EXECUTION COPY
BEAR XXXXXXX ASSET BACKED SECURITIES I LLC,
Depositor
EMC MORTGAGE CORPORATION,
Seller and Servicer
XXXXX FARGO BANK, N.A.,
Master Servicer and Securities Administrator
and
JPMORGAN CHASE BANK, N.A.
Trustee
______________________________________
POOLING AND SERVICING AGREEMENT
Dated as of April 1, 2005
______________________________________
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
Section 1.01. Defined Terms..................................................................................1
ARTICLE II.
CONVEYANCE OF TRUST FUND REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Trust Fund......................................................................35
Section 2.02. Acceptance of the Mortgage Loans..............................................................37
Section 2.03. Representations, Warranties and Covenants of the Master Servicer, the EMC Servicer and
the Seller....................................................................................39
Section 2.03(A) Assignment of Interests in the Servicing Agreements...........................................48
Section 2.04. Representations and Warranties of the Depositor...............................................48
Section 2.05. Delivery of Opinion of Counsel in Connection with Substitutions and Repurchases..............49
Section 2.06. Authentication and Delivery of Certificates...................................................50
Section 2.07. Covenants of the Master Servicer and the EMC Servicer.........................................50
Section 2.08. Lost Mortgage Notes Indemnity.................................................................51
ARTICLE III.
ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
Section 3.01. The Master Servicer...........................................................................52
Section 3.02. REMIC-Related Covenants.......................................................................52
Section 3.03. Monitoring of Servicers.......................................................................52
Section 3.04. Successor Master Servicer and Subservicing Agreements.........................................54
Section 3.05. Power to Act; Procedures......................................................................54
Secton 3.06. Due-on-Sale Clauses; Assumption Agreements....................................................55
Section 3.07. Release of Mortgage Files.....................................................................55
Section 3.08. Documents, Records and Funds in Possession of the Master Servicer To Be Held for Trustee.....56
Section 3.09. Maintenance of Hazard Insurance...............................................................56
Section 3.10. Presentment of Claims and Collection of Proceeds..............................................57
Section 3.11. Maintenance of the Primary Mortgage Insurance Policies........................................57
Section 3.12. Custodian to Retain Possession of Certain Insurance Policies and Documents...................57
Section 3.13. Realization Upon Defaulted Mortgage Loans.....................................................58
Section 3.14. Compensation for the Servicers and the Master Servicer........................................58
Section 3.15. REO Property..................................................................................58
Section 3.16. Annual Officer's Certificate as to Compliance.................................................59
Section 3.17. Annual Independent Accountant's Servicing Report..............................................59
Section 3.18. Reports Filed with Securities and Exchange Commission.........................................60
Section 3.19. The EMC Servicer..............................................................................60
Section 3.20. Optional Purchase of Defaulted Mortgage Loans.................................................60
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ARTICLE IV.
ACCOUNTS
Section 4.01. Protected Accounts............................................................................62
Section 4.02. Master Servicer Collection Account............................................................62
Section 4.03. Permitted Withdrawals and Transfers from the Master Servicer Collection Account...............63
Section 4.04. Distribution Account..........................................................................64
Section 4.05. Permitted Withdrawals and Transfers from the Distribution Account.............................65
Section 4.06. Yield Maintenance Account and Yield Maintenance Agreements....................................66
ARTICLE V.
DISTRIBUTIONS AND ADVANCES BY THE MASTER SERVICER
Section 5.01. Advances......................................................................................68
Section 5.02. Compensating Interest Payments................................................................68
Section 5.03. REMIC Distributions...........................................................................69
Section 5.04. Distributions.................................................................................69
Section 5.05. Monthly Statements to Certificateholders......................................................76
Section 5.06. REMIC Designations and Allocations............................................................79
Section 5.07. Supplemental Interest Reserve Fund; WAC Excess................................................81
ARTICLE VI.
THE CERTIFICATES
Section 6.01. The Certificates..............................................................................82
Section 6.02. Certificate Register; Registration of Transfer and Exchange of Certificates...................84
Section 6.03. Mutilated, Destroyed, Lost or Stolen Certificates.............................................87
Section 6.04. Persons Deemed Owners.........................................................................87
Section 6.05. Access to List of Certificateholders' Names and Addresses.....................................88
Section 6.06. Book-Entry Certificates.......................................................................88
Section 6.07. Notices to Depository.........................................................................89
Section 6.08. Definitive Certificates.......................................................................89
Section 6.09. Maintenance of Office or Agency...............................................................89
Section 6.10. Appointment of Paying Agent and Certificate Registrar.........................................90
ARTICLE VII.
THE DEPOSITOR, THE MASTER SERVICER, THE EMC SERVICER AND THE SELLER
Section 7.01. Respective Liabilities of the Depositor, the Master Servicer, the EMC Servicer and the
Seller........................................................................................91
Section 7.02. Merger or Consolidation of the Depositor, the Master Servicer, the EMC Servicer or the
Seller........................................................................................91
Section 7.03. Indemnification of the Trustee, the Master Servicer, the Securities Administrator and
Others........................................................................................91
Section 7.04. Limitation on Liability of the Depositor, the Seller, the Master Servicer, the Securities
Administrator and Others......................................................................92
Section 7.05. Limitation on Resignation of Master Servicer and the EMC Master Servicer......................93
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Section 7.06. Errors and Omissions Insurance; Fidelity Bonds................................................93
ARTICLE VIII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 8.01. Events of Default.............................................................................94
Section 8.02. Trustee to Act; Appointment of Successor......................................................95
Section 8.03. Notification to Certificateholders............................................................97
ARTICLE IX.
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01. Duties of Trustee and Securities Administrator................................................98
Section 9.02. Certain Matters Affecting the Trustee and the Securities Administrator........................99
Section 9.03. Trustee and Securities Administrator Not Liable for Certificates or Mortgage Loans...........101
Section 9.04. Trustee and Securities Administrator May Own Certificates....................................101
Section 9.05. Trustee's and Securities Administrator's Fees and Expenses...................................102
Section 9.06. Eligibility Requirements for Trustee, Securities Administrator and Paying Agent..............102
Section 9.07. Insurance....................................................................................103
Section 9.08. Resignation and Removal of Trustee and Securities Administrator..............................103
Section 9.09. Successor Trustee , Securities Administrator or Successor Paying Agent.......................104
Section 9.10. Merger or Consolidation of Trustee, Securities Administrator or Paying Agent.................104
Section 9.11. Appointment of Co-Trustee or Separate Trustee................................................105
Section 9.12. Tax Matters..................................................................................106
ARTICLE X.
TERMINATION
Section 10.01. Termination upon Liquidation or Repurchase of the Mortgage Loans.............................109
Section 10.02. Final Distribution on the Certificates.......................................................109
Section 10.03. Additional Termination Requirements..........................................................110
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment....................................................................................112
Section 11.02. Recordation of Agreement; Counterparts.......................................................113
Section 11.03. Governing Law................................................................................113
Section 11.04. Intention of Parties.........................................................................113
Section 11.05. Notices......................................................................................114
Section 11.06. Severability of Provisions...................................................................115
Section 11.07. Assignment...................................................................................115
Section 11.08. Limitation on Rights of Certificateholders...................................................115
Section 11.09. Inspection and Audit Rights..................................................................116
Section 11.10. Certificates Nonassessable and Fully Paid....................................................116
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Schedules
---------
Schedule I List of Servicing Agreements
Schedule II List of Assignment, Assumptions and Recognition
Agreements
Exhibits
--------
Exhibit A-1 Form of Class I-A-1
Exhibit A-2 Form of Class I-A-2
Exhibit A-3 Form of Class I-A-3
Exhibit A-4 Form of Class I-M-1
Exhibit A-5 Form of Class I-M-2
Exhibit A-6 Form of Class I-M-3
Exhibit A-7 Form of Class I-M-4
Exhibit A-8 Form of Class I-M-5
Exhibit A-9 Form of Class I-M-6
Exhibit A-10 Form of Class I-B
Exhibit A-11 Form of Class II-A-1
Exhibit A-12 Form of Class II-A-2
Exhibit A-13 Form of Class II-M-1
Exhibit A-14 Form of Class II-M-2
Exhibit A-15 Form of Class II-M-3
Exhibit A-16 Form of Class II-B
Exhibit A-17 Form of Class I-B-IO Certificates
Exhibit A-18 Form of Class II-B-IO Certificates
Exhibit A-19 Form of Class R Certificates
Exhibit B Mortgage Loan Schedule
Exhibit B-I: Schedule of Group I Mortgage Loans
Exhibit B-II: Schedule of Group II Mortgage Loans
Exhibit C Reserved
Exhibit D Form of Transfer Affidavit
Exhibit E Form of Transferor Certificate
Exhibit F Form of Investment Letter (Non-Rule 144A)
Exhibit G Form of Rule 144A Investment Letter
Exhibit H Form of Request for Release
Exhibit I DTC Letter of Representations
Exhibit J Schedule of Mortgage Loans with Lost Notes
Exhibit K EMC Mortgage Loan Servicing
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POOLING AND SERVICING AGREEMENT, dated as of April 1, 2005,
among BEAR XXXXXXX ASSET BACKED SECURITIES I LLC, a Delaware limited liability
company, as depositor (the "Depositor"), EMC MORTGAGE CORPORATION, a Delaware
corporation, as seller (in such capacity, the "Seller") and as servicer (in such
capacity, the "EMC Servicer"), XXXXX FARGO BANK, N.A., a national banking
association, as master servicer (in such capacity, the "Master Servicer") and as
securities administrator (in such capacity, the "Securities Administrator") and
JPMORGAN CHASE BANK, N.A., a New York banking corporation, as trustee (the
"Trustee").
PRELIMINARY STATEMENT
The parties to this Agreement hereby create a common law trust
pursuant to the laws of the State of New York. The Depositor is the owner of the
Trust Fund that is hereby conveyed to the Trustee in return for the
Certificates. As provided herein, the Trustee shall make two separate real
estate mortgage investment conduit (each a "REMIC") elections with respect to
the Trust Fund for Federal income tax purposes.
The Trust Fund shall be named, and may be referred to as, the
"Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2." The Certificates issued
hereunder may be referred to as "Asset-Backed Certificates Series 2005-SD2"
(including for purposes of any endorsement or assignment of a Mortgage Note or
Mortgage).
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer, the Securities Administrator, the Seller,
the EMC Servicer and the Trustee agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Defined Terms.
In addition to those terms defined in Section 1.02, whenever used in
this Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Accepted Master Servicing Practices: With respect to any Mortgage Loan
those customary mortgage servicing practices of prudent mortgage servicing
institutions that master service mortgage loans of the same type and quality as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property is
located, to the extent applicable to the Master Servicer (except in its capacity
as successor to a Servicer) or to the Trustee (in its capacity, if at all, as
Successor Master Servicer).
Account: The Master Servicer Collection Account, each Protected
Account, the Distribution Account and the Yield Maintenance Account.
Accrual Period: With respect to the Adjustable Rate Certificates and
any Distribution Date, the period from and including the preceding Distribution
Date (or, in the case of the first Distribution Date, from the Closing Date) to
and including the day prior to the current Distribution Date. All calculations
of interest on the Adjustable Rate Certificates (including the Interest Rate
Cap) will be made on the basis of the actual number of days elapsed in the
related Accrual Period and in a 360-day year.
Adjustable Rate Certificates: All of the certificates other than the
Class B-IO Certificates and the Residual Certificates.
Advance: An advance of delinquent payments of principal (other than in
respect of delinquent payments of principal on any Simple Interest Loans) or
interest in respect of a Mortgage Loan required to be made by the applicable
Servicer pursuant to the related Servicing Agreement, or by the Master Servicer
pursuant to Section 5.01.
Agreement: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto made in accordance with the terms herein.
Amount Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Master Servicer Collection Account at the close of
business on the immediately preceding Determination Date on account of (i) all
Scheduled Payments or portions thereof received in respect of the Mortgage Loans
due after the related Due Period and (ii) Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and Subsequent Recoveries received in respect of
such Mortgage Loans after the last day of the related Prepayment Period.
Applicable Written Notice: For purposes of Section 8.01, written notice
(i) in the case of the Master Servicer, to the Master Servicer by the Trustee or
the Depositor, or to the Trustee and the Master Servicer by the Holders of
Certificates evidencing not less than 25% of the Voting Rights evidenced by the
Certificates and (b) in the case of the EMC Servicer, to the EMC Servicer by the
Master Servicer
Applied Realized Loss Amount: With respect to any Distribution Date and
each Class of Subordinated Certificates of a Group, the sum of the Realized
Losses with respect to the Mortgage Loans of the related Group, which are to be
applied in reduction of the Certificate Principal Balance of that
Class of Certificates pursuant to, and in the order of priority set forth in
Section 5.04A of this Agreement, which shall on any such Distribution Date, so
long as their respective Certificate Principal Balances have not been reduced to
zero, equal the amount, if any, by which, (i) the aggregate Certificate
Principal Balance of all of the Certificates of the related Group (after all
distributions of principal on such Distribution Date) exceeds (ii) the aggregate
Stated Principal Balance of all of the related Mortgage Loans as of the last day
of the related Due Period.
Appraised Value: With respect to any Mortgage Loan originated in
connection with a refinancing, the appraised value of the Mortgaged Property
based upon the appraisal made at the time of such refinancing or, with respect
to any other Mortgage Loan, the appraised value of the Mortgaged Property based
upon the appraisal made by a fee appraiser at the time of the origination of the
related Mortgage Loan.
Assumption Agreement: Any Assignment, Assumption and Recognition
Agreement or comparable document transferring or acknowledging the transfer of a
Servicing Agreement to the Trust listed on Schedule II hereto.
Balloon Loan: A Mortgage Loan, identified as such on the Mortgage Loan
Schedule, where the related Mortgage Note provides for lowered payments of
principal over the life of such Mortgage Loan and a larger payment of principal
than is usual at its stated maturity.
Bankruptcy Code: Title 11 of the United States Code.
Basis Risk Shortfall: As of any Distribution Date and for any Class of
Adjustable Rate Certificates, the excess of (i) the amount of Current Interest
that such Class would have been entitled to receive on such Distribution Date
had the applicable Pass-Through Rate been calculated based upon the lesser of
11.5% and One-Month LIBOR plus the applicable Certificate Margin for the related
Accrual Period; over (ii) the sum of interest for such Class calculated at the
applicable Interest Rate Cap for such Distribution Date and any amount paid to
such Class under the applicable Yield Maintenance Agreement.
Basis Risk Shortfall Carry Forward Amount: As of any Distribution Date
and for any Class of Adjustable Rate Certificates, the sum of: (i) if on such
Distribution Date the applicable Pass-Through Rate for such Class is based upon
the applicable Interest Rate Cap, the applicable Basis Risk Shortfall; and (ii)
the Basis Risk Shortfall for all previous Distribution Dates not previously paid
(including interest accrued thereon at the applicable Pass-Through Rate for the
Accrual Period with respect to each such prior Distribution Date), together with
interest thereon at a rate equal to the applicable Pass-Through Rate for such
Distribution Date.
Book-Entry Certificates: Any of the Certificates that shall be
registered in the name of the Depository or its nominee, the ownership of which
is reflected on the books of the Depository or on the books of a person
maintaining an account with the Depository (directly, as a "Depository
Participant", or indirectly, as an indirect participant in accordance with the
rules of the Depository and as described in Section 6.06). As of the Closing
Date, each Class of Regular Certificates (other than the Class B-IO
Certificates) constitutes a Class of Book-Entry Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in The City of New York, New York, or the
States of Maryland, Minnesota or Texas, or, if different, the city in which the
Corporate Trust Office of the Trustee or the principal office of the
2
Securities Administrator, the Master Servicer or of a Servicer is located are
authorized or obligated by law or executive order to be closed.
Cede: Cede & Co., or its successors in interest.
Ceiling Rate: For the Group I Senior Yield Maintenance Agreement,
11.00% and, for the Group I Subordinate Yield Maintenance Agreement, 10.00%.
Certificate: Any one of the certificates of any Class executed and
authenticated by the Certificate Registrar in substantially the forms attached
hereto as Exhibits A-1 through A-19.
Certificate Group: Either of the Group I Certificates or the Group II
Certificates.
Certificate Margin: Reference to any of the Class I-A-1 Margin, the
Class I-A-2 Margin, the Class I-A-3 Margin, the Class I-M-1 Margin, the Class
I-M-2 Margin, the Class I-M-3 Margin, the Class I-M-4 Margin, the Class I-M-5
Margin, the Class I-M-6 Margin, the Class I-B Margin, the Class II-A-1 Margin,
the Class II-A-2 Margin, the Class II-M-1 Margin, the Class II-M-2 Margin, the
Class II-M-3 Margin, or the Class II-B Margin.
Certificate Notional Balance: As to the Class B-IO Certificates and any
Distribution Date, the aggregate Stated Principal Balance of the Mortgage Loans
as of the last day of the related Due Period.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
that is the beneficial owner of such Book-Entry Certificate.
Certificate Principal Balance: As to any Certificate (other than any
Class B-IO Certificate or Residual Certificate) and as of any Distribution Date,
the Initial Certificate Principal Balance of such Certificate, reduced by the
sum of (i) all amounts distributed with respect to such Certificate in reduction
of the Certificate Principal Balance thereof on previous Distribution Dates
pursuant to Section 5.04, and (ii) in the case of any Subordinated Certificate,
any Applied Realized Loss Amounts allocated to such Certificate on previous
Distribution Dates, and increased by (iii) in the case of each such Class of
Subordinated Certificates, any Subsequent Recoveries allocated to such Class on
previous Distribution Dates pursuant to Section 5.04A. References herein to the
Certificate Principal Balance of a Class of Certificates shall mean the
Certificate Principal Balances of all Certificates in such Class.
Certificate Register: The register maintained pursuant to Section 6.02
hereof.
Certificate Registrar: The Securities Administrator or any successor
certificate registrar appointed hereunder.
Certificate Registrar Office: The office of the Certificate Registrar
located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: BSABS 2005-SD2.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register (initially, Cede & Co., as nominee for
the Depository, in the case of any Book-Entry Certificates).
Class: All Certificates bearing the same Class designation as set forth
in Section 6.01 hereof.
3
Class I-A-1 Certificate: Any Certificate designated as a "Class I-A-1
Certificate" on the face thereof, in the form of Exhibit A-1 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-A-1 Certificates as set forth herein.
Class I-A-1 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.200% per annum and (ii) thereafter, 0.200% per
annum.
Class I-A-1 Pass-Through Rate: For the first Distribution Date, 3.290 %
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class I-A-1 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class I-A-2 Certificate: Any Certificate designated as a "Class I-A-2
Certificate" on the face thereof, in the form of Exhibit A-2 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-A-2 Certificates as set forth herein.
Class I-A-2 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.470% per annum and (ii) thereafter, 0.940% per
annum.
Class I-A-2 Pass-Through Rate: For the first Distribution Date, 3.560%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class I-A-2 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class I-A-3 Certificate: Any Certificate designated as a "Class I-A-3
Certificate" on the face thereof, in the form of Exhibit A-3 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-A-3 Certificates as set forth herein.
Class I-A-3 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.400% per annum and (ii) thereafter, 0.800% per
annum.
Class I-A-3 Pass-Through Rate: For the first Distribution Date, 3.490%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class I-A-3 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class I-B Certificate: Any Certificate designated as a "Class I-B
Certificate" on the face thereof, in the form of Exhibit A-10 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-B Certificates as set forth herein.
Class I-B Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 2.900% per annum and (ii) thereafter, 4.350% per
annum.
Class I-B Pass-Through Rate: For the first Distribution Date, 5.990%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class I-B Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class I-B-IO Certificate: Any Certificate designated as a "Class I-B-IO
Certificate" on the face thereof, in the form of Exhibit A-17 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-B-IO Certificates herein.
4
Class I-B-IO Distribution Amount: With respect to any Distribution
Date, the amount allocable to the Class I-B-IO Certificates as provided in
Section 5.06(b), note 3, for such Distribution Date and all prior Distribution
Dates, less the aggregate of all amounts distributed (or deemed distributed in
accordance with Section 5.06(e)) with respect to the Class I-B-IO Certificates
on prior Distribution Dates.
Class I-M-1 Certificate: Any Certificate designated as a "Class I-M-1
Certificate" on the face thereof, in the form of Exhibit A-4 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-M-1 Certificates as set forth herein.
Class I-M-1 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.650% per annum and (ii) thereafter, 0.975% per
annum.
Class I-M-1 Pass-Through Rate: For the first Distribution Date, 3.740%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class I-M-1 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class I-M-2 Certificate: Any Certificate designated as a "Class I-M-2
Certificate" on the face thereof, in the form of Exhibit A-5 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-M-2 Certificates as set forth herein.
Class I-M-2 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 1.000% per annum and (ii) thereafter, 1.500% per
annum.
Class I-M-2 Pass-Through Rate: For the first Distribution Date, 4.090%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class I-M-2 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class I-M-3 Certificate: Any Certificate designated as a "Class I-M-3
Certificate" on the face thereof, in the form of Exhibit A-6 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-M-3 Certificates as set forth herein.
Class I-M-3 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 1.150% per annum and (ii) thereafter, 1.725% per
annum.
Class I-M-3 Pass-Through Rate: For the first Distribution Date, 4.240%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class I-M-3 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class I-M-4 Certificate: Any Certificate designated as a "Class I-M-4
Certificate" on the face thereof, in the form of Exhibit A-7 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-M-4 Certificates as set forth herein.
Class I-M-4 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 1.500% per annum and (ii) thereafter, 2.250% per
annum.
Class I-M-4 Pass-Through Rate: For the first Distribution Date, 4.590%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period
5
plus the Class I-M-4 Margin for such Distribution Date and (ii) the applicable
Interest Rate Cap for such Distribution Date.
Class I-M-4 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of the sum of (i) the aggregate
Certificate Principal Balance of the related Class A Certificates (after taking
into account distributions of the related Class A Principal Distribution Amount
for that Distribution Date), the Certificate Principal Balance of the related
Class M-1 Certificates (after taking into account distributions of the related
Class M-1 Principal Distribution Amount for that Distribution Date), the
Certificate Principal Balance of the related Class M-2 Certificates (after
taking into account distributions of the related Class M-2 Principal
Distribution Amount for that Distribution Date), the Certificate Principal
Balance of the related Class M-3 Certificates (after taking into account
distributions of the related Class M-3 Principal Distribution Amount for that
Distribution Date) and the Certificate Principal Balance of the Class I-M-4
Certificates immediately prior to that Distribution Date, over (ii) the lesser
of (a) 89.80% of the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after reduction for Realized
Losses incurred during the related Prepayment Period) and (b) the aggregate
Stated Principal Balance of the Group I Mortgage Loans as of the last day of the
related Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) minus the related Overcollateralization Floor.
Class I-M-5 Certificate: Any Certificate designated as a "Class I-M-5
Certificate" on the face thereof, in the form of Exhibit A-8 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-M-5 Certificates as set forth herein.
Class I-M-5 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 2.900% per annum and (ii) thereafter, 4.350% per
annum.
Class I-M-5 Pass-Through Rate: For the first Distribution Date, 5.990%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class I-M-5 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class I-M-5 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the sum of the aggregate
Certificate Principal Balance of the related Class A Certificates (after taking
into account distributions of the related Class A Principal Distribution Amount
for that Distribution Date), the Certificate Principal Balance of the related
Class M-1 Certificates (after taking into account distributions of the related
Class M-1 Principal Distribution Amount for that Distribution Date), the
Certificate Principal Balance of the related Class M-2 Certificates (after
taking into account distributions of the related Class M-2 Principal
Distribution Amount for that Distribution Date), the Certificate Principal
Balance of the related Class M-3 Certificates (after taking into account
distributions of the related Class M-3 Principal Distribution Amount for that
Distribution Date), the Certificate Principal Balance of the Class I-M-4
Certificates (after taking into account distributions of the Class I-M-4
Principal Distribution Amount for that Distribution Date) and the Certificate
Principal Balance of the Class I-M-5 Certificates immediately prior to that
Distribution Date, over (ii) the lesser of (a) 91.80% of the aggregate Stated
Principal Balance of the Group I Mortgage Loans as of the last day of the
related Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) and (b) the aggregate Stated Principal Balance of the
Group I Mortgage Loans as of the last day of the related Due Period (after
reduction for Realized Losses incurred during the related Prepayment Period)
minus the related Overcollateralization Floor.
6
Class I-M-6 Certificate: Any Certificate designated as a "Class I-M-6
Certificate" on the face thereof, in the form of Exhibit A-9 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class I-M-6 Certificates as set forth herein.
Class I-M-6 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 2.900% per annum and (ii) thereafter, 4.350% per
annum.
Class I-M-6 Pass-Through Rate: For the first Distribution Date, 5.990%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class I-M-6 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class I-M-6 Principal Distribution Amount: For any Distribution Date,
an amount equal to the excess, if any, of (i) the sum of the aggregate
Certificate Principal Balance of the related Class A Certificates (after taking
into account distributions of the related Class A Principal Distribution Amount
for that Distribution Date), the Certificate Principal Balance of the related
Class M-1 Certificates (after taking into account distributions of the related
Class M-1 Principal Distribution Amount for that Distribution Date), the
Certificate Principal Balance of the related Class M-2 Certificates (after
taking into account distributions of the related Class M-2 Principal
Distribution Amount for that Distribution Date), the Certificate Principal
Balance of the related Class M-3 Certificates (after taking into account
distributions of the related Class M-3 Principal Distribution Amount for that
Distribution Date), the Certificate Principal Balance of the Class I-M-4
Certificates (after taking into account distributions of the Class I-M-4
Principal Distribution Amount for that Distribution Date), the Certificate
Principal Balance of the Class I-M-5 Certificates (after taking into account
distributions of the Class I-M-5 Principal Distribution Amount for that
Distribution Date) and the Certificate Principal Balance of the Class I-M-6
Certificates immediately prior to that Distribution Date, over (ii) the lesser
of (a) 92.80% of the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after reduction for Realized
Losses incurred during the related Prepayment Period) and (b) the aggregate
Stated Principal Balance of the Group I Mortgage Loans as of the last day of the
related Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) minus the related Overcollateralization Floor.
Class II-A-1 Certificate: Any Certificate designated as a "Class II-A-1
Certificate" on the face thereof, in the form of Exhibit A-11 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class II-A-1 Certificates as set forth herein.
Class II-A-1 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.330% per annum and (ii) thereafter, 0.660% per
annum.
Class II-A Pass-Through Rate: For the first Distribution Date, 3.420%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class II-A-1 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class II-A-2 Certificate: Any Certificate designated as a "Class II-A-2
Certificate" on the face thereof, in the form of Exhibit A-12 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class II-A-2 Certificates as set forth herein.
Class II-A-2 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.480% per annum and (ii) thereafter, 0.960% per
annum.
7
Class II-A-2 Pass-Through Rate: For the first Distribution Date, 3.570%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class II-A-2 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class II-B Certificate: Any Certificate designated as a "Class II-B
Certificate" on the face thereof, in the form of Exhibit A-16 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class II-B Certificates as set forth herein.
Class II-B Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 2.500% per annum and (ii) thereafter, 3.750% per
annum.
Class II-B Pass-Through Rate: For the first Distribution Date, 5.590%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class II-B Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class II-B-IO Certificate: Any Certificate designated as a "Class
II-B-IO Certificate" on the face thereof, in the form of Exhibit A-18 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class II-B-IO Certificates herein.
Class II-B-IO Distribution Amount: With respect to any Distribution
Date, the amount allocable to the Class II-B-IO Certificates as provided in
Section 5.06(b), note 3, for such Distribution Date and all prior Distribution
Dates, less the aggregate of all amounts distributed (or deemed distributed in
accordance with Section 5.06(e)) with respect to the Class II-B-IO Certificates
on prior Distribution Dates.
Class II-B Yield Maintenance Agreement: The Confirmation, Ref. No.
FXBSD5SO25, dated the Closing Date, by and between the Yield Maintenance
Provider and the Trust, relating to the Class II-B Certificates.
Class II-M-1 Certificate: Any Certificate designated as a "Class II-M-1
Certificate" on the face thereof, in the form of Exhibit A-13 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class II-M-1 Certificates as set forth herein.
Class II-M-1 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 0.650% per annum and (ii) thereafter, 0.975% per
annum.
Class II-M-1 Pass-Through Rate: For the first Distribution Date, 3.740%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class II-M-1 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class II-M-1 Yield Maintenance Agreement: The Confirmation, Ref. No.
FXBS05SD22, dated the Closing Date, by and between the Yield Maintenance
Provider and the Trust, relating to the Class II-M-1 Certificates.
Class II-M-2 Certificate: Any Certificate designated as a "Class II-M-2
Certificate" on the face thereof, in the form of Exhibit A-14 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class II-M-2 Certificates as set forth herein.
8
Class II-M-2 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 1.000% per annum and (ii) thereafter, 1.500% per
annum.
Class II-M-2 Pass-Through Rate: For the first Distribution Date, 4.090%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class II-M-2 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class II-M-2 Yield Maintenance Agreement: The Confirmation, Ref. No.
FXBS05SD23, dated the Closing Date, by and between the Yield Maintenance
Provider and the Trust, relating to the Class II-M-2 Certificates.
Class II-M-3 Certificate: Any Certificate designated as a "Class II-M-3
Certificate" on the face thereof, in the form of Exhibit A-15 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class II-M-3 Certificates as set forth herein.
Class II-M-3 Margin: For any Distribution Date (i) on or prior to the
Optional Termination Date, 2.500% per annum and (ii) thereafter, 3.750% per
annum.
Class II-M-3 Pass-Through Rate: For the first Distribution Date, 5.590%
per annum, and on any Distribution Date thereafter, the lesser of (i) One-Month
LIBOR for the related Accrual Period plus the Class II-M-3 Margin for such
Distribution Date and (ii) the applicable Interest Rate Cap for such
Distribution Date.
Class II-M-3 Yield Maintenance Agreement: The Confirmation, Ref. No.
FXBS05SD24, dated the Closing Date, by and between the Yield Maintenance
Provider and the Trust, relating to the Class II-M-3 Certificates.
Class A Certificates: The Class I-A-1 Certificates, the Class I-A-2,
the Class I-A-3, the Class II-A-1 and the Class II-A-2 Certificates.
Class A Principal Distribution Amount: For a Group and any Distribution
Date and each Group, an amount equal to the excess, if any, of (i) the aggregate
Certificate Principal Balance of the related Class A Certificates immediately
prior to that Distribution Date, over (ii) the lesser of (a) 71.90%, in the case
of Group I and 69.10%, in the case of Group II, of the aggregate Stated
Principal Balance of the Mortgage Loans in the related Group as of the last day
of the related Due Period (after reduction for Realized Losses incurred during
the related Prepayment Period) and (b) the aggregate Stated Principal Balance of
the Mortgage Loans in the related Group as of the last day of the related Due
Period (after reduction for Realized Losses incurred during the related
Prepayment Period) minus the related Overcollateralization Floor
Class B Principal Distribution Amount: For a Group and any Distribution
Date and each Group, an amount equal to the excess, if any, of (i) the sum of
the aggregate Certificate Principal Balance of the related Class A Certificates
(after taking into account distributions of the related Class A Principal
Distribution Amount for that Distribution Date), the Certificate Principal
Balance of the related Class M-1 Certificates (after taking into account
distributions of the related Class M-1 Principal Distribution Amount for that
Distribution Date), the Certificate Principal Balance of the related Class M-2
Certificates (after taking into account distributions of the Class M-2 Principal
Distribution Amount for that Distribution Date), the Certificate Principal
Balance of the related Class M-3 Certificates (after taking into account
distributions of the related Class M-3 Principal Distribution Amount for that
Distribution Date), with respect to Group I, the Certificate Principal Balance
of the Class I-M-4 Certificates (after
9
taking into account distributions of the Class I-M-4 Principal Distribution
Amount for that Distribution Date), with respect to Group I, the Certificate
Principal Balance of the Class I-M-5 Certificates (after taking into account
distributions of the Class I-M-5 Principal Distribution Amount for that
Distribution Date), with respect to Group I, the Certificate Principal Balance
of the Class I-M-6 Certificates (after taking into account distributions of the
Class I-M-6 Principal Distribution Amount for that Distribution Date), and the
Certificate Principal Balance of the related Class B Certificates immediately
prior to that Distribution Date over(ii) the lesser of (a) 95.80%, in the case
of Group I and 95.00%, in the case of Group II, of the aggregate Stated
Principal Balance of the Mortgage Loans of the related Group as of the last day
of the related Due Period (after reduction for Realized Losses incurred during
the related Prepayment Period) and (b) the aggregate Stated Principal Balance of
the Mortgage Loans of the related Group as of the last day of the related Due
Period (after reduction for Realized Losses incurred during the related
Prepayment Period) minus the related Overcollateralization Floor.
Class B-IO Certificates: Collective reference to the Class I-B-IO
Certificates and the Class II-B-IO Certificates.
Class M-1 Principal Distribution Amount: For a Group and any
Distribution Date, an amount equal to the excess, if any, of (i) the sum of the
aggregate Certificate Principal Balance of the related Class A Certificates
(after taking into account distributions of the related Class A Principal
Distribution Amount for that Distribution Date) and the Certificate Principal
Balance of the related Class M-1 Certificates immediately prior to that
Distribution Date, over (ii) the lesser of (a) 82.30%, in the case of Group I
and 81.40%, in the case of Group II, of the aggregate Stated Principal Balance
of the Mortgage Loans of the related Group as of the last day of the related Due
Period (after reduction for Realized Losses incurred during the related
Prepayment Period) and (b) the aggregate Stated Principal Balance of the
Mortgage Loans of the related Group as of the last day of the related Due Period
(after reduction for Realized Losses incurred during the related Prepayment
Period) minus the related Overcollateralization Floor.
Class M-2 Principal Distribution Amount: For a Group and any
Distribution Date, an amount equal to the excess, if any, of (i) the sum of the
aggregate Certificate Principal Balance of the related Class A Certificates
(after taking into account distributions of the related Class A Principal
Distribution Amount for that Distribution Date), the Certificate Principal
Balance of the related Class M-1 Certificates (after taking into account
distributions of the related Class M-1 Principal Distribution Amount for that
Distribution Date) and the Certificate Principal Balance of the related Class
M-2 Certificates immediately prior to that Distribution Date, over (ii) the
lesser of (a) 85.80%, in the case of Group I and 87.70%, in the case of Group
II, of the aggregate Stated Principal Balance of the Mortgage Loans of the
related Group as of the last day of the related Due Period (after reduction for
Realized Losses incurred during the related Prepayment Period) and (b) the
aggregate Stated Principal Balance of the Mortgage Loans of the related Group as
of the last day of the related Due Period (after reduction for Realized Losses
incurred during the related Prepayment Period) minus the related
Overcollateralization Floor.
Class M-3 Principal Distribution Amount: For a Group and any
Distribution Date, an amount equal to the excess, if any, of (i) the sum of the
aggregate Certificate Principal Balance of the related Class A Certificates
(after taking into account distributions of the related Class A Principal
Distribution Amount for that Distribution Date), the Certificate Principal
Balance of the related Class M-1 Certificates (after taking into account
distributions of the related Class M-1 Principal Distribution Amount for that
Distribution Date), the Certificate Principal Balance of the related Class M-2
Certificates (after taking into account distributions of the related Class M-2
Principal Distribution Amount for that Distribution Date) and the Certificate
Principal Balance of the related Class M-3 Certificates immediately prior to
that Distribution Date over (ii) the lesser of (a) 87.80%, in the case of Group
I and 93.80%, in the
10
case of Group II, of the aggregate Stated Principal Balance of the Mortgage
Loans of the related Group as of the last day of the related Due Period (after
reduction for Realized Losses incurred during the related Prepayment Period) and
(c) the aggregate Stated Principal Balance of the Mortgage Loans of the related
Group as of the last day of the related Due Period (after reduction for Realized
Losses incurred during the related Prepayment Period) minus the related
Overcollateralization Floor.
Class R Certificate: Any Certificate designated as a "Class R
Certificate" on the face thereof, in substantially the form set forth in Exhibit
A-19 hereto, and evidencing ownership of each of the residual interest in REMIC
I and REMIC II and representing the right to the Percentage Interest of
distributions provided for the Class R Certificate as set forth herein.
Closing Date: May 13, 2005.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Combined Loan-to-Value Ratio: The fraction, expressed as a percentage,
the numerator of which is the sum of (x) the original principal balance of the
related Mortgage Loan and (y) the outstanding principal balance at the date of
origination of the Mortgage Loan of any senior mortgage loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
Compensating Interest: With respect to any Mortgage Loan and any
Distribution Date, an amount, not to exceed the related Servicing Fee, to be
applied by the EMC Servicer pursuant to Section 2.02 of Exhibit K or by any
other Servicer pursuant to the related Servicing Agreement to the payment of a
Prepayment Interest Shortfall on such Mortgage Loan or by the Master Servicer
pursuant to Section 5.02 hereof.
Corporate Trust Office: The designated office of the Trustee where at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services/Global Debt--BSABS Series 2005-SD2, or
at such other address as the Trustee may designate from time to time. With
respect to the Certificate Registrar and the presentment of Certificates for
registration of transfer, exchange or final payment, Xxxxx Fargo Bank, N.A.,
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust, BSABS 2005-SD2, and for all other purposes, X.X. Xxx 00,
Xxxxxxxx, Xxxxxxxx 00000 (or for overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 21045), Attention: Corporate Trust, BSABS 2005-SD2
Current Interest: As of any Distribution Date, with respect to each
Class of Certificates (other than the Class B-IO Certificates and Residual
Certificates), (i) the interest accrued on the Certificate Principal Balance,
during the related Accrual Period at the applicable Pass-Through Rate plus any
amount previously distributed with respect to interest for such Certificate that
has been recovered as a voidable preference by a trustee in bankruptcy, minus,
to the extent allocated to such Class, (ii) the sum of (a) any Prepayment
Interest Shortfall for such Distribution Date, to the extent not covered by
Compensating Interest, and (b) any shortfalls resulting from application of the
Relief Act or similar state laws during the related Due Period, provided,
however, that for purposes of calculating Current Interest for any such Class,
amounts specified in clause (ii) hereof for any such Distribution Date and
either Group shall be allocated first to the related Class B-IO Certificates and
the Residual Certificates in reduction of amounts otherwise distributable to
such Certificates from each Group on such Distribution Date and then any excess
shall be allocated to each Class of Certificates of the related Group pro rata
11
based on the respective amounts of interest accrued pursuant to clause (i)
hereof for each such Class on such Distribution Date.
Custodial Agreement: The Custodial Agreement, dated as of April 1,
2005, among the Trustee, the Depositor, the Master Servicer and the Custodian,
as amended or supplemented from time to time.
Custodian: Xxxxx Fargo Bank, N.A., as custodian and agent for the
Trustee with respect to the Mortgage Loans.
Cut-off Date: The close of business on April 1, 2005.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date after
application of all Principal Prepayments received prior to the Cut-off Date and,
except with respect to any Simple Interest Loans, scheduled payments of
principal due on or before the Cut-off Date, whether or not received but without
giving effect to any installments of principal received in respect of Due Dates
after the Cut-off Date. The aggregate Cut-Off Date Principal Balance of the
Mortgage Loans in Group I and Group II is $195,604,252.00 and $187,458,778.43,
respectively.
Definitive Certificates: As defined in Section 6.06.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be replaced by a
Replacement Mortgage Loan.
Delinquency Event: A Delinquency Event with respect to a Group shall
have occurred and be continuing if at any time, (x) the three-month rolling
average of the percent equivalent of a fraction, the numerator of which is the
aggregate Stated Principal Balance of the Mortgage Loans of the related Group
that are 61 days or more Delinquent or are in bankruptcy or foreclosure or are
REO Properties, and the denominator of which is the aggregate Stated Principal
Balance of all of the Mortgage Loans of the related Group as of the last day of
the related Due Period equals or exceeds (y) 50%, in the case of Group I and
40%, in the case of Group II of the aggregate Certificate Principal Balance of
the related Subordinated Certificates plus such Group's Overcollateralization
Amount (in each case after taking into account distribution of the related
Principal Distribution Amount on such Distribution Date) as a percentage of the
sum of the Stated Principal Balances of the Mortgage Loans of the related Group
as of the last day of the related Due Period.
Delinquent: A Mortgage Loan is "delinquent" if any payment due thereon
is not made pursuant to the terms of such Mortgage Loan by the close of business
on the day such payment is scheduled to be due. A Mortgage Loan is "30 days
delinquent" if such payment has not been received by the close of business on
the corresponding day of the month immediately succeeding the month in which
such payment was due, or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was due on the 31st day
of such month), then on the last day of such immediately succeeding month.
Similarly for "60 days delinquent," "90 days delinquent" and so on.
Denomination: With respect to the Certificates, the amount set forth on
the face thereof as, in the case of an Offered Certificate, the "Initial
Principal Balance of this Certificate," and, in the case of a Class B-IO
Certificate, as the "Initial Principal Balance (Notional) of this Certificate."
Depositor: Bear Xxxxxxx Asset Backed Securities I LLC, a Delaware
limited liability company, or its successor in interest.
12
Depository: The initial Depository shall be DTC, the nominee of which
is Cede, or any other organization registered as a "clearing agency" pursuant to
Section 17A of the Securities Exchange Act of 1934, as amended. The Depository
shall initially be the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a "clearing corporation" as defined in Section
8-102(a)(5) of the Uniform Commercial Code of the State of New York.
Depository Agreement: With respect to the Class of Book-Entry
Certificates, the agreement among the Depositor, the Trustee and the initial
Depository, dated May 12, 2005, substantially in the form of Exhibit I.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to any Distribution Date and (i) the
EMC Servicer, the 15th day of the month of such Distribution Date or, if such
15th day is not a Business Day, the immediately preceding Business Day or (ii)
each other Servicer, the date specified in the related Servicing Agreement.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.04 in the name of the Paying
Agent for the benefit of the Certificateholders and designated "Xxxxx Fargo Bank
N.A., in trust for registered holders of Bear Xxxxxxx Asset Backed Securities
Trust 2005-SD2, Asset-Backed Certificates, Series 2005-SD2". Funds in the
Distribution Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, on or
before 1:00 p.m. Central time on the Business Day immediately preceding such
Distribution Date.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business Day,
the next succeeding Business Day, commencing in May 2005.
DTC: The Depository Trust Company, or its successors in interest.
Due Date: As to any Mortgage Loan (other than a Simple Interest Loan),
the date in each month on which the related Scheduled Payment is due, as set
forth in the related Mortgage Note, and with respect to any Simple Interest
Loans, the last day of the immediately preceding Prepayment Period, if its
Scheduled Payment is due during such Prepayment Period.
Due Period: With respect to any Distribution Date and any Mortgage Loan
(other than any Simple Interest Mortgage Loan), the period from the second day
of the calendar month preceding the calendar month in which such Distribution
Date occurs through close of business on the first day of the calendar month in
which such Distribution Date occurs, and with respect to any Simple Interest
Mortgage Loans, the calendar month immediately preceding the month in which such
Distribution Date occurs.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company, the
long-term unsecured debt obligations and short-term unsecured debt obligations
of which (or, in the case of a depository institution or trust company that is
the principal subsidiary of a holding company, the debt obligations of such
holding company, but only if Xxxxx'x is not a Rating Agency) are rated by each
Rating Agency in one of its two highest long-term and
13
its highest short-term rating, respectively (or, if S&P is a Rating Agency, in
its highest long-term and one of its two highest short-term ratings,
respectively,) at the time any amounts are held on deposit therein, or (ii) an
account or accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the FDIC) and the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating
Agency, the Certificateholders have a claim with respect to the funds in such
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii) a
trust account or accounts maintained with the corporate trust department of a
federal or state chartered depository institution or trust company having
capital and surplus of not less than $50,000,000, acting in its fiduciary
capacity or (iv) any other account acceptable to the Rating Agencies. Eligible
Accounts may bear interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee.
EMC: EMC Mortgage Corporation, a Delaware corporation.
EMC Mortgage Loans: The Mortgage Loans listed on the Mortgage Loan
Schedule as being serviced by the EMC Servicer.
EMC Servicer: EMC, in its capacity as servicer hereunder, and its
successors and assigns.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificate: Each Class of Certificates other than the
Class A Certificates.
Event of Default: As defined in Section 8.01 hereof.
Excess Cashflow: With respect to a Group and any Distribution Date, an
amount, if any, equal to the sum of (a) the related Excess Overcollateralization
Amount and (b) the related Remaining Excess Spread, in each case for such Group
and Distribution Date.
Excess Liquidation Proceeds: To the extent not required by law to be
paid to the related Mortgagor, the excess, if any, of any Liquidation Proceeds
with respect to a Mortgage Loan over the Stated Principal Balance of such
Mortgage Loan and accrued and unpaid interest at the related Mortgage Rate
through the last day of the month in which the Mortgage Loan has been
liquidated.
Excess Overcollateralization Amount: With respect to a Group and any
Distribution Date, the lesser of (i) Principal Funds of the related Group and
(ii) the excess, if any, of the related Overcollateralization Amount over the
related Specified Overcollateralization Amount, in each case for such Group and
Distribution Date.
Excess Spread: With respect to a Group and any Distribution Date, the
excess, if any, of (i) Interest Funds of the related Group for such Distribution
Date over (ii) the sum of Current Interest on the Certificates of the related
Group and Interest Carry Forward Amounts on the related Class A Certificates, in
each case for such Group and Distribution Date.
Excess Yield Maintenance Amount: With respect to each Group and the
first Distribution Date, $0. With respect to a Group and any subsequent
Distribution Date, the excess, if any,
14
of (a) the sum of the Yield Maintenance Payments for the Adjustable Rate
Certificates of the related Group for such Distribution Date over (b) the sum of
the Yield Maintenance Agreement Amounts for the Adjustable Rate Certificates of
the related Group for such Distribution Date.
Extra Principal Distribution Amount: With respect to a Group and any
Distribution Date, the lesser of (i) the excess, if any, of the related
Specified Overcollateralization Amount for such Distribution Date over the
related Overcollateralization Amount for such Distribution Date and (ii) the
related Excess Spread for such Distribution Date.
Xxxxxx Mae: Xxxxxx Xxx (also known as Federal National Mortgage
Association), or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989.
Fiscal Quarter: December 1 through the last day of February, March 1
through May 31, June 1 through August 31, or September 1 through November 30, as
applicable.
Fitch: Fitch Ratings.
Xxxxxxx Mac: Xxxxxxx Mac (also known as Federal Home Loan Mortgage
Corporation), or any successor thereto.
Gross Margin: With respect to each Mortgage Loan that bears an
adjustable rate of interest, the fixed percentage set forth in the related
Mortgage Note and indicated on the Mortgage Loan Schedule which percentage is
added to the related Index on each Interest Adjustment Date to determine
(subject to rounding, the Minimum Lifetime Mortgage Rate, the Maximum Lifetime
Mortgage Rate and the Periodic Rate Cap, each as applicable) the Mortgage Rate
until the next succeeding Interest Adjustment Date.
Group: Either a Loan Group or a Certificate Group, as the context
requires.
Group I: Either of the Group I Certificates or Loan Group I, as the
context requires.
Group I Certificates: The Class I-A-1 Certificates, the Class I-A-2
Certificates, the Class I-A-3 Certificates, Class I-M-1 Certificates, Class
I-M-2 Certificates, Class I-M-3 Certificates, Class I-M-4 Certificates, Class
I-M-5 Certificates, Class I-M-6 Certificates and Class I-B Certificates.
Group I Senior Certificates: The Class I-A-1 Certificates, the Class
I-A-2 Certificates and the Class I-A-3 Certificates.
Group I Senior Certificates Yield Maintenance Agreement: The
Confirmation, Ref. No. FXNEC7018, dated the Closing Date, by and between the
Yield Maintenance Provider and the Trust, relating to the Class I-A-1, the Class
I-A-2 and the Class I-A-3 Certificates.
Group I Subordinate Certificates: The Class I-M-1 Certificates, the
Class I-M-2 Certificates, the Class I-M-3 Certificates, the Class I-M-4
Certificates, the Class I-M-5 Certificates, the Class I-M-6 Certificates and the
Class I-B Certificates.
