====================================================================
Popular ABS, Inc.
Depositor
Equity One, Inc., a Delaware corporation
A Seller and the Servicer
Popular Financial Funding, LLC
Equity One, Incorporated
Equity One, Inc., a Minnesota corporation
Equity One Consumer Loan Company, Inc.
and
Popular Financial Services, LLC
Sellers
and
JPMorgan Chase Bank, N.A.
Trustee
------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2005
------------------------
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-D
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TABLE OF CONTENTS
Page
------
PRELIMINARY STATEMENT....................... 1
ARTICLE I DEFINITIONS....................... 6
60+ DAY DELINQUENT LOAN.................... 6
ADJUSTABLE RATE CERTIFICATES............... 6
ADJUSTED MORTGAGE RATE..................... 6
ADJUSTED NET MORTGAGE RATE................. 6
ADVANCE.................................... 6
AGGREGATE CLASS B EARLY DISTRIBUTION AMOUNT 6
AGREEMENT.................................. 6
AMOUNT HELD FOR FUTURE DISTRIBUTION........ 6
APPLIED REALIZED LOSS AMOUNT............... 7
AVAILABLE FUNDS............................ 7
BALLOON LOANS.............................. 7
BANKRUPTCY CODE............................ 7
BASIC PRINCIPAL DISTRIBUTION AMOUNT........ 7
BENEFICIAL OWNER........................... 7
BOOK-ENTRY CERTIFICATES.................... 7
BUSINESS DAY............................... 7
CERTIFICATES............................... 7
CERTIFICATE ACCOUNT........................ 7
CERTIFICATE BALANCE........................ 8
CERTIFICATEHOLDER OR HOLDER................ 8
CERTIFICATE REGISTER....................... 8
CERTIFICATE REGISTRAR...................... 8
CLASS...................................... 8
CLASS A-1 CERTIFICATE...................... 8
CLASS A-2 CERTIFICATE...................... 8
CLASS A-3 CERTIFICATE...................... 8
CLASS A-4 CERTIFICATE...................... 8
CLASS A-5 CERTIFICATE...................... 9
CLASS A-6 CERTIFICATE...................... 9
CLASS A-6 LOCKOUT DISTRIBUTION AMOUNT...... 9
CLASS A-6 LOCKOUT PERCENTAGE............... 9
CLASS A-6 PRO RATA DISTRIBUTION AMOUNT..... 9
CLASS B-1 APPLIED REALIZED LOSS AMOUNT..... 9
CLASS B-1 CERTIFICATE...................... 10
CLASS B-1 PRINCIPAL DISTRIBUTION AMOUNT.... 10
CLASS B-1 REALIZED LOSS AMORTIZATION AMOUNT 10
CLASS B-2 APPLIED REALIZED LOSS AMOUNT..... 10
CLASS B-2 CERTIFICATE...................... 10
CLASS B-2 PRINCIPAL DISTRIBUTION AMOUNT.... 10
CLASS B-2 REALIZED LOSS AMORTIZATION AMOUNT 11
CLASS B-3 APPLIED REALIZED LOSS AMOUNT..... 11
CLASS B-3 CERTIFICATE...................... 11
CLASS B-3 PRINCIPAL DISTRIBUTION AMOUNT.... 11
CLASS B-3 REALIZED LOSS AMORTIZATION AMOUNT 12
CLASS B-4 APPLIED REALIZED LOSS AMOUNT..... 12
i
CLASS B-4 CERTIFICATE...................... 12
CLASS B-4 PRINCIPAL DISTRIBUTION AMOUNT.... 12
CLASS B-4 REALIZED LOSS AMORTIZATION AMOUNT 12
CLASS CERTIFICATE BALANCE.................. 13
CLASS INTEREST SHORTFALL................... 13
CLASS M-1 APPLIED REALIZED LOSS AMOUNT..... 13
CLASS M-1 CERTIFICATE...................... 13
CLASS M-1 PRINCIPAL DISTRIBUTION AMOUNT.... 13
CLASS M-1 REALIZED LOSS AMORTIZATION AMOUNT 13
CLASS M-2 APPLIED REALIZED LOSS AMOUNT..... 13
CLASS M-2 CERTIFICATE...................... 14
CLASS M-2 PRINCIPAL DISTRIBUTION AMOUNT.... 14
CLASS M-2 REALIZED LOSS AMORTIZATION AMOUNT 14
CLASS M-3 APPLIED REALIZED LOSS AMOUNT..... 14
CLASS M-3 CERTIFICATE...................... 14
CLASS M-3 PRINCIPAL DISTRIBUTION AMOUNT.... 15
CLASS M-3 REALIZED LOSS AMORTIZATION AMOUNT 15
CLASS M-4 APPLIED REALIZED LOSS AMOUNT..... 15
CLASS M-4 CERTIFICATE...................... 15
CLASS M-4 PRINCIPAL DISTRIBUTION AMOUNT.... 15
CLASS M-4 REALIZED LOSS AMORTIZATION AMOUNT 15
CLASS M-5 APPLIED REALIZED LOSS AMOUNT..... 16
CLASS M-5 CERTIFICATE...................... 16
CLASS M-5 PRINCIPAL DISTRIBUTION AMOUNT.... 16
CLASS M-5 REALIZED LOSS AMORTIZATION AMOUNT 16
CLASS M-6 APPLIED REALIZED LOSS AMOUNT..... 16
CLASS M-6 CERTIFICATE...................... 16
CLASS M-6 PRINCIPAL DISTRIBUTION AMOUNT.... 17
CLASS M-6 REALIZED LOSS AMORTIZATION AMOUNT 17
CLASS R CERTIFICATES....................... 17
CLASS UNPAID INTEREST AMOUNTS.............. 17
CLASS X CERTIFICATE........................ 17
CLOSING DATE............................... 17
CLOSING PLACE.............................. 17
CODE....................................... 17
COLLATERAL................................. 17
COLLATERAL VALUE........................... 18
COMBINED LOAN-TO-VALUE RATIO............... 18
CORPORATE TRUST OFFICE..................... 18
CORRESPONDING CLASS........................ 18
COUNTERPARTY............................... 18
CUSTODIAL AGREEMENT........................ 18
CUSTODIAN.................................. 18
CUT-OFF DATE............................... 18
CUT-OFF DATE POOL PRINCIPAL BALANCE........ 18
CUT-OFF DATE PRINCIPAL BALANCE............. 19
DEFECTIVE LOAN............................. 19
DEFICIENT VALUATION........................ 19
DEFINITIVE CERTIFICATES.................... 19
DELETED LOAN............................... 19
DENOMINATION............................... 19
ii
DEPOSITOR........................................................... 19
DEPOSITORY.......................................................... 19
DEPOSITORY PARTICIPANT.............................................. 19
DETERMINATION DATE.................................................. 19
DISTRIBUTION ACCOUNT................................................ 19
DISTRIBUTION ACCOUNT DEPOSIT DATE................................... 20
DISTRIBUTION DATE................................................... 20
DUE DATE............................................................ 20
DUE PERIOD.......................................................... 20
ELIGIBLE ACCOUNT.................................................... 20
EQUITY ONE-DELAWARE................................................. 20
EQUITY ONE-MINNESOTA................................................ 20
EQUITY ONE-NEW HAMPSHIRE............................................ 20
EQUITY ONE CONSUMER LOAN COMPANY, INC., A NEW HAMPSHIRE CORPORATION. 20
EQUITY ONE-PENNSYLVANIA............................................. 20
ERISA............................................................... 20
ERISA QUALIFYING UNDERWRITING....................................... 21
ERISA-RESTRICTED CERTIFICATE........................................ 21
ESCROW ACCOUNT...................................................... 21
EVENT OF DEFAULT.................................................... 21
EXCESS PROCEEDS..................................................... 21
EXPENSE RATE........................................................ 21
EXTRA PRINCIPAL DISTRIBUTION AMOUNT................................. 21
FDIC................................................................ 21
FHLMC............................................................... 21
FIRREA.............................................................. 21
FIXED RATE CERTIFICATES............................................. 21
FNMA................................................................ 22
HEDGED CERTIFICATES................................................. 22
INDIRECT PARTICIPANT................................................ 22
INITIAL CERTIFICATE ACCOUNT DEPOSIT................................. 22
INSURANCE POLICY.................................................... 22
INSURANCE PROCEEDS.................................................. 22
INSURED EXPENSES.................................................... 22
INTEREST ACCRUAL PERIOD............................................. 22
INTEREST DISTRIBUTION AMOUNT........................................ 22
INTEREST REMITTANCE AMOUNT.......................................... 22
INVESTMENT LETTER................................................... 22
LATEST POSSIBLE MATURITY DATE....................................... 23
LAST SCHEDULED DISTRIBUTION DATE.................................... 23
LIBOR............................................................... 23
LIBOR DETERMINATION DATE............................................ 23
LIQUIDATED LOAN..................................................... 23
LIQUIDATION PROCEEDS................................................ 23
LOANS............................................................... 23
LOAN SCHEDULE....................................................... 23
MAJORITY IN INTEREST................................................ 24
MERS (R)............................................................ 24
MERS (R) SYSTEM..................................................... 24
MIN................................................................. 24
MOM LOAN............................................................ 24
iii
MONTHLY EXCESS CASHFLOW AMOUNT....................... 24
MONTHLY EXCESS INTEREST AMOUNT....................... 24
MONTHLY STATEMENT.................................... 24
XXXXX'X.............................................. 25
MORTGAGE............................................. 25
MORTGAGED PROPERTY................................... 25
MORTGAGE FILE........................................ 25
MORTGAGE NOTE........................................ 25
MORTGAGE RATE........................................ 25
MORTGAGOR............................................ 25
NET PREPAYMENT INTEREST SHORTFALLS................... 25
NET PRINCIPAL SHORTFALL AMOUNT....................... 25
NET REALIZED LOSSES.................................. 25
NET RECOVERY REALIZED LOSSES......................... 25
NET WAC CAP.......................................... 26
NET WAC CAP ACCOUNT.................................. 26
NET WAC CAP CARRYOVER................................ 26
NET WAC CAP DEPOSIT AMOUNT........................... 26
NET WAC RATE......................................... 26
NONRECOVERABLE ADVANCE............................... 26
NOTICE OF FINAL DISTRIBUTION......................... 26
OFFERED CERTIFICATES................................. 26
OFFICER'S CERTIFICATE................................ 27
OPINION OF COUNSEL................................... 27
OPTIONAL TERMINATION DATE............................ 27
OPTIONAL TERMINATION................................. 27
ORIGINAL LOAN........................................ 27
OTS.................................................. 27
OUTSTANDING.......................................... 27
OUTSTANDING LOAN..................................... 27
OVERCOLLATERALIZATION AMOUNT......................... 27
OVERCOLLATERALIZATION DEFICIENCY..................... 27
OVERCOLLATERALIZATION RELEASE AMOUNT................. 28
OWNERSHIP INTEREST................................... 28
PASS-THROUGH RATE.................................... 28
PAYING AGENT......................................... 28
PERCENTAGE INTEREST.................................. 28
PERMITTED INVESTMENTS................................ 28
PERMITTED TRANSFEREE................................. 29
PERSON............................................... 30
PLAN................................................. 30
POOL PRINCIPAL BALANCE............................... 30
POPULAR FINANCIAL.................................... 30
POPULAR FUNDING...................................... 30
POST-STEPDOWN REMAINING PRINCIPAL DISTRIBUTION AMOUNT 30
PRE-STEPDOWN REMAINING PRINCIPAL DISTRIBUTION AMOUNT. 30
PREPAYMENT INTEREST EXCESS........................... 30
PREPAYMENT INTEREST SHORTFALL........................ 30
PREPAYMENT PERIOD.................................... 30
PRIMARY MORTGAGE INSURANCE POLICY.................... 30
PRINCIPAL DISTRIBUTION AMOUNT........................ 31
iv
PRINCIPAL PREPAYMENT................... 31
PRINCIPAL PREPAYMENT IN FULL........... 31
PRINCIPAL REMITTANCE AMOUNT............ 31
PROSPECTUS SUPPLEMENT.................. 31
PUBLICLY OFFERED CERTIFICATES.......... 31
PURCHASE PRICE......................... 31
PTCE 95-60............................. 32
RATING AGENCY.......................... 32
REALIZED LOSS AMOUNT................... 32
REALIZED LOSSES........................ 32
REALIZED LOSS AMORTIZATION AMOUNT...... 32
RECORD DATE............................ 32
REFERENCE BANKS........................ 33
REFINANCE LOAN......................... 33
RELIEF ACT............................. 33
RELIEF ACT REDUCTIONS.................. 33
REMAINING INTEREST REMITTANCE AMOUNT... 33
REMAINING PRINCIPAL DISTRIBUTION AMOUNT 33
REMIC.................................. 33
REMIC 1................................ 33
REMIC 2................................ 33
REMIC 1 ACCRUAL CLASS.................. 33
REMIC CHANGE OF LAW.................... 33
REMIC PROVISIONS....................... 33
REO PROPERTY........................... 34
REQUEST FOR RELEASE.................... 34
REQUIRED INSURANCE POLICY.............. 34
RESERVE FUND........................... 34
RESPONSIBLE OFFICER.................... 34
RULE 144A LETTER....................... 34
SCHEDULED PAYMENT...................... 34
SECOND LIEN LOAN....................... 34
SECURITIES ACT......................... 34
SELLERS................................ 34
SENIOR CERTIFICATES.................... 34
SENIOR ENHANCEMENT PERCENTAGE.......... 34
SENIOR PRINCIPAL DISTRIBUTION AMOUNT... 35
SENIOR SPECIFIED ENHANCEMENT PERCENTAGE 35
SERVICER............................... 35
SERVICER ADVANCE DATE.................. 35
SERVICING ADVANCES..................... 35
SERVICING AMOUNT....................... 35
SERVICING FEE.......................... 35
SERVICING FEE RATE..................... 35
SERVICING OFFICER...................... 35
S&P.................................... 36
STARTUP DAY............................ 36
STATED PRINCIPAL BALANCE............... 36
STEPDOWN DATE.......................... 36
SUBORDINATE CERTIFICATES............... 36
SUBSERVICER............................ 36
v
SUBSTITUTE LOAN........................................................................................... 36
SUBSTITUTION ADJUSTMENT AMOUNT............................................................................ 36
TARGETED OVERCOLLATERALIZATION AMOUNT..................................................................... 36
TAX MATTERS PERSON........................................................................................ 37
TAX MATTERS PERSON CERTIFICATE............................................................................ 37
TERMINATION PRICE......................................................................................... 37
TRANSFER.................................................................................................. 37
TRANSFER AFFIDAVIT........................................................................................ 37
TRANSFEROR CERTIFICATE.................................................................................... 37
TRIGGER EVENT............................................................................................. 37
TRUSTEE................................................................................................... 38
TRUSTEE FEE............................................................................................... 38
TRUSTEE FEE RATE.......................................................................................... 38
TRUST FUND................................................................................................ 39
TRUSTEE PERMITTED WITHDRAWAL AMOUNT....................................................................... 39
UNPAID REALIZED LOSS AMOUNT............................................................................... 39
UNDERWRITER EXEMPTION..................................................................................... 39
UNDERWRITERS.............................................................................................. 39
VOTING RIGHTS............................................................................................. 39
YIELD MAINTENANCE AGREEMENT............................................................................... 39
YIELD MAINTENANCE STATED TERMINATION...................................................................... 40
ARTICLE II CONVEYANCE OF LOANS; REPRESENTATIONS AND WARRANTIES............................................. 40
SECTION 2.01. CONVEYANCE OF LOANS......................................................................... 40
SECTION 2.02. ACCEPTANCE BY TRUSTEE OF THE TRUST FUND..................................................... 43
SECTION 2.03. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLERS AND THE SERVICER................... 45
SECTION 2.03A. ADDITIONAL OBLIGATIONS OF EQUITY ONE-DELAWARE.............................................. 47
SECTION 2.04. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR AS TO THE LOANS............................. 47
SECTION 2.05. DELIVERY OF OPINION OF COUNSEL IN CONNECTION WITH SUBSTITUTIONS............................. 47
SECTION 2.06. EXECUTION AND DELIVERY OF CERTIFICATES...................................................... 48
SECTION 2.07. REMIC MATTERS............................................................................... 48
SECTION 2.08. COVENANTS OF THE SERVICER................................................................... 48
ARTICLE III ADMINISTRATION AND SERVICING OF LOANS.......................................................... 49
SECTION 3.01. SERVICER TO SERVICE LOANS................................................................... 49
SECTION 3.02. SUBSERVICING; ENFORCEMENT OF THE OBLIGATIONS OF SERVICERS................................... 49
SECTION 3.03. RIGHTS OF THE DEPOSITOR AND THE TRUSTEE IN RESPECT OF THE SERVICER.......................... 50
SECTION 3.04. TRUSTEE TO ACT AS SERVICER.................................................................. 50
SECTION 3.05. COLLECTION OF LOAN PAYMENTS; CERTIFICATE ACCOUNT; DISTRIBUTION ACCOUNT...................... 51
SECTION 3.06. PAYMENT OF TAXES, ASSESSMENTS, HAZARD INSURANCE PREMIUMS AND SIMILAR ITEMS; ESCROW ACCOUNTS. 53
SECTION 3.07. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE LOANS......................... 53
SECTION 3.08. PERMITTED WITHDRAWALS FROM THE CERTIFICATE ACCOUNT AND DISTRIBUTION ACCOUNT................. 54
SECTION 3.09. MAINTENANCE OF HAZARD INSURANCE; MAINTENANCE OF PRIMARY INSURANCE POLICIES.................. 55
SECTION 3.10. ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS................................... 56
vi
SECTION 3.11. REALIZATION UPON DEFAULTED LOANS; REPURCHASE AND SALE OF CERTAIN LOANS............ 57
SECTION 3.12. DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SERVICER TO BE HELD FOR THE TRUSTEE. 59
SECTION 3.13. SERVICING COMPENSATION............................................................ 60
SECTION 3.14. ACCESS TO CERTAIN DOCUMENTATION................................................... 60
SECTION 3.15. ANNUAL STATEMENT AS TO COMPLIANCE................................................. 60
SECTION 3.16. ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING STATEMENT; FINANCIAL STATEMENTS.. 60
SECTION 3.17. ERRORS AND OMISSIONS INSURANCE; FIDELITY BONDS.................................... 61
SECTION 3.18. RESERVED.......................................................................... 61
SECTION 3.19. DELINQUENT LOANS.................................................................. 61
ARTICLE IIIA RESERVE FUND AND NET WAC CAP ACCOUNT................................................ 62
SECTION 3A.01 RESERVED.......................................................................... 62
SECTION 3A.02 RESERVE FUND AND YIELD MAINTENANCE AGREEMENT...................................... 62
SECTION 3A.03. NET WAC CAP ACCOUNT.............................................................. 63
ARTICLE IV DISTRIBUTIONS AND ADVANCES BY THE SERVICER............................................ 64
SECTION 4.01. ADVANCES.......................................................................... 64
SECTION 4.02. PRIORITIES OF DISTRIBUTION AND ALLOCATION......................................... 64
SECTION 4.02A. RECOVERIES....................................................................... 71
SECTION 4.03. MONTHLY STATEMENTS TO CERTIFICATEHOLDERS.......................................... 72
SECTION 4.04. REPORTING......................................................................... 75
SECTION 5.01. THE CERTIFICATES.................................................................. 75
SECTION 5.02. CERTIFICATE REGISTER; REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES....... 76
SECTION 5.03. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES................................. 80
SECTION 5.04. PERSONS DEEMED OWNERS............................................................. 80
SECTION 5.05. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES......................... 80
SECTION 5.06. MAINTENANCE OF OFFICE OR AGENCY................................................... 80
ARTICLE VI THE DEPOSITOR AND THE SERVICER........................................................ 81
SECTION 6.01. RESPECTIVE LIABILITIES OF THE DEPOSITOR AND THE SERVICER.......................... 81
SECTION 6.02. MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE SERVICER.......................... 81
SECTION 6.03. LIMITATION ON LIABILITY OF THE DEPOSITOR, THE SELLERS, THE SERVICER AND OTHERS.... 81
SECTION 6.04. LIMITATION ON RESIGNATION OF SERVICER............................................. 82
SECTION 6.05. INDEMNIFICATION................................................................... 82
ARTICLE VII DEFAULT.............................................................................. 82
SECTION 7.01. EVENTS OF DEFAULT................................................................. 82
SECTION 7.02. TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.......................................... 84
SECTION 7.03. NOTIFICATION TO CERTIFICATEHOLDERS................................................ 85
SECTION 7.04. SURVIVABILITY OF SERVICER LIABILITIES............................................. 85
ARTICLE VIII CONCERNING THE TRUSTEE.............................................................. 86
SECTION 8.01. DUTIES OF TRUSTEE................................................................. 86
SECTION 8.02 CERTAIN MATTERS AFFECTING THE TRUSTEE.............................................. 87
SECTION 8.03. TRUSTEE NOT LIABLE FOR CERTIFICATES OR LOANS...................................... 88
SECTION 8.04. TRUSTEE MAY OWN CERTIFICATES...................................................... 89
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SECTION 8.05. TRUSTEE'S FEES AND EXPENSES................................... 89
SECTION 8.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.......................... 89
SECTION 8.07. RESIGNATION AND REMOVAL OF TRUSTEE............................ 90
SECTION 8.08. SUCCESSOR TRUSTEE............................................. 90
SECTION 8.09. MERGER OR CONSOLIDATION OF TRUSTEE............................ 91
SECTION 8.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE................. 91
SECTION 8.11. TAX MATTERS................................................... 92
SECTION 8.12. PERIODIC FILINGS.............................................. 94
SECTION 8.13. APPOINTMENT OF CUSTODIANS..................................... 94
SECTION 8.14. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF CERTIFICATES. 94
SECTION 8.15. SUITS FOR ENFORCEMENT......................................... 95
ARTICLE IX TERMINATION....................................................... 95
SECTION 9.01. TERMINATION UPON LIQUIDATION OR PURCHASE OF ALL LOANS......... 95
SECTION 9.02. FINAL DISTRIBUTION ON THE CERTIFICATES........................ 96
SECTION 9.03. ADDITIONAL TERMINATION REQUIREMENTS........................... 97
ARTICLE X MISCELLANEOUS PROVISIONS........................................... 97
SECTION 10.01. AMENDMENT.................................................... 97
SECTION 10.02. RECORDATION OF AGREEMENT; COUNTERPARTS....................... 98
SECTION 10.03. GOVERNING LAW................................................ 99
SECTION 10.04. INTENTION OF PARTIES......................................... 99
SECTION 10.05. NOTICES...................................................... 100
SECTION 10.06. SEVERABILITY OF PROVISIONS................................... 101
SECTION 10.07. ASSIGNMENT................................................... 102
SECTION 10.08. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS................... 102
SECTION 10.09. INSPECTION AND AUDIT RIGHTS.................................. 102
SECTION 10.10. CERTIFICATES NONASSESSABLE AND FULLY PAID.................... 103
SECTION 10.11. THE CLOSING.................................................. 103
SECTION 10.12. INTERPRETATION............................................... 103
SECTION 10.13. RESERVED..................................................... 103
SECTION 10.14. NO PARTNERSHIP............................................... 103
SECTION 10.15. PROTECTION OF ASSETS......................................... 103
SECTION 10.16. EXECUTION OF YIELD MAINTENANCE AGREEMENT..................... 104
SCHEDULE I.................................................................. S-I-1
SCHEDULE IIA................................................................ S-IIA-1
SCHEDULE IIB................................................................ S-IIB-1
SCHEDULE IIC................................................................ S-IIC-1
SCHEDULE IID................................................................ S-IID-1
SCHEDULE IIE................................................................ S-IIE-1
SCHEDULE IIF................................................................ S-IIF-1
SCHEDULE IIX................................................................ S-IIX-1
SCHEDULE IIIA.............................................................. S-IIIA-1
SCHEDULE IIIB.............................................................. S-IIIB-1
SCHEDULE IIIC.............................................................. S-IIIC-1
SCHEDULE IIID.............................................................. S-IIID-1
SCHEDULE IIIE.............................................................. S-IIIE-1
SCHEDULE IIIF.............................................................. S-IIIF-1
SCHEDULE IV................................................................ IV-1
SCHEDULE V................................................................. V-1
SCHEDULE VI................................................................ VI-1
SCHEDULE VII............................................................... VII-1
EXHIBIT A-1................................................................ A-1-1
EXHIBIT A-2................................................................ A-2-1
EXHIBIT A-3................................................................ A-3-1
EXHIBIT A-4................................................................ A-4-1
EXHIBIT B-1................................................................ B-1-1
EXHIBIT B-2................................................................ B-2-1
EXHIBIT C.................................................................. C-1
EXHIBIT D.................................................................. D-1
EXHIBIT E.................................................................. E-1
EXHIBIT F.................................................................. F-1
EXHIBIT G.................................................................. G-1
EXHIBIT H.................................................................. H-1
EXHIBIT I.................................................................. I-1
EXHIBIT J.................................................................. J-1
EXHIBIT K.................................................................. K-1
EXHIBIT L.................................................................. L-1
EXHIBIT M....................................................................... M-1
viii
THIS POOLING AND SERVICING AGREEMENT, dated as of November 1, 2005, by and
among Popular ABS, Inc., a Delaware corporation, as depositor (the
"DEPOSITOR"), Equity One, Inc., a Delaware corporation, as a seller (in such
capacity, "EQUITY ONE-DELAWARE") and as servicer (in such capacity, the
"SERVICER"), Popular Financial Funding, LLC, a Delaware limited liability
company ("POPULAR FUNDING"), Equity One, Incorporated, a Pennsylvania
corporation ("EQUITY ONE-PENNSYLVANIA"), Popular Financial Services, LLC, a
Delaware limited liability company ("POPULAR FINANCIAL"), Equity One, Inc., a
Minnesota corporation ("EQUITY ONE-MINNESOTA"), Equity One Consumer Loan
Company, Inc., a New Hampshire corporation ("EQUITY ONE-NEW HAMPSHIRE" and,
together with Equity One-Delaware, Popular Funding, Equity One-Pennsylvania,
Popular Financial and Equity One-Minnesota, the "SELLERS"), and JPMorgan Chase
Bank, National Association, a banking association organized under the laws of
the United States, as trustee (the "TRUSTEE").
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to the
Trustee in return for the Certificates. The Trust Fund (exclusive of the Net WAC
Cap Account, the Reserve Fund and the Yield Maintenance Agreement) for federal
income tax purposes will consist of two REMICs ("REMIC 1" and "REMIC 2"). The
Certificates will represent the entire beneficial ownership interest in the
Trust Fund. The assets of the Trust Fund (exclusive of the Net WAC Cap Account,
the Reserve Fund and the Yield Maintenance Agreement) will constitute the assets
of REMIC 1 and REMIC 1 will issue seventeen uncertificated regular interests
that will be held as the sole assets of REMIC 2. The Class A-1, Class A-2, Class
A-3, Class A-4, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M- 3, Class
M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates (exclusive of any associated rights to receive payments in the form
of Net WAC Cap Carryover) and the Class X Certificates will represent the
"regular interests" in REMIC 2. The Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4 Certificates
are subordinate to and provide credit enhancement for the Class X- 0, Class A-2,
Class A-3, Class A-4, Class A-5 and Class A-6 Certificates. The Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class
B-4 Certificates are subordinate to and provide credit enhancement for the Class
M-1 Certificates. The Class M-3, Class M-4, Class M- 5, Class M-6, Class B-1,
Class B-2, Class B-3 and Class B-4 Certificates are subordinate to and provide
credit enhancement for the Class M-2 Certificates. The Class M-4, Class M-5,
Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4 Certificates are
subordinate to and provide credit enhancement for the Class M-3 Certificates.
The Class M-5, Class M-6, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates are subordinate to and provide credit enhancement for the Class M-4
Certificates. The Class M-6, Class B-1, Class B- 2, Class B-3 and Class B-4
Certificates are subordinate to and provide credit enhancement for the Class M-5
Certificates. The Class B-1, Class B-2, Class B-3 and Class B-4 Certificates are
subordinate to and provide credit enhancement for the Class M-6 Certificates.
The Class B-2, Class B-3 and Class B-4 Certificates are subordinate to and
provide credit enhancement for the Class B- 1 Certificates. The Class B-3 and
Class B-4 Certificates are subordinate to and provide credit enhancement for the
Class B-2 Certificates. The Class B-4 Certificates are subordinate to and
provide credit enhancement for the Class B- 3 Certificates. The Class R-1 and
Class R-2 Interests will be the residual interests in each of REMIC 1 and REMIC
2. All interests created hereby will be retired on or before the Latest Possible
Maturity Date.
REMIC 1
REMIC 1 will be evidenced by a single uncertificated residual interest,
ownership of which shall be evidenced by the Class R Certificate, and by the
REMIC 1- Accrual Class, and the Class 1-A1, Class 1-A2, Class 1-A3, Class 1-A4,
Class 1-A5, Class 1-A6, Class 1-M1, Class 1-M2, Class 1-M3, Class 1-M4, Class
1-M5, Class 1-M6, Class 1-B1, Class 1-B2, Class 1-B3 and Class 1-B4 Interests,
which will be uncertificated and non-transferable and are hereby designated as
the "regular interests" in REMIC 1 for federal income tax purposes and will
have the following designations, initial principal balances, pass-through
rates, and corresponding Classes of REMIC 2 certificates ("CORRESPONDING
CLASSES"):
Pass-Through Corresponding
REMIC 1 Interests Initial Balance Rate Class
----------------- ----------------------------------------- ------------ -------------
(1/4 Corresponding Class' initial Class
Class 1-A1 Certificate Balance) Net WAC Rate A-1
(1/4 Corresponding Class' initial Class
Class 1-A2 Certificate Balance) Net WAC Rate A-2
(1/4 Corresponding Class' initial Class
Class 1-A3 Certificate Balance) Net WAC Rate A-3
(1/4 Corresponding Class' initial Class
Class 1-A4 Certificate Balance) Net WAC Rate A-4
(1/4 Corresponding Class' initial Class
Class 1-A5 Certificate Balance) Net WAC Rate A-5
(1/4 Corresponding Class' initial Class
Class 1-A6 Certificate Balance) Net WAC Rate A-6
(1/4 Corresponding Class' initial Class
Class 1-M1 Certificate Balance) Net WAC Rate M-1
(1/4 Corresponding Class' initial Class
Class 1-M2 Certificate Balance) Net WAC Rate M-2
(1/4 Corresponding Class' initial Class
Class 1-M3 Certificate Balance) Net WAC Rate M-3
(1/4 Corresponding Class' initial Class
Class 1-M4 Certificate Balance) Net WAC Rate M-4
(1/4 Corresponding Class' initial Class
Class 1-M5 Certificate Balance) Net WAC Rate M-5
(1/4 Corresponding Class' initial Class
Class 1-M6 Certificate Balance) Net WAC Rate M-6
(1/4 Corresponding Class' initial Class
Class 1-B1 Certificate Balance) Net WAC Rate B-1
(1/4 Corresponding Class' initial Class
Class 1-B2 Certificate Balance) Net WAC Rate B-2
(1/4 Corresponding Class' initial Class
Class 1-B3 Certificate Balance) Net WAC Rate B-3
(1/4 Corresponding Class' initial Class
Class 1-B4 Certificate Balance) Net WAC Rate B-4
REMIC 1 Accrual
Class (3/4 Cut-off Date Pool Principal Balance) Net WAC Rate N/A
2
On each Distribution Date, the Interest Remittance Amount shall be
distributed as interest on the regular interests in REMIC 1 at the Pass-Through
Rates shown above, provided, however, that interest that accrues on the REMIC 1
Accrual Class for any Interest Accrual Period shall be deferred and added to
the balance of the REMIC 1 Accrual Class in an amount equal to 25% of the Extra
Principal Distribution Amount for the related Distribution Date.
On each Distribution Date, Available Funds remaining after the distributions
described in the immediately preceding paragraph have been made, shall be
distributed in the following order and priority:
1. Concurrently, to the Class 1-A1, Class 1-A2, Class 1-A3, Class 1-
A4, Class 1-A5, Class 1-A6, Class 1-M1, Class 1-M2, Class 1-M3,
Class 1-M4, Class 1-M5, Class 1-M6, Class 1-B1, Class 1-B2, Class
1-B3 and Class 1-B4 Interests until the balance of each such
Interest equals 25% of the Class Certificate Balance of the
Corresponding Class of Certificates immediately after such
Distribution Date; and
2. To the REMIC 1 Accrual Class until its balance is reduced to zero.
Realized Losses shall be allocated among the regular interests in REMIC 1 in
the same manner in which principal is distributed.
REMIC 2
The following table sets forth characteristics of the Certificates, each of
which, except for the Class R Certificates, is hereby designated a "regular
interest" in REMIC 2, together with the minimum denominations and integral
multiples in excess thereof in which such Classes shall be issuable (except
that one Certificate of each Class of Certificates may be issued in a different
amount and, in addition, one Class R Certificate representing the Tax Matters
Person Certificate may be issued in a different amount):
3
Integral Multiples
Initial Class Minimum in Excess of
Certificate Balance Pass-Through Rate (1) Denomination Minimum
------------------- -------------------- ------------ -----------------
Class A-1 $138,712,000 5.361% $25,000 $1
Class A-2 $5,404,000 5.190% $25,000 $1
Class A-3 $42,491,000 5.340% $25,000 $1
Class A-4 $8,788,000 5.636%(2) $25,000 $1
Class A-5 $22,698,000 5.965%(5) $25,000 $1
Class A-6 $12,000,000 5.587%(4) $25,000 $1
Class M-1 $21,828,000 5.820%(5) $25,000 $1
Class M-2 $17,343,000 6.216%(6) $25,000 $1
Class M-3 $3,588,000 LIBOR +0.720%(7) $25,000 $1
Class M-4 $4,485,000 LIBOR +1.400%(8) $25,000 $1
Class M-5 $3,140,000 LIBOR +1.800%(9) $25,000 $1
Class M-6 $2,990,000 LIBOR +2.250%(10) $25,000 $1
Class B-1 $2,990,000 LIBOR + 2.250% $25,000 $1
Class B-2 $2,093,000 LIBOR + 2.250% $25,000 $1
Class B-3 $2,990,000 LIBOR + 2.250% $25,000 $1
Class B-4 $4,784,000 LIBOR + 2.250% $25,000 $1
Class X (11) (12) N/A N/A
Class R $0 N/A N/A N/A
(1) As to any Distribution Date, this rate shall equal the lesser of (a) the
lesser of (i) the rate per annum set forth above and (ii) 14.00%, and (b)
the applicable Net WAC Cap.
(2) After the Optional Termination Date, this rate will increase to 6.136%.
(3) After the Optional Termination Date, this rate will increase to 6.465%.
(4) After the Optional Termination Date, this rate will increase to 6.087%.
(5) After the Optional Termination Date, this rate will increase to 6.320%.
(6) After the Optional Termination Date, this rate will increase to 6.716%.
(7) After the Optional Termination Date, this rate will increase to LIBOR +
1.080%.
(8) After the Optional Termination Date, this rate will increase to LIBOR +
2.100%.
(9) After the Optional Termination Date, this rate will increase to LIBOR +
2.700%.
(10) After the Optional Termination Date, this rate will increase to LIBOR +
3.375%.
(11) On each Distribution Date, the Class X Certificates will have a notional
balance equal to the Pool Principal Balance.
(12) As to any Distribution Date, the Pass-Through Rate for the Class X
Certificates shall equal the excess of: (a) the Net WAC Rate over (b) the
product of: (i) four and (ii) the weighted average of
4
the Pass-Through Rates of the REMIC 1 regular interests, where the REMIC
1 Accrual Class is subject to a cap equal to zero and the Pass-Through
Rate on each other regular interest in REMIC 1 is subject to a cap equal
to the Pass-Through Rate on its Corresponding Class.
All fixed interest rates set forth in this Agreement are calculated based on
a 360-day year consisting of twelve 30-day months (30/360). All adjustable
interest rates set forth in this Agreement are calculated based on a 360-day
year and the actual number of days elapsed in the related Interest Accrual
Period.
5
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
60+ Day Delinquent Loan
As of any Distribution Date, each Loan with respect to which any portion of
a Scheduled Payment is, as of the last day of the calendar month immediately
preceding that Distribution Date, 60 days or more contractually past due
(assuming 30 day months), each Loan in foreclosure, all REO Property and each
Loan for which the Mortgagor has filed for bankruptcy after the Closing Date.
Adjustable Rate Certificates
The Class M-3, Class M-4, Class M-5, Class M-6, Class B-1, Class B-2, Class
B-3 and Class B-4 Certificates.
Adjusted Mortgage Rate
As to each Loan, and at any time, the per annum rate equal to the Mortgage
Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate
As to each Loan, and at any time, the per annum rate equal to the Mortgage
Rate less the related Expense Rate.
Advance
The payment required to be made by the Servicer with respect to any
Distribution Date pursuant to Section 4.01, the amount of any such payment
being equal to the aggregate of payments of principal and interest (net of the
Servicing Fee) on the Loans that were due on such Loans' respective Due Dates
in the related Due Period and not received as of the close of business on the
Determination Date in the month of such Distribution Date, other than the
aggregate amount of any such delinquent payments that the Servicer, in its good
faith judgment, has determined would not be recoverable out of Insurance
Proceeds, Liquidation Proceeds or otherwise from the related Loans.
Aggregate Class B Early Distribution Amount
As of any Distribution Date, the aggregate sum of all amounts paid to the
Class B-4, Class B-3, Class B-2 and Class B-1 Certificates on prior
Distribution Dates pursuant to clauses (xxxv), (xxxvi), (xxxvii) and (xxxviii)
of Section 4.02(d).
Agreement
This Pooling and Servicing Agreement, together with all of the exhibits and
schedules hereto, and all amendments or supplements of any of the foregoing.
Amount Held for Future Distribution
As to any Distribution Date and the Offered Certificates, the aggregate
amount held in the Certificate Account at the close of business on the related
Determination Date on account of (a) Principal Prepayments, Liquidation
Proceeds and Recoveries received after the Prepayment Period corresponding to
such Distribution Date and (b) all Scheduled Payments due after the Loans'
respective Due Dates in the related Due Period.
6
Applied Realized Loss Amount
With respect to (a) the Class M-1 Certificates, the Class M-1 Applied
Realized Loss Amount, (b) the Class M-2 Certificates, the Class M-2 Applied
Realized Loss Amount, (c) the Class M-3 Certificates, the Class M-3 Applied
Realized Loss Amount, (d) the Class M-4 Certificates, the Class M-4 Applied
Realized Loss Amount, (e) the Class M-5 Certificates, the Class M-5 Applied
Realized Loss Amount, (f) the Class M-6 Certificates, the Class M-6 Applied
Realized Loss Amount, (g) the Class B-1 Certificates, the Class B-1 Applied
Realized Loss Amount, (h) the Class B-2 Certificates, the Class B-2 Applied
Realized Loss Amount, (i) the Class B-3 Certificates, the Class B-3 Applied
Realized Loss Amount and (j) the Class B-4 Certificates, the Class B-4 Applied
Realized Loss Amount.
Available Funds
As to any Distribution Date, the sum of (a) the aggregate amount held in the
Certificate Account at the close of business on the related Determination Date
net of the Amount Held for Future Distribution and net of amounts permitted to
be withdrawn from the Certificate Account pursuant to clauses (i)--(viii),
inclusive, of Section 3.08(a) and amounts permitted to be withdrawn from the
Distribution Account pursuant to clauses (i) and (ii) of Section 3.08(b), (b)
the amount of the related Advance, if any, and (c) the aggregate of the
Purchase Prices and Substitution Adjustment Amounts received on or before the
related Distribution Account Deposit Date and (d) with respect to the initial
Distribution Date, the Initial Certificate Account Deposit.
Balloon Loans
Loans with balloon payments.
Bankruptcy Code
The United States Bankruptcy Reform Act of 1978, as amended, and related
rules promulgated thereunder.
Basic Principal Distribution Amount
With respect to any Distribution Date, the amount by which (a) the Principal
Remittance Amount for that Distribution Date exceeds (b) the
Overcollateralization Release Amount, if any, for that Distribution Date.
Beneficial Owner
With respect to any Book-Entry Certificate, the Person who is the beneficial
owner of such Book-Entry Certificate.
Book-Entry Certificates
The Offered Certificates.
Business Day
Any day other than (a) a Saturday or a Sunday or (b) a day on which banking
institutions in New York City, or in the city where the chief executive office
of the Servicer is located, are authorized or obligated by law or executive
order to be closed.
Certificates
The Offered Certificates, the Class R Certificates and the Class X
Certificates.
Certificate Account
The separate Eligible Account created and maintained by the Servicer
pursuant to Section 3.05 with a depository institution in the name of the
Servicer for the benefit of the Trustee on
7
behalf of the Certificateholders and designated "Certificate Account, Equity
One, Inc., as trustee for the registered holders of Popular ABS, Inc., Mortgage
Pass-Through Certificates Series 2005-D."
Certificate Balance
With respect to any Offered Certificate at any time, the maximum dollar
amount of principal to which the Holder thereof is then entitled hereunder,
such amount being equal to the Denomination thereof reduced by the sum of (a)
all amounts previously distributed to that Offered Certificate as payments of
principal, and (b) with respect to any Offered Certificate that is a Class B-4,
Class B-3, Class B-2, Class B-1, Class M-6, Class M-5, Class M-4, Class M-3,
Class M-2 or Class M-1 Certificate, that Offered Certificate's pro rata share
of the cumulative amount of Applied Realized Loss Amounts with respect to such
Class for all prior Distribution Dates.
Certificateholder or Holder
The person in whose name a Certificate is registered in the Certificate
Register, except that, solely for the purpose of giving any consent pursuant to
this Agreement, any Certificate registered in the name of the Depositor or any
affiliate of the Depositor shall be deemed not to be Outstanding and the
Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect such consent has been obtained; provided, however, that if any such
Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to be
Outstanding for purposes of any provision hereof that requires the consent of
the Holders of Certificates of a particular Class as a condition to the taking
of any action hereunder. The Trustee is entitled to rely conclusively on a
certification of the Depositor or any affiliate of the Depositor in determining
which Certificates are registered in the name of an affiliate of the Depositor.
Certificate Register
The register maintained pursuant to Section 5.02.
Certificate Registrar
JPMorgan Chase Bank, N.A. and its successors and, if a successor certificate
registrar is appointed hereunder, such successor.
Class
All Certificates bearing the same class designation as set forth in the
Preliminary Statement.
Class A-1 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-1 and designated as a Class A-1
Certificate.
Class A-2 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-1 and designated as a Class A-2
Certificate.
Class A-3 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-1 and designated as a Class A-3
Certificate.
Class A-4 Certificate
8
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-1 and designated as a Class A-4
Certificate.
Class A-5 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-1 and designated as a Class A-5
Certificate.
Class A-6 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-1 and designated as a Class A-6
Certificate.
Class A-6 Lockout Distribution Amount
As of any Distribution Date (a) prior to the December 2014 Distribution
Date, will be the lesser of (i) the product of (1) the applicable Class A-6
Lockout Percentage for that Distribution Date and (2) the Class A-6 Pro Rata
Distribution Amount for that Distribution Date and (ii) the Class Certificate
Balance of the Class A-6 Certificates immediately prior to that Distribution
Date, and (b) on or after the December 2014 Distribution Date, will be (1) if
the Stepdown Date has occurred and a Trigger Event is not in effect, the Senior
Principal Distribution Amount or (2) if the Stepdown Date has not occurred or a
Trigger Event is in effect, the Principal Distribution Amount, each for such
Distribution Date.
