilled all of its
obligations under this Agreement, in all material respects throughout the
fiscal year (or applicable portion of the fiscal year), or, if there has been
a failure to fulfill any of those obligations in any material respect,
specifying each failure known to the officer and its nature and status and
(iii) to the best of the officer's knowledge, each subservicer, if any, has
fulfilled all of its obligations under the related subservicing agreement in
all material respects throughout that year, or, if there has been a failure to
fulfill any of those obligation in any material respect, specifying each
failure known to the officer and its nature and status.
(b) The Master Servicer shall cause each subservicer, if any, to
deliver to the Depositor and the Indenture Trustee on or before March 15 of
each year, commencing with its 2007 fiscal year, an Officer's Certificate
stating, as to the signer thereof, that (i) a review of the activities of such
subservicer during the preceding calendar year (or applicable portion thereof)
and of the performance of the subservicer under the applicable subservicing
agreement or primary servicing agreement has been made under such officer's
supervision and (ii) to the best of the officer's knowledge, based on such
review, such subservicer has fulfilled all its obligations under the
applicable subservicing agreement or primary servicing agreement in all
material respects throughout its fiscal year (or applicable portion of the
year), or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each failure known to the officer and its nature
and status.
(c) The Indenture Trustee shall forward a copy of each of those
statement to each Rating Agency. Copies of the statement shall be provided by
the Indenture Trustee to any Noteholder, Note Owner, Certificateholder or
Certificate Owner upon request at the Master Servicer's expense, provided such
statement is delivered by the Master Servicer to the Indenture Trustee.
Section 3.10. Annual Servicing Report.
By the date in each year specified in the Adoption Annex, beginning
on the date specified in the Adoption Annex, the Master Servicer, at its
expense, shall cause a firm of nationally recognized independent public
accountants (who may also render other services to the Master Servicer) to
furnish a report to the Indenture Trustee, the Credit Enhancer, and each
Rating Agency to the effect that the firm has examined certain documents and
records relating to the servicing of mortgage loans during the most recent
fiscal year then ended under sale and servicing agreements or pooling and
servicing agreements (substantially similar to this Agreement, including this
Agreement), that the examination was conducted substantially in
27
compliance with the audit guide for audits of non-supervised mortgagees
approved by the Department of Housing and Urban Development for use by
independent public accountants (to the extent that the procedures in the audit
guide are applicable to the servicing obligations in those agreements), and
that the examination has disclosed no items of noncompliance with this
Agreement that, in the opinion of the firm, are material, except for the items
of noncompliance described in the report.
Section 3.11. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
(a) The Master Servicer shall provide to the Indenture Trustee, the
Credit Enhancer, any Noteholders or Note Owners that are federally insured
savings and loan associations, the Office of Thrift Supervision, successor to
the Federal Home Loan Bank Board, the FDIC, and the supervisory agents and
examiners of the Office of Thrift Supervision access to the documentation
regarding the Mortgage Loans required by applicable regulations of the Office
of Thrift Supervision and the FDIC (acting as operator of the Savings
Association Insurance Fund or the Bank Insurance Fund). The Master Servicer
will provide access without charge but only after reasonable notice and during
normal business hours at the offices of the Master Servicer. Nothing in this
Section shall derogate from the obligation of the Master Servicer to observe
any applicable law prohibiting disclosure of information regarding the
mortgagors and the failure of the Master Servicer to provide access as
provided in this Section as a result of this obligation shall not constitute a
breach of this Section.
(b) The Master Servicer shall supply the information needed to make
required payments and to furnish required reports to Noteholders and to make
any claim under the Policy, in the form the Indenture Trustee reasonably
requests, to the Indenture Trustee and any Paying Agent by the start of the
Determination Date preceding the related Payment Date. Section 3.12.
Maintenance of Certain Servicing Insurance Policies.
The Master Servicer shall during the term of its service as master
servicer maintain in force (i) policies of insurance covering errors and
omissions in the performance of its obligations as master servicer under this
Agreement and (ii) a fidelity bond covering its officers, employees, or
agents. Each policy and bond together shall comply with the requirements from
time to time of Xxxxxx Xxx for persons performing servicing for mortgage loans
purchased by Xxxxxx Mae.
Section 3.13. Reports to the Securities and Exchange Commission.
The Administrator shall, on behalf of the Trust, effect filing with
the Commission of any periodic reports required to be filed under the Exchange
Act and the rules and regulations of the Commission under it. At the request
of the Administrator, each of the Sponsor, the Master Servicer, the Depositor,
the Indenture Trustee, and the Transferor shall cooperate with the
Administrator in the preparation of these reports and shall provide to the
Indenture Trustee in a timely manner all information or documentation the
Indenture Trustee reasonably requests in connection with the performance of
its obligations under this Section. The Master Servicer shall prepare,
execute, and deliver all certificates or other documents required to be
delivered by the Trust pursuant to the Xxxxxxxx-Xxxxx Act of 2002.
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Section 3.14. Tax Treatment.
The Transferor shall treat the Mortgage Loans as its property for all
federal, state, or local tax purposes and shall report all income earned
thereon (including amounts payable as fees to the Master Servicer) as its
income for income tax purposes. The Master Servicer shall prepare all tax
information required by law to be distributed to Noteholders. The Master
Servicer shall not be liable for any liabilities, costs, or expenses of the
Trust, the Noteholders, the Transferor, or the Note Owners arising under any
tax law, including federal, state, or local income and franchise or excise
taxes or any other tax imposed on or measured by income (or any interest or
penalty with respect to any tax or arising from a failure to comply with any
tax requirement). Section 3.15. Information Required by the Internal Revenue
Service Generally and Reports of Foreclosures and Abandonments of Mortgaged
Property.
Section 3.15. Information Required by the Internal Revenue Service
Generally and Reports of Foreclosures and Abandonments of Mortgaged Property.
The Master Servicer shall prepare and deliver all federal and state
information reports when and as required by all applicable state and federal
income tax laws. In particular, with respect to the requirement under Section
6050J of the Code for reports of foreclosures and abandonments of any
mortgaged property, the Master Servicer shall file reports relating to each
instance occurring during the previous calendar year in which the Master
Servicer (i) on behalf of the Indenture Trustee acquires an interest in any
Mortgaged Property through foreclosure or other comparable conversion in full
or partial satisfaction of a Mortgage Loan, or (ii) knows or has reason to
know that any Mortgaged Property has been abandoned. The reports from the
Master Servicer shall be in form, substance, and timing sufficient to meet the
reporting requirements imposed by Section 6050J of the Code.
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. Servicing Certificate.
Not later than each Determination Date, the Master Servicer shall
deliver (a) to the Indenture Trustee, the data necessary to prepare the items
below and the statement for Noteholders required to be prepared pursuant to
Section 4.04 and (b) to the Indenture Trustee, the Owner Trustee, the Sponsor,
the Depositor, the Paying Agent, the Credit Enhancer, and each Rating Agency a
Servicing Certificate (in written form or the form of computer readable media
or such other form as may be agreed to by the Indenture Trustee and the Master
Servicer), together with an Officer's Certificate to the effect that the
Servicing Certificate is correct in all material respects, stating the related
Collection Period, Payment Date, the series number of the Notes, the date of
this Agreement, and:
(i) the aggregate amount of collections received on the
Mortgage Loans in each Loan Group by the Determination Date for the
related Collection Period;
(ii) the aggregate amount of (a) Interest Collections for
each Loan Group for the related Collection Period and (b) Principal
Collections for each Loan Group for the related Collection Period;
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(iii) the Investor Floating Allocation Percentage and the
Investor Fixed Allocation Percentage for each Loan Group for the
related Collection Period;
(iv) the Investor Interest Collections and Investor
Principal Collections for each Loan Group for the related Collection
Period; (v) the Interest Collections that are not Investor Interest
Collections and Transferor Principal Collections for each Loan Group
for the related Collection Period;
(vi) the Note Interest and the applicable Note Rate for each
Class of Notes for the related Interest Period;
(vii) the amount of the Note Interest that is not payable to
the Holders of each Class of Notes because of insufficient Investor
Interest Collections for the related Loan Group;
(viii) the Unpaid Investor Interest Shortfall for each Class
of Notes and the amount of interest on the shortfall at the
applicable Note Rate for each Class of Notes applicable from time to
time (separately stated) to be distributed on the related Payment
Date;
(ix) the remaining Unpaid Investor Interest Shortfall for
each Class of Notes after the distribution on the related Payment
Date;
(x) the amount of any Basis Risk Carryforward for each Class
of Notes in the distribution;
(xi) the amount of the remaining Basis Risk Carryforward for
each Class of Notes after giving effect to the related distribution;
(xii) the Accelerated Principal Payment Amount and the
portion of it that will be distributed pursuant to Section
8.03(a)(vii) of the Indenture for each Loan Group;
(xiii) the Scheduled Principal Collections Payment Amount
for each Loan Group, separately stating its components;
(xiv) the amount of any Transfer Deposit Amount for each
Loan Group paid by the Sponsor or the Depositor pursuant to Section
2.07;
(xv) any accrued Servicing Fees for the Mortgage Loans in
each Loan Group for previous Collection Periods and the Servicing Fee
for the related Collection Period;
(xvi) the Investor Loss Amount for each Loan Group for the
related Collection Period;
(xvii) the aggregate amount of Investor Loss Reduction
Amounts for previous Payment Dates that have not been previously
reimbursed to the Holders of each Class of Notes pursuant to Section
8.03(a)(iv), Section 8.03(a)(viii), or Section 8.03(c) of the
Indenture;
(xviii) the aggregate Asset Balance of the Mortgage Loans in
each Loan Group as of the end of the preceding Collection Period and
as of the end of the second preceding Collection Period;
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(xix) the Note Principal Balance for each Class of Notes and
loan factor after giving effect to the payment on each Class of Notes
on the related Payment Date and to any reduction because of the
related Investor Loss Amount;
(xx) the Transferor Interest and the Available Transferor
Subordinated Amount for each Loan Group after giving effect to the
distribution on the Payment Date;
(xxi) the aggregate amount of Additional Balances created on
the Mortgage Loans in each Loan Group during the previous Collection
Period;
(xxii) for each Loan Group, the number and aggregate Asset
Balances of Mortgage Loans (x) as to which the Minimum Monthly
Payment is delinquent for 30-59 days, 60-89 days, and 90 or more
days, respectively and (y) that have become REO, in each case as of
the end of the preceding Collection Period;
(xxiii) whether a Rapid Amortization Event has occurred
since the prior Determination Date, specifying the Rapid Amortization
Event if one has occurred;
(xxiv) whether an Event of Servicing Termination has
occurred since the prior Determination Date, specifying the Event of
Servicing Termination if one has occurred;
(xxv) the amount to be distributed to the Credit Enhancer
pursuant to Section 8.03(a)(vi), Section 8.03(a)(ix), and Section
8.03(a)(xi) of the Indenture, stated separately;
(xxvi) the Guaranteed Principal Payment Amount for each
Class of Notes for the Payment Date; (xxvii) the Credit Enhancement
Draw Amount for each Class of Notes for the related Payment Date;
(xxviii) the amount to be distributed on the Mortgage Loans
in each Loan Group to the Transferor pursuant to Section
8.03(a)(xiii) of the Indenture;
(xxix) the amount to be paid to the Master Servicer pursuant
to Section 8.03(a)(x) of the Indenture;
(xxx) the Maximum Rate for the related Collection Period and
the Weighted Average Net Loan Rate for the Mortgage Loans in each
Loan Group;
(xxxi) the expected amount of any optional advances pursuant
to Section 4.03 by the Master Servicer on the Mortgage Loans in each
Loan Group included in the distribution on the related Payment Date
and the aggregate expected amount of optional advances pursuant to
Section 4.03 by the Master Servicer outstanding on the Mortgage Loans
in each Loan Group as of the close of business on the related Payment
Date;
(xxxii) the number and principal balances of any Mortgage
Loans in each Loan Group transferred to the Transferor pursuant to
Section 2.06;
(xxxiii) in the Servicing Certificates for the first and
second Payment Dates, the number and Cut-off Date Asset Balance of
Mortgage Loans for each Loan Group for which the Mortgage Loan File
was not delivered to the Indenture Trustee within 30 days of the
Closing Date;
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(xxxiv) the number and aggregate Asset Balances of Mortgage
Loans in each Loan Group that are in foreclosure; and
(xxxv) the number and aggregate Asset Balances of Mortgage
Loans in each Loan Group for which the Master Servicer has received a
written notice of the filing of bankruptcy or insolvency proceedings
with respect to the mortgagor.