15
Group I Subordinate Certificates Yield Maintenance Agreement: The
Confirmation, Ref. No. FXNEC7019, dated the Closing Date, by and between the
Yield Maintenance Provider and the Trust, relating to the Group I Subordinate
Certificates.
Group II: Either of the Group II Certificates or Loan Group II, as the
context requires.
Group II Certificates: The Class II-A-1 Certificates, the Class II-A-2
Certificates, the Class II-M-1 Certificates, the Class II-M-2 Certificates, the
Class II-M-3 Certificates and the Class II-B Certificates.
Group II Senior Certificates: The Class II-A-1 Certificates and the
Class II-A-2 Certificates.
Group II Senior Certificates Yield Maintenance Agreement: The
Confirmation, Ref. No. FXBS05SD21, dated the Closing Date, by and between the
Yield Maintenance Provider and the Trust, relating to the Class II-A-1 and the
Class II-A-2 Certificates.
Group II Subordinate Certificates: The Class II-M-1 Certificates, the
Class II-M-2 Certificates, the Class II-M-3 Certificates and the Class II-B
Certificates.
Indemnified Persons: The Trustee, the Master Servicer, the Seller, the
Depositor, the Custodian and the Securities Administrator and their officers,
directors, agents and employees and, with respect to the Trustee, any separate
co-trustee and its officers, directors, agents and employees.
Index: With respect to each Mortgage Loan that bears an adjustable rate
of interest, the index set forth in the related Mortgage Note and indicated on
the Mortgage Loan Schedule, by reference to which the related Mortgage Rate will
be adjusted from time to time.
Initial Certificate Principal Balance: With respect to any Certificate,
the Certificate Principal Balance of such Certificate or any predecessor
Certificate on the Closing Date.
Initial Overcollateralization Amount: $1,467,252.00, in the case of
Group I and $2,904,778.43, in the case of Group II.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect with respect to such Mortgage Loan, including any replacement policy
or policies for any such insurance policies.
Insurance Proceeds: Proceeds paid in respect of the Mortgage Loans
pursuant to any Insurance Policy, to the extent such proceeds are payable to the
mortgagee under the Mortgage, the related Servicer, the Master Servicer or the
trustee under the deed of trust and are not applied to the restoration of the
related Mortgaged Property or released to the Mortgagor in accordance with the
procedures that such Servicer or the Master Servicer would follow in servicing
mortgage loans held for its own account, in each case other than any amount
included in such Insurance Proceeds in respect of Insured Expenses and exclusive
of Subsequent Recoveries.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Carry Forward Amount: As of any Distribution Date and with
respect to each Class of Certificates (other than the Class B-IO Certificates
and the Residual Certificates), the sum of
16
(i) the excess of (a) the Current Interest for such Class with respect to prior
Distribution Dates over (b) the amount actually distributed to such Class with
respect to interest on such prior Distribution Dates and (ii) interest thereon
(to the extent permitted by applicable law) at the applicable Pass-Through Rate
for such Class for the related Accrual Period including the Accrual Period
relating to such Distribution Date.
Interest Determination Date: With respect to each Adjustable Rate
Certificate, for the first Accrual Period May 10, 2005, and with respect to any
Accrual Period thereafter, the second LIBOR Business Day preceding the
commencement of such Accrual Period. Interest Funds: For a Group and any
Distribution Date (i) the sum, without duplication, of the following amounts, in
each case with respect to the related Group: (a) all interest received during
the related Due Period with respect to the related Mortgage Loans less the
related Servicing Fee and Master Servicing Fee referred to in clause (ii) of the
definition thereof, (b) all Advances relating to interest with respect to the
related Mortgage Loans made on or prior to the related Master Servicer Advance
Date, (c) all Compensating Interest with respect to the related Mortgage Loans
and required to be remitted pursuant to the related Servicing Agreement or this
Agreement with respect to such Distribution Date, (d) Liquidation Proceeds with
respect to the related Mortgage Loans collected during the related Prepayment
Period (to the extent such Liquidation Proceeds relate to interest), (e) all
amounts relating to interest with respect to each related Mortgage Loan
repurchased by the Seller pursuant to Sections 2.02, 2.03 and 3.20 and (f) all
amounts in respect of interest paid by EMC pursuant to Section 10.01, in each
case to the extent remitted by the Master Servicer or Servicer to the Master
Servicer Collection Account pursuant to this Agreement or the related Servicing
Agreement, minus (ii) all amounts relating to such Group's (or, if not allocable
to a Group, such Group's pro rata share of such amounts) interest reimbursed
pursuant to Sections 4.03 and 4.05.
Interest Rate Adjustment Date: With respect to each Mortgage Loan that
bears an adjustable rate of interest, the date set forth in the related Mortgage
Note and indicated on the Mortgage Loan Schedule, on which the related Mortgage
Rate is subject to adjustment.
Interest Rate Cap: For any Distribution Date and the Adjustable Rate
Certificates in each respective Group, the weighted average of the Net Mortgage
Rates of the Mortgage Loans of the related Group as of the close of business on
the first day of the month immediately preceding the month in which such
Distribution Date occurs, adjusted to reflect the accrual of interest based on
the actual number of days elapsed in the related Accrual Period divided by 360.
Latest Possible Maturity Date: For the Group I Certificates and the
Class I-BIO Certificates, the Distribution Date in March 2035 and, for the Group
II Certificates, the Class II-B-IO Certificates and the Class R Certificates,
the Distribution Date in December 2044, which in each case is the Distribution
Date in the month following the latest maturing mortgage loan in the related
group. For purposes of the Treasury Regulations under Code section 860A through
860G, the latest possible maturity date of each regular interest issued by REMIC
I and REMIC II shall be the related Latest Possible Maturity Date.
LIBOR Business Day: Any day on which banks in the London, England and
New York City, U.S.A. are open and conducting transactions in foreign currency
and exchange.
Liquidated Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan that has been liquidated through deed-in-lieu of foreclosure,
foreclosure sale, trustee's sale or other realization as provided by applicable
law governing the real property subject to the related Mortgage and any security
agreements and as to which the Master Servicer or a Servicer has certified (in
accordance with
17
Section 3.07) in the related Prepayment Period that it has received all amounts
it expects to receive in connection with such liquidation.
Liquidation Proceeds: Amounts, other than Insurance Proceeds and
Subsequent Recoveries, received in connection with the partial or complete
liquidation of a Mortgage Loan, whether through trustee's sale, foreclosure sale
or otherwise, or in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received with respect to an REO
Property, less the sum of related unreimbursed Advances, Servicing Fees and
Servicing Advances and all expenses of liquidation, including property
protection expenses and foreclosure and sale costs, including court and
reasonable attorneys fees.
Loan Group: Either Loan Group I or Loan Group II, as the context
requires.
Loan Group II: The pool of Mortgage Loans identified in the related
Schedule of Mortgage Loans as having been assigned to Group I in Schedule B-I
hereto.
Loan Group II: The pool of Mortgage Loans identified in the related
Schedule of Mortgage Loans as having been assigned to Group II in Schedule B-II
hereto.
Master Servicer: Xxxxx Fargo Bank, N.A., a national banking
association, in its capacity as master servicer hereunder, and its successors
and assigns.
Master Servicer Advance Date: As to any Distribution Date, on or before
1:00 p.m. Central time on the Business Day immediately preceding such
Distribution Date.
Master Servicing Fee: For any Distribution Date, the sum of (i) all
income and gain, net of losses, realized from any investment of funds in the
Distribution Account and the Master Servicer Collection Account since the prior
Distribution Date and (ii) with respect to each Mortgage Loan, an amount equal
to 1/12th of the Master Servicing Fee Rate multiplied by the Stated Principal
Balance of such Mortgage Loan as of the close of business on the first day of
the month immediately preceding the month in which such Distribution Date
occurs.
Master Servicing Fee Rate: 0.0125% per annum.
Master Servicer Certification: A written certification covering
servicing of the Mortgage Loans by all Servicers and signed by an officer of the
Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act of 2002, as
amended from time to time, and (ii) the February 21, 2003 Statement by the Staff
of the Division of Corporation Finance of the Securities and Exchange Commission
Regarding Compliance by Asset-Backed Issuers with Exchange Act Rules 13a-14 and
15d-14, as in effect from time to time; provided that if, after the Closing Date
(a) the Xxxxxxxx-Xxxxx Act of 2002 is amended, (b) the Statement referred to in
clause (ii) is modified or superceded by any subsequent statement, rule or
regulation of the Securities and Exchange Commission or any statement of a
division thereof, or (c) any future releases, rules and regulations are
published by the Securities and Exchange Commission from time to time pursuant
to the Xxxxxxxx-Xxxxx Act of 2002, which in any such case affects the form or
substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous than the form of the required certification as of the
Closing Date, the Master Servicer Certification shall be as agreed to by the
Master Servicer, the Depositor and the Seller following a negotiation in good
faith to determine how to comply with any such new requirements.
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Master Servicer Collection Account: The separate Eligible Account
created and initially maintained by the Master Servicer pursuant to Section 4.02
with a depository institution in the name of the Trustee for the benefit of the
Certificateholders and designated "JPMorgan Chase Bank, in trust for registered
holders of Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2." Funds in the Master Servicer Collection Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Maximum Lifetime Mortgage Rate: As to each Mortgage Loan that bears an
adjustable rate of interest, the rate, if any, set forth in the related Mortgage
Note and indicated on the Mortgage Loan Schedule, that is the maximum level to
which a Mortgage Rate can adjust in accordance with its terms, regardless of the
change in the applicable Index.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS(R) System.
Minimum Lifetime Mortgage Rate: As to each Mortgage Loan that bears an
adjustable rate of interest, the rate, if any, set forth in the related Mortgage
Note and indicated on the Mortgage Loan Schedule, that is the minimum level to
which a Mortgage Rate can adjust in accordance with its terms, regardless of the
change in the applicable Index.
MOM Loan: Any Mortgage Loan as to which, at origination thereof, MERS
acts as the mortgagee, solely as nominee for the originator of such Mortgage
Loan and its successors and assigns.
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 5.05.
Moody's: Not applicable.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest, or creating a second lien on
or second priority ownership interest, as applicable, in an estate in fee simple
in real property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional documents delivered
to the Custodian on behalf of the Trustee to be added to the Mortgage File
pursuant to this Agreement.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to the provisions hereof, as from time to time are held as
a part of the Trust Fund (including any REO Property), the mortgage loans so
held being identified in the Mortgage Loan Schedule, notwithstanding foreclosure
or other acquisition of title of the related Mortgaged Property. Any mortgage
loan that was intended by the parties hereto to be transferred to the Trust Fund
as indicated by such Mortgage Loan Schedule which is in fact not so transferred
for any reason including, without limitation, a breach of the representation
contained in Section 2.03(b)(v) hereof, shall continue to be a Mortgage Loan
hereunder until the Purchase Price with respect thereto has been paid to the
Trust Fund.
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Mortgage Loan Purchase Price: The price, calculated as set forth in
Section 10.01, to be paid in connection with the repurchase of the Mortgage
Loans pursuant to Section 10.01.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the Master Servicer to reflect the deletion of Deleted Mortgage
Loans and the addition of Replacement Mortgage Loans pursuant to the provisions
of this Agreement) transferred to the Trustee as part of the Trust Fund and from
time to time subject to this Agreement. The initial Mortgage Loan Schedule is
attached hereto as Exhibit B and sets forth the following information with
respect to each Mortgage Loan:
(i) the loan number;
(ii) the Servicer and/or Master Servicer thereof;
(iii) the Mortgage Rate in effect as of the Cut-off Date;
(iv) the Master Servicing Fee Rate;
(v) the related Servicing Fee Rate;
(vi) the Net Mortgage Rate in effect as of the Cut-off Date;
(vii) the stated maturity date;
(viii) the original principal balance;
(ix) the stated original term;
(x) the next payment date;
(xi) the monthly payment;
(xii) the remaining term;
(xiii) the property type;
(xiv) if it is a first or second lien on the related Mortgaged
Property;
(xv) if applicable, that such Mortgage Loan is a Balloon Loan;
(xvi) whether interest accrues at a fixed rate, and otherwise,
the applicable Index (with respect to adjustable rate Mortgage Loans);
(xvii) the Gross Margin, if applicable;
(xviii) the intervals between Interest Adjustment Dates, if
applicable;
(xix) the next succeeding Interest Adjustment Date, if
applicable;
(xx) the Periodic Rate Cap, if applicable;
(xxi) the Minimum Lifetime Mortgage Rate, if applicable;
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(xxii) the Maximum Lifetime Mortgage Rate, if applicable;
(xxiii) the Combined Loan-to-Value Ratio as of the Cut-off
Date;
(xxiv) [Reserved];
(xxv) the Cut-off Date Principal Balance;
(xxvi) if applicable, that such Mortgage Loan is a Simple
Interest Loan;
(xxvii) if applicable, that such Mortgage Loan provides for
negative amortization; and
(xxviii) the MIN with respect to each Mortgage Loan registered
on the MERS(R) System.
Such schedule shall also set forth the total of the amounts described under
(xxv) above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note.
Mortgaged Property: The underlying property securing a Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Rate: As to each Mortgage Loan, and at any time, the per
annum rate equal to the Mortgage Rate less the sum of the related Servicing Fee
Rate and the Master Servicing Fee Rate.
Non-Book-Entry Certificate: Any Certificate other than a Book-Entry
Certificate.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not or, in the case of a proposed advance, would not,
be ultimately recoverable by it from the related Mortgagor, related Liquidation
Proceeds or otherwise.
Offered Certificates: The Adjustable Rate Certificates.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, 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 EMC
Servicer or the Master Servicer (or any other officer customarily performing
functions similar to those performed by any of the above designated officers and
also to whom, with respect to a particular matter, such matter is referred
because of such officer's knowledge of and familiarity with a particular
subject) or (ii), if provided for in this Agreement, signed by a Servicing
Officer, as the case may be, and delivered to the Depositor, the Seller, the
Securities Administrator, the Master Servicer and/or the Trustee, as the case
may be, as required by this Agreement.
One-Month LIBOR: With respect to any Accrual Period, the rate
determined by the Securities Administrator on the related Interest Determination
Date on the basis of the rate for U.S. dollar deposits for one month that
appears on Telerate Screen Page 3750 as of 11:00 a.m. (London time) on such
21
Interest Determination Date; provided that the parties hereto acknowledge that
One-Month LIBOR for the first Accrual Period shall equal 3.090% per annum. If
such rate does not appear on such page (or such other page as may replace that
page on that service, or if such service is no longer offered, such other
service for displaying One-Month LIBOR or comparable rates as may be reasonably
selected by the Securities Administrator), One-Month LIBOR for the applicable
Accrual Period will be the Reference Bank Rate. If no such quotations can be
obtained by the Securities Administrator and no Reference Bank Rate is
available, One-Month LIBOR will be One-Month LIBOR applicable to the preceding
Accrual Period. The establishment of One-Month LIBOR on each Determination Date
by the Securities Administrator and the Securities Administrator's calculation
of the rate of interest applicable to the Certificates bearing interest based on
One-Month LIBOR shall, in the absence of manifest error, be conclusive and
binding.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Depositor or the Master Servicer, reasonably acceptable to each
addressee of such opinion; provided that with respect to Section 7.05 or 11.01,
or the interpretation or application of the REMIC Provisions, such counsel must
(i) in fact be independent of the Depositor and the Master Servicer, (ii) not
have any direct financial interest in the Depositor or the Master Servicer or in
any affiliate of either, and (iii) not be connected with the Depositor or the
Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions. For purposes of the
EMC Servicer's obligations pursuant to Exhibit K, a written opinion of counsel,
who may be counsel to the EMC Servicer, reasonably acceptable to each addressee
of such opinion.
Optional Termination: The termination of either Loan Group I or Loan
Group II as a result of the purchase of all of the Mortgage Loans of the related
Group and any related REO Property pursuant to the last sentence of Section
10.01 hereof.
Optional Termination Date: The Distribution Date on which the Stated
Principal Balance of all of the Mortgage Loans in the related Loan Group is
equal to or less than 10% , in the case of Group I and 20%, in the case of Group
II, of the aggregate Cut-off Date Principal Balance of all of the Mortgage Loans
in the related Group.
Original Value: The value of the property underlying a Mortgage Loan
based on an appraisal.
Originator: Any of the entities which either originated or acquired a
Mortgage Loan and transferred such Mortgage Loan to the Seller.
OTS: The Office of Thrift Supervision.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(a) Certificates theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to this
Agreement.
Outstanding Mortgage Loan: As of any date of determination, a Mortgage
Loan with a Stated Principal Balance greater than zero that was not the subject
of a Principal Prepayment in full, and that did not become a Liquidated Loan,
prior to the end of the related Prepayment Period.
22
Overcollateralization Amount: With respect to a Group and any
Distribution Date, the excess, if any, of (i) the aggregate Stated Principal
Balance of the Mortgage Loans of a Group as of the last day of the related Due
Period, over (ii) the sum of the Certificate Principal Balances of the
Certificates of a related Group (after taking into account the payment of
principal other than any related Extra Principal Distribution Amount on such
Certificates) on such Distribution Date.
Overcollateralization Floor: For a Group and any date of determination,
0.50% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans of
the related Group.
Ownership Interest: As to any Certificate, any ownership interest in
such Certificate including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
Pass-Through Rate: With respect to each Class of Certificates, other
than the Class B-IO Certificates and the Residual Certificates, the applicable
interest rate for each such Class as set forth in Section 6.01, subject to the
related Interest Rate Cap.
Paying Agent: The Securities Administrator and any successor paying
agent appointed hereunder.
Percentage Interest: With respect to any Certificate of a specified
Class, the Percentage Interest set forth on the face thereof or the percentage
obtained by dividing the Denomination of such Certificate by the aggregate of
the Denominations of all Certificates of such Class.
Periodic Rate Cap: As to each Mortgage Loan that bears an adjustable
rate of interest, the rate, if any, set forth in the related Mortgage Note and
indicated on the Mortgage Loan Schedule, that is the maximum adjustment that can
be made to a Mortgage Rate on each Interest Adjustment Date in accordance with
its terms, regardless of the change in the applicable Index.
Permitted Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and credit of
the United States;
(ii) general obligations of or obligations guaranteed by any
state of the United States or the District of Columbia receiving the
highest short-term debt rating of each Rating Agency, or such lower
rating as will not result in the downgrading or withdrawal of the
ratings then assigned to the Certificates by each Rating Agency (but
only if S&P is not a Rating Agency);
(iii) [Reserved];
(iv) commercial or finance company paper which is then
receiving the highest short-term rating of each Rating Agency, or such
lower rating as will not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by each Rating Agency
(but only if S&P is not a Rating Agency);
(v) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any
state thereof and subject to supervision and examination by federal
and/or state banking authorities, provided that the commercial paper
and/or long term unsecured debt obligations of
23
such depository institution or trust company (or in the case of the
principal depository institution in a holding company system, the
commercial paper or long-term unsecured debt obligations of such
holding company, but only if Xxxxx'x is not a Rating Agency) are then
rated one of the two highest long-term and the highest short-term
ratings of each such Rating Agency for such securities (or, if S&P is
a Rating Agency, the highest long-term and one of the two highest
short-term ratings of such securities), or such lower ratings as will
not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any Rating Agency (but only if S&P is
not a Rating Agency);
(vi) demand or time deposits or certificates of deposit issued
by any bank or trust company or savings institution to the extent that
such deposits are fully insured by the FDIC;
(vii) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the
issuance of such agreements, such terms and conditions as will not
result in the downgrading or withdrawal of the rating then assigned to
the Certificates by any such Rating Agency (but only if S&P is not a
Rating Agency);
(viii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (v) above;
(ix) securities (other than stripped bonds, stripped coupons
or instruments sold at a purchase price in excess of 115% of the face
amount thereof) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any
state thereof which, at the time of such investment, have one of the
two highest long term ratings of each Rating Agency (provided that,
for so long as Xxxxx'x is a Rating Agency, such rating shall be the
highest commercial paper rating of Moody's for any such securities)
(but only if S&P is not a Rating Agency), or such lower rating as will
not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency (but only if S&P is not
a Rating Agency);
(x) interests in any money market fund (including any such
fund managed or advised by the Trustee, the Master Servicer, the
Securities Administrator or any affiliate thereof) which at the date
of acquisition of the interests in such fund and throughout the time
such interests are held in such fund has the highest applicable long
term rating by each Rating Agency rating such fund (and, so long as
S&P is a Rating Agency, the long term ratings must be either AAAm or
AAAm-G) or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each
Rating Agency (but only if S&P is not a Rating Agency);
(xi) short term investment funds sponsored by any trust
company or national banking association incorporated under the laws of
the United States or any state thereof (including any such fund
managed or advised by the Trustee, the Master Servicer, the Securities
Administrator or any affiliate thereof) which on the date of
acquisition has been rated by each Rating Agency in their respective
highest applicable rating or such lower rating as will not result in
the downgrading or withdrawal of the ratings then assigned to the
Certificates by each Rating Agency (but only if S&P is not a Rating
Agency); and
(xii) such other investments having a specified stated
maturity and bearing interest or sold at a discount acceptable to each
Rating Agency as will not result in the downgrading or
24
withdrawal of the rating then assigned to the Certificates by any
Rating Agency, as evidenced by a signed writing delivered by each
Rating Agency (but only if S&P is not a Rating Agency);
provided, that no such instrument shall be a Permitted
Investment if such instrument (i) evidences the right to receive interest only
payments with respect to the obligations underlying such instrument, (ii) is
purchased at a premium or (iii) is purchased at a deep discount; provided
further that no such instrument shall be a Permitted Investment (A) if such
instrument evidences principal and interest payments derived from obligations
underlying such instrument and the interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations, or (B) if it may be redeemed at
a price below the purchase price (the foregoing clause (B) not to apply to
investments in units of money market funds pursuant to clause (vii) above);
provided further that no amount beneficially owned by any REMIC (including,
without limitation, any amounts collected by the Master Servicer but not yet
deposited in the Master Servicer Collection Account) may be invested in
investments (other than money market funds) treated as equity interests for
Federal income tax purposes, unless the Master Servicer shall receive an Opinion
of Counsel, at the expense of the Master Servicer, to the effect that such
investment will not adversely affect the status of any such REMIC as a REMIC
under the Code or result in imposition of a tax on any such REMIC. Permitted
Investments that are subject to prepayment or call may not be purchased at a
price in excess of par.
Permitted Transferee: Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Residual Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership (other than a
partnership that has any direct or indirect foreign partners) or other entity
(treated as a corporation or a partnership for federal income tax purposes),
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia, an estate whose income from sources without
the United States is includible in gross income for United States federal income
tax purposes regardless of its connection with the conduct of a trade or
business within the United States, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have authority to control all
substantial decisions of the trust or and (vi) any other Person so designated by
the Trustee based upon an Opinion of Counsel (which shall not be an expense of
the Trustee) that states that the Transfer of an Ownership Interest in a
Residual Certificate to such Person may cause the Trust Fund to fail to qualify
as a REMIC at any time that any Certificates are Outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Prepayment Assumption: The applicable rate of prepayment, as described
in the Prospectus Supplement relating to each Class of Offered Certificates.
25
Prepayment Charge: Any prepayment premium, penalty or charge payable by
a Mortgagor in connection with any Principal Prepayment on a Mortgage Loan
pursuant to the terms of the related Mortgage Note.
Prepayment Interest Shortfall: With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a partial Principal Prepayment, a
Principal Prepayment in full, or that became a Liquidated Loan during the
related Prepayment Period, (other than a Principal Prepayment in full resulting
from the purchase of a Mortgage Loan pursuant to Section 2.02, 2.03, 3.20 or
10.01 hereof), the amount, if any, by which (i) one month's interest at the
applicable Net Mortgage Rate on the Stated Principal Balance of such Mortgage
Loan immediately prior to such prepayment (or liquidation) or in the case of a
partial Principal Prepayment on the amount of such prepayment (or Liquidation
Proceeds) exceeds (ii) the amount of interest paid or collected in connection
with such Principal Prepayment or such Liquidation Proceeds.
Prepayment Period: With respect to any Distribution Date and the
Mortgage Loans serviced by EMC, the period from the sixteenth day of the
calendar month preceding the calendar month in which such Distribution Date
occurs through the close of business on the fifteenth day of the calendar month
in which such Distribution Date occurs in. With respect to any Distribution Date
and all other Mortgage Loans, the period that is provided in the related
Servicing Agreement.
Primary Mortgage Insurance Policy: Any primary mortgage guaranty
insurance policy issued in connection with a Mortgage Loan which provides
compensation to a Mortgage Note holder in the event of default by the obligor
under such Mortgage Note or the related security instrument, if any or any
replacement policy therefor through the related Accrual Period for such Class
relating to a Distribution Date.
Principal Distribution Amount: With respect to a Group and any each
Distribution Date, an amount equal to (x) the related Principal Funds for such
Distribution Date plus (y) any related Extra Principal Distribution Amount for
such Distribution Date minus (z) any related Excess Overcollateralization Amount
for such Distribution Date.
Principal Funds: With respect to a Group and any Distribution Date, (i)
the sum, without duplication, of the following amounts, in each case with
respect to a related Group (a) all scheduled principal (or with respect to any
Simple Interest Loans, actual principal) collected during the related Due
Period, (b) all Advances (except with respect to any Simple Interest Loans)
relating to principal made on or before the Master Servicer Advance Date, (c)
Principal Prepayments exclusive of Prepayment Charges collected during the
related Prepayment Period, (d) the Stated Principal Balance of each Mortgage
Loan that was repurchased by the Seller or a Servicer pursuant to Sections 2.02,
2.03 or 3.20, (e) the aggregate of all Substitution Adjustment Amounts for the
related Determination Date in connection with the substitution of Mortgage Loans
pursuant to Section 2.03(c), (f) amounts in respect of principal paid by the EMC
Servicer pursuant to Section 10.01 and (g) all Liquidation Proceeds collected
during the related Prepayment Period (to the extent such Liquidation Proceeds
relate to principal), in each case to the extent remitted by the Master Servicer
or the applicable Servicer to the Master Servicer Collection Account pursuant to
this Agreement or the related Servicing Agreement and all Subsequent Recoveries
received during the related Prepayment Period and minus (ii) all amounts
relating to such Group's (or if not allocable to a Group, such Group's pro rata
share of such amounts) principal or not allocable to either interest or
principal reimbursed pursuant to Sections 4.03 and 4.05.
Principal Prepayment: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including loans
purchased or repurchased under Sections 2.02, 2.03, 3.20 and 10.01 hereof) that
is received in advance of its scheduled Due Date and is not accompanied
26
by an amount as to interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer or the applicable
Servicer, as appropriate, in accordance with the terms of the related Mortgage
Note.
Projected Principal Balances: For any Yield Maintenance Agreement and
Distribution Date, the related Notional Amount for such Distribution Date set
forth on Schedule I of the related Yield Maintenance Agreement.
Prospectus Supplement: The Prospectus Supplement dated May
[__________], 2005 relating to the public offering of the Offered Certificates.
Protected Account: An account established and maintained by each
Servicer with respect to receipts on the Mortgage Loans and REO Property
serviced by such Servicer in accordance with the related Servicing Agreement or
Exhibit K hereto.
Protected Party: As defined in Section 7.04 hereof.
PUD: A Planned Unit Development.
Purchase Price: With respect to any Mortgage Loan (x) required to be
repurchased by the Seller pursuant to Section 2.02 or 2.03 hereof or (y) that
the Seller has a right to purchase pursuant to Section 3.20 hereof, an amount
equal to the sum of (i) 100% of the outstanding principal balance of the
Mortgage Loan as of the date of such purchase plus (ii) accrued interest thereon
at the applicable Mortgage Rate through the first day of the month in which the
Purchase Price is to be distributed to Certificateholders plus (iii) in the case
of a repurchase of such Mortgage Loan resulting from breach of the
representation or warranty contained in Section 2.03(b)(vii)(G) or
2.03(b)(vii)(LL), any costs or damages incurred by the Trust in connection with
the violation by such Mortgage Loan of any predatory or abusive lending law,
reduced by (iv) any portion of the Servicing Fee, Servicing Advances and
Advances payable to the purchaser of the Mortgage Loan.
Rating Agency: Each of S&P and Fitch. If any such organization or its
successor is no longer in existence, "Rating Agency" shall be a nationally
recognized statistical rating organization, or other comparable Person,
designated by the Depositor, notice of which designation shall be given to the
Trustee. References herein to a given rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Loan, an amount (not
less than zero or more than the Stated Principal Balance of the Mortgage Loan)
as of the date of such liquidation, equal to (i) the Stated Principal Balance of
such Liquidated Loan as of the date of such liquidation, minus (ii) the
Liquidation Proceeds, if any, received in connection with such liquidation
during the month in which such liquidation occurs, to the extent applied as
recoveries of principal of the Liquidated Loan.
Realized Loss Event: A Realized Loss Event with respect to a Group will
be deemed to have occurred if the aggregate of Realized Losses (reduced by the
aggregate amount of Subsequent Recoveries) from the Closing Date through the
last day of the related Due Period with respect to the Mortgage Loans of such
Group, as a percentage of the aggregate Stated Principal Balance of the related
Mortgage Loans as of the Cut-off Date, exceed for Distribution Dates occurring:
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DISTRIBUTION DATE LOSS PERCENTAGE
----------------- ---------------
May 2008 through April 2009 2.25%, in the case of Group I and
2.75%, in the case of Group II
May 2009 through April 2010 2.75%, in the case of Group I and
3.50%, in the case of Group II
May 2010 through April 2011 3.25%, in the case of Group I and
4.25%, in the case of Group II
May 2011 and each month thereafter 3.50%, in the case of Group I and
4.50%, in the case of Group II
Record Date: With respect to each Class of Certificates (except the
Adjustable Rate Certificates) and (a) the first Distribution Date, the Closing
Date, and (b) with respect to any other Distribution Date, the close of business
on the last Business Day of the month preceding the month in which such
Distribution Date occurs. With respect to the Adjustable Rate Certificates and
any Distribution Date, so long as such Certificates are Book-Entry Certificates,
the Business Day preceding such Distribution Date, and otherwise, the close of
business on the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Reference Bank Rate: With respect to any Accrual Period, the arithmetic
mean (rounded upwards, if necessary, to the nearest whole multiple of 0.03125%)
of the offered rates for United States dollar deposits for one month that are
quoted by the Reference Banks as of 11:00 a.m., New York City time, on the
related Interest Determination Date to prime banks in the London interbank
market for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of all Adjustable Rate Certificates on such
Interest Determination Date, provided that at least two such Reference Banks
provide such rate. If fewer than two offered rates appear, the Reference Bank
Rate will be the arithmetic mean (rounded upwards, if necessary, to the nearest
whole multiple of 0.03125%) of the rates quoted by one or more major banks in
New York City, selected by the Securities Administrator, as of 11:00 a.m., New
York City time, on such date for loans in U.S. dollars to leading European banks
for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of the Certificates which bear an adjustable rate
of interest on such Interest Determination Date.
Reference Banks: Barclays Bank PLC, Citibank, N.A. and Deutsche Bank
AG, provided that if any of the foregoing banks are not suitable to serve as a
Reference Bank, then any leading banks selected by the Securities Administrator
which are engaged in transactions in Eurodollar deposits in the international
Eurocurrency market (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control with
the Depositor, the Seller, the Master Servicer or any affiliate thereof and
(iii) which have been designated as such by the Trustee.
Regular Certificate: Any Certificate other than a Residual Certificate.
Relief Act: The Servicemembers Civil Relief Act.
Remaining Excess Spread: With respect to a Group and any Distribution
Date, the related Excess Spread less any related Extra Principal Distribution
Amount, in each case for such Distribution Date.
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REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC I: The segregated pool of assets described in Section 5.06(a).
REMIC I Certificates: The REMIC I Regular Interests and the Class R-1
Certificate.
REMIC I Regular Interests: As defined in Section 5.06(b).
REMIC II: The segregated pool of assets consisting of the REMIC I
regular interests and constituting a REMIC hereunder.
REMIC II Certificates: The REMIC II Regular Interests and the Class R-2
Certificate.
REMIC II Regular Interests: As defined in Section 5.06(c).
REMIC Opinion: An Opinion of Counsel, to the effect that the proposed
action described therein would not, under the REMIC Provisions, (i) cause either
REMIC I or REMIC II to fail to qualify as a REMIC while any regular interest in
any such REMIC is outstanding, (ii) result in a tax on prohibited transactions
or (iii) constitute a taxable contribution after the Startup Day.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed, temporary and final regulations and published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Report: As defined in Section 5.04(c).
REO Property: A Mortgaged Property acquired by a Servicer or the Master
Servicer through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Replacement Mortgage Loan: A Mortgage Loan or Mortgage Loans in the
aggregate substituted by the Seller for a Deleted Mortgage Loan, which must, on
the date of such substitution, as confirmed in a Request for Release, (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
less than 90% of the Stated Principal Balance of the Deleted Mortgage Loan; (ii)
have a Mortgage Rate not less than or more than 1% per annum higher than the
Mortgage Rate of the Deleted Mortgage Loan; (iii) have the same or higher credit
quality characteristics than that of the Deleted Mortgage Loan; (iv) if the
Deleted Mortgage Loan is an EMC Mortgage Loan, be an EMC Mortgage Loan; (v) have
a Combined Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan;
(vi) have a remaining term to maturity no greater than (and not more than one
year less than) that of the Deleted Mortgage Loan; (vii) not permit conversion
of the Mortgage Rate from a fixed rate to a variable rate; (viii) provide for a
Prepayment Charge on terms substantially similar to those of the Prepayment
Charge, if any, of the Deleted Mortgage Loan; (ix) have the same lien priority
as the Deleted Mortgage Loan; (x) constitute the same occupancy type as the
Deleted Mortgage Loan or be owner occupied; (xi) be current in payment of
principal and interest as of the date of substitution; (xii) have payment terms
that do not vary in any material respect from the payment terms of the Mortgage
Loan for which it is to be substituted; (xiii) if the Deleted Mortgage Loan
bears an adjustable rate of interest, have a Gross Margin, Periodic Rate Cap and
Maximum Lifetime Mortgage Rate no less than those of the Deleted Mortgage Loan,
have the same Index and interval between Interest Adjustment Dates, and a
Minimum Lifetime Mortgage Rate no lower
29
than that of such Deleted Mortgage Loan; and (xiv) comply with each
representation and warranty set forth in Section 2.03 hereof.
Request for Release: The Request for Release to be submitted by the
Seller, a Servicer or the Master Servicer to the Trustee and/or the Custodian,
as appropriate, substantially in the form of Exhibit H. Each Request for Release
furnished to the Trustee and/or the Custodian by the Seller, a Servicer or the
Master Servicer shall be in duplicate and shall be executed by a Servicing
Officer (or, if furnished electronically to the Trustee and/or Custodian, shall
be deemed to have been sent and executed by a Servicing Officer) of the Seller,
the Servicer or the Master Servicer, as applicable.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under this
Agreement or the related Servicing Agreement.
Residual Certificates: The Class R-1 Certificates and Class R-2
Certificates.
Responsible Officer: With respect to the Trustee, any Vice President,
any Assistant Vice President, the Secretary, any Assistant Secretary, any Trust
Officer with specific responsibility for the transaction contemplated hereby or
other officers of the Trustee specified by the Trustee, as to whom, with respect
to a particular matter, such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, N.A., in its capacity as
securities administrator hereunder, and its successors and assigns.
Securities Administrator Fee: As to any Distribution Date, a fee
payable to the Securities Administrator by the Master Servicer out of its own
funds in such capacity as they may separately agree.
Seller: EMC, in its capacity as seller of the Mortgage Loans to the
Depositor.
Servicer: Each of the EMC Servicer and WFB.
Servicers: The EMC Servicer and WFB.
Servicer Remittance Date: With respect to each Mortgage Loan, (i) in
the case of the EMC Servicer, the 23rd day of each calendar month, or if such
23rd day is not a Business Day, the next succeeding Business Day (or, if such
next succeeding Business Day would be the Distribution Date, the immediately
preceding Business Day), commencing in May 2005 and (ii) in the case of any
other Servicer, the date set forth in the related Servicing Agreement, when the
related Servicer is required to remit funds in the related Protected Account to
the Master Servicer.
Servicing Agreement: Any servicing agreement listed on Schedule I
hereto, and, in the case of the EMC Servicer, the obligations of the EMC
Servicer set forth in this Agreement, including Exhibit K hereto, as amended,
including by the related Assumption Agreement, if applicable.
30
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable legal fees) incurred in the
performance by a Servicer of its servicing obligations under the related
Servicing Agreement, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, and including any
expenses incurred in relation to any such proceedings that result from a
Mortgage Loan being registered in the MERS(R) System, (iii) the management and
liquidation of any REO Property (including, without limitation, realtor's
commissions) and (iv) compliance with any obligations under a Servicing
Agreement or Section 3.09 hereof to cause insurance to be maintained.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to 1/12th of the Servicing Fee Rate multiplied by the Stated
Principal Balance of such Mortgage Loan as of the close of business on the first
day of the month immediately preceding the month in which such Distribution Date
occurs or, in the event of any payment of interest that accompanies a Principal
Prepayment in full during the related Due Period made by the Mortgagor
immediately prior to such prepayment, interest at the Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan for the period covered by such
payment of interest.
Servicing Fee Rate: With respect to each Mortgage Loan, the per annum
rate set forth in the Mortgage Loan Schedule under the heading "Servicing Fee."
Servicing Officer: Any officer of a Servicer or the Master Servicer
involved in, or responsible for, the administration and servicing or master
servicing of the Mortgage Loans (i) in the case of the EMC Servicer, whose name
and facsimile signature appear on a list of servicing officers furnished to the
Trustee by the EMC Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended and (ii) in the case of the Master
Servicer or any other Servicer, as to which evidence reasonably acceptable to
the Custodian or the Trustee, as applicable, of due authorization, by such party
has been furnished from time to time to the Custodian or the Trustee, as
applicable.
Simple Interest Loan: A Mortgage Loan that provides for daily accrual
of interest and is identified as such on the Mortgage Loan Schedule. None of the
Mortgage Loans are Simple Interest Loans.
Specified Overcollateralization Amount: With respect to the Mortgage
Loans of either Group and the first Distribution Date, $0. With respect to the
Mortgage Loans of a Group and any subsequent Distribution Date (i) prior to the
related Stepdown Date, 2.10%, in the case of Group I and 2.50%, in the case of
Group II, of the aggregate Cut-off Date Principal Balance of the related
Mortgage Loans and (ii) on and after the related Stepdown Date provided a
Trigger Event for such Group is not in effect, the greater of (a) 4.20%, in the
case of Group I and 5.00%, in the case of Group II, of the Stated Principal
Balance of the related Mortgage Loans as of the last day of the related Due
Period and (b) such Group's Overcollateralization Floor or (iii) on and after
the related Stepdown Date and if a Trigger Event for such Group is in effect,
the Specified Overcollateralization Amount for the immediately preceding
Distribution Date.
Startup Day: The startup day, within the meaning of Section 860G(a)(9),
for each REMIC formed hereunder shall be the Closing Date.
Stated Principal Balance: With respect to any Mortgage Loan or related
REO Property and any Distribution Date, the Cut-off Date Principal Balance
thereof minus the sum of (i) the principal portion of the Scheduled Payments due
(or, with respect to any Simple Interest Loans, the principal portion of
payments actually received) with respect to such Mortgage Loan during each
related Due
31
Period ending prior to such Distribution Date (and other than with respect to
any Simple Interest Loans irrespective of any delinquency in their payment),
(ii) all Principal Prepayments with respect to such Mortgage Loan received prior
to or during the related Prepayment Period, and all Liquidation Proceeds to the
extent applied by the related Servicer or the Master Servicer as recoveries of
principal in accordance with Section 3.13 with respect to such Mortgage Loan,
that were received by the related Servicer or the Master Servicer as of the
close of business on the last day of the Prepayment Period related to such
Distribution Date, and (iii) any Realized Losses on such Mortgage Loan incurred
during the related Prepayment Period. The Stated Principal Balance of a
Liquidated Loan equals zero.
Stepdown Date: With respect to a Group means (A.) in the case of Group
I, the later to occur of (i) the Distribution Date in May 2008 and (ii) the
first Distribution Date on which the aggregate Certificate Principal Balance of
the Subordinated Certificates of such Group plus the Overcollateralization
Amount for such Group and Distribution Date divided by the sum of the Stated
Principal Balances of the related Mortgage Loans as of the last day of the
related Due Period is greater than or equal to 28.10%; and (B.) in the case of
Group II, the earlier to occur of (x) the Distribution Date on which the
aggregate Certificate Principal Balance of the Class A Certificates of such
Group has been reduced to zero and (y) the later to occur of (i) the
Distribution Date in May 2008 and (ii) the first Distribution Date on which the
aggregate Certificate Principal Balance of the subordinated Certificates of such
group plus the Overcollateralization Amount for such Group and Distribution Date
divided by the sum of the Stated Principal Balances of the related Mortgage
Loans as of the last day of the related Due Period is greater than or equal to
30.90%.
Strike Price: For any Yield Maintenance Agreement and Distribution
Date, the related "Cap Rate" set forth for such Distribution Date in the
applicable Yield Maintenance Agreement.
Subordinated Certificates: The Group I Subordinate Certificates and the
Group II Subordinate Certificates.
Subsequent Recovery: The recovery of any amount (including the release
of surplus funds held to cover expenses) in respect of a Liquidated Loan after a
Realized Loss has been allocated with respect thereto to one or more Classes of
Subordinated Certificates.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03(c).
Successor Master Servicer: The meaning ascribed to such term pursuant
to Section 8.01.
Supplemental Interest Reserve Fund: The fund maintained as described in
Section 5.07.
Tax Matters Person: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)-1T. The holder of the greatest Percentage
Interest in a Class of Residual Certificates shall be the Tax Matters Person for
the related REMIC. The Securities Administrator, or any successor thereto or
assignee thereof shall serve as tax administrator hereunder and as agent for the
related Tax Matters Person.
Termination Costs: The costs and expenses related to the termination of
any Servicer, the appointment of a successor servicer or the transfer and
assumption of servicing with respect to the related Servicing Agreement,
including, without limitation, the items set forth in Section 3.03(c).
Transfer Affidavit: As defined in Section 6.02(c).
32
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
Trigger Event: With respect to a Group and any Distribution Date on or
after the related Stepdown Date, a Trigger Event for such Group exists if either
a related Delinquency Event or a related Realized Loss Event shall have occurred
and be continuing.
Trust Fund: The corpus of the trust created hereunder consisting of (i)
the Mortgage Loans and all interest accruing and principal due (or in the case
of any Simple Interest Loan, received) with respect thereto after the Cut-off
Date to the extent not applied in computing the Cut-off Date Principal Balance
thereof; (ii) the Master Servicer Collection Account and the Distribution
Account and all amounts deposited therein pursuant to the applicable provisions
of this Agreement; (iii) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed in lieu of foreclosure or otherwise; (iv) the
mortgagee's rights under the Insurance Policies with respect to the Mortgage
Loans; (v) the Servicing Agreements and Assumption Agreements; (vi) rights under
the Yield Maintenance Agreements and the Yield Maintenance Account and (vii) all
proceeds of the foregoing, including proceeds of conversion, voluntary or
involuntary, of any of the foregoing into cash or other liquid property.
Trustee: JPMorgan Chase Bank, N.A., a national banking association, not
in its individual capacity, but solely in its capacity as trustee for the
benefit of the Certificateholders under this Agreement, and any successor
thereto, and any corporation or national banking association resulting from or
surviving any consolidation or merger to which it or its successors may be a
party and any successor trustee as may from time to time be serving as successor
trustee hereunder.
Trustee Fee: As to any Distribution Date, a fee payable to the Trustee
by the Master Servicer out of its own funds in such amount as they may
separately agree.
Unpaid Applied Realized Loss Amount: As of any Distribution Date, and
each Class of Subordinated Certificates, the excess of (i) the Applied Realized
Loss Amount for such Class over (ii) the sum of all distributions on such Class
in reduction of the Applied Realized Loss Amount and any Subsequent Recoveries
allocated to such Class, in each case, on all previous Distribution Dates.
Voting Rights: The portion of the voting rights of all the Certificates
that is allocated to any Certificate for purposes of the voting provisions
hereunder. Voting Rights shall be allocated (i) 95% to the Certificates (other
than the Class B-IO and Residual Certificates), (ii) 1 1/2% to the Class I-B-IO
Certificates, (iii) 1 1/2% to the Class II-B-IO Certificates and (iv) 2% to the
Residual Certificates, with the allocation among the Offered Certificates to be
in proportion to the Certificate Principal Balance of each Class relative to the
Certificate Principal Balance of all other such Classes. Voting Rights will be
allocated among the Certificates of each Class of Offered Certificates, and
among the Class B-IO Certificates and Residual Certificates, in accordance with
their respective Percentage Interests.
WAC Excess: With respect to any Distribution Date and for any Class of
Adjustable Rate Certificates, the sum of (A) the excess of (1) the amount of
interest that such Class of Adjustable Rate Certificates would otherwise be
entitled to receive on the Distribution Date had the Pass-Through Rate for such
Class been calculated at the Pass-Through Rate for such Class and Distribution
Date without regard to the applicable Interest Rate Cap, over (2) the amount of
interest payable on such Class at the respective Pass-Through Rate for such
Class for the Distribution Date and (B) the excess described in clause (A) for
such Class for all previous Distribution Dates (including any interest accrued
on that amount at the related Pass-Through Rate without regard to the applicable
Interest Rate Cap) not previously paid to such Class.
33
WFB: Xxxxx Fargo Bank, N.A., in its capacity as a Servicer of Mortgage
Loans and its successors and assigns in such capacity.
Yield Maintenance Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06 in the name of the Trustee
primarily for the benefit of the Adjustable Rate Certificateholders and
designated "JPMorgan Chase Bank, in trust for registered holders of Bear Xxxxxxx
Asset Backed Securities Trust 2005-SD2, Asset-Backed Certificates, Series
2005-SD2." The Yield Maintenance Account shall not constitute an asset of any
REMIC hereunder.
Yield Maintenance Agreements: The Group I Senior Certificates Yield
Maintenance Agreement, the Group I Subordinate Certificates Yield Maintenance
Agreement, the Group II Senior Certificates Yield Maintenance Agreement, the
Class II-M-1 Yield Maintenance Agreement, the Class II-M-2 Yield Maintenance
Agreement, the Class II-M-3 Yield Maintenance Agreement and the Class II-B Yield
Maintenance Agreement.
Yield Maintenance Agreement Amount: In the case of a Class of Group I
Certificates, with respect to any Distribution Date through the Distribution
Date in February 2013, if One-Month LIBOR is greater than the applicable Strike
Price, an amount equal to the result of multiplying (A) the actual number of
days in the applicable Accrual Period divided by 360 by (B) the product of (a)
the rate equal to the excess of (x) the lesser of One-Month LIBOR and the
applicable Ceiling Rate over (y) the applicable Strike Price and (b) an amount
equal to the lesser of the aggregate Certificate Principal Balance of such Class
and the Projected Principal Balance for such Class for that Distribution Date.
In the case of a Class of Group II Certificates, with respect to any
Distribution Date through the Distribution Date in March 2010, if One-Month
LIBOR is greater than the applicable Strike Price, an amount equal to the result
of multiplying (A) the actual number of days in the applicable Accrual Period
divided by 360 by (B) the product of (a) the rate equal to the excess of (x)
One-Month LIBOR over (y) the applicable Strike Price and (b) an amount equal to
the lesser of the aggregate Certificate Principal Balance of such Class and the
Projected Principal Balance for such Class for that Distribution Date.
Yield Maintenance Payment: With respect to any Yield Maintenance
Agreement and any Distribution Date, the amount, if any, distributed to the
Trustee by the Yield Maintenance Provider pursuant to each such Yield
Maintenance Agreement for the related Class or Classes of Adjustable Rate
Certificates and such Distribution Date.
Yield Maintenance Provider: Bear Xxxxxxx Financial Products Inc. or any
successor in interest.
34
ARTICLE II.
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Trust Fund.
The Seller hereby sells, transfers, assigns, sets over and otherwise
conveys to the Depositor, without recourse, all the right, title and interest of
the Seller in and to the assets in the Trust Fund.