Class A-6 Lockout Percentage
As of each Distribution Date shall be as follows:
DISTRIBUTION DATE CLASS A-6 LOCKOUT PERCENTAGE
------------------------ ----------------------------
December 2005 -- November 2008 0%
December 2008 -- November 2010 45%
December 2010 -- November 2011 80%
December 2011 -- November 2012 100%
December 2012 -- November 2014 300%
Class A-6 Pro Rata Distribution Amount
As of any Distribution Date will be an amount equal to the product of (a) a
fraction, the numerator of which is the Class Certificate Balance of the Class
A-6 Certificates immediately prior to such Distribution Date and the
denominator of which is an amount equal to the sum of the Class Certificate
Balances of all classes of the Senior Certificates immediately prior to such
Distribution Date and (b) (i) if the Stepdown Date has occurred and a Trigger
Event is not in effect, the Senior Principal Distribution Amount or (ii) if the
Stepdown Date has not occurred or a Trigger Event is in effect, the Principal
Distribution Amount, each for such Distribution Date.
Class B-1 Applied Realized Loss Amount
As to the Class B-1 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class B-1 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the excess of (i) the Realized Loss
Amount as of that Distribution
9
Date over (ii) the sum of the Class B-2 Applied Realized Loss Amount, the Class
B-3 Applied Realized Loss Amount and the Class B-4 Applied Realized Loss
Amount, in each case as of that Distribution Date.
Class B-1 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-4 and designated as a Class B-1
Certificate.
Class B-1 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Senior Principal Distribution Amount on that
Distribution Date), (ii) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (iii) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account the payment of
the Class M-2 Principal Distribution Amount on that Distribution Date), (iv)
the Class Certificate Balance of the Class M-3 Certificates (after taking into
account the payment of the Class M-3 Principal Distribution Amount on that
Distribution Date), (v) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the payment of the Class M-4 Principal
Distribution Amount on that Distribution Date), (vi) the Class Certificate
Balance of the Class M-5 Certificates (after taking into account the payment of
the Class M-5 Principal Distribution Amount on that Distribution Date), (vii)
the Class Certificate Balance of the Class M-6 Certificates (after taking into
account the payment of the Class M-6 Principal Distribution Amount on that
Distribution Date) and (viii) the Class Certificate Balance of the Class B-1
Certificates immediately prior to that Distribution Date over (b) the lesser of
(i) the product of (A) 90.20% and (B) the Pool Principal Balance as of the last
day of the related Due Period and (ii) the Pool Principal Balance as of the
last day of the related Due Period minus the product of (A) 0.50% and (B) the
Cut-off Date Pool Principal Balance.
Class B-1 Realized Loss Amortization Amount
As to the Class B-1 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class B-1 Certificates as of
that Distribution Date and (b) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the sum of the amounts described in clauses (i) through
(xxiii) of Section 4.02(d) for that Distribution Date.
Class B-2 Applied Realized Loss Amount
As to the Class B-2 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class B-2 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the excess of (i) the Realized Loss
Amount as of that Distribution Date over (ii) the sum of the Class B-3 Applied
Realized Loss Amount and the Class B-4 Applied Realized Loss Amount, in each
case as of that Distribution Date.
Class B-2 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-4 and designated as a Class B-2
Certificate.
Class B-2 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Senior Principal Distribution Amount on that
Distribution Date), (ii) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (iii) the
10
Class Certificate Balance of the Class M-2 Certificates (after taking into
account the payment of the Class M-2 Principal Distribution Amount on that
Distribution Date), (iv) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on that Distribution Date), (v) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account the payment of
the Class M-4 Principal Distribution Amount on that Distribution Date), (vi)
the Class Certificate Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on that
Distribution Date), (vii) the Class Certificate Balance of the Class M-6
Certificates (after taking into account the payment of the Class M-6 Principal
Distribution Amount on that Distribution Date), (viii) the Class Certificate
Balance of the Class B-1 Certificates (after taking into account the payment of
the Class B-1 Principal Distribution Amount on that Distribution Date) and (ix)
the Class Certificate Balance of the Class B-2 Certificates immediately prior
to that Distribution Date over (b) the lesser of (i) the product of (A) 91.60%
and (B) the Pool Principal Balance as of the last day of the related Due Period
and (ii) the Pool Principal Balance as of the last day of the related Due
Period minus the product of (A) 0.50% and (B) the Cut-off Date Pool Principal
Balance.
Class B-2 Realized Loss Amortization Amount
As to the Class B-2 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class B-2 Certificates as of
that Distribution Date and (b) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the sum of the amounts described in clauses (i) through (xxvi)
of Section 4.02(d) for that Distribution Date.
Class B-3 Applied Realized Loss Amount
As to the Class B-3 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class B-3 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the excess of (i) the Realized Loss
Amount as of that Distribution Date over (ii) the Class B-4 Applied Realized
Loss Amount as of that Distribution Date.
Class B-3 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-4 and designated as a Class B-3
Certificate.
Class B-3 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Senior Principal Distribution Amount on that
Distribution Date), (ii) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (iii) the Class Certificate
Balance of the Class M-2 Certificates (after taking into account the payment of
the Class M-2 Principal Distribution Amount on that Distribution Date), (iv)
the Class Certificate Balance of the Class M-3 Certificates (after taking into
account the payment of the Class M-3 Principal Distribution Amount on that
Distribution Date), (v) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the payment of the Class M-4 Principal
Distribution Amount on that Distribution Date), (vi) the Class Certificate
Balance of the Class M-5 Certificates (after taking into account the payment of
the Class M-5 Principal Distribution Amount on that Distribution Date), (vii)
the Class Certificate Balance of the Class M-6 Certificates (after taking into
account the payment of the Class M-6 Principal Distribution Amount on that
Distribution Date), (viii) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the payment of the Class B-1 Principal
Distribution Amount on that Distribution Date), (ix) the Class Certificate
Balance of the Class B-2 Certificates (after taking into
11
account the payment of the Class B-2 Principal Distribution Amount on that
Distribution Date) and (x) the Class Certificate Balance of the Class B-3
Certificates immediately prior to that Distribution Date over (b) the lesser of
(i) the product of (A) 93.60% and (B) the Pool Principal Balance as of the last
day of the related Due Period and (ii) the Pool Principal Balance as of the
last day of the related Due Period minus the product of (A) 0.50% and (B) the
Cut-off Date Pool Principal Balance.
Class B-3 Realized Loss Amortization Amount
As to the Class B-3 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class B-3 Certificates as of
that Distribution Date and (b) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the sum of the amounts described in clauses (i) through (xxix)
of Section 4.02(d) for that Distribution Date.
Class B-4 Applied Realized Loss Amount
As to the Class B-4 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class B-4 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the Realized Loss Amount as of that
Distribution Date.
Class B-4 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-4 and designated as a Class B-4
Certificate.
Class B-4 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Principal Distribution Amount on that Distribution
Date), (ii) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on that Distribution Date), (iii) the Class Certificate Balance of the Class M-
2 Certificates (after taking into account the payment of the Class M-2
Principal Distribution Amount on that Distribution Date), (iv) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account
the payment of the Class M-3 Principal Distribution Amount on that Distribution
Date), (v) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the payment of the Class M-4 Principal Distribution Amount
on that Distribution Date), (vi) the Class Certificate Balance of the Class M-5
Certificates (after taking into account the payment of the Class M-5 Principal
Distribution Amount on that Distribution Date), (vii) the Class Certificate
Balance of the Class M-6 Certificates (after taking into account the payment of
the Class M-6 Principal Distribution Amount on that Distribution Date), (viii)
the Class Certificate Balance of the Class B-1 Certificates (after taking into
account the payment of the Class B-1 Principal Distribution Amount on that
Distribution Date), (ix) the Class Certificate Balance of the Class B-2
Certificates (after taking into account the payment of the Class B-2 Principal
Distribution Amount on that Distribution Date), (x) the Class Certificate
Balance of the Class B-3 Certificates (after taking into account the payment of
the Class B-3 Principal Distribution Amount on that Distribution Date) and (xi)
the Class Certificate Balance of the Class B-4 Certificates immediately prior
to that Distribution Date over (b) the lesser of (i) the product of (A) 96.80%
and (B) the Pool Principal Balance as of the last day of the related Due Period
and (ii) the Pool Principal Balance as of the last day of the related Due
Period minus the product of (A) 0.50% and (B) the Cut-off Date Pool Principal
Balance.
Class B-4 Realized Loss Amortization Amount
As to the Class B-4 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class B-4 Certificates as of
that Distribution Date and (b) the
12
excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum of the
amounts described in clauses (i) through (xxxii) of Section 4.02(d) for that
Distribution Date.
Class Certificate Balance
With respect to any Class of Offered Certificates and as to any Distribution
Date, the aggregate of the Certificate Balances of all Certificates of such
Class as of such date. The Class Certificate Balance of the Class R
Certificates shall be zero.
Class Interest Shortfall
As to any Distribution Date and any Class of Offered Certificates, the
amount by which the amount described in the definition of Interest Distribution
Amount for such Class exceeds the amount of interest actually distributed on
such Class on such Distribution Date.
Class M-1 Applied Realized Loss Amount
As to the Class M-1 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class M-1 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the excess of (i) the Realized Loss
Amount as of that Distribution Date over (ii) the sum of the Class M-2 Applied
Realized Loss Amount, the Class M-3 Applied Realized Loss Amount, the Class M-4
Applied Realized Loss Amount, the Class M-5 Applied Realized Loss Amount, the
Class M-6 Applied Realized Loss Amount, the Class B-1 Applied Realized Loss
Amount, the Class B-2 Applied Realized Loss Amount, the Class B-3 Applied
Realized Loss Amount and the Class B-4 Applied Realized Loss Amount, in each
case as of that Distribution Date.
Class M-1 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-3 and designated as a Class M-1
Certificate.
Class M-1 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Senior Principal Distribution Amount on that
Distribution Date) and (ii) the Class Certificate Balance of the Class M-1
Certificates immediately prior to that Distribution Date over (b) the lesser of
(i) the product of (A) 67.10% and (B) the Pool Principal Balance as of the last
day of the related Due Period and (ii) the Pool Principal Balance as of the
last day of the related Due Period minus the product of (A) 0.50% and (B) the
Cut-off Date Pool Principal Balance.
Class M-1 Realized Loss Amortization Amount
As to the Class M-1 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class M-1 Certificates as of
that Distribution Date and (b) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the sum of the amounts described in clauses (i) through (v) of
Section 4.02(d) for that Distribution Date.
Class M-2 Applied Realized Loss Amount
As to the Class M-2 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class M-2 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the excess of (i) the Realized Loss
Amount as of that Distribution Date over (ii) the sum of the Class M-3 Applied
Realized Loss Amount, the Class M-4 Applied Realized Loss Amount, the Class M-5
Applied Realized Loss Amount, the Class M-6 Applied
13
Realized Loss Amount, the Class B-1 Applied Realized Loss Amount, the Class B-2
Applied Realized Loss Amount, the Class B-3 Applied Realized Loss Amount and
the Class B-4 Applied Realized Loss Amount, in each case as of that
Distribution Date.
Class M-2 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-3 and designated as a Class M-2
Certificate.
Class M-2 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Senior Principal Distribution Amount on that
Distribution Date), (ii) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date) and (iii) the Class Certificate
Balance of the Class M-2 Certificates immediately prior to that Distribution
Date over (b) the lesser of (i) the product of (A) 78.70% and (B) the Pool
Principal Balance as of the last day of the related Due Period and (ii) the
Pool Principal Balance as of the last day of the related Due Period minus the
product of (A) 0.50% and (B) the Cut-off Date Pool Principal Balance.
Class M-2 Realized Loss Amortization Amount
As to the Class M-2 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class M-2 Certificates as of
that Distribution Date and (b) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the sum of the amounts described in clauses (i) through (viii)
of Section 4.02(d) for that Distribution Date.
Class M-3 Applied Realized Loss Amount
As to the Class M-3 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class M-3 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the excess of (i) the Realized Loss
Amount as of that Distribution Date over (ii) the sum of the Class M-4 Applied
Realized Loss Amount, the Class M-5 Applied Realized Loss Amount, the Class M-6
Applied Realized Loss Amount, the Class B-1 Applied Realized Loss Amount, the
Class B-2 Applied Realized Loss Amount, the Class B-3 Applied Realized Loss
Amount and the Class B-4 Applied Realized Loss Amount, in each case as of that
Distribution Date.
Class M-3 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-3 and designated as a Class M-3
Certificate.
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Class M-3 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Senior Principal Distribution Amount on that
Distribution Date), (ii) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (iii) the Class Certificate
Balance of the M-2 Certificates (after taking into account the payment of the
Class M-2 Principal Distribution Amount on that Distribution Date) and (iv) the
Class Certificate Balance of the Class M-3 Certificates immediately prior to
that Distribution Date over (b) the lesser of (i) the product of (A) 81.10% and
(B) the Pool Principal Balance as of the last day of the related Due Period and
(ii) the Pool Principal Balance as of the last day of the related Due Period
minus the product of (A) 0.50% and (B) the Cut-off Date Pool Principal Balance.
Class M-3 Realized Loss Amortization Amount
As to the Class M-3 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class M-3 Certificates as of
that Distribution Date and (b) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the sum of the amounts described in clauses (i) through (xi)
of Section 4.02(d) for that Distribution Date.
Class M-4 Applied Realized Loss Amount
As to the Class M-4 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class M-4 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the excess of (i) the Realized Loss
Amount as of that Distribution Date over (ii) the sum of the Class M-5 Applied
Realized Loss Amount, the Class M-6 Applied Realized Loss Amount, the Class B-1
Applied Realized Loss Amount, the Class B-2 Applied Realized Loss Amount, the
Class B-3 Applied Realized Loss Amount and the Class B-4 Applied Realized Loss
Amount, in each case as of that Distribution Date.
Class M-4 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-3 and designated as a Class M-4
Certificate.
Class M-4 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Senior Principal Distribution Amount on that
Distribution Date), (ii) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (iii) the Class Certificate
Balance of the M-2 Certificates (after taking into account the payment of the
Class M-2 Principal Distribution Amount on that Distribution Date), (iv) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the payment of the Class M-3 Principal Distribution Amount on that
Distribution Date) and (v) the Class Certificate Balance of the Class M-4
Certificates immediately prior to that Distribution Date over (b) the lesser of
(i) the product of (A) 84.10% and (B) the Pool Principal Balance as of the last
day of the related Due Period and (ii) the Pool Principal Balance as of the
last day of the related Due Period minus the product of (A) 0.50% and (B) the
Cut-off Date Pool Principal Balance.
Class M-4 Realized Loss Amortization Amount
As to the Class M-4 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class M-4 Certificates as of
that Distribution Date and (b) the
15
excess of (i) the Monthly Excess Cashflow Amount over (ii) the sum of the
amounts described in clauses (i) through (xiv) of Section 4.02(d) for that
Distribution Date.
Class M-5 Applied Realized Loss Amount
As to the Class M-5 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class M-5 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the excess of (i) the Realized Loss
Amount as of that Distribution Date over (ii) the sum of the Class M-6 Applied
Realized Loss Amount, the Class B-1 Applied Realized Loss Amount, the Class B-2
Applied Realized Loss Amount, the Class B-3 Applied Realized Loss Amount and
the Class B-4 Applied Realized Loss Amount, in each case as of that
Distribution Date.
Class M-5 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-3 and designated as a Class M-5
Certificate.
Class M-5 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Senior Principal Distribution Amount on that
Distribution Date), (ii) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (iii) the Class Certificate
Balance of the M-2 Certificates (after taking into account the payment of the
Class M-2 Principal Distribution Amount on that Distribution Date), (iv) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the payment of the Class M-3 Principal Distribution Amount on that
Distribution Date), (v) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the payment of the Class M-4 Principal
Distribution Amount on that Distribution Date) and (vi) the Class Certificate
Balance of the Class M-5 Certificates immediately prior to that Distribution
Date over (b) the lesser of (i) the product of (A) 86.20% and (B) the Pool
Principal Balance as of the last day of the related Due Period and (ii) the
Pool Principal Balance as of the last day of the related Due Period minus the
product of (A) 0.50% and (B) the Cut-off Date Pool Principal Balance.
Class M-5 Realized Loss Amortization Amount
As to the Class M-5 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class M-5 Certificates as of
that Distribution Date and (b) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the sum of the amounts described in clauses (i) through (xvii)
of Section 4.02(d) for that Distribution Date.
Class M-6 Applied Realized Loss Amount
As to the Class M-6 Certificates and as of any Distribution Date, the lesser
of (a) the Class Certificate Balance thereof (after taking into account the
distribution of the Principal Distribution Amount on that Distribution Date,
but prior to the application of the Class M-6 Applied Realized Loss Amount, if
any, on that Distribution Date) and (b) the excess of (i) the Realized Loss
Amount as of that Distribution Date over (ii) the sum of the Class B-1 Applied
Realized Loss Amount, the Class B-2 Applied Realized Loss Amount, the Class B-3
Applied Realized Loss Amount and the Class B-4 Applied Realized Loss Amount, in
each case as of that Distribution Date.
Class M-6 Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit A-3 and designated as a Class M-6
Certificate.
16
Class M-6 Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the excess of (a) the sum of (i) the sum of the
Class Certificate Balances of the Senior Certificates (after taking into
account the payment of the Senior Principal Distribution Amount on that
Distribution Date), (ii) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the payment of the Class M-1 Principal
Distribution Amount on that Distribution Date), (iii) the Class Certificate
Balance of the M-2 Certificates (after taking into account the payment of the
Class M-2 Principal Distribution Amount on that Distribution Date), (iv) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the payment of the Class M-3 Principal Distribution Amount on that
Distribution Date), (v) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the payment of the Class M-4 Principal
Distribution Amount on that Distribution Date), (vi) the Class Certificate
Balance of the Class M-5 Certificates (after taking into account the payment of
the Class M-5 Principal Distribution Amount on that Distribution Date) and
(vii) the Class Certificate Balance of the Class M-6 Certificates immediately
prior to that Distribution Date over (b) the lesser of (i) the product of (A)
88.20% and (B) the Pool Principal Balance as of the last day of the related Due
Period and (ii) the Pool Principal Balance as of the last day of the related
Due Period minus the product of (A) 0.50% and (B) the Cut-off Date Pool
Principal Balance.
Class M-6 Realized Loss Amortization Amount
As to the Class M-6 Certificates and as of any Distribution Date, the lesser
of (a) the Unpaid Realized Loss Amount for the Class M-6 Certificates as of
that Distribution Date and (b) the excess of (i) the Monthly Excess Cashflow
Amount over (ii) the sum of the amounts described in clauses (i) through (xx)
of Section 4.02(d) for that Distribution Date.
Class R Certificates
The certificates representing the single "residual interest" in each of
REMIC 1 and REMIC 2, substantially in the form attached hereto as Exhibit B-1.
Class Unpaid Interest Amounts
As to any Distribution Date and any Class of Offered Certificates, the
amount by which the aggregate Class Interest Shortfalls for such Class on prior
Distribution Dates exceeds the amount of Class Unpaid Interest Amounts
distributed on such Class on prior Distribution Dates plus interest on such
amount at the related Pass-Through Rate.
Class X Certificate
Any Certificate executed and authenticated by the Trustee substantially in
the form attached hereto as Exhibit B-2 and designated as a Class X
Certificate.
Closing Date
November 30, 2005.
Closing Place
The offices of Stradley, Ronon, Xxxxxxx & Xxxxx, LLP, 0000 Xxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000.
Code
The Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collateral
The assets constituting the Loans, Mortgage Files and the Trust Fund, and
any and all contractual, legal, equitable or other rights in connection
therewith, and all proceeds thereof (but not
17
including payments of interest and principal due and payable with respect to
the Loans on or before the Cut-off Date).
Collateral Value
With respect to any Loan, other than Refinance Loans, an amount equal to the
lesser of (a) the appraised value of the related Mortgaged Property based on an
appraisal obtained by the originator from an independent fee appraiser at the
time of the origination of such Loan, and (b) if the Loan was originated either
in connection with the acquisition of the Mortgaged Property by the borrower or
within one year after acquisition of the Mortgaged Property by the borrower,
the purchase price paid by such borrower for the Mortgaged Property. In the
case of Refinance Loans, the Collateral Value is the appraised value of the
Mortgaged Property based upon the appraisal obtained at the time of
refinancing.
Combined Loan-to-Value Ratio
With respect to any Loan and as to any date of determination, the fraction,
expressed as a percentage, the numerator of which is the principal balance of
such Loan at the date of origination plus, in the case of a Second Lien Loan,
the outstanding principal balance of the related first lien mortgage loan on
the date of origination of such Second Lien Loan, and the denominator of which
is the Collateral Value of the related Mortgaged Property.
Corporate Trust Office
The designated office of the Trustee in the State of New York at which (a)
its corporate trust business with respect to this Agreement shall be
administered is located at JPMorgan Chase Bank, 4 New York Plaza, 6th Floor,
New York, New York 10004, Attention: Worldwide Securities Services/Structured
Finance Services, Popular ABS 2005-D and (b) Certificates may be presented for
transfer and exchange and for purposes of presentment and surrender for the
final distributions thereon is located at 0000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx
Xxxxx 00000 Attention: Structured Finance Transfer Department Popular ABS 2005-
D, or such other address as the Trustee shall notify the Depositor, the
Servicer, the Sellers and the Certificateholders.
Corresponding Class
As defined in the Preliminary Statement.
Counterparty
The Royal Bank of Scotland plc.
Custodial Agreement
As defined in Section 8.13.
Custodian
As defined in Section 8.13.
Cut-off Date
November 1, 2005.
Cut-off Date Pool Principal Balance
$299,015,120.93.
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Cut-off Date Principal Balance
As to any Loan, the Stated Principal Balance thereof as of the close of
business on October 31, 2005 giving effect to scheduled payments of principal
and interest due on November 1, 2005, whether or not those scheduled payments
have been made.
Defective Loan
Any Loan which is required to be repurchased pursuant to Section 2.02 or
2.03.
Deficient Valuation
With respect to any Loan, a valuation of the related Mortgaged Property by a
court of competent jurisdiction in an amount less than the then outstanding
principal balance of the Loan, which valuation results from a proceeding
initiated under the Bankruptcy Code.
Definitive Certificates
Any Certificate issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
Deleted Loan
As defined in Section 2.03(c).
Denomination
With respect to each Offered Certificate, Class X Certificate or Class R
Certificate, the amount set forth on the face thereof as the "Initial
Certificate Balance of this Certificate" or the "Percentage Interest."
Depositor
Popular ABS, Inc., a Delaware corporation, or its successor in interest.
Depository
The initial Depository shall be The Depository Trust Company, the nominee of
which is Cede & Co., as the registered Holder of the Book-Entry Certificates.
The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New York.
Depository 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
As to any Distribution Date, the 21st day of each month or, if such day is
not a Business Day, the next preceding Business Day; provided, however, that
the Determination Date in each month will be at least two Business Days
preceding the related Distribution Date.
Distribution Account
The separate Eligible Account created and maintained by the Trustee pursuant
to Section 3.05 in the name of the Trustee for the benefit of the
Certificateholders and designated "Distribution Account, JPMorgan Chase Bank,
N.A., as trustee for the registered holders of Popular ABS, Inc. Mortgage Pass-
Through Certificates, Series 2005-D." Funds in the Distribution Account shall
be held uninvested in trust for the Certificateholders for the uses and
purposes set forth in this Agreement.
19
Distribution Account Deposit Date
As to any Distribution Date, 9:00 a.m. New York City 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 day is not a Business Day, the next succeeding
Business Day, commencing on December 27, 2005.
Due Date
With respect to any Loan, the date on which scheduled payments of interest
and/or principal are due thereon, which date is a set day, but not necessarily
the first day, of each month.
Due Period
With respect to any Distribution Date, the period beginning on the second
day of the calendar month preceding the calendar month in which that
Distribution Date occurs and ending at the close of business on the first day
of the month in which that Distribution Date occurs.
Eligible Account
Any of (a) an account or accounts maintained with a federal or state
chartered depository institution or trust company, the 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) have the highest short-term ratings of
each Rating Agency at the time any amounts are held on deposit therein, or (b)
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
(c) a trust account or accounts maintained with (i) the trust department of a
federal or state chartered depository institution or (ii) a trust company,
acting in its fiduciary capacity or (d) any other account acceptable to each
Rating Agency, as evidenced by a letter from such Rating Agency to the Trustee,
without reduction or withdrawal of the then current ratings of the
Certificates. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Trustee.
Equity One-Delaware
Equity One, Inc., a Delaware corporation.
Equity One-Minnesota
Equity One, Inc., a Minnesota corporation.
Equity One-New Hampshire
Equity One Consumer Loan Company, Inc., a New Hampshire corporation.
Equity One-Pennsylvania
Equity One, Incorporated, a Pennsylvania corporation.
ERISA
The Employee Retirement Income Security Act of 1974, as amended.
20
ERISA Qualifying Underwriting
A best efforts or firm commitment underwriting or private placement that
meets the requirements (without regard to the ratings requirement or other
requirements that the securities or the investor must satisfy) of the
Underwriter Exemption, or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate
Any of the Class B-1 Certificates, Class B-2 Certificates, Class B-3
Certificates, Class B-4 Certificates, Class X Certificates or Class R
Certificates; any Certificate of a Class that ceases to satisfy the applicable
rating requirements of the Underwriter Exemption.
Escrow Account
The Eligible Account or Eligible Accounts established and maintained by the
Servicer pursuant to Section 3.06(a).
Event of Default
As defined in Section 7.01.
Excess Proceeds
With respect to any Liquidated Loan, the amount, if any, by which the sum of
any Liquidation Proceeds of such Loan received in the calendar month in which
such Loan became a Liquidated Loan, net of any amounts previously reimbursed to
the Servicer as Nonrecoverable Advance(s) with respect to such Loan pursuant to
Section 3.08(a)(iii), exceeds (a) the unpaid principal balance of such
Liquidated Loan as of the Due Date in the calendar month in which such Loan
became a Liquidated Loan plus (b) accrued interest at the Mortgage Rate from
the Due Date as to which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date in the calendar month in
which such Loan became a Liquidated Loan.
Expense Rate
As to each Loan, the sum of (a) the Servicing Fee Rate and (b) the Trustee
Fee Rate.
Extra Principal Distribution Amount
As of any Distribution Date, the lesser of (a) the Monthly Excess Interest
Amount for that Distribution Date and (b) the Overcollateralization Deficiency
for that Distribution Date.
FDIC
The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC
The Federal Home Loan Mortgage Corporation, a corporate instrumentality of
the United States created and existing under Title III of the Emergency Home
Finance Act of 1970, as amended, or any successor thereto.
FIRREA
The Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
Fixed Rate Certificates
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class
M-1 and Class M-2 Certificates.
21
FNMA
Xxxxxx Xxx, a federally chartered and privately owned corporation organized
and existing under the Federal National Mortgage Association Charter Act, or
any successor thereto.
Hedged Certificates
The Adjustable Rate Certificates.
Indirect Participant
A broker, dealer, bank or other financial institution or other Person that
clears through or maintains a custodial relationship with a Depository
Participant.
Initial Certificate Account Deposit
As defined in Section 2.01(a).
Insurance Policy
With respect to any Loan included in the Trust Fund, any insurance policy,
and including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds
Proceeds paid by an insurer pursuant to any Insurance Policy, in each case
other than any amount included in such Insurance Proceeds in respect of Insured
Expenses.
Insured Expenses
Expenses covered by an Insurance Policy.
Interest Accrual Period
With respect to the Adjustable Rate Certificates and with respect to the
interests in REMIC 1 and REMIC 2, and any Distribution Date, the period
commencing on the Distribution Date in the calendar month prior to the month of
such Distribution Date (or on the Closing Date with respect to the first
Distribution Date) and ending on the day preceding such Distribution Date. With
respect to the Fixed Rate Certificates and any Distribution Date, the calendar
month preceding the month of such Distribution Date.
Interest Distribution Amount
With respect to any Distribution Date and each Class of the Offered
Certificates, the amount of interest accrued during the related Interest
Accrual Period at the Pass-Through Rate for such Class on the related Class
Certificate Balance, reduced by such Class' pro rata share of the amount of (a)
Net Prepayment Interest Shortfalls and (b) Relief Act Reductions incurred on
the Loans during the related Due Period (each such Class' pro rata share to be
based on the amount of interest to which such Class would have been entitled
notwithstanding such Net Prepayment Interest Shortfalls and Relief Act
Reductions).
Interest Remittance Amount
With respect to any Determination Date, the sum, without duplication, of (a)
all interest collected or advanced on the Loans during the related Due Period
and (b) the portion of any Substitution Adjustment Amount, Termination Price,
Purchase Price, or Liquidation Proceeds, relating to interest and received
during the related Prepayment Period.
Investment Letter
As defined in Section 5.02(b).
22
Latest Possible Maturity Date
The Distribution Date following the third anniversary of the scheduled
maturity date of the Loan having the latest scheduled maturity date as of the
Cut-off Date.
Last Scheduled Distribution Date
The Distribution Date in January 2036.
LIBOR
As of any LIBOR Determination Date, the London interbank offered rate for
one-month United States dollar deposits which appears in the Moneyline Telerate
Page 3750 as of 11:00 a.m., London time, on that date. If the rate does not
appear on Moneyline Telerate Page 3750, the rate for that day will be
determined on the basis of the rates at which deposits in United States dollars
are offered by the Reference Banks at approximately 11:00 a.m. (London time),
on that day to prime banks in the London interbank market. The Trustee will
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two quotations are provided, the rate for
that day will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that day will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Trustee in
consultation with the Servicer, at approximately 11:00 a.m. (New York City
time) on that day for loans in United States dollars to leading European banks.
LIBOR Determination Date
With respect to any Interest Accrual Period for the Adjustable Rate
Certificates, the second London business day preceding the commencement of such
Interest Accrual Period. For purposes of determining LIBOR, a "London business
day" is any day on which dealings in deposits of United States dollars are
transacted in the London interbank market.
Liquidated Loan
With respect to any Distribution Date, a defaulted Loan (including any REO
Property) that was liquidated in the related Prepayment Period Date and as to
which the Servicer has determined (in accordance with this Agreement) that it
has received all amounts it expects to receive in connection with the
liquidation of such Loan, including the final disposition of an REO Property.
Liquidation Proceeds
Amounts, including Insurance Proceeds, received in connection with the
partial or complete liquidation of defaulted Loans, whether through trustee's
sale, foreclosure sale or otherwise or amounts received in connection with any
condemnation or partial release of a Mortgaged Property and any other proceeds
received in connection with an REO Property other than Recoveries, less the
Servicing Amount applicable to such defaulted Loans.
Loans
The mortgage loans identified on the Loan Schedule as of the Closing Date.
Loan Schedule
As of any date, the list of Loans included in the Trust Fund on such date,
attached hereto as Schedule I (as from time to time amended by the Servicer to
reflect the addition of Substitute Loans and the deletion of Deleted Loans
pursuant to the provisions of this Agreement), setting forth the following
information with respect to each Loan:
(a) the loan number;
23
(b) the Mortgagor's name and the state in which the Mortgaged Property
is located, including the zip code;
(c) the maturity date;
(d) the Cut-off Date Principal Balance;
(e) the first payment date of the Loan;
(f) lien position (either first or second);
(g) the Scheduled Payment in effect as of the Cut-off Date;
(h) the current Mortgage Rate;
(i) the principal balance of the Loan at origination; and
(j) if applicable, the MIN assigned to such Loan.
Majority in Interest
As to each Class of Offered Certificates, the Holders of Certificates of
such Class evidencing, in the aggregate, at least 51% of the Percentage
Interests evidenced by all Certificates of such Class.
MERS (R)
Mortgage Electronic Registration Systems, Inc., or its successors in
interest.
MERS (R) System
That certain electronic registry system maintained by MERSCORP, Inc., or its
successors in interest.
MIN
The Mortgage Identification Number assigned by MERS (R) to a MOM Loan.
MOM Loan
Any Loan as to which MERS (R) is acting as mortgagee solely as nominee for
the originator of such Loan and its successors and assigns.
Monthly Excess Cashflow Amount
The sum of the Monthly Excess Interest Amount, the Overcollateralization
Release Amount and the Remaining Principal Distribution Amount.
Monthly Excess Interest Amount
As to any Distribution Date, an amount equal to any Remaining Interest
Remittance Amount remaining after the distributions set forth in clauses
(ii)(A) through (ii)(J) of Section 4.02(a).
Monthly Statement
The statement prepared by the Trustee pursuant to Section 4.03.
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Moody's
Xxxxx'x Investors Service, Inc., or any successor thereto. For purposes of
Section 10.05(b) the address for notices to Moody's shall be Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Monitoring Department, or such other address as Moody's
may hereafter furnish to the Depositor or the Servicer.
Mortgage
The mortgage, deed of trust or other instrument creating a first lien on an
estate in fee simple or leasehold interest in real property securing a Mortgage
Note.
Mortgaged Property
The underlying property securing a Loan.
Mortgage File
The mortgage documents listed in Section 2.01 hereof pertaining to a
particular Loan and any additional documents delivered to the Trustee to be
added to the Mortgage File pursuant to this Agreement.
Mortgage Note
The original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Loan, together with any amendment or
modification thereto.
Mortgage Rate
The annual rate of interest borne by a Mortgage Note as set forth therein.
Mortgagor
The obligor(s) on a Mortgage Note.
Net Prepayment Interest Shortfalls
As to any Distribution Date, the amount by which the aggregate of Prepayment
Interest Shortfalls during the related Prepayment Period exceeds an amount
equal to the aggregate Servicing Fee for such Distribution Date before
reduction of the Servicing Fee in respect of such Prepayment Interest
Shortfalls.
Net Principal Shortfall Amount
As to any Distribution Date, the amount by which (a) the sum of the Class
Certificate Balances of the Offered Certificates (calculated after giving
effect to all other distributions to the Offered Certificates for that
Distribution Date) exceeds (b) the Pool Principal Balance as of the end of the
related Due Period.
Net Realized Losses
For any Class of Subordinated Certificates and any Distribution Date, the
excess of (a) the amount of unreimbursed Realized Losses previously allocated
to that Class over (b) the sum of (i) the amount of any increases to the Class
Certificate Balance of that Class pursuant to Section 4.02A due to Recoveries
and (ii) Realized Loss Amortization Amounts previously distributed to such
Class.
Net Recovery Realized Losses
For any Class of Subordinated Certificates and any Distribution Date, the
excess of Net Realized Losses for such Distribution Date over the Realized Loss
Amortization Amount distributed to that Class on that Distribution Date.
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Net WAC Cap
As to any Distribution Date, the per annum rate equal to: (a) with respect
to the Fixed Rate Certificates, the weighted average Adjusted Net Mortgage Rate
of the Loans as of the first day of the Due Period relating to that
Distribution Date, weighted on the basis of the aggregate principal balance of
the Loans as of the first day of the related Due Period (calculated on the
basis of a 360-day year made up of twelve 30-day months) and (b) with respect
to the Adjustable Rate Certificates, the weighted average Adjusted Net Mortgage
Rate of the Loans as of the first day of the Due Period relating to that
Distribution Date, weighted on the basis of the aggregate principal balance of
the Loans as of the first day of the related Due Period (calculated on the
basis of a 360-day year and the actual number of days elapsed in the related
Interest Accrual Period).
Net WAC Cap Account
The account established and maintained pursuant to Section 3A.03.
Net WAC Cap Carryover
With respect to any Class of the Offered Certificates and any Distribution
Date, the sum of (a) the excess, if any, of the Interest Distribution Amount
for such Class for such Distribution Date, calculated at its Pass-Through Rate
(without regard to the applicable Net WAC Cap), over the actual Interest
Distribution Amount for such Class for such Distribution Date, and (b) any
related Net WAC Cap Carryover remaining unpaid from the prior Distribution
Date, together with interest accrued thereon at its Pass-Through Rate (without
regard to the applicable Net WAC Cap) during the related Interest Accrual
Period.
Net WAC Cap Deposit Amount
As to any Distribution Date, an amount equal to the sum of (a) the aggregate
Net WAC Cap Carryover for such Distribution Date plus (b) the amount, if any,
needed to increase the aggregate amount on deposit in the Net WAC Cap Account
(after giving effect to all payments to be made pursuant to Section 4.02(g)) to
$10,000.
Net WAC Rate
As to any Distribution Date, a rate equal to the weighted average of the
Adjusted Net Mortgage Rates of all Outstanding Loans, such weighted average to
be calculated based on the principal balances of such Outstanding Loans as of
the first day of the related Due Period on the basis of either (a) a 360-day
year and the actual number of days elapsed in the related Interest Accrual
Period or (b) a 360-day year made up of twelve 30-day months, as applicable.
Nonrecoverable Advance
Any portion of an Advance previously made or proposed to be made by the
Servicer that, in the good faith judgment of the Servicer, will not be
ultimately recoverable by the Servicer from the related Mortgagor, related
Liquidation Proceeds or otherwise.
Notice of Final Distribution
The notice to be provided pursuant to Section 9.02 to the effect that final
distribution on any of the Certificates shall be made only upon presentation
and surrender thereof.
Offered Certificates
The certificates representing "regular interests" in REMIC 2, which are
designated as the Senior Certificates and the Subordinate Certificates.
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Officer's Certificate
A certificate (a) signed by the Chairman of the Board, the Vice Chairman of
the Board, the President, a Managing Director, a Vice President (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or one
of the Assistant Treasurers or Assistant Secretaries of the Depositor or the
Servicer, or (b), if provided for in this Agreement, signed by a Servicing
Officer, as the case may be, and delivered to the Depositor and the Trustee, as
the case may be, as required by this Agreement.
Opinion of Counsel
A written opinion of counsel, who may be counsel for the Depositor or the
Servicer, including, in-house counsel, reasonably acceptable to the Trustee;
provided, however, that with respect to the interpretation or application of
the REMIC Provisions, such counsel must (a) in fact be independent of the
Depositor and the Servicer, (b) not have any direct financial interest in the
Depositor or the Servicer or in any affiliate of either, and (c) not be
connected with the Depositor or the Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
Optional Termination Date
The first Distribution Date following the date on which the Optional
Termination may be exercised by the Servicer.
Optional Termination
The termination of the trust created hereunder in connection with the
purchase of the Loans pursuant to Section 9.01(a) hereof.
Original Loan
The mortgage loan refinanced in connection with the origination of a
Refinance Loan.
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 Loan
As of any Due Date, a Loan with a Stated Principal Balance greater than
zero, which was not the subject of a Principal Prepayment in Full prior to such
Due Date and which did not become a Liquidated Loan prior to such Due Date.
Overcollateralization Amount
As of any Distribution Date, (a) the Pool Principal Balance as of the last
day of the immediately preceding Due Period minus (b) the aggregate Class
Certificate Balance of all Classes of Offered Certificates (after taking into
account all distributions of principal on that Distribution Date).
Overcollateralization Deficiency
As of any Distribution Date, the excess, if any, of (a) the Targeted
Overcollateralization Amount for that Distribution Date over (b) the
Overcollateralization Amount for that Distribution Date, calculated for this
purpose after taking into account the reduction on that Distribution Date of
the Class
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Certificate Balances of all Classes of Offered Certificates resulting from the
distribution of the related Basic Principal Distribution Amount on that
Distribution Date, but prior to taking into account any Applied Realized Loss
Amounts on that Distribution Date.
Overcollateralization Release Amount
With respect to any Distribution Date on or after the Stepdown Date on which
a Trigger Event is not in effect, the lesser of (a) the Principal Remittance
Amount for that Distribution Date and (b) the excess, if any, of (i) the
Overcollateralization Amount for that Distribution Date, assuming that 100% of
the Principal Remittance Amount is applied as a principal payment on the
Certificates on that Distribution Date, over (ii) the Targeted
Overcollateralization Amount for that Distribution Date. With respect to any
Distribution Date before the Stepdown Date or on which a Trigger Event is in
effect, the Overcollateralization Release Amount will be zero.
Ownership Interest
As to any Class R 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 and each regular interest in
REMIC 1 and REMIC 2, as set forth in the Preliminary Statement.
Paying Agent
JPMorgan Chase Bank, N.A. and its successors and, if a successor paying
agent is appointed hereunder, such successor.
Percentage Interest
As to any Offered Certificate, the percentage interest evidenced thereby in
distributions required to be made to such Offered Certificate, such percentage
interest being set forth on the face thereof or equal to the percentage
obtained by dividing the Denomination of such Certificate by the aggregate of
the Denominations of all Certificates of the same Class. With respect to the
Class X Certificates and the Class R Certificates, the "Percentage Interest"
specified on the face thereof.
Permitted Investments
(a) obligations of the United States or any agency thereof, provided such
obligations are backed by the full faith and credit of the United States; (b)
general obligations of or obligations guaranteed by any state of the United
States or the District of Columbia receiving the highest long-term debt rating
of each Rating Agency rating the Offered Certificates, or such lower rating as
will not result in the downgrading or withdrawal of the ratings then assigned
to the Offered Certificates by each such Rating Agency; (c) commercial or
finance company paper which is then receiving the highest commercial or finance
company paper rating of each such Rating Agency, or such lower rating as will
not result in the downgrading or withdrawal of the ratings then assigned to the
Offered Certificates by each such Rating Agency; (d) 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 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 such lower ratings as will not
result in the downgrading or withdrawal of the rating then assigned to the
Offered Certificates by any such Rating
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Agency; (e) 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; (f) 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 Offered
Certificates by any such Rating Agency; (g) repurchase obligations with respect
to any security described in clauses (a) and (b) above, in either case entered
into with a depository institution or trust company (acting as principal)
described in clause (d) above; (h) 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
ratings of each such Rating Agency (except if the Rating Agency is Moody's or
S&P, the rating shall be the highest commercial paper rating of Moody's or S&P,
as applicable, for such securities), or such lower rating as will not result in
the downgrading or withdrawal of the rating then assigned to the Offered
Certificates by any such Rating Agency, as evidenced by a signed writing
delivered by each such Rating Agency; (i) interests in any money market fund
which at the date of acquisition of the interests in the fund and throughout
the time those interests are held in the fund has the highest applicable rating
of each such Rating Agency or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the Offered
Certificates by each such Rating Agency; (j) 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 which on the date of
acquisition has been rated by each such Rating Agency in its highest applicable
rating category or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Offered Certificates by each
such Rating Agency; and (k) such other investments having a specified stated
maturity and bearing interest or sold at a discount acceptable to each such
Rating Agency as will not result in the downgrading or withdrawal of the rating
then assigned to the Offered Certificates by any Rating Agency, as evidenced by
a signed writing to such effect delivered by each such Rating Agency; provided
that no such instrument shall be a Permitted Investment if such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument.
Permitted Transferee
Any person other than (a) the United States, any State or political
subdivision thereof, or any agency or instrumentality of any of the foregoing,
(b) a foreign government, International Organization or any agency or
instrumentality of either of the foregoing, (c) an organization (except certain
farmers' cooperatives described in section 521 of the Code) which is exempt
from tax imposed by Chapter 1 of the Code (including the tax imposed by section
511 of the Code on unrelated business taxable income) on any excess inclusions
(as defined in section 860E(c)(l) of the Code) with respect to any Class R
Certificate, (d) rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code, (e) a Person that is not (i) a citizen or resident
of the United States, (ii) a corporation or partnership (or other entity
properly treated as a corporation or partnership for U.S. federal income tax
purposes) created or organized in or under the laws of the United States or any
political subdivision thereof, (iii) 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 (iv) 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, unless such Person
listed in clause (i), (ii), (iii) or (iv) above has furnished the transferor
and the Trustee with a duly completed Internal Revenue Service Form W-8ECI and
(f) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Class R Certificate to
such Person may cause any REMIC hereunder to fail to qualify as one or more
REMICs at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in
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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, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization
or government, or any agency or political subdivision thereof.