The Indenture Trustee and the Owner Trustee shall conclusively rely
on the information in a Servicing Certificate for purposes of making
distributions pursuant to Section 8.03 of the Indenture or distributions on
the Transferor Certificates, shall have no duty to inquire into this
information, and shall have no liability in so relying. The format and content
of the Servicing Certificate may be modified by the mutual agreement of the
Master Servicer, the Indenture Trustee, and the Credit Enhancer. The Master
Servicer shall give notice of any changes to the Rating Agencies.
Section 4.02. Acknowledgement and Cooperation.
The Depositor, the Master Servicer, and the Indenture Trustee
acknowledge that without the need for any further action on the part of the
Credit Enhancer, the Depositor, the Master Servicer, the Indenture Trustee, or
the Note Registrar (a) to the extent the Credit Enhancer makes payments,
directly or indirectly, on account of principal of or interest or other
amounts on any Notes to the Holders of the Notes, the Credit Enhancer will be
fully subrogated to the rights of these Holders to receive the principal and
interest from the Trust and (b) the Credit Enhancer shall be paid the
principal and interest or other amounts but only from the sources and in the
manner provided in this Agreement for the payment of the principal and
interest or other amounts. The Indenture Trustee and the Master Servicer shall
cooperate in all respects with any reasonable request by the Credit Enhancer
for action to preserve or enforce the Credit Enhancer's rights or interests
under this Agreement and the Indenture without limiting the rights or
affecting the interests of the Holders as otherwise stated in this Agreement
and the Indenture.
Section 4.03. Optional Advances of the Master Servicer.
The Master Servicer, in its sole discretion, may advance the interest
component of any delinquent Minimum Monthly Payment (or any portion of it) by
depositing the amount into the Collection Account by the related Determination
Date.
Section 4.04. Statements to Noteholders.
Concurrently with each payment to Noteholders, the Master Servicer
shall deliver to the Indenture Trustee the data necessary to prepare a
statement (the "Monthly Statement") for each Payment Date with the information
contained in Exhibit E with respect to each Loan Group.
If the Monthly Statement is not accessible to any of the Noteholders,
the Master Servicer, the Credit Enhancer, or either Rating Agency on the
Indenture Trustee's internet website, the Indenture Trustee shall forward a
hard copy of it to each Noteholder, the Master Servicer, the Credit Enhancer,
and each Rating Agency immediately after the Indenture Trustee becomes aware
that the Monthly Statement is not accessible to any of them via the Indenture
Trustee's internet website. The address of the Indenture Trustee's internet
website where the Monthly Statement will be accessible is [INDENTURE TRUSTEE'S
WEBSITE]. Assistance
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in using the Indenture Trustee's internet website may be obtained by calling
the Indenture Trustee's customer service desk at (___) ___-____. The Indenture
Trustee shall notify each Noteholder, the Master Servicer, the Credit
Enhancer, and each Rating Agency in writing of any change in the address or
means of access to the internet website where the Monthly Statement is
accessible.
Within 60 days after the end of each calendar year, the Master
Servicer shall prepare and forward to the Indenture Trustee the information in
clauses (iii) and (vi) above aggregated for the calendar year. This
requirement of the Master Servicer shall be satisfied if substantially
comparable information is provided by the Master Servicer or a Paying Agent
pursuant to any requirements of the Code.
The Indenture Trustee shall prepare (in a manner consistent with the
treatment of the Notes as indebtedness of the Transferor, or as may be
otherwise required by Section 3.14) Internal Revenue Service Form 1099 (or any
successor form) and any other tax forms required to be filed or furnished to
Noteholders for payments by the Indenture Trustee (or the Paying Agent) on the
Notes and shall file and distribute such forms as required by law.
ARTICLE V
THE MASTER SERVICER, THE SPONSOR, AND THE DEPOSITOR
Section 5.01. Liability of the Sponsor, the Master Servicer, and the
Depositor.
The Sponsor, the Depositor, and the Master Servicer shall be liable
only for their express agreements under this Agreement.
Section 5.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Master Servicer or the Depositor.
Any corporation into which the Master Servicer or the Depositor may
be merged or consolidated, or any corporation resulting from any merger,
conversion, or consolidation to which the Master Servicer or the Depositor is
a party, or any corporation succeeding to the business of the Master Servicer
or the Depositor, shall be the successor of the Master Servicer or the
Depositor, as the case may be, under this Agreement, without the execution or
filing of any paper or any further act on the part of any of the parties to
this Agreement, notwithstanding anything in this Agreement to the contrary.
As a condition to the effectiveness of any merger or consolidation,
at least 15 calendar days prior to the effective date of any merger or
consolidation of the Master Servicer, the Master Servicer shall provide (x)
written notice to the Depositor of any successor pursuant to this Section and
(y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to a replacement Master Servicer.
Section 5.03. Limitation on Liability of the Master Servicer and
Others.
Neither the Master Servicer nor any of its directors, officers,
employees, or agents is liable to the Trust, the Owner Trustee, the
Transferor, or the Noteholders for the Master
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Servicer's taking any action or refraining from taking any action in good
faith pursuant to this Agreement, or for errors in judgment. This provision
shall not protect the Master Servicer or any of its directors, officers,
employees, or agents against any liability that would otherwise be imposed for
misfeasance, bad faith, or gross negligence in the performance of the duties
of the Master Servicer or for reckless disregard of the obligations of the
Master Servicer. The Master Servicer and any of its directors, officers,
employees, or agents may rely in good faith on any document of any kind prima
facie properly executed and submitted by any person about anything arising
under this Agreement.
The Master Servicer and each of its directors, officers, employees,
and agents shall be indemnified by the Trust (but only from funds available
from the applicable Loan Group) and held harmless against any loss, liability,
or expense incurred in connection with any legal action relating to this
Agreement, the Transferor Certificates, or the Notes, other than any loss,
liability, or expense related to any specific Mortgage Loan that is otherwise
not reimbursable pursuant to this Agreement and any loss, liability, or
expense incurred due to its willful misfeasance, bad faith, or gross
negligence in the performance of duties under this Agreement or due to its
reckless disregard of its obligations under this Agreement.
The Master Servicer need not appear in, prosecute, or defend any
legal action that is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement, and that in its opinion may involve
it in any expense or liability. The Master Servicer may in its sole discretion
undertake any action that it deems appropriate with respect to this Agreement
and the interests of the Noteholders. If so, the reasonable legal expenses and
costs of the action and any resulting liability shall be expenses, costs, and
liabilities of the Trust, and the Master Servicer shall only be entitled to be
reimbursed pursuant to Section 8.03(a)(x) of the Indenture (but only from
funds available from the applicable Loan Group). The Master Servicer's right
to indemnity or reimbursement pursuant to this Section shall survive any
resignation or termination of the Master Servicer pursuant to Section 5.04 or
6.01 with respect to any losses, expenses, costs, or liabilities arising
before its resignation or termination (or arising from events that occurred
before its resignation or termination).
Section 5.04. Master Servicer Not to Resign.
Subject to Section 5.02, the Master Servicer shall not resign as
Master Servicer under this Agreement except
(i) if the performance of its obligations under this
Agreement are no longer permissible under applicable law or due to
applicable law are in material conflict with any other activities
carried on by it or its subsidiaries or Affiliates that are of a type
and nature carried on by the Master Servicer or its subsidiaries or
Affiliates at the date of this Agreement or
(ii) if
(a) the Master Servicer has proposed a successor
Master Servicer to the Indenture Trustee and the proposed
successor Master Servicer is reasonably acceptable to the
Indenture Trustee;
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(b) each Rating Agency has delivered a letter to
the Indenture Trustee before the appointment of the
successor Master Servicer stating that the proposed
appointment of the successor Master Servicer as Master
Servicer under this Agreement will not result in the
reduction or withdrawal of the then current rating of the
Notes without regard to the Policy; and
(c) the proposed successor Master Servicer is
reasonably acceptable to the Credit Enhancer in its sole
discretion, as evidenced by a letter to the Indenture
Trustee.
No resignation by the Master Servicer shall become effective until
the Indenture Trustee or successor Master Servicer designated by the Master
Servicer has assumed the Master Servicer's obligations under this Agreement or
the Indenture Trustee has designated a successor Master Servicer in accordance
with Section 6.02 and the Depositor shall have received the information
described in the following sentence. As a condition to the effectiveness of
any such resignation, at least 15 calendar days prior to the effective date of
such resignation, the Master Servicer shall provide (x) written notice to the
Depositor of any successor pursuant to this Section and (y) in writing and in
form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to the resignation of the
Master Servicer. Any resignation shall not relieve the Master Servicer of
responsibility for any of the obligations specified in Sections 6.01 and 6.02
as obligations that survive the resignation or termination of the Master
Servicer. Any determination permitting the resignation of the Master Servicer
pursuant to clause (i) above shall be evidenced by an Opinion of Counsel to
that effect delivered to the Indenture Trustee and the Credit Enhancer. The
Master Servicer shall have no claim (whether by subrogation or otherwise) or
other action against the Transferor, any Noteholder, or the Credit Enhancer
for any amounts paid by the Master Servicer pursuant to any provision of this
Agreement.
Section 5.05. Delegation of Duties.
In the ordinary course of business, the Master Servicer may delegate
any of its duties under this Agreement at any time to any person who agrees to
act in accordance with standards comparable to those with which the Master
Servicer complies pursuant to Section 3.01, including any of its Affiliates or
any subservicer referred to in Section 3.01. This delegation shall not relieve
the Master Servicer of its obligations under this Agreement and shall not
constitute a resignation within the meaning of Section 5.04.
Section 5.06. Indemnification by the Master Servicer.
The Master Servicer shall indemnify the Trust, the Owner Trustee, and
the Indenture Trustee against any loss, liability, expense, damage, or injury
suffered or sustained due to the Master Servicer's actions or omissions in
servicing or administering the Mortgage Loans that are not in accordance with
this Agreement, including any judgment, award, settlement, reasonable
attorneys' fees, and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding, or claim. This
indemnification is not payable
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from the assets of the Trust. This indemnity shall run directly to and be
enforceable by an injured party subject to any applicable limitations.
The Indenture Trustee and any director, officer, employee, or agent
of the Indenture Trustee shall be indemnified by the Master Servicer and held
harmless against any loss, liability or expense (i) incurred in connection
with any legal action relating to this Agreement, the Indenture, the Custodial
Agreement, the Administration Agreement, the Notes, or the Transferor
Certificates, or in connection with the performance of any of the Indenture
Trustee's duties thereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Indenture Trustee's duties under this Agreement, the
Indenture, or the Custodial Agreement or by reason of reckless disregard of
the Indenture Trustee's obligations and duties under this Agreement.
The indemnity provisions of this Section shall survive the
termination of this Agreement or the resignation or removal of the Indenture
Trustee under the Indenture.
ARTICLE VI
SERVICING TERMINATION
Section 6.01. Events of Servicing Termination.