The Seller has entered into this Agreement in consideration for the
purchase of the Mortgage Loans by the Depositor and has agreed to take the
actions specified herein.
The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee
for the use and benefit of the Certificateholders, without recourse, all the
right, title and interest of the Depositor in and to the Trust Fund.
In connection with any such transfer and assignment, the Depositor has
delivered to or caused to be delivered to, and deposited with, the Custodian the
following documents or instruments with respect to each Mortgage Loan so
assigned:
(i) the original Mortgage Note, including any riders thereto,
endorsed without recourse (A) to the order of "JPMorgan Chase Bank, as
Trustee for certificateholders of Bear Xxxxxxx Asset Backed Securities
Trust 2005-SD2, Asset Backed Certificates, Series 2005-SD2, without
recourse", or (B) in the case of a Mortgage Loan registered on the
MERS(R) System, in blank and, in each case, showing to the extent
available to the Seller an unbroken chain of endorsements from the
original payee thereof to the Person endorsing it to the Trustee,
(ii) the original Mortgage and, if the related Mortgage Loan
is a MOM Loan, noting the presence of the MIN and language indicating
that such Mortgage Loan is a MOM Loan, which shall have been recorded
(or if the original is not available, a copy), with evidence of such
recording indicated thereon (or if clause (x) in the proviso below
applies, shall be in recordable form),
(iii) unless the Mortgage Loan is registered on the MERS(R)
System, the assignment (either an original or a copy, which may be in
the form of a blanket assignment if permitted in the jurisdiction in
which the Mortgaged Property is located) to the Trustee of the
Mortgage, in recordable form, with respect to each Mortgage Loan in
the name of "JPMorgan Chase Bank, as Trustee for certificateholders of
Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset Backed
Certificates, Series 2005-SD2" or in blank,
(iv) an original or a copy of all intervening assignments of
the Mortgage, if any, to the extent available to the Seller, with
evidence of recording thereon,
(v) the original policy of title insurance or mortgagee's
certificate of title insurance or commitment or binder for title
insurance, if available, or a copy thereof, or, in the event that such
original title insurance policy is unavailable, a photocopy thereof,
or in lieu thereof, a current lien search on the related Mortgaged
Property and
35
(vi) originals or copies of all available assumption,
modification or substitution agreements, if any;
provided, however, that the assignment of the Mortgage to the Trustee
will not be required to be submitted for recording with respect to any Mortgage
Loan: (a) if the Trustee and the Custodian shall have received an Opinion of
Counsel addressed to the Trustee stating that in such counsel's opinion, the
recordation of the assignment to the Trustee of the Mortgage securing a
particular Mortgage Note is not necessary to transfer to the assignee thereof
all the benefits and security provided by the Mortgage as against the related
assignor or any creditor of such assignor, and the Mortgage will continue to
secure the Mortgage Note to the same extent as if the Mortgage Note and Mortgage
had not been assigned and delivered, (b) such recordation is not required by the
Rating Agencies or (c) if MERS is identified on the Mortgage or on a properly
recorded assignment of the Mortgage as the mortgagee of record solely as nominee
for the Seller and its successors and assigns;
and provided, further, however, that in lieu of the foregoing, the
Depositor may deliver, or cause to be delivered, the following documents, under
the circumstances set forth below: (x) if any Mortgage, assignment thereof to
the Trustee or intervening assignments thereof have been delivered or are being
delivered to recording offices for recording and have not been returned in time
to permit their delivery as specified above, the Depositor may deliver, or cause
to be delivered, a true copy thereof with a certification by the applicable
Servicer or the title company issuing the commitment for title insurance, on the
face of such copy, substantially as follows: "Certified to be a true and correct
copy of the original, which has been transmitted for recording"; and (y) in lieu
of the Mortgage Notes relating to the Mortgage Loans identified in the list set
forth in Exhibit J, the Depositor may deliver, or cause to be delivered, a lost
note affidavit (or a blanket lost note affidavit covering some or all of the
Mortgage Loans in Exhibit J) and a copy of the original note, if available; and
provided, further, however, that in the case of Mortgage Loans which have been
prepaid in full after the Cut-off Date and prior to the Closing Date, the
Depositor, in lieu of delivering the above documents, may cause the Seller to,
and the Seller shall, (i) deposit or cause to be deposited on the Closing Date
all amounts paid in respect of such Mortgage Loans (to the extent required to be
remitted by the related Servicers pursuant to their Servicing Agreements) into
the Master Servicer Collection Account or the Distribution Account or (ii)
deliver to the Custodian on the Closing Date a certification of an authorized
officer of the Seller stating that the Seller will deposit or cause to be
deposited all such amounts on or before the Distribution Account Deposit Date
relating to the first Distribution Date, in which case the Seller shall so
deposit or cause to be deposited such amounts into the Master Servicer
Collection Account or the Distribution Account on or before such Distribution
Account Deposit Date.
In the case of the documents referred to in clause (x) above, the
Depositor shall deliver, or cause to be delivered, such documents to the
Custodian promptly after they are received. The Seller shall cause, at its
expense, the Mortgage and intervening assignments, if any, and to the extent
required in accordance with the foregoing, the assignment of the Mortgage to the
Trustee to be submitted for recording promptly after the Closing Date. In the
event that the Seller, the Depositor or the Master Servicer gives written notice
to the Trustee (a) that recording of the assignment of the Mortgage to the
Trustee is required to protect the right, title and interest of the Trustee on
behalf of the Certificateholders in and to any Mortgage Loan, (b) a court
recharacterizes the sale of the Mortgage Loans as a financing, or (c) as a
result of any change in or amendment to the laws of a State in which recording
was not effected or any applicable political subdivision thereof, or any change
in official position regarding application or interpretation of such laws,
including a holding by a court of competent jurisdiction, such recording is so
required, the Seller shall submit or cause to be submitted for recording as
specified above or, should the Seller fail to perform such obligations, the
Trustee shall cause each such previously unrecorded assignment to be submitted
for recording as specified above at the expense of the Trust pursuant to Section
9.05. In the event a Mortgage File is released to the Master Servicer or a
Servicer as a result of
36
the Master Servicer's or a Servicer's having completed a Request for Release,
the Trustee shall, if not so completed, complete, or cause the Custodian to
complete, the assignment of the related Mortgage in the manner specified in
clause (iii) above.
In connection with the assignment of any Mortgage Loans registered on
the MERS(R) System, the Seller further agrees that it will cause, at the
Seller's own expense, within 30 days after the Closing Date, the MERS(R) System
to indicate that such Mortgage Loans have been assigned by the Seller to the
Depositor and by the Depositor to the Trustee in accordance with this Agreement
for the benefit of the Certificateholders by including (or deleting, in the case
of Mortgage Loans which are repurchased in accordance with this Agreement) in
such computer files (a) the code in the field which identifies the specific
Trustee, (b) the code in the field "Pool Field" which identifies the series of
the Certificates issued in connection with such Mortgage Loans and (c) a code
that provides the Custodian with access to such Mortgage Loans. The Seller
further agrees that it will not, and will not permit any Servicer or the Master
Servicer to, and the Master Servicer agrees that it will not, alter the codes
referenced in this paragraph with respect to any Mortgage Loan during the term
of this Agreement unless and until such Mortgage Loan is repurchased in
accordance with the terms of this Agreement.
Since the mortgage loans permitted to be purchased pursuant to this
Agreement are limited to (i) the Mortgage Loans purchased hereunder on the
Closing Date and (ii) any Replacement Mortgage Loans purchased hereafter
pursuant to the provisions of this Agreement, and the Seller has made the
representations and warranties contained herein with respect to all such
Mortgage Loans, including, a representation and warranty contained in Section
2.03(b)(vii)(S) of this Agreement, that, as of the Closing Date or date of
substitution, as applicable, no Mortgage Loan is a "High-Cost Home Loan" as
defined in the New Jersey Home Ownership Security Act of 2002 (the "New Jersey
Act"), a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection
Act (the "New Mexico Act"), a "High Cost Home Mortgage Loan" under the
Massachusetts Predatory Home Loan Practices Act of 2004 (the "Massachusetts
Act") or a "High-Cost Home Loan" under the Indiana High Cost Home Loan Law of
2005 (the "Indiana Act"), it is agreed and understood by the Depositor, the
Seller and the Trustee that it is not intended that any mortgage loan be
purchased hereunder that is a "High-Cost Home Loan" as defined in the New Jersey
Act, a "High-Cost Home Loan" as defined in the New Mexico Act, a "High Cost Home
Mortgage Loan" as defined in the Massachusetts Act or a "High-Cost Home Loan" as
defined in the Indiana Act.
Section 2.02. Acceptance of the Mortgage Loans.
(a) The Trustee acknowledges receipt based on receipt by
the Custodian of, subject to the further review and the exceptions the Custodian
notes pursuant to the procedures described below, the documents (or certified
copies thereof) delivered to the Custodian pursuant to Section 2.01 and declares
that it holds and will continue to hold directly or through the Custodian those
documents and any amendments, replacements or supplements thereto and all other
assets of the Trust Fund delivered to the Custodian on its behalf in trust for
the use and benefit of all present and future Holders of the Certificates. On
the Closing Date, the Custodian will deliver an initial certification in the
form annexed as Exhibit One to the Custodial Agreement confirming whether or not
it has received the Mortgage File for each Mortgage Loan, but without review of
such Mortgage File, except to the extent necessary to confirm whether such
Mortgage File contains the original Mortgage Note or a lost note affidavit in
lieu thereof. No later than 90 days after the Closing Date, the Custodian agrees
pursuant to the Custodial Agreement, for the benefit of the Certificateholders,
to review each Mortgage File delivered to it and to execute and deliver, or
cause to be executed and delivered, to the Seller and to the Trustee an interim
certification substantially in the form annexed as Exhibit Two to the Custodial
Agreement. In conducting such review, the Custodian on behalf of the Trustee
will ascertain whether all required documents have been executed and received
and whether those documents relate, determined on the basis of the Mortgagor
37
name, original principal balance and loan number, to the Mortgage Loans
identified in Exhibit B to this Agreement, as supplemented (provided, however,
that with respect to those documents described in clauses (iv) and (vi) of the
fourth paragraph of Section 2.01, such obligations shall extend only to
documents actually delivered pursuant to such clauses). In performing any such
review, the Custodian on behalf of the Trustee and in accordance with the
Custodial Agreement may conclusively rely on the purported due execution and
genuineness of any such document and on the purported genuineness of any
signature thereon. If the Custodian finds any document constituting part of the
Mortgage File not to have been executed or received, or to be unrelated to the
Mortgage Loans identified in Exhibit B or to appear to be defective on its face,
the Custodian shall include such information in the exception report attached to
such interim certification. The Seller shall correct or cure any such defect or,
if prior to the end of the second anniversary of the Closing Date, the Seller
may substitute for the related Mortgage Loan a Replacement Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03 or shall deliver to the Trustee and the Custodian an
Opinion of Counsel, addressed to the Trustee and the Custodian, at the Seller's
expense, to the effect that such defect does not materially or adversely affect
the interests of Certificateholders in such Mortgage Loan within 90 days from
the date of notice from the Custodian of the defect and if the Seller fails to
correct or cure the defect or deliver such opinion within such period, the
Seller will, subject to Section 2.03, within 90 days from the notification of
the Custodian purchase such Mortgage Loan at the Purchase Price; provided,
however, that if such defect relates solely to the inability of the Seller to
deliver the Mortgage, assignment thereof to the Trustee, or intervening
assignments thereof with evidence of recording thereon because such documents
have been submitted for recording and have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan if
the Seller delivers such documents promptly upon receipt, but in no event later
than 360 days after the Closing Date.
(b) No later than 180 days after the Closing Date, the
Custodian on behalf of the Trustee and in accordance with the Custodial
Agreement will review, for the benefit of the Certificateholders, the Mortgage
Files and will execute and deliver or cause to be executed and delivered to the
Seller and to the Trustee, a final certification substantially in the form
annexed as Exhibit Three to the Custodial Agreement. In conducting such review,
the Custodian will ascertain whether each document required to be recorded has
been returned from the recording office with evidence of recording thereon and
the Custodian has received either an original or a copy thereof, as required in
Section 2.01 (provided, however, that with respect to those documents described
in clauses (iv) and (vi) of the fourth paragraph of Section 2.01, such
obligations shall extend only to documents actually delivered pursuant to such
clauses). If the Custodian finds any document with respect to a Mortgage Loan
has not been received, or to be unrelated, determined on the basis of the
Mortgagor name, original principal balance and loan number, to the Mortgage
Loans identified in Exhibit B or to appear defective on its face, the Custodian
shall note such defect in the exception report attached to the Final
Certification and shall promptly notify the Seller. The Seller shall correct or
cure any such defect or, if prior to the end of the second anniversary of the
Closing Date, the Seller may substitute for the related Mortgage Loan a
Replacement Mortgage Loan, which substitution shall be accomplished in the
manner and subject to the conditions set forth in Section 2.03 or shall deliver
to the Trustee and the Custodian an Opinion of Counsel, addressed to the Trustee
and the Custodian, at the Seller's expense, to the effect that such defect does
not materially or adversely affect the interests of Certificateholders in such
Mortgage Loan within 90 days from the date of notice from the Custodian of the
defect and if the Seller is unable within such period to correct or cure such
defect, or to substitute the related Mortgage Loan with a Replacement Mortgage
Loan or to deliver such opinion, the Seller shall, subject to Section 2.03,
within 90 days from the notification of the Custodian, purchase such Mortgage
Loan at the Purchase Price; provided, however, that if such defect relates
solely to the inability of the Seller to deliver the Mortgage, assignment
thereof to the Trustee or intervening assignments thereof with evidence of
recording thereon, because such documents have not been returned by the
applicable jurisdiction, the Seller shall not be required to
38
purchase such Mortgage Loan, if the Seller delivers such documents promptly upon
receipt, but in no event later than 360 days after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by the
Seller in accordance with subsections 2.02(a) or (b) above or Section 2.03, the
Seller shall remit the applicable Purchase Price to the Paying Agent for deposit
in the Distribution Account and shall provide written notice to the Paying Agent
and Trustee detailing the components of the Purchase Price, signed by a
Servicing Officer. Upon deposit of the Purchase Price in the Distribution
Account and receipt of a Request for Release, the Trustee will release or notify
the Custodian which, upon receipt of such notice from the Trustee, shall release
to the Seller the related Mortgage File and the Trustee shall execute and
deliver all instruments of transfer or assignment, without recourse,
representation or warranty, furnished to it by the Seller, as are necessary to
vest in the Seller title to and rights under the Mortgage Loan. Such purchase
shall be deemed to have occurred on the date on which the deposit into the
Distribution Account was made or if the Custodian is then acting, the date on
which notice of the deposit of the Purchase Price into the Distribution Account
was received by the Custodian from the Trustee. The Trustee shall promptly
notify the Rating Agencies of such repurchase. The obligation of the Seller to
cure, repurchase or substitute for any Mortgage Loan as to which a defect in a
constituent document exists shall be the sole remedy respecting such defect
available to the Certificateholders or to the Trustee on their behalf.
(d) The Seller shall deliver to the Trustee or upon its
direction to the Custodian, and the Trustee agrees to accept or to cause the
Custodian to accept, the Mortgage Note and other documents constituting the
Mortgage File with respect to any Replacement Mortgage Loan, which the Custodian
will review as provided in subsections 2.02(a) and 2.02(b), provided, that the
Closing Date referred to therein shall instead be the date of delivery of the
Mortgage File with respect to each Replacement Mortgage Loan.
(e) Until all amounts distributable in respect of the
Certificates have been distributed in full and the Master Servicer has otherwise
fulfilled its respective obligations under this Agreement, the Trustee, or the
Custodian acting on its behalf, shall retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions of this
Agreement.
Section 2.03. Representations, Warranties and Covenants of the Master
Servicer, the EMC Servicer and the Seller.
(a) The Master Servicer and the EMC Servicer each hereby
represents and warrants to the Depositor, the Securities Administrator and the
Trustee (and in the case of the EMC Servicer, to the Master Servicer) as
follows, as of the Closing Date:
(i) It is duly organized and is validly existing and in good
standing (a) in the case of the EMC Servicer, under the laws of the
State of Delaware and (b) in the case of the Master Servicer, as a
national banking association organized under the laws of the United
States, and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by it in any
state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in any
event, is in compliance with the doing business laws of any such
state, to the extent necessary to ensure its ability to enforce each
Mortgage Loan, to service the Mortgage Loans in accordance with the
terms of this Agreement and to perform any of its other obligations
under this Agreement in accordance with the terms hereof.
(ii) It has the full corporate power and authority to service
each Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated
39
by this Agreement and has duly authorized by all necessary corporate
action on its part the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization,
execution and delivery hereof by the other parties hereto, constitutes
its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except that (a) the enforceability hereof
may be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iii) The execution and delivery of this Agreement by it, the
servicing of the Mortgage Loans by it under this Agreement, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof
are in its ordinary course of business and will not (A) result in a
material breach of any term or provision of its charter or by-laws or
(B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms
of any other material agreement or instrument to which it is a party
or by which it may be bound, or (C) constitute a material violation of
any statute, order or regulation applicable to it of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it; and it is not in breach or violation of any
material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair its ability to
perform or meet any of its obligations under this Agreement.
(iv) It or one or more of its affiliates is an approved
servicer of conventional mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac
and is a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing
Act.
(v) No litigation is pending or, to the best of its knowledge,
threatened, against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability
to service the Mortgage Loans or to perform any of its other
obligations under this Agreement in accordance with the terms hereof.
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for its execution, delivery
and performance of, or compliance with, this Agreement or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained
the same.
(b) The Seller hereby represents and warrants to the
Depositor, the Securities Administrator, the Master Servicer and the Trustee as
follows, as of the Closing Date:
(i) The Seller is duly organized as a Delaware corporation and
is validly existing and in good standing under the laws of the State
of Delaware and is duly authorized and qualified to transact any and
all business contemplated by this Agreement to be conducted by the
Seller in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to ensure its
ability to enforce each Mortgage Loan, to sell the Mortgage Loans in
accordance with the terms of this Agreement and to perform any of its
other obligations under this Agreement in accordance with the terms
hereof.
(ii) The Seller has the full corporate power and authority to
sell each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions
40
contemplated by this Agreement and has duly authorized by all
necessary corporate action on the part of the Seller the execution,
delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery hereof by the
other parties hereto, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except that (a) the enforceability hereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iii) The execution and delivery of this Agreement by the
Seller, the sale of the Mortgage Loans by the Seller under this
Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or compliance
with the terms hereof are in the ordinary course of business of the
Seller and will not (A) result in a material breach of any term or
provision of the charter or by-laws of the Seller or (B) materially
conflict with, result in a material breach, violation or acceleration
of, or result in a material default under, the terms of any other
material agreement or instrument to which the Seller is a party or by
which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to the Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Seller; and the Seller is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over it which breach or violation may materially
impair the Seller's ability to perform or meet any of its obligations
under this Agreement.
(iv) The Seller is an approved seller of conventional mortgage
loans for Xxxxxx Mae or Xxxxxxx Mac and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203
and 211 of the National Housing Act.
(v) No litigation is pending or, to the best of the Seller's
knowledge, threatened, against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Seller to sell the Mortgage Loans or
to perform any of its other obligations under this Agreement in
accordance with the terms hereof.
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Seller of, or compliance by the Seller with,
this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is
required, the Seller has obtained the same.
(vii) With respect to each Mortgage Loan as of the Cut-off
Date (unless otherwise expressly provided) or, with respect to clauses
(G) or (U), as of the Closing Date:
(A) The information set forth in the Mortgage Loan
Schedule on the Closing Date is complete, true and correct.
(B) No Mortgage Loan is delinquent 61 or more days; and
the Seller has not advanced funds, or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the Mortgaged Property
subject to the Mortgage, directly or indirectly, for the payment of any amount
required under any Mortgage Loan.
41
(C) Except with respect to taxes, insurance and other
amounts previously advanced by a Servicer with respect to any Mortgage Loan, to
the best of Seller's knowledge, there are no delinquent taxes, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments, or other outstanding charges
affecting the related Mortgaged Property.
(D) The terms of the Mortgage Note and the Mortgage have
not been impaired, waived, altered or modified in any respect, except by written
instruments which in the case of the Mortgage Loans are in the Mortgage File and
have been or will be recorded, if necessary to protect the interests of the
Trustee, and which have been or will be delivered to the Trustee, all in
accordance with this Agreement. The substance of any such waiver, alteration or
modification has been approved by the title insurer, to the extent required by
the related policy. No Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement approved by the title insurer, to the
extent required by the policy, and which assumption agreement in the case of the
Mortgage Loans is part of the Mortgage File.
(E) The Mortgage Note and the Mortgage are not subject to
any right of rescission, set-off, counterclaim or defense, including the defense
of usury, nor will the operation of any of the terms of the Mortgage Note and
the Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto.
(F) All buildings upon, or comprising part of, the
Mortgaged Property are insured by an insurer acceptable to Xxxxxx Mae and
Xxxxxxx Mac against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located,
and such insurer is licensed to do business in the state where the Mortgaged
Property is located. All such insurance policies contain a standard mortgagee
clause naming the Originator, its successors and assigns as mortgagee and Seller
has received no notice that all premiums thereon have not been paid. If upon
origination of the Mortgage Loan, the Mortgaged Property was, or was
subsequently deemed to be, in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), which require under applicable law
that a flood insurance policy meeting the requirements of the current guidelines
of the Federal Insurance Administration (or any successor thereto) be obtained,
such flood insurance policy is in effect which policy is with a generally
acceptable carrier in an amount representing coverage not less than the least of
(A) the Stated Principal Balance of the related Mortgage Loan (together with, in
the case of a Mortgage Loan that is not a first priority lien, the outstanding
principal balance of all related liens that are prior to the applicable lien of
such Mortgage Loan), (B) the minimum amount required to compensate for damage or
loss on a replacement cost basis, or (C) the maximum amount of insurance that is
available under the Flood Disaster Protection Act of 1973. The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at Mortgagor's
cost and expense and, on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to maintain such insurance at Mortgagor's cost and expense and
to obtain reimbursement therefor from the Mortgagor.
(G) None of the Mortgage Loans are (a) Mortgage Loans
subject to 12 CFR Part 226.31, 12 CFR Part 226.32 or 226.34 of Regulation Z, the
regulation implementing TILA, which implements the Home Ownership and Equity
Protection Act of 1994, as amended, (b) classified and/or defined, as a "high
cost", "threshold", "predatory" or "covered" loan (or a similarly classified
loan using different terminology under a law imposing additional legal liability
for mortgage loans having high interest rates, points and/or fees) under any
other applicable state, federal or local law including, but not limited to, the
States of New York, North Carolina, Arkansas, Kentucky, New Mexico, Illinois and
42
Oklahoma, (c) Mortgage Loans governed by the Georgia Fair Lending Act, if such
Mortgage Loan was originated on or after October 1, 2002 through May 6, 2003 or
(d) Mortgage Loans subject to the New Jersey Home Ownership Security Act of 2002
(the "New Jersey Act"), unless such Mortgage Loan is a (1) "Home Loan" as
defined in the New Jersey Act that is a first lien Mortgage Loan, which is not a
"High Cost Home Loan" as defined in the New Jersey Act or (2) "Covered Home
Loan" as defined in the New Jersey Act that is a first lien purchase money
Mortgage Loan, which is not a High Cost Home Loan under the New Jersey Act. In
addition to and notwithstanding anything to the contrary herein, no Mortgage
Loan for which the Mortgaged Property is located in New Jersey is a Home Loan as
defined in the Act that was made, arranged, or assigned by a person selling
either a manufactured home or home improvements to the Mortgaged Property or was
made by an originator to whom the Mortgagor was referred by any such seller.
Each Mortgage Loan at the time it was made otherwise complied in all material
respects with any and all requirements of any federal, state or local law
including, but not limited to, all predatory lending laws, usury, truth in
lending, real estate settlement procedures (including the Real Estate Settlement
Procedures Act of 1974, as amended, consumer credit protection, equal credit
opportunity or disclosure laws applicable to such Mortgage Loan.
(H) The Mortgage has not been satisfied, canceled,
subordinated, or rescinded, in whole or in part, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or in part, nor has
any instrument been executed that would effect any such release, cancellation,
subordination or rescission.
(I) The Mortgage is a valid, existing and enforceable
first lien on the Mortgaged Property, including all improvements on the
Mortgaged Property, if any, subject only to (1) the lien of current real
property taxes and assessments not yet due and payable, (2) covenants,
conditions and restrictions, rights of way, easements and other matters of the
public record as of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's title
insurance policy delivered to the Originator of the Mortgage Loan and which do
not adversely affect the Appraised Value of the Mortgaged Property, (3) if
applicable, in the case of a Mortgage that is a second priority lien, the first
lien on the Mortgaged Property identified in the related Mortgage File, and (4)
other matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be provided
by the Mortgage. The Seller has full right to sell and assign the Mortgage to
the Depositor. None of the Mortgages related to the Mortgage Loans is a second
lien.
(J) The Mortgage Note and the related Mortgage are
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency or reorganization or general
principles of equity.
(K) All parties to the Mortgage Note and the Mortgage had
the legal capacity to enter into the Mortgage Loan transaction and to execute
and deliver the Mortgage Note and the Mortgage, and the Mortgage Note and the
Mortgage have been duly and properly executed by such parties.
(L) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder and any and
all requirements as to completion of any on-site or off-site improvement and as
to disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or Mortgage.
(M) Immediately prior to the conveyance of the Mortgage
Loans by the Seller to the Depositor hereunder, the Seller was the sole owner
and holder of the Mortgage Loan and either serviced
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the Mortgage Loan itself or the Mortgage Loan was being serviced pursuant to a
Servicing Agreement with the Servicer indicated on the Mortgage Loan Schedule;
the related Originator or the Seller or the applicable Servicer was the
custodian of the related escrow account, if applicable; the Mortgage Loan had
neither been assigned nor pledged, and the Seller had good and marketable title
thereto, and had full right to transfer and sell the Mortgage Loan and the
related servicing rights to the Depositor free and clear of any encumbrance,
equity, lien, pledge, charge, claim or security interest subject to the
applicable Servicing Agreement, if any, and had full right and authority subject
to no interest or participation of, or agreement with, any other party, to sell
and assign the Mortgage Loan and the related servicing rights to the Depositor
pursuant to the terms of this Agreement.
(N) All parties which have had any interest in the
Mortgage, whether as mortgagee, assignee, pledgee or otherwise, are (or, during
the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) organized under the
laws of such state, qualified to do business in such state, a federal savings
and loan association or national bank having principal offices in such state or
not deemed to be doing business in such state under applicable law.
(O) The Mortgage Loan is covered by an ALTA lender's
title insurance policy or equivalent form acceptable to the Department of
Housing and Urban Development, or any successor thereto, and qualified to do
business in the jurisdiction where the Mortgaged Property is located, insuring
(subject to the exceptions contained in clause (I) above) the Seller (as
assignee), its successors and assigns as to the first or, if applicable, more
junior priority lien of the Mortgage in the original principal amount of the
Mortgage Loan and against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the Mortgage Note
and/or Mortgage providing for adjustment in the Mortgage Rate and monthly
payment. Additionally, such lender's title insurance policy affirmatively
insures ingress and egress, and against encroachments by or upon the Mortgaged
Property or any interest therein. With respect to each Mortgage Loan, the Seller
(as assignee) is the sole insured of such lender's title insurance policy, and
such lender's title insurance policy is in full force and effect. No claims have
been made under such lender's title insurance policy, and no prior holder of the
related Mortgage, including the Seller in the case of a Mortgage Loan, has done,
by act or omission, anything which would impair the coverage of such lender's
title insurance policy.
(P) Except as provided in clause (B), immediately prior
to the Cut-off Date, there was no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and there was no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event of
acceleration, and the Seller has not waived any default, breach, violation or
event of acceleration.
(Q) There are no mechanics' or similar liens or claims
which have been filed for work, labor or material (and no rights are outstanding
that under law could give rise to such lien) affecting the related Mortgaged
Property which are or may be liens prior to or equal with, the lien of the
related Mortgage.
(R) All improvements which were considered in any
appraisal which was used in determining the Appraised Value of the related
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property.
(S) No Mortgage Loan is a "High Cost Home Loan" as
defined in the New Jersey Home Ownership Security Act of 2002, a "High Cost Home
Loan" as defined in the New Mexico Home Loan Protection Act, a "High Cost Home
Mortgage Loan" as defined in the Massachusetts Predatory
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Home Loan Practices Act of 2004 or a "High-Cost Home Loan" as defined in the
Indiana High Cost Home Loan Law of 2005.
(T) The origination, servicing and collection practices
with respect to each Mortgage Note and Mortgage including, the establishment,
maintenance and servicing of the escrow accounts and escrow payments, if any,
since origination, have been conducted in all respects in accordance with the
terms of Mortgage Note and in compliance with all applicable laws and
regulations and, unless otherwise required by law or Xxxxxx Xxx/Xxxxxxx Mac
standard, in accordance with the proper, prudent and customary practices in the
mortgage origination and servicing business. With respect to the escrow accounts
and escrow payments, if any, and a Mortgage Loan all such payments are in the
possession or under the control of the Seller (including pursuant to a Servicing
Agreement) and there exists no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Mortgage
Rate adjustments have been made in strict compliance with state and federal law
and the terms of the related Mortgage Note. Any interest required to be paid
pursuant to state and local law has been properly paid and credited.
(U) The Mortgaged Property is free of material damage and
waste and there is no proceeding pending for the total or partial condemnation
thereof.
(V) The Mortgage contains customary and enforceable
provisions to render the rights and remedies of the holder thereof adequate for
the realization against the Mortgaged Property of the benefits of the security
intended to be provided thereby, including, (1) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (2) otherwise by judicial
foreclosure. There is no other exemption available to the Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's sale or
the right to foreclose the Mortgage. The Mortgagor has not notified the Seller
and the Seller has no knowledge of any relief requested or allowed to the
Mortgagor under the Relief Act.
(W) The Mortgage Note is not and has not been secured by
any collateral except the lien of the applicable Mortgage.
(X) [Reserved].
(Y) In the event the Mortgage constitutes a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and no
fees or expenses are or will become payable by the Certificateholders to the
trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor.
(Z) No Mortgage Loan contains a permanent or temporary
"buydown" provision. The Mortgage Loan is not a graduated payment mortgage loan
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature.
(AA) The Mortgagor has received all disclosure materials
required by applicable law with respect to the making of the Mortgage Loan. The
Seller has maintained or caused to be maintained all such statements in the
Mortgage File.
(BB) No Mortgage Loan was made in connection with the
construction or rehabilitation of a Mortgaged Property.
(CC) To the best of Seller's knowledge, the Mortgaged
Property is lawfully occupied under applicable law and all inspections, licenses
and certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and occupancy of
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the same, including but not limited to certificates of occupancy, have been made
or obtained from the appropriate authorities.
(DD) The assignment of Mortgage with respect to a Mortgage
Loan (other than a Mortgage Loan registered on the MERS(R) system) is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located.
(EE) Any future advances made to the Mortgagor prior to
the Cut-off Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having first
priority, by a title insurance policy, an endorsement to the policy insuring the
mortgagee's consolidated interest or by other title evidence acceptable to
Xxxxxx Mae and Xxxxxxx Mac. The consolidated principal amount does not exceed
the original principal amount of the Mortgage Loan.
(FF) With respect to any Mortgage Loan that bears, or will
upon conversion from a fixed rate bear, interest at an adjustable rate, on each
Interest Adjustment Date, the Mortgage Rate has been adjusted to equal the
respective Index plus the respective Gross Margin (subject to standard rounding
conventions), subject to the Periodic Rate Cap, the Maximum Lifetime Mortgage
Rate and the Minimum Lifetime Mortgage Rate, if any, as set forth in the related
Mortgage Note.
(GG) Without exception in either Group, the Mortgaged
Property consists of a single parcel of real property with or without a detached
single family residence erected thereon, or an individual condominium unit, or a
cooperative, or a 2-4 family dwelling, or an individual unit in a planned unit
development as defined by Xxxxxx Xxx or a manufactured dwelling which conforms
with Xxxxxx Mae and Xxxxxxx Mac requirements regarding such dwellings, or a
townhouse, each structure of which is permanently affixed to the Mortgaged
Property, and is legally classified as real estate.
(HH) [Reserved].
(II) 90.63% of the Group II Mortgage Loans (by Cut-off
Date Principal Balance) are Hybrid Mortgage Loans in their fixed rate period.
None of the Mortgage Loans contain a provision allowing the Mortgagor to convert
an adjustable rate Mortgage Loan to a fixed rate Mortgage Loan. The principal
and interest due on each Mortgage Loan is calculated pursuant to the standard
amortization method (30/360 day interest accrual). None of the Mortgage Loans
(by cut-off Date Principal Balance) in either Group are Simple Interest Loans.
(JJ) Each Mortgage Loan at the time of origination was
underwritten in general in accordance with guidelines not inconsistent with the
guidelines set forth in the Prospectus Supplement and generally accepted prime
or sub-prime credit underwriting guidelines.
(KK) No error, omission, misrepresentation, fraud or
similar occurrence with respect to a Mortgage Loan has taken place on the part
of the Seller or the related Originator.
(LL) None of the Mortgage Loans is a "High Cost Loan" or
"Covered Loan" as defined in the current Standard & Poor's LEVELS(R) Glossary
which is now Version 5.6 Revised, Appendix E.
(MM) No more than 0% and 7.32% of the Mortgage Loans, by
Cut-off Date Principal Balance, in Group I and Group II, respectively, provided
for negative amortization.
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(c) Upon discovery by any of the parties hereto of a
breach of a representation or warranty set forth in Section 2.03(b)(vii) that
materially and adversely affects the interests of the Certificateholders in any
Mortgage Loan, the party discovering such breach shall give prompt written
notice thereof to the other parties. The Seller hereby covenants with respect to
the representations and warranties set forth in Section 2.03(b)(vii), that
within 90 days of the discovery of a breach of any representation or warranty
set forth therein that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such breach in all
material respects and, if such breach is not so cured, (i) if such 90-day period
expires prior to the second anniversary of the Closing Date, remove such
Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in
its place a Replacement Mortgage Loan, in the manner and subject to the
conditions set forth in this Section; or (ii) repurchase the affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set
forth below; provided that any such substitution pursuant to (i) above or
repurchase pursuant to (ii) above shall not be effected prior to the delivery to
the Trustee of an Opinion of Counsel if required by Section 2.05 hereof and any
such substitution pursuant to (i) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release. The Seller shall
promptly reimburse the Master Servicer and the Trustee for any expenses
reasonably incurred by the Master Servicer or the Trustee in respect of
enforcing the remedies for such breach. To enable the Master Servicer to amend
the Mortgage Loan Schedule, the Seller shall, unless it cures such breach in a
timely fashion pursuant to this Section 2.03, promptly notify the Master
Servicer whether it intends either to repurchase, or to substitute for, the
Mortgage Loan affected by such breach. With respect to the representations and
warranties in Section 2.03(b)(vii) that are made to the best of the Seller's
knowledge, if it is discovered by any of the Depositor, the Master Servicer, the
Seller, the Securities Administrator or the Trustee that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan, notwithstanding the
Seller's lack of knowledge with respect to the substance of such representation
or warranty, the Seller shall nevertheless be required to cure, substitute for
or repurchase the affected Mortgage Loan in accordance with the foregoing.
With respect to any Replacement Mortgage Loan or Loans, the Seller
shall deliver to the Trustee for the benefit of the Certificateholders such
documents and agreements as are required by Section 2.01. No substitution will
be made in any calendar month after the Determination Date for such month.
Scheduled Payments due with respect to Replacement Mortgage Loans in the Due
Period related to the Distribution Date on which such proceeds are to be
distributed shall not be part of the Trust Fund and will be retained by the
Seller. For the month of substitution, except with respect to any Simple
Interest Loans, distributions to Certificateholders will include the Scheduled
Payment due on any Deleted Mortgage Loan for the related Due Period (and with
respect to any Simple Interest Loans, payments of principal actually received
during such Due Period) and thereafter the Seller shall be entitled to retain
all amounts received in respect of such Deleted Mortgage Loan. The Master
Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Replacement Mortgage Loan or Loans and the Master Servicer
shall deliver the amended Mortgage Loan Schedule to the Trustee and the
Custodian. Upon such substitution, the Replacement Mortgage Loan or Loans shall
be subject to the terms of this Agreement in all respects, and the Seller shall
be deemed to have made with respect to such Replacement Mortgage Loan or Loans,
as of the date of substitution, the representations and warranties set forth in
Section 2.03(b)(vii) with respect to such Mortgage Loan. Upon any such
substitution and the deposit to the Master Servicer Collection Account, of the
amount required to be deposited therein in connection with such substitution as
described in the following paragraph, the Trustee shall release to the Seller
the Mortgage File relating to such Deleted Mortgage Loan and held for the
benefit of the Certificateholders and shall execute and deliver at the Seller's
direction such instruments of transfer or assignment as have been prepared by
the Seller, in each case without recourse, representation or warranty, as shall
be necessary to vest in the Seller, or its respective designee, title to the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
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For any month in which the Seller substitutes one or more Replacement
Mortgage Loans for a Deleted Mortgage Loan, the Master Servicer will determine
the amount (if any) by which the aggregate principal balance of all the
Replacement Mortgage Loans as of the date of substitution is less than the
Stated Principal Balance (after application of the principal portion of the
Scheduled Payment due in the month of substitution, except the actual payment
received with respect to any Simple Interest Loans) of such Deleted Mortgage
Loan. An amount equal to the aggregate of such deficiencies, described in the
preceding sentence for any Distribution Date (such amount, the "Substitution
Adjustment Amount") shall be deposited into the Master Servicer Collection
Account by the Seller delivering such Replacement Mortgage Loan on the
Determination Date for the Distribution Date relating to the Prepayment Period
during which the related Mortgage Loan became required to be purchased or
replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage Loan,
the Purchase Price therefor shall be deposited in the Master Servicer Collection
Account pursuant to Section 3.08 on the Determination Date for the Distribution
Date in the month following the month during which the Seller became obligated
to repurchase or replace such Mortgage Loan and upon such deposit of the
Purchase Price, the delivery of an Opinion of Counsel if required by Section
2.05 and the receipt of a Request for Release, the Trustee shall release the
related Mortgage File held for the benefit of the Certificateholders to the
Seller, and the Trustee shall execute and deliver at such Person's direction the
related instruments of transfer or assignment prepared by the Seller, in each
case without recourse, representation or warranty, as shall be necessary to
transfer title from the Trustee for the benefit of the Certificateholders and
transfer the Trustee's interest to the Seller to any Mortgage Loan purchased
pursuant to this Section 2.03. It is understood and agreed that the obligation
under this Agreement of the Seller to cure, repurchase or replace any Mortgage
Loan as to which a breach has occurred and is continuing shall constitute the
sole remedy against the Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee.
(d) The representations and warranties set forth in
Section 2.03 hereof shall survive delivery of the respective Mortgage Files to
the Trustee for the benefit of the Certificateholders.
Section 2.03(A) Assignment of Interests in the Servicing Agreements.
To the extent not provided for in the related Assumption Agreements,
the Seller hereby assigns to the Depositor who concurrently with the execution
and delivery of this Agreement assigns to the Trustee, on behalf of the
Certificateholders, all of their respective right, title and interest in the
Servicing Agreements and, if applicable, the Assumption Agreements, including
but not limited to the Seller's rights pursuant to the Servicing Agreements
(noting that the Seller has retained the right in the event of breach of the
representations, warranties and covenants, if any, with respect to the Mortgage
Loans of WFB under the related Servicing Agreement to enforce the provisions
thereof and to seek all or any available remedies); provided that the Seller
shall retain the right to terminate WFB without cause as set forth in Section
11.02 of the related Servicing Agreement.
Section 2.04. Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Master
Servicer, the Securities Administrator and the Trustee as follows, as of the
date hereof and as of the Closing Date:
(i) The Depositor is duly organized and is validly existing as
a limited liability company in good standing under the laws of the
State of Delaware and has full power and authority necessary to own or
hold its properties and to conduct its business as now conducted by it
and to enter into and perform its obligations under this Agreement.
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(ii) The Depositor has the full power and authority to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and has duly authorized,
by all necessary action on its part, the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties
hereto, constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its
terms, subject, as to enforceability, to (i) bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and (ii) general principles of equity, regardless of
whether enforcement is sought in a proceeding in equity or at law.
(iii) The execution and delivery of this Agreement by the
Depositor, the consummation of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof
are in the ordinary course of business of the Depositor and will not
(A) result in a material breach of any term or provision of the
certificate of formation or limited liability company agreement of the
Depositor or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to
which the Depositor is a party or by which it may be bound or (C)
constitute a material violation of any statute, order or regulation
applicable to the Depositor of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Depositor; and the Depositor is not in breach or violation of any
material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair the
Depositor's ability to perform or meet any of its obligations under
this Agreement.
(iv) No litigation is pending, or, to the best of the
Depositor's knowledge, threatened, against the Depositor that would
materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Depositor to
perform its obligations under this Agreement in accordance with the
terms hereof.
(v) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Depositor of, or compliance by the Depositor
with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval, authorization
or order is required, the Depositor has obtained the same.
The Depositor hereby represents and warrants to the Trustee as of the
Closing Date, following the transfer of the Mortgage Loans to it by the Seller,
the Depositor had good title to the Mortgage Loans free and clear of all liens,
claims and encumbrances, and the related Mortgage Notes were subject to no
offsets, claims, defenses or counterclaims.
It is understood and agreed that the representations and warranties set
forth in the immediately preceding paragraph shall survive delivery of the
Mortgage Files to the Custodian on behalf of the Trustee to the Trustee. Upon
discovery by the Depositor or the Trustee of a breach of such representations
and warranties, the party discovering such breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases.
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(a) Notwithstanding any contrary provision of this
Agreement, with respect to any Mortgage Loan that is not in default or as to
which default is not imminent, no repurchase or substitution pursuant to
Sections 2.02 or 2.03 shall be made unless the Seller delivers to the Trustee,
with a copy to the Custodian, an Opinion of Counsel, addressed to the Trustee,
to the effect that such repurchase or substitution would not (i) result in the
imposition of the tax on "prohibited transactions" of REMIC I or REMIC II or
contributions after the Closing Date, as defined in sections 860F(a)(2) and
860G(d) of the Code, respectively or (ii) cause either REMIC I or REMIC II to
fail to qualify as a REMIC at any time that any Certificates are outstanding.
Any Mortgage Loan as to which repurchase or substitution was delayed pursuant to
this paragraph shall be repurchased or the substitution therefor shall occur
(subject to compliance with Sections 2.02 or 2.03) upon the earlier of (a) the
occurrence of a default or imminent default with respect to such Mortgage Loan
and (b) receipt by the Trustee, with a copy to the Custodian, of an Opinion of
Counsel addressed to the Trustee to the effect that such repurchase or
substitution, as applicable, will not result in the events described in clause
(i) or clause (ii) of the preceding sentence.
(b) Upon discovery by the Depositor, the Seller, the
Master Servicer, the Custodian or the Trustee that any Mortgage Loan does not
constitute a "qualified mortgage" within the meaning of section 860G(a)(3) of
the Code, the party discovering such fact shall promptly (and in any event
within 5 Business Days of discovery) give written notice thereof to the other
parties. In connection therewith, the Trustee shall require the Seller, at the
Seller's option, to either (i) substitute, if the conditions in Section 2.03(c)
with respect to substitutions are satisfied, a Replacement Mortgage Loan for the
affected Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90
days of such discovery in the same manner as it would a Mortgage Loan for a
breach of representation or warranty contained in Section 2.03. The Trustee
shall reconvey to the Seller the Mortgage Loan to be released pursuant hereto in
the same manner, and on the same terms and conditions, as it would a Mortgage
Loan repurchased for breach of a representation or warranty contained in Section
2.03.
Section 2.06. Authentication and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, the Certificate
Registrar has executed, authenticated and delivered, to or upon the order of the
Depositor, the Certificates in authorized denominations evidencing the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates and to perform the duties set forth in this
Agreement, to the end that the interests of the Holders of the Certificates may
be adequately and effectively protected.
Section 2.07. Covenants of the Master Servicer and the EMC Servicer.
The Master Servicer covenants to the Depositor, the Securities
Administrator and the Trustee, and the EMC Servicer covenants to the Master
Servicer, as follows:
(a) it shall comply in the performance of its obligations
under this Agreement;
(b) no written information, certificate of an officer,
statement furnished in writing (other than annual compliance certificates and
annual accountants' reports of the Servicers delivered by the Master Servicer
pursuant to Section 3.18) or written report prepared by the Master Servicer or
the EMC Servicer, as applicable, pursuant to this Agreement and delivered, the
case of the Master Servicer, to the Securities Administrator, the Depositor, any
affiliate of the Depositor or the Trustee or, in the case of the EMC Servicer,
to the Master Servicer, will contain any untrue statement of a material fact or
omit to state a material fact necessary to make the information, certificate,
statement or report not misleading; and
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(c) it shall (in the case of the Master Servicer, only in
its capacity as successor servicer pursuant to a Servicing Agreement) accurately
and fully provide information regarding payment performance of the Mortgagors to
the nationally recognized credit repositories, to the extent such reporting
remains customary and prudent in the servicing of mortgage loans similar to the
Mortgage Loans. Nothing in this Section shall derogate from the obligation of
the Master Servicer or the EMC Servicer to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of the Master Servicer or the EMC Servicer to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of this
Section.
Section 2.08. Lost Mortgage Notes Indemnity.
With respect to each Mortgage Loan for which the Seller has delivered a
lost note affidavit in lieu of an original Mortgage Note, the Seller does hereby
agree to defend, indemnify, and hold harmless the Trust Fund and the Trustee,
from and against any and all losses or damages, together with all reasonable
costs, charges and expenses (whether or not a lawsuit is filed), incurred as a
result of (i) the inability to enforce the related Mortgage Note according to
its terms, (ii) any claim, demand, suit, cause of action or proceeding by a
third party arising out of a Servicer's, the Master Servicer's or the Trustee's
inability to enforce the related Mortgage Note according to its terms due to the
lack of an original Mortgage Note, or (iii) the inability to receive any related
Insurance Proceeds, Liquidation Proceeds or other amounts due to the lack of an
original Mortgage Note. Upon demand from a Servicer, the Master Servicer or the
Trustee, the Seller shall deposit all amounts constituting lost principal with
respect to such Mortgage Loan into the Master Servicer Collection Account to be
treated as a Principal Prepayment, and reimburse such Servicer, the Master
Servicer or the Trustee, as applicable, for all costs and expenses incurred in
connection with such lost Mortgage Note.
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ARTICLE III.
ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
Section 3.01. The Master Servicer.
The Master Servicer shall supervise, monitor and oversee the obligation
of the Servicers to service and administer their respective Mortgage Loans in
accordance with the terms of the applicable Servicing Agreement and shall have
full power and authority to do any and all things which it may deem necessary or
desirable in connection with such master servicing and administration. In
performing its obligations hereunder, the Master Servicer shall act in a manner
consistent with Accepted Master Servicing Practices. Furthermore, the Master
Servicer shall oversee and consult with each such Servicer as necessary from
time-to-time to carry out the Master Servicer's obligations hereunder, shall
receive and review all reports, information and other data provided to the
Master Servicer by each such Servicer and shall cause each such Servicer to
perform and observe the covenants, obligations and conditions to be performed or
observed by such Servicer under the applicable Servicing Agreement. The Master
Servicer shall independently and separately monitor each such Servicer's
servicing activities with respect to each related Mortgage Loan, reconcile the
results of such monitoring with such information provided in the previous
sentence on a monthly basis and coordinate corrective adjustments to such
Servicers' and the Master Servicer's records, and based on such reconciled and
corrected information, prepare the statements specified in Section 5.04(c) and
any other information and statements required hereunder. The Master Servicer
shall reconcile the results of its Mortgage Loan monitoring with the actual
remittances of each such Servicer to its Protected Account pursuant to the
applicable Servicing Agreement.
Section 3.02. REMIC-Related Covenants.