Plan
As defined in Section 5.02(b)
Pool Principal Balance
With respect to any Distribution Date, the aggregate of the Stated Principal
Balances of the Loans that were Outstanding Loans (including Loans in
foreclosure and REO Properties) on their Due Dates in the related Due Period.
Popular Financial
Popular Financial Services, LLC, a Delaware limited liability company.
Popular Funding
Popular Financial Funding, LLC, a Delaware limited liability company.
Post-Stepdown Remaining Principal Distribution Amount
With respect to any Distribution Date is an amount equal to the Principal
Distribution Amount remaining after giving effect to the distributions set
forth in clause (i) of Section 4.02(c) hereof.
Pre-Stepdown Remaining Principal Distribution Amount
With respect to any Distribution Date is an amount equal to the Principal
Distribution Amount remaining after giving effect to the distributions set
forth in clause (i) of Section 4.02(b) hereof.
Prepayment Interest Excess
As to any Principal Prepayment on a Loan received by the Servicer subsequent
to its Due Date in the related Prepayment Period, all amounts paid by the
related Mortgagor in respect of interest on such Principal Prepayment that are
intended to cover the period on and after the Due Date. All Prepayment Interest
Excess shall be paid to the Servicer as additional servicing compensation.
Prepayment Interest Shortfall
As to any Distribution Date and any Principal Prepayment on a Loan received
by the Servicer on or before its Due Date in the related Prepayment Period, the
amount, if any, by which one month's interest at the related Adjusted Mortgage
Rate on such Principal Prepayment, exceeds the amount of interest paid in
connection with such Principal Prepayment.
Prepayment Period
With respect to any Distribution Date, the calendar month preceding the
month of that Distribution Date.
Primary Mortgage Insurance Policy
Each policy of primary mortgage guaranty insurance or any replacement policy
therefor with respect to any Loan.
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Principal Distribution Amount
With respect to any Distribution Date, the sum of (a) the Basic Principal
Distribution Amount for that Distribution Date and (b) the Extra Principal
Distribution Amount for that Distribution Date.
Principal Prepayment
Any payment of principal by a Mortgagor on a Loan that is received in
advance of its scheduled Due Date and is not accompanied by an amount
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 Servicer in accordance with the terms of the related Mortgage
Note.
Principal Prepayment in Full
Any Principal Prepayment made by a Mortgagor of the entire principal balance
of a Loan.
Principal Remittance Amount
As to any Distribution Date, the sum of (a) the principal portion of each
Scheduled Payment due on each Loan on such Loan's Due Date in the related Due
Period and received by the Servicer on or prior to the related Determination
Date, including any Advances with respect thereto, (b) the Stated Principal
Balance of each Loan that was sold or repurchased by a Seller or the Servicer
pursuant to this Agreement as of such Distribution Date, (c) the Substitution
Adjustment Amount in connection with any Deleted Loan received with respect to
such Distribution Date, (d) any Insurance Proceeds or Liquidation Proceeds
allocable to recoveries of principal of the Loans that are not yet Liquidated
Loans received during the related Prepayment Period, (e) with respect to each
Loan that became a Liquidated Loan during the related Prepayment Period, the
amount of Liquidation Proceeds allocable to principal received during the
related Prepayment Period with respect to such Loan, (f) all Principal
Prepayments on the Loans received during the related Prepayment Period, (g) on
the Distribution Date on which the Trust Fund is to be terminated in accordance
with Section 9.01 hereof that portion of the Termination Price allocable to
principal of the Loans, and (h) all Recoveries relating to Liquidated Loans
received during the related Prepayment Period, if any.
Prospectus Supplement
The Prospectus Supplement dated November 23, 2005 relating to the Publicly
Offered Certificates.
Publicly Offered Certificates
The Senior Certificates and the Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5 and Class M-6 Certificates.
Purchase Price
With respect to any Loan required to be repurchased by a Seller pursuant to
Section 2.02 or 2.03 hereof, or purchased at the option of the Servicer
pursuant to Section 3.11 hereof, an amount equal to the sum of (a) 100% of the
Stated Principal Balance of the Loan on the date of such purchase, (b) accrued
interest thereon at the applicable Mortgage Rate (or at the applicable Adjusted
Mortgage Rate if (i) the purchaser is the Servicer or (ii) the purchaser is a
Seller and Equity One-Delaware is the Servicer) from the date through which
interest was last paid by the Mortgagor or advanced (and not reimbursed) by the
Servicer to the Determination Date in the month in which the Purchase Price is
to be distributed to Certificateholders, and (c) any costs and damages incurred
by the Trust Fund in connection with such Loan.
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PTCE 95-60
As defined in Section 5.02(b).
Rating Agency
Xxxxx'x and S&P. If any of these organizations or a successor thereof is no
longer in existence, "RATING AGENCY" shall be such nationally recognized
statistical rating organization, or other comparable Person, as is designated
by the Depositor, notice of which designation shall be given to the Trustee.
References herein to a given rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers.
Realized Loss Amount
With respect to each Distribution Date, the excess, if any, of (a) the
aggregate of the Class Certificate Balances of the Offered Certificates (after
giving effect to all distributions on such Distribution Date) over (b) the Pool
Principal Balance at the end of the related Due Period.
Realized Losses
With respect to any Distribution Date, the sum of (a) the aggregate amount,
if any, by which (i) the outstanding principal balance of each Loan that became
a Liquidated Loan during the related Prepayment Period (such principal balance
determined immediately before such Loan became a Liquidated Loan) exceeds (ii)
the Liquidation Proceeds allocable to principal received during the related
Prepayment Period in connection with the liquidation of such Loan which have
not theretofore been used to reduce the Stated Principal Balance of such Loan,
and (b) any Deficient Valuations.
Realized Loss Amortization Amount
With respect to (a) the Class M-1 Certificates, the Class M-1 Realized Loss
Amortization Amount, (b) the Class M-2 Certificates, the Class M-2 Realized
Loss Amortization Amount, (c) the Class M-3 Certificates, the Class M-3
Realized Loss Amortization Amount, (d) the Class M-4 Certificates, the Class M-
4 Realized Loss Amortization Amount, (e) the Class M-5 Certificates, the Class
M-5 Realized Loss Amortization Amount, (f) the Class M-6 Certificates, the
Class M-6 Realized Loss Amortization Amount, (g) the Class B-1 Certificates,
the Class B-1 Realized Loss Amortization Amount, (h) the Class B-2
Certificates, the Class B-2 Realized Loss Amortization Amount, (i) the Class B-
3 Certificates, the Class B-3 Realized Loss Amortization Amount and (j) the
Class B-4 Certificates, the Class B-4 Realized Loss Amortization Amount.
Record Date
With respect to the Fixed Rate Certificates and any Distribution Date, the
close of business on the last Business Day of the calendar month immediately
preceding such Distribution Date. With respect to the Adjustable Rate
Certificates and any Distribution Date, the close of business on the Business
Day immediately preceding such Distribution Date.
Recovery
With respect to any Distribution Date and Loan that became a Liquidated Loan
in a month preceding the month prior to the Distribution Date, an amount
received in respect of principal on such Loan which has previously been
allocated as a Realized Loss to a Class or Classes of Certificates, net of
reimbursable expenses.
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Reference Banks
Any three (3) major banks engaged in transactions in Eurodollar deposits in
the international Eurocurrency market selected by the Trustee after
consultation with the Servicer.
Refinance Loan
Any Loan originated for the purpose of refinancing an existing mortgage
loan.
Relief Act
The Servicemembers Civil Relief Act, as amended.
Relief Act Reductions
With respect to any Distribution Date and any Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended calendar month as a result of the application of the Relief Act,
the amount, if any, by which (a) interest collectible on such Loan for the most
recently ended calendar month is less than (b) interest accrued thereon for
such month pursuant to the Mortgage Note without taking into account the
application of the Relief Act.
Remaining Interest Remittance Amount
With respect to any Distribution Date, an amount equal to the Interest
Remittance Amount remaining after giving effect to the distributions set forth
in clause (i) of Section 4.02(a).
Remaining Principal Distribution Amount
With respect to any Distribution Date, the sum of (a) the Pre-Stepdown
Remaining Principal Distribution Amount remaining after the distributions set
forth in clause (ii)(A) through (ii)(J) of Section 4.02(b) and (b) the Post-
Stepdown Remaining Principal Distribution Amount remaining after the
distributions set forth in clauses (ii)(A) through (ii)(J) of Section 4.02(c),
each for that Distribution Date.
REMIC
A "real estate mortgage investment conduit" within the meaning of section
860D of the Code.
REMIC 1
As defined in the Preliminary Statement.
REMIC 2
As defined in the Preliminary Statement.
REMIC 1 Accrual Class
As defined in the Preliminary Statement.
REMIC Change of Law
Any proposed, temporary or final regulation, revenue ruling, revenue
procedure or other official announcement or interpretation relating to REMICs
and the REMIC Provisions issued after the Closing Date.
REMIC Provisions
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at sections 860A through 860G of part IV of
subchapter M of chapter 1 of subtitle A of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
33
REO Property
A Mortgaged Property acquired by the Trust Fund through foreclosure or deed-
in-lieu of foreclosure in connection with a defaulted Loan.
Request for Release
The Request for Release submitted by the Servicer to the Trustee,
substantially in the form of Exhibit J.
Required Insurance Policy
With respect to any Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Reserve Fund
The account established and maintained by the Trustee pursuant to Section
3A.02.
Responsible Officer
When used with respect to the Trustee, any officer assigned to the Corporate
Trust Division of the Trustee (or any successor thereto), including any Vice
President, any Assistant Vice President, the Secretary, any Assistant
Secretary, any Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Agreement.
Rule 144A Letter
As defined in Section 5.02(b).
Scheduled Payment
The scheduled monthly payment on a Loan due on any Due Date allocable to
principal and/or interest on such Loan.
Second Lien Loan
Any Loan secured by a mortgage that is second in lien priority.
Securities Act
The Securities Act of 1933, as amended.
Sellers
Collectively, the following entities, their successors and assigns, each in
its capacity as a Seller of the Loans to the Depositor: Popular Funding; Equity
One-Delaware; Equity One-Pennsylvania; Equity One-Minnesota; Equity One-New
Hampshire; and Popular Financial.
Senior Certificates
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5 and Class A-6
Certificates.
Senior Enhancement Percentage
With respect to any Distribution Date, the percentage obtained by dividing
(a) the sum of (i) the aggregate Class Certificate Balance of the Subordinate
Certificates and (ii) the Overcollateralization Amount, in each case before
taking into account the distribution of the Principal Distribution Amount on
that Distribution Date by (b) the Pool Principal Balance as of the last day of
the related Due Period.
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Senior Principal Distribution Amount
As of any Distribution Date on or after the Stepdown Date and as long as a
Trigger Event is not in effect, the lesser of (i) the Principal Distribution
Amount for that Distribution Date and (ii) the excess, if any, of (A) the sum
of the Class Certificate Balances of the Senior Certificates immediately prior
to that Distribution Date over (B) the lesser of (1) the product of (x) 52.50%
and (y) the Pool Principal Balance as of the last day of the related Due Period
and (2) the Pool Principal Balance as of the last day of the related Due Period
minus the product of (x) 0.50% and (y) the Cut-off Date Pool Principal Balance.
Senior Specified Enhancement Percentage
As of any date of determination thereof, 47.50%.
Servicer
Equity One, Inc., a Delaware corporation, and its successors and assigns, in
its capacity as servicer hereunder.
Servicer Advance Date
As to any Distribution Date, the 18th day of the month in which such
Distribution Date occurs, or if such day is not a Business Day, the next
succeeding Business Day.
Servicing Advances
All customary, reasonable and necessary "out of pocket" costs and expenses
incurred in the performance by the Servicer of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and protection of a Mortgaged Property, (b) the foreclosure, trustee's sale, or
other liquidation of any Mortgage or Mortgaged Property, (c) any expenses
reimbursable to the Servicer pursuant to Section 3.11 and any enforcement or
judicial proceedings, including foreclosures, (d) the management and
liquidation of any REO Property, (e) compliance with the obligations described
in Section 3.06 and (f) any payments made by the Servicer pursuant to Section
3.09.
Servicing Amount
The sum of (a) the Servicing Fee, (b) unreimbursed Advances and (c)
unreimbursed Servicing Advances.
Servicing Fee
As to each Loan and any Distribution Date, an amount payable out of each
full payment of interest received on such Loan and equal to one-twelfth of the
Servicing Fee Rate multiplied by the Stated Principal Balance of such Loan as
of the Due Date in the month of such Distribution Date (prior to giving effect
to any Scheduled Payments due on such Loan on such Due Date), subject to
reduction as provided in Section 3.13.
Servicing Fee Rate
With respect to each Loan, 0.50% per annum.
Servicing Officer
Any officer of the Servicer involved in, or responsible for, the
administration and servicing of the Loans whose name and facsimile signature
appear on a list of servicing officers furnished to the Trustee by the Servicer
on the Closing Date pursuant to this Agreement, as such list may from time to
time be amended.
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S&P
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. For purposes of Section 10.05(b) the address for notices to S&P shall be
Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Residential Mortgage Surveillance, or such other address
as S&P may hereafter furnish to the Depositor and the Servicer.
Startup Day
The Closing Date.
Stated Principal Balance
As to any Loan, the unpaid principal balance of such Loan as of its most
recent Due Date as specified in the amortization schedule at the time relating
thereto (before any adjustment to such amortization schedule by reason of any
moratorium or similar waiver or grace period) after giving effect to any
previous partial Principal Prepayments and Liquidation Proceeds allocable to
principal (other than with respect to any Liquidated Loan) and to the payment
of principal due on such Due Date and irrespective of any delinquency in
payment by the related Mortgagor.
Stepdown Date
The earlier of (a) the Distribution Date on which the Class Certificate
Balances of the Senior Certificates have been reduced to zero or (b) the later
to occur of (i) the Distribution Date in December 2008 (the 37th Distribution
Date) or (ii) the first Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
Subordinate Certificates
The Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
B-1, Class B-2, Class B-3 and Class B-4 Certificates.
Subservicer
Any person to whom the Servicer has contracted for the servicing of all or a
portion of the Loans pursuant to Section 3.02.
Substitute Loan
A Loan substituted by a Seller for a Deleted Loan(s) which must, on the date
of such substitution, as confirmed in a Request for Release, substantially in
the form of Exhibit J, (a) have a Stated Principal Balance not in excess of,
and not more than 10% less than, the Stated Principal Balance(s) of the Deleted
Loans (such Stated Principal Balances to be measured as of the respective Due
Dates in the month of substitution); (b) have an interest rate that is
determined in the same manner as that of the Deleted Loans(s); (c) have a
Mortgage Rate not lower than, and not more than 1% per annum higher than, that
of the Deleted Loan(s); (d) have a Combined Loan-to-Value Ratio not higher than
that of the Deleted Loan(s); (e) have a debt to income ratio not higher than
that of the Deleted Loan(s); (f) have been originated pursuant to the same
underwriting standards as the Deleted Loan(s); (g) have a remaining term to
maturity not greater than, and not more than one year less than, that of the
Deleted Loan(s); and (h) comply, as of the date of substitution, with each
representation and warranty set forth or referred to in Section 2.03.
Substitution Adjustment Amount
The meaning ascribed to such term pursuant to Section 2.03.
Targeted Overcollateralization Amount
As of any Distribution Date, (a) prior to the Stepdown Date, the sum of (i)
1.60% of the Cut-off Date Pool Principal Balance and (ii) the Aggregate Class B
Early Distribution Amount, and (b) on
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and after the Stepdown Date, the lesser of (i) the sum of (A) 1.60% of the Cut-
off Date Pool Principal Balance and (B) the Aggregate Class B Early
Distribution Amount and (ii) the greater of (A) the excess of (I) 11.80% of the
Pool Principal Balance as of the last day of the related Due Period over (II)
the excess of (x) the sum of the Class Certificate Balances of the Class B-1,
Class B-2, Class B-3 and Class B-4 Certificates as of the Closing Date over (y)
the aggregate of distributions made in respect of principal to the Class B-1,
Class B-2, Class B-3 and Class B-4 Certificates on all prior Distribution Dates
and (B) 0.50% of the Cut-off Date Pool Principal Balance. With respect to any
Distribution Date on which a Trigger Event is in effect, the Targeted
Overcollateralization Amount will be equal to the Targeted
Overcollateralization Amount for the immediately preceding Distribution Date
(after taking into account any distributions made in respect of principal to
the Class B-4, Class B-3, Class B-2 and Class B-1 Certificates on the
immediately preceding Distribution Date pursuant to clauses (xxxv), (xxxvi),
(xxxvii) and (xxxviii) of Section 4.02(d)).
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. Initially, the Tax Matters Person shall be the Trustee.
Tax Matters Person Certificate
The Class R Certificate with a Denomination of .00001%.
Termination Price
As defined in Section 9.01.
Transfer
Any direct or indirect transfer or sale of any Ownership Interest in a Class
R Certificate.
Transfer Affidavit
As defined in Section 5.02(c).
Transferor Certificate
As defined in Section 5.02(b).
Trigger Event
With respect to any Distribution Date, if (a) the six-month rolling average
of 60+ Day Delinquent Loans equals or exceeds 33.75% of the Senior Enhancement
Percentage or (b) the aggregate amount of Realized Losses incurred since the
Cut-off Date through the last day of the calendar month immediately preceding
that Distribution Date divided by the Cut-off Date Pool Principal Balance
exceeds the applicable percentages set forth below with respect to that
Distribution Date:
Distribution Date Occurring In Percentage
December 2007 -- November 2008 1.40% for the first month plus an additional
1/12th of 1.75% for each month thereafter (or
1/12th of 2.05% if the Class Certificate
Balances of the Class B-1, Class B-2, Class
B-3 and Class B-4 Certificates have been
reduced to zero and no part of that reduction
was due to the application of Realized
Losses) for each month thereafter;
December 2008 -- November 2009 3.15% (or 3.45% if the Class Certificate
Balances of the Class B-1, Class B-2, Class
B-3 and Class B-4 Certificates have been
reduced to zero and no part of that reduction
was due to the application of Realized
Losses) for the first month plus an additional
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1/12th of 1.90% (or 1/12th of 2.00% if the
Class Certificate Balances of the Class B-1,
Class B-2, Class B-3 and Class B-4
Certificates have been reduced to zero and no
part of that reduction was due to the
application of Realized Losses) for each
month thereafter;
December 2009 -- November 2010 5.05% (or 5.45% if the Class Certificate
Balances of the Class B-1, Class B-2, Class
B-3 and Class B-4 Certificates have been
reduced to zero and no part of that reduction
was due to the application of Realized
Losses) for the first month plus an additional
1/12th of 1.50% (or 1/12th of 1.65% if the
Class Certificate Balances of the Class B-1,
Class B-2, Class B-3 and Class B-4
Certificates have been reduced to zero and no
part of that reduction was due to the
application of Realized Losses) for each
month thereafter;
December 2010 -- November 2011 6.55% (or 7.10% if the Class Certificate
Balances of the Class B-1, Class B-2, Class
B-3 and Class B-4 Certificates have been
reduced to zero and no part of that reduction
was due to the application of Realized
Losses) for the first month plus an additional
1/12th of 0.85% (or 1/12th of 0.90% if the
Class Certificate Balances of the Class B-1,
Class B-2, Class B-3 and Class B-4
Certificates have been reduced to zero and no
part of that reduction was due to the
application of Realized Losses) for each
month thereafter;
December 2011 -- November 2012 7.40% (or 8.00% if the Class Certificate
Balances of the Class B-1, Class B-2, Class
B-3 and Class B-4 Certificates have been
reduced to zero and no part of that reduction
was due to the application of Realized
Losses) for the first month plus an additional
1/12th of 0.10% (or 1/12th of 0.10% if the
Class Certificate Balances of the Class B-1,
Class B-2, Class B-3 and Class B-4
Certificates have been reduced to zero and no
part of that reduction was due to the
application of Realized Losses) for each
month thereafter;
December 2012 and thereafter 7.50% (or 8.10% if the Class Certificate
Balances of the Class B-1, Class B-2, Class
B-3 and Class B-4 Certificates have been
reduced to zero and no part of that reduction
was due to the application of Realized
Losses).
Trustee
JPMorgan Chase Bank, N.A. and its successors and, if a successor trustee is
appointed hereunder, such successor.
Trustee Fee
As to any Distribution Date, an amount equal to one-twelfth of the Trustee
Fee Rate multiplied by the Pool Principal Balance as of such Distribution Date.
Trustee Fee Rate
With respect to each Loan, 0.02% per annum.
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Trust Fund
The corpus of the trust created hereunder consisting of (a) the Loans
(including, without limitation, the Mortgage Files relating thereto), and all
interest, principal and other amounts received, or receivable, on or with
respect thereto on and after the Cut-off Date to the extent not applied in
computing the Cut-off Date Principal Balance thereof and all interest and
principal payments on such Loans received prior to the Cut-off Date in respect
of installments of interest and principal due thereafter; (b) the Certificate
Account, the Distribution Account, the Net WAC Cap Account, the Reserve Fund
and all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (c) property that secured a Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (d) the Yield
Maintenance Agreement; (e) such other rights and property as are held in trust
hereunder by the Trustee for the benefit of the Certificateholders; and (f) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing.
Trustee Permitted Withdrawal Amount
Means an aggregate amount not to exceed (a) with respect to costs associated
with the transitioning of servicing, $75,000 per servicing transition event and
(b) with respect to amounts (other than the Trustee Fee) which are payable to
the Trustee pursuant to Section 8.05 hereof, $150,000 per annum.
Unpaid Realized Loss Amount
For any Class of Subordinate Certificates and as to any Distribution Date,
the excess of (a) the cumulative amount of Applied Realized Loss Amounts with
respect to that Class for all prior Distribution Dates over (b) the cumulative
amount of Realized Loss Amortization Amounts with respect to that Class for all
prior Distribution Dates.
Underwriter Exemption
Prohibited Transaction Exemption 2002-41, 67 Fed Reg. 54487 (August 22,
2002), or any successor thereto.
Underwriters
Greenwich Capital Markets, Inc. and Friedman, Billings, Xxxxxx & Co., Inc.
Voting Rights
The portion of the voting rights of all of the Certificates, which is
allocated to any Certificate. With respect to any date of determination, the
Offered Certificates shall be allocated 100% of all Voting Rights. The Voting
Rights allocated to each Class of the Offered Certificates shall be the
fraction, expressed as a percentage, the numerator of which is the Class
Certificate Balance of such Class then outstanding and the denominator of which
is the aggregate Stated Principal Balance of the Loans then outstanding. The
Voting Rights allocated to each Class of Certificates shall be allocated among
the Certificates of each such Class in accordance with their respective
Percentage Interests. The Class X and the Class R Certificates will not have
any Voting Rights.
Yield Maintenance Agreement
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The Master Agreement (including the Schedule thereto and the Transactions
thereunder each evidenced by a Confirmation (each as defined in the Yield
Maintenance Agreement) dated as of November 30, 2005, by and between the
Counterparty and the Trustee not in its individual capacity, but solely as
trustee for the benefit of the Certificateholders of the Popular ABS, Inc.
Mortgage Pass-Through Certificates, Series 2005-D.
Yield Maintenance Stated Termination
November 25, 2013, subject to the Following Business Day Convention (as such
term is defined in the Yield Maintenance Agreement).
ARTICLE II
CONVEYANCE OF LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Loans.
(a) Subject to its substitution and repurchase obligations hereunder, each
Seller, concurrently with the execution and delivery hereof, hereby irrevocably
sells, transfers, grants, bargains, assigns, sets over and otherwise conveys to
the Depositor, without recourse, all the right, title and interest of such
Seller in and to that portion of the Loans (including, without limitation, the
Mortgage Files relating thereto) listed on the Loan Schedule that pertains to
such Seller, including (i) all interest and principal received or receivable by
such Seller on or with respect to such Loans after the Cut-off Date and all
interest and principal payments on such Loans received on or prior to the Cut-
off Date in respect of installments of interest and principal due thereafter,
but not including payments of principal and interest due and payable on such
Loans on or before the Cut-off Date, and (ii) all Principal Prepayments,
Liquidation Proceeds and other unscheduled payments received or receivable on
the Loans on the Cut-off Date. On or prior to the Closing Date, each Seller
shall deliver to the Depositor or, at the Depositor's direction, to the Trustee
or other designee of the Depositor, the Mortgage File for each Loan listed in
that portion of the Loan Schedule that pertains to such Seller. Such delivery
of the Mortgage Files shall be made against payment by the Depositor of the
purchase price, previously agreed to by such Seller and the Depositor, for the
Loans listed on the Loan Schedule that pertain to such Seller. With respect to
any Loan that does not require the first payment of principal or interest
thereon to be made on or before such Loan's Due Date in the month prior to the
first Distribution Date, such Seller shall deposit into the Certificate Account
on the Closing Date, an amount equal to one month's interest at the related
Mortgage Rate on the Cut-off Date Principal Balance of such Loan (the "Initial
Certificate Account Deposit"). The Sellers, for the benefit of the Depositor,
shall, in connection with the conveyance described in this Section 2.01(a),
deliver to the Depositor on or prior to the Closing Date the financing
statements described in Schedule VI. The Sellers shall also arrange for the
delivery to the Depositor or its assignee, as applicable, of any appropriate
Uniform Commercial Code continuation statements as may be necessary in
connection with the financing statements referenced in the foregoing sentence.
(b) The Depositor, concurrently with the execution and delivery hereof,
hereby irrevocably sells, transfers, grants, bargains, assigns, sets over and
otherwise conveys to the Trustee for the benefit of the Certificateholders,
without recourse, all the right, title and interest of the Depositor in and to
the Trust Fund together with the Depositor's right to require the Sellers (and
Equity One-Delaware) to cure any breach of a representation or warranty made
herein by the Sellers or to repurchase or substitute for any affected Loan in
accordance with the provisions hereof. In addition, the Depositor, for the
benefit of the Trustee and the Certificateholders, shall, in connection with
the conveyance
40
described in this Section 2.01(b), deliver to the Trustee on or prior to the
Closing Date the financing statements described in Schedule VII. The Depositor
shall also arrange for the delivery to the Trustee of any appropriate Uniform
Commercial Code continuation statements as may be necessary in connection with
the financing statements referenced in the foregoing sentence.
(c) In connection with the sale, transfer and assignment set forth in
clause (b) above, the Depositor has delivered or caused to be delivered to the
Trustee or a Custodian for the Trustee on or before the Closing Date, or shall
deliver or cause to be delivered to the Trustee or a Custodian for the Trustee
on or before such later date as is set forth below, for the benefit of the
Certificateholders the following documents or instruments with respect to each
Loan so sold, transferred and assigned:
(i) the original Mortgage Note endorsed (by manual or facsimile
signature) as follows: "Pay to the order of JPMorgan Chase Bank, N.A. as
trustee for the benefit of the Certificateholders of Popular ABS, Inc.
Mortgage Pass-Through Certificates Series 2005-D without recourse," with all
intervening endorsements and all riders and modifications showing a complete
chain of endorsement from the originator to the Person endorsing it to the
Trustee (each such endorsement being sufficient to transfer all right, title
and interest of the party so endorsing, as noteholder or assignee thereof,
in and to that Mortgage Note);
(ii) except as provided below, the original recorded Mortgage;
(iii) an original recorded assignment of the Mortgage (which may be
included in a blanket assignment or assignments), duly executed by the
appropriate Seller and the Depositor, which assignment will not be delivered
on or before the Closing Date, but shall be delivered within the time period
set forth in this Section 2.01, together with, except as provided below, all
interim recorded assignments of such Mortgage, if any, all riders or
modifications to such Mortgage, if any, (each such assignment to be in
recordable form and sufficient to effect the assignment of and transfer to
the assignee thereof, under the Mortgage to which the assignment relates,
with the original to be recorded by the Servicer as follows: the Servicer
shall promptly send such assignments for recording, and shall return the
original recorded assignment to the Trustee once returned as recorded by the
applicable recording office);
(iv) the original of each assumption, modification, written assurance
or substitution agreement, if any; and
(v) except as provided below, the original or duplicate original
lender's title policy and all riders thereto.
Notwithstanding the foregoing, in lieu of providing the documents described
in clause (iii) above, the Depositor may at its discretion provide evidence
that the related Mortgage is held through the MERS (R) System. With respect to
any MOM Loan, the original recorded Mortgage that is provided shall note the
MIN of such MOM Loan. Certain Mortgages were or may be, at the sole discretion
of the Servicer, originally recorded in the name of MERS (R), solely as nominee
for the applicable Seller and its successors or assigns; furthermore,
subsequent assignments of such Mortgages were or may be, at the sole discretion
of the Servicer, registered electronically through the MERS (R) System. For
certain other Loans, (i) the Mortgage was recorded in the name of the Seller,
(ii) record ownership was later assigned to MERS (R), solely as nominee for
that Seller, and (iii) subsequent assignments of the Mortgage were or may be,
at the sole discretion of the Servicer, registered electronically through the
MERS (R) System.
41
For each of these Loans, MERS (R) serves as mortgagee of record on the Mortgage
solely as a nominee in an administrative capacity on behalf of the Trustee, and
does not have any beneficial interest in the Loan.
In the event that in connection with any Loan the Depositor cannot deliver
(a) the original recorded Mortgage, (b) all interim recorded assignments, if
any, or (c) the lender's title policy (together with all riders thereto)
satisfying the requirements of clause (ii), (iii) or (v) above, respectively,
concurrently with the execution and delivery hereof because such document or
documents have not been returned from the applicable public recording office in
the case of clause (ii) or (iii) above, or because the title policy has not
been delivered to either the Servicer or the Depositor by the applicable title
insurer in the case of clause (v) above, and, in the case of the assignments,
if any, of the Mortgage to the Trustee as required under (iii) above, the
Depositor shall promptly deliver to the Trustee, in the case of clause (ii) or
(iii) above, such original recorded Mortgage or such original recorded
assignment, if any, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but in no
event shall any such delivery of the original recorded Mortgage and each such
original recorded assignment, if any, or a copy thereof, certified, if
appropriate, by the relevant recording office, and each title policy as
required by clause (v) above be made later than one year following the Closing
Date; provided, however, in the event the Depositor is unable to deliver within
one year following the Closing Date, each original recorded Mortgage, and each
such original recorded assignment, if any, or each such title policy by reason
of the fact that any such documents have not been returned by the appropriate
recording office, or, in the case of each such assignment, if any, because the
related original recorded Mortgage or any related interim recorded assignment
have not been returned by the appropriate recording office or, in the case of
each title policy, because the title insurer has not received the recording
information from the appropriate recording office for such original recorded
Mortgage or original recorded assignment, if any, has not been returned by the
appropriate recording office, the Depositor shall deliver such documents to the
Trustee as promptly as possible upon receipt thereof and, in any event, within
720 days following the Closing Date. The Depositor shall forward or cause to be
forwarded to the Trustee (a) from time to time additional original documents
evidencing an assumption or modification of a Loan and (b) any other documents
required to be delivered by the Depositor or the Servicer to the Trustee. In
the event that the original recorded Mortgage is not delivered and, in
connection with the payment in full of the related Loan, the public recording
office requires the presentation of a "lost instruments affidavit and
indemnity" or any equivalent document, because only a copy of the Mortgage can
be delivered with the instrument of satisfaction or reconveyance, the Servicer
shall execute and deliver or cause to be executed and delivered such a document
to the public recording office. In the case where a public recording office
retains the original recorded Mortgage or in the case where an original
recorded Mortgage is lost after recordation in a public recording office, the
appropriate Seller shall deliver to the Trustee a copy of such Mortgage
certified by such public recording office to be a true and complete copy of the
original recorded Mortgage.
As promptly as practicable subsequent to such transfer and assignment, and
in any event, within thirty (30) days thereafter, the Servicer shall (i) affix
the Trustee's name to each assignment of Mortgage, if any, as the assignee
thereof as Trustee for the benefit of the Certificateholders, (ii) cause such
assignment, if any, to be in proper form for recording in the appropriate
public office for real property records and (iii) cause to be delivered for
recording in the appropriate public office for real property records the
assignments, if any, of the Mortgages to the Trustee, except that, with respect
to any assignments of Mortgages as to which the information required to prepare
such assignment in recordable form has not yet been received, the Servicer's
obligation to do so and to deliver the same for such recording shall be as soon
as practicable after receipt of such information and in any event within thirty
(30) days after receipt thereof.
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In the case of Loans that have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee, will
deposit in the Certificate Account the portion of such payment that is required
to be deposited in the Certificate Account pursuant to Section 3.05 hereof.
(d) The Depositor, the Sellers, the Servicer and the Trustee understand
and agree that it is not intended that any Loan be included in the Trust Fund
that is a "High-Cost Home Loan" as defined by the Homeownership and Equity
Protection Act of 1994 or any other applicable predatory or abusive lending
laws.
SECTION 2.02. Acceptance by Trustee of the Trust Fund.
The Trustee acknowledges receipt of the documents identified in the initial
certification in the form annexed hereto as Exhibit D and declares that it
holds and will hold such documents and the other documents delivered to it
constituting the Mortgage Files, and that it holds or will hold such other
assets as are included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The Trustee acknowledges
that it will maintain possession of the Mortgage Notes in the State of Texas,
unless otherwise permitted by the Rating Agencies. In the event that the
Trustee desires to maintain possession of the Mortgage Notes in a state (other
than the State of Texas) constituting one of the United States of America, the
Trustee shall, at least thirty (30) days prior to discontinuing possession of
the Mortgage Notes in the State of Texas, provide (i) a notice of such
intention to the Rating Agencies and the Sellers and (ii) an Opinion of Counsel
stating that such relocation of the Mortgage Notes and the possession by the
Trustee of the Mortgage Notes in such other state will not (a) destroy or
impair the perfection by the Trustee of the security interests assigned and
granted to the Trustee pursuant to the provisions of Section 10.04 or (b)
subject any REMIC to any state tax.
The Trustee agrees to execute and deliver on the Closing Date to the
Depositor, the Servicer and the Sellers an initial certification in the form
annexed hereto as Exhibit D. Based on its review and examination, and only as
to the documents identified in such initial certification, the Trustee shall
acknowledge that such documents appear regular on their face and relate to the
Loans listed in the Loan Schedule or shall indicate any noted deviations. The
Trustee, at the time of delivery of the initial certification, shall be under
no duty or obligation (i) to inspect, review or examine said documents,
instruments, certificates or other papers to determine that the same are
genuine, enforceable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face or (ii) to determine whether the
Mortgage File shall include any of the documents listed in Section 2.01(c),
except for the Mortgage Note. Should there be any exceptions to the Trustee's
initial certification as to the Mortgage Notes, the appropriate Seller shall
have thirty (30) days from the Closing Date to cure such exception or deliver a
Mortgage File or Mortgage Files for a Substitute Loan or Substitute Loans in
accordance with Section 2.03(c). A Seller may cure an exception based on
absence of a Mortgage Note for a Loan by delivering an executed copy of an
Affidavit of Lost Note in the form attached as Annex I to Exhibit D hereto to
the Trustee.
Not later than 90 days after the Closing Date, the Trustee shall deliver to
the Depositor, the Servicer and the Sellers a final certification in the form
annexed hereto as Exhibit E, with any applicable exceptions noted thereon. At
any time upon request (but not more frequently than once per calendar month),
the Trustee shall deliver to the Depositor, the Servicer and the Sellers, an
updated schedule of open exceptions in electronic or written format.
If the Trustee finds any document constituting a part of a Mortgage File
which does not meet the requirements of Section 2.01, the Trustee shall list
such as an exception in the final certification;
43
provided, however that the Trustee shall not make any determination as to
whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and
to that Mortgage Note or (ii) any assignment is in recordable form or is
sufficient to effect the assignment of and transfer to the assignee thereof
under the mortgage to which the assignment relates. In performing any such
review, the Trustee may conclusively rely on the Depositor as to the purported
genuineness of any such document and any signature thereon. It is understood
that the scope of the Trustee's review of the Mortgage Files is limited solely
to confirming that the documents listed in Section 2.01(c) have been received
and further confirming that any and all documents delivered pursuant to Section
2.01(c) have been executed and relate to the Loans identified in the Loan
Schedule. The Trustee shall have no responsibility for determining whether any
document is valid and binding, whether the text of any assignment or
endorsement is in proper or recordable form, whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction, or
whether a blanket assignment is permitted in any applicable jurisdiction. The
appropriate Seller shall promptly correct or cure such defect within 90 days
from the date it was so notified of such defect and, if such Seller does not
correct or cure such defect within such period, such Seller shall either (a)
substitute for the related Loan a Substitute Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.03, or (b) purchase such Loan from the Trustee within 90 days from the date
such Seller was notified of such defect in writing at the Purchase Price of
such Loan; provided, however, that in no event shall such substitution or
purchase occur more than 540 days from the Closing Date, except that if the
substitution or purchase of a Loan pursuant to this provision is required by
reason of a delay in delivery of any comments by the appropriate recording
office, and there is a dispute between either the Servicer or such Seller and
the Trustee over the location or status of the recorded document, then such
substitution or purchase shall occur within 720 days from the Closing Date;
provided, that any Loan that does not constitute a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code shall be subject to a
substitution or repurchase as provided in Section 2.05(b) of this Agreement.
The Trustee shall deliver a report to each Rating Agency within 720 days from
the Closing Date indicating a list of all documents in each Mortgage File in
the possession of the Trustee. Any such substitution pursuant to (a) above or
purchase pursuant to (b) above shall not be effected prior to the delivery to
the Trustee of the Opinion of Counsel required by Section 2.05 hereof, if any,
and any substitution pursuant to (a) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit J. No substitution is permitted to be made in any calendar
month after the Determination Date for such month. The Purchase Price for any
such Loan shall be deposited by such Seller in the Certificate Account on or
prior to the Distribution Account Deposit Date for the Distribution Date in the
month following the month of repurchase and, upon receipt of such deposit and
certification with respect thereto in the form of Exhibit J, the Trustee shall
release the related Mortgage File to such Seller and shall execute and deliver
at such Seller's request such instruments of transfer or assignment prepared by
such Seller, in each case without recourse, as shall be necessary to vest in
such Seller, or a designee, the Trustee's interest in any Loan released
pursuant hereto.
If, pursuant to the foregoing provisions, a Seller repurchases a Loan that
is registered on the MERS (R) System, the Servicer shall cause MERS (R) to
execute and deliver an assignment of the related Mortgage in recordable form to
transfer the Mortgage from MERS (R) to such Seller and shall cause such
Mortgage to be removed from registration on the MERS (R) System in accordance
with MERS' (R) rules and regulations or (ii) cause MERS (R) to designate on the
MERS (R) System the Seller as the beneficial holder of such Loan.
The Trustee shall retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions set forth herein. The
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting the
Mortgage File as come into the possession of the Servicer from time to time.
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It is understood and agreed that the obligation of the appropriate Seller to
substitute for or to purchase any Loan which does not meet the requirements of
Section 2.01 above shall constitute the sole and exclusive remedy respecting
such defect available to the Trustee, the Depositor and any Certificateholder
against any Seller.
SECTION 2.03. Representations, Warranties and Covenants of the Sellers and
the Servicer.
(a) (i) Equity One-Delaware, Equity One-Pennsylvania, Equity One-
Minnesota, Equity One-New Hampshire, Popular Funding and Popular Financial,
in their capacities as Sellers, hereby make the representations and
warranties set forth in Schedules IIA through IIF respectively, and by this
reference incorporated herein, to the Depositor and the Trustee, as of the
Closing Date or if so specified therein, as of the Cut-off Date; and
(ii) The Servicer hereby makes the representations and warranties set
forth in Schedule IIX, and by this reference incorporated herein, to the
Depositor and the Trustee, as of the Closing Date or if so specified
therein, as of the Cut-off Date.
(b) Equity One-Delaware, Equity One-Pennsylvania, Equity One-Minnesota,
Equity One-New Hampshire, Popular Funding and Popular Financial, in their
capacities as Sellers, hereby make the representations and warranties set forth
in Schedules IIIA through IIIF respectively, and by this reference incorporated
herein, to the Depositor and the Trustee, as of the Closing Date or if so
specified therein, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially and
adversely affects the interests of the Certificateholders in any Loan, the
party discovering such breach shall give prompt notice thereof to the other
parties. Each Seller, for itself and not jointly and severally for all other
Sellers, hereby covenants that within 90 days of the earlier of its discovery
or its receipt of written notice from any party of a breach of any
representation or warranty made pursuant to Section 2.03(b) with respect to any
Loan listed on the Loan Schedule that pertains to such Seller, such Seller may,
and if such breach materially and adversely affects the interests of the
Certificateholders such Seller shall, cure such breach in all material
respects, and if such breach is not so cured, may or shall, as the case may be,
(i) if such 90-day period expires prior to the second anniversary of the
Closing Date, remove such Loan (a "DELETED LOAN") from the Trust Fund and
substitute in its place a Substitute Loan, in the manner and subject to the
conditions set forth in this Section or (ii) repurchase the affected Loan or
Loans from the Trustee at the Purchase Price in the manner set forth below;
provided, however, that any such substitution pursuant to (i) above shall not
be effected prior to the delivery to the Trustee of the Opinion of Counsel
required by Section 2.05 hereof, if any, 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 substantially in the form of Exhibit J and the
Mortgage File for any such Substitute Loan. Notwithstanding the preceding
sentence, any Loan that does not constitute a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code shall be subject to substitution or
repurchase as provided in Section 2.05(b) of this Agreement. The appropriate
Seller shall promptly reimburse the Servicer and the Trustee for any expenses
reasonably incurred by the Servicer or the Trustee in respect of enforcing the
remedies for such breach. With respect to the representations and warranties
described in this Section which are made to the best of a Seller's knowledge,
if it is discovered by either the Depositor, the appropriate Seller 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
Loan or the interests of the Certificateholders therein, notwithstanding such
Seller's lack of knowledge with
45
respect to the substance of such representation or warranty, such inaccuracy
shall be deemed a breach by such Seller of the applicable representation or
warranty.
With respect to any Substitute Loan or Loans, such Seller shall deliver to
the Trustee for the benefit of the Certificateholders, the Mortgage Note, the
Mortgage, the related assignment of the Mortgage, if any, and such other
documents and agreements as are required by Section 2.01, with the Mortgage
Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Substitute Loans in the month of substitution shall not be part of the Trust
Fund and will be retained by the appropriate Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to the relevant
Class will include the monthly payment due on any Deleted Loan for such month
and thereafter the appropriate Seller shall be entitled to retain all amounts
received in respect of such Deleted Loan. The Servicer shall amend the Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Loan and the substitution of the Substitute Loan or Loans and the
Servicer shall deliver the amended Loan Schedule to the Trustee. Upon such
substitution, the Substitute Loan or Loans shall be subject to the terms of
this Agreement in all respects, and the appropriate Seller shall be deemed to
have made with respect to such Substitute Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to Section
2.03(b). Upon any such substitution and the deposit to the Certificate Account
of the amount required to be deposited therein in connection with such
substitution as described in the following paragraph, the Trustee shall release
the Mortgage File held for the benefit of the Certificateholders relating to
such Deleted Loan to the appropriate Seller and shall execute and deliver at
the appropriate Seller's direction such instruments of transfer or assignment
prepared by such Seller, in each case without recourse, as shall be necessary
to vest title in such Seller, or its designee, with respect to the Trustee's
interest in any Deleted Loan substituted for pursuant to this Section 2.03.