If any one of the following events ("Events of Servicing
Termination") shall occur and be continuing:
(i) any failure by the Master Servicer to deposit in the
Collection Account any deposit required to be made under this
Agreement or to remit to the Indenture Trustee amounts required to be
deposited to the Payment Account that continues unremedied either
beyond the relevant Payment Date or for five Business Days after the
date when notice of the failure has been given to the Master Servicer
by the Indenture Trustee or to the Master Servicer and the Indenture
Trustee by the Credit Enhancer or Holders of Notes representing not
less than 25% of the Outstanding Amount of both Classes of Notes; or
(ii) failure by the Master Servicer duly to observe or
perform in any material respect any other covenants or agreements of
the Master Servicer in the Notes or in this Agreement (except with
respect to a failure related to a Limited Exchange Act Reporting
Obligation) that materially and adversely affects the interests of
the Noteholders or the Credit Enhancer and continues unremedied for
60 days after the date on which notice of the failure, requiring it
to be remedied, and stating that the notice is a "Notice of Default"
under this Agreement, has been given to the Master Servicer by the
Indenture Trustee or to the Master Servicer and the Indenture Trustee
by the Credit Enhancer or the Holders of Notes representing not less
than 25% of the Outstanding Amount of both Classes of Notes; or
(iii) an Insolvency Event occurs with respect to the Master
Servicer;
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then, until the Event of Servicing Termination has been remedied by the Master
Servicer, either the Indenture Trustee (with the consent of the Credit
Enhancer), the Credit Enhancer, or the Holders of Notes representing not less
than 51% of the Outstanding Amount of both Classes of Notes with the consent
of the Credit Enhancer by notice then given to the Master Servicer (and to the
Indenture Trustee if given by the Credit Enhancer or the Holders of Notes) may
terminate all of the rights and obligations of the Master Servicer as servicer
under this Agreement. In addition, if during the period that the Depositor is
required to file Exchange Act Reports with respect to the Trust, the Master
Servicer fails to observe or perform any of the obligations that constitute a
Limited Exchange Act Reporting Obligation or the obligations set forth in
Section 3.09(a) or Section 9.07(a)(1) and (2), and such failure continues for
the lesser of 10 calendar days or such period in which the applicable Exchange
Act Report can be filed timely (without taking into account any extensions),
so long as the failure has not been remedied, the Indenture Trustee shall, but
only at the direction of the Depositor, terminate all of the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof[, other than its rights as a
Certificateholder or Noteholder under this Agreement]. The Depositor will not
be entitled to terminate the rights and obligations of the Master Servicer if
a failure of the Master Servicer to identify a Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with
respect to mortgage loans other than the Mortgage Loans.
A notice of termination provided to the Master Servicer shall also
be given by the party providing that notice to each Rating Agency and the
Credit Enhancer.
Within five Business Days after obtaining knowledge of it, the Master
Servicer shall notify the Indenture Trustee, the Credit Enhancer, and each of
the Rating Agencies of any event that with the giving of notice or the lapse
of time would become an Event of Servicing Termination by delivering an
Officer's Certificate describing the event.
From the receipt by the Master Servicer of the notice, all the rights
and obligations of the Master Servicer under this Agreement, whether with
respect to the Notes or the Mortgage Loans or otherwise, shall pass to and be
vested in the Indenture Trustee pursuant to this Section; and the Indenture
Trustee is authorized to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any documents, and to do anything
else appropriate to effect the purposes of the notice of termination, whether
to complete the transfer and endorsement of each Mortgage Loan and related
documents, or otherwise. The Master Servicer agrees to cooperate with the
Indenture Trustee in effecting the termination of the rights and obligations
of the Master Servicer under this Agreement, including the transfer to the
Indenture Trustee for the administration by it of all cash amounts that are
held by the Master Servicer and are to be deposited by it in the Collection
Account, or that have been deposited by the Master Servicer in the Collection
Account or are subsequently received by the Master Servicer with respect to
the Mortgage Loans. All reasonable costs and expenses (including attorneys'
fees) incurred in connection with transferring the Mortgage Files to the
successor Master Servicer and amending this Agreement to reflect the
succession as Master Servicer pursuant to this Section shall be paid by the
predecessor Master Servicer (or if the predecessor Master Servicer is the
Indenture
37
Trustee, the initial Master Servicer) on presentation of reasonable
documentation of the costs and expenses.
Notwithstanding the foregoing, a delay in or failure of performance
under Section 6.01(i) for five or more Business Days or under Section 6.01(ii)
for 60 or more days, shall not constitute an Event of Servicing Termination if
the delay or failure could not be prevented by the exercise of reasonable
diligence by the Master Servicer and the delay or failure was caused by an act
of God or the public enemy, acts of declared or undeclared war, public
disorder, rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, earthquakes, floods, or similar causes. The preceding sentence
shall not relieve the Master Servicer from using its best efforts to perform
its obligations in a timely manner in accordance with the terms of this
Agreement, and the Master Servicer shall provide the Indenture Trustee, the
Depositor, the Transferor, the Credit Enhancer, and the Noteholders with an
Officers' Certificate giving prompt notice of its failure or delay, together
with a description of its efforts to perform its obligations. The Master
Servicer shall immediately notify the Indenture Trustee of any Events of
Servicing Termination.
In connection with the termination of the Master Servicer if any
mortgage is registered on the MERS(R) System, then, either (i) the successor
Master Servicer, including the Indenture Trustee if the Indenture Trustee is
acting as successor Master Servicer, shall represent and warrant that it is a
member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, or (ii) the
predecessor Master Servicer shall cooperate with the successor Master Servicer
in causing MERS to execute and deliver an assignment of mortgage in recordable
form to transfer all the mortgages registered on the MERS(R) System from MERS
to the Indenture Trustee and to execute and deliver any other notices and
documents appropriate to effect a transfer of those mortgages or the servicing
of the Mortgage Loan on the MERS(R) System to the successor Master Servicer.
The predecessor Master Servicer shall file the assignment in the appropriate
recording office. The successor Master Servicer shall deliver the assignment
to the Indenture Trustee promptly upon receipt of the original with evidence
of recording on it or a copy certified by the public recording office in which
the assignment was recorded.
If the Master Servicer is terminated, the Indenture Trustee will
provide the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to a successor master servicer in the event the
Indenture Trustee should succeed to the duties of the Master Servicer as set
forth in this Agreement.
Section 6.02. Indenture Trustee to Act; Appointment of Successor.
(a) From the time the Master Servicer receives a notice of termination
pursuant to Section 6.01 or resigns pursuant to Section 5.04, the Indenture
Trustee shall be the successor in all respects to the Master Servicer in its
capacity as Master Servicer under this Agreement and the transactions
contemplated by this Agreement and shall be subject to all the obligations of
the Master Servicer under this Agreement except (i) the obligation to
repurchase or substitute
38
for any Mortgage Loan, (ii) with respect to any representation or warranty of
the Master Servicer, or (iii) for any act or omission of either a predecessor
or successor Master Servicer other than the Indenture Trustee. As its
compensation under this Agreement, the Indenture Trustee shall be entitled to
the compensation the Master Servicer would have been entitled to under this
Agreement if no notice of termination had been given. In addition, the
Indenture Trustee will be entitled to compensation with respect to its
expenses in connection with conversion of certain information, documents, and
record keeping, as provided in Section 6.01.
Notwithstanding the above, (i) if the Indenture Trustee is unwilling
to act as successor Master Servicer, or (ii) if the Indenture Trustee is
legally unable to so act, the Indenture Trustee may (in the situation
described in clause (i)) or shall (in the situation described in clause (ii))
appoint, or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution, bank, or other mortgage loan
or home equity loan servicer having a net worth of not less than $15,000,000
as the successor to the Master Servicer under this Agreement to assume of any
obligations of the Master Servicer under this Agreement. The successor Master
Servicer must be acceptable to the Credit Enhancer in its sole discretion, as
evidenced by the Credit Enhancer's prior consent, as applicable, which consent
shall not be unreasonably withheld. The appointment of the successor Master
Servicer must not result in the qualification, reduction, or withdrawal of the
ratings assigned to the Notes by the Rating Agencies without regard to the
Policy. No appointment of a successor to the Master Servicer will be effective
until at least 15 calendar days prior to the effective date of such
appointment, (x) the Trustee provides written notice to the Depositor of the
successor pursuant to this Section 6.02 and (y) such successor Master Servicer
shall provide to the Depositor in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to a replacement master servicer.
Pending appointment of a successor to the Master Servicer, unless the
Indenture Trustee is prohibited by law from so acting, the Indenture Trustee
shall act as Master Servicer. In connection with this appointment and
assumption, the successor shall be entitled to receive compensation out of
payments on Mortgage Loans in an amount equal to the compensation that the
Master Servicer would otherwise have received pursuant to Section 3.08 (or any
lesser compensation the Indenture Trustee and the successor agree to). The
Indenture Trustee and the successor shall take any action, consistent with
this Agreement, necessary to effectuate the succession.
(b) The appointment of a successor Master Servicer shall not affect
any liability of the predecessor Master Servicer that may have arisen under
this Agreement before its termination as Master Servicer (including any
deductible under an insurance policy pursuant to Section 3.04), nor shall any
successor Master Servicer be liable for any acts or omissions of the
predecessor Master Servicer or for any breach by the predecessor Master
Servicer of any of its representations or warranties in this Agreement. Except
for any compensation agreement with the Indenture Trustee, any successor
Master Servicer shall be subject to all the terms of this Agreement from the
time that it accepts its appointment to the same extent as if it were
originally named as Master Servicer.
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Section 6.03. Notification to Noteholders and the Transferor.
Upon any termination or appointment of a successor to the Master
Servicer pursuant to this Article or Section 5.04, the Indenture Trustee shall
give prompt notice of it to the Noteholders at their respective addresses
appearing in the Note Register, the Transferor, the Credit Enhancer, and each
Rating Agency.
ARTICLE VII
TERMINATION
Section 7.01. Termination.
(a) The respective obligations and responsibilities of the Sponsor,
the Master Servicer, the Depositor, the Trust, and the Indenture Trustee
created by this Agreement (other than the obligation of the Master Servicer to
send certain notices) shall terminate on the earlier of
(i) the transfer of all the Mortgage Loans pursuant to
Section 7.01(b),
(ii) the termination of the Trust Agreement or the
Indenture, and
(iii) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust or the disposition of all
property acquired in foreclosure or by deed in lieu of foreclosure of
any Mortgage Loan.
Upon termination in accordance with this Section, the Indenture
Trustee shall execute any documents and instruments of transfer presented by
the Transferor, in each case without recourse, representation, or warranty,
and take any other actions the Transferor reasonably requests to effect the
transfer of the Mortgage Loans to the Transferor. Notwithstanding the
termination of this Agreement, the Master Servicer shall comply with this
Agreement in winding up activities under this Agreement after termination if
necessary.
(b) With the consent of the Credit Enhancer and the Master Servicer,
the Transferor may effect the transfer of all the Mortgage Loans at their
termination purchase price on any Payment Date from the Payment Date
immediately before which the aggregate Note Principal Balance of both Classes
of Notes is less than or equal to 10% of the aggregate Original Note Principal
Balance of both Classes of Notes and require the Trust to redeem the Notes
pursuant to Section 10.01 of the Indenture with the proceeds. The termination
purchase price is the sum of:
(i) the aggregate Note Principal Balance for both Classes of
Notes,
(ii) accrued aggregate Note Interest through the day
preceding the final Payment Date, and
(iii) interest accrued on any aggregate Unpaid Investor
Interest Shortfall, to the extent legally permissible.
(c) The Transferor must notify the Credit Enhancer, the Trust, and
the Indenture Trustee of any election to effect the transfer of the Mortgage
Loans pursuant to Section 7.01(b) no later than the first day of the month
before the month in which the transfer is to occur. The proceeds from the
purchase of the Mortgage Loans, for purposes of payments on the Notes,
40
shall be considered to have been received in the Collection Period before the
Collection Period in which the Payment Date on which the purchase takes place
occurs.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment.