For as long as each REMIC shall exist, the Trustee shall act in
accordance herewith to assure continuing treatment of such REMIC as a REMIC, and
the Trustee shall comply with any directions of the Seller, the Depositor, any
Servicer or the Master Servicer to assure such continuing treatment. In
particular, the Trustee shall not (a) sell or permit the sale of all or any
portion of the Mortgage Loans or of any investment of deposits in an Account
unless such sale is as a result of a repurchase of the Mortgage Loans pursuant
to this Agreement or the Trustee has received a REMIC Opinion, addressed to the
Trustee and prepared at the expense of the Trust Fund; and (b) other than with
respect to a substitution pursuant to a Servicing Agreement or Section 2.04 of
this Agreement, as applicable, accept any contribution to any REMIC after the
Startup Day without receipt of a REMIC Opinion addressed to the Trustee.
Section 3.03. Monitoring of Servicers.
(a) The Master Servicer shall be responsible for
reporting to the Securities Administrator, the Depositor and the Seller the
compliance by each Servicer with its duties under the related Servicing
Agreement. In the review of each such Servicer's activities, the Master Servicer
may rely upon an officer's certificate of such Servicer with regard to such
Servicer's compliance with the terms of its Servicing Agreement. In the event
that the Master Servicer, in its judgment, determines that any such Servicer
should be terminated in accordance with its Servicing Agreement, or that a
notice should be sent pursuant to such Servicing Agreement with respect to the
occurrence of an event that, unless cured, would constitute grounds for such
termination, the Master Servicer shall notify the Seller, the Depositor, the EMC
Servicer and the Trustee thereof and the Master Servicer shall issue such notice
or take such other action as it deems appropriate.
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(b) Subject to the preceding paragraph, the Master
Servicer, on behalf of the Trustee and the Certificateholders, shall enforce the
obligations of each Servicer under the related Servicing Agreement, and, in the
event that any such Servicer fails to perform its obligations in accordance with
the related Servicing Agreement, then either the EMC Servicer (if such
defaulting Servicer is WFB) or the Master Servicer (if such defaulting Servicer
is any Servicer other than WFB), shall terminate the rights and obligations of
the defaulting Servicer thereunder and act as successor servicer of the related
Mortgage Loans or cause the Trustee to enter into a new Servicing Agreement with
a successor servicer selected by either the EMC Servicer (if the defaulting
Servicer is WFB) or by the Master Servicer (if the defaulting Servicer is any
Servicer other than WFB) (which new Servicing Agreement shall, in any case, have
terms generally in accordance with the terms of the terminated Servicing
Agreement); provided, however, it is understood and acknowledged by the parties
hereto that there will be a period of transition (not to exceed 90 days) before
the actual servicing functions can be fully transferred to such successor
servicer. Such enforcement, including, without limitation, the legal prosecution
of claims, termination of Servicing Agreements and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. Except as
contemplated by subsection (c) below, the Master Servicer shall pay the costs of
such enforcement at its own expense, provided that the Master Servicer shall not
be required to prosecute or defend any legal action except to the extent that
the Master Servicer shall have received reasonable indemnity for its costs and
expenses in pursuing such action. Without limiting the generality of the
foregoing, WFB shall reimburse the EMC Servicer for all Termination Costs
associated with a termination of WFB as Servicer. To the extent that any
Termination Costs with respect to WFB are not fully and timely reimbursed by
WFB, the EMC Servicer shall be entitled to reimbursement of such Termination
Costs from its Protected Account.
(c) The EMC Servicer shall reimburse the Master Servicer
for the costs and expenses of the Master Servicer related to the termination of
the EMC Servicer, appointment of a successor servicer or the transfer and
assumption of servicing by the Master Servicer with respect to the related
Servicing Agreement, including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the EMC Servicer as a result of an event of
default by such Servicer and (ii) all costs and expenses associated with the
complete transfer of servicing, including all servicing files and all servicing
data and the completion, correction or manipulation of such servicing data as
may be required by the successor servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
servicer to service the Mortgage Loans in accordance with the related Servicing
Agreement. To the extent that any Termination Costs with respect to the EMC
Servicer or any other terminated servicer pursuant to the related Servicing
Agreement are not fully and timely reimbursed by the EMC Servicer or such other
terminated Servicer, as applicable, the Master Servicer shall be entitled to
reimbursement of such Termination Costs from the Master Servicer Collection
Account.
(d) The Master Servicer shall require each Servicer to
comply with the remittance requirements and other obligations set forth in the
related Servicing Agreement, including any related Assumption Agreement. The
Master Servicer shall enforce the obligation of each Servicer pursuant to the
related Servicing Agreement to provide it with the annual officer's certificate
of compliance and annual independent accountants' servicing reports, as well as
back-up certifications to each Master Servicer Certification pursuant to Section
3.18.
(e) If the Master Servicer or the EMC Servicer assumes
the servicing with respect to any of the Mortgage Loans, it will not assume
liability for the representations and warranties of any Servicer that it
replaces.
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Section 3.04. Successor Master Servicer and Subservicing Agreements.
In the event that, pursuant to Section 8.01 hereof, the Trustee or any
other Person shall become Successor Master Servicer, such Successor Master
Servicer may, at its option, succeed to any rights and obligations of the
predecessor Master Servicer under any subservicing agreement in accordance with
the terms thereof; provided that such Successor Master Servicer shall not incur
any liability or have any obligations in its capacity as servicer under a
subservicing agreement arising prior to the date of such succession unless it
expressly elects to succeed to the rights and obligations of the predecessor
Master Servicer thereunder; and the predecessor Master Servicer shall not
thereby be relieved of any liability or obligations under the subservicing
agreement arising prior to the date of such succession.
Such predecessor Master Servicer shall, upon request of the Trustee,
but at the expense of such predecessor Master Servicer, deliver to the assuming
party all documents and records relating to each subservicing agreement and the
Mortgage Loans then being serviced thereunder and an accounting of amounts
collected held by it and otherwise use its best efforts to effect the orderly
and efficient transfer of the subservicing agreement to the assuming party.
Section 3.05. Power to Act; Procedures.
The Master Servicer shall master service the Mortgage Loans and shall
have full power and authority, subject to the REMIC Provisions and the
provisions of Article X hereof, to do any and all things that it may deem
necessary or desirable in connection with the master servicing and
administration of such Mortgage Loans, including but not limited to the power
and authority (i) to execute and deliver, on behalf of the Certificateholders
and the Trustee, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any
Insurance Proceeds and Liquidation Proceeds and (iv) to effectuate foreclosure
or other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan, in each case, in accordance with the provisions of the related
Servicing Agreement, including any related Assumption Agreement. The Trustee
shall furnish the Master Servicer, upon written request from a Servicing
Officer, with any powers of attorney empowering it or any Servicer to execute
and deliver instruments of satisfaction or cancellation, or of partial or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating to the
Mortgage Loans or the Mortgaged Property, in accordance with the applicable
Servicing Agreement and this Agreement, and the Trustee shall execute and
deliver such other documents, as the Master Servicer may request, to enable it
to master service and administer the Mortgage Loans and carry out its duties
hereunder, in each case in accordance with Accepted Master Servicing Practices
(and the Trustee shall have no liability for the use or misuse of any such
powers of attorney by the Master Servicer or any Servicer). If the Master
Servicer or the Trustee has been advised that it is likely that the laws of the
state in which action is to be taken prohibit such action if taken in the name
of the Trustee or that the Trustee would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.11 hereof. In the performance of its duties hereunder, the
Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Trustee, be deemed
to be the agent of the Trustee.
The Trustee and the Securities Administrator shall each execute and
deliver to related Servicer and the Master Servicer any court pleadings,
requests for trustee's sale or other documents necessary or desirable to (i) the
foreclosure or trustee's sale with respect to a Mortgaged Property; (ii) any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or related Mortgage; (iii) obtain a deficiency judgment against the
Mortgagor; or (iv) enforce any other rights or remedies provided by the Mortgage
Note or related Mortgage or otherwise available at law or equity.
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Xxxxxx 3.06. Due-on-Sale Clauses; Assumption Agreements.
To the extent provided in the applicable Servicing Agreement, for any
Mortgage Loans that contain enforceable due-on-sale clauses, the Master Servicer
shall cause the related Servicer to enforce such clauses in accordance with the
applicable Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
such applicable Servicing Agreement, and, as a consequence, a Mortgage Loan is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 3.07. Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any
Mortgage Loan, or the receipt by the Master Servicer or any Servicer of a
notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Certificateholders on the next Distribution Date,
such Servicer will, or if it does not, the Master Servicer may, if required
under the applicable Servicing Agreement, promptly furnish to the Custodian on
behalf of the Trustee two copies of a certification substantially in the form of
Exhibit H hereto signed by a Servicing Officer or in a mutually agreeable
electronic format which will, in lieu of a signature on its face, originate from
a Servicing Officer (which certification shall include a statement to the effect
that all amounts received in connection with such payment that are required to
be deposited in the Protected Account maintained by the Master Servicer (as
successor servicer) or the applicable Servicer pursuant to its Servicing
Agreement have been or will be so deposited or escrowed) and shall request that
the Custodian on behalf of the Trustee deliver to the Master Servicer or the
applicable Servicer, as appropriate, the related Mortgage File. Upon receipt of
such certification and request, the Custodian on behalf of the Trustee shall
promptly release the related Mortgage File to the Master Servicer or the
applicable Servicer, as appropriate, and neither the Custodian nor the Trustee
shall have any further responsibility with regard to such Mortgage File. Upon
any such payment in full, the Master Servicer and each Servicer is authorized,
to give, as agent for the Trustee, as the mortgagee under the Mortgage that
secured the Mortgage Loan, an instrument of satisfaction (or assignment of
mortgage without recourse) regarding the Mortgaged Property subject to the
Mortgage, which instrument of satisfaction or assignment, as the case may be,
shall be delivered to the Person or Persons entitled thereto against receipt
therefor of such payment, it being understood and agreed that no expenses
incurred in connection with such instrument of satisfaction or assignment, as
the case may be, shall be chargeable to the Protected Account.
(b) From time to time and as appropriate for the
servicing or foreclosure of any Mortgage Loan and in accordance with the
applicable Servicing Agreement, the Trustee shall execute such documents as
shall be prepared and furnished to the Trustee by a Servicer or the Master
Servicer (in form reasonably acceptable to the Trustee) and as are necessary to
the prosecution of any such proceedings. The Custodian on behalf of the Trustee
shall, upon the request of a Servicer or the Master Servicer, and delivery to
the Custodian on behalf of the Trustee, of two copies of a request for release
signed by a Servicing Officer substantially in the form of Exhibit H (or in a
mutually agreeable electronic format which will, in lieu of a signature on its
face, originate from a Servicing Officer), release the related Mortgage File
held in its possession or control to the Servicer or the Master Servicer, as
applicable. Such trust receipt shall obligate the Servicer or the Master
Servicer to return the Mortgage File to the Custodian on behalf of the Trustee,
when the need therefor by the Servicer or the Master Servicer no longer exists
unless the Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that hereinabove specified, the
Mortgage File shall be released by the Custodian on behalf of the Trustee, to
the Servicer or the Master Servicer.
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Section 3.08. Documents, Records and Funds in Possession of the
Master Servicer To Be Held for Trustee.
(a) The Master Servicer and each Servicer (to the extent
required by the related Servicing Agreement) shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Master Servicer or such Servicer from time to time as are required by the terms
hereof, or in the case of the Servicers, in accordance with the applicable
Servicing Agreement, to be delivered to the Trustee or the Custodian. Any funds
received by the Master Servicer or a Servicer in respect of any Mortgage Loan or
which otherwise are collected by the Master Servicer or a Servicer as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan shall
be held for the benefit of the Trustee and the Certificateholders subject to, in
the case of the Master Servicer, the Master Servicer's right to retain or
withdraw from the Master Servicer Collection Account the Master Servicing Fee
and other amounts provided in this Agreement and to the right of each Servicer
to retain its Servicing Fee and other amounts as provided in the applicable
Servicing Agreement. The Master Servicer shall, and, to the extent provided in
the applicable Servicing Agreement, shall cause each Servicer to, provide access
to information and documentation regarding the Mortgage Loans to the Trustee,
the Securities Administrator and their respective agents and accountants at any
time upon reasonable request and during normal business hours, and to
Certificateholders that are savings and loan associations, banks or insurance
companies, the Office of Thrift Supervision, the FDIC and the supervisory agents
and examiners of such Office and Corporation or examiners of any other federal
or state banking or insurance regulatory authority if so required by applicable
regulations of the Office of Thrift Supervision or other regulatory authority,
such access to be afforded without charge but only upon reasonable request in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request the Master Servicer shall not be
responsible for determining the sufficiency of such information.
(b) All Mortgage Files and funds collected or held by, or
under the control of, the Master Servicer in respect of any Mortgage Loans,
whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds, shall be held by the Master Servicer
for and on behalf of the Trustee and the Certificateholders and shall be and
remain the sole and exclusive property of the Trustee; provided, however, that
the Master Servicer and each Servicer shall be entitled to setoff against, and
deduct from, any such funds any amounts that are properly due and payable to the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement.
Section 3.09. Maintenance of Hazard Insurance.
(a) For each Mortgage Loan, the Master Servicer shall
enforce any obligation of a Servicer under the related Servicing Agreement to
maintain or cause to be maintained hazard insurance in accordance with the
provisions of the related Servicing Agreement.
(b) Pursuant to Section 4.01, any amounts collected by
the Master Servicer, or by any Servicer, under any Insurance Policies (other
than amounts to be applied to the restoration or repair of the property subject
to the related Mortgage or released to the Mortgagor in accordance with the
applicable Servicing Agreement) shall be deposited into the Master Servicer
Collection Account, subject to withdrawal pursuant to Section 4.03. Any cost
incurred by the Master Servicer or any such Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Section 4.03.
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Section 3.10. Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the applicable
Servicing Agreement) cause the related Servicer to prepare and present on behalf
of the Trustee and the Certificateholders all claims under the Insurance
Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such Insurance Policies. Any proceeds disbursed to the
Master Servicer (or disbursed to a Servicer and remitted to the Master Servicer)
in respect of such Insurance Policies shall be promptly deposited in the Master
Servicer Collection Account upon receipt, except that any amounts realized that
are to be applied to the repair or restoration of the related Mortgaged Property
as a condition precedent to the presentation of claims on the related Mortgage
Loan to the insurer under any applicable Insurance Policy need not be so
deposited (or remitted).
Section 3.11. Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit any
Servicer, to the extent such action is prohibited under the applicable Servicing
Agreement, to take, any action that would result in noncoverage under any
applicable Primary Mortgage Insurance Policy of any loss which, but for the
actions of the Master Servicer or such Servicer, would have been covered
thereunder. The Master Servicer shall use its best efforts to cause each such
Servicer (to the extent required under the related Servicing Agreement) to keep
in force and effect (to the extent that the Mortgage Loan requires the Mortgagor
to maintain such insurance), Primary Mortgage Insurance applicable to each
Mortgage Loan in accordance with the provisions of the related Servicing
Agreement. The Master Servicer shall not, and shall not permit any Servicer, to
the extent required under the related Servicing Agreement, to cancel or refuse
to renew any such Primary Mortgage Insurance Policy that is in effect at the
date of the initial issuance of the Mortgage Note and is required to be kept in
force hereunder except in accordance with the provisions of the related
Servicing Agreement.
(b) The Master Servicer agrees to present, or to cause
each Servicer to the extent required under the related Servicing Agreement to
present, on behalf of the Trustee and the Certificateholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard, to
take such reasonable action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to Section 4.01, any amounts collected by the Master Servicer or any
such Servicer under any Primary Mortgage Insurance Policies shall be deposited
in the Master Servicer Collection Account, subject to withdrawal pursuant to
Section 4.03.
Section 3.12. Custodian to Retain Possession of Certain Insurance
Policies and Documents.
The Custodian shall, on behalf of the Trustee, retain possession and
custody of the originals (to the extent available) of any Primary Mortgage
Insurance Policies, or certificate of insurance if applicable, and any
certificates of renewal as to the foregoing as may be issued from time to time.
Until all amounts distributable in respect of the Certificates have been
distributed in full and the Master Servicer otherwise has fulfilled its
obligations under this Agreement, the Custodian, on behalf of the Trustee, shall
also retain possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions of this Agreement and the Custodial
Agreement. The Master Servicer shall promptly deliver or cause to be delivered
to the
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Custodian, on behalf of the Trustee, upon the execution or receipt thereof the
originals of any Primary Mortgage Insurance Policies, any certificates of
renewal, and such other documents or instruments that constitute portions of the
Mortgage File that come into the possession of the Master Servicer from time to
time.
Section 3.13. Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall cause each Servicer to the extent required
under the related Servicing Agreement, to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments, all
in accordance with the terms of the applicable Servicing Agreement, including
any related Assumption Agreement.
Section 3.14. Compensation for the Servicers and the Master Servicer.
Servicing compensation in the form of any prepayment charges and
penalties, assumption fees, tax service fees, fees for statement of account
payoff or late payment charges collected by any Servicer shall be retained by
such Servicer and shall not be deposited in the Master Servicer Collection
Account. In accordance with Sections 4.02(b) and 4.03, the Master Servicer shall
be entitled to pay itself the Master Servicing Fee in respect of remittances
from Servicers prior to deposit in the Master Servicer Collection Account or to
withdraw such portion of the Master Servicing Fee from the Master Servicer
Collection Account. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided in this
Agreement. Pursuant to Article IV, all income and gain realized from any
investment of funds in the Distribution Account and the Master Servicer
Collection Account shall be for the benefit of the Master Servicer.
Section 3.15. REO Property.
(a) In the event the Trust Fund acquires ownership of any
REO Property in respect of any related Mortgage Loan, the deed or certificate of
sale shall be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The Master Servicer shall, to the extent provided in the
applicable Servicing Agreement, cause the applicable Servicer to sell any REO
Property as expeditiously as possible and in accordance with the provisions of
this Agreement and the related Servicing Agreement. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall cause such applicable Servicer
to protect and conserve such REO Property in the manner and to the extent
required by the applicable Servicing Agreement, subject to the REMIC Provisions.
(b) The Master Servicer shall, to the extent required by
the related Servicing Agreement, cause the applicable Servicer to deposit all
funds collected and received in connection with the operation of any REO
Property into the related Protected Account.
(c) The Master Servicer and such applicable Servicer,
upon the final disposition of any REO Property, shall be entitled to
reimbursement for any related unreimbursed Advances, unreimbursed Servicing
Advances or Servicing Fees from Liquidation Proceeds received in connection with
the final disposition of such REO Property; provided, that any such unreimbursed
Advances or
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Servicing Fees as well as any unpaid Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income or
other net amounts derived from such REO Property.
Section 3.16. Annual Officer's Certificate as to Compliance.
(a) The Master Servicer shall deliver to the Depositor,
the Trustee and the Rating Agencies by March 1, 2006, and by March 1 of each
year thereafter, in each case for the immediately preceding calendar year, an
Officer's Certificate, certifying that with respect to the period ending on such
calendar year end: (i) such Servicing Officer has reviewed the activities of the
Master Servicer during the preceding calendar year or portion thereof and its
performance under this Agreement, (ii) to the best of such Servicing Officer's
knowledge, based on such review, the Master Servicer has performed and fulfilled
its duties, responsibilities and obligations under this Agreement in all
material respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying each
such default known to such Servicing Officer and the nature and status thereof
and (iii) nothing has come to the attention of such Servicing Officer to lead
such Servicing Officer to believe that any Servicer has failed to perform any of
its duties, responsibilities and obligations under its Servicing Agreement in
all material respects throughout such year, or, if there has been a material
default in the performance or fulfillment of any such duties, responsibilities
or obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof.
(b) Copies of such statements shall be provided by the
Trustee to any Certificateholder upon request at the Master Servicer's expense,
provided that such statement shall have been delivered to the Trustee.
Section 3.17. Annual Independent Accountant's Servicing Report.
If the Master Servicer has, during the course of any calendar year,
directly serviced any of the Mortgage Loans, the Master Servicer, at its
expense, shall cause a nationally recognized firm of independent certified
public accountants to furnish a statement to the Trustee, the Rating Agencies
and the Seller by March 1, 2006, and by March 1 of each year thereafter, in each
case for the immediately preceding calendar year, to the effect that, with
respect to the most recently ended calendar year, such firm has examined certain
records and documents relating to the Master Servicer's performance of its
servicing obligations under this Agreement and pooling and servicing and trust
agreements in material respects similar to this Agreement and to each other and
that, on the basis of such examination conducted substantially in compliance
with the audit program for mortgages serviced for Xxxxxxx Mac or the Uniform
Single Attestation Program for Mortgage Bankers, such firm is of the opinion
that the Master Servicer's activities have been conducted in compliance with
this Agreement, or that such examination has disclosed no material items of
noncompliance except for (i) such exceptions as such firm believes to be
immaterial, (ii) such other exceptions as are set forth in such statement and
(iii) such exceptions that the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac requires it
to report. Copies of such statements shall be provided to any Certificateholder,
upon request, by the Master Servicer, or by the Trustee at the expense of the
Master Servicer if the Master Servicer shall fail to provide such copies. If any
such report discloses exceptions that are material, the Master Servicer shall
advise the Trustee whether such exceptions have been or are susceptible of cure,
and will take prompt action to do so.
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Section 3.18. Reports Filed with Securities and Exchange Commission.
Within 15 days after each Distribution Date, the Securities
Administrator shall, in accordance with industry standards, file with the
Commission via the Electronic Data Gathering and Retrieval System ("XXXXX"), a
Form 8-K with a copy of the statement to the Trustee. Prior to January 30 in
each year, the Securities Administrator shall, in accordance with industry
standards, file a Form 15 Suspension Notice with respect to the Trust Fund, if
applicable. Prior to (i) March 15, 2006 and (ii) unless and until a Form 15
Suspension Notice shall have been filed, prior to March 15 of each year
thereafter, the Master Servicer shall provide the Securities Administrator with
a Master Servicer Certification, together with a copy of the annual independent
accountant's servicing report and annual statement of compliance of each
Servicer, in each case, required to be delivered pursuant to its Servicing
Agreement, and, if applicable, the annual independent accountant's servicing
report and annual statement of compliance to be delivered by the Master Servicer
pursuant to Sections 3.16 and 3.17. Prior to (i) March 31, 2006 and (ii) unless
and until a Form 15 Suspension Notice shall have been filed, the 90th day of
each year thereafter, the Securities Administrator shall prepare and file a Form
10-K, in substance conforming to industry standards, with respect to the Trust.
Such Form 10-K shall include the Master Servicer Certification and other
documentation provided by the Master Servicer pursuant to the second preceding
sentence. The Depositor hereby grants to the Securities Administrator a limited
power of attorney to execute and file each such document on behalf of the
Depositor. Such power of attorney shall continue until either the earlier of (i)
receipt by the Securities Administrator from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust
Fund. The Depositor agrees to promptly furnish to the Securities Administrator,
from time to time upon request, such further information, reports and financial
statements within its control related to this Agreement, the Mortgage Loans as
the Securities Administrator reasonably deems appropriate to prepare and file
all necessary reports with the Commission. The Securities Administrator shall
have no responsibility to file any items other than those specified in this
Section 3.18; provided, however, the Securities Administrator will cooperate
with the Depositor in connection with any additional filings with respect to the
Trust Fund as the Depositor deems necessary under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). Copies of all reports filed by the
Securities Administrator under the Exchange Act shall be sent to: the Depositor
c/o Bear, Xxxxxxx & Co. Inc., Attn: Managing Director-Analysis and Control, Xxx
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000-0000. Fees and expenses
incurred by the Securities Administrator in connection with this Section 3.18
shall not be reimbursable from the Trust Fund.
Section 3.19. The EMC Servicer.
The EMC Servicer shall service the EMC Mortgage Loans pursuant to and
in accordance with the terms and provisions of Exhibit K hereto.
Section 3.20. Optional Purchase of Defaulted Mortgage Loans.
Beginning on the first Business Day of the Fiscal Quarter immediately
following the date on which a Mortgage Loan has become at least 91 days
delinquent, the EMC Servicer, in its sole discretion, shall have the right to
elect (by written notice sent to the Trustee, with a copy to the Master Servicer
and the applicable Servicer) to purchase for its own account from the
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Trust Fund any such Mortgage Loan at a price equal to the Purchase Price. The
Purchase Price for any Mortgage Loan purchased hereunder shall be deposited in
the Master Servicer Collection Account, and the Trustee, upon receipt of a
Request for Release from the EMC Servicer, shall release or cause the Custodian
to release to the EMC Servicer, the related Mortgage File and shall execute and
deliver such instruments of transfer or assignment prepared by the EMC Servicer,
in each case without recourse, representation or warranty as shall be necessary
to vest in the EMC Servicer any Mortgage Loan released pursuant hereto and the
EMC Servicer shall succeed to all the Trust's right, title and interest in and
to such Mortgage Loan and all security and documents related thereto. Such
assignment shall be an assignment outright and not for security. The EMC
Servicer shall thereupon own such Mortgage Loan, and all security and documents,
free of any further obligation to the Trustee or the Certificateholders with
respect thereto. Notwithstanding the foregoing, any such optional right of
repurchase by the EMC Servicer hereunder with respect to a delinquent Mortgage
Loan shall, if unexercised, terminate on the earlier of (i) the date on which
such delinquency has been cured or (ii) the last Business Day of such Fiscal
Quarter immediately following the date on which such Mortgage Loan became 91
days delinquent, provided however, that such optional right of repurchase shall
be reinstated if (a) in the case of clause (i), the related Mortgage Loan shall
thereafter again have become 91 or more days delinquent and (b) in the case of
clause (ii), such delinquency shall have been subsequently cured and the related
Mortgage Loan shall thereafter again become 91 or more days delinquent in any
subsequent Fiscal Quarter. In either event, the purchase option shall again
become exercisable on the first day of the Fiscal Quarter immediately following
the date on which the related Mortgage Loan again becomes at least 91 days
delinquent.
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ARTICLE IV.
ACCOUNTS
Section 4.01. Protected Accounts.
(a) The Master Servicer shall enforce the obligation of each Servicer
to establish and maintain a Protected Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a Mortgage
Loan by Mortgage Loan basis, into which Protected Accounts shall be deposited
daily (or as of such other time specified in the related Servicing Agreement)
all collections of principal and interest on any Mortgage Loan and with respect
to any REO Property received by a Servicer, including Principal Prepayments,
Insurance Proceeds, Liquidation Proceeds, and advances made from the Servicer's
own funds (less Servicing Fees as permitted by such applicable Servicing
Agreement in the case of any such Servicer) and all other amounts to be
deposited in the Protected Account pursuant to the related Servicing Agreement.
(b) [Reserved].
(c) Subject to this Article IV, on or before each Servicer Remittance
Date, the Master Servicer shall (if acting as successor servicer to a Servicer),
or shall cause the related Servicer to withdraw or shall cause to be withdrawn
from the Protected Accounts and immediately deposit or cause to be deposited
into the Master Servicer Collection Account, amounts representing the following
collections and payments (other than with respect to principal of or interest on
the Mortgage Loans due on or before the Cut-off Date) with respect to each
Mortgage Loan serviced by it:
(i) Scheduled Payments on the Mortgage Loans received or any related
portion thereof advanced by the related Servicers pursuant to the Servicing
Agreements which were due on or before the related Due Date, net of the
amount thereof comprising the Servicing Fees;
(ii) full Principal Prepayments, any Liquidation Proceeds received by
the Servicers with respect to such Mortgage Loans in the related Prepayment
Period, with interest to the date of prepayment or liquidation, net of the
amount thereof comprising the Servicing Fees and any Subsequent Recoveries;
(iii) partial Principal Prepayments received by the Servicers for such
Mortgage Loans in the related Prepayment Period; and
(iv) any amount to be used as an Advance and any payments of
Compensating Interest.
Section 4.02. Master Servicer Collection Account.
(a) The Master Servicer shall establish and maintain in the name of
the Trustee, for the benefit of the Certificateholders, the Master Servicer
Collection Account as a segregated trust account or accounts. The Master
Servicer will deposit in the Master Servicer Collection Account as identified by
the Master Servicer and as received by the Master Servicer, the following:
(i) Any amounts withdrawn from a Protected Account and remitted to the
Master Servicer Collection Account pursuant to Section 4.01(c);
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(ii) Any Advances and any payments of Compensating Interest which were
not deposited in a Protected Account;
(iii) Any Insurance Proceeds, Liquidation Proceeds or Subsequent
Recoveries received by or on behalf of the Master Servicer or which were
not deposited in a Protected Account;
(iv) The Purchase Price with respect to any Mortgage Loans purchased
by the Seller pursuant to Sections 2.02, 2.03 or 3.20;
(v) Any amounts required to be deposited with respect to losses on
investments of deposits in the Master Servicer Collection Account; and
(vi) Any other amounts received by or on behalf of the Master Servicer
or the Trustee and required to be deposited in the Master Servicer
Collection Account pursuant to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account
shall be held by the Master Servicer in the name of the Trustee in trust for the
benefit of the Certificateholders in accordance with the terms and provisions of
this Agreement. The requirements for crediting the Master Servicer Collection
Account or the Distribution Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, payments in the
nature of (i) prepayment or late payment charges or assumption, tax service,
statement account or payoff, substitution, satisfaction, release and other like
fees and charges and (ii) the items enumerated in Subsections 4.05(a)(i), (ii),
(iii), (iv), (vi), (vii), (ix) and (xi) need not be credited by the Master
Servicer or the related Servicer to the Master Servicer Collection Account. In
the event that the Master Servicer shall deposit or cause to be deposited to the
Distribution Account any amount not required to be credited thereto, the
Trustee, upon receipt of a written request therefor signed by a Servicing
Officer of the Master Servicer, shall promptly transfer such amount to the
Master Servicer, any provision herein to the contrary notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account may be invested, in the name of the Trustee, or its nominee, for the
benefit of the Certificateholders, in Permitted Investments as directed by the
Master Servicer. In the absence of such direction, amounts will remain
uninvested. All Permitted Investments shall mature or be subject to redemption
or withdrawal on or before, and shall be held until, the next succeeding
Distribution Account Deposit Date. Any and all investment earnings from the
Master Servicer Collection Account shall be paid to the Master Servicer. The
risk of loss of moneys required to be distributed to the Certificateholders
resulting from such investments shall be borne by and be the risk of the Master
Servicer. The Master Servicer shall deposit the amount of any such loss in the
Master Servicer Collection Account within two Business Days of receipt of
notification of such loss but not later than the second Business Day prior to
the Distribution Date on which the moneys so invested are required to be
distributed to the Certificateholders.
(d) On or before each Distribution Account Deposit Date, the Master
Servicer shall deposit in the Distribution Account (or separately remit to the
Paying Agent for deposit in the Distribution Account) any Advances or payments
of Compensating Interest required to be made by the Master Servicer with respect
to the Mortgage Loans.
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Section 4.03. Permitted Withdrawals and Transfers from the Master
Servicer Collection Account.
(a) The Master Servicer will, from time to time in its discretion or
on demand of the Securities Administrator, make or cause to be made such
withdrawals or transfers from the Master Servicer Collection Account as the
Master Servicer has designated for such transfer or withdrawal pursuant to the
Servicing Agreements. The Master Servicer may make withdrawals in payment of any
Master Servicing Fee not previously reimbursed or withheld from funds in the
Master Servicer Collection Account or the Distribution Account, and may clear
and terminate the Master Servicer Collection Account pursuant to Section 10.01
and remove amounts from time to time deposited in error.
(b) On an ongoing basis, Master Servicer shall withdraw from the
Master Servicer Collection Account any expenses recoverable by the Trustee, the
Master Servicer, the EMC Servicer, the Custodian, the Seller or the Securities
Administrator pursuant to Sections 3.03, 7.01, 7.03, 7.04 and 9.05.
(c) No later than 1:00 p.m. New York time on each Distribution Account
Deposit Date, the Master Servicer will transfer all amounts on deposit in the
Master Servicer Collection Account to the Distribution Account.
Section 4.04. Distribution Account.
(a) The Paying Agent shall establish and maintain in the name of the
Paying Agent, for the benefit of the Certificateholders, the Distribution
Account as a segregated trust account or accounts.
(b) All amounts deposited to the Distribution Account shall be held by
the Paying Agent in the name of the Paying Agent in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement.
(c) The Distribution Account shall constitute an Eligible Account of
the Trust Fund segregated on the books of the Paying Agent and held by the
Paying Agent in a financial institution located in the State of the Corporate
Trustee Office or in the State of New York, and the Distribution Account and the
funds deposited therein shall not be subject to, and shall be protected from,
all claims, liens, and encumbrances of any creditors or depositors of the Paying
Agent, the Trustee or the Master Servicer (whether made directly, or indirectly
through a liquidator or receiver of the Paying Agent, the Trustee or the Master
Servicer). The amount at any time credited to the Distribution Account shall be
(i) fully insured by the FDIC to the maximum coverage provided thereby or (ii)
invested in the name of the Paying Agent in such Permitted Investments, or
deposited in demand deposits with such depository institutions, as directed in
writing by the Master Servicer. In the absence of such direction, amounts will
remain uninvested. All Permitted Investments shall mature or be subject to
redemption or withdrawal on or before, and shall be held until, the next
succeeding Distribution Date if the obligor for such Permitted Investment is the
Paying Agent or, if such obligor is any other Person, the Business Day preceding
such Distribution Date. All investment earnings on amounts on deposit in the
Distribution Account shall be for the account of the Master Servicer. The Master
Servicer shall be permitted to withdraw or receive distribution of any and all
investment earnings from the Distribution Account on each Distribution Date. If
there is any loss on a Permitted Investment or demand deposit, the Master
Servicer shall deposit the amount of the loss in the Distribution Account. With
respect to the Distribution Account and the funds deposited therein, the Master
Servicer shall take such action as may be necessary to ensure that the
Certificateholders shall be entitled to the priorities afforded to such a trust
account (in addition to a claim against the estate of the Trustee) as provided
by 12 U.S.C. Section 92a(e), and applicable regulations pursuant
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thereto, if applicable, or any applicable comparable state statute applicable
to state chartered banking corporations.
Section 4.05. Permitted Withdrawals and Transfers from the Distribution
Account.
(a) The Paying Agent will, from time to time on demand of the Master
Servicer or the Securities Administrator, make or cause to be made such
withdrawals or transfers from the Distribution Account as the Master Servicer
has designated for such transfer or withdrawal pursuant to the Servicing
Agreements or as the Securities Administrator has instructed hereunder for the
following purposes (limited in the case of amounts due the Master Servicer to
those not withdrawn from the Master Servicer Collection Account in accordance
with the terms of this Agreement, and in the case of amounts due the EMC
Servicer or any other Servicer to those not withdrawn from its Protected Account
in accordance with the related Servicing Agreement):
(i) to reimburse the Master Servicer or any Servicer for any Advance,
the right of the Master Servicer or a Servicer to reimbursement pursuant to
this subclause (i) being limited to amounts received on a particular
Mortgage Loan (including, for this purpose, the Purchase Price therefor,
Insurance Proceeds and Liquidation Proceeds) which represent late payments
or recoveries of the principal of or interest on such Mortgage Loan
respecting which such Advance or advance was made;
(ii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Mortgage Loan for
amounts expended by the Master Servicer or such Servicer in good faith in
connection with the restoration of the related Mortgaged Property which was
damaged not covered by any Insurance Policy, including any hazard insurance
or in connection with the liquidation of such Mortgage Loan;
(iii) to reimburse the Master Servicer or any Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses
incurred with respect to such Mortgage Loan and to reimburse the Master
Servicer or such Servicer from Liquidation Proceeds from a particular
Mortgage Loan for liquidation expenses incurred with respect to such
Mortgage Loan; provided that the Master Servicer shall not be entitled to
reimbursement for liquidation expenses with respect to a Mortgage Loan to
the extent that (i) any amounts with respect to such Mortgage Loan were
paid as Excess Liquidation Proceeds pursuant to clause (xi) of this
Subsection (a) to the Master Servicer; and (ii) such liquidation expenses
were not included in the computation of such Excess Liquidation Proceeds;
(iv) to pay the Master Servicer or any Servicer, as appropriate, from
Liquidation Proceeds or Insurance Proceeds received in connection with the
liquidation of any Mortgage Loan, the amount which it or such Servicer
would have been entitled to receive under subclause (xi) of this Subsection
4.03(a) as servicing compensation on account of each defaulted scheduled
payment on such Mortgage Loan if paid in a timely manner by the related
Mortgagor;
(v) to pay the Master Servicer or any Servicer from the Purchase Price
for any Mortgage Loan, the amount which it or such Servicer would have been
entitled to receive under subclause (xi) of this subsection (a) as
servicing compensation;
(vi) to reimburse the Master Servicer or any Servicer for unreimbursed
Servicing Advances made pursuant to the applicable Servicing Agreement, the
right to reimbursement pursuant to this subclause being limited to amounts
received on the related Mortgage Loan (including, for this purpose, the
Purchase Price therefor, Insurance Proceeds and Liquidation
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Proceeds) which represent late recoveries of the payments for which
such Servicing Advances were made;
(vii) to reimburse the Master Servicer or any Servicer for any
unreimbursed Advance or any Servicing Advance, from collections with
respect to a related Group, after a Realized Loss has been allocated with
respect to the related Mortgage Loan, if the Advance or Servicing Advance
has not been reimbursed pursuant to clause (i) or (vi);
(viii) to pay any Master Servicing Fee;
(ix) from collections with respect to a related Group, to reimburse
the Master Servicer for expenses, costs and liabilities incurred by and
reimbursable to it, with respect to the related Group or otherwise
allocable to such Group, pursuant to Sections 3.03, 7.04 and 11.02, as
applicable;
(x) to pay to the Master Servicer, as additional compensation, any
Excess Liquidation Proceeds with respect to a Mortgage Loan to the extent
not retained by the related Servicer and to pay to the EMC Servicer, as
additional servicing compensation, any Excess Liquidation Proceeds with
respect to an EMC Mortgage Loan;
(xi) from collections with respect to a related Group, to reimburse or
pay any Servicer or the Master Servicer any such amounts as are due
thereto, with respect to the related Group or otherwise allocable to such
Group, under the applicable Servicing Agreement and have not been retained
by or paid to the Servicer, to the extent provided in the related Servicing
Agreement;
(xii) from collections with respect to a related Group, to reimburse
the Trustee, the Securities Administrator or the Custodian for expenses,
costs and liabilities incurred by or reimbursable to it, with respect to
the related Group or otherwise allocable to such Group, pursuant to this
Agreement;
(xiii) to remove amounts deposited in error; and
(xiv) to clear and terminate the Distribution Account pursuant to
Section 10.01.
(b) The Master Servicer shall keep and maintain separate accounting,
on a Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (i) through
(xii), inclusive, or with respect to any such amounts which would have been
covered by such subclauses had the amounts not been retained by the Master
Servicer without being deposited in the Distribution Account under Section
4.02(b).
(c) On each Distribution Date, based solely on the applicable
Remittance Report, the Paying Agent shall distribute Interest Funds and
Principal Funds in the Distribution Account to the Holders of the Certificates
in accordance with Section 5.04(a).
Section 4.06. Yield Maintenance Account and Yield Maintenance Agreements.
The Trustee is hereby directed to execute each Yield Maintenance
Agreement on behalf of the Trust Fund. Amounts payable by the Trust Fund on the
Closing Date pursuant to each Yield Maintenance Agreement shall be paid by the
Seller. The Trustee in its individual capacity shall have no responsibility for
any of the undertakings, agreements or representations with respect to any Yield
Maintenance Agreement, including, without limitation, for making any payments
thereunder.
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The Paying Agent shall establish and maintain in the name of the
Paying Agent, for the benefit of the Adjustable Rate Certificateholders, the
Yield Maintenance Account as a segregated trust account. The Yield Maintenance
Account shall not constitute an asset of any REMIC hereunder. For federal income
tax purposes, the Class B-IO Certificateholders shall be treated as the owners
of the Yield Maintenance Account. Any Yield Maintenance Payments received by the
Paying Agent shall be deposited by the Paying Agent into the Yield Maintenance
Account. On the Distribution Date immediately succeeding its receipt thereof,
the Paying Agent shall distribute from each such Yield Maintenance Payment, to
the related Class or Classes of Adjustable Rate Certificates, the Yield
Maintenance Agreement Amount owed to such Class or Classes for such Distribution
Date.
On each Distribution Date following application of any Yield
Maintenance Payments as described in the immediately preceding paragraph, any
Excess Yield Maintenance Amount will be distributed by the Paying Agent on such
Distribution Date in the manner set forth in Section 5.04(a) in accordance with
the Remittance Report for such Distribution Date.
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ARTICLE V.
DISTRIBUTIONS AND ADVANCES
BY THE MASTER SERVICER
Section 5.01. Advances.
Except with respect to any Simple Interest Loans, for which no
Advances of principal are required to be made, if the Scheduled Payment on a
Mortgage Loan, that was due on a related Due Date and is delinquent other than
as a result of application of the Relief Act or similar state laws and for which
the related Servicer was required to make an Advance pursuant to the related
Servicing Agreement exceeds the amount deposited in the Master Servicer
Collection Account for use as an Advance with respect to such Mortgage Loan, the
Master Servicer will make an Advance in an amount equal to such deficiency for
deposit into the Master Servicer Collection Account or the Distribution Account,
as applicable. Each such Advance shall be remitted to the Master Servicer
Collection Account or the Distribution Account, as appropriate, no later than
1:00 p.m. Central time on the Master Servicer Advance Date in immediately
available funds. The Master Servicer shall be obligated to make any such Advance
only to the extent that such advance would not be a Nonrecoverable Advance. If
the Master Servicer shall have determined that it has made a Nonrecoverable
Advance or that a proposed Advance or a lesser portion of such Advance would
constitute a Nonrecoverable Advance, the Master Servicer shall deliver (i) to
the Trustee for the benefit of the Certificateholders funds constituting the
remaining portion of such Advance, if applicable, and (ii) to the Depositor,
each Rating Agency and the Trustee an Officer's Certificate setting forth the
basis for such determination.
In lieu of making all or a portion of such Advance from its own funds,
the Master Servicer may (i) cause to be made an appropriate entry in its records
relating to the Master Servicer Collection Account that any Amount Held for
Future Distributions with respect to a Group has been used by the Master
Servicer in discharge of its obligation to make any such Advance and (ii)
transfer such funds from the Master Servicer Collection Account to the
Distribution Account. Any funds so applied and transferred shall be replaced by
the Master Servicer by deposit in the Master Servicer Collection Account, no
later than the close of business on the Business Day immediately preceding the
Distribution Date on which such funds are required to be distributed pursuant to
this Agreement.
The Master Servicer shall be entitled to be reimbursed from the Master
Servicer Collection Account or the Distribution Account for all Advances of its
own funds made pursuant to this Section as provided in Section 4.05. The
obligation to make Advances with respect to any Mortgage Loan shall continue
until such Mortgage Loan is paid in full or the related Mortgaged Property or
related REO Property has been liquidated or until the purchase or repurchase
thereof (or substitution therefor) from the Trust Fund pursuant to any
applicable provision of this Agreement, except as otherwise provided in this
Section 5.01.
Subject to and in accordance with the provisions of Article VIII
hereof, in the event of a failure by the Master Servicer to make an Advance
pursuant to this Section 5.01, then the EMC Servicer, as Successor Master
Servicer, shall be obligated to make such Advance, and if the EMC Servicer, as
Successor Master Servicer, fails to make such Advance, then the Trustee, as
Successor Master Servicer, shall be obligated to make such Advance.
Section 5.02. Compensating Interest Payments.
The Master Servicer shall deposit into the Distribution Account, no
later than the close of business on the Business Day immediately preceding such
Distribution Date, an amount equal to the
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aggregate amount of Compensating Interest required to be paid by a Servicer
pursuant to the related Servicing Agreement for such Distribution Date, that is
not so paid by such Servicer; provided that such amount shall not exceed
the Master Servicing Fee for such Distribution Date; and in case of such
deposit, the Master Servicer shall not be entitled to any recovery or
reimbursement in respect of any such payment.
Section 5.03. REMIC Distributions.
On each Distribution Date the Securities Administrator, shall allocate
distributions to the REMIC I Regular Interests and the REMIC II Regular
Interests, in accordance with Section 5.06 hereof.
Section 5.04. Distributions.
(a) On each Distribution Date, an amount equal to the Interest Funds
and Principal Funds with respect to each Group for such Distribution Date shall
be withdrawn by the Paying Agent from the Distribution Account and distributed
as directed in accordance with the Remittance Report for such Distribution Date,
in the manner set forth in clauses (i), (ii) and (iii) below:
(i) The Paying Agent shall apply Interest Funds with respect to each
Group for such Distribution Date as follows:
I. From Interest Funds with respect to Group I:
first, to the related Class A Certificates, Current Interest
and then any Interest Carry Forward Amount for each such Class,
pro rata, based upon the amount of Current Interest or Interest
Carry Forward Amount, as applicable, due to each such Class;
second, from remaining related Interest Funds, to the Class
I-M-1 Certificates, the Class I-M-2 Certificates, the Class I-M-3
Certificates, the Class I-M-4 Certificates, the Class I-M-5
Certificates, the Class I-M-6 Certificates and the Class I-B
Certificates, sequentially, in that order, Current Interest for
each such Class;
third, any Excess Spread with respect to Group I, to the
extent necessary to meet a level of overcollateralization for such
Group equal to the related Specified Overcollateralization Amount,
will be the Extra Principal Distribution Amount with respect to
Group I and will be included as part of the related Principal
Distribution Amount; and
fourth, any Remaining Excess Spread with respect to Group I
will be added to any Excess Overcollateralization Amount for such
Group and will be included in Excess Cashflow with respect to
Group I and applied as described under clause (iii), below.
II. From Interest Funds with respect to Group II:
first, to the related Class A Certificates, Current Interest
and then any Interest Carry Forward Amount for each such Class,
pro rata, based upon the amount of Current Interest or Interest
Carry Forward Amount, as applicable, due to each such Class;
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second, from remaining related Interest Funds, to the Class
II-M-1 Certificates, the Class II-M-2 Certificates, the Class
II-M-3 Certificates and the Class II-B Certificates, sequentially,
in that order, Current Interest for each such Class;
third, any Excess Spread with respect to Group II, to the
extent necessary to meet a level of overcollateralization for such
Group equal to the related Specified Overcollateralization Amount,
will be the Extra Principal Distribution Amount with respect to
Group II and will be included as part of the related Principal
Distribution Amount; and
fourth, any Remaining Excess Spread with respect to Group II
will be added to any Excess Overcollateralization Amount for such
Group and will be included in Excess Cashflow in respect of Group
II and applied as described under clause (iii), below.
Notwithstanding the above, on the first Distribution Date, all Excess
Spread with respect to Group I and Group II will be paid to the holders of the
Class I-B-IO Certificates and Class II-B-IO Certificates, respectively.
On any Distribution Date, any shortfalls on mortgage loans of a Group
resulting from the application of the Relief Act or similar state laws, and any
related Prepayment Interest Shortfalls to the extent not covered by Compensating
Interest will be allocated, first, in reduction of amounts otherwise
distributable to the related Class B-IO Certificates and Residual Certificates,
and thereafter, to the Current Interest payable to the Certificates of the
related Group on such Distribution Date, on a pro rata basis, based on the
respective amounts of interest accrued on such Certificates for such
Distribution Date. The holders of the Certificates will not be entitled to
reimbursement for any such interest shortfalls.
(ii) The Paying Agent shall apply the Principal Distribution Amount
with respect to each Group for such Distribution Date as follows:
I. From the Principal Distribution Amount with respect to
Group I:
(A) for each Distribution Date (i) prior to the related Stepdown
Date or (ii) on which a related Trigger Event is in effect:
first, to the Group I Class A Certificates, concurrently, as
follows:
(i) to the Class I-A-1 Certificates and Class I-A-2
Certificates, sequentially, in that order, in each case
until the Certificate Principal Balance of each such Class
is reduced to zero; and
(ii) to the Class I-A-3 Certificates, until the Certificate
Principal Balance of such Class is reduced to zero;
second, to the Class I-M-1 Certificates, any remaining
related Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero;
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third, to the Class I-M-2 Certificates, any remaining
related Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero;
fourth, to the Class I-M-3 Certificates, any remaining
related Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero;
fifth, to the Class I-M-4 Certificates, any remaining
related Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero;
sixth, to the Class I-M-5 Certificates, any remaining
related Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero;
seventh, to the Class I-M-6 Certificates, any remaining
related Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero; and
eighth, to the Class I-B Certificates, any remaining related
Principal Distribution Amount until the Certificate Principal
Balance thereof is reduced to zero.