For any month in which the appropriate Seller substitutes one or more
Substitute Loans for one or more Deleted Loans, the Servicer will determine the
amount (if any) by which the aggregate Stated Principal Balance of all such
Substitute Loans is less than the aggregate Stated Principal Balance of all
such Deleted Loans (such Stated Principal Balances to be measured as of the
respective Due Dates in the month of substitution). The amount of such shortage
(the "SUBSTITUTION ADJUSTMENT AMOUNT") plus an amount equal to the sum of (a)
the aggregate of any unreimbursed Advances with respect to such Deleted Loans
and (b) any costs and damages incurred by the Trust Fund in connection with
such Deleted Loan prior to the date of such substitution shall be deposited in
the Certificate Account by such Seller on or before the Distribution Account
Deposit Date for the Distribution Date in the month following the month during
which the related Loan became required to be purchased or replaced hereunder.
In the event that the appropriate Seller shall have repurchased a Loan, the
Purchase Price therefor shall be deposited in the Certificate Account pursuant
to Section 3.05 on or before the Distribution Account Deposit Date for the
Distribution Date in the month following the month during which such Seller
became obligated hereunder to repurchase or replace such Loan and upon such
deposit of the Purchase Price, the delivery of the Opinion of Counsel required
by Section 2.05 and receipt of a Request for Release in the form of Exhibit J,
the Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to such Seller, and the Trustee shall execute and deliver at
such Seller's direction such instruments of transfer or assignment prepared by
such Seller, in each case without recourse, as shall be necessary to transfer
title from the Trustee. It is understood and agreed that the obligation under
this Agreement of any Seller to cure, repurchase or replace any Loan as to
which a breach of a representation or warranty has occurred and is continuing
shall constitute the sole and exclusive remedy against such Sellers respecting
such breach of a representation and warranty available to Certificateholders,
the Depositor or the Trustee on their behalf.
46
(d) The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
SECTION 2.03A. Additional Obligations of Equity One-Delaware.
(a) In addition to the representations and warranties made by Equity One-
Delaware in its capacity as a Seller, as described in Section 2.03 and set
forth in Schedules IIA and IIIA, Equity One-Delaware hereby represents and
warrants to the Depositor and the Trustee that all of the representations and
warranties of the other Sellers described in Section 2.03 and set forth in
Schedules IIB through IIF and IIIB through IIIF are true and accurate in all
respects.
(b) Equity One-Delaware hereby covenants that it shall comply with the
repurchase and substitution obligations described in Section 2.02 and 2.03 in
the event that (i) a breach of any of the representations and warranties set
forth in Schedules IIIB through IIIF occurs and (ii) the related Seller
defaults on its repurchase and substitution obligations under Sections 2.02 and
2.03.
SECTION 2.04. Representations and Warranties of the Depositor as to the
Loans
The Depositor hereby represents and warrants to the Trustee with respect to
each Loan that as of the Closing Date, and following the transfer of the Loans
to it by the Sellers, the Depositor had good title to the Loans and the
Mortgage Notes were subject to no offsets, defenses or counterclaims.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the Mortgage Files to the
Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of
the foregoing representations and warranties set forth in this Section 2.04,
which breach materially and adversely affects the interest of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties and to each Rating Agency.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or Section 2.03 shall be made more than
90 days after the Closing Date unless the appropriate Seller delivers to the
Trustee an Opinion of Counsel, which Opinion of Counsel shall not be at the
expense of either the Trustee or the Trust Fund, addressed to the Trustee, to
the effect that such substitution will not (i) result in the imposition of the
tax on "prohibited transactions" on the Trust Fund or contributions after the
Startup Day, as defined in Sections 860F(a)(2) and 860G(d) of the Code,
respectively, and/or (ii) cause the Trust Fund to fail to qualify as one or
more REMICs at any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the appropriate Seller, the Servicer
or the Trustee that any 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 five (5) Business Days of discovery)
give written notice thereof to the other parties. In connection therewith, the
Trustee shall require the appropriate Seller, at such Seller's option, to
either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Loan for the affected Loan within 90
days from the discovery or (ii) repurchase the affected Loan within 90 days of
such discovery in the same manner as it would repurchase a Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to such Seller the Loan to be released
47
pursuant hereto in the same manner, and on the same terms and conditions, as it
would release a Loan repurchased for breach of a representation or warranty
contained in Section 2.03.
SECTION 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust Fund
and, concurrently with such transfer and assignment and in payment therefor,
has executed and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund
and exercise the rights referred to above for the benefit of all present and
future Certificateholders and to perform the duties set forth in this Agreement
to the best of its ability, to the end that the interests of the
Certificateholders may be adequately and effectively protected.
SECTION 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest possible
maturity date" for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "tax matters person" with respect to each REMIC created hereunder
shall be the Trustee and the Trustee shall hold the Tax Matters Person
Certificate. The Trust Fund's fiscal year shall be the calendar year and, for
purposes of section 860C of the Code, the taxable income of each REMIC created
hereunder shall be computed under an accrual method of accounting.
The Trustee shall treat each of the Net WAC Cap Account and the Reserve Fund
as a separate and distinct outside reserve fund within the meaning of ss.1.860G-
2(h) of the Income Tax Regulations. None of the Net WAC Cap Account, the
Reserve Fund or the Yield Maintenance Agreement shall be treated as an asset of
any REMIC. The Trustee shall treat the rights of the Holders of the Offered
Certificates to receive payments in respect of Net WAC Cap Carryover as rights
in a limited recourse interest rate cap contract. The Holders of the Class X
Certificates will own the Net WAC Cap Account. The Trustee will own the Reserve
Fund. The Offered Certificates shall be treated as representing ownership of
not only a regular interest in a REMIC but also ownership of an interest in an
interest rate cap contract.
The Trustee shall treat the payment of any Net WAC Cap Carryover as paid
first to the Trustee, deposited by the Trustee in the Net WAC Cap Account and
then paid from the Net WAC Cap Account to the relevant Offered Certificates.
The Trustee shall treat the Offered Certificates as "contractual rights coupled
with regular interests" within the meaning of ss.1.860G-2(i) of the Income Tax
Regulations. In determining the issue price of the regular interests issued to
Holders of Offered Certificates, the Trustee shall assume that each interest
rate cap contract has a value of $10,000.
SECTION 2.08. Covenants of the Servicer.
The Servicer hereby covenants to the Depositor and the Trustee as follows:
(a) the Servicer shall comply in the performance of its obligations under
this Agreement with all reasonable rules and requirements of the insurer under
each Required Insurance Policy; and
(b) no written information, certificate of an officer, statement furnished
in writing or written report delivered to the Depositor, any affiliate of the
Depositor or the Trustee and prepared by the
48
Servicer pursuant to this Agreement will contain any untrue statement of a
material fact or omit to state a material fact necessary to make such
information, certificate, statement or report not misleading.
ARTICLE III
ADMINISTRATION AND SERVICING
OF LOANS
SECTION 3.01. Servicer to Service Loans.
For and on behalf of the Certificateholders, the Servicer shall service and
administer the Loans in accordance with the terms of this Agreement and
customary and usual standards of practice of prudent mortgage loan servicers.
In connection with such servicing and administration, the Servicer shall have
full power and authority, acting alone and/or through Subservicers as provided
in Section 3.02 hereof, 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 in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds and Recoveries and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Loan; provided that the Servicer shall not take any action that is
inconsistent with or prejudices the interests of the Trust Fund or the
Certificateholders in any Loan or the rights and interests of the Depositor,
the Trustee and the Certificateholders under this Agreement. The Servicer shall
represent and protect the interests of the Trust Fund in the same manner as it
protects its own interests in mortgage loans in its own portfolio in any claim,
proceeding or litigation regarding a Loan, and shall not make or permit any
modification, waiver or amendment of any Loan which would cause the Trust Fund
to fail to qualify as one or more REMICs or result in the imposition of any tax
under Section 860F(a) or Section 860G(d) of the Code. Without limiting the
generality of the foregoing, the Servicer, in its own name or in the name of
the Depositor and the Trustee, is hereby authorized and empowered by the
Depositor and the Trustee, when the 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 Loans, and with respect
to the Mortgaged Properties held for the benefit of the Certificateholders. The
Servicer shall prepare and deliver to the Depositor and/or the Trustee such
documents requiring execution and delivery by either or both of them as are
necessary or appropriate to enable the Servicer to service and administer the
Loans to the extent that the Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of such
documents, the Depositor and/or the Trustee shall execute such documents and
deliver them to the Servicer. In addition, upon the request of the Servicer
from time to time the Trustee shall execute and deliver to the Servicer one or
more powers of attorney in the form attached hereto as Exhibit M.
SECTION 3.02. Subservicing; Enforcement of the Obligations of Servicers.
(a) The Servicer may arrange for the subservicing of any Loan by a
Subservicer pursuant to a subservicing agreement; provided, however, that such
subservicing arrangement and the terms of the related subservicing agreement
must provide for the servicing of such Loans in a manner consistent with the
servicing arrangements contemplated hereunder. Unless the context otherwise
requires, references in this Agreement to actions taken or to be taken by the
Servicer in servicing the Loans include actions taken or to be taken by a
Subservicer on behalf of the Servicer. Notwithstanding
49
the provisions of any subservicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Servicer and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
the Servicer shall remain obligated and liable to the Depositor, the Trustee
and the Certificateholders for the servicing and administration of the Loans in
accordance with the provisions of this 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 Servicer alone
were servicing and administering the Loans. All actions of each Subservicer
performed pursuant to the related subservicing agreement shall be performed as
an agent of the Servicer with the same force and effect as if performed
directly by the Servicer. Each subservicing agreement, if any, shall provide
that any successor servicer (including, without limitation, the Trustee acting
in such capacity) shall have the right to terminate such subservicing agreement
without the payment of any fees or other amounts to the subservicer.
(b) For purposes of this Agreement, the Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the Loans that
are received by a Subservicer regardless of whether such payments are remitted
by the Subservicer to the Servicer.
SECTION 3.03. Rights of the Depositor and the Trustee in Respect of the
Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Servicer hereunder and in
connection with any such defaulted obligation to exercise the related rights of
the Servicer hereunder; provided that the Servicer shall not be relieved of any
of its obligations hereunder by virtue of such performance by the Depositor or
its designee. Neither the Trustee nor the Depositor shall have any
responsibility or liability for any action or failure to act by the Servicer
nor shall the Trustee or the Depositor be obligated to supervise the
performance of the Servicer hereunder or otherwise.
SECTION 3.04. Trustee to Act as Servicer.
In the event that the Servicer shall for any reason no longer be the
Servicer hereunder (including by reason of an Event of Default), the Trustee or
its successor shall thereupon assume all of the rights and obligations of the
Servicer hereunder arising thereafter (except that the Trustee shall not be (i)
liable for losses of the Servicer pursuant to Section 3.09 hereof or any acts
or omissions of the predecessor Servicer hereunder, (ii) obligated to make
Advances if it is prohibited from doing so by applicable law, (iii) obligated
to effectuate repurchases or substitutions of Loans hereunder including, but
not limited to, repurchases or substitutions of Loans pursuant to Section 2.02
or 2.03 hereof, (iv) responsible for expenses of the Servicer pursuant to
Section 2.03 or (v) deemed to have made any representations and warranties of
the Servicer hereunder). Any such assumption shall be subject to Section 7.02
hereof. If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Trustee or its successor
shall succeed to any rights and obligations of the Servicer under each
subservicing agreement.
The Servicer shall, upon request of the Trustee, but at the expense of the
Servicer, deliver to the assuming party all documents and records relating to
each subservicing agreement or substitute subservicing agreement and the Loans
then being serviced thereunder and an accounting of amounts collected or held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of the substitute subservicing agreement to the assuming party.
50
SECTION 3.05. Collection of Loan Payments; Certificate Account; Distribution
Account.
(a) The Servicer shall make reasonable efforts in accordance with the
customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the terms and provisions of the Loans to
the extent such procedures shall be consistent with this Agreement and the
terms and provisions of any related Required Insurance Policy. Consistent with
the foregoing, the Servicer may in its discretion (i) waive any late payment
charge or any prepayment charge or penalty interest in connection with the
prepayment of a Loan and (ii) extend the due dates for payments due on a
Mortgage Note for a period not greater than 180 days; provided, however, that
the Servicer cannot extend the maturity of any such Loan past the date on which
the final payment is due on the latest maturing Loan as of the Cut-off Date. In
the event of any such arrangement, the Servicer shall make Advances on the
related Loan in accordance with the provisions of Section 4.01 during the
scheduled period in accordance with the amortization schedule of such Loan
without modification thereof by reason of such arrangements. The 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.
(b) The Servicer shall establish and maintain a Certificate Account into
which the Servicer shall deposit or cause to be deposited 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 the Loans subsequent to the Cut-off Date (other than in respect of principal
and interest due on the Loans on or before the Cut-off Date) and the following
amounts required to be deposited hereunder:
(i) all payments on account of principal on the Loans, including
Principal Prepayments;
(ii) all payments on account of interest on the Loans, net of the
related Servicing Fee;
(iii) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Servicer's
normal servicing procedures, and all Recoveries;
(iv) any amount required to be deposited by the Servicer pursuant to
Section 3.05(d) in connection with any losses on Permitted Investments;
(v) any amounts required to be deposited by the Servicer pursuant to
Section 3.09(c) and, in respect of net monthly rental income from REO
Property, pursuant to Section 3.11 hereof;
(vi) all Substitution Adjustment Amounts;
(vii) all Advances made by the Servicer pursuant to Section 4.01;
(viii) all Principal Prepayments, Liquidation Proceeds and other
unscheduled payments on the Loans received on the Cut-off Date; and
51
(ix) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of prepayment penalties, late payment
charges or assumption fees, if collected, need not be remitted by the Servicer.
In the event that the Servicer shall remit any amount not required to be
remitted, it may at any time withdraw or direct the institution maintaining the
Certificate Account to withdraw such amount from the Certificate Account, any
provision herein to the contrary notwithstanding. Such withdrawal or direction
may be accomplished by delivering written notice thereof to the Trustee or such
other institution maintaining the Certificate Account which describes the
amounts deposited in error in the Certificate Account. The Servicer shall
maintain adequate records with respect to all withdrawals made pursuant to this
Section. All funds deposited in the Certificate Account shall be held in trust
for the Certificateholders until withdrawn in accordance with Section 3.08.
(c) The Trustee shall establish and maintain, for the benefit of the
Certificateholders, the Distribution Account. The Trustee shall, promptly upon
receipt, deposit in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.08(a)(ix); and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required to be
remitted, it may at any time direct the Trustee to withdraw such amount from
the Distribution Account, any provision herein to the contrary notwithstanding.
Such direction may be accomplished by delivering an Officer's Certificate to
the Trustee which describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be held by the
Trustee uninvested in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.08. In
no event shall the Trustee incur liability for withdrawals from the
Distribution Account at the direction of the Servicer.
(d) The Servicer may direct, in writing, each institution at which the
Certificate Account is maintained to invest the funds therein in specified
Permitted Investments, which shall mature not later than, the second Business
Day next preceding the Distribution Account Deposit Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
account or a fund for which such institution or affiliate thereof serves as an
investment advisor, administrator, shareholder servicing agent and/or custodian
or subcustodian, then such Permitted Investment shall mature not later than the
Business Day next preceding such Distribution Account Deposit 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. So long as no Event of Default shall have occurred and be
continuing, all income earned on funds on deposit in the Certificate Account,
net of any losses realized from any Permitted Investments made with such funds,
shall be for the benefit of the Servicer as servicing compensation and shall be
remitted to it monthly as provided herein. If an Event of Default has occurred
and is continuing, all income earned on funds on deposit in the Certificate
Account, net of any losses realized from any Permitted Investments made with
such funds, shall be deposited into the Certificate Account without right of
reimbursement. The amount of any realized losses in the Certificate Account in
respect of any such Permitted Investments shall promptly be deposited by the
Servicer (from its own
52
funds) in the Certificate Account. The Trustee in its fiduciary capacity shall
not be liable for the amount of any loss incurred in respect of any investment
or lack of investment of funds held in the Certificate Account and made in
accordance with this Section 3.05.
(e) The Servicer shall give notice to the Trustee, each Seller, each
Rating Agency and the Depositor of any proposed change of the location of the
Certificate Account prior to any change thereof. The Trustee shall give notice
to the Servicer, each Seller, each Rating Agency and the Depositor of any
proposed change of the location of the Distribution Account prior to any change
thereof.
SECTION 3.06. Payment of Taxes, Assessments, Hazard Insurance Premiums and
Similar Items; Escrow Accounts.
(a) The Servicer shall require Mortgagors to pay all taxes, assessments,
hazard insurance premiums, flood insurance premiums, condominium association
dues or comparable items for the account of the Mortgagors. To the extent
required by the Seller at the time the related Loan was originated and not
violative of current law, the 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 Servicer) for the payment
of taxes, assessments, hazard insurance premiums, condominium association dues
or comparable items for the account of the Mortgagors. Nothing herein shall
require the Servicer to compel a Mortgagor to establish an Escrow Account in
violation of applicable law or if the Seller of the related Loan did not
require the establishment of an Escrow Account at the time the Loan was
originated.
Withdrawals of amounts so collected from the Escrow Accounts may be made
only to effect timely payment of taxes, assessments, hazard insurance premiums,
condominium association dues, or comparable items, to reimburse the Servicer
out of related collections for any payments made pursuant to Sections 3.01
hereof (with respect to taxes and assessments and insurance premiums) and 3.09
hereof (with respect to hazard insurance), to refund to any Mortgagors any sums
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 this
Agreement in accordance with Section 9.01 hereof. The Escrow Accounts shall not
be a part of the Trust Fund.
(b) The Servicer shall advance any payments referred to in Section 3.06(a)
that are not timely paid by the Mortgagors on the date when the tax, premium or
other cost for which such payment is intended is due, but the Servicer shall be
required so to advance only to the extent that such advances, in the good faith
judgment of the Servicer, are required to be made to protect the lien of the
Mortgage and will be recoverable by the Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise. The amount of any such advances made by the
Servicer for the purpose of maintaining any hazard or flood 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 balance of the related Loan, notwithstanding that the terms of
the Loan so permit. Any advance made by the Servicer pursuant to this Section
3.06 shall be recoverable as a Servicing Advance to the extent permitted by
Section 3.08.
SECTION 3.07. Access to Certain Documentation and Information Regarding the
Loans.
(a) The Servicer shall afford the Depositor, the Trustee and each Rating
Agency reasonable access to all records and documentation regarding the Loans
and all accounts, insurance
53
information and other matters relating to this Agreement, such access being
afforded without charge, but only upon reasonable request and during normal
business hours at the office designated by the Servicer.
(b) Upon reasonable advance notice in writing, the Servicer will provide
to each Certificateholder which is a savings and loan association, bank or
insurance company certain reports and reasonable access to information and
documentation regarding the Loans sufficient to permit such Certificateholder
to comply with applicable regulations of the OTS or other regulatory
authorities with respect to investment in the Certificates; provided that the
Servicer shall be entitled to be reimbursed by each such Certificateholder for
actual expenses incurred by the Servicer in providing such reports and access.
SECTION 3.08. Permitted Withdrawals from the Certificate Account and
Distribution Account.
(a) The Servicer may from time to time make withdrawals from the
Certificate Account for the following purposes:
(i) to pay to the Servicer (to the extent not previously retained by
the Servicer) the servicing compensation to which it is entitled pursuant to
Section 3.13, and, subject to Section 3.05(d), to pay to the Servicer, as
additional servicing compensation, earnings on or investment income with
respect to funds in or credited to the Certificate Account;
(ii) to reimburse the Servicer for unreimbursed Advances made by it,
such right of reimbursement pursuant to this subclause (ii) being limited to
amounts received on the Loan(s) in respect of which any such Advance was
made, excluding any Purchase Price proceeds received from the Servicer
pursuant to Section 3.11 and subject to Section 9.01;
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously made, except that the Servicer shall no longer be entitled to
reimbursement for any Nonrecoverable Advance on a Loan as of the date the
Servicer purchases such Loan from the Trust Fund pursuant to Section 3.11 or
Section 9.01;
(iv) to reimburse the Servicer for Insured Expenses from the related
Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing Advances,
the Servicer's right to reimbursement pursuant to this clause (a) with
respect to any Loan being limited to amounts received on such Loan(s) which
represent late recoveries of the payments for which such Servicing Advances
were made pursuant to Section 3.01 or Section 3.06 and (b) for unpaid
Servicing Fees as provided in Section 3.11 hereof;
(vi) to pay to the purchaser, with respect to each Loan or property
acquired in respect thereof that has been purchased pursuant to Section
2.02, 2.03 or 3.11, all amounts received thereon after the date of such
purchase;
(vii) to (A) reimburse the Sellers, the Servicer or the Depositor for
expenses incurred by any of them that are reimbursable pursuant to Section
6.03 hereof or (B) to pay to the Trustee any Trustee Permitted Withdrawal
Amounts;
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(viii) to withdraw any amount deposited in the Certificate Account and
not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date, to withdraw
an amount equal to the Available Funds for such Distribution Date and remit
such amounts to the Trustee for deposit in the Distribution Account; and
(x) to clear and terminate the Certificate Account upon termination of
this Agreement pursuant to Section 9.01 hereof.
The Servicer shall keep and maintain separate accounting, on a Loan by Loan
basis, for the purpose of justifying any withdrawal from the Certificate
Account pursuant to such subclauses (i), (ii), (iv), (v) and (vi). Prior to
making any withdrawal from the Certificate Account pursuant to subclause (iii),
the Servicer shall deliver to the Trustee an Officer's Certificate of a
Servicing Officer indicating the amount of any previous Advance determined by
the Servicer to be a Nonrecoverable Advance and identifying the related
Loans(s), and their respective portions of such Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account to make
the distributions specified in this Agreement (and to withhold from the amounts
so withdrawn, the amount of any taxes that it is authorized to withhold
pursuant to the last paragraph of Section 8.11). In addition, the Trustee may
from time to time make withdrawals from the Distribution Account for the
following purposes:
(i) to the extent not remitted by the Servicer pursuant to Section
3.08(a)(vii)(B) above within a reasonable period of time after request by
the Trustee, to remit (prior to making any other distributions from amounts
held in the Distribution Account) to itself any Trustee Permitted Withdrawal
Amounts;
(ii) to withdraw and return to the Servicer any amount deposited in
the Distribution Account and not required to be deposited therein; and
(iii) to clear and terminate the Distribution Account upon termination
of the Agreement pursuant to Section 9.01 hereof.
SECTION 3.09. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Servicer shall require Mortgagors to maintain, for each Loan,
hazard insurance with extended coverage (i) in the case of a Loan secured by a
Mortgage creating a first lien on the related Mortgaged Property, in an amount
that is at least equal to the original principal balance of such Loan or the
maximum insurable value of the improvements on such Mortgaged Property,
whichever is less, and (ii) in the case of a Second Lien Loan, in an amount
equal to the lesser of the combined principal balance of such Second Lien Loan
and the related first lien mortgage loan or the maximum insurable value of the
improvements on the related Mortgaged Property. Each such policy of standard
hazard insurance shall contain, or have an accompanying endorsement that
contains, a standard mortgagee clause. Any amounts collected by the Servicer
under any such policies (other than the amounts to be applied to the
restoration or repair of the improvements on the related Mortgaged Property or
amounts released to the Mortgagor in accordance with the Servicer's normal
servicing procedures) shall be deposited in the Certificate Account. 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
55
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 Loan in a
federally designated special flood hazard area and such area is participating
in the national flood insurance program, the Servicer shall require the related
Mortgagor to maintain flood insurance with respect to such Loan. Such flood
insurance shall be in an amount equal to the original principal balance of the
related Loan.
(b) The Servicer shall not be required to have Mortgagors maintain any
Primary Mortgage Insurance Policy with respect to any Loan, but may do so as
allowed by law, and shall allow the cancellation of any such Primary Mortgage
Insurance Policy as required by law. The Servicer shall not take any action
which would result in non-coverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of the Servicer, would
have been covered thereunder. If any Mortgagor fails to pay the premiums for
its Primary Mortgage Insurance Policy, if any, the Servicer may, but shall not
be required to, pay such premiums. Any payment made by the Servicer pursuant to
this Section 3.09(b) shall be recoverable as a Servicing Advance to the extent
permitted by Section 3.08.
(c) In connection with its activities as Servicer of the Loans, the
Servicer agrees to present on behalf of itself, 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 Loans. Any amounts collected by the Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Certificate
Account.
SECTION 3.10. Enforcement of Due-on-Sale Clauses; Assumption Agreements.
(a) When any property subject to a Mortgage has been conveyed by the
Mortgagor, the Servicer, to the extent that it has knowledge of such
conveyance, may, at its discretion, but is not required to, 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. The Servicer is authorized, subject to Section
3.10(b), 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 which such Person becomes liable under the Mortgage Note and,
unless prohibited by applicable state law, the Mortgagor remains liable
thereon, provided that the Loan shall continue to be covered (if so covered
before the Servicer enters such agreement) by the applicable Required Insurance
Policies. The Servicer, subject to Section 3.10(b), 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 Servicer shall not be deemed to be in
default under this Section by reason of any transfer or assumption which the
Servicer reasonably believes it is restricted by law from preventing, for any
reason whatsoever.
(b) 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 Loan, the
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
56
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
may be changed. In addition, the substitute Mortgagor and the Mortgaged
Property must be acceptable to the Servicer in accordance with its underwriting
standards as then in effect. Together with each such substitution, assumption
or other agreement or instrument delivered to the Trustee for execution by it,
the Servicer shall deliver an Officer's Certificate signed by a Servicing
Officer stating that the requirements of this subsection have been met in
connection therewith. The 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 Servicer for entering into an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation.
SECTION 3.11. Realization Upon Defaulted Loans; Repurchase and Sale of
Certain Loans.
The Servicer shall use reasonable efforts to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the 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 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 meet the requirements of
the insurer under any Required Insurance Policy; provided, however, that the
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 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 Certificate Account). The Servicer shall be responsible
for all other costs and expenses incurred by it in any such proceedings;
provided, however, that it shall be entitled to reimbursement thereof from the
liquidation proceeds with respect to the related Mortgaged Property, as
provided in the definition of Liquidation Proceeds. If the Servicer has
knowledge that a Mortgaged Property which the 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 Servicer, the 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
its 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 Servicer shall ensure that the title to
such REO Property references this Agreement and the Trustee's capacity
thereunder. In order to facilitate sales of REO Properties by the Servicer,
upon the Servicer's request, the Trustee shall promptly provide the Servicer
with appropriate limited durable powers of attorney or such other documentation
as may reasonably be required by the Servicer or purchasers of REO Properties
to consummate such sales. Pursuant to its efforts to sell such REO Property,
the Servicer shall either itself or through an agent selected by the 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 Servicer deems
to be in the best interest of the Certificateholders for the period prior to
the sale of such REO
57
Property. The Servicer shall prepare for and deliver to 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 Trustee to comply with the reporting requirements of the REMIC
Provisions. The net monthly income, if any, from such REO Property shall be
deposited in the Certificate Account no later than the close of business on
each Determination Date. The Servicer shall perform the tax reporting and
withholding required by Sections 1445 and 6050J of the Code with respect to
foreclosures and abandonments, the tax reporting required by Section 6050H of
the Code with respect to the receipt of mortgage interest from individuals and
any tax reporting required by Section 6050P of the Code with respect to the
cancellation of indebtedness by certain financial entities, by preparing such
tax and information returns as may be required, in the form required, and
delivering the same to the Trustee for filing.
In the event that the Trust Fund acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Loan, the Servicer shall dispose of such Mortgaged Property prior to the close
of the third taxable year of the Trust Fund following the taxable year of the
Trust Fund in which the Trust Fund acquired such Mortgaged Property, unless the
Trustee shall have been supplied with an Opinion of Counsel (which Opinion of
Counsel shall not be at the 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 any REMIC hereunder as defined in section 860F of the Code or
cause any REMIC to fail to qualify as one or more REMICs 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 this 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 any REMIC 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 Servicer has agreed to indemnify and hold harmless the Trust Fund
with respect to the imposition of any such taxes.
The decision of the Servicer to foreclose on a defaulted Loan shall be
subject to a determination by the Servicer that the proceeds of such
foreclosure would exceed the costs and expenses of bringing such a proceeding.
The proceeds from any liquidation of a Loan, as well as any income from an
REO Property, will be applied in the following order of priority: first, to
reimburse the Servicer for any related unreimbursed Servicing Advances and
Servicing Fees related to such Liquidated Loan; second, to reimburse the
Servicer for any unreimbursed Advances; third, to accrued and unpaid interest
(to the extent no Advance has been made for such amount or any such Advance has
been reimbursed) on the Loan or related REO Property, at the Adjusted Net
Mortgage Rate to the Due Date occurring in the calendar month preceding the
month in which such amounts are required to be distributed; and fourth, as a
recovery of principal of the Loan. Excess Proceeds, if any, from the
liquidation of a Liquidated Loan will be retained by the Servicer as additional
servicing compensation pursuant to Section 3.13.
During the first full calendar month (but excluding the last Business Day
thereof) following the calendar month in which a Loan became 91 days or more
delinquent, the Servicer, in its sole discretion, shall have the right, but not
the obligation, to purchase for its own account or for resale as set forth
herein from the Trust Fund any Loan that is then still 91 days or more
delinquent at a price equal
58
to the Purchase Price. The Purchase Price for any Loan purchased hereunder
shall be deposited in the Certificate Account and the Trustee, upon receipt of
a Request for Release from the Servicer substantially in the form of Exhibit J,
shall release or cause to be released to the Servicer the related Mortgage File
and shall execute and deliver such instruments of transfer or assignment
prepared by the purchaser, in each case without recourse, as shall be necessary
to vest in the purchaser any Loan released pursuant hereto and the purchaser
shall succeed to all the Trustee's right, title and interest in and to such
Loan and all security and documents related thereto. Such assignment shall be a
sale and assignment outright and not for security. The purchaser shall
thereupon own such Loan, and all security and documents, free of any further
obligation to the Trustee or the Certificateholders with respect thereto.
If with respect to any delinquent Loan, the option of the Servicer set forth
in the preceding paragraph shall have arisen but the Servicer shall have failed
to exercise such option with respect to such Loan on or before the Business Day
preceding the last Business Day of the calendar month following the calendar
month during which such Loan first became 91 days or more delinquent, then such
option shall automatically expire with respect to such Loan; provided, however,
that if any such Loan shall cease to be 91 days or more delinquent but then
subsequently shall again become 91 days or more delinquent, then the Servicer
shall be entitled to another repurchase option with respect to such Loan as
provided in the preceding paragraph.
SECTION 3.12. Documents, Records and Funds in Possession of Servicer to be
Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Servicer shall
transmit to the Trustee as required by this Agreement all documents and
instruments in respect of a Loan coming into the possession of the Servicer
from time to time and shall account fully to the Trustee for any funds received
by the Servicer or which otherwise are collected by the Servicer as Liquidation
Proceeds, Insurance Proceeds or Recoveries in respect of any Loan. All Mortgage
Files and funds collected or held by, or under the control of, the Servicer in
respect of any Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds or Recoveries, including but not limited
to, any funds on deposit in the Certificate Account, shall be held by the
Servicer for and on behalf of the Trustee and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of this
Agreement. The Servicer also agrees that it shall not create, incur or subject
any Mortgage File or any funds that are deposited in the Certificate Account,
Distribution Account, or any funds that otherwise are or may become due or
payable to the Trustee for the benefit of the Certificateholders, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of
setoff against any Mortgage File or any funds collected on, or in connection
with, a Loan, except, however, that the Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Servicer under this Agreement.
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SECTION 3.13. Servicing Compensation.
As compensation for its activities hereunder, the Servicer shall be entitled
to retain or withdraw from the Certificate Account an amount equal to the
Servicing Fee for each Loan, provided that the aggregate Servicing Fee for the
Loans with respect to any Distribution Date shall be reduced (i) by an amount
equal to the aggregate of the Prepayment Interest Shortfalls, if any, with
respect to such Distribution Date, up to the full amount of the aggregate
Servicing Fee, and (ii) with respect to the first Distribution Date, an amount
equal to any amount to be deposited into the Certificate Account by the Sellers
pursuant to Section 2.01(a) and not so deposited.
Additional servicing compensation in the form of Excess Proceeds, Prepayment
Interest Excess, prepayment penalties, assumption fees, late payment charges
and all income earned on funds on deposit in the Certificate Account, net of
any losses realized from any Permitted Investments made with such funds, shall
be retained by the Servicer to the extent not required to be deposited in the
Certificate Account pursuant to Section 3.05 hereof. The Servicer shall be
required to pay all expenses incurred by it in connection with its servicing
activities hereunder and shall not be entitled to reimbursement therefor except
as specifically provided in this Agreement.
SECTION 3.14. Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising certain Certificateholders and the examiners
and supervisory agents of the OTS, the FDIC and such other authorities, access
to the documentation regarding the 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 normal business hours at
the offices designated by the Servicer. Nothing in this Section shall limit the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Mortgagors and the failure of the Servicer to
provide access as provided in this Section as a result of such obligation shall
not constitute a breach of this Section.
SECTION 3.15. Annual Statement as to Compliance.
The Servicer shall deliver to the Depositor and the Trustee on or before 120
days after the end of the Servicer's fiscal year, commencing with the fiscal
year in which the Cut-off Date occurs, an Officer's Certificate stating, as to
the signer thereof, that (i) a review of the activities of the Servicer during
the preceding fiscal year and of the performance of the Servicer under this
Agreement has been made under such officer's supervision and (ii) to the best
of such officer's knowledge, based on such review, the Servicer has fulfilled
all its obligations under this Agreement throughout such year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof. The Trustee
shall forward a copy of each such statement to each Rating Agency.
SECTION 3.16. Annual Independent Public Accountants' Servicing Statement;
Financial Statements.
On or before 120 days after the end of the Servicer's fiscal year,
commencing with the fiscal year in which the Cut-off Date occurs, the Servicer
at its expense shall cause a nationally or regionally recognized firm of
independent public accountants (who may also render other services to the
Servicer, the Seller or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the Trustee and the Depositor to the effect that such firm has
60
examined certain documents and records relating to the servicing of the Loans
under this Agreement and that, on the basis of such examination, conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or the Audit Program for Mortgages serviced for FNMA and
FHLMC, such servicing has been conducted in compliance with this Agreement
except for such significant exceptions or errors in records that, in the
opinion of such firm, the Uniform Single Attestation Program for Mortgage
Bankers or the Audit Program for Mortgages serviced for FNMA and FHLMC requires
it to report. In rendering such statement, such firm may rely, as to matters
relating to direct servicing of mortgage loans by Subservicers, upon comparable
statements for examinations conducted substantially in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program
for Mortgages serviced for FNMA and FHLMC (rendered within one year of such
statement) of independent public accountants with respect to the related
Subservicer. Copies of such statement shall be provided by the Trustee to any
Certificateholder upon request at the Servicer's expense, provided such
statement is delivered by the Servicer to the Trustee.
SECTION 3.17. Errors and Omissions Insurance; Fidelity Bonds.
The Servicer shall, for so long as it acts as servicer under this Agreement,
obtain and maintain in force (a) a policy or policies of insurance covering
errors and omissions in the performance of its obligations as Servicer
hereunder 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 FNMA or FHLMC for persons performing
servicing for mortgage loans purchased by FNMA or FHLMC. In the event that any
such policy or bond ceases to be in effect, the Servicer shall 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.
SECTION 3.18. RESERVED.
SECTION 3.19. Delinquent Loans.
For all purposes in this Agreement and the Exhibits and Schedules attached
hereto, the determination as to whether a Loan is delinquent shall be based on
the number of days that payments on such Loan are contractually past due,
assuming 30-day months. For example, a payment due on the first day of a month
is not 30 days delinquent until the first day of the following month.
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ARTICLE IIIA
RESERVE FUND AND NET WAC CAP ACCOUNT
SECTION 3A.01 RESERVED.
SECTION 3A.02 Reserve Fund and Yield Maintenance Agreement.
(a) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the Hedged Certificates, the
Reserve Fund to cover certain payments to the Hedged Certificates. The Reserve
Fund shall be an Eligible Account, and funds on deposit in such fund shall be
held separate and apart from, and shall not be commingled with, any other
moneys, including without limitation, other moneys held by the Trustee pursuant
to this Agreement. The Reserve Fund shall be treated as an "outside reserve
fund" under applicable Treasury regulations and will not be part of any REMIC.
Any investment earnings on funds on deposit in the Reserve Fund will be treated
as owned by the Trustee and will be taxable to the Trustee. Distributions made
to the Reserve Fund under this document shall be treated as made to the
Trustee.
(b) In addition, on the Closing Date, the Yield Maintenance Agreement will
be entered into by the Counterparty and the Trustee, for the benefit of the
Holders of the Hedged Certificates. On each Distribution Date, the Trustee will
deposit into the Reserve Fund any amounts received pursuant to the Yield
Maintenance Agreement. Pursuant to the terms of the Yield Maintenance
Agreement, amounts received thereunder will be allocable to the applicable
Class of Hedged Certificates, and the Trustee shall maintain records tracking
such allocation. The Trustee shall collect payments due under and otherwise
enforce the terms of the Yield Maintenance Agreement. The Trustee shall make
withdrawals from the Reserve Fund to make distributions pursuant to Section
4.02(f). Notwithstanding anything to the contrary contained herein, in no event
shall the Trustee in its fiduciary capacity be liable to the Holders of the
Hedged Certificates, be required to make any deposit from its own funds into
the Reserve Fund, or be required to take any action against the Counterparty in
connection with any delay in payment of amounts due under the Yield Maintenance
Agreement caused by any government action as further described in clause (j) of
Part I of the Schedule to the Yield Maintenance Agreement during the grace
period specified therein.
(c) The Trustee may, but need not, invest the funds in the Reserve Fund in
Permitted Investments, which shall mature not later than, the second Business
Day preceding each Distribution Date (except that if such Permitted Investment
is an obligation of the institution that maintains such account or a fund for
which such institution or affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent and/or custodian or subcustodian,
then such Permitted Investment shall mature not later than the Business Day
next preceding such Distribution Date) and shall not be sold or disposed of
prior to their maturity. All investments made with funds from the Reserve Fund
shall be made in the name of the Trustee, for the benefit of the Holders of the
Hedged Certificates. All income earned on funds on deposit in the Reserve Fund,
net of any losses realized from any Permitted Investments made with such funds,
shall be deposited in the Reserve Fund. The Trustee in its fiduciary capacity
shall not be liable for the amount of any loss incurred in respect of any
investment or lack of investment of funds held in the Reserve Fund and made in
accordance with this Section 3A.02.
(d) Upon termination of the Trust Fund, any amounts remaining in the
Reserve Fund shall be distributed to the Trustee.
(e) In the event that the Yield Maintenance Agreement is terminated prior
to the Yield Maintenance Stated Termination and the Counterparty has not
obtained a replacement counterparty
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to assume its obligations thereunder pursuant to the terms of the Yield
Maintenance Agreement, the Trustee shall obtain a replacement yield maintenance
agreement acceptable to the Servicer and shall apply any amounts received from
the Counterparty under the Yield Maintenance Agreement in connection with its
termination, to the extent necessary, to obtain such replacement. In no event
whatsoever shall the Trustee be responsible for costs and expenses incurred in
connection with obtaining a replacement yield maintenance agreement or for any
fees, costs or expenses payable thereunder.
(f) Reserved.
(g) For any Distribution Date on which there is a payment under the Yield
Maintenance Agreement based on a notional balance in excess of the aggregate
Class Certificate Balance of a Class of Hedged Certificates, the amount
representing such excess payment, to the extent not otherwise distributed
pursuant to Section 4.02(f)(i), shall not be an asset of the Trust Fund and,
instead, shall be paid into and distributed out of a separate trust created by
this Agreement for the benefit of the Trustee and shall be distributed to the
Trustee pursuant to Section 4.02(f)(ii).
SECTION 3A.03. Net WAC Cap Account
(a) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the Offered Certificates, the
Net WAC Cap Account and deposit therein the amount of $10,000 paid to the
Trustee by the Depositor. The Net WAC Cap Account shall be an Eligible Account,
and funds on deposit therein shall be held separate and apart from, and shall
not be commingled with, any other moneys, including without limitation, other
moneys held by the Trustee pursuant to this Agreement. The Net WAC Cap Account
shall be treated as an "outside reserve fund" under applicable Treasury
regulations and will not be part of any REMIC. Any investment earnings on the
Net WAC Cap Account will be treated as owned by the Holders of the Class X
Certificates and will be taxable to the Holders of the Class X Certificates.
Distributions made to the Net WAC Cap Account under this document shall be
treated as made to the Class X Certificateholders.
(b) On each Distribution Date, the Trustee shall deposit amounts in the
Net WAC Cap Account pursuant to Section 4.02(d)(xxxiv). The amount required to
be deposited into the Net WAC Cap Account on any Distribution Date will equal
the aggregate Net WAC Cap Deposit Amount for the Offered Certificates. The
Trustee shall make withdrawals from the Net WAC Cap Account to make
distributions pursuant to Section 4.02(g).
(c) The Trustee shall invest the funds in the Net WAC Cap Account as
directed in writing by the Holders of the Class X Certificates in Permitted
Investments, which shall mature not later than, the second Business Day
preceding each Distribution Date (except that if such Permitted Investment is
an obligation of the institution that maintains such account or a fund for
which such institution or affiliate thereof serves as an investment advisor,
administrator, shareholder servicing agent and/or custodian or subcustodian,
then such Permitted Investment shall mature not later than the Business Day
next preceding such Distribution Date) and shall not be sold or disposed of
prior to their maturity. Any investment earnings on such amounts shall be
payable to the Holders of the Class X Certificates. The Holders of the Class X
Certificates shall be treated as the owners of the Net WAC Cap Account for
federal tax purposes. The Trustee in its fiduciary capacity shall not be liable
for the amount of any loss incurred in respect of any investment or lack of
investment of funds held in the Net WAC Cap Account and made in accordance with
this Section 3A.03(c).
(d) Upon termination of the Trust Fund, any amounts remaining in the Net
WAC Cap Account shall be distributed to the Holders of the Class X
Certificates.
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ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
SECTION 4.01. Advances.
The Servicer shall determine on or before each Servicer Advance Date whether
it is required to make an Advance pursuant to the definition thereof. If the
Servicer determines it is required to make an Advance, it shall, on or before
the Servicer Advance Date, either (i) deposit into the Certificate Account an
amount equal to the Advance or (ii) make an appropriate entry in its records
relating to the Certificate Account that any Amount Held for Future
Distribution has been used by the Servicer in discharge of its obligation to
make any such Advance. Any funds so applied shall be replaced by the Servicer
by deposit in the Certificate Account no later than the close of business on
the next Servicer Advance Date. The Servicer shall be entitled to be reimbursed
from the Certificate Account for all Advances of its own funds made pursuant to
this Section as provided in Section 3.08. The obligation to make Advances with
respect to any Loan shall continue if such Loan has been foreclosed or
otherwise terminated and the Mortgaged Property has not been liquidated.