This Agreement may be amended from time to time by the Sponsor, the
Master Servicer, the Depositor, the Owner Trustee, and the Indenture Trustee,
if the Rating Agency Condition is satisfied (in connection with which the
consent of the Credit Enhancer shall not be unreasonably withheld). However,
no amendment that significantly changes the permitted activities of the Trust
may be promulgated without the consent of a majority of the aggregate
Outstanding Amount of both Classes of Notes. For this purpose no Notes owned
by the Sponsor or any of its affiliates may vote, nor shall their Notes be
considered outstanding. This Agreement may also be amended from time to time
by the Sponsor, the Master Servicer, the Depositor, the Owner Trustee, and the
Indenture Trustee, with the consent of the Credit Enhancer (which consent
shall not be unreasonably withheld) and Holders of not less than 66(2)/3% of
the aggregate Outstanding Amount of both Classes of Notes.
The Indenture Trustee may enter into any amendment of this Agreement
as to which the Rating Agency Condition is satisfied, and when so requested by
an Issuer Request, the Indenture Trustee shall enter into any amendment of
this Agreement
(i) that does not impose further obligations or liabilities
on the Indenture Trustee, and
(ii) as to which either the Rating Agency Condition is
satisfied or Holders of not less than 66(2)/3% of the aggregate
Outstanding Amount of both Classes of Notes and the Credit Enhancer
have consented.
Following the execution and delivery of any amendment to this
Agreement or to the Policy to which the Credit Enhancer was required to
consent, either the Transferor, if the Transferor requested the amendment, or
the Master Servicer, if the Master Servicer requested the amendment, shall
reimburse the Credit Enhancer for the reasonable out-of-pocket costs and
expenses incurred by them in connection with the amendment.
Before the execution of the amendment, the party to this Agreement
requesting the amendment shall notify each Rating Agency of the substance of
the amendment. The Indenture Trustee shall deliver fully executed original
counterparts of the instruments effecting the amendment to the Credit
Enhancer.
Section 8.02. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PROVISIONS THAT
WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER STATE.
41
Section 8.03. Notices.
All notices, demands, instructions, consents, and other
communications required or permitted under this Agreement shall be in writing
and signed by the party giving the same and shall be personally delivered or
sent by first class or express mail (postage prepaid), national overnight
courier service, or by facsimile transmission or other electronic
communication device capable of transmitting or creating a written record
(confirmed by first class mail) and shall be considered to be given for
purposes of this Agreement on the day that the writing is delivered when
personally delivered or sent by facsimile or overnight courier or three
Business Days after it was sent to its intended recipient if sent by first
class mail. A facsimile has been delivered when the sending machine issues an
electronic confirmation of transmission. Unless otherwise specified in a
notice sent or delivered in accordance with the provisions of this Section,
notices, demands, instructions, consents, and other communications in writing
shall be given to or made on the respective parties at their respective
addresses indicated below:
if to the Trust at:
CWHEQ Revolving Home Equity Loan Trust, Series 200_-_
___________________, as Owner Trustee
___________________
___________________
Attention: ___________________
Telecopy: (___) ___-____
if to the Depositor at:
CWHEQ, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Telecopy: (000) 000-0000
if to the Master Servicer at:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department,
Telecopy: (000) 000-0000
if to the Indenture Trustee at:
the Corporate Trust Office
Telecopy: (___) ___-___
42
if to the Credit Enhancer at:
___________________
___________________
Attention: ___________________
___________________
Telecopy: (___) ___-___
Confirmation: ___-___-___
if to [Xxxxx'x] at:
[Residential Loan Monitoring Group, 4th Floor
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
and if to [Standard & Poor's] at:
[55 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
Whenever a notice or other communication to the Credit Enhancer
refers to an Event of Servicing Termination or with respect to which failure
on the part of the Credit Enhancer to respond would constitute consent or
acceptance, then a copy of the notice or other communication shall also be
sent to the attention of the General Counsel of the Credit Enhancer and shall
be marked to indicate "URGENT MATERIAL ENCLOSED."
Section 8.04. Severability of Provisions.
Any provisions of this Agreement that are held invalid for any reason
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the invalidity or unenforceability without
invalidating the remaining provisions of this Agreement, and the prohibition
or unenforceability in a jurisdiction shall not invalidate or render
unenforceable that provision in any other jurisdiction.
Section 8.05. Assignment.
Except as provided in Sections 5.02 and 5.04, this Agreement may not
be assigned by the Depositor or the Master Servicer without the prior consent
of the Credit Enhancer.
Section 8.06. Third-Party Beneficiaries.
This Agreement will be binding on the parties to this Agreement, and
inure to the benefit of the parties to this Agreement, the Noteholders, the
Transferor, the Note Owners, the Owner Trustee, and the Credit Enhancer and
their respective successors and permitted assigns. The Credit Enhancer is a
third party beneficiary of this Agreement. No other person will have any
rights under this Agreement.
Section 8.07. Counterparts; Electronic Delivery.
This Agreement may be executed in any number of copies, and by the
different parties on the same or separate counterparts, each of which shall be
considered to be an original instrument. Any signature page to this Agreement
containing a manual signature may be
43
delivered by facsimile transmission or other electronic communication device
capable of transmitting or creating a printable written record, and when so
delivered shall have the effect of delivery of an original manually signed
signature page.
Section 8.08. Effect of Headings and Table of Contents.
The Article and Section headings in this Agreement and the Table of
Contents are for convenience only and shall not affect the construction of
this Agreement.
ARTICLE IX
EXCHANGE ACT REPORTING
Section 9.01. Filing Obligations.
The Master Servicer, the Indenture Trustee, the Co-Trustee and each
Seller shall reasonably cooperate with the Depositor in connection with the
satisfaction of the Depositor's reporting requirements under the Exchange Act
with respect to the Trust. In addition to the information specified below, if
so requested by the Depositor for the purpose of satisfying its reporting
obligation under the Exchange Act, the Master Servicer, the Indenture Trustee,
the Co-Trustee and each Seller shall (and the Master Servicer shall cause each
subservicer to) provide the Depositor with (a) such information which is
available to such Person without unreasonable effort or expense and within
such timeframe as may be reasonably requested by the Depositor to comply with
the Depositor's reporting obligations under the Exchange Act and (b) to the
extent such Person is a party (and the Depositor is not a party) to any
agreement or amendment required to be filed, copies of such agreement or
amendment in XXXXX-compatible form.
Section 9.02. Form 10-D Filings.
In accordance with the Exchange Act, the Indenture Trustee shall
prepare for filing and file within 15 days after each Payment Date (subject to
permitted extensions under the Exchange Act) with the Commission with respect
to the Trust Fund, a Form 10-D with copies of the Monthly Statement and, to
the extent delivered to the Indenture Trustee, no later than 10 days following
the Payment Date, such other information identified by the Depositor or the
Master Servicer, in writing, to be filed with the Commission (such other
information, the "Additional Designated Information"). If the Depositor or
Master Servicer directs that any Additional Designated Information is to be
filed with any Form 10-D, the Depositor or Master Servicer, as the case may
be, shall specify the Item on Form 10-D to which such information is
responsive and, with respect to any Exhibit to be filed on Form 10-D, the
Exhibit number. Any information to be filed on Form 10-D shall be delivered to
the Indenture Trustee in XXXXX-compatible form or as otherwise agreed upon by
the Indenture Trustee and the Depositor or the Master Servicer, as the case
may be, at the Depositor's expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor's expense. At the reasonable
request of, and in accordance with the reasonable directions of, the Depositor
or the Master Servicer, subject to the two preceding sentences, the Indenture
Trustee shall prepare for filing and file an
44
amendment to any Form 10-D previously filed with the Commission with respect
to the Trust. The Master Servicer shall sign the Form 10-D filed on behalf of
the Trust.
No later than each Payment Date, each of the Master Servicer, the
Indenture Trustee and the Co-Indenture Trustee shall notify (and the Master
Servicer shall cause any subservicer to notify) the Depositor and the Master
Servicer of any Form 10-D Disclosure Item, together with a description of any
such Form 10-D Disclosure Item in form and substance reasonably acceptable to
the Depositor. In addition to the information as the Master Servicer and the
Indenture Trustee are obligated to provide pursuant to other provisions of
this Agreement, if so requested by the Depositor, each of the Master Servicer
and the Indenture Trustee shall provide such information that is available to
the Master Servicer and the Indenture Trustee, as applicable, without
unreasonable effort or expense regarding the performance or servicing of the
Mortgage Loans (in the case of the Indenture Trustee, based on the information
provided by the Master Servicer) as is reasonably required to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB. This information shall be provided concurrently with the [Remittance]
Reports in the case of the Master Servicer and the Monthly Statement in the
case of the Indenture Trustee, commencing with the first report due not less
than five Business Days following such request.
The Indenture Trustee will not have any responsibility to file any
items (other than those generated by it) that have not been received in a
format suitable (or readily convertible into a format suitable) for electronic
filing via the XXXXX system and shall not have any responsibility to convert
any such items to such format (other than those items generated by it or that
are readily convertible to such format). The Indenture Trustee shall have no
liability to the Noteholders, the Certificateholders, the Trust, the Master
Servicer, the Depositor or the Credit Enhancer with respect to any failure to
properly prepare or file any of Form 10-D to the extent that such failure is
not the result of any negligence, bad faith or willful misconduct on its part.
Section 9.03. Form 8-K Filings.
The Master Servicer shall prepare and file on behalf of the Trust any
Form 8-K required by the Exchange Act. Each Form 8-K must be signed by the
Master Servicer. Each of the Master Servicer (and the Master Servicer shall
cause any subservicer to promptly notify), the Indenture Trustee and the
Co-Indenture Trustee shall promptly notify the Depositor and the Master
Servicer (if the notifying party is not the Master Servicer), but in no event
later than one (1) Business Day after its occurrence, of any Reportable Event
of which it has actual knowledge. Each Person shall be deemed to have actual
knowledge of any such event to the extent that it relates to such Person or
any action or failure to act by such Person. [Concurrently with any Subsequent
Transfer, CHL shall notify the Depositor and the Master Servicer, if any
material pool characteristic of the actual asset pool at the time of issuance
of the Notes differs by 5% or more (other than as a result of the pool assets
converting into cash in accordance with their terms) from the description of
the asset pool in the Prospectus Supplement.]
45
Section 9.04. Form 10-K Filings.
Prior to March 30th of each year, commencing in 2007 (or such earlier
date as may be required by the Exchange Act), the Depositor shall prepare and
file on behalf of the Trust a Form 10-K, in form and substance as required by
the Exchange Act. A senior officer in charge of the servicing function of the
Master Servicer shall sign each Form 10-K filed on behalf of the Trust. The
Form 10-K shall include as exhibits each (i) annual compliance statement
described under Section 3.09, (ii) annual report on assessments of compliance
with servicing criteria described under Section 9.07 and (iii) accountant's
report described under Section 9.07. Each Form 10-K shall also include any
Xxxxxxxx-Xxxxx Certification required to be included with it, as described in
Section 9.05.
If the Item 1119 Parties listed on Exhibit H have changed since the
Closing Date, by no later than March 1 of each year, the Master Servicer shall
provide each of the Master Servicer (and the Master Servicer shall provide any
subservicer), the Indenture Trustee and the Co-Indenture Trustee with an
updated Exhibit H setting forth the Item 1119 Parties. No later than March 15
of each year, commencing in 2007, the Master Servicer, the Indenture Trustee
and the Co-Indenture Trustee shall notify (and the Master Servicer shall cause
any subservicer to notify) the Depositor and the Master Servicer of any Form
10-K Disclosure Item, together with a description of any such Form 10-K
Disclosure Item in form and substance reasonably acceptable to the Depositor.
Additionally, each of the Master Servicer, the Indenture Trustee and the
Co-Indenture Trustee shall provide, and shall cause each Reporting
Subcontractor retained by the Master Servicer, the Indenture Trustee or the
Co-Indenture Trustee, as applicable, and in the case of the Master Servicer
shall cause each subservicer, to provide, the following information no later
than March 15 of each year in which a Form 10-K is required to be filed on
behalf of the Trust: (i) if such Person's report on assessment of compliance
with servicing criteria described under Section 9.07 or related registered
public accounting firm attestation report described under Section 9.07
identifies any material instance of noncompliance, notification of such
instance of noncompliance and (ii) if any such Person's report on assessment
of compliance with servicing criteria or related registered public accounting
firm attestation report is not provided to be filed as an exhibit to such Form
10-K, information detailing the explanation why such report is not included.