(B) For each Distribution Date on or after the related Stepdown
Date, so long as a related Trigger Event is not in effect:
first, to the Group I Class A Certificates, the Class A
Principal Distribution Amount for Group I, concurrently, as
follows:
(i) to the Class I-A-1 Certificates and Class I-A-2
Certificates, sequentially, in that order, in each case
until the Certificate Principal Balance of each such Class
is reduced to zero; and
(ii) to the Class I-A-3 Certificates, until the Certificate
Principal Balance of such Class is reduced to zero;
second, to the Class I-M-1 Certificates, from any remaining
related Principal Distribution Amount, the Class M 1 Principal
Distribution Amount for Group I, until the Certificate Principal
Balance thereof is reduced to zero;
third, to the Class I-M-2 Certificates, from any remaining
related Principal Distribution Amount, the Class M 2 Principal
Distribution Amount for Group I, until the Certificate Principal
Balance thereof is reduced to zero;
fourth, to the Class I-M-3 Certificates, from any remaining
related Principal Distribution Amount, the Class M 3 Principal
Distribution Amount for Group I, until the Certificate Principal
Balance thereof is reduced to zero;
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fifth, to the Class I-M-4 Certificates, from any remaining
related Principal Distribution Amount, the Class M 4 Principal
Distribution Amount for Group I, until the Certificate Principal
Balance thereof is reduced to zero;
sixth, to the Class I-M-5 Certificates, from any remaining
related Principal Distribution Amount, the Class M 5 Principal
Distribution Amount for Group I, until the Certificate Principal
Balance thereof is reduced to zero;
seventh, to the Class I-M-6 Certificates, from any remaining
related Principal Distribution Amount, the Class M 6 Principal
Distribution Amount for Group I, until the Certificate Principal
Balance thereof is reduced to zero; and
eighth, to the Class I-B Certificates, from any remaining
related Principal Distribution Amount, the Class B Principal
Distribution Amount for Group I, until the Certificate Principal
Balance thereof is reduced to zero.
II. From the Principal Distribution Amount with respect to Group
II:
(A) For each Distribution Date (i) prior to the related Stepdown
Date or (ii) on which a related Trigger Event is in effect:
first, to the Class II-A-1 Certificates and Class II-A-2
Certificates, sequentially, in that order, in each case until the
Certificate Principal Balance of each such Class is reduced to
zero;
second, to the Class II-M-1 Certificates, any remaining
related Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero;
third, to the Class II-M-2 Certificates, any remaining
related Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero;
fourth, to the Class II-M-3 Certificates, any remaining
related Principal Distribution Amount until the Certificate
Principal Balance thereof is reduced to zero; and
fifth, to the Class II-B Certificates, any remaining related
Principal Distribution Amount until the Certificate Principal
Balance thereof is reduced to zero.
(B) For each Distribution Date on or after the related Stepdown
Date, so long as a related Trigger Event is not in effect:
first, to the Class II-A-1 Certificates and Class II-A-2
Certificates, sequentially, in that order, the Class A Principal
Distribution Amount for Group II, in each case until the
Certificate Principal Balance of each such Class is reduced to
zero;
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second, to the Class II-M-1 Certificates, from any remaining
related Principal Distribution Amount, the Class M 1 Principal
Distribution Amount for Group II, until the Certificate Principal
Balance thereof is reduced to zero;
third, to the Class II-M-2 Certificates, from any remaining
related Principal Distribution Amount, the Class M 2 Principal
Distribution Amount for Group II, until the Certificate Principal
Balance thereof is reduced to zero;
fourth, to the Class II-M-3 Certificates, from any remaining
related Principal Distribution Amount, the Class M 3 Principal
Distribution Amount for Group II, until the Certificate Principal
Balance thereof is reduced to zero; and
fifth, to the Class II-B Certificates, from any remaining
related Principal Distribution Amount, the Class B Principal
Distribution Amount for Group II, until the Certificate Principal
Balance thereof is reduced to zero.
The Paying Agent shall apply the sum of any Excess Cashflow and Excess
Yield Maintenance Amount with respect to each Group for such Distribution Date
as follows:
I. On each Distribution Date, the sum of any Excess
Cashflow and Excess Yield Maintenance Amount
with respect to Group I will be applied as follows:
first, to the related Class A Certificates, to the extent
not fully paid pursuant to paragraph first of clause (i) I.,
above, any remaining Interest Carry Forward Amount for each such
Class for such Distribution Date, pro rata, based on the amount of
unpaid Interest Carry Forward Amount owed to each such Class;
second, from the sum of any remaining related Excess
Cashflow and any remaining related Excess Yield Maintenance
Amount, (i) to the Class I-B-IO Certificates, for deposit to the
Supplemental Interest Reserve Fund, the amount required for
distribution in accordance with clause (ii) of this paragraph
second, and (ii) from and to the extent of funds on deposit in the
Supplemental Interest Reserve Fund with respect to Group I, to the
related Class A Certificates, any Basis Risk Shortfall Carry
Forward Amount for each such Class for such Distribution Date, pro
rata, based on the amount of Basis Risk Shortfall Carry Forward
Amount owed to each such Class;
third, from the sum of any remaining related Excess Cashflow
and any remaining related Excess Yield Maintenance Amount, to the
Class I-M-1 Certificates, Class I-M-2 Certificates, Class I-M-3
Certificates, Class I-M-4 Certificates, Class I-M-5 Certificates,
Class I-M-6 Certificates and Class I-B Certificates, sequentially,
in that order, an amount equal to any Basis Risk Shortfall Carry
Forward Amount for each such Class and Distribution Date;
fourth, from the sum of any remaining related Excess
Cashflow and any remaining related Excess Yield Maintenance
Amount, to the Class I-M-1 Certificates, Class I-M-2 Certificates,
Class I-M-3 Certificates, Class I-M-4 Certificates, Class I-M-5
Certificates, Class I-M-6 Certificates and Class I-B Certificates,
sequentially, in that order, an amount equal to any Unpaid Applied
Realized Loss Amount for each such Class and Distribution Date;
73
fifth, from the sum of any remaining related Excess Cashflow
and any remaining related Excess Yield Maintenance Amount, (i) to
the Class I-B-IO Certificates, for deposit to the Supplemental
Interest Reserve Fund, the amount required for distribution in
accordance with clause (ii) of this paragraph fifth, and (ii) from
and to the extent of funds on deposit in the Supplemental Interest
Reserve Fund with respect to Group I, to the Class I-M-1
Certificates, Class I-M-2 Certificates, Class I-M-3 Certificates,
Class I-M-4 Certificates, Class I-M-5 Certificates, Class I-M-6
Certificates and Class I-B Certificates, sequentially, in that
order, an amount equal to any Basis Risk Shortfall Carry Forward
Amount for each such Class and Distribution Date;
sixth, from the sum of any remaining related Excess Cashflow
and any remaining related Excess Yield Maintenance Amount, for
distribution to the Group II Certificates, in accordance with the
priorities set forth under clause II. of this clause (iii), below,
first, to the Class II-A Certificates, to the extent that any
Interest Carry Forward Amount for such Class has not otherwise
been distributed in full for that Distribution Date, and then, to
the Group II Subordinate Certificates, to the extent that any (1)
Interest Carry Forward Amount, (2) Unpaid Applied Realized Loss
Amount and (3) Basis Risk Shortfall Carry Forward Amount, in that
order, for such Classes, has not otherwise been distributed in
full for that Distribution Date;
seventh, from the sum of any remaining related Excess
Cashflow and any remaining related Excess Yield Maintenance
Amount, to the Class II-B-IO Certificates, the Class I-B-IO
Distribution Amount and the remaining Excess Yield Maintenance
Amount for Group I; and
eighth, any remaining amounts to the Residual Certificates,
based on the related REMIC in which such amounts remain.
II. On each Distribution Date, the sum of any Excess Cashflow
and any Excess Yield Maintenance Amount with respect to Group II will be
applied as follows:
first, to the Class II-A Certificates, to the extent not
fully paid pursuant to paragraph first of clause (i) II., above,
any remaining Interest Carry Forward Amount for such Class for
such Distribution Date;
second, from the sum of any remaining related Excess
Cashflow and any remaining related Excess Yield Maintenance
Amount, (i) to the Class II-B-IO Certificates, for deposit to the
Supplemental Interest Reserve Fund, the amount required for
distribution in accordance with clause (ii) of this paragraph
second, and (ii) from and to the extent of funds on deposit in the
Supplemental Interest Reserve Fund with respect to Group II, to
the Class II-A Certificates, any Basis Risk Shortfall Carry
Forward Amount for such Class for such Distribution Date;
third, from the sum of any remaining related Excess Cashflow
and any remaining related Excess Yield Maintenance Amount, to the
Class II-M-1 Certificates, Class II-M-2 Certificates, Class II-M-3
Certificates and Class II-B Certificates, sequentially, in that
order, an amount equal to any Interest Carry Forward Amount for
each such Class and Distribution Date;
74
fourth, from the sum of any remaining related Excess
Cashflow and any remaining related Excess Yield Maintenance
Amount, to the Class II-M-1 Certificates, Class II-M-2
Certificates, Class II-M-3 Certificates and Class II-B
Certificates, sequentially, in that order, an amount equal to any
Unpaid Applied Realized Loss Amount for each such Class and
Distribution Date;
fifth, from the sum of any remaining related Excess Cashflow
and any remaining related Excess Yield Maintenance Amount, (i) to
the Class II-B-IO Certificates, for deposit to the Supplemental
Interest Reserve Fund, the amount required for distribution in
accordance with clause (ii) of this paragraph fifth, and (ii) from
and to the extent of funds on deposit in the Supplemental Interest
Reserve Fund with respect to Group II, to the Class II-M-1
Certificates, Class II-M-2 Certificates, Class II-M-3 Certificates
and Class II-B Certificates, sequentially, in that order, an
amount equal to any Basis Risk Shortfall Carry Forward Amount for
each such Class and Distribution Date;
sixth, from the sum of any remaining related Excess Cashflow
and any remaining related Excess Yield Maintenance Amount, for
distribution to the Group I Certificates, in accordance with the
priorities set forth under clause I. of this clause (iii), above,
first, to the Group I Class A Certificates, to the extent that any
Interest Carry Forward Amount for such Classes has not otherwise
been distributed in full for that Distribution Date, and then, to
the Group I Subordinate Certificates, to the extent that any (1)
Interest Carry Forward Amount, (2) Unpaid Applied Realized Loss
Amount and (3) Basis Risk Shortfall Carry Forward Amount, in that
order, for such Classes, has not otherwise been distributed in
full for that Distribution Date;
seventh, from the sum of any remaining related Excess
Cashflow and any remaining related Excess Yield Maintenance
Amount, to the Class II-B-IO Certificates, the Class II-B-IO
Distribution Amount and the remaining Excess Yield Maintenance
Amount for Group II; and
eighth, any remaining amounts to the Residual Certificates,
based on the related REMIC in which such amounts remain.
(b) Subject to Section 10.02 hereof respecting the final distribution,
on each Distribution Date the Paying Agent shall make distributions to each
Certificateholder of record on the preceding Record Date either by wire transfer
in immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor, if such Holder has so notified
the Paying Agent at least five (5) Business Days prior to the related Record
Date or, if not, by check mailed by first class mail to such Certificateholder
at the address of such holder appearing in the Certificate Register.
Notwithstanding the foregoing, but subject to Section 10.02 hereof respecting
the final distribution, distributions with respect to Certificates registered in
the name of a Depository shall be made to such Depository in immediately
available funds.
(c) On or before 5:00 p.m. Central time (i) on the twelfth calendar
day of each month (or if such day is not a Business Day, the immediately
preceding Business Day), the EMC Servicer shall deliver to the Master Servicer
with respect to the EMC Mortgage Loans and (ii) on the fifth Business Day
immediately preceding each Distribution Date, the Master Servicer shall deliver
to the Securities Administrator with respect to all Mortgage Loans, a report in
the form of a computer readable magnetic tape (or by such other means as the
Master Servicer and the Securities Administrator may agree from time
75
to time) containing such data and information, as agreed to by the EMC Servicer,
the Master Servicer and the Securities Administrator such as to permit the
Securities Administrator to prepare the Monthly Statement to Certificateholders
and to direct the Paying Agent in writing to make the required distributions for
the related Distribution Date (the "Remittance Report"). The Securities
Administrator shall deliver a Remittance Report to the Paying Agent on or
before 2:00 p.m. Eastern time on the Business Day immediately preceding each
Distribution Date. The Paying Agent shall provide to the Master Servicer a
monthly Statement of the account activity in the Distribution Account by the
15th day of the month following the Distribution Date.
Section 5.04A. Allocation of Realized Losses.
Any Realized Losses with respect to the Mortgage Loans shall be
applied on each Distribution Date after the distributions provided for in
Section 5.04 in reduction of the Certificate Principal Balance of the Class or
Classes of Certificates as provided in the definition of Applied Realized Loss
Amount.
Any amounts distributed to the Class of Subordinated Certificates in
respect of any Unpaid Applied Realized Loss Amount will not be applied to reduce
the Certificate Principal Balance of such Class.
If a Servicer or the Master Servicer receives a Subsequent Recovery in
a Prepayment Period, it will be distributed on the following Distribution Date
in accordance with the priorities described under Section 5.04(a). Additionally,
the Certificate Principal Balance of each Class of Subordinated Certificates
that had been reduced by the allocation of a Realized Loss will be increased, in
order of seniority, by the amount of such Subsequent Recovery, but not in excess
of the Unpaid Applied Realized Loss Amount for such Class immediately prior to
that Distribution Date. Holders of such Certificates will not be entitled to any
payment in respect of Current Interest on the amount of such increases for an
Interest Accrual Period preceding the Distribution Date on which such increase
occurs.
Section 5.05. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Securities
Administrator shall prepare and deliver to the Trustee and the Yield Maintenance
Provider, and make available to each Holder of Certificates, the Trustee, the
Rating Agencies, the Master Servicer, the EMC Servicer and the Depositor a
statement setting forth for the Certificates:
(i) the amount of the related distribution to Holders of each Class
allocable to principal, separately identifying (A) the aggregate amount of
any Principal Prepayments included therein, (B) the aggregate of all
scheduled payments (except with respect to any Simple Interest Loans) of
principal included therein (and with respect to any Simple Interest Loans,
the amount of principal actually received included therein), and (C) the
Extra Principal Distribution Amount (if any);
(ii) the amount of such distribution to Holders of each Class
allocable to interest, and, if applicable, the portion thereof allocable to
amounts provided pursuant to the Yield Maintenance Agreements to the extent
such information is provided to the Securities Administrator by the
Trustee;
(iii) any Interest Carry Forward Amounts, any Basis Risk Shortfall
Carry Forward Amounts for each Class of Adjustable Rate Certificates;
76
(iv) the Certificate Principal Balance of the Offered Certificates
before and after giving effect to all distributions of principal and
allocation of Applied Realized Loss Amounts in reduction of Certificate
Principal Balance for such Distribution Date and the allocation of any
Subsequent Recoveries to increase the Certificate Principal Balance for
such Distribution Date;
(v) the cumulative amount of Applied Realized Loss Amounts to date and
the Unpaid Applied Realized Loss Amounts for each applicable Class of
Subordinate Certificates after giving effect to the distribution of
principal (including Subsequent Recoveries) and allocation of Applied
Realized Loss Amounts on such Distribution Date;
(vi) the Pass-Through Rate for each Class of Adjustable Rate
Certificates with respect to the current Accrual Period, and, if
applicable, whether such Pass-Through Rate was limited by the Interest Rate
Cap;
(vii) the amount of any Excess Cashflow Amount and any Excess Yield
Maintenance Amount with respect to each Group;
(viii) the aggregate of the Stated Principal Balances of the Mortgage
Loans with respect to each Group on the related Due Date;
(ix) the related amount of the Master Servicing Fees paid to or
retained by the Master Servicer and the Servicing Fees paid to or retained
by each Servicer for the related Due Period;
(x) the amount of Advances included in the distribution on such
Distribution Date;
(xi) the number and aggregate principal amounts of Mortgage Loans (A)
Delinquent (exclusive of Mortgage Loans in foreclosure and bankruptcy) (1)
31 to 60 days, (2) 61 to 90 days and (3) 91 or more days, (B) in
foreclosure and delinquent (1) 31 to 60 days, (2) 61 to 90 days and (3) 91
or more days and (C) in bankruptcy and delinquent (1) 31 to 60 days, (2) 61
to 90 days and (3) 91 or more days, in each case as of the close of
business on the last day of the calendar month preceding such Distribution
Date;
(xii) with respect to any Mortgage Loan that was liquidated during the
preceding calendar month, the loan number and Stated Principal Balance of,
and Realized Loss on, such Mortgage Loan as of the end of the related
Prepayment Period;
(xiii) whether a Trigger Event exists in a Group;
(xiv) the total number and principal balance of any REO Properties
with respect to each Group as of the end of the related Prepayment Period;
(xv) the Realized Losses with respect to each Group during the related
Prepayment Period and the cumulative Realized Losses with respect to each
Group through the end of the preceding month;
(xvi) the three month rolling average of the percent equivalent of a
fraction, the numerator of which is the aggregate stated Principal Balance
of the Mortgage Loans in each Group that are 61 days or more delinquent or
are in bankruptcy or foreclosure or are REO Properties, and the denominator
of which is the aggregate Stated Principal Balance of all of the Mortgage
Loans in the related Group as of the last day of the calendar month
preceding such Distribution Date;
77
(xvii) the aggregate Realized Losses on the Mortgage Loans in each
Group since the Closing Date as a percentage of the aggregate Stated
Principal Balance of the Mortgage Loans in the related Group on the Closing
Date; and
(xviii) the amount of any Subsequent Recovery for such Distribution
Date and the amount by which the Certificate Principal Balance of each
Class of Subordinated Certificates was increased as a result thereof.
The Securities Administrator may make the foregoing monthly statement
(and, at its option, any additional files containing the same information in an
alternative format) available each month to Certificateholders via the
Securities Administrator's internet website. The Securities Administrator's
internet website shall initially be located at "xxx.xxxxxxx.xxx". Assistance in
using the Securities Administrator's website can be obtained by calling the
Securities Administrator's customer service desk at (000) 000-0000. To the
extent timely received from the Securities Administrator, the Trustee will also
make monthly statements available each month to Certificateholders and the Yield
Maintenance Provider via the Trustee's internet website. The trustee's internet
website will initially be located at xxx.xxxxxxxx.xxx/xxx. Assistance in using
the Trustee's website service can be obtained by calling the Trustee's customer
service desk at (000) 000-0000. Parties that are unable to use the above
distribution options are entitled to have a paper copy mailed to them via first
class mail by calling the Securities Administrator's customer service desk and
indicating such. The Securities Administrator may change the way monthly
statements are distributed in order to make such distributions more convenient
or more accessible to the above parties.
(b) The Securities Administrator's responsibility for making the above
information available to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from the Master Servicer and
the EMC Servicer. The Securities Administrator will make available a copy of
each statement provided pursuant to this Section 5.05 to each Rating Agency.
(c) Within a reasonable period of time after the end of each calendar
year, the Securities Administrator will prepare and the Trustee will provide to
the EMC Servicer, and upon request to each Person who at any time during the
calendar year was a Certificateholder, a statement containing the information
set forth in clauses (a)(i) and (a)(ii) of this Section 5.05 aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as from time to
time in effect.
(d) Upon filing with the Internal Revenue Service, the Securities
Administrator shall furnish to the Holders of the Residual Certificates the
applicable Form 1066 and each applicable Form 1066Q and shall respond promptly
to written requests made not more frequently than quarterly by any Holder of a
Residual Certificate with respect to the following matters:
(i) The original projected principal and interest cash flows on the
Closing Date on each Class of regular and residual interests created
hereunder and on the Mortgage Loans, based on the Prepayment Assumption;
(ii) The projected remaining principal and interest cash flows as of
the end of any calendar quarter with respect to each Class of regular and
residual interests created hereunder and the Mortgage Loans, based on the
Prepayment Assumption;
(iii) The applicable Prepayment Assumption and any interest rate
assumptions used in determining the projected principal and interest cash
flows described above;
78
(iv) The original issue discount (or, in the case of the Mortgage
Loans, market discount) or premium accrued or amortized through the end of
such calendar quarter with respect to each Class of regular or residual
interests created hereunder and to the Mortgage Loans, together with each
constant yield to maturity used in computing the same;
(v) The treatment of losses realized with respect to the Mortgage
Loans or the regular interests created hereunder, including the timing and
amount of any cancellation of indebtedness income of a REMIC with respect
to such regular interests or bad debt deductions claimed with respect to
the Mortgage Loans;
(vi) The amount and timing of any non-interest expenses of a REMIC;
and
(vii) Any taxes (including penalties and interest) imposed on the
REMIC, including, without limitation, taxes on "prohibited transactions,"
"contributions" or "net income from foreclosure property" or state or local
income or franchise taxes.
The information pursuant to clauses (i), (ii), (iii) and (iv) above
shall be provided by the Depositor pursuant to Section 9.12.
Section 5.06. REMIC Designations and Allocations.
(a) The Trustee shall elect that each of REMIC I and REMIC II shall be
treated as a REMIC under Section 860D of the Code. Any inconsistencies or
ambiguities in this Agreement or in the administration of this Agreement shall
be resolved in a manner that preserves the validity of such REMIC elections. The
assets of REMIC I shall include the Mortgage Loans and all interest owing in
respect of and principal due thereon, the Master Servicer Collection Account,
the Distribution Account, any REO Property, and any proceeds of the foregoing.
(b) REMIC I will be evidenced by (x) the Class I-A-1, Class I-A-2,
Class I-A-3, Class I-M-1, Class I-M-2, Class I-M-3, Class I-M-4, Class I-M-5,
Class I-M-6, Class I-B, Class II-A, Class II-M-1, Class II-M-2, Class II-M-3 and
Class II-B (the "REMIC I Regular Interests"), which are hereby designated as the
"regular interests" in REMIC I and will be uncertificated and non-transferable
and (y) the Class R-1 Certificate, which is hereby designated as the single
"residual interest" in REMIC I (the REMIC I Regular Interests, together with the
Class R-1 Certificate, the "REMIC I Certificates"). The REMIC I Regular
Interests shall be recorded on the records of REMIC I as being issued to and
held by the Trustee on behalf of REMIC II.
Principal shall be payable to, and shortfalls, losses and prepayments
are allocable to, the REMIC I Regular Interests as such amounts are payable and
allocable to the Certificates with the corresponding designations.
The REMIC I Certificates will have the following designations, initial
principal balances, pass-through rates and allocations of interest:
Pass- Allocation
REMIC I Initial Principal Through of
Certificates Balance Rate Interest Related Group
------------ ------- ---- -------- -------------
I-A-1 $ 28,117,000 (1) (2),(3) I
I-A-2 $ 20,784,000 (1) (2),(3) I
I-A-3 $ 121,862,000 (1) (2),(3) I
I-M-1 $ 10,171,000 (1) (2),(3) I
79
REMIC I Initial Principal Through of
Certificates Balance Rate Interest Related Group
------------ ------- ---- -------- -------------
I-M-2 $ 3,423,000 (1) (2),(3) I
I-M-3 $ 1,956,000 (1) (2),(3) I
I-M-4 $ 1,956,000 (1) (2),(3) I
I-M-5 $ 1,956,000 (1) (2),(3) I
I-M-6 $ 978,000 (1) (2),(3) I
I-B $ 2,934,000 (1) (2),(3) I
II-A-1 $ 144,250,000 (1) (2),(3) II
II-A-2 $ 16,028,000 (1) (2),(3) II
II-M-1 $ 11,529,000 (1) (2),(3) II
II-M-2 $ 5,905,000 (1) (2),(3) II
II-M-3 $ 5,717,000 (1) (2),(3) II
II-B $ 1,125,000 (1) (2),(3) II
R-1 N/A 0%(4) --- N/A
_______________
(1) The pass-through rate on this REMIC I Regular Interest shall at any
time of determination equal the weighted average of the Net Mortgage
Rates of the Mortgage Loans of the related Group. However, the
Pass-Through Rate due on the first Distribution Date will be a fixed
rate equal to the weighted average of the Net Mortgage Rates of the
Mortgage Loans of the related Group.
(2) Except as provided in note (3) below, interest will be allocated among
the Class I-A-1, Class I-A-2, Class I-A-3, Class I-M-1, Class I-M-2,
Class I-M-3, Class I-M-4, Class I-M-5, Class I-M-6 and Class I-B, Class
II-A, Class II-M-1, Class II-M-2, Class II-M-3 and Class II-B REMIC I
Certificates in the same proportion as interest is payable on the
Certificates with the corresponding designations.
(3) Any interest with respect to these REMIC I Regular Interests in excess
of the weighted average coupon of the REMIC I Regular Interests of the
same related Group, where each such REMIC I Regular Interests is first
subject to a cap and floor equal to the Pass-Through Rate of the
Certificate with the corresponding designation will be allocated to the
Class B-IO Certificates of the corresponding related Group. In
addition, an amount equal to the Initial Overcollateralization Amount
with respect to each Group shall be allocated to the corresponding
Class B-IO Certificates on the first Distribution Date. However, the
Class B-IO Certificates shall be subordinated to the extent provided in
Section 5.04.
(4) On each Distribution Date, amounts, if any, remaining in REMIC I after
payments of interest and principal, as designated above, will be
distributed to the Class R-1 Certificate.
(c) The Adjustable Rate Certificates (exclusive of any rights such
Certificates may have to receive, and payments of, Basis Risk Shortfall Carry
Forward Amounts and Yield Maintenance Amounts) and the Class B-IO Certificates
(exclusive of any rights or obligations associated with these Certificates in
connection with the treatment of the Holders of such Certificates as the owners,
for federal income tax purposes, of the Yield Maintenance Account and the
payments of Basis Risk Shortfall Carry Forward Amounts, as described in Section
5.06(e) below) are hereby designated as "regular interests" with respect to
REMIC II (the "REMIC II Regular Interests") and the Class R-2 Certificate is
hereby designated as the single "residual interest" with respect to REMIC II. On
each Distribution Date, amounts, if any, remaining in REMIC II after payments of
interest and principal as designated herein shall be distributed to the Class
R-2 Certificate. The terms of the REMIC II Regular Interests are set out in
Section 6.01.
(d) For federal income tax purposes, each of REMIC I and REMIC II
shall have a tax year that is a calendar year and shall report income on an
accrual basis.
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(e) Payments of Basis Risk Shortfall Carry Forward Amounts and Yield
Maintenance Payments shall be deemed to be made to the holders of the Class B-IO
Certificate of the related Group with respect to which such payments were made,
who will be the owners of such amounts (on a pro rata basis based upon their
Percentage Interest in such Class) for federal income tax purposes. The Class
I-B-IO Certificateholders will be considered to pay such amounts to the Class
I-A-1, Class I-A-2, Class I-A-3, Class I-M-1, Class I-M-2, Class I-M-3, Class
I-M-4, Class I-M-5, Class I-M-6 and Class I-B, and the Class II-B-IO
Certificateholders will be considered to pay such amounts to the Class II-A,
Class II-M-1, Class II-M-2, Class II-M-3 and Class II-B Certificates, as and to
the extent appropriate, pursuant to a notional principal contract.
Section 5.07. Supplemental Interest Reserve Fund; WAC Excess.
(a) On the Closing Date, the holders of the Class B-IO Certificates
will deposit, or cause to be deposited, into the Supplemental Interest Reserve
Fund, $5,000. On each Distribution Date as to which there is WAC Excess to the
extent not paid under Section 5.04(a), the Paying Agent has been directed to,
and shall therefore, deposit into the Supplemental Interest Reserve Fund an
amount equal to the WAC Excess to the extent of the Class I-B-IO Distribution
Amount or Class II-B-IO Distribution Amount, as applicable, which is payable
pursuant to Section 5.04(a). If no WAC Excess is payable on a Distribution Date,
the Trustee shall deposit into the Supplemental Interest Reserve Fund on behalf
of the Class B-IO Certificateholders an amount such that when added to other
amounts already on deposit in the fund, the aggregate amount on deposit therein
is equal to $5,000. For federal and state income tax purposes, the Class B-IO
Certificateholders will be deemed to be the owners of the Supplemental Interest
Reserve Fund and all amounts deposited into the Supplemental Interest Reserve
Fund (other than the initial $5,000 deposit) shall be treated as amounts
distributed by the REMIC II with respect to the Class B-IO Distribution Amount
and Class II-B-IO Distribution Amount. Amounts held in the Supplemental Interest
Reserve Fund and not distributable to the Adjustable Rate Certificateholders on
any Distribution Date will be invested by the Paying Agent in investments
designated by the Class B-IO Certificateholders having maturities on or prior to
the next succeeding Distribution Date on which such amounts will be
distributable to the Adjustable Rate Certificateholders. Upon the termination of
the Trust, or the payment in full of the Adjustable Rate Certificates, all
amounts remaining on deposit in the Supplemental Interest Reserve Fund will be
released from the lien of the Trust and distributed to the Class B-IO
Certificateholders or their designees, pro rata. The Supplemental Interest
Reserve Fund will be part of the Trust but not part of any REMIC created
hereunder and any payments to the Adjustable Rate Certificates of WAC Excess
will not be payments with respect to a "regular interest" in a REMIC within the
meaning of Code Section 860G(a)(1).
(b) The Paying Agent and the Trustee shall treat the Supplemental
Interest Reserve Fund as an outside reserve fund within the meaning of Treasury
Regulation Section 1.860G-2(h) that is owned by the Class B-IO
Certificateholders and that is not an asset of any REMIC. The Paying Agent and
the Trustee shall treat the rights of the Adjustable Rate Certificateholders to
receive payments from the Supplemental Interest Reserve Fund as rights in an
interest rate cap contract written by the Class B-IO Certificateholders in favor
of the Adjustable Rate Certificateholders. Thus, each Adjustable Rate
Certificate shall be treated as representing not only ownership of a regular
interest in REMIC II, but also ownership of an interest in an interest rate cap
contract.
(c) Notwithstanding the priority and sources of payments set forth in
Section 5.04(a) hereof or otherwise, the Paying Agent and the Trustee shall
account for all distributions on the Certificates as set forth in this section.
In no event shall any payments provided for in this section be treated as
payments with respect to a "regular interest" in a REMIC within the meaning of
Code Section 860G(a)(1) and shall be treated as an asset held separate and apart
from any REMIC created under this Agreement in accordance with Treasury
regulation section 1.860G-2(i).
81
ARTICLE VI.
THE CERTIFICATES
Section 6.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto
as Exhibits A-1 through A-19. The Certificates shall be issuable in registered
form, in the minimum dollar denominations, integral dollar multiples in excess
thereof (except that one Certificate of each Class may be issued in a different
amount which must be in excess of the applicable minimum dollar denomination)
and aggregate dollar denominations as set forth in the following table:
Integral
Multiples Initial
Minimum in Excess of Principal Pass-Through Related
Class Denomination Minimum Balance Rate Group
------------------- ------------------ ------------------- ------------------ ------------------------------
I-A-1 $25,000 $1,000 $ 28,117,000 Adjustable (1) I
I-A-2 $25,000 $1,000 $ 20,784,000 Adjustable (2) I
I-A-3 $25,000 $1,000 $ 121,862,000 Adjustable (3) I
I-M-1 $25,000 $1,000 $ 10,171,000 Adjustable (4) I
I-M-2 $25,000 $1,000 $ 3,423,000 Adjustable (5) I
I-M-3 $25,000 $1,000 $ 1,956,000 Adjustable (6) I
I-M-4 $25,000 $1,000 $ 1,956,000 Adjustable (7) I
I-M-5 $25,000 $1,000 $ 1,956,000 Adjustable (8) I
I-M-6 $25,000 $1,000 $ 978,000 Adjustable (9) I
I-B $25,000 $1,000 $ 2,934,000 Adjustable (10) I
II-A-1 $25,000 $1,000 $ 144,250,000 Adjustable (11) II
II-A-2 $25,000 $1,000 $ 16,028,000 Adjustable (12) II
II-M-1 $25,000 $1,000 $ 11,529,000 Adjustable (13) II
II-M-2 $25,000 $1,000 $ 5,905,000 Adjustable (14) II
II-M-3 $25,000 $1,000 $ 5,717,000 Adjustable (15) II
II-B $25,000 $1,000 $ 1,125,000 Adjustable (16) II
I-B-IO $10,000,000 $1,000,000 Notional (17) N/A I
II-B-IO $10,000,000 $1,000,000 Notional (18) X/X XX
X 000% X/X X/X X/X X/X
___________________
(1) For the first Distribution Date, 3.290% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-A-1 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date.
(2) For the first Distribution Date, 3.560% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-A-2 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date.
(3) For the first Distribution Date, 4.90% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-A-3 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date.
(4) For the first Distribution Date, 3.740% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-M-1 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date.
(5) For the first Distribution Date, 4.090% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-M-2 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date.
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(6) For the first Distribution Date, 4.240% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-M-3 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date
(7) For the first Distribution Date, 4.590% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-M-4 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date
(8) For the first Distribution Date, 5.990% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-M-5 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date
(9) For the first Distribution Date, 5.990% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-M-6 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date
(10) For the first Distribution Date, 5.990% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class I-B Margin for such Distribution
Date and (ii) the related Interest Rate Cap for such Distribution Date
(11) For the first Distribution Date, 3.420% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class II-A-1 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date
(12) For the first Distribution Date, 3.570% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class II-A-2 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date
(13) For the first Distribution Date, 3.740% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class II-M-1 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date
(14) For the first Distribution Date, 4.090% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class II-M-2 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date
(15) For the first Distribution Date, 5.590% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class II-M-3 Margin for such
Distribution Date and (ii) the related Interest Rate Cap for such
Distribution Date
(16) For the first Distribution Date, 5.590% per annum, and on any
Distribution Date thereafter, the lesser of (i) One-Month LIBOR for the
related Accrual Period plus the Class II-B Margin for such Distribution
Date and (ii) the related Interest Rate Cap for such Distribution Date
(17) Initially $195,604,252 and thereafter the aggregate Stated Principal
Balance of the Group I Mortgage Loans as of the last day of the related
Due Period. The Class I-B-IO Certificates will be entitled to receive
certain distributions as provided for in Section 5.04. Other than for
federal income tax purposes, the Class I-B-IO Distribution Amount may
be deemed to be interest on the notional principal balance of the Class
I-B-IO Certificates.
(18) Initially $187,458,778 and thereafter the aggregate Stated Principal
Balance of the Group II Mortgage Loans as of the last day of the
related Due Period. The Class II-B-IO Certificates will be entitled to
receive certain distributions as provided for in Section 5.04. Other
than for federal income tax purposes, the Class II-B-IO Distribution
Amount may be deemed to be interest on the notional principal balance
of the Class II-B-IO Certificates.
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The Certificates shall be executed by manual or facsimile signature on
behalf of the Certificate Registrar by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures were affixed, authorized to sign on behalf of the
Certificate Registrar shall bind the Certificate Registrar, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such authentication and delivery. No Certificate shall be entitled
to any benefit under this Agreement, or be valid for any purpose, unless there
appears on such Certificate the authentication of the Certificate Registrar by
manual signature, and such authentication upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. On the Closing Date, the Certificate Registrar shall
authenticate the Certificates to be issued at the written direction of the
Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the
Certificate Registrar on a continuous basis, an adequate inventory of
Certificates to facilitate transfers.
Section 6.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Certificate Registrar shall maintain, or cause to be
maintained in accordance with the provisions of Section 6.09 hereof, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of Transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of Transfer of any Certificate, the Certificate
Registrar shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and of
like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Certificate
Registrar. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute, authenticate, and deliver the Certificates
that the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for registration of Transfer or exchange
shall be accompanied by a written instrument of Transfer in form satisfactory to
the Certificate Registrar duly executed by the holder thereof or his attorney
duly authorized in writing.
No service charge to the Certificateholders shall be made for any
registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of Transfer or exchange
shall be canceled and subsequently destroyed by the Certificate Registrar in
accordance with the Certificate Registrar's customary procedures.
(b) No Transfer of a Class I-B Certificate or a Class B-IO Certificate
shall be made unless such Transfer is made pursuant to an effective registration
statement under the Securities Act and any applicable state securities laws or
is exempt from the registration requirements under the Securities Act and such
state securities laws. In the event that a Transfer is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder desiring
to effect such Transfer and such Certificateholder's prospective transferee
shall each certify to the Trustee and the Securities Administrator in writing
the facts surrounding the Transfer in substantially the forms set forth in
Exhibit E (the "Transferor
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Certificate") and (x) deliver a letter in substantially the form of either
Exhibit F (the "Investment Letter") or Exhibit G (the "Rule 144A Letter") or (y)
there shall be delivered to the Trustee and the Securities Administrator an
Opinion of Counsel addressed to the Trustee and the Securities Administrator
that such Transfer may be made pursuant to an exemption from the Securities Act,
which Opinion of Counsel shall not be an expense of the Depositor, the Seller,
any Servicer, the Master Servicer, the Securities Administrator, the Certificate
Registrar or the Trustee. The Depositor shall provide to any Holder of a Class
I-B Certificates or a Class B-IO Certificate and any prospective transferee
designated by any such Holder, information regarding the related Certificates
and the Mortgage Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for Transfer
of any such Certificate without registration thereof under the Securities Act
pursuant to the registration exemption provided by Rule 144A. The Trustee, the
Securities Administrator, the Certificate Registrar and the Master Servicer
shall cooperate with the Depositor in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Depositor such
information regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet its
obligation under the preceding sentence. Each Holder of a Class I-B Certificates
or a Class B-IO Certificate desiring to effect such Transfer shall, and does
hereby agree to, indemnify the Trustee, the Depositor, the Seller, the
Securities Administrator, the Certificate Registrar and the Master Servicer
against any liability that may result if the Transfer is not so exempt or is not
made in accordance with such federal and state laws.
No Transfer of an ERISA Restricted Certificate shall be made unless
the Trustee, the Master Servicer and the Securities Administrator shall have
received either (i) a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Trustee and the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA and/or a plan subject to Section
4975 of the Code ("Plan"), or a Person, directly or indirectly, acting on behalf
of any such Plan, or (ii) in the case of any such ERISA Restricted Certificate
presented for registration in the name of a Plan, or a trustee of any Plan or
any other person, directly or indirectly, acting on behalf of any such Plan, a
representation satisfactory to the Trustee and the Securities Administrator to
the effect that neither the purchase or holding of such ERISA Restricted
Certificate nor the servicing, management and operation of the Trust Fund will
result in any prohibited transactions under ERISA or Section 4975 of the Code
which will not be covered under Prohibited Transactions Class Exemption ("PTCE")
00-00, XXXX 00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23 or some other applicable
exemption and will not subject the Trustee, the Securities Administrator, the
Certificate Registrar, any Servicer, the Master Servicer or the Depositor to any
fiduciary duties under ERISA in addition to those expressly undertaken in this
Agreement, which in the case of a Book-Entry Certificate shall be deemed to have
been represented by the Transferee. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA Restricted Certificate to or
on behalf of any Plan without satisfying the above conditions shall be void and
of no effect. None of the Trustee, the Securities Administrator, the Certificate
Registrar or the Master Servicer shall be required to monitor, determine or
inquire as to compliance with the transfer restrictions with respect to any
ERISA Restricted Certificate that is a Book-Entry Certificate, and none of the
Trustee, the Securities Administrator, the Certificate Registrar or the Master
Servicer shall have any liability for transfers of any such Book-Entry
Certificates made through the book-entry facilities of any Depository or between
or among participants of the Depository or Certificate Owners made in violation
of the transfer restrictions set forth herein. None of the Trustee, the
Securities Administrator, the Certificate Registrar or the Master Servicer shall
be under any liability to any Person for any registration of transfer of any
ERISA Restricted Certificate that is in fact not permitted by this Section
6.02(b) or for making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the provisions of
this Agreement. The Trustee and the Securities Administrator shall be entitled,
but not obligated, to recover from any Holder of any ERISA Restricted
Certificate that was in fact a Plan or a Person, directly or indirectly, acting
on behalf of any Plan at the time it became a Holder or, at such subsequent time
as it
85
became a Plan or Person acting on behalf of a Plan, all payments made on such
ERISA Restricted Certificate at and after either such time. Any such payments so
recovered by the Trustee or the Securities Administrator shall be paid and
delivered by the Trustee or the Securities Administrator to the last preceding
Holder of such Certificate that is not a Plan or Person acting on behalf of a
Plan.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate which shall always be issued as a physical certificate
and not as a Book-Entry Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee and the Certificate Registrar of any
change or impending change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be registered
on the Closing Date or thereafter transferred, and the Certificate
Registrar shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Trustee and the Certificate Registrar under subparagraph (b) above, the
Trustee and the Certificate Registrar shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit D.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not to
Transfer its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section
6.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
6.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Certificate Registrar shall be
under no liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by Section 6.02(b) and
this Section 6.02(c) or for making any payments due on such Certificate to
the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit and Transferor
Certificate. The Certificate Registrar shall be entitled but not obligated
to recover from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such subsequent
time as it became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such payments
so recovered by the Certificate Registrar shall be paid and delivered by
the Certificate Registrar to the last preceding Permitted Transferee of
such Certificate.
(v) The Master Servicer shall make available within 60 days of written
request from the Trustee or Certificate Registrar, all information
necessary to compute any tax imposed under
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Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 6.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee and the Certificate Registrar of an
Opinion of Counsel addressed to the Trustee and the Certificate Registrar, which
Opinion of Counsel shall not be an expense of the Trustee, the Securities
Administrator, the Certificate Registrar, the Seller, any Servicer or the Master
Servicer to the effect that the elimination of such restrictions will not cause
the REMIC I and/or REMIC II, as applicable, to fail to qualify as a REMIC at any
time that the Certificates are outstanding or result in the imposition of any
tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement that, based on an Opinion of Counsel
furnished to the Trustee and the Certificate Registrar, is reasonably necessary
(a) to ensure that the record ownership of, or any beneficial interest in, a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate that is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 6.02 shall not be an expense of the Trust
Fund, the Trustee, the Depositor, the Seller, the Securities Administrator, the
Certificate Registrar, the Master Servicer or any Servicer.
Section 6.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and of the ownership thereof
and (b) there is delivered to the Master Servicer, the Securities Administrator,
the Certificate Registrar and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Certificate Registrar shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like Class, tenor and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 6.03, the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section 6.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time. All
Certificates surrendered to the Certificate Registrar under the terms of this
Section 6.03 shall be canceled and destroyed by the Certificate Registrar in
accordance with its standard procedures without liability on its part.
Section 6.04. Persons Deemed Owners.
The Securities Administrator, the Trustee, the Master Servicer, the
Certificate Registrar and the Paying Agent and any agent thereof may treat the
person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Securities
Administrator, the Trustee, the Master Servicer, the Certificate Registrar, the
Paying Agent nor any agent thereof shall be affected by any notice to the
contrary.
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Section 6.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in
writing from the Trustee or Certificate Registrar, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and (c)
provide a copy of the communication that such Certificateholders propose to
transmit or if the Depositor or the Master Servicer shall request such
information in writing from the Trustee or Certificate Registrar, then the
Trustee shall, within ten Business Days after the receipt of such request,
provide the Depositor, the Master Servicer or such Certificateholders at such
recipients' expense the most recent list of the Certificateholders of the Trust
Fund held by the Trustee or the Certificate Registrar, if any. The Depositor and
every Certificateholder, by receiving and holding a Certificate, agree that
neither the Trustee nor the Certificate Registrar shall not be held accountable
by reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 6.06. Book-Entry Certificates.
The Regular Certificates (other than the Class I-B Certificates and
the Class B-IO Certificates), upon original issuance, shall be issued in the
form of one or more typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the Depository or its agent by or on behalf of
the Depositor. Such Certificates shall initially be registered on the
Certificate Register in the name of the Depository or its nominee, and no
Certificate Owner of such Certificates will receive a definitive certificate
representing such Certificate Owner's interest in such Certificates, except as
provided in Section 6.08. Unless and until definitive, fully registered
Certificates ("Definitive Certificates") have been issued to the Certificate
Owners of such Certificates pursuant to Section 6.08:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor, the Securities Administrator, the Certificate
Registrar and the Trustee may deal with the Depository and the Depository
Participants for all purposes (including the making of distributions) as the
authorized representative of the respective Certificate Owners of such
Certificates;
(c) registration of the Book-Entry Certificates may not be transferred
by the Certificate Registrar except to another Depository;
(d) the rights of the respective Certificate Owners of such
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of such Certificates and the Depository and/or the Depository
Participants. Pursuant to the Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 6.08, the Depository will make
book-entry transfers among the Depository Participants and receive and transmit
distributions of principal and interest on the related Certificates to such
Depository Participants;
(e) the Depository may collect its usual and customary fees, charges
and expenses from its Depository Participants;
(f) the Trustee and the Certificate Registrar may rely and shall be
fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants; and
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(g) to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section shall
control.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of,
Certificateholders evidencing a specified percentage of the aggregate unpaid
principal amount of any Class of Certificates, such direction or consent may be
given by Certificate Owners (acting through the Depository and the Depository
Participants) owning Book-Entry Certificates evidencing the requisite percentage
of principal amount of such Class of Certificates.
Section 6.07. Notices to Depository.
Whenever any notice or other communication is required to be given to
Certificateholders of a Class with respect to which Book-Entry Certificates have
been issued, unless and until Definitive Certificates shall have been issued to
the related Certificate Owners, the Certificate Registrar shall give all such
notices and communications to the Depository.
Section 6.08. Definitive Certificates.
If, after Book-Entry Certificates have been issued with respect to any
Certificates, (a) the Depositor or the Depository advises the Certificate
Registrar that the Depository is no longer willing or able to discharge properly
its responsibilities under the Depository Agreement with respect to such
Certificates and the Depositor is unable to locate a qualified successor or (b)
after the occurrence and continuation of an Event of Default, Certificate Owners
of such Book-Entry Certificates having not less than 51% of the Voting Rights
evidenced by any Class of Book-Entry Certificates advise the Certificate
Registrar and the Depository in writing through the Depository Participants that
the continuation of a book-entry system with respect to Certificates of such
Class through the Depository (or its successor) is no longer in the best
interests of the Certificate Owners of such Class, then the Certificate
Registrar shall notify all Certificate Owners of such Certificates, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to applicable Certificate Owners requesting the same.
The Depositor shall provide the Certificate Registrar with an adequate inventory
of certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon surrender to the Certificate Registrar of any such
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration, the Certificate Registrar shall authenticate
and deliver such Definitive Certificates. Neither the Depositor nor the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and each may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of such Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Certificate Registrar, to the extent applicable with respect to such
Definitive Certificates and the Certificate Registrar shall recognize the
Holders of such Definitive Certificates as Certificateholders hereunder.
Section 6.09. Maintenance of Office or Agency.
The Certificate Registrar will maintain or cause to be maintained at
its expense an office or offices or agency or agencies in New York City or at
the Corporate Trust Office (if not in New York City) where Certificates may be
surrendered for registration of transfer or exchange. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.recognize the Holders of such Definitive
Certificates as Certificateholders hereunder.
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Section 6.10. Appointment of Paying Agent and Certificate Registrar
Xxxxx Fargo Bank, National Association, as Securities Administrator,
shall act as the initial Paying Agent and Certificate Registrar for so long as
it is also the Master Servicer. Each of the Paying Agent and the Certificate
Registrar may resign upon thirty (30) days' prior written notice to the Trustee;
provided hereto that no such resignation shall be effective until the
appointment of a successor paying agent or certificate registrar. In the event
the Paying Agent and/or the Certificate Registrar resigns or is removed by the
Trustee for cause, the Trustee may appoint a successor paying agent or
certificate registrar, as applicable. The Trustee shall cause such successor
paying agent, if other than the Trustee or the Master Servicer or the Securities
Administrator, to execute and deliver to the Trustee an instrument in which such
paying agent shall agree with the Trustee that such paying agent will hold all
sums held by it for the payment to Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums have been paid to the
Certificateholders.
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ARTICLE VII.