SECTION 4.02. Priorities of Distribution and Allocation.
(a) Interest. On each Distribution Date, the Trustee will distribute:
(i) from the Interest Remittance Amount for that Distribution Date, in
the following order of priority, to the extent available:
(A) first, to the Trustee, any amounts then due and owing
representing fees of the Trustee based on the Pool
Principal Balance, to the extent not paid by Trustee
Permitted Withdrawal Amounts, expenses and indemnity
amounts due and owing to the Trustee relating to the
Loans;
(B) second, to the Servicer, an amount equal to the sum of
(1) the Servicing Fee relating to the Loans, except to
the extent previously paid with permitted withdrawals
from the Certificate Account, and (2) any other
amounts expended by the Servicer in connection with
the Loans and reimbursable thereto under this
Agreement but not previously reimbursed;
(C) third, concurrently, to the Class X-0, Xxxxx X-0,
Class A-3, Class A-4, Class A-5 and Class A-6
Certificates, pro rata, the applicable Interest
Distribution Amounts for that Distribution Date; and
(D) fourth, concurrently, to the Class X-0, Xxxxx X-0,
Class A-3, Class A-4, Class A-5 and Class A-6
Certificates, pro rata, the applicable Class Unpaid
Interest Amounts, if any.
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(ii) from the Remaining Interest Remittance Amount for that Distribution Date,
in the following order of priority, to the extent available:
(A) first, to the Class M-1 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date;
(B) second, to the Class M-2 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date;
(C) third, to the Class M-3 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date;
(D) fourth, to the Class M-4 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date;
(E) fifth, to the Class M-5 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date;
(F) sixth, to the Class M-6 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date;
(G) seventh, to the Class B-1 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date;
(H) eighth, to the Class B-2 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date;
(I) ninth, to the Class B-3 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date;
(J) tenth, to the Class B-4 Certificates, the applicable
Interest Distribution Amount for that Distribution
Date; and
(K) eleventh, the Monthly Excess Interest Amount for that
Distribution Date will be applied as described under
Section 4.02(d) hereof.
(b) Principal (pre-Stepdown Date or Trigger Event). On each Distribution Date
before the Stepdown Date or with respect to which a Trigger Event is in
effect, the Trustee shall distribute:
(i) from the Principal Distribution Amount, in the following order of
priority, to the extent available:
(A) first, the Class A-6 Lockout Distribution Amount to
the Class A-6 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
and
(B) second, sequentially, to the Class X-0, Xxxxx X-0,
Class A-3, Class A-4, Class A-5 and Class A-6
Certificates, in that order,
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until the respective Class Certificate Balances
thereof have been reduced to zero.
provided, however, that notwithstanding any provision to the
contrary set forth herein, on any Distribution Date on which sum
of (1) the aggregate Class Certificate Balance of the Subordinate
Certificates and (2) the Overcollateralization Amount is less than
or equal to zero, all distributions of principal to the Senior
Certificates will be made concurrently, on a pro rata basis, based
on their respective Class Certificate Balances.
(ii) from the Pre-Stepdown Remaining Principal Distribution Amount, in
the following order of priority, to the extent available:
(A) first, to the Class M-1 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(B) second, to the Class M-2 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(C) third, to the Class M-3 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(D) fourth, to the Class M-4 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(E) fifth, to the Class M-5 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(F) sixth, to the Class M-6 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(G) seventh, to the Class B-1 Certificates, until the
Class Certificate Balance thereof has been reduced to
zero;
(H) eighth, to the Class B-2 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(I) ninth, to the Class B-3 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(J) tenth, to the Class B-4 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
and
(K) eleventh, any amount of the Pre-Stepdown Remaining
Principal Distribution Amount remaining after making
all of the distributions in clauses (b)(ii)(A) through
(b)(ii)(J) above will be applied as described in
Section 4.02(d) hereof.
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(c) Principal (post-Stepdown Date and no Trigger Event). On each Distribution
Date on or after the Stepdown Date and as long as a Trigger Event is not
in effect, the Trustee shall distribute:
(i) from the Principal Distribution Amount, in the following order of
priority, to the extent available:
(A) first, the Class A-6 Lockout Distribution Amount to
the Class A-6 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
and
(B) second, the Senior Principal Distribution Amount,
after giving effect to the payment of the Class A-6
Lockout Distribution Amount, sequentially, to the
Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class A-5
and Class A-6 Certificates, in that order, until the
respective Class Certificate Balances thereof have
been reduced to zero.
provided, however, that notwithstanding any provision to the
contrary set forth herein, on any Distribution Date on which sum
of (1) the aggregate Class Certificate Balance of the Subordinate
Certificates and (2) the Overcollateralization Amount is less than
or equal to zero, all distributions of principal to the Senior
Certificates will be made concurrently, on a pro rata basis, based
on their respective Class Certificate Balances.
(ii) from the Post-Stepdown Remaining Principal Distribution Amount, in
the following order of priority, to the extent available:
(A) first, to the Class M-1 Certificates, the Class M-1
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(B) second, to the Class M-2 Certificates, the Class M-2
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(C) third, to the Class M-3 Certificates, the Class M-3
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(D) fourth, to the Class M-4 Certificates, the Class M-4
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(E) fifth, to the Class M-5 Certificates, the Class M-5
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(F) sixth, to the Class M-6 Certificates, the Class M-6
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
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(G) seventh, to the Class B-1 Certificates, the Class B-1
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(H) eighth, to the Class B-2 Certificates, the Class B-2
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(I) ninth, to the Class B-3 Certificates, the Class B-3
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(J) tenth, to the Class B-4 Certificates, the Class B-4
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
and
(K) eleventh, any amount of the Post-Stepdown Remaining
Principal Distribution Amount remaining after making
all of the distributions in clauses (c)(ii)(A) through
(c)(ii)(J) above will be applied as described in
Section 4.02(d) hereof.
(d) Excess Cashflow. On each Distribution Date, the Trustee shall distribute:
the Monthly Excess Cashflow Amount, to the extent available, to the
parties, in the amounts and in the priorities indicated:
(i) first, concurrently, to the Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class A-5 and Class A-6 Certificates, pro rata,
any remaining applicable Interest Distribution Amount for
that Distribution Date;
(ii) second, concurrently, to the Class A-1, Class A-2, Class X-
0, Class A-4, Class A-5 and Class A-6 Certificates, pro
rata, any remaining Class Unpaid Interest Amounts for the
Classes of Senior Certificates;
(iii) third, to fund the Extra Principal Distribution Amount for
that Distribution Date for distribution in accordance with
the priorities set forth under clauses (b) and (c) above;
(iv) fourth, to the Class M-1 Certificates, any remaining
Interest Distribution Amount for that Distribution Date;
(v) fifth, to the Class M-1 Certificates, any remaining Class
Unpaid Interest Amount for the Class M-1 Certificates;
(vi) sixth, to fund the Class M-1 Realized Loss Amortization
Amount for that Distribution Date;
(vii) seventh, to the Class M-2 Certificates, any remaining
Interest Distribution Amount for that Distribution Date;
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(viii)eighth, to the Class M-2 Certificates, any remaining Class
Unpaid Interest Amount for the Class M-2 Certificates;
(ix) ninth, to fund the Class M-2 Realized Loss Amortization
Amount for that Distribution Date;
(x) tenth, to the Class M-3 Certificates, any remaining Interest
Distribution Amount for that Distribution Date;
(xi) eleventh, to the Class M-3 Certificates, any remaining Class
Unpaid Interest Amount for the Class M-3 Certificates;
(xii) twelfth, to fund the Class M-3 Realized Loss Amortization
Amount for that Distribution Date;
(xiii)thirteenth, to the Class M-4 Certificates, any remaining
Interest Distribution Amount for that Distribution Date;
(xiv) fourteenth, to the Class M-4 Certificates, any remaining
Class Unpaid Interest Amount for the Class M-4 Certificates;
(xv) fifteenth, to fund the Class M-4 Realized Loss Amortization
Amount for that Distribution Date;
(xvi) sixteenth, to the Class M-5 Certificates, any remaining
Interest Distribution Amount for that Distribution Date;
(xvii)seventeenth, to the Class M-5 Certificates, any remaining
Class Unpaid Interest Amount for the Class M-5 Certificates;
(xviii)eighteenth, to fund the Class M-5 Realized Loss
Amortization Amount for that Distribution Date;
(xix) nineteenth, to the Class M-6 Certificates, any remaining
Interest Distribution Amount for that Distribution Date;
(xx) twentieth, to the Class M-6 Certificates, any remaining
Class Unpaid Interest amount for the Class M-6 Certificates;
(xxi) twenty-first, to fund the Class M-6 Realized Loss
Amortization Amount for that Distribution Date;
(xxii) twenty-second, to the Class B-1 Certificates, any
remaining Interest Distribution Amount for that Distribution
Date;
(xxiii) twenty-third, to the Class B-1 Certificates, any
remaining Class Unpaid Interest amount for the Class B-1
Certificates;
(xxiv) twenty-fourth, to fund the Class B-1 Realized Loss
Amortization Amount for that Distribution Date;
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(xxv) twenty-fifth, to the Class B-2 Certificates, any remaining
Interest Distribution Amount for that Distribution Date;
(xxvi) twenty-sixth, to the Class B-2 Certificates, any remaining
Class Unpaid Interest amount for the Class B-2 Certificates;
(xxvii) twenty-seventh, to fund the Class B-2 Realized Loss
Amortization Amount for that Distribution Date;
(xxviii) twenty-eighth, to the Class B-3 Certificates, any
remaining Interest Distribution Amount for that Distribution
Date;
(xxix) twenty-ninth, to the Class B-3 Certificates, any remaining
Class Unpaid Interest amount for the Class B-3 Certificates;
(xxx) thirtieth, to fund the Class B-3 Realized Loss Amortization
Amount for that Distribution Date;
(xxxi) thirty-first, to the Class B-4 Certificates, any remaining
Interest Distribution Amount for that Distribution Date;
(xxxii) thirty-second, to the Class B-4 Certificates, any
remaining Class Unpaid Interest amount for the Class B-4
Certificates;
(xxxiii) thirty-third, to fund the Class B-4 Realized Loss
Amortization Amount for that Distribution Date; and
(xxxiv) thirty-fourth, for deposit into the Net WAC Cap Account,
the amount equal to (a) the Net WAC Cap Carryover for that
Distribution Date (the amount so deposited as limited by
available funds) after taking into account payments of Net
WAC Carryover to be made pursuant to Section 4.02(f) on that
Distribution Date, plus (b) the amount, if any, sufficient
to increase the aggregate amount on deposit in the Net WAC
Cap Account to $10,000 after giving effect to any payments
of Net WAC Cap Carryover to the Offered Certificates on that
Distribution Date;
(xxxv) thirty-fifth, to the Class B-4 Certificates as principal,
any remaining amounts, until the Class Certificate Balance
thereof has been reduced to zero;
(xxxvi) thirty-sixth, to the Class B-3 Certificates as principal,
any remaining amounts, until the Class Certificate Balance
thereof has been reduced to zero;
(xxxvii) thirty-seventh, to the Class B-2 Certificates as
principal, any remaining amounts, until the Class
Certificate Balance thereof has been reduced to zero;
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(xxxviii) thirty-eighth, to the Class B-1 Certificates as
principal, any remaining amounts, until the Class
Certificate Balance thereof has been reduced to zero; and
(xxxix) thirty-ninth, to the Class X and Class R Certificates, any
remaining Monthly Excess Cashflow Amount.
(e) Realized Losses. Realized Losses shall be allocated first against the
Overcollateralization Amount, until the Overcollateralization Amount has
been reduced to zero. If, after giving effect to the distribution of the
Principal Distribution Amount on any Distribution Date the aggregate
Class Certificate Balance of the Offered Certificates exceeds the Pool
Principal Balance as of the end of the related Due Period, such excess
will be allocated against the Class B-4, Class B-3, Class B-2, Class B-1,
Class M-6, Class M-5, Class M-4, Class M-3, Class M-2 and Class M-1
Certificates, in that order and until the respective Class Certificate
Balances thereof are reduced to zero.
(f) Reserve Fund. On each Distribution Date, following all distributions and
deposits made pursuant to subsections (a) through (e), the Trustee will
withdraw all funds available in the Reserve Fund to make the following
payments in the following order of priority:
(i) first, to pay to each Class of Hedged Certificates, to the
extent of amounts available with respect to that Class, Net
WAC Cap Carryover for that Class of Hedged Certificates
(with distributions of Net WAC Carryover to the Subordinate
Certificates to be made on a pro rata basis); and
(ii) second, to the Trustee as additional compensation, all
remaining amounts.
(g) Net WAC Cap Carryover from Net WAC Cap Account. On each Distribution
Date, following all distributions, deposits and allocations made pursuant
to subsections (a) through (f) above, the Trustee shall distribute, pro
rata, to the Offered Certificates, the applicable Net WAC Cap Carryover
for such Distribution Date, if any, from the Net WAC Cap Account (to the
extent of available funds therein).
SECTION 4.02A. Recoveries.
(a) With respect to any Class of Subordinate Certificates to which a
Realized Loss has been allocated (including any such Class for which the
related Class Certificate Balance has been reduced to zero), the Class
Certificate Balance of such Class will be increased, up to the amount of
related Recoveries for such Distribution Date as follows:
(i) first, the Class Certificate Balance of the Class M-1
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class;
(ii) second, the Class Certificate Balance of the Class M-2
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class;
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(iii) third, the Class Certificate Balance of the Class M-3
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class;
(iv) fourth, the Class Certificate Balance of the Class M-4
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class;
(v) fifth, the Class Certificate Balance of the Class M-5
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class;
(vi) sixth, the Class Certificate Balance of the Class M-6
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class;
(vii) seventh, the Class Certificate Balance of the Class B-1
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class;
(viii) eighth, the Class Certificate Balance of the Class B-2
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class;
(ix) ninth, the Class Certificate Balance of the Class B-3
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class; and
(x) tenth, the Class Certificate Balance of the Class B-4
Certificates will be increased, up to the amount of Net
Recovery Realized Losses for such Class.
(b) Any increase to the Class Certificate Balance of a Class of
Certificates shall increase the Certificate Balance of each Certificate in the
related Class pro rata in accordance with each Certificate's Percentage
Interest.
SECTION 4.03. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall post on its
website at xxx.xxxxxxxx.xxx/xxx, which posting shall be accessible to each
Certificateholder, the Servicer, the Depositor and each Rating Agency, a
statement setting forth with respect to the related distribution (provided,
however, that each Certificateholder, upon request to the Trustee, shall be
entitled to receive from the Trustee a paper copy of such statement if such
Certificateholder is unable to access the Trustee's website):
(i) the amount thereof allocable to principal, separately identifying
the aggregate amount of any Principal Prepayments in full, partial
Principal Prepayments and Liquidation Proceeds included therein;
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(ii) the amount thereof allocable to interest, any Class Unpaid
Interest Amount included in such distribution and any remaining Class
Unpaid Interest Amount after giving effect to such distribution;
(iii) if the distribution to the Holders of a Class of Certificates
is less than the full amount that would be distributable to such Holders
if there were sufficient funds available therefor, the amount of the
shortfall and the allocation thereof as between principal and interest;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Principal Balance for the following Distribution Date;
(vi) the amount of the Servicing Fee paid to or retained by the
Servicer with respect to such Distribution Date;
(vii) the Pass-Through Rate for each Class of Offered Certificates
with respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances outstanding as of
the close of business on such Distribution Date;
(ix) the number and aggregate principal amounts of Loans (A)
contractually past due (assuming 30 day months) (exclusive of Loans in
foreclosure) (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90 days and (4)
91 or more days and (B) in foreclosure (1) 1 to 30 days (2) 31 to 60 days
(3) 61 to 90 days and (4) 91 or more days, as of the close of business on
the last day of calendar month immediately preceding such Distribution
Date;
(x) with respect to any Loan that became an REO Property during the
preceding calendar month, the loan number and Stated Principal Balance of
such Loan as of the close of business on the last day of the Prepayment
Period preceding such Distribution Date and the date of acquisition
thereof;
(xi) (A) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
day of the Prepayment Period preceding such Distribution Date and (B) the
total number and cumulative principal balance of any Liquidated Loans
(prior to the reduction of the principal balance of any such Liquidated
Loan to zero);
(xii) the amount equal to the sum of the Stated Principal Balances of
the three Loans with the largest individual Stated Principal Balances;
(xiii) with respect to each Class of Offered Certificates, the amount
of the Net WAC Cap Carryover to be paid to such Class from the Net WAC Cap
Account and the amount remaining unpaid;
(xiv) the aggregate principal balance of Balloon Loans with original
terms less than or equal to 36 months which are 60 or more days
contractually past due (assuming 30 day
73
months) (including Loans in foreclosure and REO Properties) on the last day
of the calendar month immediately preceding such Distribution Date;
(xv) the cumulative aggregate amount of Realized Losses as of the last
day of the Prepayment Period preceding such Distribution Date;
(xvi) the amount of funds withdrawn from the Reserve Fund (for each
Class of Hedged Certificates) and included in such distribution and the
outstanding balance of the Reserve Fund (and the amounts available for
each Class of Hedged Certificates), after giving effect to such
distribution;
(xvii) the number of Loans repurchased by Sellers during the Due
Period related to such Distribution Date;
(xviii) the weighted average Mortgage Rate of the Outstanding Loans,
such weighted average to be calculated based on the principal balances of
such Outstanding Loans on the first day of the Due Period related to such
Distribution Date;
(xix) the weighted average maturity date of the Outstanding Loans;
(xx) the Targeted Overcollateralization Amount after giving effect to
such distribution;
(xxi) the amount of any Overcollateralization Release Amount included
in the distribution on such Distribution Date;
(xxii) the cumulative amount of Realized Losses from the Cut-off Date
through the last day of the Due Period relating to such Distribution Date;
(xxiii) any Overcollateralization Deficiency after giving effect to the
distribution of principal on such Distribution Date;
(xxiv) whether a Trigger Event has occurred and is continuing, and the
cumulative Realized Losses, as a percentage of the Cut-off Date Pool
Principal Balance;
(xxv) the aggregate amount of 60+ Day Delinquent Loans as a percentage
of the current Pool Principal Balance;
(xxvi) the amount of funds collected by the Trustee under the Yield
Maintenance Agreement during the Due Period relating to such Distribution
Date;
(xxvii) the amount of Recoveries collected during the Prepayment Period
relating to such Distribution Date; and
(xxvii) the cumulative amount of Recoveries collected as of such
Distribution Date.
(b) The Trustee's responsibility for posting the above information on its
website is limited to the availability, timeliness and accuracy of the
information provided by the Servicer. On or before the 18th day of each
calendar month, commencing in the month of the first Distribution Date
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hereunder, or if such day is not a Business Day, the next succeeding Business
Day, the Servicer shall deliver to the Trustee a report, in a form acceptable
to the Trustee, containing all of the necessary information for the Trustee to
complete items (i), (v), (vi), (viii)-(xii), (xiv), (xv), (xvii)-(xix), (xxii),
(xxv), (xxvii) and (xxviii) of the statement described in (a) above. The
Trustee shall be responsible for obtaining the necessary information to
complete items (ii), (iii), (iv), (vii), (xiii), (xvi), (xx), (xxi), (xxiii),
(xxiv) and (xxvi) of the statement described in (a) above.
(c) Within a reasonable period of time after the end of each calendar
year, but in no case later than the time prescribed by the Code and applicable
Treasury regulations, the Trustee shall cause to be furnished 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), (a)(ii), (a)(vii) and
(a)(xiii) of this Section 4.03 aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as from time to time in effect.
SECTION 4.04. Reporting.
On each Distribution Date, the Servicer shall provide to the Trustee current
information of the type set forth in Schedule I hereto presented in a format
substantially similar to Exhibit K attached hereto and the Trustee shall then
forward such information to a reporting service mutually agreed upon by the
Servicer and the Trustee.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in the minimum denominations,
integral multiples in excess thereof (except that one Certificate in each Class
may be issued in a different amount which must be in excess of the applicable
minimum denomination) and aggregate denominations per Class set forth in the
Preliminary Statement.
Subject to Section 9.02 hereof respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (a) by
wire transfer in immediately available funds to the account of such Holder at a
bank or other entity having appropriate facilities therefor, if (i) such Holder
has so notified the Trustee at least five Business Days prior to the related
Record Date and (ii) such Holder shall hold (A) 100% of the Class Certificate
Balance or Percentage Interest of any Class of Certificates or (B) Certificates
of any Class with an aggregate principal Denomination of not less than
$1,000,000 or (b) by check mailed by first class mail to such Certificateholder
at the address of such Holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by an authorized officer. Certificates bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the countersignature and delivery of such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any
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purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee on a
continuous basis, an adequate inventory of Certificates to facilitate
transfers.
SECTION 5.02. Certificate Register; Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall maintain, or cause to be maintained in accordance
with the provisions of Section 5.06 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 Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon surrender for registration of transfer of
any Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates which the Certificateholder making the exchange is
entitled to receive. Every Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in the form of Exhibit G 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 Trustee in accordance with the
Trustee's customary procedures.
(b) Except for the initial transfer of the Class X Certificates and Class
R Certificates, no transfer of a Class X Certificate or Class R Certificate
shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and any applicable state
securities laws or is exempt from the registration requirements under said Act
and such state securities laws. In 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, (i) the
Certificateholder desiring to effect such transfer and such Certificateholder's
prospective transferee shall each certify to the Trustee in writing the facts
surrounding the transfer, the Certificateholder by delivering a certificate in
substantially the form set forth in Exhibit G (the "TRANSFEROR CERTIFICATE")
and the Certificateholder's prospective transferee by delivering a letter in
substantially the form of either Exhibit H (the "INVESTMENT LETTER") or Exhibit
I (the "RULE 144A LETTER") or (ii) there shall be delivered to the Trustee at
the expense of the transferor an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act. The Depositor shall
provide to any Holder of a Class X Certificate or Class R Certificate and any
prospective transferee designated by any such Holder, information regarding the
related
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Certificates and the 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 and
the 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 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 X
Certificate or Class R Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Trustee and the Depositor, the Sellers and
the 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 shall have received (i) a representation letter from the transferee
substantially in the form of Exhibit H or Exhibit I, to the effect that (x)
such transferee is not an employee benefit plan or arrangement subject to
Section 406 of ERISA or a plan or arrangement subject to Section 4975 of the
Code, nor a person acting on behalf of any such plan or arrangement, nor using
the assets of any such plan or arrangement to effect such transfer or (y) if
the purchaser is an insurance company and the ERISA-Restricted Certificate is
not a Class R Certificate and has been the subject of an ERISA Qualifying
Underwriting, a representation that the purchaser is an insurance company which
is purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (ii) in the case of any such ERISA-Restricted Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan or arrangement, or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee, which Opinion of Counsel shall not be an expense of either the Trustee
or the Trust Fund, addressed to the Trustee to the effect that the purchase or
holding of such ERISA-Restricted Certificate will not result in the assets of
the Trust Fund being deemed to be "plan assets" and subject to the prohibited
transaction provisions of ERISA and the Code and will not subject the Trustee
to any obligation in addition to those expressly undertaken in this Agreement
or to any liability. Notwithstanding anything else to the contrary herein, any
purported transfer of an ERISA-Restricted Certificate to or on behalf of an
employee benefit plan subject to ERISA or to the Code without the delivery to
the Trustee of an Opinion of Counsel satisfactory to the Trustee as described
above shall be void and of no effect.
In the case of an ERISA-Restricted Certificate that is a Book-Entry
Certificate, for purposes of clauses (i) or (ii) of the first sentence of the
preceding paragraph, such representations shall be deemed to have been made to
the Certificate Registrar and the Trustee by the transferee's acceptance of
such ERISA-Restricted Certificate.
To the extent permitted under applicable law (including, but not limited to,
ERISA), the Trustee shall be under no liability to any Person for any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a Class
R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to
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be bound by the following provisions, and the rights of each Person acquiring
any Ownership Interest in a Class R Certificate are expressly subject to the
following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Permitted Transferee and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee.
(ii) No Ownership Interest in a Class R Certificate may be registered
on the Closing Date or thereafter transferred, and the Trustee shall not
register the Transfer of any Class R 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 F.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R 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
Class R Certificate in violation of the provisions of this Section 5.02(c)
shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by this Section or for making
any payments due on such Certificate to the Holder thereof or taking any
other action with respect to such Holder under the provisions of this
Agreement so long as the Transfer was registered after receipt of the
related Transfer Affidavit, Transferor Certificate and either the Rule
144A Letter or the Investment Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Class R 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 Class R Certificate at and after either such time.
Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Class R Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Class R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Trustee, the Sellers or
the Servicer, to the effect that the elimination of such restrictions will not
cause the Trust Fund hereunder to fail to qualify as one or
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more REMICs 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 Class R
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (A) to
ensure that the record ownership of, or any beneficial interest in, a Class R
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 Class R Certificate which 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 5.02 in connection with transfer shall be at the
expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain book-
entry records with respect to the Beneficial Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Beneficial Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Beneficial Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Beneficial Owners.
All transfers by Beneficial Owners of Book-Entry Certificates shall be made
in accordance with the procedures established by the Depository Participant or
brokerage firm representing such Beneficial Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Beneficial Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures.
If (x) (i) the Depositor advises the Trustee in writing that the Depository
is no longer willing or able to properly discharge its responsibilities as
Depository, and (ii) the Trustee is unable to locate a qualified successor, (y)
the Depositor, at its sole option with the consent of the Trustee, advises the
Trustee in writing that it elects to terminate the book-entry system through
the Depository or (z) after the occurrence of an Event of Default or the
resignation or removal of the Servicer, Beneficial Owners representing at least
51% of the sum of the then outstanding Class Certificate Balance of all Book-
Entry Certificates together advise the Depository, either directly or through
the Depository Participants, and the Trustee in writing that the continuation
of a book-entry system through the Depository is no longer in the best
interests of the Beneficial Owners. Upon the occurrence of any of the events
described in the immediately preceding sentence, the Trustee shall notify all
Beneficial Owners of the occurrence of any such event and of the availability
of definitive, fully-registered Certificates (the "DEFINITIVE CERTIFICATES") to
Beneficial Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Trustee shall issue the
Definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instruction and each may conclusively rely
on, and shall be protected in relying on, such instructions. The Depositor
shall provide the Trustee with an adequate
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inventory of certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Depository shall
be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates and the Trustee shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder; provided that the Trustee shall not by virtue of its assumption of
such obligations become liable to any party for any act or failure to act of
the Depository.
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Certificate and (b) there is delivered to the Servicer 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 Trustee that such Certificate
has been acquired by a bona fide purchaser, the Trustee shall execute,
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 5.04. Persons Deemed Owners.
The Servicer, the Trustee and any agent of the Servicer or the Trustee may
treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Servicer, the
Trustee nor any agent of the Servicer or the Trustee shall be affected by any
notice to the contrary.
SECTION 5.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders (a) request such information in writing
from the Trustee, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and (c) provide a copy of the communication which
such Certificateholders propose to transmit, or if the Depositor or Servicer
shall request such information in writing from the Trustee, then the Trustee
shall, within ten Business Days after the receipt of such request, provide the
Depositor, the Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 5.06. Maintenance of Office or Agency.
The Trustee will maintain or cause to be maintained at its expense an office
or offices or agency or agencies in New York City where Certificates may be
surrendered for registration of transfer or exchange. The Trustee initially
designates its Corporate Trust Office for such purposes. The Trustee will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
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ARTICLE VI
THE DEPOSITOR AND THE SERVICER
SECTION 6.01. Respective Liabilities of the Depositor and the Servicer.
The Depositor and the Servicer shall each be liable in accordance herewith
only to the extent of the obligations specifically and respectively imposed
upon and undertaken by them herein.
SECTION 6.02. Merger or Consolidation of the Depositor or the Servicer.
The Depositor and the Servicer will each keep in full effect their
respective existence, rights and franchises as a corporation under the laws of
the United States or under the laws of one of the states thereof and will each
obtain and preserve their respective qualifications 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 Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Servicer shall be a party, or any person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that the successor or surviving Person to the Servicer shall be qualified to
sell mortgage loans to, and to service mortgage loans on behalf of, FNMA or
FHLMC.
SECTION 6.03. Limitation on Liability of the Depositor, the Sellers, the
Servicer and Others.
None of the Depositor, the Sellers, the Servicer or any of the directors,
officers, employees or agents of the Depositor, the Sellers or the Servicer
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Sellers, the Servicer or any such Person
against any breach of representations or warranties made by it herein or
protect the Depositor, the Sellers, the Servicer or any such Person from any
liability which 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. The Depositor, the
Sellers, the Servicer and any director, officer, employee or agent of the
Depositor, the Sellers or the Servicer may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Sellers, the
Servicer and any director, officer, employee or agent of the Depositor, the
Sellers or the Servicer 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 any specific Loan or Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or gross negligence in the performance
of duties hereunder or by reason of reckless disregard of obligations and
duties hereunder. None of the Depositor, the Sellers or the Servicer shall be
under any obligation to appear in, prosecute or defend any legal action that is
not incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or
81
liability; provided, however, that any of the Depositor, the Sellers or the
Servicer 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 the Depositor, the Sellers and the Servicer shall be entitled
to be reimbursed therefor out of the Certificate Account.
SECTION 6.04. Limitation on Resignation of Servicer.
The Servicer shall not resign from the obligations and duties hereby imposed
on it except (a) upon appointment of a successor servicer and receipt by the
Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading of the rating of any of the
Certificates or (b) upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination under clause (b)
permitting the resignation of the Servicer shall be evidenced by an Opinion of
Counsel to such effect delivered to the Trustee. No such resignation shall
become effective until the Trustee or a successor servicer shall have assumed
the Servicer's responsibilities, duties, liabilities and obligations hereunder.
SECTION 6.05. Indemnification.
The Servicer agrees to indemnify and hold the Trustee, the Depositor and
each Certificateholder harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that the Trustee, the Depositor or any
Certificateholder may sustain directly resulting from the negligence or willful
misconduct of the Servicer in the performance of its duties hereunder or in the
servicing of the Loans in compliance with the terms of this Agreement. The
Servicer shall not be liable or responsible for any of the representations,
covenants, warranties, responsibilities, duties or liabilities of any prior
servicer. The Servicer shall immediately notify the Trustee, the Depositor and
each Certificateholder if a claim is made by a third party for which any of
such parties could require indemnification from the Servicer under this Section
6.05, and the Servicer shall assume (with the consent of the Trustee) the
defense of any such claim and advance all expenses in connection therewith,
including reasonable counsel fees, and promptly advance funds to pay, discharge
and satisfy any non-appealable, final judgment or decree which may be entered
against the Servicer, the Trustee, the Depositor and/or the Certificateholder
in respect of such claim. The indemnity provided for in this Section 6.05 shall
survive the termination of the Agreement.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events:
(i) any failure by the Servicer to deposit in the Certificate Account
or remit to the Trustee any payment (other than a payment required to be
made under Section 4.01 hereof) required to be made with respect to any
Class of Certificates under the terms of this Agreement, which failure
shall continue unremedied for 5 days after the date upon which written
notice of such failure shall have been given (a) to the Servicer by the
Trustee or the Depositor or (b) to the Servicer, the Depositor and the
Trustee by the Holders of Certificates of such Class evidencing not less
than 25% of the Voting Rights allocated to such Class;
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(ii) any failure by the Servicer to duly observe or perform in any
material respect any other of the covenants or agreements on the part of
the Servicer contained in this Agreement, which failure shall continue
unremedied for a period of 30 days after the date on which written notice
of such failure shall have been given (a) to the Servicer by the Trustee
or the Depositor or (b) to the Servicer, the Depositor and the Trustee by
the Holders of Certificates of any Class evidencing not less than 25% of
the Voting Rights allocated to such Class;
(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 proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer
and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 consecutive days;
(iv) the 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 Servicer or
all or substantially all of the property of the Servicer;
(v) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of,
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;
(vi) so long as the Servicer is a Seller, any failure by any Seller
to observe or perform in any material respect any of the other covenants
or agreements on the part of any Seller contained in this Agreement, which
failure shall continue unremedied for a period of 60 days after the date
on which written notice of such failure shall have been given to such
Seller by the Trustee or the Depositor, or to such Seller and the Trustee
by the Holders of Certificates of any Class evidencing not less than 25%
of the Voting Rights allocated to such Class; or
(vii) any failure of the Servicer to make any Advance in the manner
and at the time required to be made pursuant to Section 4.01 which
continues unremedied for a period of 1 Business Day after the date of such
failure.
If an Event of Default described in clauses (i) to (vi) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trustee may, and at the direction of
the Holders of Certificates of any Class evidencing not less than 25% of the
Voting Rights allocated to such Class, by notice in writing to the Servicer
(with a copy to each Rating Agency) shall, terminate all of the rights and
obligations of the Servicer under this Agreement and in and to the Loans and
the proceeds thereof, other than its rights as a Certificateholder hereunder.
If an Event of Default described in clause (vii) of this Section shall occur,
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Trustee shall, by telephonic notice to the
Servicer, followed by notice in writing (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Servicer under this
Agreement and in and to the Loans and the proceeds thereof, other than its
rights as a Certificateholder hereunder. On and after the receipt by the
Servicer of such telephonic notice, all authority and power of the Servicer
hereunder, whether with respect to the Loans or otherwise, shall pass to and be
vested in the Trustee, as successor Servicer. The Trustee shall, subject to
3.04 hereof, thereupon promptly make any Advance described in clause (vii)
hereof. The Trustee is hereby authorized and empowered to execute and deliver,
on behalf of the Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things
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necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Servicer to pay
amounts owed pursuant to Article VIII. The Servicer agrees to cooperate with
the Trustee in effecting the termination of the Servicer's responsibilities and
rights hereunder, including, without limitation, the transfer to the Trustee of
all cash amounts which shall at the time be credited to the Certificate
Account, or thereafter be received with respect to the Loans.
The Trustee shall be entitled to be reimbursed from the Servicer (or by the
Trust Fund if the Servicer does not fulfill its obligations hereunder) for all
costs associated with the transfer of servicing from the predecessor Servicer,
including, without limitation, any costs or 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 to service the Loans properly and effectively, costs
reasonably allocable to specific employees and overhead, legal fees and
expenses, accounting and financial consulting fees and expenses, costs or
expenses associated with the transfer of all servicing files and costs of
amending the Agreement, if necessary. If the terminated Servicer does not pay
such reimbursement within thirty (30) days of its receipt of an invoice
therefor, such reimbursement shall be an expense of the Trust Fund and the
Trustee shall be entitled to receive such reimbursement from amounts on deposit
in the Certificate Account pursuant to Section 3.08(a)(vii)(B) or from the
Distribution Account pursuant to Section 3.08(b)(i), as applicable, in an
amount not to exceed the Trustee Permitted Withdrawal Amount and to receive all
amounts in excess of the Trustee Permitted Withdrawal Amount pursuant to
Sections 4.02(a)(i)(A).
Notwithstanding any termination of the activities of the Servicer hereunder,
the Servicer shall be entitled to receive, out of any late collection of a
Scheduled Payment on a Loan which was due prior to the notice terminating such
Servicer's rights and obligations as Servicer hereunder and received after such
notice, that portion thereof to which such Servicer would have been entitled
pursuant to Sections 3.08(a)(i) through (viii), and any other amounts payable
to such Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination pursuant
to Section 7.01 hereof, the Trustee shall, subject to and to the extent
provided in Section 3.04, be the successor to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof and
applicable law including the obligation to make Advances pursuant to Section
4.01. As compensation therefor, the Trustee shall be entitled to all funds
relating to the Loans that the Servicer would have been entitled to charge to
the Certificate Account or Distribution Account if the Servicer had continued
to act hereunder. Notwithstanding the foregoing, if the Trustee has become the
successor to the Servicer in accordance with Section 7.01 hereof, 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 4.01 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 Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder. Any successor to the Servicer shall
be an institution which is a FNMA and FHLMC approved seller/servicer in good
standing, which has a net worth of at least $10,000,000, and which is willing
to service the Loans and executes and delivers to the Depositor and the
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Trustee an agreement accepting such delegation and assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer (other than liabilities of the
Servicer under Section 6.03 hereof incurred prior to termination of the
Servicer under Section 7.01), with like effect as if originally named as a
party to this Agreement; and provided further that no such delegation and
assignment shall become effective unless each Rating Agency acknowledges that
its rating of the Certificates in effect immediately prior to such delegation
and assignment will not be qualified or reduced as a result of such delegation
and assignment. Pending appointment of a successor to the Servicer hereunder,
the Trustee, unless the Trustee is prohibited by law from so acting, shall,
subject to Section 3.04 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 Loans as
it and such successor shall agree; provided, however, that no such compensation
shall be in excess of the Servicing Fee permitted the 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 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 Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to it.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any termination or appointment of a successor to the 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, the
Trustee shall transmit by mail to all Certificateholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
SECTION 7.04. Survivability of Servicer Liabilities.
Notwithstanding anything herein to the contrary, upon termination of the
Servicer hereunder, any liabilities of the Servicer which accrued prior to such
termination shall survive such termination.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default of which a Responsible Officer of the
Trustee shall have actual knowledge has occurred and remains uncured or waived,
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement; provided, however, that the Trustee shall
not be responsible for the accuracy or content of any such resolution,
certificate, statement, opinion, report, document, order or other instrument.
Unless an Event of Default of which a Responsible Officer of the Trustee
shall have actual knowledge shall have occurred and be continuing, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities respecting any
matters arising hereunder.
The Trustee shall not be liable for an error of judgment made in good faith
by a Responsible Officer or other officers of the Trustee, unless it shall be
finally proven that the Trustee was negligent in ascertaining the pertinent
facts.
The Trustee shall not be liable with respect to any action taken, suffered
or omitted to be taken by it in good faith in accordance with this Agreement or
with the direction of the Holders of Certificates evidencing not less than 25%
of the Voting Rights of the Certificates relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Agreement.
Subject to the other provisions of this Agreement and without limiting the
generality of this Section 8.01, the Trustee shall have no duty (A) to see to
any recording, filing, or depositing of this Agreement or any agreement
referred to herein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any such
recording or filing or depositing or to any re-recording, refiling or
redepositing of any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment, or other governmental charge or
any lien or encumbrance of any kind owing with respect to, assessed or levied
against any part of the Trust Fund other than from funds available in the
Certificate Account or (D) to confirm or verify the contents of any reports or
certificates of the Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to
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be genuine and to have been signed or presented by the proper party or parties;
provided, however, that the provisions of this Section 8.01(D) shall not apply
during any period during which the Trustee is acting in the capacity of
servicer.
Notwithstanding anything contained in this Section 8.01 to the contrary, no
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or its
own willful misconduct.
SECTION 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee (acting as Trustee, Tax Matters Person or as agent of
the Tax Matters Person for any REMIC) may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution, Officers'
Certificate, Opinion of Counsel, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties and the Trustee shall have no responsibility to ascertain or confirm
the genuineness of any signature of any such party or parties;
(ii) the Trustee (acting as Trustee, Tax Matters Person or as agent of
the Tax Matters Person for any REMIC) may consult with counsel, financial
advisers or accountants and the advice of any such counsel, financial
advisers or accountants and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with
such Opinion of Counsel;
(iii) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement;
(iv) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or document, unless requested in writing so to do by Holders
of Certificates evidencing not less than 25% of the Voting Rights allocated
to each Class of Certificates; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such cost, expense or liability as a
condition to taking any such action. The reasonable expense of every such
examination shall be paid by the Trustee and shall be repaid pursuant to
Sections 3.08(a)(vii)(B), 3.08(b)(i), and 4.02(a)(i)(A) hereof, as
applicable;
(v) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants, custodians or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent,
accountant, custodian or attorney appointed by the Trustee with due care;
(vi) the Trustee shall not be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of
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any of its rights or powers hereunder if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to
perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of the Servicer in accordance with the
terms of this Agreement;
(vii) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security);
(viii) the Trustee shall not be required to take notice or be deemed
to have knowledge of any Event of Default (except an event of nonpayment by
the Servicer) until a Responsible Officer of the Trustee shall have received
written notice thereof, and in the absence of receipt of such notice, the
Trustee may conclusively assume that there is no default or Event of
Default;
(ix) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which may be incurred
therein or thereby;
(x) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act;
(xi) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers
granted hereunder; and
(xii) anything in this Agreement to the contrary notwithstanding, in
no event shall the Trustee be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
SECTION 8.03. Trustee Not Liable for Certificates or Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the Sellers, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Loan or related document other than with respect to the
Trustee's execution and counter-signature of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Servicer of any of the Certificates or of the proceeds of such Certificates or
for the use and application of any funds paid to the Depositor or the Servicer
in respect of the Loans or deposited in or withdrawn from the Certificate
Account by the Depositor or the Servicer. The Trustee shall not be responsible
for the legality or validity of this Agreement or the validity, priority,
perfection or sufficiency of the security for the Certificates issued or
intended to be issued hereunder; provided, however, that the foregoing language
shall not apply to the Trustee's obligations under this Agreement.
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SECTION 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates, and may otherwise deal with the parties hereto with
the same rights as it would have if it were not the Trustee.
SECTION 8.05. Trustee's Fees and Expenses.
The Trustee, as compensation for its activities hereunder, shall be entitled
to withdraw from the Distribution Account on each Distribution Date an amount
equal to the Trustee Fee (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and expenses for
such Distribution Date. The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Servicer and held harmless
against any loss, liability or expense (including reasonable attorney's fees)
(i) incurred in connection with any claim or legal action relating to (a) this
Agreement, (b) the Certificates or (c) the performance of any of the Trustee's
duties hereunder, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of any of
the Trustee's duties hereunder, (ii) resulting from any error in any tax or
information return prepared by the Servicer and (iii) incurred in connection
with Section 2.01(d) hereof. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Trustee hereunder. Without
limiting the foregoing, the Servicer covenants and agrees, except as otherwise
agreed upon in writing by the Depositor and the Trustee, and except for any
such expense, disbursement or advance as may arise from the Trustee's
negligence, bad faith or willful misconduct, to pay or reimburse the Trustee,
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Agreement with respect
to the following: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements
of any accountant, engineer or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage such persons to perform
acts or services hereunder and (C) printing and engraving expenses in
connection with preparing any Definitive Certificates. Except as otherwise
provided herein, the Trustee shall not be entitled to payment or reimbursement
for any routine ongoing expenses incurred by the Trustee in the ordinary course
of its duties as Trustee, Certificate Registrar, Tax Matters Person or Paying
Agent hereunder or for any other expenses.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000 subject to supervision
or examination by federal or state authority and with a credit rating which
would not cause any one of the Rating Agencies to reduce their respective then
current ratings of the Certificates (or having provided such security from time
to time as is sufficient to avoid such reduction). If such corporation or
association publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 8.06 the combined capital and surplus of
such corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.07 hereof. The entity serving
as Trustee may have normal banking and trust relationships with the Depositor
and its affiliates or the Servicer and its affiliates; provided, however, that
such entity cannot be an affiliate of the Servicer other than the Trustee in
its role as successor to the Servicer.