Section 9.05. Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange
Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff)). No later than March 15 of
each year, beginning in 2007, the Master Servicer, the Indenture Trustee and
the Co-Indenture Trustee shall (unless such person is the Certifying Person),
and the Master Servicer shall cause each subservicer and Reporting
Subcontractor and the Indenture Trustee shall cause each Reporting
Subcontractor to, provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the "Certifying Person") a certification (each, a "Performance
Certification"), in the form attached hereto as Exhibit F-1 (in the case of a
subservicer and the
46
Co-Indenture Trustee) and Exhibit F-2 (in the case of the Indenture Trustee),
on 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. The senior officer in charge of the servicing function of the
Master Servicer shall serve as the Certifying Person on behalf of the Trust.
Neither the Master Servicer nor the Depositor will request delivery of a
certification under this clause unless the Depositor is required under the
Exchange Act to file an annual report on Form 10-K with respect to the Trust
Fund. In the event that prior to the filing date of the Form 10-K in March of
each year, the Indenture Trustee, the Co-Indenture Trustee or the Depositor
has actual knowledge of information material to the Xxxxxxxx-Xxxxx
Certification, the Indenture Trustee, the Co-Indenture Trustee or the
Depositor, as the case may be, shall promptly notify the Master Servicer and
the Depositor. The respective parties hereto agree to cooperate with all
reasonable requests made by any Certifying Person or Certification Party in
connection with such Person's attempt to conduct any due diligence that such
Person reasonably believes to be appropriate in order to allow it to deliver
any Xxxxxxxx-Xxxxx Certification or portion of that certification with respect
to the Trust.
Section 9.06. Form 15 Filing.
Prior to January 30 of the first year in which the Depositor is able
to do so under applicable law, [the Indenture Trustee, on behalf of ]the
Depositor shall file a Form 15 relating to the automatic suspension of
reporting in respect of the Trust Fund under the Exchange Act.
Section 9.07. Report on Assessment of Compliance and Attestation.
On or before March 15 of each calendar year, commencing in 2007:
(i) Each of the Master Servicer, the Indenture Trustee and
the Co-Indenture Trustee shall deliver to the Depositor and the
Master Servicer a report (in form and substance reasonably
satisfactory to the Depositor) regarding the Master Servicer's, the
Indenture Trustee's or the Co-Indenture Trustee's, as applicable,
assessment of compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report shall be signed by an authorized officer of such Person and
shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit I delivered to the
Depositor concurrently with the execution of this Agreement. To the
extent any of the Servicing Criteria are not applicable to such
Person, with respect to asset-backed securities transactions taken as
a whole involving such Person and that are backed by the same asset
type backing the Notes, the report shall include such a statement to
that effect. The Depositor and the Master Servicer, and each of their
respective officers and directors, will be entitled to rely on upon
each such servicing criteria assessment.
(ii) Each of the Master Servicer, the Indenture Trustee and
the Co-Indenture Trustee shall deliver to the Depositor and the
Master Servicer a report of a registered public accounting firm
reasonably acceptable to the Depositor that attests to, and reports
on, the assessment of compliance made by Master Servicer, the
Indenture
47
Trustee or the Co-Indenture Trustee, as applicable, and delivered
pursuant to the preceding paragraphs. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under
the Securities Act and the Exchange Act, including, without
limitation that in the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Such report must
be available for general use and not contain restricted use language.
To the extent any of the Servicing Criteria are not applicable to
such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the
same asset type backing the Notes, such report shall include such a
statement that that effect. ( iii) The Master Servicer shall cause
each subservicer and each Reporting Subcontractor to deliver to the
Depositor an assessment of compliance and accountant's attestation as
and when provided in paragraphs (a) and (b) of this Section 9.07.
(iv) Each of the Indenture Trustee and the Co-Indenture
Trustee shall cause each Reporting Subcontractor to deliver to the
Depositor and the Master Servicer an assessment of compliance and
accountant's attestation as and when provided in paragraphs (a) and
(b) of this Section.
(v) The Master Servicer, the Indenture Trustee and the
Co-Indenture Trustee shall execute (and the Master Servicer shall
cause each subservicer to execute, and the Master Servicer, the
Indenture Trustee and the Co-Indenture Trustee shall cause each
Reporting Subcontractor to execute) a reliance certificate to enable
the Certification Parties to rely upon each (i) annual compliance
statement provided pursuant to Section 3.09, (ii) annual report on
assessments of compliance with servicing criteria provided pursuant
to this Section 9.07 and (iii) accountant's report provided pursuant
to this Section 9.07 and shall include a certification that each such
annual compliance statement or report discloses any deficiencies or
defaults described to the registered public accountants of such
Person to enable such accountants to render the certificates provided
for in this Section 9.07.
In the event the Master Servicer, any subservicer, the Indenture
Trustee or Reporting Subcontractor is terminated or resigns during the term of
this Agreement, that Person shall provide documents and information required
by this Section 9.07 with respect to the period of time it was subject to this
Agreement or provided services with respect to the Trust, the Notes or the
Mortgage Loans.
Each assessment of compliance provided by a subservicer pursuant to
Section 9.07(a)(3) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit G delivered to the
Depositor concurrently with the execution of this Agreement or, in the case of
a subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant
to Section 9.07(a)(3) or (4) need not address any elements of the Servicing
Criteria other than those specified by the Master Servicer, the Indenture
Trustee or the Co-Indenture Trustee, as applicable, pursuant to Section
9.07(a)(1).
48
Section 9.08. Use of Subservicers and Subcontractors.
The Master Servicer shall cause any subservicer used by the Master
Servicer (or by any subservicer) for the benefit of the Depositor to comply
with the provisions of Section 3.09 and this Article XI to the same extent as
if such subservicer were the Master Servicer (except with respect to the
Master Servicer's duties with respect to preparing and filing any Exchange Act
Reports or as the Certifying Person). The Master Servicer shall be responsible
for obtaining from each subservicer and delivering to the Depositor any
servicer compliance statement required to be delivered by the subservicer
under Section 3.09, any assessment of compliance and attestation required to
be delivered by the subservicer under Section 9.07 and any certification
required to be delivered to the Certifying Person under Section 9.05 as and
when required to be delivered. As a condition to the succession to any
Subservicer as subservicer under this Agreement by any Person (i) into which
such Subservicer may be merged or consolidated, or (ii) which may be appointed
as a successor to any Subservicer, the Master Servicer shall provide to the
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K.
It shall not be necessary for the Master Servicer, any subservicer,
the Indenture Trustee or the Co-Indenture Trustee to seek the consent of the
Depositor or any other party hereto to the utilization of any Subcontractor.
The Master Servicer, the Indenture Trustee or the Co-Indenture Trustee, as
applicable, shall promptly upon request provide to the Depositor (or any
designee of the Depositor, such as the Master Servicer or administrator) a
written description (in form and substance satisfactory to the Depositor) of
the role and function of each Subcontractor utilized by such Person (or in the
case of the Master Servicer, 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.
As a condition to the utilization of any Subcontractor determined to
be a Reporting Subcontractor, the Master Servicer, the Indenture Trustee or
the Co-Indenture Trustee, as applicable, shall cause any such Subcontractor
used by such Person (or in the case of the Master Servicer, any subservicer)
for the benefit of the Depositor to comply with the provisions of Sections
9.07 and 9.09 of this Agreement to the same extent as if such Subcontractor
were the Master Servicer (except with respect to the Master Servicer's duties
with respect to preparing and filing any Exchange Act Reports or as the
Certifying Person), the Indenture Trustee or the Co-Indenture Trustee, as
applicable. The Master Servicer, the Indenture Trustee or the Co-Indenture
Trustee, as applicable, shall be responsible for obtaining from each
Subcontractor and delivering to the Depositor and the Master Servicer, any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 9.05 and Section 9.07, in each case as and when
required to be delivered.
49
Section 9.09. Amendments.
In the event the parties to this Agreement desire to further clarify
or amend any provision of this Article IX, this Agreement shall be amended to
reflect the new agreement between the parties covering matters in this Article
IX pursuant to Section 8.01, which amendment shall not require any Opinion of
Counsel or Rating Agency confirmations or the consent of any Noteholder or the
Credit Enhancer.
If, during the period that the Depositor is required to file Exchange
Act Reports with respect to the Trust Fund, the Master Servicer is no longer
an Affiliate of the Depositor, the Depositor shall assume the obligations and
responsibilities of the Master Servicer in this Article IX with respect to the
preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Master Servicer satisfactory to the Depositor, and such Master Servicer has
agreed to provide a Xxxxxxxx-Xxxxx Certification to the Depositor
substantially in the form of Exhibit I.
50
IN WITNESS WHEREOF, the Depositor, the Sponsor and Master Servicer,
the Trust, and the Indenture Trustee have caused this Agreement to be duly
executed by their respective officers all as of the day and year first above
written.
CWHEQ, INC.
Depositor
By: __________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
Sponsor and Master Servicer
By: __________________________________
Name:
Title:
_________________________________,
Indenture Trustee
By: __________________________________
Name:
Title:
51
CWHEQ REVOLVING HOME EQUITY LOAN
TRUST, SERIES 200_-_
By: ___________________, not in its
individual capacity but solely
as Owner Trustee
By: __________________________________
Name:
Title:
52
State of __________________ )
) ss.:
County of _________________ )
On the ____ day of _______, 200_ before me, a notary public in and
for the State of ________________, personally appeared _________, known to me
who, being by me duly sworn, did depose and say that he resides at
___________, ________; that he is the _________ of CWHEQ, Inc. a Delaware
corporation, one of the parties that executed the foregoing instrument; that
he signed his name thereto by order of the Board of Directors of said
corporation.
____________________
Notary Public
Commission # ________________
Notary Public - ________________
________________ County
My Comm. Expires _______, 200_.
53
State of __________________ )
) ss.:
County of _________________ )
On the ____ day of _______, 200_ before me, a notary public in and
for the State of ________________, personally appeared ________________, known
to me who, being by me duly sworn, did depose and say that he resides at
________________, ________________; that he is the ________________ of
Countrywide Home Loans, Inc., a New York corporation, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
__________________
Notary Public
________________
Commission # ________________
Notary Public - ________________
________________ County
My Comm. Expires _______, 200_.
54
State of __________________ )
) ss.:
County of _________________ )
On the ____ day of _______, 200_ before me, a notary public in and
for the State of ________________, personally appeared ________________, known
to me who, being by me duly sworn, did depose and say that he resides at
________________, ________________; that he is the ________________ of
________________, a ________________, one of the parties that executed the
foregoing instrument; that he signed his name thereto by order of the Board of
Directors of said corporation.
Notary Public
OFFICIAL SEAL
________________
Notary Public, State of ________________
My Commission Expires: ________________
55
State of __________________ )
) ss.:
County of _________________ )
On the ____ day of _______, 200_ before me, a notary public in and
for the State of ________________, personally appeared ________________, known
to me who, being by me duly sworn, did depose and say that she resides at
________________, ________________; that she is a ________________of
________________, not in its individual capacity but in its capacity as Owner
Trustee of CWHEQ Revolving Home Equity Loan Trust, Series 200_-_, one of the
parties that executed the foregoing instrument; that she signed her name
thereto by order of the Board of Directors of said corporation.