THE DEPOSITOR, THE MASTER SERVICER, THE EMC SERVICER AND THE SELLER
Section 7.01. Respective Liabilities of the Depositor, the Master
Servicer, the EMC Servicer and the Seller.
The Depositor, the Master Servicer, the EMC Servicer and the Seller
shall each be liable in accordance herewith only to the extent of the
obligations specifically and respectively imposed upon and undertaken by them
herein.
Section 7.02. Merger or Consolidation of the Depositor, the Master
Servicer, the EMC Servicer or the Seller.
The Depositor, the Master Servicer, the EMC Servicer and the Seller
will each keep in full effect its existence, rights and franchises as a
corporation, a limited liability company or a national association under the
laws of the United States or under the laws of one of the States thereof and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor, the Master Servicer, the EMC
Servicer or the Seller may be merged or consolidated, or any Person resulting
from any merger or consolidation to which the Depositor, the Master Servicer,
the EMC Servicer or the Seller shall be a party, or any person succeeding to the
business of the Depositor, the Master Servicer, the EMC Servicer or the Seller
shall be the successor of the Depositor, the Master Servicer, the EMC Servicer
or the Seller, as the case may be, hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided that the successor or surviving
Person to the Master Servicer or the EMC Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, Xxxxxx Mae or
Xxxxxxx Mac.
Section 7.03. Indemnification of the Trustee, the Master Servicer, the
Securities Administrator and Others.
(a) The Master Servicer agrees to indemnify the Indemnified Persons
(other than the Master Servicer) for, and to hold them harmless against, any
loss, liability or expense (except as otherwise provided herein with respect to
expenses) (including reasonable legal fees and disbursements of counsel)
incurred on their part that may be sustained in connection with, arising out of,
or relating to this Agreement, the Certificates or any powers of attorney
furnished by the Trustee to the Master Servicer hereunder (i) related to the
Master Servicer's failure to perform its duties in compliance with this
Agreement (except as any such loss, liability or expense shall be otherwise
reimbursable pursuant to this Agreement) or (ii) incurred by reason of the
Master Servicer's willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder, provided, in each case, that with respect to
any such claim or legal action (or pending or threatened claim or legal action),
an Indemnified Person shall have given Master Servicer and the Depositor written
notice thereof promptly after a Responsible Officer of such Indemnified Person
shall have with respect to such claim or legal action actual knowledge thereof.
The Indemnified Person's failure to give such notice shall not affect the
Indemnified Person's right to indemnification hereunder. This indemnity shall
survive the resignation or removal of the Trustee, the Master Servicer or the
Securities Administrator and the termination of this Agreement.
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(b) The Trust will indemnify any Indemnified Person for any loss,
liability or expense of any Indemnified Person not otherwise indemnified by the
Master Servicer that is referred to in Subsection (a) above.
(c) The Securities Administrator agrees to indemnify the Indemnified
Persons (other than the Securities Administrator) for, and to hold them harmless
against, any loss, liability or expense (except as otherwise provided herein
with respect to expenses) (including reasonable legal fees and disbursements of
counsel) incurred on their part (i) in connection with, arising out of, or
relating to the Securities Administrator's failure to prepare and file a Form
10-K in accordance with Section 3.18, (ii) by reason of the Securities
Administrator's willful misfeasance, bad faith or gross negligence in the
performance of its obligations pursuant to Section 3.18 or (iii) by reason of
the Securities Administrator's reckless disregard of its obligations pursuant to
Section 3.18, (including, without limitation, in respect of any powers of
attorney furnished to the Securities Administrator) provided, in each case, that
with respect to any such claim or legal action (or pending or threatened claim
or legal action), an Indemnified Person shall have given the Securities
Administrator written notice thereof promptly after such Indemnified Person
shall have with respect to such claim or legal action knowledge thereof. The
Indemnified Person's failure to give such notice shall not affect the
Indemnified Person's right to indemnification hereunder. This indemnity shall
survive the resignation or removal of the Trustee, the Master Servicer or the
Securities Administrator and the termination of this Agreement.
Section 7.04. Limitation on Liability of the Depositor, the Seller,
the Master Servicer, the Securities Administrator and
Others.
None of the Depositor, the Seller, the Master Servicer, the Securities
Administrator, the Trustee, the EMC Servicer, the Custodian or any of the
directors, officers, employees or agents of the Depositor, the Seller, the
Master Servicer, the Securities Administrator, the Trustee, the Custodian or the
EMC Servicer (each, a "Protected Party") shall be under any liability to any
Indemnified Person, the Trust Fund or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided that this provision shall
not protect any such Protected Party against any breach of representations or
warranties made by it herein or protect any such Protected Party from any
liability that would otherwise be imposed by reasons of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder or, in the case of the Master
Servicer, its liability pursuant to Section 7.03(a). The Protected Parties may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Protected
Parties shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates other than any loss,
liability or expense related to a specific Mortgage Loan or Mortgage Loans,
except any loss, liability or expense shall be otherwise reimbursable pursuant
to this Agreement and any loss, liability or expense incurred by reason of such
Protected Party's willful misfeasance, bad faith or gross negligence in the
performance of its duties hereunder or by reason of its reckless disregard of
its obligations and duties hereunder or, in the case of the Master Servicer, its
liability pursuant to Section 7.03(a). No Protected Party shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and that in its opinion may
involve it in any expense or liability; provided that a Protected Party may, in
its discretion undertake any such action that it may deem necessary or desirable
in respect of this Agreement and the rights and duties of the parties hereto and
interests of the Trustee and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be, expenses, costs and liabilities of the Trust Fund, and such
Protected Party shall be entitled to be reimbursed therefor out of the Master
Servicer Collection Account as provided by Section 4.03 and out of the
Distribution Account as provided in Section 4.05 hereof.
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Section 7.05. Limitation on Resignation of Master Servicer and the EMC
Master Servicer.
Neither the Master Servicer nor the EMC Servicer shall resign from the
obligations and duties hereby imposed on it except upon (x) determination that
its duties hereunder are no longer permissible under applicable law or (y) in
the case of the Master Servicer, compliance with the following requirements: (i)
the Master Servicer has proposed a successor to the Trustee and the Trustee has
consented thereto (such consent not to be withheld unreasonably; (ii) the
successor is qualified to sell mortgage loans to, and to service mortgage loans
on behalf of, Xxxxxx Xxx or Xxxxxxx Mac; and (iii) each Rating Agency shall have
delivered to the Trustee written confirmation that the appointment of such
successor will not result in the qualification, reduction or withdrawal of the
then-current ratings assigned by such Rating Agency to any of the Certificates.
Any such determination permitting the resignation of the Master Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No resignation by the Master Servicer shall become effective until the Trustee
or a successor servicer to such appointment shall have assumed the Master
Servicer's responsibilities, duties, liabilities and obligations hereunder.
Section 7.06. Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall, for so long as it acts as a successor
servicer under a Servicing Agreement, obtain and maintain in force (a) a policy
or policies of insurance covering errors and omissions in the performance of its
obligations as successor servicer thereunder, and (b) a fidelity bond in respect
of its officers, employees and agents. Each such policy or policies and bond
shall, together, comply with the requirements from time to time of Xxxxxx Mae or
Xxxxxxx Mac for persons performing servicing for mortgage loans purchased by
Xxxxxx Mae or Xxxxxxx Mac. In the event that any such policy or bond ceases to
be in effect, the Master Servicer shall use its reasonable best efforts to
obtain a comparable replacement policy or bond from an insurer or issuer,
meeting the requirements set forth above as of the date of such replacement.
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ARTICLE VIII.
DEFAULT; TERMINATION OF MASTER SERVICER
Section 8.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer or the EMC Servicer to deposit
in the Master Servicer Collection Account the amounts required pursuant to
this Agreement or by the Master Servicer to remit to the Paying Agent any
payment, including any Advance, required to be made pursuant to this
Agreement, which failure shall continue unremedied for five Business Days
after the date on which Applicable Written Notice of such failure shall
have been given to the Master Servicer or the EMC Servicer, as applicable;
or
(ii) any failure by the Master Servicer or the EMC Servicer to observe
or perform in any material respect any other of the covenants or agreements
on the part of the Master Servicer or the EMC Servicer, as applicable,
contained in this Agreement or any breach of a representation or warranty
by the Master Servicer or the EMC Servicer, which failure or breach shall
continue unremedied for a period of 60 days (or, in the case of a breach of
its obligation to provide a Master Servicer Certification pursuant to
Section 3.18, 30 days) after the date on which Applicable Written Notice of
such failure shall have been given to the Master Servicer or the EMC
Servicer, as applicable; or
(iii) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer or the EMC Servicer and such decree or order shall have remained
in force undischarged or unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer or the EMC Servicer shall consent to the
appointment of a receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or the EMC Servicer, as applicable, or all
or substantially all of the property of the Master Servicer or the EMC
Servicer, as applicable;
(v) the Master Servicer or the EMC Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to
take advantage of, or commence a voluntary case under, any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations, or
(vi) in the case of the EMC Servicer, failure by the EMC Servicer to
duly perform, within the required time period, its obligations under
Article III of Exhibit K, which failure continues unremedied for a period
of thirty (30) days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to EMC Servicer by
the Master Servicer.
If an Event of Default shall occur, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, (i) in the
case of the Master Servicer, the Trustee may, and, at the direction of the
Holders of Certificates evidencing not less than 25% of the Voting Rights
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evidenced by the Certificates, the Trustee shall, by notice in writing to the
Master Servicer (with a copy to each Rating Agency) and (ii) in the case of the
EMC Servicer, the Master Servicer may, by notice in writing to the EMC Servicer
(with a copy to each Rating Agency), terminate all of the rights and obligations
of the Master Servicer or the EMC Servicer, as applicable, under this Agreement
and in and to the Mortgage Loans and the proceeds thereof, other than its rights
as a Certificateholder hereunder. On or after the receipt by the Master Servicer
of such written notice, all authority and power of the Master Servicer
hereunder, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the EMC Servicer, as successor Master Servicer or, if the
EMC Servicer is unable or unwilling to act as such successor Master Servicer,
the Trustee, or any successor appointed pursuant to Section 8.02 (a "Successor
Master Servicer"). Such Successor Master Servicer shall thereupon make any
Advance described in Section 5.01 hereof and payments of Compensating Interest
pursuant to Section 5.02 hereof, subject, in the case of the Trustee, to Section
8.02. The Trustee is hereby authorized and empowered to execute and deliver, on
behalf of the terminated Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
any Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any obligation
of the Master Servicer to pay amounts owed pursuant to Article IX.
The Master Servicer and the EMC Servicer each agree to cooperate with
the Trustee, and, in the case of the EMC Servicer, the Master Servicer, in
effecting the termination of the Master Servicer's or the EMC Servicer's
responsibilities and rights hereunder (including Exhibit K), including, without
limitation, the transfer to the applicable Successor Master Servicer or the
Master Servicer, as applicable, of all cash amounts which shall at the time be
credited to the Master Servicer Collection Account or the Protected Account
maintained pursuant to Section 1.05 of Exhibit K, as applicable, or thereafter
be received with respect to the applicable Mortgage Loans. The Trustee shall
promptly notify the Rating Agencies of the occurrence of an Event of Default
with respect to the Master Servicer actually known to a Responsible Officer of
the Trustee.
Notwithstanding any termination of the activities of the Master
Servicer or the EMC Servicer hereunder, the Master Servicer or the EMC Servicer
shall be entitled to receive, out of any late collection of a Scheduled Payment
on a Mortgage Loan that was due prior to the notice terminating the Master
Servicer's or EMC Servicer's rights and obligations as Master Servicer or
Servicer hereunder, as applicable, and received after such notice, that portion
thereof to which the Master Servicer or the EMC Service would have been entitled
pursuant to Sections 4.03 and 4.05 or Exhibit K, as applicable, and to receive
any other amounts payable to the Master Servicer or the EMC Servicer hereunder
the entitlement to which arose prior to the termination of its activities
hereunder.
Section 8.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 8.01 hereof (unless, the EMC Servicer becomes
Successor Master Servicer as specified in Section 8.01) the Trustee shall
automatically become the successor to the Master Servicer with respect to the
transactions set forth or provided for herein and after a transition period (not
to exceed 90 days), shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer by the terms and
provisions hereof and applicable law including, if applicable, the obligation to
make Advances pursuant to Section 5.01 hereof, and payments of Compensating
Interest pursuant to Section 5.02 hereof, except as otherwise provided herein.
Effective on the date of such notice of termination, as compensation therefor,
the Trustee shall be entitled to all fees, costs and expenses relating to the
Mortgage Loans that the Master Servicer would have been entitled to if it had
continued to act hereunder, provided, however, that the Trustee shall not be (i)
liable for any losses pursuant to Section 3.09 or
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Section 4.02(c) or as a result of any acts or omissions of the Master Servicer,
(ii) obligated to make Advances if it is prohibited from doing so under
applicable law, (iii) obligated to effectuate any repurchases or substitutions
of Mortgage Loans hereunder, including pursuant to Section 2.02 or 2.03 hereof,
(iv) responsible for expenses of the Master Servicer pursuant to Section 2.03 or
(v) deemed to have made any representations and warranties hereunder, including
pursuant to Section 2.03. Notwithstanding the foregoing, the Trustee may, if it
shall be unwilling to so act, or shall, if it is prohibited by applicable law
from making Advances pursuant to Section 5.01 hereof, or if it is otherwise
unable to so act, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder. Any Successor Master Servicer shall (i) be an
institution that is a Xxxxxx Mae and Xxxxxxx Mac approved seller/servicer in
good standing, that has a net worth of at least $15,000,000 and (ii) be willing
to act as successor servicer of any Mortgage Loans under any Servicing Agreement
with respect to which the original Servicer has been terminated as servicer, and
shall have executed and delivered to the Depositor and the Trustee an agreement
accepting such delegation and assignment, that contains an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Master Servicer (other than any liabilities of the Master
Servicer hereof incurred prior to termination of the Master Servicer under
Section 8.01 or as otherwise set forth herein), with like effect as if
originally named as a party to this Agreement, provided that each Rating Agency
shall have acknowledged in writing that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced as a result of such assignment and delegation. If the Trustee assumes
the duties and responsibilities of the Master Servicer in accordance with this
Section 8.02, the Trustee shall not resign as Master Servicer until a Successor
Master Servicer has been appointed and has accepted such appointment. Pending
appointment of a successor to the Master Servicer hereunder, the Trustee, unless
the Trustee is prohibited by law from so acting, shall, subject to Section 3.04
hereof, act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans or otherwise as
it and such successor shall agree; provided that no such compensation shall be
in excess of that permitted the Master Servicer hereunder. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Trustee nor any other
Successor Master Servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the Master Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
The costs and expenses of the Trustee and the Successor Master
Servicer in connection with the termination of the Master Servicer, appointment
of a Successor Master Servicer and, if applicable, any transfer of servicing,
including, without limitation, all costs and expenses associated with the
complete transfer of all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the Trustee to correct
any errors or insufficiencies in the servicing data or otherwise to enable the
Trustee or the Successor Master Servicer to service the related Mortgage Loans
properly and effectively, to the extent not paid by the terminated Master
Servicer, shall be payable to the Trustee and the Successor Master Servicer
pursuant to Section 9.05.
Any successor to the Master Servicer as successor servicer under any
Servicing Agreement shall give notice to the applicable Mortgagors of such
change of servicer and shall, during the term of its service as successor
servicer maintain in force the policy or policies that the Master Servicer is
required to maintain pursuant to Section 7.06.
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Section 8.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default with
respect to the Master Servicer, the Trustee shall transmit by mail to all
Certificateholders notice of each such Event of Default hereunder actually known
to a Responsible Officer of the Trustee, unless such Event of Default shall have
been cured or waived.
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ARTICLE IX.
CONCERNING THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01. Duties of Trustee and Securities Administrator.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred, and
the Securities Administrator each undertake to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Trustee
and the Securities Administrator, respectively. If an Event of Default has
occurred and has not been cured or waived, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement, and the same degree of
care and skill in their exercise, as a prudent person would exercise under the
circumstances in the conduct of such Person's own affairs.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which are specifically
required to be furnished to the Trustee or the Securities Administrator pursuant
to any provision of this Agreement, the Trustee or the Securities Administrator,
respectively, shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that neither the Trustee nor the
Securities Administrator shall be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer; provided, further, that neither the
Trustee nor the Securities Administrator shall be responsible for the accuracy
or verification of any calculation provided to it pursuant to this Agreement.
(c) On each Distribution Date, the Paying Agent or, if the Paying
Agent shall be the Trustee, the Trustee, shall make monthly distributions and
the final distribution to the Certificateholders from funds in the Distribution
Account as provided in Sections 5.04 and 10.01 herein based solely on the
applicable Remittance Report.
(d) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred with
respect to the Trustee and at all times with respect to the Securities
Administrator, the duties and obligations of the Trustee and the Securities
Administrator shall be determined solely by the express provisions of this
Agreement, neither the Trustee nor the Securities Administrator shall be
liable except for the performance of their respective duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee or the Securities Administrator and, in the absence of bad faith on
the part of the Trustee or the Securities Administrator, respectively, the
Trustee or the Securities Administrator, respectively, may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trustee or the Securities Administrator, respectively, and conforming to
the requirements of this Agreement;
(ii) Neither the Trustee nor the Securities Administrator shall be
liable for an error of judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee or an officer or officers of the
Securities Administrator, respectively, unless it shall be proved that the
Trustee or the Securities Administrator, respectively, was negligent in
ascertaining the pertinent facts;
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(iii) Neither the Trustee nor the Securities Administrator shall be
liable with respect to any action taken, suffered or omitted to be taken by
it in good faith in accordance with the directions of the Holders of
Certificates evidencing not less than 25% of the aggregate Voting Rights of
the Certificates, if such action or non-action relates to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee or the Securities Administrator, respectively, or exercising any
trust or other power conferred upon the Trustee or the Securities
Administrator, respectively, under this Agreement;
(iv) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee shall have actual knowledge thereof. In
the absence of such notice, the Trustee may conclusively assume there is no
such default or Event of Default;
(v) The Trustee shall not in any way be liable by reason of any
insufficiency in any Account held by or in the name of Trustee unless it is
determined by a court of competent jurisdiction that the Trustee's gross
negligence or willful misconduct was the primary cause of such
insufficiency (except to the extent that the Trustee is obligor and has
defaulted thereon);
(vi) Anything in this Agreement to the contrary notwithstanding, in no
event shall the Trustee or the Securities Administrator be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee or the
Securities Administrator, respectively, has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
(vii) None of the Securities Administrator, the Master Servicer, any
Servicer, the Seller, the Depositor, the Custodian or the Trustee shall be
responsible for the acts or omissions of the others, it being understood
that this Agreement shall not be construed to render them partners, joint
venturers or agents of one another.
Neither the Trustee nor the Securities Administrator shall be required to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement shall in
any event require the Trustee or the Securities Administrator to perform, or be
responsible for the manner of performance of, any of the obligations of the
Master Servicer hereunder or under the applicable Servicing Agreements.
(e) All funds received by the Trustee (if any), the Master Servicer
and the Paying Agent and required to be deposited in the Distribution Account
pursuant to this Agreement will be promptly so deposited.
Section 9.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
(a) Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may rely and shall be
protected in acting or refraining from acting in reliance on any resolution
or certificate of the Seller or the Master Servicer or any Servicer, any
certificates of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(ii) The Trustee and the Securities Administrator may consult with
counsel or accountants and any advice of such counsel or accountants or any
Opinion of Counsel shall be full and complete authorization and protection
with respect to any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement, other than its obligation to give notices pursuant to
this Agreement, or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Securities
Administrator, as applicable, reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby.
Nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge (which has not been
cured or waived), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in the
conduct of his own affairs;
(iv) Prior to the occurrence of an Event of Default hereunder and
after the curing or waiver of all Events of Default which may have occurred
with respect to the Trustee and at all times with respect to the Securities
Administrator, neither the Trustee nor the Securities Administrator shall
be liable in its individual capacity for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement;
(v) Neither the Trustee nor the Securities Administrator shall be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates evidencing not
less than 25% of the aggregate Voting Rights of the Certificates and
provided that the payment within a reasonable time to the Trustee or the
Securities Administrator, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee or the Securities Administrator, as
applicable, reasonably assured to the Trustee or the Securities
Administrator, as applicable, by the security afforded to it by the terms
of this Agreement. The Trustee or the Securities Administrator may require
reasonable indemnity against such expense or liability as a condition to
taking any such action. The reasonable expense of every such examination
shall be paid by the Certificateholders requesting the investigation;
(vi) The Trustee and the Securities Administrator may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or through Affiliates, agents or attorneys; provided, however,
that the Trustee may not appoint any agent other than the Custodian to
perform its custodial functions with respect to the Mortgage Files or any
paying agent other than the Securities Administrator to perform any paying
agent functions under this Agreement without the express written consent of
the Master Servicer, which consent will not be unreasonably withheld or
delayed. Neither the Trustee nor the Securities Administrator shall be
liable or responsible for the misconduct or negligence of any of the
Trustee's or the Securities Administrator's agents or attorneys or a
custodian or paying agent appointed hereunder by the Trustee or the
Securities Administrator with due care and, when required, with the consent
of the Master Servicer;
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(vii) Should the Trustee or the Securities Administrator deem the
nature of any action required on its part, other than a payment or transfer
under Section 4.02 hereof, to be unclear, the Trustee or the Securities
Administrator, respectively, may require prior to such action that it be
provided by the Depositor with reasonable further instructions; the right
of the Trustee or the Securities Administrator to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and
neither the Trustee nor the Securities Administrator shall be accountable
for other than its gross negligence or willful misconduct in the
performance of any such act;
(viii) Neither the Trustee nor the Securities Administrator shall be
required to give any bond or surety with respect to the execution of the
trust created hereby or the powers granted hereunder, except as provided in
Subsection 9.07; and
(ix) Neither the Trustee nor the Securities Administrator shall have
any duty to conduct any affirmative investigation as to the occurrence of
any condition requiring the repurchase of any Mortgage Loan by any Person
pursuant to this Agreement, or the eligibility of any Mortgage Loan for
purposes of this Agreement.
Section 9.03. Trustee and Securities Administrator Not Liable for
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
signature and authentication of the Trustee on the Certificates) shall be taken
as the statements of the Depositor, and neither the Trustee nor the Securities
Administrator shall have any responsibility for their correctness. Neither the
Trustee nor the Securities Administrator makes any representations as to the
validity or sufficiency of the Certificates (other than the signature and
authentication of the Trustee on the Certificates) or with respect to any
Mortgage Loan except as expressly provided in Sections 2.02 and 2.06 hereof;
provided, however, that the foregoing shall not relieve the Custodian of the
obligation to review the Mortgage Files pursuant to Sections 2.02 and 2.05 and
the Custodial Agreement. The Trustee's signature and authentication (or
authentication by its agent) on the Certificates shall be solely in its capacity
as Trustee and shall not constitute the Certificates an obligation of the
Trustee in any other capacity. Neither the Trustee or the Securities
Administrator shall be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor with respect to the
Mortgage Loans. Subject to the provisions of Section 2.06, neither the Trustee
nor the Securities Administrator shall be responsible for the legality or
validity of this Agreement or any document or instrument relating to this
Agreement, the validity of the execution of this Agreement or of any supplement
hereto or instrument of further assurance, or the validity, priority, perfection
or sufficiency of the security for the Certificates issued hereunder or intended
to be issued hereunder. Neither the Trustee nor the Securities Administrator
shall at any time have any responsibility or liability for or with respect to
the legality, validity and enforceability of any Mortgage or any Mortgage Loan,
or the perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. Neither the Trustee nor the Securities
Administrator shall have any responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to record this Agreement.
Section 9.04. Trustee and Securities Administrator May Own Certificates.
Each of the Trustee and the Securities Administrator in its individual
capacity or in any capacity other than as Trustee or Securities Administrator
hereunder may become the owner or pledgee of
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any Certificates with the same rights it would have if it were not the Trustee
or the Securities Administrator, as applicable, and may otherwise deal with the
parties hereto.
Section 9.05. Trustee's and Securities Administrator's Fees and Expenses.
The Trustee and the Securities Administrator shall be entitled to the
Trustee Fee and the Securities Administrator Fee, respectively, which shall be
paid by the Master Servicer out of funds received by it hereunder in respect of
the Master Servicing Fee. In addition, the Trustee and the Securities
Administrator shall be indemnified and held harmless by the Trust Fund (and
accordingly will be entitled to recover from the Master Servicer Collection
Account pursuant to Section 4.03(b) and from comparable funds in a comparable
order provided to the Trustee and held in the Distribution Account) for all
liabilities, losses, costs, reasonable out-of-pocket expenses, disbursements and
advances and the expenses of the Trustee and the Securities Administrator,
respectively, in connection with the performance of its duties and obligations
and the exercise of its rights under this Agreement, (including exercise of such
party's rights under the Assumption Agreements and the Servicing Agreements),
the Custodial Agreement, the Certificates, the Mortgage Loans, any Event of
Default, any breach of this Agreement or any claim or legal action (including
any pending or threatened claim or legal action) incurred or made by the Trustee
in the administration of the trusts hereunder or the Securities Administrator,
respectively, (including the reasonable compensation, expenses and disbursements
of its counsel) except any such liability, loss, cost, expense, disbursement or
advance as may arise from its negligence, bad faith or intentional misconduct.
The Trust Fund further agrees to indemnify and hold harmless the Trustee for and
against any loss, liability or expense arising out of, or in connection with,
the provisions set forth in the final paragraph of Section 2.01 hereof,
including without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigation and defending itself
against any claim, action or proceeding, pending or threatened, relating to the
provisions of such paragraph. If such funds are insufficient therefor, any such
insufficiency shall be recoverable from the Depositor. Such compensation and
reimbursement obligation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust. The indemnification set
forth herein shall survive the resignation or removal of the Trustee or the
Securities Administrator and the termination of this Agreement.
Section 9.06. Eligibility Requirements for Trustee, Securities
Administrator and Paying Agent.
The Trustee, the Securities Administrator and the Paying Agent and any
successor of any of the foregoing, shall during the entire duration of this
Agreement be a state bank or trust company or a national banking association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus and undivided profits of at least $40,000,000 or,
in the case of a successor Trustee, $50,000,000, subject to supervision or
examination by federal or state authority and, in the case of the Trustee, rated
"BBB" or higher by S&P and "BBB/F2" or higher by Fitch, with respect to any
outstanding long-term unsecured unsubordinated debt, and, in the case of a
successor Trustee, successor Securities Administrator or successor Paying Agent
other than pursuant to Section 9.10, rated in one of the two highest long-term
debt categories of, or otherwise acceptable to, each of the Rating Agencies. The
Trustee shall not be an Affiliate of the Master Servicer. If the Trustee
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 9.06 the combined capital and surplus of such entity
shall be deemed to be its total equity capital (combined capital and surplus) as
set forth in its most recent report of condition so published. In case at any
time the Trustee, Securities Administrator or Paying Agent, as applicable, shall
cease to be eligible in accordance with the provisions of this Section 9.06, the
Trustee, Securities Administrator or Paying Agent shall resign immediately in
the manner and with the effect specified in Section 9.08.
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In addition, the Securities Administrator (i) may not be an
Originator, Master Servicer, Servicer, the Depositor or an affiliate of the
Depositor unless the Securities Administrator is in an institutional trust
department of the Securities Administrator, (ii) must be authorized to exercise
corporate trust powers under the laws of its jurisdiction of organization, and
(iii) must be rated at least "A/F1" by Fitch, if Fitch is a Rating Agency, or
the equivalent rating by S&P. The Trustee shall notify the Rating Agencies of
any change of Securities Administrator.
Section 9.07. Insurance.
The Trustee, Securities Administrator and Paying Agent, at their own
expense, shall at all times maintain and keep in full force and effect: (i)
fidelity insurance, (ii) theft of documents insurance and (iii) forgery
insurance (which may be collectively satisfied by a "Financial Institution Bond"
and/or a "Bankers' Blanket Bond"). All such insurance shall be in amounts, with
standard coverage and subject to deductibles, as are customary for insurance
typically maintained by banks or their affiliates which act as custodians for
investor-owned mortgage pools. A certificate of an officer of the Trustee or the
Securities Administrator as to the Trustee's or the Securities Administrator's,
respectively, compliance with this Section 9.07 shall be furnished to any
Certificateholder upon reasonable written request.
Section 9.08. Resignation and Removal of Trustee and Securities
Administrator.
The Trustee and the Securities Administrator may at any time resign
and be discharged from the Trust hereby created by giving written notice thereof
to the Depositor, the Seller, the Securities Administrator (or the Trustee, if
the Securities Administrator resigns) and the Master Servicer, with a copy to
the Rating Agencies. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee or successor securities
administrator, as applicable, by written instrument, in triplicate, one copy of
which instrument shall be delivered to each of the resigning trustee or
securities administrator, as applicable, and the successor trustee or securities
administrator, as applicable. If no successor trustee or successor securities
administrator shall have been so appointed and have accepted appointment within
30 days after the giving of such notice of resignation, the resigning Trustee or
Securities Administrator may petition any court of competent jurisdiction for
the appointment of a successor trustee or securities administrator.
If at any time (i) the Trustee, Securities Administrator or Paying
Agent shall cease to be eligible in accordance with the provisions of Section
9.06 hereof and shall fail to resign after written request thereto by the
Depositor, (ii) the Trustee, Securities Administrator or Paying Agent shall
become incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee, Securities Administrator or Paying Agent or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee, the Securities Administrator or Paying Agent or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, or
(iii)(A) a tax is imposed with respect to the Trust Fund by any state in which
the Trustee or the Securities Administrator or the Trust Fund is located, (B)
the imposition of such tax would be avoided by the appointment of a different
trustee or securities administrator and (C) the Trustee or the Securities
Administrator, as applicable fails to indemnify the Trust Fund against such tax,
then the Depositor or the Master Servicers may remove the Trustee, Securities
Administrator or Paying Agent, as applicable, and appoint a successor trustee,
successor securities administrator or successor paying agent, as applicable, by
written instrument, in multiple copies, a copy of which instrument shall be
delivered to the Trustee, the Securities Administrator, the Master Servicer, the
Paying Agent and the successor trustee ,successor securities administrator or
successor paying agent, as applicable.
The Holders evidencing at least 51% of the Voting Rights of each Class
of Certificates may at any time remove the Trustee, Securities Administrator or
Paying Agent and appoint a successor
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trustee, securities administrator or paying agent by written instrument or
instruments, in multiple copies, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered by the successor trustee or successor securities administrator to
the Master Servicer, the Trustee, Securities Administrator or Paying Agent so
removed and the successor trustee or securities administrator so appointed.
Notice of any removal of the Trustee, Securities Administrator or Paying Agent
shall be given to each Rating Agency by the Trustee or successor trustee. In the
event that the fee payable to a successor Trustee exceeds the Trustee Fee, any
such excess shall be an obligation of the Trust.
Any resignation or removal of the Trustee, Securities Administrator or
Paying Agent and appointment of a successor trustee or securities administrator
pursuant to any of the provisions of this Section 9.08 shall become effective
upon acceptance of appointment by the successor trustee or securities
administrator as provided in Section 9.09 hereof.
Section 9.09. Successor Trustee, Securities Administrator or Successor
Paying Agent.
Any successor trustee, securities administrator or paying agent
appointed as provided in Section 9.08 hereof shall execute, acknowledge and
deliver to the Depositor and to its predecessor trustee, predecessor securities
administrator or predecessor paying agent, as applicable, and the Master
Servicer an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee, securities administrator or
paying agent shall become effective and such successor trustee, securities
administrator or paying agent, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with the like effect as if originally named as
trustee or securities administrator herein.
No successor trustee, securities administrator or paying agent shall
accept appointment as provided in this Section 9.09 unless at the time of such
acceptance such successor trustee, securities administrator or paying agent
shall be eligible under the provisions of Section 9.07 hereof and its
appointment shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee, securities
administrator or paying agent as provided in this Section 9.09, the successor
trustee, securities administrator or paying agent shall mail notice of the
succession of such trustee or securities administrator hereunder to all Holders
of Certificates. If the successor trustee, securities administrator or paying
agent fails to mail such notice within ten days after acceptance of appointment,
the Depositor shall cause such notice to be mailed at the expense of the Trust
Fund.
Section 9.10. Merger or Consolidation of Trustee, Securities Administrator
or Paying Agent.
Any corporation, state bank or national banking association into which
the Trustee, Securities Administrator or Paying Agent may be merged or converted
or with which it may be consolidated or any corporation, state bank or national
banking association resulting from any merger, conversion or consolidation to
which the Trustee, Securities Administrator or Paying Agent shall be a party, or
any corporation, state bank or national banking association succeeding to
substantially all of the corporate trust business of the Trustee or of the
business of the Securities Administrator or Paying Agent, shall be the successor
of the Trustee, Securities Administrator or Paying Agent hereunder, provided
that such entity shall be eligible under the provisions of Section 9.06 hereof
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
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Section 9.11. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing any Mortgage Note may at the
time be located, the Master Servicer and the Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 9.11, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 9.06 and
no notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 9.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this
Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as a Successor Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act
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under or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign or
be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
Section 9.12. Tax Matters.
It is intended that each of REMIC I and REMIC II shall constitute, and
that the affairs of the Trust Fund shall be conducted so that each REMIC formed
hereunder qualifies as, a "real estate mortgage investment conduit" as defined
in and in accordance with the REMIC Provisions. In furtherance of such
intention, the Securities Administrator covenants and agrees that it shall act
as agent (and the Securities Administrator is hereby appointed to act as agent)
on behalf of the Trust Fund. The Trustee and/or the Securities Administrator, as
agent on behalf of the Trust Fund, shall do or refrain from doing, as
applicable, the following: (a) the Securities Administrator shall prepare and
file, or cause to be prepared and filed, in a timely manner, U.S. Real Estate
Mortgage Investment Conduit Income Tax Returns (Form 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file or cause to be
prepared and filed with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to each such REMIC containing such information and at the times and
in the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish or cause to be furnished to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby; (b) the Securities Administrator shall
apply for an employer identification number with the Internal Revenue Service
via a Form SS-4 or other comparable method for each REMIC that is or becomes a
taxable entity, and within thirty days of the Closing Date, furnish or cause to
be furnished to the Internal Revenue Service, on Forms 8811 or as otherwise may
be required by the Code, the name, title, address, and telephone number of the
person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code for the Trust Fund; (c) the Trustee shall make or cause to
be made elections, on behalf of each REMIC formed hereunder to be treated as a
REMIC on the federal tax return of such REMIC for its first taxable year (and,
if necessary, under applicable state law); (d) the Securities Administrator
shall prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and to the Internal Revenue Service and, if necessary, state
tax authorities, all information returns and reports as and when required to be
provided to them in accordance with the REMIC Provisions, including without
limitation, the calculation of any original issue discount using the Prepayment
Assumption; (e) the Securities Administrator shall provide information necessary
for the computation of tax imposed on the transfer of a Residual Certificate to
a Person that is not a Permitted Transferee, or an agent (including a broker,
nominee or other middleman) of a Person that is not a Permitted Transferee, or a
pass-through entity in which a Person that is not a Permitted Transferee is the
record holder of an interest (the reasonable cost of computing and furnishing
such information may be charged to the Person liable for such tax) or to the
IRS, and the Trustee shall forward that information to the requesting party in
accordance with Treasury Regulation ss. 1.860E-2(a)(5); (f) each of the
Securities Administrator and the Trustee shall, to the extent under its control,
conduct the affairs of the Trust Fund at all times that any Certificates are
outstanding so as to maintain the status of each REMIC formed hereunder as a
REMIC under the REMIC Provisions; (g) neither the Trustee nor the Securities
Administrator shall knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any REMIC
formed hereunder; (h) the Trustee shall pay, from the sources specified in the
second to last paragraph of this Section 9.12, as directed by the Securities
Administrator in its Remittance Report, the amount of any federal, state and
local taxes, including prohibited transaction taxes as described below, imposed
on any REMIC formed hereunder prior to the termination of the Trust Fund when
and as the same shall be due and payable (but such obligation shall not prevent
the Trustee, the Securities Administrator at the written request of the Trustee,
or any other
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appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Securities Administrator from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings); (i) the
Trustee shall sign or cause to be signed federal, state or local income tax or
information returns or any other document prepared by the Securities
Administrator pursuant to this Section 9.12 requiring a signature thereon by the
Trustee; (j) the Securities Administrator shall maintain records relating to
each REMIC formed hereunder including but not limited to the income, expenses,
assets and liabilities of each such REMIC and adjusted basis of the Trust Fund
property determined at such intervals as may be required by the Code, as may be
necessary to prepare the foregoing returns, schedules, statements or
information; and (k) as and when necessary and appropriate, the Trustee, or at
the written request of the Trustee, the Securities Administrator, shall
represent the Trust Fund in any administrative or judicial proceedings relating
to an examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of any REMIC formed hereunder,
enter into settlement agreements with any governmental taxing agency, extend any
statute of limitations relating to any tax item of the Trust Fund, and otherwise
act on behalf of each REMIC formed hereunder in relation to any tax matter
involving any such REMIC.
In order to enable each of the Trustee and the Securities
Administrator to perform its duties as set forth herein, the Depositor shall
provide, or cause to be provided, to the Trustee or the Securities Administrator
within 10 days after the Closing Date all information or data that the Trustee
or the Securities Administrator requests in writing and determines to be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flows of the Certificates and the Mortgage Loans.
Thereafter, the Depositor shall provide to the Trustee or the Securities
Administrator promptly upon written request therefor, any such additional
information or data that the Trustee or the Securities Administrator may, from
time to time, request in order to enable the Trustee or the Securities
Administrator to perform its duties as set forth herein. The Depositor hereby
indemnifies each of Trustee and the Securities Administrator for any losses,
liabilities, damages, claims or expenses of the Trustee or the Securities
Administrator arising from any errors or miscalculations of the Trustee or the
Securities Administrator, as applicable, that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee or the Securities Administrator, as applicable, on a timely
basis, which indemnification shall survive the resignation or removal of the
Trustee, the Master Servicer, the EMC Servicer or the Securities Administrator
and the termination of this Agreement.
In the event that any tax is imposed on "prohibited transactions" of
either REMIC I or REMIC II as defined in Section 860F(a)(2) of the Code, on the
"net income from foreclosure property" of the Trust Fund as defined in Section
860G(c) of the Code, on any contribution to either REMIC I or REMIC II after the
startup day pursuant to Section 860G(d) of the Code, or any other tax is
imposed, including, without limitation, any federal, state or local tax or
minimum tax imposed upon any of REMIC I, REMIC II or the Trust Fund, and is not
paid as otherwise provided for herein, such tax shall be paid by (i) the Trustee
or the Securities Administrator, if any such other tax arises out of or results
from a breach by the Trustee or the Securities Administrator, respectively, of
any of its obligations under this Agreement, (ii) any party hereto (other than
the Trustee or the Securities Administrator) to the extent any such other tax
arises out of or results from a breach by such other party of any of its
obligations under this Agreement or (iii) in all other cases, or in the event
that any liable party hereto fails to honor its obligations under the preceding
clauses (i) or (ii), any such tax will be paid first with amounts otherwise to
be distributed to the Class R Certificateholders and the Class B-IO
Certificateholders (pro rata based on the amounts to be distributed), and second
with amounts otherwise to be distributed to all other Certificateholders in the
following order of priority: first, to the Class B Certificates of both Groups
(pro rata based on amounts to be distributed), second, to the Class M
Certificates of both Groups (pro rata based on amounts to be distributed) and
third, to the Class A Certificates of both Groups (pro rata based on amounts to
be distributed). Notwithstanding anything to the contrary contained herein, to
the extent
107
that such tax is payable by the Holder of any Certificates, the Trustee is
hereby authorized to retain on any Distribution Date, from the Holders of the
Class R Certificates (and, if necessary, second, from the Holders of the other
Certificates in the priority specified in the preceding sentence), funds
otherwise distributable to such Holders in an amount sufficient to pay such
tax. Following written notification to the Securities Administrator by the
Trustee of any amount payable out of distributions to the Certificateholders
pursuant to the preceding two sentences, the Securities Administrator shall
include in its Remittance Report instructions as to distributions to such
parties taking into account the priorities described in the second preceding
sentence. The Securities Administrator, on written request by the Trustee,
agrees to promptly notify in writing the party liable for any such tax of the
amount thereof and the due date for the payment thereof.
The Trustee and the Securities Administrator each agree that, in the
event it should obtain any information necessary for the other party to perform
its obligations pursuant to this Section 9.12, it will promptly notify and
provide such information to such other party. Notwithstanding anything in this
Agreement to the contrary, the Trustee agrees that, in the event that the
Trustee obtains actual knowledge that the Securities Administrator has breached
any of its obligations pursuant to this Section 9.12, the Trustee shall perform
such obligations on its behalf to the extent that the Trustee possesses all
documents necessary to so perform and receives reasonable compensation therefor,
provided, however, that the Trustee shall not be liable for any losses resulting
from any such breach.
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ARTICLE X.
TERMINATION
Section 10.01. Termination upon Liquidation or Repurchase of the Mortgage
Loans.
Subject to Section 10.03, the obligations and responsibilities of the
Depositor, the Master Servicer, the EMC Servicer, the Securities Administrator,
the Paying Agent, the Seller and the Trustee created hereby with respect to a
Group shall terminate upon the earlier of (a) the purchase by the Depositor of
all of the Mortgage Loans (and REO Properties) remaining in the Trust Fund with
respect to the related Group at the price equal to the sum of (i) 100% of the
Stated Principal Balance of each Mortgage Loan (other than in respect of REO
Property in such Group), (ii) accrued interest thereon at the applicable
Mortgage Rate, (iii) the appraised value of any REO Property in such Group (up
to the Stated Principal Balance of the related Mortgage Loan), such appraisal to
be conducted by an appraiser mutually agreed upon by the EMC Servicer and the
Securities Administrator and (iv) unreimbursed out-of pocket costs of the
related Servicer or Master Servicer, including unreimbursed servicing advances
and the principal portion of any unreimbursed Advances, made on the related
Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Trustee and the Securities Administrator
payable pursuant to Section 9.05 and (vi) any unreimbursed costs and expenses of
the Custodian payable pursuant to the Custodial Agreement and (b) the later of
(i) the maturity or other liquidation (or any Advance with respect thereto) of
the last Mortgage Loan remaining in the Trust Fund and the disposition of all
REO Property, and (ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement, as applicable. In
no event shall the trusts created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
Principal Balance of all of the Mortgage Loans in the related Group.
Section 10.02. Final Distribution on the Certificates.
If on any Determination Date, (i) the Master Servicer determines that
there are no Outstanding Mortgage Loans and no other funds or assets in a Group
other than the funds in the Master Servicer Collection Account, the Master
Servicer shall direct the Securities Administrator to send a final distribution
notice promptly to each related Certificateholder or (ii) the Securities
Administrator determines that a Class of Certificates shall be retired after a
final distribution on such Class, the Securities Administrator shall notify the
Certificateholders within five (5) Business Days after such Determination Date
that the final distribution in retirement of such Class of Certificates is
scheduled to be made on the immediately following Distribution Date. Any final
distribution made pursuant to the immediately preceding sentence will be made
only upon presentation and surrender of the related Certificates at the
Corporate Trust Office of the Certificate Registrar. If the Depositor elects to
terminate a Group pursuant to Section 10.01, on or before the Distribution Date
occurring in the month preceding the month in which notice is to be mailed to
the Certificateholders, the Depositor shall notify the Securities Administrator,
the Custodian, the Trustee, the Securities Administrator, the Paying Agent and
the Master Servicer of the date that the Depositor intends to terminate the
Group and the Depositor shall provide the EMC Servicer, the Securities
Administrator, the Paying Agent, the Custodian, the Master Servicer and the
Trustee with the applicable repurchase price of the Mortgage Loans and REO
Properties
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of such Group serviced and administered by the Master Servicer. The EMC Servicer
shall remit the Mortgage Loan Repurchase Price to the Paying Agent for deposit
in the Distribution Account on the Business Day immediately preceding the
Distribution Date on which such Optional Termination by the EMC Servicer will
be effected.
Provided that timely notice has been received, the Securities
Administrator shall give notice of any termination of a Group, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation. To the extent reasonably
practical, such notice shall be given by letter mailed not earlier than the 1st
day and no later than the 15th day of the month of such final distribution and
shall specify: (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Securities
Administrator will give such notice to each Rating Agency at the time such
notice is given to Certificateholders.
In the event such notice is given, the Master Servicer shall cause all
funds in the Master Servicer Collection Account to be remitted to the Paying
Agent for deposit in the Distribution Account on the Business Day prior to the
applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit with respect to the Trust
Fund and the receipt by the Trustee of a Request for Release therefor, the
Trustee shall promptly release to the EMC Servicer or its designee the Mortgage
Files for the Mortgage Loans, and any documents necessary to transfer any REO
Property.
Upon presentation and surrender of the Certificates, the Paying Agent
shall cause to be distributed to Certificateholders of each Class, based on the
applicable Remittance Report for such Distribution Date, the amounts allocable
to such Certificates held in the Distribution Account in the order and priority
set forth in Section 5.04 hereof on the final Distribution Date and in
proportion to their respective Percentage Interests.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund that remain subject hereto.
Section 10.03. Additional Termination Requirements.
(a) Upon exercise by the Depositor of its purchase option with respect
to both Groups as provided in Section 10.01, the Trust Fund shall be terminated
in accordance with the following additional requirements, unless each of the
Trustee and the Securities Administrator have been supplied with an Opinion of
Counsel, at the expense of the EMC Servicer, to the effect that the failure of
the Trust Fund to comply with the requirements of this Section 10.03 will not
(i) result in the imposition of taxes on
110
"prohibited transactions" of a REMIC, or (ii) cause a REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(1) The Depositor shall establish a 90-day liquidation period and
notify the Trustee and Securities Administrator thereof, and the Securities
Administrator shall in turn specify the first day of such period in a statement
attached to each of REMIC I and REMIC II's Tax Return pursuant to Treasury
Regulation Section 1.860F-1. The Depositor shall satisfy all the requirements of
a qualified liquidation under Section 860F of the Code and any regulations
thereunder, as evidenced by an Opinion of Counsel obtained at the expense of the
Depositor;
(2) During such 90-day liquidation period, and at or prior to the time
of making the final payment on the Certificates, the EMC Servicer, acting as
agent of the Trustee, shall sell all of the assets of REMIC I and REMIC II for
cash; and
(3) At the time of the making of the final payment on the
Certificates, the Securities Administrator as agent for the Trustee shall
distribute or credit, or cause to be distributed or credited, to the Holders of
the Residual Certificates all cash on hand (other than cash retained to meet
claims), and REMIC I and REMIC II shall terminate at that time.
(b) By their acceptance of the Certificates, the Holders thereof
hereby authorize the Depositor to specify the 90-day liquidation period for
REMIC I and REMIC II, which authorization shall be binding upon all successor
Certificateholders.
(c) The Securities Administrator as agent for each REMIC hereby agrees
to adopt and sign such a plan of complete liquidation upon the written request
of the Depositor, and the receipt of the Opinion of Counsel referred to in
Section 10.03(a)(1) and to take such other action in connection therewith as may
be reasonably requested by the Depositor.
111
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
This Agreement may be amended from time to time by parties hereto,
without the consent of any of the Certificateholders to cure any ambiguity, to
correct or supplement any provisions herein (including to give effect to the
expectations of investors), to change the manner in which the Master Servicer
Collection Account, or the Protected Account maintained by the EMC Servicer is
maintained, to conform the terms hereof to the disclosure in the Prospectus
Supplement or to make such other provisions with respect to matters or questions
arising under this Agreement as shall not be inconsistent with any other
provisions herein if such action shall not, as evidenced by an Opinion of
Counsel addressed to the Trustee, adversely affect in any material respect the
interests of any Certificateholder; provided that any such amendment shall be
deemed not to adversely affect in any material respect the interests of the
Certificateholders and no such Opinion of Counsel shall be required if the
Person requesting such amendment obtains a letter from each Rating Agency
stating that such amendment would not result in the downgrading or withdrawal of
the respective ratings then assigned to the Certificates.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the parties hereto may at any time and from time to time
amend this Agreement to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or appropriate to maintain the qualification
of each of REMIC I and REMIC II as a REMIC under the Code or to avoid or
minimize the risk of the imposition of any tax on either REMIC I or REMIC II
pursuant to the Code that would be a claim against either REMIC I or REMIC II at
any time prior to the final redemption of the Certificates, provided that the
Trustee has been provided an Opinion of Counsel addressed to the Trustee, which
opinion shall be an expense of the party requesting such amendment but in any
case shall not be an expense of the Trustee or the Securities Administrator, to
the effect that such action is necessary or appropriate to maintain such
qualification or to avoid or minimize the risk of the imposition of such a tax.