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SECTION 8.07. Resignation and Removal of Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice of resignation to the Depositor and the
Servicer and each Rating Agency not less than 60 days before the date specified
in such notice when, subject to Section 8.08, such resignation is to take
effect, and acceptance by a successor trustee in accordance with Section 8.08
meeting the qualifications set forth in Section 8.06. If no successor trustee
meeting such qualifications shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice or resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.06 hereof and shall fail to resign after written
request thereto by the Depositor, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or a
tax is imposed with respect to the Trust Fund by any state in which the Trustee
or the Trust Fund is located and the imposition of such tax would be avoided by
the appointment of a different trustee, then the Depositor or the Servicer may
remove the Trustee, and shall, within 30 days after such removal, appoint a
successor trustee by written instrument, in triplicate, one copy of which
instrument shall be delivered to the Trustee, one copy of which shall be
delivered to the Servicer and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered by the successor trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. Notice
of any removal of the Trustee shall be given to each Rating Agency by the
successor trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 8.07 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 8.08 hereof.
SECTION 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 hereof shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Servicer an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Servicer and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for more fully and certainly vesting and confirming
in the successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
8.08 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06 hereof and its appointment shall
not adversely affect the then current rating of the Certificates.
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Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Depositor.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor
of the Trustee hereunder, provided that such corporation shall be eligible
under the provisions of Section 8.06 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.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider necessary or desirable. Any such co-
trustee or separate trustee shall be subject to the prior written approval of
the Servicer. If the 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 8.06 and no notice to Certificateholders of the appointment of any co-
trustee or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) to the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon
the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-
trustee is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to
the applicable Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or co-
trustee, but solely at the direction of the Trustee;
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(ii) no trustee hereunder shall be held personally liable by reason of
any act or omission of any other trustee hereunder and such appointment
shall not, and shall not be deemed to, constitute any such separate trustee
or co-trustee as agent of the Trustee;
(iii) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(iv) the Servicer, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed to
have been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the 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 under or in respect of this Agreement
on its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION 8.11. Tax Matters.
It is intended that the assets with respect to which any REMIC election is
to be made, as set forth in the Preliminary Statement, shall constitute, and
that the conduct of matters relating to such assets shall be such as to qualify
such assets as, a "real estate mortgage investment conduit" as defined in and
in accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each REMIC created hereunder and
that in such capacity it shall: (a) prepare and file, or cause to be prepared
and filed, in a timely manner, U.S. Real Estate Mortgage Investment Conduit
Income Tax Returns (Forms 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
REMIC created hereunder, containing such information and at the times and in
the manner as may be required by the Code or regulations, rules or procedures
issued under 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) 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; (c) make or cause to be made elections that such assets
be treated as a REMIC on the federal tax return for its first taxable year
(and, if necessary, under applicable state law); (d) prepare and forward,
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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
described in the Prospectus Supplement; (e) provide information necessary for
the computation of tax imposed on the transfer of a Class R Certificate to a
Person that is not a Permitted Transferee, or an agent (including a broker,
nominee or other middleman) of a non-Permitted Transferee, or a pass-through
entity in which a non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be
charged to the Person liable for such tax); (f) to the extent that they are
under its control, conduct matters relating to such assets at all times that
any Certificates are outstanding so as to maintain the REMIC status of each
REMIC created hereunder under the REMIC Provisions; (g) not knowingly or
intentionally take any action or omit to take any action that would cause the
termination of the REMIC status of any of the REMICs created hereunder; (h)
pay, from the sources specified in the last paragraph of this Section 8.11, the
amount of any federal or state tax, including prohibited transaction taxes as
described below, imposed on each REMIC created hereunder prior to its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings); (i) ensure that federal, state or local income tax or
information returns shall be signed by the Trustee or such other person as may
be required to sign such returns by the Code or state or local laws,
regulations or rules; (j) maintain records relating to each REMIC created
hereunder, including, but not limited to, the income, expenses, assets, and
liabilities thereof and the fair market value and adjusted basis of the assets
determined at such intervals as may be required by the Code, as may be
necessary to prepare the foregoing returns, schedules, statements or
information; and (k) as and when necessary and appropriate, represent each
REMIC created hereunder 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 each REMIC created
hereunder, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of each
REMIC created hereunder, and otherwise act on behalf of each REMIC created
hereunder in relation to any tax matter or controversy involving it.
In order to enable the Trustee to perform its duties as set forth herein,
the Depositor shall provide, or cause to be provided, to the Trustee within ten
(10) days after the Closing Date all information or data that the Trustee
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Loans. Thereafter, the Depositor shall provide to the
Trustee promptly upon written request therefor, any such additional information
or data that the Trustee may, from time to time, reasonably request to enable
the Trustee to perform its duties as set forth herein. The Depositor hereby
indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause
to be provided, accurate information or data to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" of any REMIC created
hereunder as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of any REMIC created hereunder as defined in Section
860G(c) of the Code, on any contribution to any REMIC created hereunder after
the Startup Day pursuant to Section 860G(d) of the Code, or any other tax is
imposed, if not paid as otherwise provided for herein, such tax and all other
related costs shall be paid by (i) the Trustee, if such tax arises out of or
results from a breach by the Trustee of any of its obligations under this
Agreement, (ii) the Servicer, or if such tax arises out of or results from a
breach by the Servicer or a Seller
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of any of their obligations under this Agreement, (iii) the Sellers, if any tax
arises out of or results from any Seller's obligation to repurchase a Loan
pursuant to Section 2.02 or 2.03 or (iv) in all other cases, or if the Trustee,
the Servicer or a Seller fails to honor its obligations under the preceding
clause (i),(ii) or (iii), such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 3.08(b).
SECTION 8.12. Periodic Filings.
The Depositor shall prepare, execute and file all periodic reports required
under the Securities Exchange Act of 1934. In connection with the preparation
and filing of such periodic reports, the Servicer shall timely provide to the
Depositor all material information available to it which is required to be
included in such reports and not known to it to be in the possession of the
Depositor and such other information as the Depositor reasonably may request
from it and otherwise reasonably shall cooperate with the Depositor. The
Depositor shall have no liability with respect to any failure to properly
prepare or file such periodic reports resulting from or relating to the
Depositor's inability or failure to obtain any information not resulting from
its own gross negligence or willful misconduct.
SECTION 8.13. Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or more
custodians (each, a "CUSTODIAN") to hold all or a portion of the Trustee's
Mortgage Files as agent for the Trustee, by entering into a custodial agreement
("CUSTODIAL AGREEMENT"). The Trustee agrees to comply with the terms of each
Custodial Agreement and to enforce the terms and provisions thereof against the
Custodian for the benefit of the Certificateholders. The Trustee shall be
liable for the fees of any Custodian appointed hereunder. Each Custodian shall
be a depository institution subject to supervision by federal or state
authority and shall be qualified to do business in the jurisdiction in which it
holds any Trustee's Mortgage File.
SECTION 8.14. Trustee May Enforce Claims Without Possession of Certificates.
All rights of action and claims under this Agreement or the Certificates may
be prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto, any
such proceeding instituted by the Trustee shall be brought in its own name or
in its capacity as Trustee. Any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Certificateholders in respect of which such judgment has been recovered.
The Trustee shall afford the Sellers, the Depositor, the Servicer and each
Certificateholder, upon reasonable notice during normal business hours, access
to all records maintained by the Trustee in respect of its duties hereunder and
reasonable access to officers of the Trustee responsible for performing such
duties, or such other employees who can provide the information required. Upon
request, the Trustee shall furnish the Sellers, the Depositor, the Servicer and
each Certificateholder with its most recent financial statements. The Trustee
shall cooperate fully with the Sellers, the Servicer, the Depositor and such
Certificateholder and shall make available to the Sellers, the Servicer, the
Depositor and such Certificateholder for review and copying at the expense of
the party requesting such copies, such books, documents or records as may be
requested with respect to the Trustee's duties hereunder. The Sellers, the
Depositor, the Servicer and the Certificateholders shall not have any
responsibility or liability for any action or failure to act by the Trustee and
are not obligated to supervise the performance of the Trustee under this
Agreement or otherwise.
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SECTION 8.15. Suits for Enforcement.
In case an Event of Default or other default by the Servicer hereunder shall
occur and be continuing, the Trustee, in its discretion, may proceed to protect
and enforce its rights and the rights of the Certificateholders under this
Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or in aid of the execution of any power granted in this
Agreement or for the enforcement of any other legal, equitable or other remedy,
as the Trustee, being advised by counsel, shall deem most effectual to protect
and enforce any of the rights of the Trustee or the Certificateholders.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination upon Liquidation or Purchase of all Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Servicer and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase by the Servicer
of all Loans (and REO Properties) remaining in the Trust Fund at a price equal
to the sum of (i) 100% of the Stated Principal Balance of each Loan plus
accrued and unpaid interest thereon at the applicable Mortgage Rate and (ii)
100% of the Stated Principal Balance of each Loan related to any REO Property
plus accrued and unpaid interest thereon at the applicable Mortgage Rate (the
"TERMINATION PRICE"); provided, however, that in no event shall the Termination
Price be less than (1) with respect to the Offered Certificates, 100% of their
then outstanding principal balance, (2) with respect to the Offered
Certificates, any accrued and unpaid interest thereon at the applicable Pass-
Through Rate (including any Class Unpaid Interest Amounts) and (3) with respect
to the Offered Certificates, any accrued and unpaid Net WAC Cap Carryover as of
such Distribution Date, or (b) the later of (i) the maturity or other
liquidation of the last Loan remaining in the Trust Fund (or any Advance with
respect thereto) and the disposition of all REO Property and (ii) the
distribution to Certificateholders of all amounts required to be distributed to
them pursuant to this Agreement. In no event shall the trusts created hereby
continue beyond the earlier of (i) the expiration of 21 years from the death of
the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. Xxxxx, living on the date hereof or (ii)
the Latest Possible Maturity Date. The right to purchase all Loans and REO
Properties pursuant to clause (a) above shall be conditioned upon the Pool
Principal Balance, at the time of any such repurchase, aggregating less than
ten percent (10%) of the Cut-off Date Pool Principal Balance. If the Servicer
elects to exercise its purchase right pursuant to clause (a) above, the
Servicer's right to reimbursement from the Trust Fund for any Advances
previously made on the Loans being purchased shall terminate as of the date the
purchase of the Loans and REO Properties is completed.
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SECTION 9.02. Final Distribution on the Certificates.
If on any Determination Date, the Servicer determines that there are no
Outstanding Loans and no other funds or assets in the Trust Fund other than the
funds in the Certificate Account, the Servicer shall direct the Trustee in
writing promptly to send a final distribution notice to each Certificateholder.
If the Servicer elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, at least 20 days prior to the date notice is to be mailed to the
affected Certificateholders, the Servicer shall notify in writing the Depositor
and the Trustee of the date the Servicer intends to terminate the Trust Fund
and of the applicable repurchase price of the Loans and REO Properties.
Notice of any termination of the Trust Fund, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment
of the final distribution and cancellation, shall be given promptly by the
Trustee by letter to Certificateholders mailed not earlier than the 10th day
and not later than the 15th day of the month next preceding the month of such
final distribution. Any such notice 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 principal to be included in such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Servicer
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 Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day prior to the applicable Distribution
Date in an amount equal to the final distribution in respect of the
Certificates. 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 Servicer the Mortgage Files for the Loans.
Upon presentation and surrender of the Certificates, the Trustee shall cause
to be distributed to Certificateholders of each Class, in the order set forth
in Section 4.02 hereof, on the final Distribution Date and in proportion to
their respective Percentage Interests, with respect to Certificateholders of
the same Class, an amount equal to (i) as to the Offered Certificates, the
Class Certificate Balance of each Class thereof plus accrued interest thereon
and (ii) as to the Class R Certificates, the amount, if any, which remains on
deposit in the Distribution Account (other than the amounts retained to meet
claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not surrender
Certificates for cancellation within six months after the date specified in the
above mentioned written notice, the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
six months after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund, on a pro-rata basis among the remaining Certificateholders. If
within one year after the second notice all Certificates shall not have been
surrendered for cancellation, the Class R Certificateholders shall be entitled
to all unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
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SECTION 9.03. Additional Termination Requirements.
(a) In the event the Servicer exercises its purchase option as provided in
Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, unless the Trustee has been supplied with an
Opinion of Counsel, at the expense of the Servicer, to the effect that the
failure to comply with the requirements of this Section 9.03 will not (i)
result in the imposition of taxes on "prohibited transactions" on any REMIC
created hereunder as defined in section 860F of the Code, or (ii) cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(1) Within 90 days prior to the final Distribution Date set forth in
the notice given by the Servicer under Section 9.02, the Servicer shall
prepare and the Trustee, at the expense of the Tax Matters Person, shall
adopt a plan of complete liquidation within the meaning of section
860F(a)(4) of the Code which, as evidenced by an Opinion of Counsel (which
opinion shall not be an expense of the Trustee or the Tax Matters Person),
meets the requirements of a qualified liquidation; and
(2) Within 90 days after the time of adoption of such a plan of
complete liquidation, the Trustee shall sell all of the assets of the Trust
Fund to the Servicer for cash in accordance with Section 9.01.
(b) The Trustee as agent for each REMIC created hereunder hereby agrees to
adopt and sign such a plan of complete liquidation upon the written request of
the Servicer, and the receipt of the Opinion of Counsel referred to in Section
9.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Servicer.
(c) By their acceptance of the Certificates, the Holders thereof hereby
authorize the Servicer to prepare and the Trustee to adopt and sign a plan of
complete liquidation.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Sellers, the Servicer and the Trustee, without the consent of any of the
Certificateholders, (a) to cure any ambiguity, (b) to correct or supplement any
provisions herein which may be defective or inconsistent with any other
provisions herein, (c) to conform this Agreement to the Prospectus Supplement,
(d) to make any other revisions relating to matters or questions arising under
this Agreement, provided that any such revisions shall not be inconsistent with
the provisions of this Agreement or (e) to modify, eliminate or add to any of
its provisions to such extent as shall be necessary or helpful to (i) maintain
the qualification of the Trust Fund as one or more REMICs under the Code or
(ii) avoid or minimize the risk of imposition of any tax on any REMIC; provided
that, (x) in the case of clauses (a) -- (d), that amendment will not adversely
affect in any material respect the interests of any Certificateholders covered
by this Agreement as evidenced either by an Opinion of Counsel to that effect
or the delivery to the Trustee of written notification from each Rating Agency
that provides, at the request of the Depositor, a rating for the Offered
Certificates, of the related series to the effect that that amendment or
supplement will not cause that Rating Agency to lower or withdraw the then
current rating assigned to those Certificates, and (y) in the case of clause
(e), the Trustee has received an Opinion of Counsel (which opinion shall not be
an expense of the Trustee or
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the Trust Fund) to the effect that the amendment is necessary or helpful to (i)
maintain the qualification of the Trust Fund as one or more REMICs under the
Code or (ii) avoid or minimize the risk of imposition of any tax on any REMIC,
as applicable.
This Agreement may also be amended from time to time by the Depositor, the
Sellers, the Servicer and the Trustee with the consent of the Holders of
Percentage Interests of at least 66% of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (a) 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 or (b) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates
then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee shall
not consent to any amendment to this Agreement unless it shall have first
received an Opinion of Counsel (which opinion shall not be an expense of the
Trustee or the Trust Fund) to the effect that such amendment will not cause the
Trust Fund to fail to qualify as one or more REMICs at any time that any
Certificates are outstanding. Prior to the execution of any amendment to this
Agreement, the Trustee shall be entitled to receive and rely upon an Opinion of
Counsel (which opinion shall not be at the expense of the Trustee or the Trust
Fund) stating that the execution of such amendment is authorized or permitted
by this Agreement. The Trustee may, but shall not be obligated to, enter into
any such amendment that affects the Trustee's own rights, duties or immunities
under this Agreement.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
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 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated,
and in any other appropriate public recording office or elsewhere, such
recordation to be effected by the Servicer at its expense, but only upon
direction by the Trustee accompanied by an Opinion of Counsel to the effect
that such recordation materially and beneficially affects the interests of the
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts, taken together, shall constitute one and
the same instrument.
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SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO
AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance of the
Loans by the Sellers to the Depositor pursuant to Article II of this Agreement
be, and be construed as, an absolute sale thereof to the Depositor. It is,
further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Sellers to the Depositor to secure a borrowing by the
Sellers from the Depositor. However, in the event that, notwithstanding the
intent of the parties, such assets are held to be the property of the Sellers
or any one of them, or if this Agreement is held or deemed to constitute or
have created a loan, lending transaction or an extension of credit by the
Depositor to the Sellers or any one of them, then and only then (i) this
Agreement shall be deemed, effective as of November 1, 2005, to be a security
agreement within the meaning of the Uniform Commercial Code of the State of New
York and (ii) the conveyance by the Sellers to the Depositor provided for in
this Agreement shall be deemed, effective as of November 1, 2005, to be an
assignment and a grant by the Sellers to the Depositor, and each of the Sellers
does hereby grant and assign to the Depositor, a security interest in, and lien
upon, all of the assets that constitute the Collateral, whether now owned or
hereafter acquired.
The Sellers, for the benefit of the Depositor, shall, in connection with the
perfection of the security interest described in the preceding paragraph of
this Section 10.04, deliver to the Depositor on the Closing Date the financing
statements described in Schedule IV. The Sellers shall also arrange for the
delivery to the Depositor of any appropriate Uniform Commercial Code
continuation statements as may be necessary or appropriate to continue the
perfection of the security interest of the Depositor in the Collateral, whether
now owned or hereafter acquired. The Sellers, for the benefit of the Depositor,
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement is held or deemed to constitute
or have created a loan, lending transaction or an extension of credit by the
Depositor to the Sellers or any one of them, then and only then (i) this
Agreement shall be deemed, effective as of November 1, 2005, to be a security
agreement within the meaning of the Uniform Commercial Code of the State of New
York and (ii) the conveyance by the Sellers to the Depositor provided for in
this Agreement shall be deemed, effective as of November 1, 2005, to be an
assignment and a grant by the Sellers to the Depositor, and each of the Sellers
does hereby grant and assign to the Depositor, a security interest in, and lien
upon, all of the assets that constitute the Collateral, whether now owned or
hereafter acquired, such security interest shall be deemed to be a perfected
security interest of first priority under applicable law, and will be
maintained as such throughout the term of this Agreement. The Sellers shall
arrange for filing any appropriate Uniform Commercial Code financing
statements, continuation statements or other appropriate forms, notices or
documents in connection with any security interest granted or assigned to the
Depositor.
The Depositor does hereby assign the security interest in and lien on the
Collateral, whether now owned or hereafter acquired, to the Trustee for the
benefit of the Certificateholders. The Depositor shall arrange for filing of
such Uniform Commercial Code financing statements as are
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necessary to effect the assignment of the security interest and lien to the
Trustee for the benefit of the Certificateholders.
It is the express intent of the parties hereto that the conveyance of the
Trust Fund by the Depositor to the Trustee pursuant to Article II of this
Agreement be, and be construed as, an absolute sale thereof to the Trustee. It
is, further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Depositor to the Trustee to secure a borrowing by the
Depositor from the Trustee. However, in the event that, notwithstanding the
intent of the parties, the assets constituting the Trust Fund are held to be
the property of the Depositor, or if this Agreement is held or deemed to
constitute or have created a loan, lending transaction or an extension of
credit by the Trustee to the Depositor, then and only then (i) this Agreement
shall be deemed, effective as of November 1, 2005, to be a security agreement
within the meaning of the Uniform Commercial Code of the State of New York and
(ii) the conveyance by the Depositor to the Trustee provided for in this
Agreement shall be deemed, effective as of November 1, 2005, to be an
assignment and a grant by the Depositor to the Trustee, and the Depositor does
hereby grant and assign to the Trustee, for the benefit of the
Certificateholders, a security interest in, and lien upon, all of the assets
that constitute the Collateral, whether now owned or hereafter acquired.
The Depositor, for the benefit of the Trustee and the Certificateholders,
shall, in connection with the perfection of the security interest described in
the preceding paragraph of this Section 10.04, deliver to the Trustee on the
Closing Date the financing statements described in Schedule V. The Depositor
shall also arrange for the delivery to the Trustee of any appropriate Uniform
Commercial Code continuation statements as may be necessary or appropriate to
continue the perfection of the security interest of the Trustee in the Trust
Fund, and all of the proceeds thereof, whether now owned or hereafter acquired.
The Depositor, for the benefit of the Trustee and the Certificateholders,
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement is held or deemed to constitute
or have created a loan, lending transaction or an extension of credit by the
Trustee to the Depositor, then and only then (i) this Agreement shall be
deemed, effective as of November 1, 2005, to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyance by the Depositor to the Trustee provided for in this Agreement shall
be deemed, effective as of November 1, 2005, to be an assignment and a grant by
the Depositor to the Trustee, and the Depositor does hereby grant and assign to
the Trustee, for the benefit of the Certificateholders, a security interest in,
and lien upon, all of the assets that constitute the Collateral, whether now
owned or hereafter acquired, such security interest shall be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. The Servicer shall,
within ten (10) days of the Closing Date, present to the appropriate filing
offices in the jurisdictions set forth on Schedules IV and V all of the
financing statements delivered on the Closing Date by the Sellers to the
Depositor, the assignments thereof delivered by the Depositor to the Trustee on
the Closing Date and the financing statements delivered by the Depositor to the
Trustee on the Closing Date. The Servicer shall arrange for filing any
appropriate Uniform Commercial Code continuation statements or other
appropriate forms, notices or documents in connection with any security
interest granted or assigned to the Trustee.
SECTION 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency and the Underwriters with respect to each of the following
of which it has actual knowledge:
1. any material change or amendment to this Agreement;
2. the occurrence of any Event of Default that has not been cured;
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3. the resignation or termination of the Servicer or the Trustee and
the appointment of any successor;
4. the repurchase or substitution of Loans pursuant to Section 2.03;
and
5. the final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency and
the Underwriters copies of the following:
1. each report to Certificateholders described in Section 4.03;
2. each annual statement as to compliance described in Section 3.15;
3. each annual independent public accountants' servicing report
described in Section 3.16; and
4. any notice of a purchase or sale of a Loan pursuant to Section
2.02, 2.03 or 3.11.
(b) Except as expressly provided otherwise in this Agreement, all
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered to the following addresses or
such other addresses as may hereafter be furnished in writing to the Servicer
and the Trustee: (a) in the case of the Depositor, Popular ABS, Inc., 000
Xxxxxxxx Xxxxxxxx, 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Chief Financial Officer, facsimile number: (000) 000-0000, (b) in the case of
the Servicer, Equity One, Inc., 000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx
00000, Attention: Chief Financial Officer, facsimile number: (000) 000-0000,
(c) in the case of any of the Sellers, to that Seller c/o Equity One, Inc., 000
Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000, Attention: Chief Financial
Officer, facsimile number: (000) 000-0000, (d) in the case of the Trustee,
JPMorgan Chase Bank, N.A., 4 New York Plaza, 6th Floor, New York, New York
10004, Attention: Worldwide Securities Services/Structured Finance Services,
Popular ABS 2005-D, facsimile number: (000) 000-0000, (e) in the case of the
Rating Agencies, the address specified therefor in the definition corresponding
to the name of such Rating Agency, and (f) in the case of the Underwriters, (i)
Greenwich Capital Markets, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, Attention: General Counsel, facsimile number: (000) 000-0000 and (ii)
Friedman, Billings, Xxxxxx & Co., Inc., 0000 Xxxxxxxxxx Xxxxxx Xxxxx, 0xx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxx, facsimile number:
(000) 000-0000. Notices to Certificateholders shall be deemed given when
mailed, first class postage prepaid, to their respective addresses appearing in
the Certificate Register. Telephonic notice to the Servicer pursuant to Section
7.01 hereof shall be deemed to have been duly given when the Trustee has
delivered such notice via a direct, in-person telephone conversation with the
Chief Financial Officer of the Servicer at (000) 000-0000 or such other
telephone number as the Servicer may provide to the Trustee in writing in
accordance with the notice provisions of this Section 10.05(b).
SECTION 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of this
Agreement shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this
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Agreement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement or of the Certificates or the rights of the
Holders thereof.
SECTION 10.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6.02, this Agreement may not be assigned by the Servicer
without the prior written consent of the Trustee and the Depositor.
SECTION 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members of
an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself of
any provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as herein provided, and unless the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Agreement, except in the manner herein provided
and for the common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 10.08, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 10.09. Inspection and Audit Rights.
The Servicer agrees that, on reasonable prior notice, it will permit and
will cause each Subservicer to permit any representative of the Depositor or
the Trustee during the Servicer's normal business hours, to examine all the
books of account, records, reports and other papers of the Servicer relating to
the 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,
102
finances and accounts relating to the Loans with its officers, employees and
independent public accountants (and by this provision the Servicer hereby
authorizes said accountants to discuss with such representative such affairs,
finances and accounts), all at such reasonable times and as often as may be
reasonably requested. Any out-of-pocket expense incident to the exercise by the
Depositor or the Trustee of any right under this Section 10.09 shall be borne
by the party requesting such inspection; all other such expenses shall be borne
by the Servicer or the related Subservicer.
SECTION 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor and the Trustee that the
Certificateholders shall not be personally liable for obligations of the Trust
Fund, that the interests in the Trust Fund represented by the Certificates
shall be nonassessable for any reason whatsoever, and that the Certificates,
upon due authentication thereof by the Trustee pursuant to this Agreement, are
and shall be deemed fully paid.
SECTION 10.11. The Closing.
The closing of the transactions contemplated by this Agreement shall occur
at 10:00 a.m. Philadelphia time on the Closing Date at the Closing Place.
SECTION 10.12. Interpretation.
Unless the context of this Agreement clearly requires otherwise, (a)
references to the plural include the singular, the singular the plural, the
part the whole, (b) references to one gender includes all genders, (c) "or" has
the inclusive meaning frequently identified with the phrase "and/or," (d)
"including" has the inclusive meaning frequently identified with the phrase
"but not limited to" and (e) references to "hereunder," "hereof" or "herein"
relate to this Agreement. The section and other headings contained in this
Agreement are for reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation thereof in any respect.
Section, subsection, schedule and exhibit references are to this Agreement
unless otherwise specified.
SECTION 10.13. RESERVED.
SECTION 10.14. No Partnership.
Nothing herein contained shall be deemed or construed to create a co-
partnership or joint venture between the parties hereto and the services of the
Trustee and the Servicer shall be rendered as an independent contractor and not
as agent for the Certificateholders.
SECTION 10.15. Protection of Assets.
(a) Except for transactions and activities entered into in connection with
the securitization that is the subject of this Agreement, the Trust Fund
created by this Agreement is not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell assets;
(3) engage in any business or activities.
103
(b) Each party to this agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid.
SECTION 10.16. Execution of Yield Maintenance Agreement.
The Depositor hereby directs the Trustee to execute, deliver and perform its
obligations under, and make the representations contained in, the Yield
Maintenance Agreement on the Closing Date and thereafter on behalf of, and for
the benefit of, the Holders of the Hedged Certificates. The Sellers, the
Depositor, the Servicer and the Holders of the Hedged Certificates (by their
acceptance of such Certificates) acknowledge and agree that the Trustee is
executing, delivering and performing its obligations under, and making the
representations contained in, the Yield Maintenance Agreement and shall do so
solely in its capacity as Trustee of the Trust Fund and not in its individual
capacity.
* * * * *
104
IN WITNESS WHEREOF, the Depositor, the Trustee, each of the Sellers and the
Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
POPULAR ABS, INC., a Delaware corporation, as
Depositor
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, Executive Vice President and CFO
JPMORGAN CHASE BANK, N.A., a banking association
organized under the laws of the United States, as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx, Assistant Vice President
EQUITY ONE, INC., a Delaware corporation, as a Seller
and Servicer
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, Executive Vice President and CFO
EQUITY ONE, INCORPORATED, a Pennsylvania
corporation, as a Seller
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, Executive Vice President and CFO
EQUITY ONE, INC., a Minnesota corporation, as a Seller
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, Executive Vice President and CFO
EQUITY ONE CONSUMER LOAN COMPANY, INC., a
New Hampshire corporation, as a Seller
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, Executive Vice President and CFO
SIGNATURE PAGE TO EQUITY ONE
POOLING AND SERVICING AGREEMENT 2005-D
POPULAR FINANCIAL SERVICES, LLC, a Delaware
limited liability company, as a Seller
BY: /s/ Xxxxx X. Xxxxxxx
------------------------
Xxxxx X. Xxxxxxx, Executive Vice President and CFO
POPULAR FINANCIAL FUNDING, LLC, a Delaware limited
liability company, as a Seller
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, Executive Vice President and CFO
SIGNATURE PAGE TO EQUITY ONE
POOLING AND SERVICING AGREEMENT 2005-D
SCHEDULE I
Loan Schedule
SEE ATTACHED
S-I-1
SCHEDULE IIA
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Representations and Warranties of Equity One-Delaware
Equity One-Delaware ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIA to the Depositor and the Trustee as
of the Closing Date, or if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller. Capitalized terms used but not
otherwise defined in this Schedule IIA shall have the meanings ascribed thereto
in the Pooling and Servicing Agreement (the "POOLING AND SERVICING AGREEMENT")
relating to the above-referenced Series, among Seller, the other Sellers and
the Servicer identified therein, Popular ABS, Inc., as depositor, and JPMorgan
Chase Bank, N.A., as trustee. The term "AGREEMENT" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) 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 the Agreement to be conducted by Seller under the laws of
each state where a Mortgaged Property is located or is otherwise exempt
under applicable law from such qualification or is otherwise not required
under applicable law to effect such qualification.
(2) Seller has the full corporate power and authority to sell each Loan, and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by the Agreement and has duly authorized by all
necessary corporate action on the part of Seller the execution, delivery
and performance of the Agreement; and the Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except that (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Agreement by Seller, the sale of the
Loans by Seller under the Agreement, the consummation of any other of the
transactions contemplated by the Agreement, and the fulfillment of or
compliance with the terms thereof are in the ordinary course of business
of Seller and will not (a) result in a material breach of any term or
provision of the charter or by-laws of 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 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 Seller of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Seller; and 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 Seller's ability to
perform or meet any of its obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's knowledge,
threatened, against Seller that would materially and adversely affect the
execution, delivery or enforceability of the Agreement or the
S-IIA-1
ability of Seller to sell the Loans or to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by
Seller of, or compliance by Seller with, the Agreement or the
consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, Seller has
obtained the same.
(6) Seller intends to treat the conveyance of the Loans to the Depositor as a
sale under applicable law.
(7) Seller is not insolvent nor is Seller aware of any pending insolvency,
and Seller will not become insolvent as a result of its sale of the Loans
under the Agreement, and Seller's sale of the Loans to the Depositor
under the Agreement will not be made with any intent to hinder, delay or
defraud any of its creditors.
S-IIA-2
SCHEDULE IIB
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Representations and Warranties of Equity One-Minnesota
Equity One-Minnesota ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIB to the Depositor and the Trustee as
of the Closing Date or, if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller. Capitalized terms used but not
otherwise defined in this Schedule IIB shall have the meanings ascribed thereto
in the Pooling and Servicing Agreement (the "POOLING AND SERVICING AGREEMENT")
relating to the above-referenced Series, among Seller, the other Sellers and
the Servicer identified therein, Popular ABS, Inc., as depositor, and JPMorgan
Chase Bank, N.A., as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly organized as a Minnesota corporation and is validly
existing and in good standing under the laws of the State of Minnesota
and is duly authorized and qualified to transact any and all business
contemplated by the Agreement to be conducted by Seller under the laws of
each state where a Mortgaged Property is located or is otherwise exempt
under applicable law from such qualification or is otherwise not required
under applicable law to effect such qualification.
(2) Seller has the full corporate power and authority to sell each Loan, and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by the Agreement and has duly authorized by all
necessary corporate action on the part of Seller the execution, delivery
and performance of the Agreement; and the Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except that (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Agreement by Seller, the sale of the
Loans by Seller under the Agreement, the consummation of any other of the
transactions contemplated by the Agreement, and the fulfillment of or
compliance with the terms thereof are in the ordinary course of business
of Seller and will not (a) result in a material breach of any term or
provision of the charter or by-laws of 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 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 Seller of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Seller; and 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 Seller's ability to
perform or meet any of its obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's knowledge,
threatened, against Seller that would materially and adversely affect the
execution, delivery or enforceability of the Agreement or the
S-IIB-1
ability of Seller to sell the Loans or to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by
Seller of, or compliance by Seller with, the Agreement or the
consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, Seller has
obtained the same.
(6) Seller intends to treat the conveyance of the Loans to the Depositor as a
sale under applicable law; however, for financial reporting purposes
Seller intends to treat this transaction as the incurrence of debt by
Seller.
(7) Seller is not insolvent nor is Seller aware of any pending insolvency,
and Seller will not become insolvent as a result of its sale of the Loans
under the Agreement, and Seller's sale of the Loans to the Depositor
under the Agreement will not be made with any intent to hinder, delay or
defraud any of its creditors.
S-IIB-2
SCHEDULE IIC
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Representations and Warranties of Equity One-New Hampshire
Equity One-New Hampshire ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIC to the Depositor and the Trustee as
of the Closing Date or, if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller. Capitalized terms used but not
otherwise defined in this Schedule IIC shall have the meanings ascribed thereto
in the Pooling and Servicing Agreement (the "POOLING AND SERVICING AGREEMENT")
relating to the above-referenced Series, among Seller, the other Sellers and
the Servicer identified therein, Popular ABS, Inc., as depositor, and JPMorgan
Chase Bank, N.A., as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly organized as a New Hampshire corporation and is validly
existing and in good standing under the laws of the State of New
Hampshire and is duly authorized and qualified to transact any and all
business contemplated by the Agreement to be conducted by Seller under
the laws of each state where a Mortgaged Property is located or is
otherwise exempt under applicable law from such qualification or is
otherwise not required under applicable law to effect such qualification.
(2) Seller has the full corporate power and authority to sell each Loan, and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by the Agreement and has duly authorized by all
necessary corporate action on the part of Seller the execution, delivery
and performance of the Agreement; and the Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except that (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Agreement by Seller, the sale of the
Loans by Seller under the Agreement, the consummation of any other of the
transactions contemplated by the Agreement, and the fulfillment of or
compliance with the terms thereof are in the ordinary course of business
of Seller and will not (a) result in a material breach of any term or
provision of the charter or by-laws of 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 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 Seller of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Seller; and 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 Seller's ability to
perform or meet any of its obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's knowledge,
threatened, against Seller that would materially and adversely affect the
execution, delivery or enforceability of the Agreement or the
S-IIC-1
ability of Seller to sell the Loans or to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by
Seller of, or compliance by Seller with, the Agreement or the
consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, Seller has
obtained the same.
(6) Seller intends to treat the conveyance of the Loans to the Depositor as a
sale under applicable law; however, for financial reporting purposes
Seller intends to treat this transaction as the incurrence of debt by
Seller.
(7) Seller is not insolvent nor is Seller aware of any pending insolvency,
and Seller will not become insolvent as a result of its sale of the Loans
under the Agreement, and Seller's sale of the Loans to the Depositor
under the Agreement will not be made with any intent to hinder, delay or
defraud any of its creditors.
S-IIC-2
SCHEDULE IID
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Representations and Warranties of Equity One-Pennsylvania
Equity One-Pennsylvania ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IID to the Depositor and the Trustee as
of the Closing Date, or if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller. Capitalized terms used but not
otherwise defined in this Schedule IID shall have the meanings ascribed thereto
in the Pooling and Servicing Agreement (the "POOLING AND SERVICING AGREEMENT")
relating to the above-referenced Series, among Seller, the other Sellers and
the Servicer identified therein, Popular ABS, Inc., as depositor, and JPMorgan
Chase Bank, N.A., as trustee. The term "AGREEMENT" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly organized as a Pennsylvania corporation and is validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania and is duly authorized and qualified to transact any and all
business contemplated by the Agreement to be conducted by Seller under
the laws of each state where a Mortgaged Property is located or is
otherwise exempt under applicable law from such qualification or is
otherwise not required under applicable law to effect such qualification.
(2) Seller has the full corporate power and authority to sell each Loan, and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by the Agreement and has duly authorized by all
necessary corporate action on the part of Seller the execution, delivery
and performance of the Agreement; and the Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except that (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Agreement by Seller, the sale of the
Loans by Seller under the Agreement, the consummation of any other of the
transactions contemplated by the Agreement, and the fulfillment of or
compliance with the terms thereof are in the ordinary course of business
of Seller and will not (a) result in a material breach of any term or
provision of the charter or by-laws of 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 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 Seller of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Seller; and 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 Seller's ability to
perform or meet any of its obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's knowledge,
threatened, against Seller that would materially and adversely affect the
execution, delivery or enforceability of the Agreement or the
S-IID-1
ability of Seller to sell the Loans or to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by
Seller of, or compliance by Seller with, the Agreement or the
consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, Seller has
obtained the same.
(6) Seller intends to treat the conveyance of the Loans to the Depositor as a
sale under applicable law.
(7) Seller is not insolvent nor is Seller aware of any pending insolvency,
and Seller will not become insolvent as a result of its sale of the Loans
under the Agreement, and Seller's sale of the Loans to the Depositor
under the Agreement will not be made with any intent to hinder, delay or
defraud any of its creditors.
S-IID-2
SCHEDULE IIE
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Representations and Warranties of Popular Financial
Popular Financial ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIE to the Depositor and the Trustee as
of the Closing Date, or if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller. Capitalized terms used but not
otherwise defined in this Schedule IIE shall have the meanings ascribed thereto
in the Pooling and Servicing Agreement (the "POOLING AND SERVICING AGREEMENT")
relating to the above-referenced Series, among Seller, the other Sellers and
the Servicer identified therein, Popular ABS, Inc., as depositor, and JPMorgan
Chase Bank, N.A., as trustee. The term "AGREEMENT" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly formed as a Delaware limited liability company 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 the Agreement to be conducted by Seller under
the laws of each state where a Mortgaged Property is located or is
otherwise exempt under applicable law from such qualification or is
otherwise not required under applicable law to effect such qualification.
(2) Seller has the full power and authority to sell each Loan, and to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by the Agreement and has duly authorized by all
necessary corporate action on the part of Seller the execution, delivery
and performance of the Agreement; and the Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except that (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Agreement by Seller, the sale of the
Loans by Seller under the Agreement, the consummation of any other of the
transactions contemplated by the Agreement, and the fulfillment of or
compliance with the terms thereof are in the ordinary course of business
of Seller and will not (a) result in a material breach of any term or
provision of the operating agreement of 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 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 Seller of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Seller; and 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 Seller's ability to
perform or meet any of its obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's knowledge,
threatened, against Seller that would materially and adversely affect the
execution, delivery or enforceability of the Agreement or the
S-IIE-1
ability of Seller to sell the Loans or to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by
Seller of, or compliance by Seller with, the Agreement or the
consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, Seller has
obtained the same.
(6) Seller intends to treat the conveyance of the Loans to the Depositor as a
sale under applicable law.
(7) Seller is not insolvent nor is Seller aware of any pending insolvency,
and Seller will not become insolvent as a result of its sale of the Loans
under the Agreement, and Seller's sale of the Loans to the Depositor
under the Agreement will not be made with any intent to hinder, delay or
defraud any of its creditors.
S-IIE-2
SCHEDULE IIF
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Representations and Warranties of Popular Funding
Popular Funding ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIF to the Depositor and the Trustee as
of the Closing Date, or if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller. Capitalized terms used but not
otherwise defined in this Schedule IIF shall have the meanings ascribed thereto
in the Pooling and Servicing Agreement (the "POOLING AND SERVICING AGREEMENT")
relating to the above-referenced Series, among Seller, the other Sellers and
the Servicer identified therein, Popular ABS, Inc., as depositor, and JPMorgan
Chase Bank, N.A., as trustee. The term "Agreement" shall be used in this
Schedule to refer to the Pooling and Servicing Agreement.
(1) Seller is duly formed as a Delaware limited liability company 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 the Agreement to be conducted by Seller under
the laws of each state where a Mortgaged Property is located or is
otherwise exempt under applicable law from such qualification or is
otherwise not required under applicable law to effect such qualification.
(2) Seller has the full power and authority to sell each Loan, and to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by the Agreement and has duly authorized by all
necessary corporate action on the part of Seller the execution, delivery
and performance of the Agreement; and the Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except that (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Agreement by Seller, the sale of the
Loans by Seller under the Agreement, the consummation of any other of the
transactions contemplated by the Agreement, and the fulfillment of or
compliance with the terms thereof are in the ordinary course of business
of Seller and will not (a) result in a material breach of any term or
provision of the operating agreement of 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 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 Seller of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Seller; and 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 Seller's ability to
perform or meet any of its obligations under the Agreement.
(4) No litigation is pending or, to the best of Seller's knowledge,
threatened, against Seller that would materially and adversely affect the
execution, delivery or enforceability of the Agreement or the
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ability of Seller to sell the Loans or to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by
Seller of, or compliance by Seller with, the Agreement or the
consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, Seller has
obtained the same.
(6) Seller intends to treat the conveyance of the Loans to the Depositor as a
sale under applicable law.
(7) Seller is not insolvent nor is Seller aware of any pending insolvency,
and Seller will not become insolvent as a result of its sale of the Loans
under the Agreement, and Seller's sale of the Loans to the Depositor
under the Agreement will not be made with any intent to hinder, delay or
defraud any of its creditors.
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SCHEDULE IIX
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Representations and Warranties of the Servicer
Equity One-Delaware, in its capacity as Servicer ("SERVICER"), hereby
makes the representations and warranties set forth in this Schedule IIX to the
Depositor and the Trustee as of the Closing Date, or if so specified herein, as
of the Cut-off Date with respect to the Loans being conveyed by the Seller(s).
Capitalized terms used but not otherwise defined in this Schedule IIX shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"POOLING AND SERVICING AGREEMENT") relating to the above-referenced Series,
among Servicer, the Sellers identified therein, Popular ABS, Inc., as
depositor, and JPMorgan Chase Bank, N.A., as trustee. The term "AGREEMENT"
shall be used in this Schedule to refer to the Pooling and Servicing Agreement.
(1) Servicer 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 the Agreement to be conducted by Servicer 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 service the Loans in accordance with
the terms of the Agreement and to perform any of its other obligations
under the Agreement in accordance with the terms thereof.
(2) Servicer has the full corporate power and authority to service each Loan,
and to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by the Agreement and has duly authorized by all
necessary corporate action on the part of Servicer the execution,
delivery and performance of the Agreement; and the Agreement, assuming
the due authorization, execution and delivery thereof by the other
parties thereto, constitutes a legal, valid and binding obligation of
Servicer, enforceable against Servicer in accordance with its terms,
except that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of the Agreement by Servicer, the servicing of
the Loans by Servicer under the Agreement, the consummation of any other
of the transactions contemplated by the Agreement, and the fulfillment of
or compliance with the terms thereof are in the ordinary course of
business of Servicer and will not (a) result in a material breach of any
term or provision of the charter or by-laws of Servicer 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 Servicer is a party or by which it may
be bound or (c) constitute a material violation of any statute, order or
regulation applicable to Servicer of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Servicer; and Servicer 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 Servicer's ability to
perform or meet any of its obligations under the Agreement.
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(4) No litigation is pending or, to the best of Servicer's knowledge,
threatened, against Servicer that would materially and adversely affect
the execution, delivery or enforceability of the Agreement or the ability
of Servicer to service the Loans or to perform any of its other
obligations under the Agreement in accordance with the terms thereof.
(5) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by
Servicer of, or compliance by Servicer with, the Agreement or the
consummation of the transactions contemplated thereby, or if any such
consent, approval, authorization or order is required, Servicer has
obtained the same.