________________
Notary Public
________________
Notary Public - State of ________________
My Commission Expires _______, 200_
56
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[Delivered to Indenture Trustee Only]
A-1
EXHIBIT B
FORM OF LETTER OF REPRESENTATIONS
B-1
EXHIBIT C
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
[DATE]
JPMorgan Chase Bank, N.A.
as Indenture Trustee
0 Xxx Xxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Worldwide Securities Services/Global Debt,
Countrywide HEL CWHEQ 200_-_
Attn: Corporate Trust Services Division
Re: CWHEQ, Inc. Revolving Home Equity Loan
Asset Backed Notes, Series 200_-_
--------------------------------------
Gentlemen:
In connection with the administration of the Mortgage Loans held by
you as Indenture Trustee under the Sale and Servicing Agreement, dated as of
September 30, 2005, among CWHEQ, Inc. as Depositor, Countrywide Home Loans,
Inc., as Sponsor and Master Servicer, CWHEQ Revolving Home Equity Loan Trust,
Series 200_-_ and you, as Indenture Trustee (the "Agreement"), we hereby
request a release of the Mortgage File held by you as Indenture Trustee with
respect to the following described Mortgage Loan for the reason indicated
below.
Loan No.:
[MIN No.]
Reason for requesting file:
--------------------------
_________________ 1. Mortgage Loan paid in full. (The Master
Servicer hereby certifies that all
amounts received in connection with the
payment in full of the Mortgage Loan
which are required to be deposited in the
Collection Account pursuant to Section
3.02 of the Agreement have been so
deposited).
_________________ 2. Retransfer of Mortgage Loan. (The Master
Servicer hereby certifies that the
Transfer Deposit Amount has been
deposited in the Collection Account
pursuant to the Agreement).
_________________ 3. The Mortgage Loan is being foreclosed.
_________________ 4. The Mortgage Loan is being re-financed by
another depository institution. (The
Master Servicer hereby certifies that all
amounts received in connection with the
payment in full of the Mortgage Loan
which are required to be deposited in the
Collection Account pursuant to Section
3.02 of the Agreement have been so
deposited).
_________________ 5. Other (Describe).
The undersigned acknowledges that the above Mortgage File will be
held by the undersigned in accordance with the provisions of the Agreement and
will promptly be returned
C-1
to the Indenture Trustee when the need therefor by the Master Servicer no
longer exists unless the Mortgage Loan has been liquidated or retransferred.
Capitalized terms used herein shall have the meanings ascribed to
them in the Agreement.
COUNTRYWIDE HOME LOANS, INC.
By:_______________________________
Name:
Title: Servicing Officer
C-2
EXHIBIT D
FORM OF TRANSFER DOCUMENT
The Sponsor hereby transfers to the Depositor, and the Depositor
hereby transfers to the Owner Trustee for the benefit of CWHEQ Revolving Home
Equity Loan Trust, Series 200_-_ the below identified Additional Home Equity
Loans.
Subsequent Closing Date: _________________
Subsequent Cut-off Date: __________________
Cut-off Date Asset Balance: $ ______________
Additional Home Equity Loans:
[Each of the Sponsor's funded Mortgage Loans owned by it for
securitization on the above referenced Subsequent Cut-off Date sequentially by
date beginning with the earliest date on which any of them were funded, and
within a date alphabetically, are hereby transferred to the Trust until either
their aggregate Cut-off Date Asset Balance is as close as possible to equal to
the Cut-off Date Asset Balance indicated above without exceeding it or all of
the loans through the Subsequent Cut-off Date have been transferred.]
This Transfer Document is delivered pursuant to the Purchase
Agreement and the Sale and Servicing Agreement, dated as of _______, 200_,
among CWHEQ, Inc., Countrywide Home Loans, Inc., CWHEQ Revolving Home Equity
Loan Trust, Series 200_-_, and ________________, and the capitalized terms
used in this document have the meanings given to them in those agreements.
Dated: __________ , 200_.
COUNTRYWIDE HOME LOANS, INC. CWHEQ, INC.
By : ___________________ By : ________________________
Name: Name:
Title: Title:
D-1
EXHIBIT E
MONTHLY STATEMENT
The following information is required in each Monthly Statement. The
format of the Monthly Statement is on file with the Indenture Trustee.
(1) the Investor Floating Allocation Percentage for the related
Collection Period;
(2) the Investor Interest Collections and Investor Principal
Collections for the related Collection Period;
(3) the Interest Collections that are not Investor Interest
Collections, the Net Draws Principal Payment, and Interest Collections
allocated to the Net Draws, and Transferor Principal Collections for the
related Collection Period;
(4) the aggregate amount to be paid to the related Classes of Notes;
(5) the amount of Note Interest for each Class of Notes for the
related Interest Period, and the Note Rate for each Class of Notes for the
related Interest Period;
(6) the amount of the Note Interest that is not payable to the
Holders of each Class of Notes on the Payment Date because of insufficient
Investor Interest Collections and Subordinated Transferor Collections;
(7) the amount of any Unpaid Investor Interest Shortfall for each
Class of Notes for the Payment Date and the amount of interest on the
shortfall at the applicable Note Rate for each Class of Notes applicable from
time to time (separately stated) to be paid on the Payment Date;
(8) the amount of the remaining Unpaid Investor Interest Shortfall
for each Class of Notes after giving effect to the payment;
(9) the amount of principal in the payment, separately stating its
components;
(10) the amount of the Investor Loss Amounts for the Payment Date and
the amount of Investor Loss Amounts that will be reimbursed in the payment;
(11) the amount of the aggregate of unreimbursed Investor Loss
Amounts after giving effect to the payment;
(12) the amount of any Basis Risk Carryforward for each Class of
Notes in the payment;
(13) the amount of the remaining Basis Risk Carryforward for each
Class of Notes giving effect to the payment;
(14) the Accelerated Principal Payment Amount and the portion of it
that will be distributed as principal on each Class of Notes pursuant to
Section 8.03(c)(i) of the Indenture on the Payment Date;
E-1
(15) the amount of any Transfer Deposit Amount paid by the Sponsor or
the Depositor during the related Collection Period in connection with
retransfer of Mortgage Loans pursuant to Section 2.07;
(16) the Servicing Fee for the Payment Date;
(17) the amount of the Sponsor Loss Coverage Obligation, the amount
expected to be received from the Sponsor for the payment under such
obligation, and the remaining coverage under Sponsor Loss Coverage Obligation
after the payment on the Payment Date;
(18) the Note Principal Balance or Notional Balance of each Class of
Notes and the factor to seven decimal places obtained by dividing the Note
Principal Balance of each Class of Principal Balance Notes for the Payment
Date by the Original Note Principal Balance of the that Class of Principal
Amount Notes after giving effect to the payment on the Payment Date and to any
reduction in the Note Principal Balance with respect to Investor Loss Amount;
(19) the Transferor Interest after giving effect to the payment and
to any reduction in with respect to Investor Loss Amount on the Payment Date;
(20) whether a Rapid Amortization Event has occurred since the prior
Determination Date, specifying the Rapid Amortization Event if one has
occurred;
(21) whether an Event of Servicing Termination has occurred since the
prior Determination Date, specifying the Event of Servicing Termination if one
has occurred;
(22) whether the Stepdown Date has occurred since the prior
Determination Date;
(23) whether a Trigger Event has occurred since the prior
Determination Date, specifying whether a Stepdown Delinquency Trigger Event is
in effect with respect to that Payment Date or a Stepdown Cumulative Loss
Trigger Event is in effect with respect to that Payment Date;
(24) the amount to be distributed on the Mortgage Loans to the Issuer
pursuant to Section 8.03(c)(vi) of the Indenture;
(25) the amount to be paid to the Master Servicer from Investor
Interest Collections pursuant to Section 8.03(v) of the Indenture;
(26) the Maximum Rate for the related Collection Period and the
Weighted Average Net Loan Rate for the Mortgage Loans for the related
Collection Period;
(27) Loan Pool Balance as of the end of the preceding Collection
Period;
(28) the number and aggregate Asset Balances of Mortgage Loans as to
which the Minimum Monthly Payment is delinquent for 30-59 days, 60-89 days,
and 90 or more days, respectively, as of the end of the preceding Collection
Period;
(29) the book value (within the meaning of 12 C.F.R. ss. 571.13 or
comparable provision) of any real estate acquired through foreclosure or grant
of a deed in lieu of foreclosure;
(30) the amount of any optional advances on the Mortgage Loans
pursuant to Section 4.03 by the Master Servicer included in the payment on the
Payment Date and the aggregate amount of
E-2
optional advances pursuant to Section 4.03 on Mortgage Loans by the Master
Servicer outstanding as of the close of business on the Payment Date;
(31) the number and principal balances of any Mortgage Loans
retransferred to the Transferor pursuant to each of Section 2.04 and Section
2.06;
(32) the amount of Subordinated Transferor Collections included in
the payment;
(33) for the first Payment Date, the number and Cut-off Date Asset
Balance of Mortgage Loans for which the Mortgage Loan File was not delivered
to the Indenture Trustee within 30 days of the Closing Date or Subsequent
Closing Date, as applicable;
(34) the amount being paid to the Class R-[1] Certificates,
(35) the Net Draws for the Payment Date;
(36) the Net Draws Principal Payment for the Payment Date;
(37) the Record Date for that Payment Date;
(38) the Determination Date;
(39) the Payment Date;
(40) the amount of funds received into any of the Collection Account,
Payment Account, and any other account or fund established under the
Transaction Documents, and the sources of the funds;
(41) fees paid to any party under the Transaction Documents, other
than the Servicing Fee;
(42) any insurance premiums and other payments to the Loan Insurance
Policy Provider and the purpose of the payments;
(43) the applicable Mortgage Rate;
(44) the beginning and ending balance of any of the Collection
Account, Payment Account, and any other account or fund established under the
Transaction Documents;
(45) the number and principal balance of the Mortgage Loans at the
beginning and the end applicable period, and the following information for the
Mortgage Loans: the weighted average Mortgage Rate, the weighted average
remaining term to maturity, and the weighted average loan age;
(46) the pool factor;
(47) amount of prepayments;
(48) amount of prepayment charges;
(49) delinquency and loss information for the Mortgage Loans;
(50) any material modifications, extensions, or waiver to any
Mortgage Loan's terms during the applicable period;
E-3
(51) any material breaches by any party to the Transaction Documents
of any representation, warranty, or covenant;
(52) any repurchase or substitution of a Mortgage Loan; and
(53) any material changes to the underwriting, originating,
acquisition or pool selection criteria of any Seller.
The amounts furnished pursuant to clauses (4), (5) (for Note
Interest), (7), (8), (9), (10), and (11) above shall be expressed as a dollar
amount per $1,000 increment of Notes.
E-4
EXHIBIT F-1
FORM OF PERFORMANCE CERTIFICATION
(Subservicer)
[on file with Master Servicer]
F-1-1
EXHIBIT F-2
FORM OF PERFORMANCE CERTIFICATION
(Indenture Trustee)
[on file with Indenture Trustee]
F-2-1
EXHIBIT G
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT OF COMPLIANCE STATEMENT
Each assessment of compliance to be delivered shall address, at a
minimum, the criteria identified as below as "Applicable Servicing Criteria":
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
General Servicing Considerations
-------------------- ----------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements.
-------------------- ----------------------
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
1122(d)(1)(ii) such servicing activities.
-------------------- ----------------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
1122(d)(1)(iii) maintained.
-------------------- ----------------------
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
1122(d)(1)(iv) terms of the transaction agreements.
-------------------- ----------------------
Cash Collection and Administration
-------------------- ----------------------
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
1122(d)(2)(i) in the transaction agreements.
-------------------- ----------------------
Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
1122(d)(2)(ii) personnel.
-------------------- ----------------------
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
1122(d)(2)(iii) approved as specified in the transaction agreements.
-------------------- ----------------------
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
1122(d)(2)(iv) transaction agreements.
-------------------- ----------------------
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
1122(d)(2)(v) to a foreign financial institution means a foreign
-------------------- ----------------------
G-1
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
financial institution that meets the requirements of Rule
13k-1(b)(1) of the Exchange Act.
-------------------- ----------------------
Unissued checks are safeguarded so as to prevent
1122(d)(2)(vi) unauthorized access.
-------------------- ----------------------
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
1122(d)(2)(vii) agreements.