This Agreement may also be amended from time to time by the parties
hereto and the Holders of each Class of Certificates affected thereby evidencing
over 50% of the Voting Rights of such Class or Classes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii) cause
either REMIC I or REMIC II's REMIC elections to fail to qualify or (iii) reduce
the aforesaid percentages of Certificates of each Class the Holders of which are
required to consent to any such amendment without the consent of the Holders of
all Certificates of such Class then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel addressed to the Trustee, which opinion shall be
an expense of the party requesting such amendment but in any case shall not be
an expense of the Trustee or the Securities Administrator, to the effect that
such amendment will not (other than an amendment pursuant to clause (ii) of, and
in accordance with, the preceding paragraph) cause the imposition of any tax on
REMIC I or REMIC II or the Certificateholders or cause REMIC I or REMIC II's
REMIC elections to fail to qualify at any time that any Certificates are
outstanding. Further, nothing in this Agreement shall require the Trustee to
enter into an amendment without receiving an Opinion of Counsel, addressed to
and satisfactory to the Trustee that (i) such
112
amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement (including any consent of the
applicable Certificateholders) have been complied with.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder and
each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Section 11.02. Recordation of Agreement; Counterparts.
To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all of the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere. The Master Servicer shall effect such recordation at the
Trust's expense upon the request in writing of a Certificateholder, but only if
such direction is accompanied by an Opinion of Counsel (provided at the expense
of the Certificateholder requesting recordation) to the effect that such
recordation would materially and beneficially affect the interests of the
Certificateholders or is required by law.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW WHICH THE
PARTIES HERETO EXPRESSLY RELY UPON IN THE CHOICE OF SUCH LAW AS THE GOVERNING
LAW HEREUNDER).
Section 11.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance of
the Mortgage Notes, Mortgages, assignments of Mortgages, title insurance
policies and any modifications, extensions and/or assumption agreements and
private mortgage insurance policies relating to the Mortgage Loans by the Seller
to the Depositor, and by the Depositor to the Trustee be, and be construed as,
an absolute sale thereof to the Depositor or the Trustee, as applicable. It is,
further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Seller to the Depositor, or by the Depositor to the
Trustee. However, in the event that, notwithstanding the intent of the parties,
such assets are held to be the property of the Seller or the Depositor, as
applicable, or if for any other reason this Agreement is held
113
or deemed to create a security interest in such assets, then (i) this Agreement
shall be deemed to be a security agreement within the meaning of the Uniform
Commercial Code of the State of New York, (ii) each conveyance provided for in
this Agreement shall be deemed to be an assignment and a grant by the Seller or
the Depositor, as applicable , for the benefit of the Certificateholders, of a
security interest in all of the assets that constitute the Trust Fund, whether
now owned or hereafter acquired, (iii) the possession by the Trustee or the
Custodian of the Mortgage Notes and such other items of property as may be
perfected by possession pursuant to Section 9-313 (or comparable provision) of
the applicable Uniform Commercial Code for purposes of effecting the security
interest pursuant to such section of the applicable Uniform Commercial Code and
other applicable law. Any assignment of the Seller and the Depositor shall also
be deemed to be an assignment of any security interest created hereby.
Each of the Seller and the Depositor for the benefit of the
Certificateholders shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the assets of the Trust Fund, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of the
Agreement.
Section 11.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of the Master Servicer, the
Securities Administrator or the Trustee and the appointment of any
successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.02, 2.03, 3.12 and 10.01; and
(v) The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly furnish
to each Rating Agency copies of the following:
(i) Each report to Certificateholders described in Section 5.05, if
requested by such Rating Agency;
(ii) Each annual statement as to compliance described in Section 3.16;
and
(iii) Each annual independent public accountants' servicing report
described in Section 3.17.
(c) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered at or mailed by
registered mail, return receipt requested, postage prepaid, or by recognized
overnight courier, or by facsimile transmission to a number provided by the
appropriate party if receipt of such transmission is confirmed to 1) in the case
of the Depositor, Bear Xxxxxxx Asset Backed Securities I LLC, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Counsel, or such other
address as may be hereafter furnished to the other parties hereto
113
by the Depositor in writing; 2) in the case of the Seller or the EMC Servicer,
EMC Mortgage Corporation, 000 Xxxxxx Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000,
Attention: Xxxxxx Xxxxx or such other address as may be hereafter furnished to
the other parties hereto by the EMC Servicer in writing; 3) in the case of the
Trustee, at the Corporate Trust Office or such other address as the Trustee may
hereafter furnish to the other parties hereto; 4) in the case of the Master
Servicer, the Securities Administrator, the Paying Agent, the Certificate
Registrar or the Custodian, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 (or, in the
case of overnight delivery, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 21045),
in either case: Attention: BSABS 2005-SD2; or such other address as may be
hereafter furnished to the other parties hereto by the Master Servicer in
writing and 5) in the case of the Rating Agencies, (x) Standard & Poor's, 00
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Group and (y) Fitch, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Department. Any notice delivered to the
Seller, the Depositor, the Master Servicer, the EMC Servicer, the Securities
Administrator, the Custodian or the Trustee under this Agreement shall be
effective only upon receipt. Any notice required or permitted to be mailed to a
Certificateholder, unless otherwise provided herein, shall be given by
first-class mail, postage prepaid, at the address of such Certificateholder as
shown in the Certificate Register; any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Certificateholder receives such notice.
Section 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided pursuant to Section 7.02, this Agreement may not be assigned by the
Master Servicer, the EMC Servicer, the Seller or the Depositor.
Section 11.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
Fund, or otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee or the Securities
Administrator, as appropriate, a written notice of an Event of Default and of
the continuance thereof, as
115
hereinbefore provided, the Holders of Certificates evidencing not less than 25%
of the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee or the Securities Administrator, as appropriate to
institute such action, suit or proceeding in its own name as Trustee or the
Securities Administrator, as appropriate, hereunder and shall have offered to
the Trustee or the Securities Administrator, as appropriate, such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee or the Securities Administrator, as
appropriate, for 60 days after its receipt of such notice, request and offer of
indemnity shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
each Certificateholder with every other Certificateholder and the Trustee, that
no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 11.08, each
and every Certificateholder, the Trustee or the Securities Administrator shall
be entitled to such relief as can be given either at law or in equity.
Section 11.09. Inspection and Audit Rights.
(a) The Master Servicer agrees that, on reasonable prior notice, it
will permit any representative of the Depositor or the Trustee during the Master
Servicer's normal business hours, to examine all the books of account, records,
reports and other papers of the Master Servicer relating to the Mortgage Loans,
to make copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to such
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Master Servicer hereby authorizes such accountants to
discuss with such representative such affairs, finances and accounts), all at
such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense incident to the exercise by the Depositor or the Trustee
of any right under this Section 11.09 shall be borne by the party requesting
such inspection, subject to any right to reimbursement of such party hereunder
(in the case of the Trustee, pursuant to Section 4.05(a)(xii) hereof); all other
such expenses shall be borne by the Master Servicer.
(b) The Trustee and the Securities Administrator shall each provide
access to the records and documentation in its possession regarding the related
Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request and
during normal business hours at its respective office; provided, however, that,
unless otherwise required by law, neither the Trustee nor the Securities
Administrator shall be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee and the Securities Administrator shall each allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers its actual costs.
Section 11.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not
be personally liable for obligations of the Trust Fund, that the interests in
the Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof by
the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
* * *
116
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the EMC
Servicer, the Seller and the Trustee have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
BEAR XXXXXXX ASSET BACKED SECURITIES I LLC,
as Depositor
By: /s/Xxxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Vice President
EMC MORTGAGE CORPORATION, as
Seller and Servicer By:
By: /s/Xxx Xxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxx
Title: Executive Vice President
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities
Administrator
By: /s/Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
JPMORGAN CHASE BANK,
as Trustee
By: /s/Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Trust Officer
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 13th day of May 2005, before me, a notary public in and for
said State, appeared Xxxxx Xxxxxxxxxxx, personally known to me on the basis of
satisfactory evidence to be an authorized representative of Bear Xxxxxxx Asset
Backed Securities I LLC, the limited liability company that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/Xxxxxxxx Xxxxxxxx
----------------------------------
Notary Public
[Notarial Seal]
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
On this 13th day of May 2005, before me, a notary public in and for
said State, appeared Xxxxxx Xxxxxx, personally known to me on the basis of
satisfactory evidence to be an authorized representative of Xxxxx Fargo Bank,
N.A., a national banking association that executed the within instrument, and
also known to me to be the person who executed it on behalf of such national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/Xxxxxx Xxxxx
----------------------------------
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On this 13th day of May 2005, before me, a notary public in and for
said State, appeared Xxx Xxxxxxxx, personally known to me on the basis of
satisfactory evidence to be an authorized representative of EMC Mortgage
Corporation, the corporation that executed the within instrument, and also known
to me to be the person who executed it on behalf of such corporation and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/Xxxxxxx Xxxxxx
----------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 13th day of May 2005, before me, a notary public in and for
said State, appeared Xxxxx X. Xxxx, personally known to me on the basis of
satisfactory evidence to be an authorized representative of JPMorgan Chase Bank,
one of the national banking associations that executed the within instrument,
and also known to me to be the person who executed it on behalf of such national
banking association and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/Xxxxxx Xxxxxxx
----------------------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
CLASS I-A-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: I-A-1
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-A-1
Certificates: $[_________]
Latest Possible
Maturity Date: [_________]
CUSIP: [_________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class A-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-2
CLASS I-A-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: I-A-2
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-A-2
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date, [____]% per annum,
and on any Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related Accrual
Period plus the Class A-1 Margin for such
Distribution Date and (ii) the related Interest
Rate Cap for such Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By:
-----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ----------------------
. Applicable
-------------------------------------------------------------------
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or , as its agent.
-------------------------------
9
EXHIBIT A-3
CLASS I-A-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: I-A-3
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-A-3
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class A-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By:
---------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
-------------------------------------------------------------------------------.
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
EXHIBIT A-4
CLASS I-A-4 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: I-A-4
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-A-4
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class A-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-5
CLASS I-M-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: I-M-1
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-M-1
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class M-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and surrender
3
of such Certificate at the Corporate Trust Office of the Trustee or such other
location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-6
CLASS I-M-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: I-M-2
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-M-2
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class M-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-7
CLASS I-M-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: I-M-3
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-M-3
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class M-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-8
CLASS I-M-4 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: I-M-4
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-M-4
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class M-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-9
CLASS I-M-5 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: I-M-5
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-M-5
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class M-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-10
CLASS I-M-6 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: I-M-6
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-M-6
Certificates: $[___________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class M-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-11
CLASS I-B CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: I-B
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class I-B
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class B Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Bear Xxxxxxx Securities Corporation is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the same Class) in certain monthly
distributions with respect to a Trust Fund consisting of the Trust Assets
deposited by Bear Xxxxxxx Asset Backed Securities I LLC (the "Depositor"). The
Trust Fund was created pursuant to a Pooling and Servicing Agreement dated as of
April 1, 2005 (the "Agreement") among the Depositor, EMC Mortgage Corporation
("EMC"), as seller and servicer (in its capacity as seller, the "Seller" and in
its capacity as servicer, the "Servicer"), Xxxxx Fargo Bank, N.A. as master
servicer and securities administrator (in its capacity as the master servicer,
the "Master Servicer" and in its capacity as securities administrator, the
"Securities Administrator") and JPMorgan Chase Bank, N.A., as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
No Transfer of this Certificate shall be made unless such Transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under the Securities Act and such state securities laws. In the
event that a Transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such Transfer and
such Certificateholder's prospective transferee shall each certify to the
Trustee and the Master Servicer in writing the facts surrounding the Transfer in
substantially the forms set forth in the Agreement, as Exhibit E (the
"Transferor Certificate") and (x) deliver a letter in substantially the form of
either Exhibit F (the "Investment Letter") of the Agreement or Exhibit G (the
"Rule 144A Letter") of the Agreement or (y) there shall be delivered to the
Trustee an opinion of counsel that such Transfer may be made pursuant to an
exemption from the Securities Act, which opinion of counsel shall not be an
expense of the Depositor, the Seller, the Servicer, the Master Servicer or the
Trustee. The Depositor shall provide to any Holder of this Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificate and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for Transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. Each Holder of this Certificate desiring to effect such Transfer shall,
and does hereby agree to, indemnify the Trustee, the Depositor, the Seller and
the Master Servicer against any liability that may result if the Transfer is not
so exempt or is not made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-12
CLASS II-A CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
Certificate No.: II-A
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class II-A
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class A-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-13
CLASS II-M-1 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: II-M-1
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class II-M-1
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class M-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-14
CLASS II-M-2 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: II-M-2
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class II-M-2
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class M-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-15
CLASS II-M-3 CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: II-M-3
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class II-M-3
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class M-1 Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the same Class) in certain monthly distributions with respect to
a Trust Fund consisting of the Trust Assets deposited by Bear Xxxxxxx Asset
Backed Securities I LLC (the "Depositor"). The Trust Fund was created pursuant
to a Pooling and Servicing Agreement dated as of April 1, 2005 (the "Agreement")
among the Depositor, EMC Mortgage Corporation ("EMC"), as seller and servicer
(in its capacity as seller, the "Seller" and in its capacity as servicer, the
"Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and securities
administrator (in its capacity as the master servicer, the "Master Servicer" and
in its capacity as securities administrator, the "Securities Administrator") and
JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-16
CLASS II-B CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF BEAR XXXXXXX SECURITIES CORPORATION OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO BEAR XXXXXXX SECURITIES CORPORATION OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, BEAR XXXXXXX SECURITIES CORPORATION, HAS AN
INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: II-B
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): $__________
Initial Certificate
Principal Balance of
Class II-B
Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: For the first Distribution Date,
[____]% per annum, and on any
Distribution Date thereafter, the lesser
of (i) One-Month LIBOR for the related
Accrual Period plus the Class B Margin
for such Distribution Date and (ii) the
related Interest Rate Cap for such
Distribution Date.
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
The Certificate Principal Balance of this Certificate at any time may
be less than the Initial Certificate Principal Balance of this Certificate as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller, the Master
Servicer, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor most of the Trust Assets are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that Bear Xxxxxxx Securities Corporation is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the same Class) in certain monthly
distributions with respect to a Trust Fund consisting of the Trust Assets
deposited by Bear Xxxxxxx Asset Backed Securities I LLC (the "Depositor"). The
Trust Fund was created pursuant to a Pooling and Servicing Agreement dated as of
April 1, 2005 (the "Agreement") among the Depositor, EMC Mortgage Corporation
("EMC"), as seller and servicer (in its capacity as seller, the "Seller" and in
its capacity as servicer, the "Servicer"), Xxxxx Fargo Bank, N.A. as master
servicer and securities administrator (in its capacity as the master servicer,
the "Master Servicer" and in its capacity as securities administrator, the
"Securities Administrator") and JPMorgan Chase Bank, N.A., as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned to them in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered on the applicable Record Date in an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to Holders of the Certificates of the Class
indicated on the first page of this certificate on such Distribution Date
pursuant to Section 5.04 of the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the registered Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date or, if not, by check mailed by
first class mail to the address of such Certificateholder appearing in the
Certificate Register. The final distribution on each Certificate will be made in
like manner, but only upon presentment and
3
surrender of such Certificate at the Corporate Trust Office of the Trustee or
such other location specified in the notice to Certificateholders of such final
distribution.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-17
CLASS I-B-IO CERTIFICATE
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS A MINIMAL PRINCIPAL BALANCE AND IS ENTITLED TO ONLY THOSE
DISTRIBUTIONS PROVIDED FOR IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: I-B-IO
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Notional Balance of this
Certificate ("Denomination"): $__________
Initial Notional
Balance of all
Class I-B-IO Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: N/A
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer, the
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor most of the Trust Assets are guaranteed or insured
by any governmental agency or instrumentality.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered
owner of the Percentage Interest evidenced by this Certificate in certain
monthly distributions with respect to a Trust Fund consisting of the Trust
Assets (obtained by dividing the denomination of this Certificate by the
aggregate denominations of all Certificates of the same Class) deposited by Bear
Xxxxxxx Asset Backed Securities I LLC (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of April 1, 2005
(the "Agreement") among the Depositor, EMC Mortgage Corporation ("EMC"), as
seller and servicer (in its capacity as seller, the "Seller" and in its capacity
as servicer, the "Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and
securities administrator (in its capacity as the master servicer, the "Master
Servicer" and in its capacity as securities administrator, the "Securities
Administrator") and JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This Certificate has a notional principal balance and does not bear
interest at a specified rate. It is entitled on each Distribution Date to its
Percentage Interest of distributions of any remaining Excess Cashflow after all
other classes of Certificates (other than the Residual Certificates) have
received amounts to which they are entitled.
No Transfer of this Certificate shall be made unless such Transfer is
made pursuant to an [________]effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a Transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
Transfer and such Certificateholder's prospective transferee shall each certify
to the Trustee and the Master Servicer in writing the facts surrounding the
Transfer in substantially the forms set forth in the Agreement, as Exhibit E
(the "Transferor Certificate") and (x) deliver a letter in substantially the
form of either Exhibit F (the "Investment Letter") of the Agreement or Exhibit G
(the "Rule 144A Letter") of the Agreement or (y) there shall be delivered to the
Trustee an opinion of counsel that such Transfer
3
may be made pursuant to an exemption from the Securities Act, which opinion of
counsel shall not be an expense of the Depositor, the Seller, the Servicer, the
Master Servicer or the Trustee. The Depositor shall provide to any Holder of
this Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificate and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for Transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. Each Holder of this Certificate desiring to
effect such Transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Seller and the Master Servicer against any liability that may
result if the Transfer is not so exempt or is not made in accordance with such
federal and state laws.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-18
CLASS II-B-IO CERTIFICATE
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS A MINIMAL PRINCIPAL BALANCE AND IS ENTITLED TO ONLY THOSE
DISTRIBUTIONS PROVIDED FOR IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN OR IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE
REQUIREMENTS SHALL BE VOID AND OF NO EFFECT.
Certificate No.: II-B-IO
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Notional Balance of this
Certificate ("Denomination"): $__________
Initial Notional
Balance of all
Class II-B-IO Certificates: $[__________]
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: N/A
2
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Seller, the Master Servicer, the
Servicer or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor most of the Trust Assets are guaranteed or insured
by any governmental agency or instrumentality.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered
owner of the Percentage Interest evidenced by this Certificate in certain
monthly distributions with respect to a Trust Fund consisting of the Trust
Assets (obtained by dividing the denomination of this Certificate by the
aggregate denominations of all Certificates of the same Class) deposited by Bear
Xxxxxxx Asset Backed Securities I LLC (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of April 1, 2005
(the "Agreement") among the Depositor, EMC Mortgage Corporation ("EMC"), as
seller and servicer (in its capacity as seller, the "Seller" and in its capacity
as servicer, the "Servicer"), Xxxxx Fargo Bank, N.A. as master servicer and
securities administrator (in its capacity as the master servicer, the "Master
Servicer" and in its capacity as securities administrator, the "Securities
Administrator") and JPMorgan Chase Bank, N.A., as trustee (the "Trustee"). To
the extent not defined herein, the capitalized terms used herein have the
meanings assigned to them in the Agreement. This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
This Certificate has a notional principal balance and does not bear
interest at a specified rate. It is entitled on each Distribution Date to its
Percentage Interest of distributions of any remaining Excess Cashflow after all
other classes of Certificates (other than the Residual Certificates) have
received amounts to which they are entitled.
No Transfer of this Certificate shall be made unless such Transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under the Securities Act and such state securities laws. In the
event that a Transfer is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such Transfer and
such Certificateholder's prospective transferee shall each certify to the
Trustee and the Master Servicer in writing the facts surrounding the Transfer in
substantially the forms set forth in the Agreement, as Exhibit E (the
"Transferor Certificate") and (x) deliver a letter in substantially the form of
either Exhibit F (the "Investment Letter") of the Agreement or Exhibit G (the
"Rule 144A Letter") of the Agreement or (y) there shall be delivered to the
Trustee an opinion of counsel that such Transfer
3
may be made pursuant to an exemption from the Securities Act, which opinion of
counsel shall not be an expense of the Depositor, the Seller, the Servicer, the
Master Servicer or the Trustee. The Depositor shall provide to any Holder of
this Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificate and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for Transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. Each Holder of this Certificate desiring to
effect such Transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the Seller and the Master Servicer against any liability that may
result if the Transfer is not so exempt or is not made in accordance with such
federal and state laws.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
5
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
6
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
9
EXHIBIT A-19
CLASS R-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A RESIDUAL INTEREST IN
"REMIC I" AS DEFINED IN THE AGREEMENT REFERRED TO BELOW, WHICH IS A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), AND IS NOT TREATED AS INDEBTEDNESS OF THE TRUST REFERRED
TO BELOW. EACH PURCHASER OF THE INTEREST REPRESENTED BY THIS CERTIFICATE WILL BE
REQUIRED TO REPRESENT IN AN AFFIDAVIT THAT IS A "PERMITTED TRANSFEREE" AS
DEFINED IN THE AGREEMENT REFERRED TO HEREIN. EACH PURCHASER WILL ALSO BE
REQUIRED TO REPRESENT IN SUCH AFFIDAVIT THAT IT WILL NOT TRANSFER THIS
CERTIFICATE UNLESS IT HAS OBTAINED A SIMILAR AFFIDAVIT FROM THE PROPOSED
TRANSFEREE AND DELIVERS A CERTIFICATE TO THE EFFECT THAT THE TRANSFEREE HAS NO
ACTUAL KNOWLEDGE THAT THE PROPOSED TRANSFEREE IS NOT A PERMITTED TRANSFEREE. THE
PARTIES TO THE AGREEMENT MAY, WITHOUT THE CONSENT OF THE CERTIFICATEHOLDERS,
AMEND THE AGREEMENT TO THE EXTENT NECESSARY OR APPROPRIATE TO MAINTAIN THE
QUALIFICATION OF EACH OF REMIC I AND REMIC II AS A REMIC UNDER THE CODE OR TO
AVOID OR MINIMIZE THE RISK OF THE IMPOSITION OF ANY TAX ON EITHER OF REMIC I OR
REMIC II PURSUANT TO THE CODE, THAT WOULD BE A CLAIM AGAINST EITHER OF REMIC I
OR REMIC II AT ANY TIME PRIOR TO THE FINAL REDEMPTION OF THE CERTIFICATES,
PROVIDED THAT THE TRUSTEE HAS RECEIVED AN OPINION OF COUNSEL ADDRESSED TO THE
TRUSTEE TO THE EFFECT THAT SUCH ACTION IS NECESSARY OR APPROPRIATE TO MAINTAIN
SUCH REMIC STATUS OR TO AVOID THE IMPOSITION OF SUCH A TAX.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE MASTER
SERVICER A REPRESENTATION THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), AND/OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE ("PLAN")
OR A TRUSTEE OF SUCH PLAN OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY, ACTING ON
BEHALF OF ANY PLAN, OR A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN WITH RESPECT TO ERISA
RESTRICTED SECURITIES. SUCH REPRESENTATION SHALL BE DEEMED TO HAVE BEEN MADE TO
THE TRUSTEE,
THE SECURITIES ADMINISTRATOR AND THE MASTER SERVICER BY THE TRANSFEREE OF A
BOOK-ENTRY CERTIFICATE. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN OR
IN THE AGREEMENT REFERRED TO HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF A PLAN WITHOUT SATISFYING THE ABOVE REQUIREMENTS SHALL BE
VOID AND OF NO EFFECT.
2
Certificate No.: R-1
Cut-off Date: April 1, 2005
First Distribution Date: May 25, 2005
Initial Principal
Balance of
this Certificate
("Denomination"): ___%
Initial Certificate
Principal Balance of
Class R-1
Certificates: ___%
Latest Possible
Maturity Date: [________]
CUSIP: [________]
Interest Rate: N/A
3
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
evidencing a percentage interest in the distributions allocable to the
Class of Certificates indicated on the first page of this Certificate
with respect to a Trust Fund consisting primarily of a pool of
conventional fixed, hybrid and adjustable rate mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties (the "Trust Assets").
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer, the Seller, Master
Servicer, or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor most of the Trust Assets are guaranteed
or insured by any governmental agency or instrumentality.
This certifies that Bear, Xxxxxxx Securities Corp. is the registered
owner of the Percentage Interest evidenced by this Certificate in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by Bear Xxxxxxx Asset Backed Securities I LLC (the "Depositor").
The Trust Fund was created pursuant to a Pooling and Servicing Agreement dated
as of April 1, 2005 (the "Agreement") among the Depositor, EMC Mortgage
Corporation ("EMC"), as seller and servicer (in its capacity as seller, the
"Seller" and in its capacity as servicer, the "Servicer"), Xxxxx Fargo Bank,
N.A. as master servicer and securities administrator (in its capacity as the
master servicer, the "Master Servicer" and in its capacity as securities
administrator, the "Securities Administrator") and JPMorgan Chase Bank, N.A., as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentation and surrender of this Class R-1
Certificate at the Corporate Trust Office.
Each Holder of this Certificate will be deemed to have agreed to be
bound by the restrictions of Section 6.02 of the Agreement, including but not
limited to the restrictions that (i) each person holding or acquiring any
Ownership Interest in this Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Certificate may be transferred without delivery to
the Trustee of a Transfer Affidavit of the proposed transferee in the form
described in the Agreement, (iii) each person holding or acquiring an Ownership
Interest in this Certificate must agree not to transfer an Ownership Interest in
this Certificate if it has actual knowledge that the proposed transferee is not
a Permitted Transferee and (iv) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will be
absolutely null and void and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
4
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless the certificate of authentication
hereon has been manually executed by an authorized officer of the Trustee.
* * *
5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
---------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to
in the within-named Agreement
JPMorgan Chase Bank, N.A.
not in its individual capacity,
but solely as Trustee
By: /s/
----------------------------------------
Authorized Signatory
6
[REVERSE OF CERTIFICATE]
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2005-SD2
ASSET-BACKED CERTIFICATES, SERIES 2005-SD2
This Certificate is one of a duly authorized issue of Certificates
designated as Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2, Asset-Backed
Certificates, Series 2005-SD2, issued in multiple Classes (the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Servicer, the Seller, the Securities
Administrator and the Trustee with the consent of the Holders of each Class or
Classes of Certificates affected by such amendment evidencing over 50% of the
Voting Rights of such Class or Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Trustee, or any such agent shall be affected by any notice to
the contrary.
7
Subject to Section 10.03 of the Agreement, the obligations and
responsibilities of the Depositor, the Master Servicer, the EMC Servicer, the
Seller, the Securities Administrator and the Trustee created under the Agreement
with respect to a Group shall terminate upon the earlier of (a) the purchase by
the Depositor of all of the Mortgage Loans (and REO Properties) remaining in the
Trust Fund with respect to the related Group at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan (other than in
respect of REO Property in such Group), (ii) accrued interest thereon at the
applicable Mortgage Rate, (iii) the appraised value of any REO Property in such
Group (up to the Stated Principal Balance of the related Mortgage Loan), such
appraisal to be conducted by an appraiser mutually agreed upon by the EMC
Servicer and the Securities Administrator, (iv) unreimbursed out-of pocket costs
of the related Servicer or Master Servicer, including unreimbursed servicing
advances and the principal portion of any unreimbursed Advances, made on the
related Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Securities Administrator and the Trustee
payable pursuant to Section 9.05 of the Agreement and (vi) any unreimbursed
costs and expenses of the Custodian payable pursuant to the Custodial Agreement
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to the Agreement, as
applicable. In no event shall the trusts created pursuant to the Agreement
continue beyond the earlier of (i) the expiration of 21 years from the death of
the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of the United States to the Court of St. James's, living on the date of the
Agreement and (ii) the Latest Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties in a
Group pursuant to clause (a) above shall be conditioned upon the Stated
Principal Balance of all of the Mortgage Loans in such Group, at the time of any
such repurchase, aggregating, in the case of Group I, ten percent or less and,
in the case of Group II, twenty percent or less, of the aggregate Cut-off Date
principal Balance of all of the Mortgage Loans in the related Group.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of assignor
9
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to
--------------------------------------------------------------------------------
for the account of
-------------------------------------------------------------,
account number , or, if mailed by check, to
---------------- ---------------------
-------------------------------------------------------------------. Applicable
statements should be mailed to
-------------------------------------------------.
This information is provided by
---------------------------------------,
the assignee named above, or
-----------------------------, as its agent.
10
EXHIBIT B
Mortgage Loan Schedule
[DELIVERED TO THE TRUSTEE]
B-1
EXHIBIT C-1
[FORM OF INITIAL CERTIFICATION]
INITIAL CERTIFICATION
May 13, 2005
EMC Mortgage Corporation
000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Re: Pooling and Servicing Agreement, dated as of April 1, 2005, by and
among Bear Xxxxxxx Asset Backed Securities I LLC, as Depositor, EMC
Mortgage Corporation, as Seller and Master Servicer and JPMorgan
Chase Bank, N.A., as Trustee, relating to Bear Xxxxxxx Asset Backed
Securities Trust 2005-SD2, Asset-Backed Certificates, Series
2005-SD2
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the captioned Pooling and Servicing
Agreement, the undersigned, as custodian, hereby certifies that it has received
a Mortgage File (which contains an original Mortgage Note or lost note
affidavit, unless it has received a separate blanket lost note affidavit
covering such Mortgage Loans) to the extent required in Section 2.01 of the
Pooling and Servicing Agreement with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, with any exceptions listed on Schedule A attached
hereto.
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the above-captioned Pooling and Servicing Agreement.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
as custodian
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
C-1-1
Schedule A
----------
C-1-2
EXHIBIT C-1
[FORM OF INTERIM CERTIFICATION]
--------------------, ---------
EMC Mortgage Corporation
000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Re: Pooling and Servicing Agreement, dated as of April 1, 2005, by and
among Bear Xxxxxxx Asset Backed Securities I LLC, as Depositor, EMC
Mortgage Corporation, as Seller and Master Servicer and JPMorgan
Chase Bank, N.A., as Trustee, relating to Bear Xxxxxxx Asset Backed
Securities Trust 2005-SD2, Asset-Backed Certificates, Series
2005-SD2
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(a) of the above-captioned Pooling and Servicing
Agreement, the undersigned, as custodian, hereby certifies that it has received
a Mortgage File to the extent required pursuant to the Pooling and Servicing
Agreement with respect to each Mortgage Loan listed in the Mortgage Loan
Schedule, and it has reviewed the Mortgage File and the Mortgage Loan Schedule
and has determined that: all required documents have been executed and received
and that such documents relate, determined on the basis of the related Mortgagor
name, original principal balance and loan number to the related Mortgage Loans
identified on the Mortgage Loan Schedule, as supplemented, with any exceptions
listed on Schedule A attached hereto.
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the above-captioned Pooling and Servicing Agreement.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
as custodian
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
C-2-1
Schedule A
----------
C-2-2
EXHIBIT C-3
[FORM OF FINAL CERTIFICATION]
--------------------, ---------
EMC Mortgage Corporation
000 Xxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Re: Pooling and Servicing Agreement, dated as of April 1, 2005, by and
among Bear Xxxxxxx Asset Backed Securities I LLC, as Depositor, EMC
Mortgage Corporation, as Seller and Master Servicer and JPMorgan
Chase Bank, N.A. as Trustee, relating to Bear Xxxxxxx Asset Backed
Securities Trust 2005-SD2, Asset-Backed Certificates, Series
2005-SD2
------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(b) of the above-captioned Pooling and Servicing
Agreement, the undersigned, as custodian, hereby certifies that subject to any
exception listed on Schedule A attached hereto (A) it has received a Mortgage
File with respect to each Mortgage Loan listed in the Mortgage Loan Schedule
containing with respect to each such Mortgage Loan:
(i) the original Mortgage Note, including any riders
thereto, endorsed without recourse in the following form: (X) "Pay
to the order of JPMorgan Chase Bank, N.A., as Trustee for
certificateholders of Bear Xxxxxxx Asset Backed Securities Trust
2005-SD2, Asset-Backed Certificates, Series 2005-SD2, without
recourse", or (Y) in the case of a loan registered on the MERS(R)
System, in blank, and in each case showing to the extent available
to the Seller an unbroken chain of endorsements from the original
payee thereof to the Person endorsing it to the Trustee ,
(ii) the original Mortgage and, if the related Mortgage Loan
is a MOM Loan, noting the presence of the MIN and language
indicating that such Mortgage Loan is a MOM Loan, which shall have
been recorded (or if the original is not available, a copy), with
evidence of such recording indicated thereon (or if clause (x) in
the proviso in Section 2.01 of the Pooling and Servicing Agreement
applies, shall be in recordable form),
(iii) unless the Mortgage Loan is registered on the MERS(R)
System, the assignment (either an original or a copy, which may be
in the form of a blanket assignment if permitted in the
jurisdiction in which the related Mortgaged Property is located) to
the Trustee of the Mortgage, in recordable form, with respect to
each Mortgage Loan in the name of "JPMorgan Chase Bank, N.A., as
Trustee for certificateholders of Bear Xxxxxxx Asset Backed
Securities Trust 2005-SD2, Asset-Backed Certificates, Series
2005-SD2", or in blank,
C-3-1
(iv) an original or a copy of all intervening assignments of
the related Mortgage, if any, to the extent available to the
Seller, with evidence of recording thereon,
(v) the original or policy of title insurance or mortgagee's
certificate of title insurance or commitment or binder for title
insurance, if available, or a copy thereof, or, in the event that
such original title insurance policy is unavailable, a photocopy
thereof, or in lieu thereof, a current lien search on the related
Mortgaged Property, and
(vi) originals or copies of all available assumption,
modification or substitution agreements, if any
and (B) has determined that all required documents have been executed and
received and that such documents related to the Mortgage Loans identified on the
Mortgage Loan Schedule, such determination having been made on the basis of the
Mortgagor name, original principal balance and loan number.
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the above-captioned Pooling and Servicing Agreement.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
as custodian
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
C-3-2
Schedule A
----------
C-3-3
EXHIBIT D
TRANSFER AFFIDAVIT
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________, the proposed
Transferee of an Ownership Interest in a Class R Certificate (the "Certificate")
issued pursuant to the Pooling and Servicing Agreement, dated as of April 1,
2005 (the "Agreement"), by and among Bear Xxxxxxx Asset Backed Securities I LLC,
as depositor, EMC Mortgage Corporation as seller and master servicer, and
JPMorgan Chase Bank, N.A., as trustee. Capitalized terms used, but not defined
herein or in Exhibit 1 hereto, shall have the meanings ascribed to such terms in
the Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02(c) of
the Agreement (attached hereto as Exhibit 2 and incorporated herein by
reference) and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by
D-1
the provisions of Section 6.02(c) of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the Transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit E to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the Class R
Certificates.
8. The Transferee's taxpayer identification number is _____.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Class R Certificate may be
"noneconomic residual interests" within the meaning of Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax. In addition, as the holder of
a noneconomic residual interest, the Transferee may incur tax liabilities in
excess of any cash flows generated by the interest and the Transferee hereby
represents that it intends to pay taxes associated with holding the residual
interest as they become due.
11. Transferee is not a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of a U.S. taxpayer.
12. The Transferee will not transfer the Class R Certificate, directly
or indirectly, to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
13. The Transferee will not cause income from the Class R Certificate
to be attributable to a foreign permanent establishment or fixed base (within
the meaning of an applicable income tax treaty) of the Transferee or another
U.S. taxpayer.
14. The Transferee has provided financial statements or other financial
information requested by the Transferor in connection with the transfer of the
Class R Certificate to permit the Transferor to assess the financial capability
of the Transferee to pay such taxes.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors,
by its duly authorized officer
D-2
and its corporate seal to be hereunto affixed, duly attested, this ____
day of _____________, 20__.
[NAME OF TRANSFEREE]
By:
-----------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
-------------------------
[Assistant] Secretary
Personally appeared before me the above-named _____________, known or
proved to me to be the same person who executed the foregoing instrument
and to be the ____________ of the Transferee, and acknowledged that he
executed the same as his free act and deed and the free act and deed of
the Transferee.
Subscribed and sworn before me this ____ day of _______, 20__.
------------------------------
---------------------------------
NOTARY PUBLIC
My Commission expires the ___ day
of _______________, 20__.
D-3
EXHIBIT 1 TO EXHIBIT D
Certain Definitions
-------------------
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or
indirect, legal or beneficial.
"Permitted Transferee": Any person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, International
Organization or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers' cooperatives
described in section 521 of the Code) that is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by section 511 of the
Code on unrelated business taxable income) on any excess inclusions (as
defined in section 860E(c)(1) of the Code) with respect to any Class R
Certificate, (iv) rural electric and telephone cooperatives described in
section 1381(a)(2)(C) of the Code, (v) a Person that is not a citizen or
resident of the United States, a corporation, partnership, or other
entity (treated as a corporation or a partnership for federal income tax
purposes) created or organized in or under the laws of the United
States, any state thereof or the District of Columbia, or an estate
whose income from sources without the United States is includable in
gross income for United States federal income tax purposes regardless of
its connection with the conduct of a trade or business within the United
States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and
one or more United States persons have authority to control all
substantial decisions of the trust, and (vi) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the
Transfer of an Ownership Interest in a Class R Certificate to such
Person may cause the Trust Fund to fail to qualify as a REMIC at any
time that certain Certificates are Outstanding. The terms "United
States," "State" and "International Organization" shall have the
meanings set forth in section 7701 of the Code or successor provisions.
A corporation will not be treated as an instrumentality of the United
States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the
exception of the Federal Home Loan Mortgage Corporation, a majority of
its board of directors is not selected by such government unit.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, bank, joint stock company, trust (including
any beneficiary thereof), unincorporated organization or government or
any agency or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by
the Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
D-4
EXHIBIT 2 TO EXHIBIT D
Section 6.02(c) of the Agreement
--------------------------------
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate which shall always be as a physical certificate
and not as a Book-Entry Certificate, shall be a Permitted Transferee
and shall promptly notify the Trustee of any change or impending change
in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate,
unless, in addition to the certificates required to be delivered to the
Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as Exhibit
D.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
6.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder
of a Residual Certificate in violation of the provisions of this Section
6.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 6.02(b) and this
Section 6.02(c) or for making any payments due on such Certificate to the
Holder thereof or for taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit and Transferor
Certificate. The Trustee shall be entitled but not obligated to recover
from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Trustee
D-5
shall be paid and delivered by the Trustee to the last preceding
Permitted Transferee of such Certificate.
(v) The Master Servicer shall make available within 60 days of
written request from the Trustee, all information necessary to compute
any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any
Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 6.02(c) shall cease to apply (and the applicable portions
of the legend on a Residual Certificate may be deleted) with respect to
Transfers occurring after delivery to the Trustee of an Opinion of
Counsel addressed to the Trustee, which Opinion of Counsel shall not be
an expense of the Trustee, the Seller, or the Master Servicer to the
effect that the elimination of such restrictions will not cause the
REMIC I and/or REMIC II, as applicable, to fail to qualify as a REMIC at
any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement
that, based on an Opinion of Counsel furnished to the Trustee, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee
and (b) to provide for a means to compel the Transfer of a Residual
Certificate that is held by a Person that is not a Permitted Transferee
to a Holder that is a Permitted Transferee.
D-6
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE FOR
CLASS B-IO CERTIFICATES
Date:___________
Bear Xxxxxxx Asset Backed Securities I LLC,
as Depositor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
JPMorgan Chase Bank
as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services/Global Debt
Re: Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2,
Asset-Backed Certificates, Series 2005-SD2
----------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the Class B-IO Certificates, we
certify that (a) we understand that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "Act"), and
are being disposed by us in a transaction that is exempt from the
registration requirements of the Act and (b) we have not offered or sold
any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with
respect thereto, in a manner that would be deemed, or taken any other
action that would result in, a violation of Section 5 of the Act. All
capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement dated
as of April 1, 2005, among Bear Xxxxxxx Asset Backed Securities I LLC,
as Depositor, EMC Mortgage Corporation, as Seller and Master Servicer,
and JPMorgan Chase Bank, N.A., as Trustee.
Very truly yours,
--------------------------------------
Name of Transferor
By: /s/
----------------------------------
Name:
Title:
E-1
EXHIBIT F
FORM OF INVESTMENT LETTER [NON-RULE 144A] FOR
CLASS B-IO CERTIFICATES
Date: ____________
Bear Xxxxxxx Asset Backed Securities I LLC,
as Depositor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
JPMorgan Chase Bank
as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services/Global Debt
Re: Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2,
Asset-Backed Certificates, Series 2005-SD2
-----------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the Class B-IO Certificates in the
Denomination of ______________ (the "Certificates"), we certify that (a)
we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act,
and have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risks of investments in
the Certificates, (c) we have had the opportunity to ask questions of
and receive answers from the Depositor concerning the purchase of the
Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the
Certificates, (d) either (i) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as
amended, nor a plan subject to Section 4975 of the Internal Revenue Code
of 1986 (each of the foregoing, a "Plan"), nor are we acting on behalf
of any Plan or (ii) the purchase or holding of such ERISA Restricted
Certificate will not result in any prohibited transactions under ERISA
or Section 4975 of the Code and will not subject the Trustee or the
Master Servicer to any obligation in addition to those expressly
undertaken in the Agreement referred to below, (e) we are acquiring the
Certificates for investment for our own account and not with a view to
any distribution of the Certificates (but without prejudice to our right
at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any
person, or otherwise approached or negotiated with any person with
respect thereto, or taken any other action that would result in a
violation of Section 5 of the Act, and (g) we will not sell, transfer or
otherwise
F-1
dispose of any Certificates unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel
satisfactory to the addressees of this certificate that such sale,
transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of the Certificate has executed
and delivered to you a certificate to substantially the same effect as
this certificate, and (3) the purchaser or transferee has otherwise
complied with any conditions for transfer set forth in the Pooling and
Servicing Agreement dated as of April 1, 2005 (the "Agreement"), among
Bear Xxxxxxx Asset Backed Securities I LLC, as Depositor, EMC Mortgage
Corporation, as Seller and Master Servicer, and JPMorgan Chase Bank,
N.A., as Trustee. All capitalized terms used herein but not defined
herein shall have the meanings assigned to them in the Agreement.
Very truly yours,
--------------------------------------
Name of Transferor
By: /s/
----------------------------------
Name:
Title:
F-2
EXHIBIT G
FORM OF RULE 144A LETTER FOR
CLASS B-IO CERTIFICATES
Date: __________________
Bear Xxxxxxx Asset Backed Securities I LLC,
as Depositor
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
JPMorgan Chase Bank
as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services/Global Debt
Re: Bear Xxxxxxx Asset Backed Securities Trust 2005-SD2,
Asset-Backed Certificates, Series 2005-SD2
----------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of the Class B-IO Certificates
(the "Certificates") we certify that (a) we understand that the
Certificates are not being registered under the Securities Act of 1933,
as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have such knowledge
and experience in financial and business matters that we are capable of
evaluating the merits and risks of investments in the Certificates, (c)
we have had the opportunity to ask questions of and receive answers
from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary
to our decision to purchase the Certificates, (d) either (i) we are not
an employee benefit plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended, nor a plan subject to Section
4975 of the Internal Revenue Code of 1986 (each of the foregoing, a
"Plan"), nor are we acting on behalf of any Plan or (ii) the purchase
or holding of such ERISA Restricted Certificate will not result in any
prohibited transactions under ERISA or Section 4975 of the Code and
will not subject the Trustee or the Master Servicer to any obligation
in addition to those expressly undertaken in the Agreement referred to
below, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or
any other similar security from, or otherwise approached or negotiated
with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution
of the
G-1
Certificates under the Securities Act or that would render the
disposition of the Certificates a violation of Section 5 of the
Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner
with respect to the Certificates, and (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act and have completed either of the forms of certification
to that effect attached hereto as Annex 1 or Annex 2. We are aware that
the sale to us is being made in reliance on Rule 144A. We are acquiring
the Certificates for our own account or for resale pursuant to Rule 144A
and further, understand that the Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A,
or (ii) pursuant to another exemption from registration under the
Securities Act. All capitalized terms used herein but not defined herein
shall have the meanings assigned to them in the Pooling and Servicing
Agreement, dated as of April 1, 2005, among Bear Xxxxxxx Asset Backed
Securities I LLC, as Depositor, EMC Mortgage Corporation, as Seller and
Master Servicer, and JPMorgan Chase Bank, N.A., as Trustee.
--------------------------------------
Name of Buyer
By: /s/
----------------------------------
Name:
Title:
G-2
ANNEX 1 TO EXHIBIT G
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described
therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $__________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
--------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless: Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities;
or Buyer is an entity in which all the owners are qualified institutional
buyers.
G-6
___ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. The Buyer is a small
business investment company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank
or trust company and whose participants are exclusively State
or Local Plans or ERISA Plans as defined above, and no
participant of the Buyer is an individual retirement account
or an H.R.10 (Xxxxx) plan.
___ Equity Owners. Buyer is an entity in which all of the equity
owners are qualified institutional buyers.
3. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer, (ii) securities
that are part of an unsold allotment to or subscription by the Buyer, if the
Buyer is a dealer, (iii) bank deposit notes and certificates of deposit, (iv)
loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer
G-4
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the
Buyer is not itself a reporting company under the Securities Exchange Act of
1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
--------------------------------------
Name of Buyer
By: /s/
----------------------------------
Name:
Title:
Date:
----------------------------------
G-5
ANNEX 2 TO EXHIBIT G
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described
therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Buyer or the Buyer's Family of Investment Companies, the cost of
such securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in the
preceding sentence applies, the securities may be valued at market.
___ The Buyer owned $____________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $__________ in securities (other than
the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) bank deposit notes and certificates
of deposit, (iii) loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps.
G-6
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
--------------------------------------
Name of Buyer or Adviser
By: /s/
----------------------------------
Name:
Title:
IF AN ADVISER:
--------------------------------------
Name of Buyer
Date:
----------------------------------
G-7
EXHIBIT H
REQUEST FOR RELEASE OF DOCUMENTS
To: JPMorgan Chase Bank
as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services/Global Debt
Re: Pooling and Servicing Agreement, dated as of April 1, 2005 (the
"Agreement"), among Bear Xxxxxxx Asset Backed Securities I LLC, as
Depositor, EMC Mortgage Corporation, as Seller and Master Servicer,
and JPMorgan Chase Bank, N.A., as Trustee.
-------------------------------------------------------------------
In connection with the administration of the Mortgage Loans held by you
as Trustee pursuant to the above-captioned Agreement, we request the
release, and hereby acknowledge receipt, of the Mortgage File for the
Mortgage Loan described below, for the reason indicated
Mortgage Loan Number:
---------------------
Mortgagor Name, Address & Zip Code:
-----------------------------------
Reason for Requesting Documents (check one):
--------------------------------------------
____ 1. Mortgage Paid in Full (and all amounts received or to be
received in connection with such payment have been or will be
remitted to the Master Servicer for deposit in the Master
Servicer Collection Account)
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation (Repurchases, etc.)
____ 5. Nonliquidation Reason:________________________________
Address to which Trustee should ___________________________
Deliver the Mortgage File ________________________________
________________________________
By:___________________________________
(authorized signer)
Issuer:_______________________________
Address:______________________________
______________________________________
H-1
Date:______________________________
Trustee
JPMorgan Chase Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
______________________________ _____________
Signature Date
Documents returned to Trustee
_____________________________ _____________
Trustee Date
H-2
EXHIBIT I
DTC LETTER OF REPRESENTATIONS
[See document at Tab No. ____]
I-1
EXHIBIT J
SCHEDULE OF MORTGAGE LOANS WITH LOST NOTES
[DELIVERED TO THE TRUSTEE]
J-1
EXHIBIT K
Pursuant to Section 3.19 of the Agreement, the EMC Servicer shall
administer and service the EMC Mortgage Loans as set forth herein. Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Agreement. References herein to "the Agreement" shall, unless the context
otherwise specifically requires, be deemed to refer to the Agreement as
supplemented by this Exhibit K.