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SCHEDULE IIIA
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Loan Representations and Warranties of Equity One-Delaware
Equity One-Delaware ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIIA to the Depositor and the Trustee as
of the Closing Date, or if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller and the Mortgages, Mortgage Notes
and Mortgaged Properties related thereto. Capitalized terms used but not
otherwise defined in this Schedule IIIA shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "POOLING AND SERVICING
AGREEMENT") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Popular ABS, Inc., as depositor,
and JPMorgan Chase Bank, N.A., as trustee. The term "AGREEMENT" shall be used
in this Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement with respect to
the Loans is true and correct in all material respects as of the Closing
Date.
(2) As of the close of business on October 31, 2005, no Loan was 30 or more
days contractually past due (assuming 30 day months).
(3) None of the Loans are Second Lien Loans.
(4) No Loan had a Combined Loan-to-Value Ratio at origination in excess of
100%. For purposes of determining the date of origination on which each
Loan's Combined Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation 1.860G-
2(b) as of the Closing Date.
(5) Each Mortgage is a valid and enforceable first lien on the referenced
Mortgaged Property subject only to (a) the lien of non delinquent current
real property taxes and assessments, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage, such exceptions appearing
of record being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal made in connection with the
origination of the related Loan, and (c) other matters to which like
properties are commonly subject which do not materially interfere with
the benefits of the security intended to be provided by such Mortgage.
(6) Immediately prior to the assignment of the Loans to the Depositor, the
Seller had good title to, and was the sole owner of, each such Loan free
and clear of any pledge, lien, encumbrance or security interest and had
full right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same pursuant to
the Agreement.
(7) To the best of Seller's knowledge, there is no delinquent tax or
assessment lien against any Mortgaged Property.
(8) There is no valid right of rescission, offset, defense or counterclaim to
any Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
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(9) To the best of Seller's knowledge, there are no mechanics' liens or
claims for work, labor or material affecting any Mortgaged Property which
are or may be a lien prior to, or equal with, the lien of such Mortgage,
except those which are insured against by the title insurance policy
referred to in item (13) below.
(10) To the best of the Seller's knowledge, each Mortgaged Property is free of
material damage and in good repair.
(11) Each Loan at origination complied in all material respects with
applicable local, state and federal laws, including, without limitation,
usury, equal credit opportunity, real estate settlement procedures,
truth-in-lending and disclosure laws, and all applicable predatory and
abusive lending laws, and consummation of the transactions contemplated
hereby will not involve the violation of any such laws.
(12) As of the Closing Date, neither the Seller nor any prior holder of any
Mortgage has modified the Mortgage in any material respect (except that a
Loan may have been modified by a written instrument which has been
recorded or submitted for recordation, if necessary, to protect the
interests of the Certificateholders and the original or a copy of which
has been or shall be delivered to the Trustee); satisfied, canceled or
subordinated such Mortgage in whole or in part; released the related
Mortgaged Property in whole or in part from the lien of such Mortgage; or
executed any instrument of release, cancellation, modification or
satisfaction with respect thereto.
(13) For each Loan, a lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if applicable,
in an amount at least equal to the Cut-off Date Principal Balance of each
such Loan or a commitment (binder) to issue the same was effective on the
date of the origination of each Loan, each such policy is valid and
remains in full force and effect, and each such policy was issued by a
title insurer qualified to do business in the jurisdiction where the
related Mortgaged Property is located, which policy insures the Seller
and successor owners of indebtedness secured by the related insured
Mortgage, as to the applicable priority lien of the Mortgage subject to
the exceptions set forth in item (4) above; to the best of the Seller's
knowledge, no claims have been made under such mortgage title insurance
policy and no prior holder of the related Mortgage, including the Seller,
has done, by act or omission, anything which would impair the coverage of
such mortgage title insurance policy.
(14) To the best of the Seller's knowledge, all of the improvements which were
included for the purpose of determining the appraised value of each
Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining
properties encroach upon such Mortgaged Property.
(15) To the best of the Seller's knowledge, no improvement located on or being
part of any Mortgaged Property is in violation of any applicable zoning
law or regulation. To the best of the Seller's knowledge, all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of such Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities, unless the lack
thereof would not have a material adverse effect on the value of such
Mortgaged Property, and such Mortgaged Property is lawfully occupied
under applicable law.
(16) Each 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 and under applicable law. To the best of the
Seller's knowledge, all parties to such Mortgage Note and such
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Mortgage had legal capacity to execute such Mortgage Note and such
Mortgage and each such Mortgage Note and Mortgage have been duly and
properly executed by such parties.
(17) The proceeds of each Loan (other than certain amounts escrowed for home
improvements) have been fully disbursed and there is no requirement for
future advances thereunder. All costs, fees and expenses incurred in
making, or closing or recording such Loans were paid.
(18) Each Mortgage contains customary and enforceable provisions which render
the rights and remedies of the holder thereof adequate for the
realization against the related Mortgaged Property of the benefits of the
security, including, (a) in the case of a Mortgage designated as a deed
of trust, by trustee's sale and (b) otherwise by judicial foreclosure.
(19) With respect to each Mortgage constituting 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 such 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.
(20) Each Mortgage Note and each Mortgage is in substantially one of the forms
acceptable to FNMA or FHLMC, with such riders as have been acceptable to
FNMA or FHLMC, as the case may be.
(21) The origination, underwriting and collection practices used by the Seller
with respect to each Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(22) There is no pledged account or other security other than any Escrow
Account and real estate securing the Mortgagor's obligations.
(23) No Loan has a shared appreciation feature, or other contingent interest
feature.
(24) Each Loan contains a customary "due on sale" clause.
(25) To the best of Seller's knowledge: at the Cut-off Date, the improvements
on each Mortgaged Property were covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides for
fire and extended coverage and coverage for such other hazards as are
customary in the area where such Mortgaged Property is located in an
amount at least equal to the lesser of (a) the maximum insurable value of
the improvements on such Mortgaged Property or (b) (i) in the case of a
Loan secured by a Mortgage creating a first lien on such Mortgaged
Property, the original principal balance of such Loan, or (ii) in the
case of a Loan which is subject to a prior loan or prior loans, the
combined principal balances of such Loan and the prior loan(s). If such
Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the condominium unit. For all
Mortgages creating a first lien on the related Mortgaged Property, all
such individual insurance policies and all flood policies referred to in
item (25) below contain a standard mortgagee clause naming the Seller or
the original mortgagee, and its successors in interest, as mortgagee, and
the Seller has received no notice that any premiums due and payable
thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance at
the Mortgagor's cost and expense, and upon the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
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(26) If a Mortgaged Property is in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy in a form meeting the requirements of
the current guidelines of the Flood Insurance Administration was required
at closing with respect to such Mortgaged Property with a generally
acceptable carrier in an amount representing coverage not less than the
least of (a) the original outstanding principal balance of the related
Loan, (b) the minimum amount required to compensate for damage or loss on
a maximum insurable value basis or (c) the maximum amount of insurance
that is available under the Flood Disaster Protection Act of 1973, as
amended.
(27) To the best of Seller's knowledge, there is no proceeding occurring,
pending or threatened for the total or partial condemnation of any
Mortgaged Property.
(28) There is no material monetary default existing under any Mortgage or the
related Mortgage Note and, to the best of the Seller's knowledge, there
is 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 under such Mortgage or related
Mortgage Note; and the Seller has not waived any default, breach,
violation or event of acceleration.
(29) Each Mortgaged Property is improved by a one- to four-family residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(30) Each Loan is being serviced by the Servicer.
(31) Any future advances made prior to the Cut-off Date have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the related loan
schedule. The consolidated principal amount does not exceed the original
principal amount of such Loan. No Mortgage Note permits or obligates the
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
(32) To the best of Seller's knowledge, all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been
paid, except for items which have been assessed, but are not yet due and
payable. Except for (a) payments in the nature of escrow payments, and
(b) interest accruing from the date of any Mortgage Note or date of
disbursement of the related Mortgage proceeds, whichever is later, to the
day which precedes by one month the Due Date of the first installment of
principal and interest, including without limitation, taxes and insurance
payments, the Servicer has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required
by the related Mortgage.
(33) Each Loan was underwritten in all material respects in accordance with
the Seller's underwriting guidelines as set forth in the Prospectus
Supplement.
(34) An appraisal of each Mortgaged Property was obtained from a qualified
appraiser, duly appointed by the originator, who had no interest, direct
or indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of such Loan; such appraisal is in a form acceptable to
FNMA and FHLMC.
(35) No Loan is a graduated payment mortgage loan or a growing equity mortgage
loan, and no Loan is subject to a buydown or similar arrangement.
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(36) The Loans were selected from among the outstanding residential mortgage
loans in Seller's portfolio at the Closing Date as to which the
representations and warranties made as to such Loans set forth in this
Schedule IIIA can be made. Such selection was not made in a manner that
would adversely affect the interests of Certificateholders.
(37) Each Loan has a Due Date in the month of the first Distribution Date.
(38) Approximately 4.79% Loans (by principal balance) are Balloon Loans.
(39) No Loan is subject to negative amortization or deferred interest
payments.
(40) No Mortgagor has requested relief under the Relief Act.
(41) None of the Loans are retail installment contracts for goods or services
or are home improvement loans for goods or services, which would be
either "consumer credit contracts" or "purchase money loans" as such
terms are defined in 16 C.F.R. ss.433.1.
(42) No Mortgagor has or will have a claim or defense against Seller or any
assignor or assignee of Seller under any express or implied warranty with
respect to goods or services provided in connection with any Loan.
(43) Each Loan is a "qualified mortgage" for purposes of Section 860G(a)(3) of
the Code and Treasury Regulations Section 1.860G-2(a)(1) and (3).
(44) The Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(45) There exist no deficiencies with respect to escrow deposits and payments,
if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other
charges or payments due the Seller have been capitalized under any
Mortgage or related Mortgage Note.
(46) All Loans calculate interest utilizing the actuarial method.
(47) None of the Loans are subject to the Home Ownership & Equity Protection
Act of 1994.
(48) As of the Cut-off Date, the Mortgage Rate relating to each Loan that is
an adjustable rate mortgage loan has been adjusted in accordance with the
terms of the related Mortgage Note.
(49) Each Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to,
all applicable predatory and abusive lending laws.
(50) No Loan is classified and/or defined as (a) a "high cost home," "covered"
(excluding home loans defined as "covered home loans" pursuant to the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home," or "predatory"
loan under any applicable federal, state or local law (or is similarly
classified and/or defined using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees), or (b) a "High Cost Loan" or "Covered Loan," as applicable (as
such terms are defined in the then current Standard & Poor's LEVELS(R)
Glossary which is now Version 5.6c Revised, Appendix E).
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(51) No Loan originated on or after October 1, 2002, and before March 7, 2003,
is secured by property located in the State of Georgia, and no Loan
originated on or after March 7, 2003, is a "high cost home loan" as
defined under the Georgia Fair Lending Act.
(52) No Loan secured by property located in the State of Kentucky is a "high-
cost home loan" as defined in Kentucky House Xxxx 207.
(53) No Loan secured by property located in the State of New York (a) had an
original principal balance of $300,000 or less and (b) had an application
date on or after April 1, 2003, the terms of which loan equal or exceed
either the APR or the points and fees threshold for "high-cost home
loans," as defined in Section 6-L of the New York State Banking Law.
(54) No Loan secured by property located in the State of New Mexico is a
"high-cost home loan" as defined in the New Mexico Home Loan Protection
Act.
(55) No Loan secured by property located in the State of New Jersey is a
"high-cost home loan" as defined in the New Jersey Home Ownership
Security Act of 2002.
(56) No Loan secured by property located in the State of Illinois is in
violation of the provisions of the Illinois Interest Act.
(57) No Loan secured by property located in the Commonwealth of Massachusetts
is a "high cost home mortgage loan" as defined in the Massachusetts
Predatory Home Loan Practices Act.
(58) No Loan secured by property located in the State of Indiana is a "high-
cost home loan" as defined in the Indiana High Cost Home Loan Act.
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SCHEDULE IIIB
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Loan Representations and Warranties of Equity One-Minnesota
Equity One-Minnesota ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIIB to the Depositor and the Trustee as
of the Closing Date or, if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller and the Mortgages, Mortgage Notes
and Mortgaged Properties related thereto. Capitalized terms used but not
otherwise defined in this Schedule IIIB shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "POOLING AND SERVICING
AGREEMENT") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Popular ABS, Inc., as depositor,
and JPMorgan Chase Bank, N.A., as trustee. The term "Agreement" shall be used
in this Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement with respect to
the Loans is true and correct in all material respects as of the Closing
Date.
(2) As of the close of business on October 31, 2005, no Loan was 30 or more
days contractually past due (assuming 30 day months).
(3) None of the Loans are Second Lien Loans.
(4) No Loan had a Combined Loan-to-Value Ratio at origination in excess of
100%. For purposes of determining the date of origination on which each
Loan's Combined Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation 1.860G-
2(b) as of the Closing Date.
(5) Each Mortgage is a valid and enforceable first lien on the referenced
Mortgaged Property subject only to (a) the lien of non delinquent current
real property taxes and assessments, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage, such exceptions appearing
of record being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal made in connection with the
origination of the related Loan, and (c) other matters to which like
properties are commonly subject which do not materially interfere with
the benefits of the security intended to be provided by such Mortgage.
(6) Immediately prior to the assignment of the Loans to the Depositor, the
Seller had good title to, and was the sole owner of, each such Loan free
and clear of any pledge, lien, encumbrance or security interest and had
full right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same pursuant to
the Agreement.
(7) To the best of Seller's knowledge, there is no delinquent tax or
assessment lien against any Mortgaged Property.
(8) There is no valid right of rescission, offset, defense or counterclaim to
any Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
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(9) To the best of Seller's knowledge, there are no mechanics' liens or
claims for work, labor or material affecting any Mortgaged Property which
are or may be a lien prior to, or equal with, the lien of such Mortgage,
except those which are insured against by the title insurance policy
referred to in item (13) below.
(10) To the best of the Seller's knowledge, each Mortgaged Property is free of
material damage and in good repair.
(11) Each Loan at origination complied in all material respects with
applicable local, state and federal laws, including, without limitation,
usury, equal credit opportunity, real estate settlement procedures,
truth-in-lending and disclosure laws, and all applicable predatory and
abusive lending laws, and consummation of the transactions contemplated
hereby will not involve the violation of any such laws.
(12) As of the Closing Date, neither the Seller nor any prior holder of any
Mortgage has modified the Mortgage in any material respect (except that a
Loan may have been modified by a written instrument which has been
recorded or submitted for recordation, if necessary, to protect the
interests of the Certificateholders and the original or a copy of which
has been or shall be delivered to the Trustee); satisfied, canceled or
subordinated such Mortgage in whole or in part; released the related
Mortgaged Property in whole or in part from the lien of such Mortgage; or
executed any instrument of release, cancellation, modification or
satisfaction with respect thereto.
(13) For each Loan, a lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if applicable,
in an amount at least equal to the Cut-off Date Stated Principal Balance
of each such Loan or a commitment (binder) to issue the same was
effective on the date of the origination of each Loan, each such policy
is valid and remains in full force and effect, and each such policy was
issued by a title insurer qualified to do business in the jurisdiction
where the related Mortgaged Property is located, which policy insures the
Seller and successor owners of indebtedness secured by the related
insured Mortgage, as to the applicable priority lien of the Mortgage
subject to the exceptions set forth in item (4) above; to the best of the
Seller's knowledge, no claims have been made under such mortgage title
insurance policy and no prior holder of the related Mortgage, including
the Seller, has done, by act or omission, anything which would impair the
coverage of such mortgage title insurance policy.
(14) To the best of the Seller's knowledge, all of the improvements which were
included for the purpose of determining the appraised value of each
Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining
properties encroach upon such Mortgaged Property.
(15) To the best of the Seller's knowledge, no improvement located on or being
part of any Mortgaged Property is in violation of any applicable zoning
law or regulation. To the best of the Seller's knowledge, all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of such Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities, unless the lack
thereof would not have a material adverse effect on the value of such
Mortgaged Property, and such Mortgaged Property is lawfully occupied
under applicable law.
(16) Each 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 and under applicable law. To the best of the
Seller's knowledge, all parties to such Mortgage Note and such
S-IIIB-2
Mortgage had legal capacity to execute such Mortgage Note and such
Mortgage and each such Mortgage Note and Mortgage have been duly and
properly executed by such parties.
(17) The proceeds of each Loan (other than certain amounts escrowed for home
improvements) have been fully disbursed and there is no requirement for
future advances thereunder. All costs, fees and expenses incurred in
making, or closing or recording such Loans were paid.
(18) Each Mortgage contains customary and enforceable provisions which render
the rights and remedies of the holder thereof adequate for the
realization against the related Mortgaged Property of the benefits of the
security, including, (a) in the case of a Mortgage designated as a deed
of trust, by trustee's sale and (b) otherwise by judicial foreclosure.
(19) With respect to each Mortgage constituting 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 such 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.
(20) Each Mortgage Note and each Mortgage is in substantially one of the forms
acceptable to FNMA or FHLMC, with such riders as have been acceptable to
FNMA or FHLMC, as the case may be.
(21) The origination, underwriting and collection practices used by the Seller
with respect to each Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(22) There is no pledged account or other security other than any Escrow
Account and real estate securing the Mortgagor's obligations.
(23) No Loan has a shared appreciation feature, or other contingent interest
feature.
(24) Each Loan contains a customary "due on sale" clause.
(25) To the best of Seller's knowledge: at the Cut-off Date, the improvements
on each Mortgaged Property were covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides for
fire and extended coverage and coverage for such other hazards as are
customary in the area where such Mortgaged Property is located in an
amount at least equal to the lesser of (a) the maximum insurable value of
the improvements on such Mortgaged Property or (b) (i) in the case of a
Loan secured by a Mortgage creating a first lien on such Mortgaged
Property, the original principal balance of such Loan, or (ii) in the
case of a Loan which is subject to a prior loan or prior loans, the
combined principal balances of such Loan and the prior loan(s). If such
Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the condominium unit. For all
Mortgages creating a first lien on the related Mortgaged Property, all
such individual insurance policies and all flood policies referred to in
item (25) below contain a standard mortgagee clause naming the Seller or
the original mortgagee, and its successors in interest, as mortgagee, and
the Seller has received no notice that any premiums due and payable
thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance at
the Mortgagor's cost and expense, and upon the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
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(26) If a Mortgaged Property is in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy in a form meeting the requirements of
the current guidelines of the Flood Insurance Administration was required
at closing with respect to such Mortgaged Property with a generally
acceptable carrier in an amount representing coverage not less than the
least of (a) the original outstanding principal balance of the related
Loan, (b) the minimum amount required to compensate for damage or loss on
a maximum insurable value basis or (c) the maximum amount of insurance
that is available under the Flood Disaster Protection Act of 1973, as
amended.
(27) To the best of Seller's knowledge, there is no proceeding occurring,
pending or threatened for the total or partial condemnation of any
Mortgaged Property.
(28) There is no material monetary default existing under any Mortgage or the
related Mortgage Note and, to the best of the Seller's knowledge, there
is 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 under such Mortgage or related
Mortgage Note; and the Seller has not waived any default, breach,
violation or event of acceleration.
(29) Each Mortgaged Property is improved by a one- to four-family residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(30) Each Loan is being serviced by the Servicer.
(31) Any future advances made prior to the Cut-off Date have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the related loan
schedule. The consolidated principal amount does not exceed the original
principal amount of such Loan. No Mortgage Note permits or obligates the
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
(32) To the best of Seller's knowledge, all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been
paid, except for items which have been assessed, but are not yet due and
payable. Except for (a) payments in the nature of escrow payments, and
(b) interest accruing from the date of any Mortgage Note or date of
disbursement of the related Mortgage proceeds, whichever is later, to the
day which precedes by one month the Due Date of the first installment of
principal and interest, including without limitation, taxes and insurance
payments, the Servicer has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required
by the related Mortgage.
(33) Each Loan was underwritten in all material respects in accordance with
the Seller's underwriting guidelines as set forth in the Prospectus
Supplement.
(34) An appraisal of each Mortgaged Property was obtained from a qualified
appraiser, duly appointed by the originator, who had no interest, direct
or indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of such Loan; such appraisal is in a form acceptable to
FNMA and FHLMC.
(35) No Loan is a graduated payment mortgage loan or a growing equity mortgage
loan, and no Loan is subject to a buydown or similar arrangement.
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(36) The Loans were selected from among the outstanding residential mortgage
loans in Seller's portfolio at the Closing Date as to which the
representations and warranties made as to such Loans set forth in this
Schedule IIIB can be made. Such selection was not made in a manner that
would adversely affect the interests of Certificateholders.
(37) Each Loan has a Due Date in the month of the first Distribution Date.
(38) None of the Loans are Balloon Loans.
(39) No Loan is subject to negative amortization or deferred interest
payments.
(40) No Mortgagor has requested relief under the Relief Act.
(41) None of the Loans are retail installment contracts for goods or services
or are home improvement loans for goods or services, which would be
either "consumer credit contracts" or "purchase money loans" as such
terms are defined in 16 C.F.R. ss.433.1.
(42) No Mortgagor has or will have a claim or defense against Seller or any
assignor or assignee of Seller under any express or implied warranty with
respect to goods or services provided in connection with any Loan.
(43) Each Loan is a "qualified mortgage" for purposes of Section 860G(a)(3) of
the Code and Treasury Regulations Section 1.860G-2(a)(1) and (3).
(44) The Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(45) There exist no deficiencies with respect to escrow deposits and payments,
if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other
charges or payments due the Seller have been capitalized under any
Mortgage or related Mortgage Note.
(46) All Loans calculate interest utilizing the actuarial method.
(47) None of the Loans are subject to the Home Ownership & Equity Protection
Act of 1994.
(48) As of the Cut-off Date, the Mortgage Rate relating to each Loan that is
an adjustable rate mortgage loan has been adjusted in accordance with the
terms of the related Mortgage Note.
(49) Each Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to,
all applicable predatory and abusive lending laws.
(50) No Loan is classified and/or defined as (a) a "high cost home," "covered"
(excluding home loans defined as "covered home loans" pursuant to the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home," or "predatory"
loan under any applicable federal, state or local law (or is similarly
classified and/or defined using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees), or (b) a "High Cost Loan" or "Covered Loan," as applicable (as
such terms are defined in the then current Standard & Poor's LEVELS(R)
Glossary which is now Version 5.6c Revised, Appendix E).
S-IIIB-5
(51) No Loan originated on or after October 1, 2002, and before March 7, 2003,
is secured by property located in the State of Georgia, and no Loan
originated on or after March 7, 2003, is a "high cost home loan" as
defined under the Georgia Fair Lending Act.
(52) No Loan secured by property located in the State of Kentucky is a "high-
cost home loan" as defined in Kentucky House Xxxx 207.
(53) No Loan secured by property located in the State of New York (a) had an
original principal balance of $300,000 or less and (b) had an application
date on or after April 1, 2003, the terms of which loan equal or exceed
either the APR or the points and fees threshold for "high-cost home
loans," as defined in Section 6-L of the New York State Banking Law.
(54) No Loan secured by property located in the State of New Mexico is a
"high-cost home loan" as defined in the New Mexico Home Loan Protection
Act.
(55) No Loan secured by property located in the State of New Jersey is a
"high-cost home loan" as defined in the New Jersey Home Ownership
Security Act of 2002.
(56) No Loan secured by property located in the State of Illinois is in
violation of the provisions of the Illinois Interest Act.
(57) No Loan secured by property located in the Commonwealth of Massachusetts
is a "high cost home mortgage loan" as defined in the Massachusetts
Predatory Home Loan Practices Act.
(58) No Loan secured by property located in the State of Indiana is a "high-
cost home loan" as defined in the Indiana High Cost Home Loan Act.
S-IIIB-6
SCHEDULE IIIC
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Loan Representations and Warranties of Equity One-New Hampshire
Equity One-New Hampshire ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIIC to the Depositor and the Trustee as
of the Closing Date or, if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller and the Mortgages, Mortgage Notes
and Mortgaged Properties related thereto. Capitalized terms used but not
otherwise defined in this Schedule IIIC shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "POOLING AND SERVICING
AGREEMENT") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Popular ABS, Inc., as depositor,
and JPMorgan Chase Bank, N.A., as trustee. The term "Agreement" shall be used
in this Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement with respect to
the Loans is true and correct in all material respects as of the Closing
Date.
(2) As of the close of business on October 31, 2005, no Loan was 30 or more
days contractually past due (assuming 30 day months).
(3) None of the Loans are Second Lien Loans.
(4) No Loan had a Combined Loan-to-Value Ratio at origination in excess of
100%. For purposes of determining the date of origination on which each
Loan's Combined Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation 1.860G-
2(b) as of the Closing Date.
(5) Each Mortgage is a valid and enforceable first lien on the referenced
Mortgaged Property subject only to (a) the lien of non delinquent current
real property taxes and assessments, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage, such exceptions appearing
of record being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal made in connection with the
origination of the related Loan, and (c) other matters to which like
properties are commonly subject which do not materially interfere with
the benefits of the security intended to be provided by such Mortgage.
(6) Immediately prior to the assignment of the Loans to the Depositor, the
Seller had good title to, and was the sole owner of, each such Loan free
and clear of any pledge, lien, encumbrance or security interest and had
full right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same pursuant to
the Agreement.
(7) To the best of Seller's knowledge, there is no delinquent tax or
assessment lien against any Mortgaged Property.
(8) There is no valid right of rescission, offset, defense or counterclaim to
any Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
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(9) To the best of Seller's knowledge, there are no mechanics' liens or
claims for work, labor or material affecting any Mortgaged Property which
are or may be a lien prior to, or equal with, the lien of such Mortgage,
except those which are insured against by the title insurance policy
referred to in item (13) below.
(10) To the best of the Seller's knowledge, each Mortgaged Property is free of
material damage and in good repair.
(11) Each Loan at origination complied in all material respects with
applicable local, state and federal laws, including, without limitation,
usury, equal credit opportunity, real estate settlement procedures,
truth-in-lending and disclosure laws, and all applicable predatory and
abusive lending laws, and consummation of the transactions contemplated
hereby will not involve the violation of any such laws.
(12) As of the Closing Date, neither the Seller nor any prior holder of any
Mortgage has modified the Mortgage in any material respect (except that a
Loan may have been modified by a written instrument which has been
recorded or submitted for recordation, if necessary, to protect the
interests of the Certificateholders and the original or a copy of which
has been or shall be delivered to the Trustee); satisfied, canceled or
subordinated such Mortgage in whole or in part; released the related
Mortgaged Property in whole or in part from the lien of such Mortgage; or
executed any instrument of release, cancellation, modification or
satisfaction with respect thereto.
(13) For each Loan, a lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if applicable,
in an amount at least equal to the Cut-off Date Stated Principal Balance
of each such Loan or a commitment (binder) to issue the same was
effective on the date of the origination of each Loan, each such policy
is valid and remains in full force and effect, and each such policy was
issued by a title insurer qualified to do business in the jurisdiction
where the related Mortgaged Property is located, which policy insures the
Seller and successor owners of indebtedness secured by the related
insured Mortgage, as to the applicable priority lien of the Mortgage
subject to the exceptions set forth in item (4) above; to the best of the
Seller's knowledge, no claims have been made under such mortgage title
insurance policy and no prior holder of the related Mortgage, including
the Seller, has done, by act or omission, anything which would impair the
coverage of such mortgage title insurance policy.
(14) To the best of the Seller's knowledge, all of the improvements which were
included for the purpose of determining the appraised value of each
Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining
properties encroach upon such Mortgaged Property.
(15) To the best of the Seller's knowledge, no improvement located on or being
part of any Mortgaged Property is in violation of any applicable zoning
law or regulation. To the best of the Seller's knowledge, all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of such Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities, unless the lack
thereof would not have a material adverse effect on the value of such
Mortgaged Property, and such Mortgaged Property is lawfully occupied
under applicable law.
(16) Each 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 and under applicable law. To the best of the
Seller's knowledge, all parties to such Mortgage Note and such
S-IIIC-2
Mortgage had legal capacity to execute such Mortgage Note and such
Mortgage and each such Mortgage Note and Mortgage have been duly and
properly executed by such parties.
(17) The proceeds of each Loan (other than certain amounts escrowed for home
improvements) have been fully disbursed and there is no requirement for
future advances thereunder. All costs, fees and expenses incurred in
making, or closing or recording such Loans were paid.
(18) Each Mortgage contains customary and enforceable provisions which render
the rights and remedies of the holder thereof adequate for the
realization against the related Mortgaged Property of the benefits of the
security, including, (a) in the case of a Mortgage designated as a deed
of trust, by trustee's sale and (b) otherwise by judicial foreclosure.
(19) With respect to each Mortgage constituting 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 such 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.
(20) Each Mortgage Note and each Mortgage is in substantially one of the forms
acceptable to FNMA or FHLMC, with such riders as have been acceptable to
FNMA or FHLMC, as the case may be.
(21) The origination, underwriting and collection practices used by the Seller
with respect to each Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(22) There is no pledged account or other security other than any Escrow
Account and real estate securing the Mortgagor's obligations.
(23) No Loan has a shared appreciation feature, or other contingent interest
feature.
(24) Each Loan contains a customary "due on sale" clause.
(25) To the best of Seller's knowledge: at the Cut-off Date, the improvements
on each Mortgaged Property were covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides for
fire and extended coverage and coverage for such other hazards as are
customary in the area where such Mortgaged Property is located in an
amount at least equal to the lesser of (a) the maximum insurable value of
the improvements on such Mortgaged Property or (b) (i) in the case of a
Loan secured by a Mortgage creating a first lien on such Mortgaged
Property, the original principal balance of such Loan, or (ii) in the
case of a Loan which is subject to a prior loan or prior loans, the
combined principal balances of such Loan and the prior loan(s). If such
Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the condominium unit. For all
Mortgages creating a first lien on the related Mortgaged Property, all
such individual insurance policies and all flood policies referred to in
item (25) below contain a standard mortgagee clause naming the Seller or
the original mortgagee, and its successors in interest, as mortgagee, and
the Seller has received no notice that any premiums due and payable
thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance at
the Mortgagor's cost and expense, and upon the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
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(26) If a Mortgaged Property is in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy in a form meeting the requirements of
the current guidelines of the Flood Insurance Administration was required
at closing with respect to such Mortgaged Property with a generally
acceptable carrier in an amount representing coverage not less than the
least of (a) the original outstanding principal balance of the related
Loan, (b) the minimum amount required to compensate for damage or loss on
a maximum insurable value basis or (c) the maximum amount of insurance
that is available under the Flood Disaster Protection Act of 1973, as
amended.
(27) To the best of Seller's knowledge, there is no proceeding occurring,
pending or threatened for the total or partial condemnation of any
Mortgaged Property.
(28) There is no material monetary default existing under any Mortgage or the
related Mortgage Note and, to the best of the Seller's knowledge, there
is 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 under such Mortgage or related
Mortgage Note; and the Seller has not waived any default, breach,
violation or event of acceleration.
(29) Each Mortgaged Property is improved by a one- to four-family residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(30) Each Loan is being serviced by the Servicer.
(31) Any future advances made prior to the Cut-off Date have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the related loan
schedule. The consolidated principal amount does not exceed the original
principal amount of such Loan. No Mortgage Note permits or obligates the
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
(32) To the best of Seller's knowledge, all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been
paid, except for items which have been assessed, but are not yet due and
payable. Except for (a) payments in the nature of escrow payments, and
(b) interest accruing from the date of any Mortgage Note or date of
disbursement of the related Mortgage proceeds, whichever is later, to the
day which precedes by one month the Due Date of the first installment of
principal and interest, including without limitation, taxes and insurance
payments, the Servicer has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required
by the related Mortgage.
(33) Each Loan was underwritten in all material respects in accordance with
the Seller's underwriting guidelines as set forth in the Prospectus
Supplement.
(34) An appraisal of each Mortgaged Property was obtained from a qualified
appraiser, duly appointed by the originator, who had no interest, direct
or indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of such Loan; such appraisal is in a form acceptable to
FNMA and FHLMC.
(35) No Loan is a graduated payment mortgage loan or a growing equity mortgage
loan, and no Loan is subject to a buydown or similar arrangement.
S-IIIC-4
(36) The Loans were selected from among the outstanding residential mortgage
loans in Seller's portfolio at the Closing Date as to which the
representations and warranties made as to such Loans set forth in this
Schedule IIIC can be made. Such selection was not made in a manner that
would adversely affect the interests of Certificateholders.
(37) Each Loan has a Due Date in the month of the first Distribution Date.
(38) None of the Loans are Balloon Loans.
(39) No Loan is subject to negative amortization or deferred interest
payments.
(40) No Mortgagor has requested relief under the Relief Act.
(41) None of the Loans are retail installment contracts for goods or services
or are home improvement loans for goods or services, which would be
either "consumer credit contracts" or "purchase money loans" as such
terms are defined in 16 C.F.R. ss.433.1.
(42) No Mortgagor has or will have a claim or defense against Seller or any
assignor or assignee of Seller under any express or implied warranty with
respect to goods or services provided in connection with any Loan.
(43) Each Loan is a "qualified mortgage" for purposes of Section 860G(a)(3) of
the Code and Treasury Regulations Section 1.860G-2(a)(1) and (3).
(44) The Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(45) There exist no deficiencies with respect to escrow deposits and payments,
if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other
charges or payments due the Seller have been capitalized under any
Mortgage or related Mortgage Note.
(46) All Loans calculate interest utilizing the actuarial method.
(47) None of the Loans are subject to the Home Ownership & Equity Protection
Act of 1994.
(48) As of the Cut-off Date, the Mortgage Rate relating to each Loan that is
an adjustable rate mortgage loan has been adjusted in accordance with the
terms of the related Mortgage Note.
(49) Each Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to,
all applicable predatory and abusive lending laws.
(50) No Loan is classified and/or defined as (a) a "high cost home," "covered"
(excluding home loans defined as "covered home loans" pursuant to the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home," or "predatory"
loan under any applicable federal, state or local law (or is similarly
classified and/or defined using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees), or (b) a "High Cost Loan" or "Covered Loan," as applicable (as
such terms are defined in the then current Standard & Poor's LEVELS(R)
Glossary which is now Version 5.6c Revised, Appendix E).
S-IIIC-5
(51) No Loan originated on or after October 1, 2002, and before March 7, 2003,
is secured by property located in the State of Georgia, and no Loan
originated on or after March 7, 2003, is a "high cost home loan" as
defined under the Georgia Fair Lending Act.
(52) No Loan secured by property located in the State of Kentucky is a "high-
cost home loan" as defined in Kentucky House Xxxx 207.
(53) No Loan secured by property located in the State of New York (a) had an
original principal balance of $300,000 or less and (b) had an application
date on or after April 1, 2003, the terms of which loan equal or exceed
either the APR or the points and fees threshold for "high-cost home
loans," as defined in Section 6-L of the New York State Banking Law.
(54) No Loan secured by property located in the State of New Mexico is a
"high-cost home loan" as defined in the New Mexico Home Loan Protection
Act.
(55) No Loan secured by property located in the State of New Jersey is a
"high-cost home loan" as defined in the New Jersey Home Ownership
Security Act of 2002.
(56) No Loan secured by property located in the State of Illinois is in
violation of the provisions of the Illinois Interest Act.
(57) No Loan secured by property located in the Commonwealth of Massachusetts
is a "high cost home mortgage loan" as defined in the Massachusetts
Predatory Home Loan Practices Act.
(58) No Loan secured by property located in the State of Indiana is a "high-
cost home loan" as defined in the Indiana High Cost Home Loan Act.
S-IIIC-6
SCHEDULE IIID
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Loan Representations and Warranties of Equity One-Pennsylvania
Equity One-Pennsylvania ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIID to the Depositor and the Trustee as
of the Closing Date, or if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller and the Mortgages, Mortgage Notes
and Mortgaged Properties related thereto. Capitalized terms used but not
otherwise defined in this Schedule IIID shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "POOLING AND SERVICING
AGREEMENT") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Popular ABS, Inc., as depositor,
and JPMorgan Chase Bank, N.A., as trustee. The term "AGREEMENT" shall be used
in this Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement with respect to
the Loans is true and correct in all material respects as of the Closing
Date.
(2) As of the close of business on October 31, 2005, no Loan was 30 or more
days contractually past due (assuming 30 day months).
(3) None of the Loans are Second Lien Loans.
(4) No Loan had a Combined Loan-to-Value Ratio at origination in excess of
100%. For purposes of determining the date of origination on which each
Loan's Combined Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation 1.860G-
2(b) as of the Closing Date.
(5) Each Mortgage is a valid and enforceable first lien on the referenced
Mortgaged Property subject only to (a) the lien of non delinquent current
real property taxes and assessments, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage, such exceptions appearing
of record being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal made in connection with the
origination of the related Loan, and (c) other matters to which like
properties are commonly subject which do not materially interfere with
the benefits of the security intended to be provided by such Mortgage.
(6) Immediately prior to the assignment of the Loans to the Depositor, the
Seller had good title to, and was the sole owner of, each such Loan free
and clear of any pledge, lien, encumbrance or security interest and had
full right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same pursuant to
the Agreement.
(7) To the best of Seller's knowledge, there is no delinquent tax or
assessment lien against any Mortgaged Property.
(8) There is no valid right of rescission, offset, defense or counterclaim to
any Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
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(9) To the best of Seller's knowledge, there are no mechanics' liens or
claims for work, labor or material affecting any Mortgaged Property which
are or may be a lien prior to, or equal with, the lien of such Mortgage,
except those which are insured against by the title insurance policy
referred to in item (13) below.
(10) To the best of the Seller's knowledge, each Mortgaged Property is free of
material damage and in good repair.
(11) Each Loan at origination complied in all material respects with
applicable local, state and federal laws, including, without limitation,
usury, equal credit opportunity, real estate settlement procedures,
truth-in-lending and disclosure laws, and all applicable predatory and
abusive lending laws, and consummation of the transactions contemplated
hereby will not involve the violation of any such laws.
(12) As of the Closing Date, neither the Seller nor any prior holder of any
Mortgage has modified the Mortgage in any material respect (except that a
Loan may have been modified by a written instrument which has been
recorded or submitted for recordation, if necessary, to protect the
interests of the Certificateholders and the original or a copy of which
has been or shall be delivered to the Trustee); satisfied, canceled or
subordinated such Mortgage in whole or in part; released the related
Mortgaged Property in whole or in part from the lien of such Mortgage; or
executed any instrument of release, cancellation, modification or
satisfaction with respect thereto.
(13) For each Loan, a lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if applicable,
in an amount at least equal to the Cut-off Date Principal Balance of each
such Loan or a commitment (binder) to issue the same was effective on the
date of the origination of each Loan, each such policy is valid and
remains in full force and effect, and each such policy was issued by a
title insurer qualified to do business in the jurisdiction where the
related Mortgaged Property is located, which policy insures the Seller
and successor owners of indebtedness secured by the related insured
Mortgage, as to the applicable priority lien of the Mortgage subject to
the exceptions set forth in item (4) above; to the best of the Seller's
knowledge, no claims have been made under such mortgage title insurance
policy and no prior holder of the related Mortgage, including the Seller,
has done, by act or omission, anything which would impair the coverage of
such mortgage title insurance policy.
(14) To the best of the Seller's knowledge, all of the improvements which were
included for the purpose of determining the appraised value of each
Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining
properties encroach upon such Mortgaged Property.
(15) To the best of the Seller's knowledge, no improvement located on or being
part of any Mortgaged Property is in violation of any applicable zoning
law or regulation. To the best of the Seller's knowledge, all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of such Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities, unless the lack
thereof would not have a material adverse effect on the value of such
Mortgaged Property, and such Mortgaged Property is lawfully occupied
under applicable law.
(16) Each 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 and under applicable law. To the best of the
Seller's knowledge, all parties to such Mortgage Note and such
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Mortgage had legal capacity to execute such Mortgage Note and such
Mortgage and each such Mortgage Note and Mortgage have been duly and
properly executed by such parties.
(17) The proceeds of each Loan (other than certain amounts escrowed for home
improvements) have been fully disbursed and there is no requirement for
future advances thereunder. All costs, fees and expenses incurred in
making, or closing or recording such Loans were paid.
(18) Each Mortgage contains customary and enforceable provisions which render
the rights and remedies of the holder thereof adequate for the
realization against the related Mortgaged Property of the benefits of the
security, including, (a) in the case of a Mortgage designated as a deed
of trust, by trustee's sale and (b) otherwise by judicial foreclosure.
(19) With respect to each Mortgage constituting 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 such 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.
(20) Each Mortgage Note and each Mortgage is in substantially one of the forms
acceptable to FNMA or FHLMC, with such riders as have been acceptable to
FNMA or FHLMC, as the case may be.
(21) The origination, underwriting and collection practices used by the Seller
with respect to each Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(22) There is no pledged account or other security other than any Escrow
Account and real estate securing the Mortgagor's obligations.
(23) No Loan has a shared appreciation feature, or other contingent interest
feature.
(24) Each Loan contains a customary "due on sale" clause.
(25) To the best of Seller's knowledge: at the Cut-off Date, the improvements
on each Mortgaged Property were covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides for
fire and extended coverage and coverage for such other hazards as are
customary in the area where such Mortgaged Property is located in an
amount at least equal to the lesser of (a) the maximum insurable value of
the improvements on such Mortgaged Property or (b) (i) in the case of a
Loan secured by a Mortgage creating a first lien on such Mortgaged
Property, the original principal balance of such Loan, or (ii) in the
case of a Loan which is subject to a prior loan or prior loans, the
combined principal balances of such Loan and the prior loan(s). If such
Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the condominium unit. For all
Mortgages creating a first lien on the related Mortgaged Property, all
such individual insurance policies and all flood policies referred to in
item (25) below contain a standard mortgagee clause naming the Seller or
the original mortgagee, and its successors in interest, as mortgagee, and
the Seller has received no notice that any premiums due and payable
thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance at
the Mortgagor's cost and expense, and upon the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
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(26) If a Mortgaged Property is in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy in a form meeting the requirements of
the current guidelines of the Flood Insurance Administration was required
at closing with respect to such Mortgaged Property with a generally
acceptable carrier in an amount representing coverage not less than the
least of (a) the original outstanding principal balance of the related
Loan, (b) the minimum amount required to compensate for damage or loss on
a maximum insurable value basis or (c) the maximum amount of insurance
that is available under the Flood Disaster Protection Act of 1973, as
amended.
(27) To the best of Seller's knowledge, there is no proceeding occurring,
pending or threatened for the total or partial condemnation of any
Mortgaged Property.
(28) There is no material monetary default existing under any Mortgage or the
related Mortgage Note and, to the best of the Seller's knowledge, there
is 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 under such Mortgage or related
Mortgage Note; and the Seller has not waived any default, breach,
violation or event of acceleration.
(29) Each Mortgaged Property is improved by a one- to four-family residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(30) Each Loan is being serviced by the Servicer.
(31) Any future advances made prior to the Cut-off Date have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the related loan
schedule. The consolidated principal amount does not exceed the original
principal amount of such Loan. No Mortgage Note permits or obligates the
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
(32) To the best of Seller's knowledge, all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been
paid, except for items which have been assessed, but are not yet due and
payable. Except for (a) payments in the nature of escrow payments, and
(b) interest accruing from the date of any Mortgage Note or date of
disbursement of the related Mortgage proceeds, whichever is later, to the
day which precedes by one month the Due Date of the first installment of
principal and interest, including without limitation, taxes and insurance
payments, the Servicer has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required
by the related Mortgage.