-------------------- ----------------------
Investor Remittances and Reporting
-------------------- ----------------------
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
1122(d)(3)(i) Servicer.
-------------------- ----------------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
1122(d)(3)(ii) other terms set forth in the transaction agreements.
-------------------- ----------------------
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
1122(d)(3)(iii) agreements.
-------------------- ----------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
1122(d)(3)(iv) custodial bank statements.
-------------------- ----------------------
Pool Asset Administration
-------------------- ----------------------
Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related
1122(d)(3)(iv) mortgage loan documents.
-------------------- ----------------------
Mortgage loan and related documents are safeguarded as required
1122(d)(4)(ii) by the transaction agreements.
-------------------- ----------------------
G-2
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
1122(d)(4)(iii) any conditions or requirements in the transaction agreements.
-------------------- ----------------------
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
1122(d)(4)(iv) mortgage loan documents.
-------------------- ----------------------
The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance.
-------------------- ----------------------
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
1122(d)(4)(vi) and related pool asset documents.
-------------------- ----------------------
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
1122(d)(4)(vii) transaction agreements.
-------------------- ----------------------
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
1122(d)(4)(viii) is deemed temporary (e.g., illness or unemployment).
-------------------- ----------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
1122(d)(4)(ix) the related mortgage loan documents.
-------------------- ----------------------
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
1122(d)(4)(x) transaction agreements.
-------------------- ----------------------
G-3
------------------------------------------------------------------------------------------ ----------------------
Applicable Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
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
1122(d)(4)(xi) agreements.
-------------------- ----------------------
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
1122(d)(4)(xii) omission.
-------------------- ----------------------
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
1122(d)(4)(xiii) specified in the transaction agreements.
-------------------- ----------------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the
1122(d)(4)(xiv) transaction agreements.
-------------------- ----------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation
1122(d)(4)(xv) AB, is maintained as set forth in the transaction agreements.
-------------------- ----------------------
---------------------------------------------------------------------
-------------------- --------------------------------------------------------------------- ----------------------
[NAME OF MASTER SERVICER] [NAME OF TRUSTEE]
[NAME OF SUBSERVICER]
Date: _________________________
By: ________________________________
Name:
Title:
G-4
EXHIBIT H
XXXXXXXX-XXXXX CERTIFICATION
(Replacement of Master Servicer)
H-1
ANNEX 1
DEFINITIONS
"Additional Information" has the meaning set forth in Section 9.02.
"Adoption Annex" means Annex 2 to this Agreement.
"Affiliate" of any person means any other person controlling,
controlled by or under common control with the person. For purposes of this
definition, "control" means the power to direct the management and policies of
a person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise and "controlling" and "controlled" shall
have meanings correlative to the foregoing.
"Agreement" means this Sale and Servicing Agreement.
"Appraised Value" for any Mortgaged Property means the value
established by any of the following: (i) a full appraisal, drive-by appraisal
or electronic appraisal of the Mortgaged Property made to establish compliance
with the underwriting criteria then in effect in connection with the
application for the Mortgage Loan secured by the Mortgaged Property, and (ii)
with respect to any Mortgage Loan as to which the Servicer consents to a new
senior lien pursuant to Section 3.01(a), in compliance with the underwriting
criteria then in effect in connection with the application for the related
senior mortgage loan.
"Certification Party" has the meaning set forth in Section 9.05.
"Certifying Person" has the meaning set forth in Section 9.05.
"Collection Account" means the Eligible Account or Eligible Accounts
created and maintained for the benefit of the Noteholders, the Transferor, and
the Credit Enhancer pursuant to Section 3.02(b).
"Combined Loan-to-Value Ratio" for any Mortgage Loan as of any date
means a fraction
o whose numerator is the sum of (i) the Credit Limit and (ii) the
outstanding principal balance (plus, for any negatively amortizing loan,
the applicable negative amortization cap in excess of its outstanding
principal balance) as of the date of execution of the related original
Credit Line Agreement (or any subsequent date as of which the outstanding
principal balance may be determined in connection with an increase in the
Credit Limit for the Mortgage Loan) of any mortgage loans that are senior
or equal in priority to the Mortgage Loan and that are secured by the
same Mortgaged Property and
o whose denominator is the Valuation of the related Mortgaged
Property.
"Commission" means the U.S. Securities and Exchange Commission.
"Credit Limit Utilization Rate" for any Mortgage Loan means a
fraction whose numerator is the Cut-off Date Asset Balance for the Mortgage
Loan and whose denominator is the related Credit Limit.
Xxx-1-1
"Cut-off Date Loan Balance" means the Loan Balance calculated as of
the Cut-off Date.
"Defective Mortgage Loan" means a Mortgage Loan subject to retransfer
pursuant to Section 2.02(b) or 2.04(d).
"Delay Delivery Certification" has the meaning given to it in the
Custodial Agreement.
"Depositor" means CWHEQ, Inc., a Delaware corporation, or its
successor in interest.
"Due Date" for any Mortgage Loan means the fifteenth day of the
month.
"XXXXX" means The Commission's Electronic Data Gathering, Analysis
and Retrieval system.
"Electronic Ledger" means the electronic master record of home equity
credit line mortgage loans maintained by the Master Servicer or by the
Sponsor, as appropriate.
"Eligible Substitute Mortgage Loan" means a Mortgage Loan transferred
to the Trust by the Sponsor in connection with the retransfer of a Defective
Mortgage Loan that must, on the date of its transfer to the Trust,
(i) have an outstanding Asset Balance (or in the case of a
substitution of more than one Mortgage Loan for a Defective Mortgage
Loan, an aggregate Asset Balance), not 10% more than the Transfer
Deficiency relating to the Defective Mortgage Loan;
(ii) have a Loan Rate not less than the Loan Rate of the
Defective Mortgage Loan and not more than 1.000% in excess of the
Loan Rate of the Defective Mortgage Loan;
(iii) have a Loan Rate based on the same Index with
adjustments to the Loan Rate made on the same Interest Rate
Adjustment Date as that of the Defective Mortgage Loan;
(iv) have a FICO score not less than the FICO score of the
Defective Mortgage Loan and not more than 50 points higher than the
Defective Mortgage Loan;
(v) have a Gross Margin that is not less than the Gross
Margin of the Defective Mortgage Loan and not more than 100 basis
points higher than the Gross Margin for the Defective Mortgage Loan;
(vi) if the Mortgage Loan is being transferred to the Trust
in connection with the retransfer a Defective Mortgage Loan in Loan
Group 1, the Mortgage Loan's original principal balance (by credit
limit) conforms to Xxxxxx Xxx or Xxxxxxx Mac guidelines;
(vii) have a mortgage of the same or higher level of
priority as the mortgage relating to the Defective Mortgage Loan at
the time the mortgage was transferred to the Trust;
Xxx-1-2
(viii) have a remaining term to maturity not more than six
months earlier than the remaining term to maturity of the Defective
Mortgage Loan, not later than the maturity date of the related Notes,
and not more than 60 months later than the remaining term to maturity
of the Defective Mortgage Loan;
(ix) comply with each representation and warranty in Section
2.04 (to be made as of the date of transfer to the Trust); and (x)
have an original Combined Loan-to-Value Ratio not greater than that
of the Defective Mortgage Loan.
More than one Eligible Substitute Mortgage Loan may be substituted for a
Defective Mortgage Loan if the Eligible Substitute Mortgage Loans meet the
foregoing attributes in the aggregate and the substitution is approved in
advance by the Credit Enhancer. The procedures applied by the Sponsor in
selecting each Eligible Substitute Mortgage Loan shall not be materially
adverse to the interests of the Indenture Trustee, the Transferor, the
Noteholders, or the Credit Enhancer.
"Event of Servicing Termination" has the meaning given to it in
Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the reuls and regulations promulgated thereunder.
"Exchange Act Reports" means any reports on form 10-D, Form 8-K and
Form 10-K required to be filed by the Depositor with respect to the Trust Fund
under the Exchange Act.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor to it.
"Foreclosure Profit" on a Liquidated Mortgage Loan means the excess of
(i) the aggregate of its Net Liquidation Proceeds over
(ii) the related Asset Balance (plus accrued and unpaid
interest on it at the applicable Loan Rate from the date interest was
last paid to the end of the Collection Period during which the
Mortgage Loan became a Liquidated Mortgage Loan) of the Liquidated
Mortgage Loan immediately before the final recovery of its
Liquidation Proceeds.
"Form 10-D Disclosure Item" means with respect to any
Person, any material litigation or governmental proceedings pending
against such Person, or against any of the Trust Fund, the Depositor,
the Trustee or the Master Servicer or any Subservicer, if such Person
has actual knowledge thereof.
"Form 10-K Disclosure Item" means with respect to any
Person, (a) Form 10-D Disclosure Item, and (b) any affiliations or
relationships between such Person and any Item 1119 Party.
"Gross Margin" for any Mortgage Loan means the percentage shown as
the "Gross Margin" for the Mortgage Loan on Exhibit A.
"Indenture" means the indenture of even date with this Agreement
between the Trust and the Indenture Trustee.
Xxx-1-3
"Indenture Trustee Fee" means a fee that is separately agreed to
between the Master Servicer and the Indenture Trustee.
"Indenture Trustee Fee Rate" means the per annum rate at which the
Indenture Trustee Fee is calculated.
"Index" for each Interest Rate Adjustment Date for a Mortgage Loan
means the highest "prime rate" as published in the "Money Rates" table of The
Wall Street Journal as of the first business day of the calendar month.
"Initial Mortgage Loans" means the Mortgage Loans acquired by the
Trust on the Closing Date identified on Exhibit A.
"Insurance Proceeds" means proceeds paid by any insurer (other than
the Credit Enhancer under the Policy) pursuant to any insurance policy
covering a Mortgage Loan net of any amount (i) covering any expenses of the
Master Servicer in connection with obtaining the proceeds, (ii) applied to the
restoration or repair of the related Mortgaged Property, (iii) released to the
mortgagor in accordance with the Master Servicer's normal servicing
procedures, or (iv) required to be paid to any holder of a mortgage senior to
the Mortgage Loan.
"Interest Rate Adjustment Date" for each Mortgage Loan means any date
on which the Loan Rate is adjusted in accordance with the related Credit Line
Agreement.
"Item 1119 Party" means the Depositor, any Seller, the Master
Servicer, the Trustee, any Subservicer, any originator identified in the
Prospectus Supplement,[ the Corridor Contract Counterparty, the Credit
Enhancer] and any other material transaction party, as identified in Exhibit
H, as updated pursuant to Section 9.04.
"Latest Subsequent Closing Date" means the date specified in the
Adoption Annex.
"Lien" means any mortgage, deed of trust, pledge, conveyance,
hypothecation, assignment, participation, deposit arrangement, encumbrance,
lien (statutory or other), preference, priority right, or interest or other
Security Agreement or preferential arrangement of any kind or nature
whatsoever, including any conditional sale or other title retention agreement,
any financing lease having substantially the same economic effect as any of
the foregoing, and the filing of any Financing Statement under the UCC (other
than any Financing Statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing except
that any assignment pursuant to Section 5.02 is not a Lien.
"Lifetime Rate Cap" for each Mortgage Loan whose related Mortgage
Note provides for a lifetime rate cap means the maximum Loan Rate permitted
over the life of the Mortgage Loan under the terms of the related Credit Line
Agreement, as shown on the Mortgage Loan Schedule.
"Limited Exchange Act Reporting Obligations" means the obligations of
the Master Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with
respect to notice and information to be provided to the Depositor and Article
XI (except Section 11.07(a)(1) and (2)).
Xxx-1-4
"Liquidated Mortgage Loan" for any Payment Date means any Mortgage
Loan in respect of which the Master Servicer has determined, in accordance
with the servicing procedures specified in this Agreement, as of the end of
the related Collection Period, that all Liquidation Proceeds which it expects
to recover with respect to the disposition of the Mortgage Loan or the related
REO have been recovered.