ARTICLE I.
ADMINISTRATION AND SERVICING
OF EMC MORTGAGE LOANS
Section 1.01. EMC Servicer to Service EMC Mortgage Loans. For and on
behalf of the Certificateholders, the EMC Servicer shall service and administer
the EMC Mortgage Loans in accordance with customary and usual standards of
practice of prudent mortgage loan servicers in the respective states in which
the Mortgaged Properties are located. In connection with such servicing and
administration, the EMC Servicer shall have full power and authority, acting
alone and/or through subservicers as provided in Section 1.02 of this Exhibit K,
to do or cause to be done any and all things that it may deem necessary or
desirable in connection with such servicing and administration, including but
not limited to, the power and authority, subject to the terms hereof (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided herein), (iii) to
collect any Insurance Proceeds and other Liquidation Proceeds, and (iv) subject
to Section 1.12(a) of this Exhibit K, to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any EMC Mortgage
Loan; provided that the EMC Servicer shall take no action that is inconsistent
with or prejudices the interests of the Trust Fund or the Certificateholders in
any EMC Mortgage Loan or the rights and interests of the Depositor and the
Trustee under the Agreement. The EMC Servicer shall represent and protect the
interest of the Trust Fund in the same manner as it currently protects its own
interest in EMC Mortgage Loans in its own portfolio in any claim, proceeding or
litigation regarding an EMC Mortgage Loan and shall not make or permit any
modification, waiver or amendment of any term of any EMC Mortgage Loan which
would cause the Trust Fund to fail to qualify as a REMIC or result in the
imposition of any tax under the REMIC Provisions, but in any case not in any
manner that is a lesser standard than that provided in the first sentence of
this Section 1.01. Without limiting the generality of the foregoing, the EMC
Servicer, in its own name or in the name of the Trust, the Depositor or the
Trustee, is hereby authorized and empowered by the Trust, the Depositor and the
Trustee, when the EMC Servicer believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the EMC Mortgage Loans, and with respect
to the Mortgaged Properties held for the benefit of the Certificateholders. The
EMC Servicer shall prepare and deliver to the Depositor and/or the Trustee such
documents requiring execution and delivery by any or all of them as are
necessary or appropriate to enable the EMC Servicer to service and administer
the EMC
K-1
Mortgage Loans. Upon receipt of such documents, the Depositor and/or the
Trustee shall execute such documents and deliver them to the EMC Servicer.
In accordance with the standards of the preceding paragraph, the EMC
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties, which advances shall be reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section 1.06 of this Exhibit
K, and further as provided in Section 1.08 of this Exhibit K. All costs incurred
by the EMC Servicer, if any, in effecting the timely payments of taxes and
assessments on the Mortgaged Properties and related insurance premiums shall
not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balance under the related
EMC Mortgage Loans, notwithstanding that the terms of such EMC Mortgage Loans so
permit.
The EMC Servicer shall deliver a list of Servicing Officers to the
Master Servicer and the Trustee by the Closing Date.
Section 1.02. Subservicing; Enforcement of the Obligations of EMC
Servicer.
(a) The EMC Servicer may arrange for the subservicing of any
EMC Mortgage Loan by a subservicer (each, a "Subservicer") pursuant to a
subservicing agreement (each, a "Subservicing Agreement"); provided that such
subservicing arrangement and the terms of the related subservicing agreement
must provide for the servicing of such EMC Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder. Notwithstanding the
provisions of any subservicing agreement, any of the provisions herein relating
to agreements or arrangements between the EMC Servicer or a subservicer or
reference to actions taken through the EMC Servicer or otherwise, the EMC
Servicer shall remain obligated and liable to the Depositor, the Trust, the
Trustee and the Certificateholders for the servicing and administration of the
EMC Mortgage Loans in accordance with the provisions of the Agreement without
diminution of such obligation or liability by virtue of such subservicing
agreements or arrangements or by virtue of indemnification from the subservicer
and to the same extent and under the same terms and conditions as if the EMC
Servicer alone were servicing and administering the EMC Mortgage Loans, and
neither the Master Servicer nor the Trustee or any other party shall have any
obligations, duties or liabilities with respect to such subservicer including
any obligation, duty or liability of either the Master Servicer or the Trustee
or any other party to pay such subservicer's fees and expenses. For purposes of
remittance to the Master Servicer pursuant to the Agreement, the EMC Servicer
shall be deemed to have received a payment on an EMC Mortgage Loan when a
subservicer has received such payment. The EMC Servicer shall be entitled to
enter into an agreement with a subservicer to provide for the delivery of
reports and for indemnification of the EMC Servicer by the subservicer and
nothing contained in the Agreement shall be deemed to limit or modify such
indemnification.
Every subservicing agreement entered into by the EMC Servicer
shall contain a provision giving the EMC Servicer the option to terminate such
agreement and at the EMC Servicer's option, service the related EMC Mortgage
Loans itself pursuant to the Agreement or arrange for any servicing
responsibilities to be performed pursuant to the applicable subservicing
agreement by a successor subservicer. Any costs and expenses relating to such
termination and
K-2
transfer of servicing shall be the sole expense of the EMC Servicer, without any
right to reimbursement from the Protected Account, the Master Servicer
Collection Account or the Distribution Account. All actions of each subservicer
performed pursuant to the related subservicing agreement shall be performed as
an agent of the EMC Servicer with the same force and effect as if performed
directly by the EMC Servicer.
(b) For purposes of the Agreement, the EMC Servicer shall be
deemed to have received any collections, recoveries or payments with respect to
the EMC Mortgage Loans that are received by a subservicer regardless of whether
such payments are remitted by the subservicer to the EMC Servicer.
Section 1.03. Rights of the Depositor, the Master Servicer and the
Trustee in Respect of the EMC Servicer. Neither the Trustee nor the Depositor
nor the Master Servicer shall have any responsibility or liability for any
action or failure to act by the EMC Servicer, and neither the Depositor nor the
Trustee is obligated to supervise the performance of the EMC Servicer hereunder
or otherwise.
Section 1.04. Reserved.
Section 1.05. Collection of EMC Mortgage Loan Payments; Protected
Account.
(a) The EMC Servicer shall make reasonable efforts in
accordance with customary and usual standards of practice of prudent mortgage
lenders in the respective states in which the Mortgaged Properties are located
to collect all payments called for under the terms and provisions of the EMC
Mortgage Loans to the extent such procedures shall be consistent with the
Agreement and the terms and provisions of any related Required Insurance Policy.
Consistent with the foregoing, the EMC Servicer may in its discretion (i) waive
any late payment charge or penalty interest in connection with the prepayment of
an EMC Mortgage Loan and (ii) extend the due dates for payments due on a
Mortgage Note for a period not greater than 125 days. In the event of any such
arrangement, the EMC Servicer shall make Advances on the related EMC Mortgage
Loan (except with respect to principal on Simple Interest Loans) during the
scheduled period in accordance with the amortization schedule of such EMC
Mortgage Loan without modification thereof by reason of such arrangements, and
shall be entitled to reimbursement therefor in accordance with Section 2.01 of
this Exhibit K. The EMC Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any public or governmental authority with
respect to a taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which such payment
is required is prohibited by applicable law. In addition, if (x) an EMC Mortgage
Loan is in default or default is imminent or (y) the EMC Servicer delivers to
the Master Servicer and the Trustee a certification, based on the advice of
counsel or certified public accountants, in either case, that have a national
reputation with respect to taxation of REMICs, that a modification of such EMC
Mortgage Loan will not result in the imposition of taxes on or disqualify any
REMIC formed under the Agreement, the EMC Servicer may, (A) amend the related
Mortgage Note to reduce the Mortgage Rate applicable thereto, provided that such
reduced Mortgage Rate shall in no event be lower than 6.0% and (B) amend any
Mortgage Note to extend to the maturity thereof.
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(b) The EMC Servicer shall establish and maintain an
Eligible Account with a depositary institution in the name of the EMC Servicer
for the benefit of the Trustee on behalf of the Certificateholders and
designated "JPMorgan Chase Bank, N.A., in trust for registered holders of Bear
Xxxxxxx Asset Backed Securities, Inc., Asset-Backed Certificates Series
2005-SD2" (the "Protected Account"). The Protected Account shall not be a part
of the Trust Fund. The EMC Servicer shall deposit or cause to be deposited into
the Protected Account on a daily basis within one Business Day of receipt,
except as otherwise specifically provided herein, the following payments and
collections remitted by Subservicers or received by it in respect of EMC
Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest due on the EMC Mortgage Loans, other than Simple Interest
Loans, on or before the Cut-off Date) and the following amounts required to be
deposited hereunder:
(i) all payments on account of principal, including
Principal Prepayments, on the EMC Mortgage Loans;
(ii) all payments on account of interest (other than,
in the case of a Simple Interest Loan, interest paid in excess
of 30 days interest) on the EMC Mortgage Loans net of the
related Servicing Fee permitted under Section 1.16 of this
Exhibit K;
(iii) all Liquidation Proceeds, Insurance Proceeds
and any Subsequent Recoveries, other than proceeds to be
applied to the restoration or repair of the Mortgaged Property
or released to the Mortgagor in accordance with the EMC
Servicer's normal servicing procedures;
(iv) [Reserved];
(v) any amount required to be deposited by the EMC
Servicer pursuant to Section 1.05(d) of this Exhibit K in
connection with any losses on Permitted Investments;
(vi) any amounts required to be deposited by the EMC
Servicer pursuant to Section 1.10 of this Exhibit K; and
(vii) any other amounts required to be deposited
hereunder.
The foregoing requirements for remittance by the EMC Servicer into the
Protected Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, payments in the nature of
Prepayment Charges, late payment charges or assumption fees, if collected, need
not be remitted by the EMC Servicer. In the event that the EMC Servicer shall
remit any amount not required to be remitted and not otherwise subject to
withdrawal pursuant to Section 1.08 of this Exhibit K, it may at any time
withdraw or direct the institution maintaining the Protected Account, to
withdraw such amount from the Protected Account, any provision herein to the
contrary notwithstanding. Such withdrawal or direction may be accomplished by
delivering written notice thereof to the institution maintaining the Protected
Account, that describes the amounts deposited in error in the Protected Account.
The EMC Servicer shall maintain adequate records with respect to all withdrawals
made pursuant to
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this Section. All funds deposited in the Protected Account shall be held in
trust for the Certificateholders until withdrawn in accordance with Section 1.08
of this Exhibit K.
(c) [Reserved.]
(d) The institution that maintains the Protected Account
shall invest the funds in the Protected Account, in the manner directed by the
EMC Servicer, in Permitted Investments which shall mature not later than the
second Business Day next preceding the related Servicer Remittance Date (except
that if such Permitted Investment is an obligation of the institution that
maintains such Protected Account, then such Permitted Investment shall mature
not later than the Business Day next preceding such Servicer Remittance Date)
and shall not be sold or disposed of prior to its maturity. All such Permitted
Investments shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income and gain net of any losses realized from any such
investment shall be for the benefit of the EMC Servicer as servicing
compensation and shall be remitted to it monthly as provided herein. The amount
of any losses incurred in the Protected Account in respect of any such
investments shall be deposited by the EMC Servicer into the Protected Account,
out of the EMC Servicer's own funds.
(e) The EMC Servicer shall give at least 30 days advance
notice to the Master Servicer of any proposed change of location of the
Protected Account prior to any change thereof.
Section 1.06. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. To the extent required by the related Mortgage Note, the EMC
Servicer shall establish and maintain one or more accounts (each, an "Escrow
Account") and deposit and retain therein all collections from the Mortgagors (or
advances by the EMC Servicer) for the payment of taxes, assessments, hazard
insurance premiums or comparable items for the account of the Mortgagors.
Nothing herein shall require the EMC Servicer to compel a Mortgagor to establish
an Escrow Account in violation of applicable law.
Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to reimburse
the EMC Servicer out of related collections for any payments made pursuant to
Section 1.01 of this Exhibit K (with respect to taxes and assessments and
insurance premiums) and Section 1.10 of this Exhibit K (with respect to hazard
insurance), to refund to any Mortgagors any sums as may be determined to be
overages, to pay interest, if required by law or the terms of the related
Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account or to
clear and terminate the Escrow Account at the termination of the Agreement in
accordance with Section 10.01 thereof. The Escrow Account shall not be a part of
the Trust Fund.
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Section 1.07. Access to Certain Documentation and Information
Regarding the EMC Mortgage Loans. The EMC Servicer shall afford the Master
Servicer, the Depositor and the Trustee reasonable access to all records and
documentation regarding the EMC Mortgage Loans and all accounts, insurance
policies and other matters relating to the Agreement, such access being afforded
without charge, but only upon reasonable request and during normal business
hours at the offices of the EMC Servicer designated by it.
Section 1.08. Permitted Withdrawals from the Protected Account.
(a) The EMC Servicer may from time to time make withdrawals
from the Protected Account for the following purposes:
(i) to pay to the EMC Servicer (to the extent not
previously paid to or withheld by the EMC Servicer), as
servicing compensation in accordance with Section 1.16 of this
Exhibit K, that portion of any payment of interest that equals
the Servicing Fee for the period with respect to which such
interest payment was made, and, as additional servicing
compensation, those other amounts set forth in Section 1.16 of
this Exhibit K;
(ii) to reimburse the EMC Servicer for Advances made
by it with respect to the EMC Mortgage Loans, provided,
however, that the EMC Servicer's right of reimbursement
pursuant to this subclause (ii) shall be limited to amounts
received on particular EMC Mortgage Loan(s) (including, for
this purpose, Liquidation Proceeds) that represent late
recoveries of payments of principal and/or interest on such
particular EMC Mortgage Loan(s) in respect of which any such
Advance was made;
(iii) to reimburse the EMC Servicer for any
previously made portion of a Servicing Advance or an Advance
made by the EMC Servicer that, in the good faith judgment of
the EMC Servicer, will not be ultimately recoverable by it
from the related Mortgagor, any related Liquidation Proceeds
or otherwise (a "Nonrecoverable Advance"), to the extent not
reimbursed pursuant to clause (ii) or clause (v);
(iv) to reimburse the EMC Servicer from Insurance
Proceeds for Insured Expenses covered by the related Insurance
Policy;
(v) to pay the EMC Servicer any unpaid Servicing Fees
and to reimburse it for any unreimbursed Servicing Advances,
provided, however, that the EMC Servicer's right to
reimbursement for Servicing Advances pursuant to this
subclause (v) with respect to any EMC Mortgage Loan shall be
limited to amounts received on particular EMC Mortgage Loan(s)
(including, for this purpose, Liquidation Proceeds and
purchase and repurchase proceeds) that represent late
recoveries of the payments for which such Servicing Advances
were made;
(vi) to pay to the Seller, the Depositor, the Master
Servicer or itself, as applicable, with respect to each EMC
Mortgage Loan or property acquired in
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respect thereof that has been purchased pursuant to Section
2.02, 2.03 or 3.20 of the Agreement, all amounts received
thereon and not taken into account in determining the related
Stated Principal Balance of such repurchased EMC Mortgage
Loan;
(vii) to pay any expenses recoverable by the EMC
Servicer pursuant to Sections 3.03, 7.01, 7.03, 7.04 and 9.05
of the Agreement;
(viii) to withdraw pursuant to Section 1.05 of this
Exhibit K any amount deposited in the Protected Account and
not required to be deposited therein; and
(ix) to clear and terminate the Protected Account
upon termination of the Agreement pursuant to Section 10.01
thereof.
(b) In addition, no later than 1:00 p.m. Central time on the
Servicer Remittance Date for the EMC Servicer, the EMC Servicer shall withdraw
from the Protected Account and remit to the Master Servicer the amount of
Interest Funds and Principal Funds collected, to the extent on deposit, and the
Master Servicer shall deposit such amount in the Master Servicer Collection
Account.
The EMC Servicer shall keep and maintain separate accounting, on an EMC
Mortgage Loan by EMC Mortgage Loan basis, for the purpose of justifying
any withdrawal from the Protected Account pursuant to subclauses (i),
(ii), (iv), (v) and (vi) above. Prior to making any withdrawal from the
Protected Account pursuant to subclause (iii), the EMC Servicer shall
deliver to the Master Servicer an Officer's Certificate of a Servicing
Officer indicating the amount of any previous Advance or Servicing
Advance determined by the EMC Servicer to be a Nonrecoverable Advance
and identifying the related EMC Mortgage Loan(s), and their respective
portions of such Nonrecoverable Advance.
(c) [Reserved]
Section 1.09. [Reserved.]
Section 1.10. Maintenance of Hazard Insurance. The EMC Servicer shall
cause to be maintained, for each EMC Mortgage Loan, hazard insurance on
buildings upon, or comprising part of, the Mortgaged Property against loss by
fire, hazards of extended coverage and such other hazards as are customary in
the area where the Mortgaged Property is located with an insurer which is
licensed to do business in the state where the Mortgaged Property is located.
Each such policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. The EMC
Servicer shall also cause flood insurance to be maintained on property acquired
upon foreclosure or deed in lieu of foreclosure of any EMC Mortgage Loan, to the
extent described below. Pursuant to Section 1.05 of this Exhibit K, any amounts
collected by the EMC Servicer under any such policies (other than the amounts to
be applied to the restoration or repair of the related Mortgaged Property or
property thus acquired or amounts released to the Mortgagor in accordance with
the EMC Servicer's normal servicing procedures) shall be deposited in the
Protected Account. Any cost incurred by the EMC Servicer in maintaining any such
insurance shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trustee for their benefit, be added to
the principal
K-7
balance of the EMC Mortgage Loan, notwithstanding that the terms of the EMC
Mortgage Loan so permit. Such costs shall be recoverable by the EMC Servicer out
of late payments by the related Mortgagor or out of Liquidation Proceeds to the
extent permitted by Section 1.08 of this Exhibit K. It is understood and agreed
that no earthquake or other additional insurance is to be required of any
Mortgagor or maintained on property acquired in respect of a Mortgage other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
is located at the time of origination of the EMC Mortgage Loan in a federally
designated special flood hazard area and such area is participating in the
national flood insurance program, the EMC Servicer shall cause flood insurance
to be maintained with respect to such EMC Mortgage Loan. Such flood insurance
shall be in an amount equal to the least of (i) the Stated Principal Balance of
the related EMC Mortgage Loan, (ii) minimum amount required to compensate for
damage or loss on a replacement cost basis or (iii) the maximum amount of such
insurance available for the related Mortgaged Property under the Flood Disaster
Protection Act of 1973, as amended.
In the event that the EMC Servicer shall obtain and maintain a blanket
policy insuring against hazard losses on all of the EMC Mortgage Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first sentence of this Section 1.10, it being understood and agreed that such
policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers. If such
policy contains a deductible clause, the EMC Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property a policy
complying with the first sentence of this Section 1.10, and there shall have
been a loss that would have been covered by such policy, deposit in the
Protected Account the amount not otherwise payable under the blanket policy
because of such deductible clause. Such deposit shall be from the EMC Servicer's
own funds without reimbursement therefor. In connection with its activities as
administrator and servicer of the EMC Mortgage Loans, the EMC Servicer agrees to
present, on behalf of itself, the Depositor and the Trustee for the benefit of
the Certificateholders, claims under any such blanket policy.
Section 1.11. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 1.11(a),
when any property subject to a Mortgage has been or is about to be conveyed by
the Mortgagor, the EMC Servicer shall to the extent that it has knowledge of
such conveyance, enforce any due-on-sale clause contained in any Mortgage Note
or Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that such enforcement will not adversely
affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the EMC Servicer is not required to exercise such
rights with respect to an EMC Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies the
terms and conditions contained in the Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such Mortgage Note or Mortgage is not
otherwise so required under such Mortgage Note or Mortgage as a condition to
such transfer. In the event that the EMC Servicer is prohibited by law from
enforcing any such due-on-sale clause, or if coverage under any Required
Insurance Policy would be adversely affected, or if nonenforcement is otherwise
permitted hereunder, the EMC Servicer is authorized, subject to Section 1.11(b)
of this Exhibit K, to take or enter into an assumption and modification
agreement from or with the person to whom such property has been or is about to
be conveyed, pursuant to
K-8
which such person becomes liable under the Mortgage Note and, unless prohibited
by applicable state law, the Mortgagor remains liable thereon, provided that the
EMC Mortgage Loan shall continue to be covered (if so covered before the EMC
Servicer enters such agreement) by the applicable Required Insurance Policies.
The EMC Servicer, subject to Section 1.11(b) of this Exhibit K, is also
authorized with the prior approval of the insurers under any Required Insurance
Policies to enter into a substitution of liability agreement with such Person,
pursuant to which the original Mortgagor is released from liability and such
Person is substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the EMC Servicer shall not be deemed to be in
default under this Section 1.11(a) by reason of any transfer or assumption that
the EMC Servicer reasonably believes it is restricted by law from preventing.
(b) Subject to the EMC Servicer's duty to enforce any
due-on-sale clause to the extent set forth in Section 1.11(a) of this Exhibit K,
in any case in which a Mortgaged Property has been conveyed to a Person by a
Mortgagor, and such Person is to enter into an assumption agreement or
modification agreement or supplement to the Mortgage Note or Mortgage that
requires the signature of the Trustee, or if an instrument of release signed by
the Trustee is required releasing the Mortgagor from liability on the EMC
Mortgage Loan, the EMC Servicer shall prepare and deliver or cause to be
prepared and delivered to the Trustee for signature and shall direct, in
writing, the Trustee to execute the assumption agreement with the Person to whom
the Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person. In connection with any such
assumption, no material term of the Mortgage Note (including, but not limited
to, the Mortgage Rate, the amount of the Scheduled Payment and any other term
affecting the amount or timing of payment on the EMC Mortgage Loan) may be
changed. In addition, the substitute Mortgagor and the Mortgaged Property must
be acceptable to the EMC Servicer in accordance with its servicing standards as
then in effect. The EMC Servicer shall notify the Trustee that any such
substitution or assumption agreement has been completed by forwarding to the
Trustee the original of such substitution or assumption agreement, which in the
case of the original shall be added to the related Mortgage File and shall, for
all purposes, be considered a part of such Mortgage File to the same extent as
all other documents and instruments constituting a part thereof. Any fee
collected by the EMC Servicer for entering into an assumption or substitution of
liability agreement will be retained by the EMC Servicer as additional servicing
compensation.
Section 1.12. Realization Upon Defaulted EMC Mortgage Loans;
Determination of Excess Liquidation Proceeds and Realized Losses; Repurchase of
Certain EMC Mortgage Loans.
(a) The EMC Servicer shall use reasonable efforts to
foreclose upon or otherwise comparably convert the ownership of properties
securing such of the EMC Mortgage Loans as come into and continue in default and
as to which no satisfactory arrangements can be made for collection of
delinquent payments. In connection with such foreclosure or other conversion,
the EMC Servicer shall follow such practices and procedures as it shall deem
necessary or advisable and as shall be normal and usual in its general mortgage
servicing activities and the requirements of the insurer under any Required
Insurance Policy; provided that
K-9
the EMC Servicer shall not be required to expend its own funds in connection
with any foreclosure or towards the restoration of any property unless it shall
determine (i) that such restoration and/or foreclosure will increase the
proceeds of liquidation of the EMC Mortgage Loan after reimbursement to itself
of such expenses and (ii) that such expenses will be recoverable to it through
Liquidation Proceeds (respecting which it shall have priority for purposes of
withdrawals from the Protected Account pursuant to Section 1.08 of this Exhibit
K). If the EMC Servicer reasonably believes that Liquidation Proceeds with
respect to any such EMC Mortgage Loan would not be increased as a result of such
foreclosure or other action, such EMC Mortgage Loan will be charged-off and will
become a Liquidated Loan. The EMC Servicer will give notice of any such
charge-off to the Master Servicer, the Trustee and the Securities Administrator.
The EMC Servicer shall be responsible for all other costs and expenses incurred
by it in any such proceedings; provided that such costs and expenses shall be
Servicing Advances and that it shall be entitled to reimbursement thereof from
the proceeds of liquidation of the related Mortgaged Property, as contemplated
in Section 1.08 of this Exhibit K. If the EMC Servicer has knowledge that a
Mortgaged Property that the EMC Servicer is contemplating acquiring in
foreclosure or by deed-in-lieu of foreclosure is located within a one-mile
radius of any site with environmental or hazardous waste risks known to the EMC
Servicer, the EMC Servicer will, prior to acquiring the Mortgaged Property,
consider such risks and only take action in accordance with its established
environmental review procedures.
With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trustee for the benefit of the Certificateholders
(or the Trustee's nominee on behalf of the Certificateholders). The Trustee's
name shall be placed on the title to such REO Property solely as the Trustee
hereunder and not in its individual capacity. The EMC Servicer shall ensure that
the title to such REO Property references the Agreement and the Trustee's
capacity thereunder. Pursuant to its efforts to sell such REO Property, the EMC
Servicer shall either itself or through an agent selected by the EMC Servicer
protect and conserve such REO Property in the same manner and to such extent as
is customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the
Certificateholders, rent the same, or any part thereof, as the EMC Servicer
deems to be in the best interest of the EMC Servicer and the Certificateholders
for the period prior to the sale of such REO Property. The EMC Servicer shall
prepare for and deliver to the Master Servicer, the Securities Administrator and
the Trustee a statement with respect to each REO Property that has been rented
showing the aggregate rental income received and all expenses incurred in
connection with the management and maintenance of such REO Property at such
times as is necessary to enable the Master Servicer, the Securities
Administrator or the Trustee to comply with the reporting requirements of the
REMIC Provisions. The net monthly rental income, if any, from such REO Property
shall be deposited in the Protected Account no later than the close of business
on each Determination Date. The EMC Servicer shall perform the tax reporting and
withholding related to foreclosures, abandonments and cancellation of
indebtedness income as specified by Sections 1445, 6050J and 6050P of the Code
by preparing and filing such tax and information returns, as may be required.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on an
EMC Mortgage Loan, the EMC Servicer shall dispose of such Mortgaged Property
prior to three years after its acquisition by the Trust Fund or, at the expense
of the Trust Fund, request more than 60 days prior to the day on
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which such three-year period would otherwise expire, an extension of the
three-year grace period unless the Trustee shall have been supplied with an
Opinion of Counsel (such opinion not to be an expense of the Trustee) to the
effect that the holding by the Trust Fund of such Mortgaged Property subsequent
to such three-year period will not result in the imposition of taxes on
"prohibited transactions" of REMIC I or REMIC II as defined in section 860F of
the Code or cause either of REMIC I or REMIC II to fail to qualify as a REMIC at
any time that any Certificates are outstanding, in which case the Trust Fund may
continue to hold such Mortgaged Property (subject to any conditions contained in
such Opinion of Counsel). Notwithstanding any other provision of the Agreement,
no Mortgaged Property acquired by the Trust Fund shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or on
behalf of the Trust Fund in such a manner or pursuant to any terms that would
(i) cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of section 860G(a)(8) of the Code or (ii) subject either of
REMIC I or REMIC II to the imposition of any federal, state or local income
taxes on the income earned from such Mortgaged Property under section 860G(c) of
the Code or otherwise, unless the EMC Servicer has agreed to indemnify and hold
harmless the Trust Fund with respect to the imposition of any such taxes.
The decision of the EMC Servicer to foreclose on a defaulted EMC
Mortgage Loan shall be subject to a determination by the EMC Servicer that the
proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any Mortgaged
Properties acquired through foreclosure or other judicial proceeding, net of
reimbursement to the EMC Servicer for expenses incurred (including any property
or other taxes) in connection with such management and net of unreimbursed
Servicing Fees, Advances, Servicing Advances and any management fee paid or to
be paid with respect to the management of such Mortgaged Property, shall be
applied to the payment of principal of, and interest on, the related defaulted
EMC Mortgage Loans (with interest accruing as though such EMC Mortgage Loans
were still current) and all such income shall be deemed, for all purposes in the
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Protected Account. To the extent
the income received during a Prepayment Period is in excess of the amount
attributable to amortizing principal and accrued interest at the related
Mortgage Rate on the related EMC Mortgage Loan, such excess shall be considered
to be a partial Principal Prepayment for all purposes hereof.
The Liquidation Proceeds from any liquidation of an EMC Mortgage Loan,
net of any payment to the EMC Servicer as provided above, shall be deposited in
the Protected Account on the next succeeding Determination Date following
receipt thereof for distribution on the related Distribution Date, except that
any Excess Liquidation Proceeds shall be retained by the EMC Servicer as
additional servicing compensation.
The proceeds of any Liquidated Loan, as well as any recovery resulting
from a partial collection of Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the EMC Servicer for any related unreimbursed Servicing Advances and
Servicing Fees, pursuant to Section 1.08(a)(v) of this Exhibit K or this Section
1.12; second, to reimburse the EMC Servicer for any unreimbursed Advances,
pursuant to Section 1.08(a)(ii) of this Exhibit K or this Section 1.12; third,
to accrued and unpaid interest (to the extent no Advance has been made for such
amount) on the EMC Mortgage Loan or related REO Property, at the Net Mortgage
Rate to the first day of the month in which such
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amounts are required to be distributed; and fourth, as a recovery of principal
of the EMC Mortgage Loan.
(b) On each Determination Date, the EMC Servicer shall
determine the respective aggregate amounts of Excess Liquidation Proceeds and
Realized Losses, if any, for the related Prepayment Period.
(c) [Reserved].
(d) The EMC Servicer has no intent to foreclose on any EMC
Mortgage Loan based on the delinquency characteristics as of the Closing Date;
provided, that the foregoing does not prevent the EMC Servicer from initiating
foreclosure proceedings on any date hereafter if the facts and circumstances of
such EMC Mortgage Loans including delinquency characteristics in the EMC
Servicer's discretion so warrant such action.
Section 1.13. REO Property.
(a) In the event the Trust Fund acquires ownership of any
REO Property in respect of any EMC Mortgage Loan, the deed or certificate of
sale shall be issued to the Trustee, or to its nominee, on behalf of the related
Certificateholders. The EMC Servicer shall sell any such REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement. Pursuant to its efforts to sell such REO Property, the EMC Servicer
shall protect and conserve such REO Property in the manner and to the extent
required herein, subject to the REMIC Provisions.
(b) The EMC Servicer shall deposit all funds collected and
received in connection with the operation of any such REO Property into the
Protected Account.
(c) The EMC Servicer, upon the final disposition of any such
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances, unreimbursed Servicing Advances or Servicing Fees from Liquidation
Proceeds received in connection with the final disposition of such REO Property;
provided, that any such unreimbursed Advances or Servicing Fees as well as any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
Section 1.14. Presentment of Claims and Collection of Proceeds. The
EMC Servicer shall prepare and present on behalf of the Trustee and the
Certificateholders all claims under the Insurance Policies, including the
Supplemental Primary Mortgage Insurance Policy, relating to the EMC Mortgage
Loans and take such actions (including the negotiation, settlement, compromise
or enforcement of the insured's claim) as shall be necessary to realize recovery
under such Insurance Policies. Any proceeds disbursed to the EMC Servicer in
respect of such Insurance Policies shall be promptly deposited in the Protected
Account upon receipt, except that any amounts realized that are to be applied to
the repair or restoration of the related Mortgaged Property as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable Insurance Policy need not be so deposited.
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Section 1.15. Documents, Records and Funds in Possession of EMC
Servicer to be Held for the Trustee. Notwithstanding any other provisions of the
Agreement, the EMC Servicer shall transmit to the Custodian on behalf of the
Trustee as required by the Agreement all documents and instruments in respect of
an EMC Mortgage Loan coming into the possession of the EMC Servicer from time to
time and shall account fully to the Trustee for any funds received by the EMC
Servicer or that otherwise are collected by the EMC Servicer as Liquidation
Proceeds or Insurance Proceeds in respect of any EMC Mortgage Loan. All Mortgage
Files and funds collected or held by, or under the control of, the EMC Servicer
in respect of any EMC Mortgage Loans, whether from the collection of principal
and interest payments or from Liquidation Proceeds, including but not limited
to, any funds on deposit in the Protected Account, shall be held by the EMC
Servicer for and on behalf of the Trustee and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of the
Agreement. The EMC Servicer also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the Protected
Account or the Master Servicer Collection Account or in any Escrow Account, or
any funds that otherwise are or may become due or payable to the Trustee for the
benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of set off against any Mortgage File or
any funds collected on, or in connection with, an EMC Mortgage Loan, except,
however, that the EMC Servicer shall be entitled to set off against and deduct
from any such funds any amounts that are properly due and payable to the EMC
Servicer under the Agreement.
Section 1.16. Servicing Compensation. As compensation for its
activities hereunder, the EMC Servicer shall be entitled to retain or withdraw
from the Protected Account out of each payment of interest on an EMC Mortgage
Loan included in the Trust Fund an amount equal to its Servicing Fee at the per
annum rate set forth on the Mortgage Loan Schedule (the "Servicing Fee Rate") on
the Stated Principal Balance of the related EMC Mortgage Loan for the period
covered by such interest payment.
Additional servicing compensation in the form of any Excess Liquidation
Proceeds, assumption fees, late payment charges, Prepayment Charges, all income
and gain net of any losses realized from Permitted Investments with respect to
funds in or credited to the Protected Account shall be retained by the EMC
Servicer to the extent not required to be deposited in the Protected Account
pursuant to Section 1.05 or 1.12(a) of this Exhibit K, and with respect to any
Due Date, any interest paid on Simple Interest Loans in excess of 30 days
interest. The EMC Servicer shall be required to pay all expenses incurred by it
in connection with its servicing activities hereunder (including payment of any
premiums for hazard insurance, as required by Section 1.10 of this Exhibit K and
maintenance of the other forms of insurance coverage required by Section 1.10 of
this Exhibit K) and shall not be entitled to reimbursement therefor except as
specifically provided in Sections 1.08 and 1.12 of this Exhibit K.
Section 1.17. Access to Certain Documentation. The EMC Servicer shall
provide to the OTS and the FDIC and to comparable regulatory authorities
supervising Holders of the Certificates and the examiners and supervisory agents
of the OTS, the FDIC and such other authorities, access to any documentation as
may be held by the EMC Servicer regarding the EMC Mortgage Loans required by
applicable regulations of the OTS and the FDIC. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
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normal business hours at the offices of the EMC Servicer designated by it.
Nothing in this Section shall limit the obligation of the EMC Servicer to
observe any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the EMC Servicer to provide access as provided in
this Section as a result of such obligation shall not constitute a breach of
this Section.
Section 1.18. Maintenance of Primary Mortgage Insurance Policies.
(a) The EMC Servicer shall not take any action that would
result in noncoverage under any applicable Primary Mortgage Insurance Policy of
any loss which, but for the actions of the EMC Servicer, would have been covered
thereunder. The EMC Servicer shall use its best efforts to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), each Primary Mortgage Insurance Policy applicable to any
Mortgage Loan. The EMC Servicer shall not cancel or refuse to renew any such
Primary Mortgage Insurance Policy that is in effect at the date of the initial
issuance of a Mortgage Note and is required to be kept in force hereunder.
Notwithstanding the foregoing, the EMC Servicer shall not be required to keep in
force any Primary Mortgage Insurance Policy beyond the period required by the
Xxxxxx Xxx Servicing Guide for residential mortgage loans.
(b) The EMC Servicer agrees to present, on behalf of the
Trustee and the Certificateholders, claims to the insurer under any Primary
Mortgage Insurance Policy and, in this regard, to take such reasonable action as
shall be necessary to permit recovery under any Primary Mortgage Insurance
Policy respecting defaulted Mortgage Loans. Pursuant to Section 1.08 of this
Exhibit K, any amounts collected by the EMC Servicer under any Primary Mortgage
Insurance Policies shall be deposited in the Protected Account, subject to
withdrawal pursuant to Section 1.08 of this Exhibit K. The Trustee shall provide
the EMC Servicer with any powers of attorney and or other documentation as it
may request in order enable it to perform its obligations pursuant to this
Section 1.18.
Section 1.19. Fidelity Bond, Errors and Omissions Insurance. The EMC
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies on all officers, employees or other persons acting in any capacity
with regard to the EMC Mortgage Loans and who handle funds, money, documents and
papers relating to the EMC Mortgage Loans. The fidelity bond and errors and
omissions insurance shall be in the form of the Mortgage Banker's Blanket Bond
and shall protect and insure the EMC Servicer against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
persons. Such fidelity bond shall also protect and insure the EMC Servicer
against losses in connection with the failure to maintain any insurance policies
required pursuant to the Agreement and the release or satisfaction of an EMC
Mortgage Loan which is not serviced in accordance with the requirements of
Section 1.01. No provision on this Section 1.19 requiring the fidelity bond and
errors and omissions insurance shall diminish or relieve the EMC Servicer from
its duties and obligations as set forth in the Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the coverage
acceptable to Xxxxxx Xxx or Xxxxxxx Mac for persons performing servicing for
loans purchased by Xxxxxx Mae or Xxxxxxx Mac. The EMC Servicer shall notify the
Master Servicer and the Trustee within five business days of receipt of notice
that such fidelity bond or insurance policy will be, or has been, materially
modified or terminated. The Trustee for the
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benefit of the Certificateholders must be named as loss payee on the fidelity
bond and as additional insured on the errors and omissions policy.
ARTICLE II.
ADVANCES BY THE EMC SERVICER
Section 2.01 Advances. The EMC Servicer shall make an Advance and
deposit such Advance in the Protected Account. Each such Advance shall be
remitted to the Master Servicer Collection Account no later than 1:00 p.m.
Central time on the related Servicer Remittance Date in immediately available
funds. The EMC Servicer shall be obligated to make any such Advance only to the
extent that such advance would not be a Nonrecoverable Advance. If the EMC
Servicer shall have determined that it has made a Nonrecoverable Advance or that
a proposed Advance or a lesser portion of such Advance would constitute a
Nonrecoverable Advance, the EMC Servicer shall deliver to the Master Servicer
(i) funds constituting the remaining portion of such Advance, if applicable, and
(ii) an Officer's Certificate setting forth the basis for such determination.
In lieu of making all or a portion of such Advance from its own funds,
the EMC Servicer may (i) cause to be made an appropriate entry in its records
relating to the Protected Account that any Amount Held for Future Distributions
has been used by the EMC Servicer in discharge of its obligation to make any
such Advance and (ii) transfer such funds from the Protected Account to the
Master Servicer Collection Account. Any funds so applied and transferred shall
be replaced by the EMC Servicer by deposit in the Protected Account no later
than the close of business on the Business Day immediately preceding the
Servicer Remittance Date on which such funds are required to be remitted to the
Master Servicer for deposit into the Master Servicer Collection Account. The EMC
Servicer shall be entitled to be reimbursed from the Protected Account for all
Advances of its own funds made pursuant to this Section as provided in Section
1.08 of this Exhibit K. The obligation to make Advances with respect to any EMC
Mortgage Loan shall continue until such EMC Mortgage Loan is paid in full or the
related Mortgaged Property or related REO Property has been liquidated or until
the purchase or repurchase thereof (or substitution therefor) from the Trust
Fund pursuant to any applicable provision of the Agreement, except as otherwise
provided in this Section 2.01.
Section 2.02. Reduction of Servicing Compensation in Connection with
Prepayment Interest Shortfalls. In the event that, for any Prepayment Period,
there is a Prepayment Interest Shortfall arising from a voluntary Principal
Prepayment in part or in full by a Mortgagor, the EMC Servicer shall, to the
extent of its Servicing Fee and in reduction thereof, remit to the Master
Servicer, for deposit into the Master Servicer Collection Account, no later than
1:00 p.m. Central time on the Servicer Remittance Date, an amount equal to the
Prepayment Interest Shortfall; and in case of such deposit, the EMC Servicer
shall not be entitled to any recovery or reimbursement from the Depositor, the
Trustee, the Seller, the Securities Administrator, the Master Servicer, any
other Servicer, the Trust Fund or the Certificateholders.
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ARTICLE III.
REPORTING REQUIREMENTS
Section 3.01. Annual Officer's Certificate as to Compliance.
(a) The EMC Servicer shall deliver to the Master Servicer by
March 1, 2006, and by March 1 of each year thereafter, an Officer's Certificate,
certifying that with respect to the most recently ended calendar year: (i) such
Servicing Officer has reviewed the activities of the EMC Servicer during the
preceding calendar year or portion thereof and its performance under the
Agreement and (ii) to the best of such Servicing Officer's knowledge, based on
such review, the EMC Servicer has performed and fulfilled its duties,
responsibilities and obligations under the Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such duties, responsibilities or obligations, specifying each such default known
to such Servicing Officer and the nature and status thereof.
(b) Annual Independent Accountant's Servicing Report. The
EMC Servicer, at its expense, shall cause a nationally recognized firm of
independent certified public accountants to furnish a statement to the Master
Servicer by March 1, 2006, and by March 1 of each year thereafter, to the effect
that, with respect to the most recently ended calendar year, such firm has
examined certain records and documents relating to the EMC Servicer's
performance of its servicing obligations under this Agreement and pooling and
servicing and trust agreements in material respects similar to this Agreement
and to each other and that, on the basis of such examination conducted
substantially in compliance with the audit program for mortgages serviced for
Xxxxxxx Mac or the Uniform Single Attestation Program for Mortgage Bankers, such
firm is of the opinion that the EMC Servicer's activities have been conducted in
compliance with the Agreement, or that such examination has disclosed no
material items of noncompliance except for (i) such exceptions as such firm
believes to be immaterial, (ii) such other exceptions as are set forth in such
statement and (iii) such exceptions that the Uniform Single Attestation Program
for Mortgage Bankers or the Audit Program for Mortgages Serviced by Xxxxxxx Mac
requires it to report. If any such report discloses exceptions that are
material, the EMC Servicer shall advise the Master Servicer whether such
exceptions have been or are susceptible of cure, and will take prompt action to
do so.
Any Annual Independent Public Accountant's Report furnished pursuant to
this Section 3.01(b) shall be in such form as shall permit such report to be
filed with the Securities and Exchange Commission as part of the Issuer's annual
report on Form 10-K filed pursuant to the Securities Exchange Act of 1934, as
amended, and no such Annual Independent Public Accountant's Report shall contain
any language restricting, limiting or prohibiting such use of such report
(c) Annual Certification. (i) The EMC Servicer will deliver
to the Master Servicer, on or before March 1 of each year beginning March 1,
2006 (or, if any such day is not a Business Day, the immediately preceding
Business Day), or on any alternative date specified by the Master Servicer upon
thirty (30) days written request, a certification containing the information set
forth in Attachment 1 to this Exhibit K. Such certification shall be signed by
the senior officer in charge of servicing of the EMC Servicer. In addition, the
EMC Servicer shall
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provide such other information with respect to the EMC Mortgage Loans and the
servicing and administration thereof within the control of the EMC Servicer
which shall be required to enable the Master Servicer to comply with the
reporting requirements of the Securities and Exchange Act of 1934, as amended.
(ii) The EMC Servicer shall indemnify and hold
harmless the Master Servicer and its officers, directors,
agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses arising
out of or based upon a breach by the EMC Servicer or any of
its officers, directors, agents or affiliates of its
obligations under this Section 3.01(c) or the EMC Servicer's
negligence, bad faith or willful misconduct in connection
therewith. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Master
Servicer, then the EMC Servicer agrees that it shall
contribute to the amount paid or payable by the Master
Servicer as a result of the losses, claims, damages or
liabilities of the Master Servicer in such proportion as is
appropriate to reflect the relative fault of the Master
Servicer on the one hand and the EMC Servicer on the other in
connection with a breach of the EMC Servicer's obligations
under this Section 3.01(c).
Section 3.02. Liquidation Reports. Upon the foreclosure of any
Mortgaged Property relating to an EMC Mortgage Loan or the acquisition thereof
by the Trust Fund pursuant to a deed-in-lieu of foreclosure, the EMC Servicer
shall submit a liquidation report to the Master Servicer containing such
information as shall be mutually acceptable to the EMC Servicer and the Master
Servicer with respect to such Mortgaged Property.
Section 3.03. Books and Records. The EMC Servicer shall be responsible
for maintaining, and shall maintain, a complete set of books and records for the
EMC Mortgage Loans which shall be appropriately identified in the EMC Servicer's
computer system to clearly reflect the ownership of the EMC Mortgage Loans by
the Trust. In particular, the EMC Servicer shall maintain in its possession,
available for inspection by the Master Servicer and the Trustee and shall
deliver to the Master Servicer and the Trustee upon demand, evidence of
compliance with all federal, state and local laws, rules and regulations. To the
extent that original documents are not required for purposes of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the EMC
Servicer may be in the form of microfilm or microfiche or such other reliable
means of recreating original documents, including, but not limited to, optical
imagery techniques so long as the EMC Servicer complies with the servicing
requirements of Section 1.01 of this Exhibit K.
The EMC Servicer shall maintain with respect to each EMC Mortgage Loan
and shall make available for inspection by the Master Servicer and the Trustee
the related servicing file during the time such EMC Mortgage Loan is subject to
the Agreement and thereafter in accordance with applicable law.
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ARTICLE IV.
INDEMNIFICATION
Section 4.01. Indemnification of the Master Servicer.
(a) To the extent not covered by the provisions of Section
3.01(c)(ii) of this Exhibit K, the EMC Servicer shall indemnify and hold
harmless the Master Servicer from any loss, liability or expense (except as
otherwise provided herein with respect to expenses) (including reasonable legal
fees and disbursements of counsel) incurred on its part that may be sustained in
connection with, arising out of, or relating to enforcement of the EMC
Servicer's obligations under the Agreement (i) related to the EMC Servicer's
failure to perform its duties in compliance with the Agreement or (ii) incurred
by reason of the EMC Servicer's willful misfeasance, bad faith or gross
negligence in the performance of its duties under the Agreement or by reason of
its reckless disregard of its obligations and duties under the Agreement,
provided, in each case, that with respect to any such claim or legal action (or
pending or threatened claim or legal action), the Master Servicer shall have
given the EMC Servicer written notice thereof promptly after a Responsible
Officer of the Master Servicer shall have with respect to such claim or legal
action actual knowledge thereof. The Master Servicer's failure to give such
notice shall not affect its right to indemnification hereunder. This indemnity
shall survive the resignation or removal of the Trustee, the Master Servicer,
the EMC Servicer or the Securities Administrator and the termination of the
Agreement.
(b) The Trust Fund will indemnify the Master Servicer for
any loss, liability or expense of the Master Servicer referred to in Subsection
(a) above that has not otherwise been paid by the EMC Servicer.
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ATTACHMENT 1 TO EXHIBIT K
This certificate is being delivered pursuant to Section 3.01(c) of
Exhibit K to the Pooling and Servicing Agreement, dated as of April 1, 2005 (the
"Agreement"), among Bear Xxxxxxx Asset Backed Securities I, LLC, as depositor,
EMC Mortgage Corporation (the "Company"), as seller and servicer, Xxxxx Fargo
Bank, N. A., as master servicer and securities administrator, and JPMorgan Chase
Bank, N.A., as trustee. Capitalized terms used herein and not otherwise defined
have the meanings set forth in the Agreement.
I certify that:
(i) I am a _______________ of the Company.
(ii) Based on my knowledge, the information in the annual statement of
compliance furnished in __________ 20__ pursuant to Section 3.01(a) of Exhibit K
of the Agreement and the annual independent certified public accountants'
servicing report delivered pursuant to Section 3.01(b) thereof (collectively,
the "Reports"), and all servicing reports, office's certificates and other
information relating to the EMC Mortgage Loans submitted to the Master Servicer
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the date of this certification.
(iii) The servicing information required to be provided to the Master
Servicer by the Company under the Agreement has been provided to the Master
Servicer.
(iv) I am responsible for reviewing the servicing activities performed
by the Company pursuant to the Agreement, and except as disclosed in the
Reports, the Company has, as of the date of this Certification, fulfilled its
obligations under the Agreement.
(v) I have disclosed to the Master Servicer all significant
deficiencies relating to the Company's compliance with the minimum servicing
standards in accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set forth
in the Agreement.
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Dated: , 20
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