"Liquidation Expenses" means out-of-pocket expenses (exclusive of
overhead) that are incurred by the Master Servicer in connection with the
liquidation of any Mortgage Loan and not recovered under any insurance policy,
including legal fees and expenses, any unreimbursed amount expended pursuant
to Section 3.06 (including amounts advanced to correct defaults on any
mortgage loan which is senior to the Mortgage Loan and amounts advanced to
keep current or pay off a mortgage loan that is senior to the Mortgage Loan)
respecting the related Mortgage Loan and any related and unreimbursed
expenditures with respect to real estate property taxes, water or sewer taxes,
condominium association dues, property restoration or preservation or
insurance against casualty, loss or damage.
"Liquidation Proceeds" means proceeds (including Insurance Proceeds
but not including amounts drawn under the Policy) received in connection with
the liquidation of any Mortgage Loan or related REO, whether through trustee's
sale, foreclosure sale or otherwise.
"Loan Rate Cap" for each Mortgage Loan means the lesser of (i) the
Lifetime Rate Cap or (ii) the applicable state usury ceiling.
"Loan-to-Value Ratio" for any date of determination for any mortgage
loan means a fraction whose numerator is the outstanding principal balance of
the mortgage loan as of the date of determination and whose denominator is the
Valuation of the related Mortgaged Property.
"Master Servicer" means Countrywide Home Loans, Inc., a New York
corporation and any successor to it and any successor under this Agreement.
"Minimum Monthly Payment" for any Mortgage Loan and any month means
the minimum amount required to be paid by the related mortgagor in that month.
"Net Liquidation Proceeds" for any Liquidated Mortgage Loan means
Liquidation Proceeds net of Liquidation Expenses.
"Officer's Certificate" means a certificate (i) signed by the
Chairman of the Board, the Vice Chairman of the Board, the President, a
Managing Director, a Vice President (however denominated), an Assistant Vice
President, the Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant Secretaries of the Depositor, the Sponsor, the Transferor, or the
Master Servicer, or (ii), if provided for in this Agreement, signed by a
Servicing Officer.
"Opinion Delivery Date" means the date specified in the Adoption
Annex.
"Opinion of Counsel" means a written opinion of counsel acceptable to
the Indenture Trustee, who may be in-house counsel for the Depositor, the
Sponsor, the Master Servicer, or the Transferor (except that any opinion
pursuant to Section 5.04 or relating to taxation must be
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an opinion of independent outside counsel) and who, in the case of opinions
delivered to the Credit Enhancer or the Rating Agency, is reasonably
acceptable to it.
"Permitted Certification" has the meaning set forth in Section 9.05.
"Purchase Price" with respect to any Mortgage Loan required to be
purchased by the Sponsor pursuant to Section 2.03 or 2.04 or purchased at the
option of the Master Servicer pursuant to Section 3.01 or 3.06 means an amount
equal to the sum of
(i) 100% of the unpaid principal balance of the Mortgage
Loan on the date of such purchase,
(ii) accrued interest on the Mortgage Loan at the applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x) the
purchaser is the Master Servicer or (y) if the purchaser is
Countrywide and Countrywide is an affiliate of the Master Servicer)
from the date through which interest was last paid by the Mortgagor
to the Due Date in the month in which the Purchase Price is to be
distributed to Noteholders, and
(iii) in the case of any Mortgage Loan required to be
purchased by the Sponsor because of, or that arises out of, a
violation of any predatory or abusive lending law with respect to the
related Mortgage Loan, any costs and damages incurred by the Trust
relating to such violation of any predatory or abusive lending law
with respect to the related Mortgage Loan.
"Regulation AB" means Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. ss.ss.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.
"REO" means a Mortgaged Property that is acquired by the Trust in
foreclosure or by deed in lieu of foreclosure.
"Reportable Event" means any event required to be reported on Form
8-K, and in any event, the following:
(a) entry into a definitive agreement related to the Trust Fund, the
Notes or the Mortgage Loans, or an amendment to a Transaction Document, even
if the Depositor is not a party to such agreement (e.g., a servicing agreement
with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination of a Transaction Document (other than by expiration
of the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), even if the Depositor is
not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
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(c) with respect to the Master Servicer only, if the Master Servicer
becomes aware of any bankruptcy or receivership with respect to CHL, the
Depositor, the Master Servicer, any Subservicer, the Trustee, [the Corridor
Contract Counterparty, the Credit Enhancer, any enhancement or support
provider contemplated by Items 1114(b) or 1115 of Regulation AB, or any other
material party contemplated by Item 1101(d)(1) of Regulation AB;
(d) with respect to the Trustee, the Master Servicer and the
Depositor only, the occurrence of an early amortization, performance trigger
or other event, including an Event of Default under this Agreement;
(e) any amendment to this Agreement;
(f) the resignation, removal, replacement, substitution of the Master
Servicer, any Subservicer or the Trustee;
(g) with respect to the Master Servicer only, if the Master Servicer
becomes aware that (i) any material enhancement or support specified in Item
1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB that was
previously applicable regarding one or more Classes of the Notes has
terminated other than by expiration of the contract on its stated termination
date or as a result of all parties completing their obligations under such
agreement; (ii) any material enhancement specified in Item 1114(a)(1) through
(3) of Regulation AB or Item 1115 of Regulation AB has been added with respect
to one or more Classes of the Notes; or (iii) any existing material
enhancement or support specified in Item 1114(a)(1) through (3) of Regulation
AB or Item 1115 of Regulation AB with respect to one or more Classes of the
Notes has been materially amended or modified; and
(h) with respect to the Trustee, the Master Servicer and the
Depositor only, a required distribution to Noteholders is not made as of the
required Payment Date under this Agreement.
"Reporting Subcontractor" means, with respect to the Master Servicer
or the Indenture Trustee, any Subcontractor determined by that Person pursuant
to section 9.08(b) to be "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB. References to a Reporting Subcontractor
shall refer only to the Subcontractor of such Person and shall not refer to
Subcontractors generally.
"Xxxxxxxx-Xxxxx Certification" has the meaning set forth in Section
9.05.
"Seller" means any Seller of Mortgage Loans pursuant to the Purchase
Agreement.
"Servicing Criteria" means the "servicing criteria" set forth in Item
1122(d) of Regulation AB.
"Servicing Certificate" means a certificate completed and executed by
a Servicing Officer in accordance with Section 4.01.
"Servicing Officer" means any officer of the Master Servicer involved
in, or responsible for, the administration and servicing of the Mortgage Loans
whose name and specimen signature appear on a list of servicing officers
furnished to the Indenture Trustee (with
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a copy to the Credit Enhancer) by the Master Servicer on the Closing Date, as
the list may be amended from time to time.
"Sponsor" means Countrywide Home Loans, Inc., a New York corporation
and any successor to it.
"Subcontractor" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgaged-backed securities market) of
Mortgage Loans but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to the Mortgage Loans under the
direction or authority of the Master Servicer or the Trustee or any
subservicer, as the case may be.
"Subsequent Closing Date" means any date designated by the Depositor
on which the Trust acquires Additional Home Equity Loans pursuant to Section
2.01(b).
"Subsequent Cut-off Date" means the cut-off date designated by the
Depositor in a Transfer Document in connection with the acquisition of
Additional Home Equity Loans by the Trust pursuant to Section 2.01(b).
"Transfer Date" has the meaning given to it in Section 2.06.
"Transfer Deficiency" with respect to a Loan Group means that the
excess of the Loan Group Balance of that Loan Group over the Note Principal
Balance of the related Class of Notes after a retransfer of a Mortgage Loan in
the related Loan Group pursuant to Section 2.02(b) or 2.04(d) would be less
than the related Required Transferor Subordinated Amount.
The amount of any Transfer Deficiency with respect to a Loan Group is
the lesser of
o the Asset Balance of the Defective Mortgage Loan and
o the excess of
o the related Required Transferor Subordinated Amount over
o the excess of the Loan Group Balance of that Loan Group over
the Note Principal Balance of the related Class of Notes after a
retransfer of a Mortgage Loan pursuant to Section 2.02(b) or
2.04(d), without taking into account the Asset Balance of any
Eligible Substitute Mortgage Loans transferred to the Trust in
connection with the Transfer Deficiency.
In any computation involving a Mortgage Loan required to be purchased
by the Sponsor because of, or arising out of, a violation of any predatory or
abusive lending law with respect to the Mortgage Loan, the Transferor Interest
shall be reduced for any costs and damages incurred by the Trust relating to
the violation of any predatory or abusive lending law with respect to the
Mortgage Loan.
"Transfer Deposit Amount" has the meaning given to it in Section
2.07.
"Transfer Document" means a document substantially in the form of
Exhibit D.
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"Transfer Notice Date" has the meaning given to it in Section 2.06.
"Valuation" of any Mortgaged Property means the lesser of (i) the
Appraised Value of the Mortgaged Property and (ii) in the case of a Mortgaged
Property purchased within one year of the origination of the related Mortgage
Loan, the purchase price of the Mortgaged Property.
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The following have the meanings given to them in the Indenture:
Accelerated Principal Payment Amount
Additional Balance
Additional Home Equity Loans
Additional Loan Account
Adjusted Loan Group Balance
Allocated Transferor Interest
Asset Balance
Assignment of Mortgage
Available Transferor Subordinated Amount
Basis Risk Carryforward
Business Day
Closing Date
Code
Collection Period
Corporate Trust Office
Credit Enhancement Draw Amount
Credit Enhancer
Credit Enhancer Default
Credit Limit
Credit Line Agreement
Custodial Agreement
Cut-off Date
Cut-off Date Asset Balance
Determination Date
Eligible Account
Eligible Investments
Guaranteed Principal Payment Amount
Indenture Trustee
Initial Mortgage File
Insolvency Event
Insurance Agreement
Interest Collections
Interest Formula Rate
Interest Period
Investor Fixed Allocation Percentage
Investor Floating Allocation Percentage
Investor Interest Collections
Investor Loss Amount
Investor Loss Reduction Amount
Investor Principal Collections
Issuer Request
Loan Group
Loan Group Balance
Loan Rate
Managed Amortization Period
Maximum Rate
MERS
MERS(R) System
MIN
Minimum Transferor Interest
MOM Loan
Xxxxx'x
Mortgage File
Mortgage Loan
Mortgage Loan Schedule
Mortgage Note
Mortgaged Property
Note
Note Rate
Note Interest
Note Principal Balance
Noteholder or Holder
Note Owner
Note Register and Note Registrar
Original Note Principal Balance
Outstanding Amount
Paying Agent
Payment Date
Policy
Principal Collections
Purchase Agreement
Rapid Amortization Event
Rating Agency
Rating Agency Condition
Required Transferor Subordinated Amount
Responsible Officer
Scheduled Principal Collections Payment Amount
Servicing Fee
Standard & Poor's
Transferor
Transferor Certificates
Transferor Interest
Transferor Principal Collections
Trust
Xxx-1-10
Trust Agreement
UCC
Unpaid Investor Interest Shortfall
Weighted Average Net Loan Rate
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ANNEX 2
ADOPTION ANNEX
The initial aggregate principal amount of the Notes is
$_______________, the initial aggregate principal amount of the Class [1]-A
Notes is $______________, and the initial aggregate principal amount of the
Class [2]-A Notes is $_____________.
The title of the Collection Account is "_____________ as Indenture
Trustee, Collection Account in trust for the registered holders of Revolving
Home Equity Loan Asset Backed Notes, Series 200_-_ and [CREDIT ENHANCER]."
The date on which the Master Servicer delivers the Officer's
Certificate in each year is March 15, and the first Officer's Certificate
pursuant to Section 3.09 is ___________, 200_.
The date on which the Master Servicer delivers the annual servicing
report in each year is March 15, and the first annual servicing report
pursuant to Section 3.10 is ___________, 200_.
The "Latest Subsequent Closing Date" is ____________, 200_.
The Opinion Delivery Date is ___________, 200_.
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