(33) Each Loan was underwritten in all material respects in accordance with
the Seller's underwriting guidelines as set forth in the Prospectus
Supplement.
(34) An appraisal of each Mortgaged Property was obtained from a qualified
appraiser, duly appointed by the originator, who had no interest, direct
or indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of such Loan; such appraisal is in a form acceptable to
FNMA and FHLMC.
(35) No Loan is a graduated payment mortgage loan or a growing equity mortgage
loan, and no Loan is subject to a buydown or similar arrangement.
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(36) The Loans were selected from among the outstanding residential mortgage
loans in Seller's portfolio at the Closing Date as to which the
representations and warranties made as to such Loans set forth in this
Schedule IIID can be made. Such selection was not made in a manner that
would adversely affect the interests of Certificateholders.
(37) Each Loan has a Due Date in the month of the first Distribution Date.
(38) Approximately 6.90% Loans (by principal balance) are Balloon Loans.
(39) No Loan is subject to negative amortization or deferred interest
payments.
(40) No Mortgagor has requested relief under the Relief Act.
(41) None of the Loans are retail installment contracts for goods or services
or are home improvement loans for goods or services, which would be
either "consumer credit contracts" or "purchase money loans" as such
terms are defined in 16 C.F.R. ss.433.1.
(42) No Mortgagor has or will have a claim or defense against Seller or any
assignor or assignee of Seller under any express or implied warranty with
respect to goods or services provided in connection with any Loan.
(43) Each Loan is a "qualified mortgage" for purposes of Section 860G(a)(3) of
the Code and Treasury Regulations Section 1.860G-2(a)(1) and (3).
(44) The Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(45) There exist no deficiencies with respect to escrow deposits and payments,
if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other
charges or payments due the Seller have been capitalized under any
Mortgage or related Mortgage Note.
(46) All Loans calculate interest utilizing the actuarial method.
(47) None of the Loans are subject to the Home Ownership & Equity Protection
Act of 1994.
(48) As of the Cut-off Date, the Mortgage Rate relating to each Loan that is
an adjustable rate mortgage loan has been adjusted in accordance with the
terms of the related Mortgage Note.
(49) Each Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to,
all applicable predatory and abusive lending laws.
(50) No Loan is classified and/or defined as (a) a "high cost home," "covered"
(excluding home loans defined as "covered home loans" pursuant to the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home," or "predatory"
loan under any applicable federal, state or local law (or is similarly
classified and/or defined using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees), or (b) a "High Cost Loan" or "Covered Loan," as applicable (as
such terms are defined in the then current Standard & Poor's LEVELS(R)
Glossary which is now Version 5.6c Revised, Appendix E).
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(51) No Loan originated on or after October 1, 2002, and before March 7, 2003,
is secured by property located in the State of Georgia, and no Loan
originated on or after March 7, 2003, is a "high cost home loan" as
defined under the Georgia Fair Lending Act.
(52) No Loan secured by property located in the State of Kentucky is a "high-
cost home loan" as defined in Kentucky House Xxxx 207.
(53) No Loan secured by property located in the State of New York (a) had an
original principal balance of $300,000 or less and (b) had an application
date on or after April 1, 2003, the terms of which loan equal or exceed
either the APR or the points and fees threshold for "high-cost home
loans," as defined in Section 6-L of the New York State Banking Law.
(54) No Loan secured by property located in the State of New Mexico is a
"high-cost home loan" as defined in the New Mexico Home Loan Protection
Act.
(55) No Loan secured by property located in the State of New Jersey is a
"high-cost home loan" as defined in the New Jersey Home Ownership
Security Act of 2002.
(56) No Loan secured by property located in the State of Illinois is in
violation of the provisions of the Illinois Interest Act.
(57) No Loan secured by property located in the Commonwealth of Massachusetts
is a "high cost home mortgage loan" as defined in the Massachusetts
Predatory Home Loan Practices Act.
(58) No Loan secured by property located in the State of Indiana is a "high-
cost home loan" as defined in the Indiana High Cost Home Loan Act.
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SCHEDULE IIIE
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Loan Representations and Warranties of Popular Financial
Popular Financial ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIIE to the Depositor and the Trustee as
of the Closing Date, or if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller and the Mortgages, Mortgage Notes
and Mortgaged Properties related thereto. Capitalized terms used but not
otherwise defined in this Schedule IIIE shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "POOLING AND SERVICING
AGREEMENT") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Popular ABS, Inc., as depositor,
and JPMorgan Chase Bank, N.A., as trustee. The term "AGREEMENT" shall be used
in this Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement with respect to
the Loans is true and correct in all material respects as of the Closing
Date.
(2) As of the close of business on October 31, 2005, no Loan was 30 or more
days contractually past due (assuming 30 day months).
(3) None of the Loans are Second Lien Loans.
(4) No Loan had a Combined Loan-to-Value Ratio at origination in excess of
100%. For purposes of determining the date of origination on which each
Loan's Combined Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation 1.860G-
2(b) as of the Closing Date.
(5) Each Mortgage is a valid and enforceable first lien on the referenced
Mortgaged Property subject only to (a) the lien of non delinquent current
real property taxes and assessments, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage, such exceptions appearing
of record being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal made in connection with the
origination of the related Loan, and (c) other matters to which like
properties are commonly subject which do not materially interfere with
the benefits of the security intended to be provided by such Mortgage.
(6) Immediately prior to the assignment of the Loans to the Depositor, the
Seller had good title to, and was the sole owner of, each such Loan free
and clear of any pledge, lien, encumbrance or security interest and had
full right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same pursuant to
the Agreement.
(7) To the best of Seller's knowledge, there is no delinquent tax or
assessment lien against any Mortgaged Property.
(8) There is no valid right of rescission, offset, defense or counterclaim to
any Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
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(9) To the best of Seller's knowledge, there are no mechanics' liens or
claims for work, labor or material affecting any Mortgaged Property which
are or may be a lien prior to, or equal with, the lien of such Mortgage,
except those which are insured against by the title insurance policy
referred to in item (13) below.
(10) To the best of the Seller's knowledge, each Mortgaged Property is free of
material damage and in good repair.
(11) Each Loan at origination complied in all material respects with
applicable local, state and federal laws, including, without limitation,
usury, equal credit opportunity, real estate settlement procedures,
truth-in-lending and disclosure laws, and all applicable predatory and
abusive lending laws, and consummation of the transactions contemplated
hereby will not involve the violation of any such laws.
(12) As of the Closing Date, neither the Seller nor any prior holder of any
Mortgage has modified the Mortgage in any material respect (except that a
Loan may have been modified by a written instrument which has been
recorded or submitted for recordation, if necessary, to protect the
interests of the Certificateholders and the original or a copy of which
has been or shall be delivered to the Trustee); satisfied, canceled or
subordinated such Mortgage in whole or in part; released the related
Mortgaged Property in whole or in part from the lien of such Mortgage; or
executed any instrument of release, cancellation, modification or
satisfaction with respect thereto.
(13) For each Loan, a lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if applicable,
in an amount at least equal to the Cut-off Date Principal Balance of each
such Loan or a commitment (binder) to issue the same was effective on the
date of the origination of each Loan, each such policy is valid and
remains in full force and effect, and each such policy was issued by a
title insurer qualified to do business in the jurisdiction where the
related Mortgaged Property is located, which policy insures the Seller
and successor owners of indebtedness secured by the related insured
Mortgage, as to the applicable priority lien of the Mortgage subject to
the exceptions set forth in item (4) above; to the best of the Seller's
knowledge, no claims have been made under such mortgage title insurance
policy and no prior holder of the related Mortgage, including the Seller,
has done, by act or omission, anything which would impair the coverage of
such mortgage title insurance policy.
(14) To the best of the Seller's knowledge, all of the improvements which were
included for the purpose of determining the appraised value of each
Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining
properties encroach upon such Mortgaged Property.
(15) To the best of the Seller's knowledge, no improvement located on or being
part of any Mortgaged Property is in violation of any applicable zoning
law or regulation. To the best of the Seller's knowledge, all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of such Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities, unless the lack
thereof would not have a material adverse effect on the value of such
Mortgaged Property, and such Mortgaged Property is lawfully occupied
under applicable law.
(16) Each 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 and under applicable law. To the best of the
Seller's knowledge, all parties to such Mortgage Note and such
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Mortgage had legal capacity to execute such Mortgage Note and such
Mortgage and each such Mortgage Note and Mortgage have been duly and
properly executed by such parties.
(17) The proceeds of each Loan (other than certain amounts escrowed for home
improvements) have been fully disbursed and there is no requirement for
future advances thereunder. All costs, fees and expenses incurred in
making, or closing or recording such Loans were paid.
(18) Each Mortgage contains customary and enforceable provisions which render
the rights and remedies of the holder thereof adequate for the
realization against the related Mortgaged Property of the benefits of the
security, including, (a) in the case of a Mortgage designated as a deed
of trust, by trustee's sale and (b) otherwise by judicial foreclosure.
(19) With respect to each Mortgage constituting 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 such 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.
(20) Each Mortgage Note and each Mortgage is in substantially one of the forms
acceptable to FNMA or FHLMC, with such riders as have been acceptable to
FNMA or FHLMC, as the case may be.
(21) The origination, underwriting and collection practices used by the Seller
with respect to each Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(22) There is no pledged account or other security other than any Escrow
Account and real estate securing the Mortgagor's obligations.
(23) No Loan has a shared appreciation feature, or other contingent interest
feature.
(24) Each Loan contains a customary "due on sale" clause.
(25) To the best of Seller's knowledge: at the Cut-off Date, the improvements
on each Mortgaged Property were covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides for
fire and extended coverage and coverage for such other hazards as are
customary in the area where such Mortgaged Property is located in an
amount at least equal to the lesser of (a) the maximum insurable value of
the improvements on such Mortgaged Property or (b) (i) in the case of a
Loan secured by a Mortgage creating a first lien on such Mortgaged
Property, the original principal balance of such Loan, or (ii) in the
case of a Loan which is subject to a prior loan or prior loans, the
combined principal balances of such Loan and the prior loan(s). If such
Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the condominium unit. For all
Mortgages creating a first lien on the related Mortgaged Property, all
such individual insurance policies and all flood policies referred to in
item (25) below contain a standard mortgagee clause naming the Seller or
the original mortgagee, and its successors in interest, as mortgagee, and
the Seller has received no notice that any premiums due and payable
thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance at
the Mortgagor's cost and expense, and upon the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
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(26) If a Mortgaged Property is in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy in a form meeting the requirements of
the current guidelines of the Flood Insurance Administration was required
at closing with respect to such Mortgaged Property with a generally
acceptable carrier in an amount representing coverage not less than the
least of (a) the original outstanding principal balance of the related
Loan, (b) the minimum amount required to compensate for damage or loss on
a maximum insurable value basis or (c) the maximum amount of insurance
that is available under the Flood Disaster Protection Act of 1973, as
amended.
(27) To the best of Seller's knowledge, there is no proceeding occurring,
pending or threatened for the total or partial condemnation of any
Mortgaged Property.
(28) There is no material monetary default existing under any Mortgage or the
related Mortgage Note and, to the best of the Seller's knowledge, there
is 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 under such Mortgage or related
Mortgage Note; and the Seller has not waived any default, breach,
violation or event of acceleration.
(29) Each Mortgaged Property is improved by a one- to four-family residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(30) Each Loan is being serviced by the Servicer.
(31) Any future advances made prior to the Cut-off Date have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the related loan
schedule. The consolidated principal amount does not exceed the original
principal amount of such Loan. No Mortgage Note permits or obligates the
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
(32) To the best of Seller's knowledge, all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been
paid, except for items which have been assessed, but are not yet due and
payable. Except for (a) payments in the nature of escrow payments, and
(b) interest accruing from the date of any Mortgage Note or date of
disbursement of the related Mortgage proceeds, whichever is later, to the
day which precedes by one month the Due Date of the first installment of
principal and interest, including without limitation, taxes and insurance
payments, the Servicer has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required
by the related Mortgage.
(33) Each Loan was underwritten in all material respects in accordance with
the Seller's underwriting guidelines as set forth in the Prospectus
Supplement.
(34) An appraisal of each Mortgaged Property was obtained from a qualified
appraiser, duly appointed by the originator, who had no interest, direct
or indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of such Loan; such appraisal is in a form acceptable to
FNMA and FHLMC.
(35) No Loan is a graduated payment mortgage loan or a growing equity mortgage
loan, and no Loan is subject to a buydown or similar arrangement.
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(36) The Loans were selected from among the outstanding residential mortgage
loans in Seller's portfolio at the Closing Date as to which the
representations and warranties made as to such Loans set forth in this
Schedule IIIE can be made. Such selection was not made in a manner that
would adversely affect the interests of Certificateholders.
(37) Each Loan has a Due Date in the month of the first Distribution Date.
(38) Approximately 1.14% of the Loans (by principal balance) are Balloon
Loans.
(39) No Loan is subject to negative amortization or deferred interest
payments.
(40) No Mortgagor has requested relief under the Relief Act.
(41) None of the Loans are retail installment contracts for goods or services
or are home improvement loans for goods or services, which would be
either "consumer credit contracts" or "purchase money loans" as such
terms are defined in 16 C.F.R. ss.433.1.
(42) No Mortgagor has or will have a claim or defense against Seller or any
assignor or assignee of Seller under any express or implied warranty with
respect to goods or services provided in connection with any Loan.
(43) Each Loan is a "qualified mortgage" for purposes of Section 860G(a)(3) of
the Code and Treasury Regulations Section 1.860G-2(a)(1) and (3).
(44) The Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(45) There exist no deficiencies with respect to escrow deposits and payments,
if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other
charges or payments due the Seller have been capitalized under any
Mortgage or related Mortgage Note.
(46) All Loans calculate interest utilizing the actuarial method.
(47) None of the Loans are subject to the Home Ownership & Equity Protection
Act of 1994.
(48) As of the Cut-off Date, the Mortgage Rate relating to each Loan that is
an adjustable rate mortgage loan has been adjusted in accordance with the
terms of the related Mortgage Note.
(49) Each Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to,
all applicable predatory and abusive lending laws.
(50) No Loan is classified and/or defined as (a) a "high cost home," "covered"
(excluding home loans defined as "covered home loans" pursuant to the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home," or "predatory"
loan under any applicable federal, state or local law (or is similarly
classified and/or defined using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees), or (b) a "High Cost Loan" or "Covered Loan," as applicable (as
such terms are defined in the then current Standard & Poor's LEVELS(R)
Glossary which is now Version 5.6c Revised, Appendix E).
S-IIIE-5
(51) No Loan originated on or after October 1, 2002, and before March 7, 2003,
is secured by property located in the State of Georgia, and no Loan
originated on or after March 7, 2003, is a "high cost home loan" as
defined under the Georgia Fair Lending Act.
(52) No Loan secured by property located in the State of Kentucky is a "high-
cost home loan" as defined in Kentucky House Xxxx 207.
(53) No Loan secured by property located in the State of New York (a) had an
original principal balance of $300,000 or less and (b) had an application
date on or after April 1, 2003, the terms of which loan equal or exceed
either the APR or the points and fees threshold for "high-cost home
loans," as defined in Section 6-L of the New York State Banking Law.
(54) No Loan secured by property located in the State of New Mexico is a
"high-cost home loan" as defined in the New Mexico Home Loan Protection
Act.
(55) No Loan secured by property located in the State of New Jersey is a
"high-cost home loan" as defined in the New Jersey Home Ownership
Security Act of 2002.
(56) No Loan secured by property located in the State of Illinois is in
violation of the provisions of the Illinois Interest Act.
(57) No Loan secured by property located in the Commonwealth of Massachusetts
is a "high cost home mortgage loan" as defined in the Massachusetts
Predatory Home Loan Practices Act.
(58) No Loan secured by property located in the State of Indiana is a "high-
cost home loan" as defined in the Indiana High Cost Home Loan Act.
S-IIIE-6
SCHEDULE IIIF
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
Loan Representations and Warranties of Popular Funding
Popular Funding ("SELLER") hereby makes the representations and
warranties set forth in this Schedule IIIF to the Depositor and the Trustee as
of the Closing Date, or if so specified herein, as of the Cut-off Date with
respect to the Loans being conveyed by Seller and the Mortgages, Mortgage Notes
and Mortgaged Properties related thereto. Capitalized terms used but not
otherwise defined in this Schedule IIIF shall have the meanings ascribed
thereto in the Pooling and Servicing Agreement (the "POOLING AND SERVICING
AGREEMENT") relating to the above-referenced Series, among Seller, the other
Sellers and the Servicer identified therein, Popular ABS, Inc., as depositor,
and JPMorgan Chase Bank, N.A., as trustee. The term "AGREEMENT" shall be used
in this Schedule to refer to the Pooling and Servicing Agreement.
(1) The information set forth on Schedule I to the Agreement with respect to
the Loans is true and correct in all material respects as of the Closing
Date.
(2) As of the close of business on October 31, 2005, no Loan was 30 or more
days contractually past due (assuming 30 day months).
(3) None of the Loans are Second Lien Loans.
(4) No Loan had a Combined Loan-to-Value Ratio at origination in excess of
100%. For purposes of determining the date of origination on which each
Loan's Combined Loan-to-Value Ratio is measured, no Loan has been
significantly modified within the meaning of Treasury Regulation 1.860G-
2(b) as of the Closing Date.
(5) Each Mortgage is a valid and enforceable first lien on the referenced
Mortgaged Property subject only to (a) the lien of non delinquent current
real property taxes and assessments, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of recording of such Mortgage, such exceptions appearing
of record being acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal made in connection with the
origination of the related Loan, and (c) other matters to which like
properties are commonly subject which do not materially interfere with
the benefits of the security intended to be provided by such Mortgage.
(6) Immediately prior to the assignment of the Loans to the Depositor, the
Seller had good title to, and was the sole owner of, each such Loan free
and clear of any pledge, lien, encumbrance or security interest and had
full right and authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign the same pursuant to
the Agreement.
(7) To the best of Seller's knowledge, there is no delinquent tax or
assessment lien against any Mortgaged Property.
(8) There is no valid right of rescission, offset, defense or counterclaim to
any Mortgage Note or Mortgage, including the obligation of the Mortgagor
to pay the unpaid principal of or interest on such Mortgage Note.
S-IIIF-1
(9) To the best of Seller's knowledge, there are no mechanics' liens or
claims for work, labor or material affecting any Mortgaged Property which
are or may be a lien prior to, or equal with, the lien of such Mortgage,
except those which are insured against by the title insurance policy
referred to in item (13) below.
(10) To the best of the Seller's knowledge, each Mortgaged Property is free of
material damage and in good repair.
(11) Each Loan at origination complied in all material respects with
applicable local, state and federal laws, including, without limitation,
usury, equal credit opportunity, real estate settlement procedures,
truth-in-lending and disclosure laws, and all applicable predatory and
abusive lending laws, and consummation of the transactions contemplated
hereby will not involve the violation of any such laws.
(12) As of the Closing Date, neither the Seller nor any prior holder of any
Mortgage has modified the Mortgage in any material respect (except that a
Loan may have been modified by a written instrument which has been
recorded or submitted for recordation, if necessary, to protect the
interests of the Certificateholders and the original or a copy of which
has been or shall be delivered to the Trustee); satisfied, canceled or
subordinated such Mortgage in whole or in part; released the related
Mortgaged Property in whole or in part from the lien of such Mortgage; or
executed any instrument of release, cancellation, modification or
satisfaction with respect thereto.
(13) For each Loan, a lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if applicable,
in an amount at least equal to the Cut-off Date Principal Balance of each
such Loan or a commitment (binder) to issue the same was effective on the
date of the origination of each Loan, each such policy is valid and
remains in full force and effect, and each such policy was issued by a
title insurer qualified to do business in the jurisdiction where the
related Mortgaged Property is located, which policy insures the Seller
and successor owners of indebtedness secured by the related insured
Mortgage, as to the applicable priority lien of the Mortgage subject to
the exceptions set forth in item (4) above; to the best of the Seller's
knowledge, no claims have been made under such mortgage title insurance
policy and no prior holder of the related Mortgage, including the Seller,
has done, by act or omission, anything which would impair the coverage of
such mortgage title insurance policy.
(14) To the best of the Seller's knowledge, all of the improvements which were
included for the purpose of determining the appraised value of each
Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining
properties encroach upon such Mortgaged Property.
(15) To the best of the Seller's knowledge, no improvement located on or being
part of any Mortgaged Property is in violation of any applicable zoning
law or regulation. To the best of the Seller's knowledge, all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of such Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities, unless the lack
thereof would not have a material adverse effect on the value of such
Mortgaged Property, and such Mortgaged Property is lawfully occupied
under applicable law.
(16) Each 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 and under applicable law. To the best of the
Seller's knowledge, all parties to such Mortgage Note and such
S-IIIF-2
Mortgage had legal capacity to execute such Mortgage Note and such
Mortgage and each such Mortgage Note and Mortgage have been duly and
properly executed by such parties.
(17) The proceeds of each Loan (other than certain amounts escrowed for home
improvements) have been fully disbursed and there is no requirement for
future advances thereunder. All costs, fees and expenses incurred in
making, or closing or recording such Loans were paid.
(18) Each Mortgage contains customary and enforceable provisions which render
the rights and remedies of the holder thereof adequate for the
realization against the related Mortgaged Property of the benefits of the
security, including, (a) in the case of a Mortgage designated as a deed
of trust, by trustee's sale and (b) otherwise by judicial foreclosure.
(19) With respect to each Mortgage constituting 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 such 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.
(20) Each Mortgage Note and each Mortgage is in substantially one of the forms
acceptable to FNMA or FHLMC, with such riders as have been acceptable to
FNMA or FHLMC, as the case may be.
(21) The origination, underwriting and collection practices used by the Seller
with respect to each Loan have been in all respects legal, prudent and
customary in the mortgage lending and servicing business.
(22) There is no pledged account or other security other than any Escrow
Account and real estate securing the Mortgagor's obligations.
(23) No Loan has a shared appreciation feature, or other contingent interest
feature.
(24) Each Loan contains a customary "due on sale" clause.
(25) To the best of Seller's knowledge: at the Cut-off Date, the improvements
on each Mortgaged Property were covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides for
fire and extended coverage and coverage for such other hazards as are
customary in the area where such Mortgaged Property is located in an
amount at least equal to the lesser of (a) the maximum insurable value of
the improvements on such Mortgaged Property or (b) (i) in the case of a
Loan secured by a Mortgage creating a first lien on such Mortgaged
Property, the original principal balance of such Loan, or (ii) in the
case of a Loan which is subject to a prior loan or prior loans, the
combined principal balances of such Loan and the prior loan(s). If such
Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the condominium unit. For all
Mortgages creating a first lien on the related Mortgaged Property, all
such individual insurance policies and all flood policies referred to in
item (25) below contain a standard mortgagee clause naming the Seller or
the original mortgagee, and its successors in interest, as mortgagee, and
the Seller has received no notice that any premiums due and payable
thereon have not been paid; the Mortgage obligates the Mortgagor
thereunder to maintain all such insurance including flood insurance at
the Mortgagor's cost and expense, and upon the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor.
S-IIIF-3
(26) If a Mortgaged Property is in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood
hazards, a flood insurance policy in a form meeting the requirements of
the current guidelines of the Flood Insurance Administration was required
at closing with respect to such Mortgaged Property with a generally
acceptable carrier in an amount representing coverage not less than the
least of (a) the original outstanding principal balance of the related
Loan, (b) the minimum amount required to compensate for damage or loss on
a maximum insurable value basis or (c) the maximum amount of insurance
that is available under the Flood Disaster Protection Act of 1973, as
amended.
(27) To the best of Seller's knowledge, there is no proceeding occurring,
pending or threatened for the total or partial condemnation of any
Mortgaged Property.
(28) There is no material monetary default existing under any Mortgage or the
related Mortgage Note and, to the best of the Seller's knowledge, there
is 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 under such Mortgage or related
Mortgage Note; and the Seller has not waived any default, breach,
violation or event of acceleration.
(29) Each Mortgaged Property is improved by one- to four-family residential
dwelling including condominium units, which, to the best of Seller's
knowledge, does not include cooperatives or mobile homes and does not
constitute other than real property under state law.
(30) Each Loan is being serviced by the Servicer.
(31) Any future advances made prior to the Cut-off Date have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the related loan
schedule. The consolidated principal amount does not exceed the original
principal amount of such Loan. No Mortgage Note permits or obligates the
Servicer to make future advances to the Mortgagor at the option of the
Mortgagor.
(32) To the best of Seller's knowledge, all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been
paid, except for items which have been assessed, but are not yet due and
payable. Except for (a) payments in the nature of escrow payments, and
(b) interest accruing from the date of any Mortgage Note or date of
disbursement of the related Mortgage proceeds, whichever is later, to the
day which precedes by one month the Due Date of the first installment of
principal and interest, including without limitation, taxes and insurance
payments, the Servicer has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required
by the related Mortgage.
(33) Each Loan was underwritten in all material respects in accordance with
the Seller's underwriting guidelines as set forth in the Prospectus
Supplement.
(34) An appraisal of each Mortgaged Property was obtained from a qualified
appraiser, duly appointed by the originator, who had no interest, direct
or indirect, in the Mortgaged Property or in any loan made on the
security thereof, and whose compensation is not affected by the approval
or disapproval of such Loan; such appraisal is in a form acceptable to
FNMA and FHLMC.
(35) No Loan is a graduated payment mortgage loan or a growing equity mortgage
loan, and no Loan is subject to a buydown or similar arrangement.
S-IIIF-4
(36) The Loans were selected from among the outstanding residential mortgage
loans in Seller's portfolio at the Closing Date as to which the
representations and warranties made as to such Loans set forth in this
Schedule IIIF can be made. Such selection was not made in a manner that
would adversely affect the interests of Certificateholders.
(37) Each Loan has a Due Date in the month of the first Distribution Date.
(38) Approximately 2.01% of the Loans (by principal balance) are Balloon
Loans.
(39) No Loan is subject to negative amortization or deferred interest
payments.
(40) No Mortgagor has requested relief under the Relief Act.
(41) None of the Loans are retail installment contracts for goods or services
or are home improvement loans for goods or services, which would be
either "consumer credit contracts" or "purchase money loans" as such
terms are defined in 16 C.F.R. ss.433.1.
(42) No Mortgagor has or will have a claim or defense against Seller or any
assignor or assignee of Seller under any express or implied warranty with
respect to goods or services provided in connection with any Loan.
(43) Each Loan is a "qualified mortgage" for purposes of Section 860G(a)(3) of
the Code and Treasury Regulations Section 1.860G-2(a)(1) and (3).
(44) The Loans, individually and in the aggregate, conform in all material
respects to the descriptions thereof in the Prospectus Supplement.
(45) There exist no deficiencies with respect to escrow deposits and payments,
if such are required, for which customary arrangements for repayment
thereof have not been made, and no escrow deposits or payments of other
charges or payments due the Seller have been capitalized under any
Mortgage or related Mortgage Note.
(46) All Loans calculate interest utilizing the actuarial method.
(47) None of the Loans are subject to the Home Ownership & Equity Protection
Act of 1994.
(48) As of the Cut-off Date, the Mortgage Rate relating to each Loan that is
an adjustable rate mortgage loan has been adjusted in accordance with the
terms of the related Mortgage Note.
(49) Each Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to,
all applicable predatory and abusive lending laws.
(50) No Loan is classified and/or defined as (a) a "high cost home," "covered"
(excluding home loans defined as "covered home loans" pursuant to the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home," or "predatory"
loan under any applicable federal, state or local law (or is similarly
classified and/or defined using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees), or (b) a "High Cost Loan" or "Covered Loan," as applicable (as
such terms are defined in the then current Standard & Poor's LEVELS(R)
Glossary which is now Version 5.6c Revised, Appendix E).
S-IIIF-5
(51) No Loan originated on or after October 1, 2002, and before March 7, 2003,
is secured by property located in the State of Georgia, and no Loan
originated on or after March 7, 2003, is a "high cost home loan" as
defined under the Georgia Fair Lending Act.
(52) No Loan secured by property located in the State of Kentucky is a "high-
cost home loan" as defined in Kentucky House Xxxx 207.
(53) No Loan secured by property located in the State of New York (a) had an
original principal balance of $300,000 or less and (b) had an application
date on or after April 1, 2003, the terms of which loan equal or exceed
either the APR or the points and fees threshold for "high-cost home
loans," as defined in Section 6-L of the New York State Banking Law.
(54) No Loan secured by property located in the State of New Mexico is a
"high-cost home loan" as defined in the New Mexico Home Loan Protection
Act.
(55) No Loan secured by property located in the State of New Jersey is a
"high-cost home loan" as defined in the New Jersey Home Ownership
Security Act of 2002.
(56) No Loan secured by property located in the State of Illinois is in
violation of the provisions of the Illinois Interest Act.
(57) No Loan secured by property located in the Commonwealth of Massachusetts
is a "high cost home mortgage loan" as defined in the Massachusetts
Predatory Home Loan Practices Act.
(58) No Loan secured by property located in the State of Indiana is a "high-
cost home loan" as defined in the Indiana High Cost Home Loan Act.
S-IIIF-6
SCHEDULE IV
LIST OF FINANCING STATEMENTS:
PERFECTION OF GRANT OF SECURITY INTEREST
BY SELLERS TO DEPOSITOR
SELLER LOCATION
----------------------------------------- -----------------------------------------------------------------
Equity One, Inc., a Delaware corporation Secretary of State of the State of Delaware
Equity One, Incorporated Secretary of the Commonwealth of the Commonwealth of Pennsylvania
Equity One, Inc., a Minnesota corporation Secretary of State of Minnesota
Equity One Consumer Loan Company, Inc. Secretary of State of New Hampshire
Popular Financial Services, LLC Secretary of State of the State of Delaware
Popular Financial Funding, LLC Secretary of State of the State of Delaware
S-IV-1
SCHEDULE V
LIST OF FINANCING STATEMENTS:
PERFECTION OF GRANT OF SECURITY INTEREST
BY DEPOSITOR TO TRUSTEE
DEPOSITOR LOCATION
----------------- -------------------------------------------
Popular ABS, Inc. Secretary of State of the State of Delaware
S-V-1
SCHEDULE VI
LIST OF FINANCING STATEMENTS:
PERFECTION OF SALE
BY SELLERS TO DEPOSITOR
SELLER LOCATION
----------------------------------------- -----------------------------------------------------------------
Equity One, Inc., a Delaware corporation Secretary of State of the State of Delaware
Equity One, Incorporated Secretary of the Commonwealth of the Commonwealth of Pennsylvania
Equity One, Inc., a Minnesota corporation Secretary of State of Minnesota
Equity One Consumer Loan Company, Inc. Secretary of State of New Hampshire
Popular Financial Services, LLC Secretary of State of the State of Delaware
Popular Financial Funding, LLC Secretary of State of the State of Delaware
S-VI-1
SCHEDULE VII
LIST OF FINANCING STATEMENTS:
PERFECTION OF SALE
BY DEPOSITOR TO TRUSTEE
DEPOSITOR LOCATION
----------------- -------------------------------------------
Popular ABS, Inc. Secretary of State of the State of Delaware
S-VII-1
EXHIBIT A-1
Form of Class A-[] Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE 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. :
Cut-off Date: : November 1, 2005
First Distribution Date: : December 27, 2005
Initial Certificate Balance : $
of this Certificate
("DENOMINATION")
Initial Class Certificate Balance : $
of all Certificates of
this Class:
Pass-Through Rate : %
CUSIP :
ISIN :
Popular ABS, Inc.
Mortgage Pass-Through Certificates, Series 2005-D
Class A-[]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of fixed and adjustable rate mortgage
loans (collectively, the "LOANS").
Popular ABS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This
A-1-1
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Sellers, the Servicer or the Trustee referred
to below or any of their respective affiliates. Neither this Certificate nor
the Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that --------- is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balances of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Loans
deposited by Popular ABS, Inc. (the "DEPOSITOR"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "AGREEMENT") among the Depositor, Equity One, Inc., a
Delaware corporation, Popular Financial Funding, LLC, Equity One, Inc., a
Minnesota corporation, Equity One Consumer Loan Company, Inc., Equity One,
Incorporated and Popular Financial Services, LLC, as sellers (in such capacity,
collectively, the "SELLERS"), Equity One, Inc., a Delaware corporation, as
servicer (in such capacity, the "SERVICER"), 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 in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose unless manually countersigned by an authorized signatory
of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated ---------, 20 ---- JPMorgan Chase Bank, N.A.,
Countersigned: as Trustee
By:----------------- By:-----------------
Authorized Signatory of
JPMorgan Chase Bank, N.A.,
as Trustee
X-0-0
XXXXXXX X-0
RESERVED
X-0-0
XXXXXXX X-0
Form of Class M-[] Certificate
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE 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 CLASS M-[] CERTIFICATE IS SUBORDINATE TO THE [SENIOR CERTIFICATES] [SENIOR
CERTIFICATES AND THE CLASS M-1 CERTIFICATES] [SENIOR CERTIFICATES, THE CLASS M-
1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES] [SENIOR CERTIFICATES, THE CLASS
M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES] OF
THIS SERIES TO THE EXTENT DESCRIBED HEREIN AND IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
Certificate No. :
Cut-off Date: : November 1, 2005
First Distribution Date: : December 27, 2005
Initial Certificate Balance : $
of this Certificate
("DENOMINATION")
Initial Class Certificate Balance : $
of all Certificates of
this Class:
Pass-Through Rate : %
CUSIP :
ISIN :
Popular ABS, Inc.
Mortgage Pass-Through Certificates, Series 2005-D
Class M-[]
A-3-1
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of fixed and adjustable rate mortgage
loans (collectively, the "LOANS").
Popular ABS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the Sellers, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that ---------- is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balances of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Loans
deposited by Popular ABS, Inc. (the "DEPOSITOR"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "AGREEMENT") among the Depositor, Equity One, Inc., a
Delaware corporation, Popular Financial Funding, LLC, Equity One, Inc., a
Minnesota corporation, Equity One Consumer Loan Company, Inc., Equity One,
Incorporated and Popular Financial Services, LLC, as sellers (in such capacity,
collectively, the "SELLERS"), Equity One, Inc., a Delaware corporation, as
servicer (in such capacity, the "SERVICER"), 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 in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated ---------, 20 ---- JPMorgan Chase Bank, N.A.,
Countersigned: as Trustee
By:----------------- By:-----------------
Authorized Signatory of
JPMorgan Chase Bank, N.A.,
as Trustee
X-0-0
XXXXXXX X-0
Form of Class B-[] Certificate
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE 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 CLASS B-[] CERTIFICATE IS SUBORDINATE TO THE [SENIOR CERTIFICATES, THE
CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES,
THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE CLASS M-6
CERTIFICATES] [SENIOR CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2
CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS
M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES AND THE CLASS B-1 CERTIFICATES]
[SENIOR CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES,
THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5
CERTIFICATES, THE CLASS M-6 CERTIFICATES, CLASS B-1 CERTIFICATES AND THE CLASS
B-2 CERTIFICATES] [SENIOR CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS
M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE
CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, CLASS B-1 CERTIFICATES, THE
CLASS B-2 AND THE CLASS B-3 CERTIFICATES] OF THIS SERIES TO THE EXTENT
DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
Certificate No. :
Cut-off Date: : November 1, 2005
First Distribution Date: : December 27, 2005
Initial Certificate Balance : $
of this Certificate
("DENOMINATION")
Initial Class Certificate Balance : $
of all Certificates of
this Class:
Pass-Through Rate : %
CUSIP :
A-4-1
ISIN :
Popular ABS, Inc.
Mortgage Pass-Through Certificates, Series 2005-D
Class B-[]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of fixed and adjustable rate mortgage
loans (collectively, the "LOANS").
Popular ABS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less than
the Certificate Balance as set forth herein. This Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the Sellers, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that ---------- is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balances of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Loans
deposited by Popular ABS, Inc. (the "DEPOSITOR"). The Trust Fund was created
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the "AGREEMENT") among the Depositor, Equity One, Inc., a
Delaware corporation, Popular Financial Funding, LLC, Equity One, Inc., a
Minnesota corporation, Equity One Consumer Loan Company, Inc., Equity One,
Incorporated and Popular Financial Services, LLC, as sellers (in such capacity,
collectively, the "SELLERS"), Equity One, Inc., a Delaware corporation, as
servicer (in such capacity, the "SERVICER"), 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 in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated ---------, 20 ---- JPMorgan Chase Bank, N.A.,
Countersigned: as Trustee
By:----------------- By:-----------------
Authorized Signatory of
JPMorgan Chase Bank, N.A.,
as Trustee
X-0-0
XXXXXXX X-0
Form of Class R Certificate
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE REPRESENTS THE "TAX MATTERS PERSON RESIDUAL INTEREST" ISSUED
UNDER THE AGREEMENT REFERRED TO BELOW AND MAY NOT BE TRANSFERRED TO ANY PERSON
EXCEPT IN CONNECTION WITH THE ASSUMPTION BY THE TRANSFEREE OF THE DUTIES OF THE
SERVICER UNDER SUCH AGREEMENT.]
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT TO
SECTION 4975 OF THE CODE, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO THE CODE WITHOUT THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID
AND OF NO EFFECT.
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 THE AGREEMENT REFERRED TO HEREIN.
B-1-1
Certificate No. :
Cut-off Date : November 1, 2005
Popular ABS, Inc.
Mortgage Pass-Through Certificates, Series 2005-D
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of fixed and adjustable rate mortgage
loans (collectively, the "LOANS").
Popular ABS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Sellers, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Loans are guaranteed or insured by any governmental agency
or instrumentality.
This certifies that --------- is the registered owner of the Percentage
Interest (set forth on the face hereof) in certain monthly distributions with
respect to a Trust Fund consisting of the Loans deposited by Popular ABS, Inc.
(the "DEPOSITOR"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"AGREEMENT") among the Depositor, Equity One, Inc., a Delaware corporation,
Popular Financial Funding, LLC, Equity One, Inc., a Minnesota corporation,
Equity One Consumer Loan Company, Inc., Equity One, Incorporated and Popular
Financial Services, LLC, as sellers (in such capacity, collectively, the
"SELLERS"), Equity One, Inc., a Delaware corporation, as servicer (in such
capacity, the "SERVICER"), 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 in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class R Certificate at
the Corporate Trust Office or the office or agency maintained by the Trustee in
New York, New York.
Any proposed transfer of a Class R Certificate shall be subject to the
restrictions on transfer described in Section 5.02 of the Agreement.
No transfer of a Class R Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, nor a person
acting on behalf of any such plan, which representation letter shall not be an
expense of the Trustee or the Servicer or (ii) in the case of any such Class R
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or Section 4975 of the Code (or comparable provisions of any
subsequent enactment), or a trustee of any such plan or any other person acting
on behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee
and the Servicer to the effect that the purchase or holding of such Class R
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA and
the Code and will not subject the Trustee or the Servicer to any obligation in
addition to those undertaken in the Agreement, which Opinion of Counsel shall
not be an expense of the Trustee or the Servicer. Notwithstanding anything else
to the contrary herein, any
B-1-2
purported transfer of a Class R Certificate to or on behalf of an employee
benefit plan subject to ERISA or to the Code without the opinion of counsel
satisfactory to the Trustee as described above shall be void and of no effect.
Each Holder of this Class R Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Class R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class R Certificate may be transferred without delivery to the
Trustee of (a) a transfer affidavit of the proposed transferee and (b) a
transfer certificate of the transferor, each of such documents to be in the
form described in the Agreement, (iii) each person holding or acquiring any
Ownership Interest in this Class R Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee as required
pursuant to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Class R Certificate must agree not to transfer an Ownership
Interest in this Class R Certificate if it has actual knowledge that the
proposed transferee is not a Permitted Transferee and (v) any attempted or
purported transfer of any Ownership Interest in this Class R 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.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: --------, 20---
JPMorgan Chase Bank, N.A.,
as Trustee
By:-------------------------------
Countersigned:
By:-----------------
Authorized Signatory of
JPMorgan Chase Bank, N.A.,
as Trustee
B-1-3
EXHIBIT B-2
Form of Class X Certificate
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 EITHER (I) A REPRESENTATION LETTER TO THE
EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR (II) IF THIS CERTIFICATE HAS BEEN THE SUBJECT
OF AN ERISA QUALIFYING UNDERWRITING, A REPRESENTATION THAT THE TRANSFEREE IS
PURCHASING SUCH CERTIFICATE WITH FUNDS CONTAINED IN AN "INSURANCE COMPANY
GENERAL ACCOUNT", AS DEFINED IN PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTCE 95-60") AND THAT THE PURCHASE AND HOLDING OF SUCH CERTIFICATES ARE
COVERED UNDER SECTIONS I AND III OF PTCE 95-60, OR (III) AN OPINION OF COUNSEL
IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA
OR TO THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
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 THE AGREEMENT REFERRED TO HEREIN.
B-2-1
Certificate No. : 1
Cut-off Date : November 1, 2005
Percentage Interest : ---.---%
Popular ABS, Inc.
Mortgage Pass-Through Certificates, Series 2005-D
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of fixed and adjustable rate mortgage
loans (collectively, the ``LOANS").
Popular ABS, Inc., as Depositor
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Sellers, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Loans are guaranteed or insured by any governmental agency
or instrumentality.
This certifies that Popular ABS, Inc. is the registered owner of the
Percentage Interest (set forth on the face hereof) in certain monthly
distributions with respect to a Trust Fund consisting of the Loans deposited by
Popular ABS, Inc. (the "Depositor"). The Trust Fund was created pursuant to a
Pooling and Servicing Agreement dated as of the Cut-off Date specified above
(the "Agreement") among the Depositor, Equity One, Inc., a Delaware
corporation, Popular Financial Funding, LLC, Equity One, Inc., a Minnesota
corporation, Equity One Consumer Loan Company, Inc., Equity One, Incorporated
and Popular Financial Services, LLC, as sellers (in such capacity,
collectively, the "SELLERS"), Equity One, Inc., a Delaware corporation, as
servicer (in such capacity, the "SERVICER"), 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 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.
No transfer of a Class X Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code, nor a person
acting on behalf of any such plan, which representation letter shall not be an
expense of the Trustee or the Servicer, (ii) if the Class X Certificate has
been the subject of an ERISA Qualifying Underwriting and the transferee is an
insurance company, a representation that the transferee is an insurance company
which is purchasing such Certificate with funds contained in an "insurance
company general account", as defined in Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60") and that the purchase and holding of the Certificate is
covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such
Class X Certificate presented for registration in the name of an employee
benefit plan subject to ERISA, or Section 4975 of the Code (or comparable
provisions of any subsequent enactment), or a trustee of any such plan or any
other person acting on behalf of any such plan, an Opinion of Counsel
satisfactory to the Trustee and the Servicer to the effect that the purchase or
holding of such Class X Certificate will not result in the assets of the Trust
Fund being deemed to be "plan assets" and subject to the prohibited transaction
provisions of ERISA and the Code and will not subject the Trustee or the
Servicer to any obligation in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Trustee or the
Servicer. Notwithstanding anything else to the contrary herein, any purported
transfer of a Class X Certificate to or
B-2-2
on behalf of an employee benefit plan subject to ERISA or to the Code without
the opinion of counsel satisfactory to the Trustee as described above shall be
void and of no effect.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class X
Certificate at the Corporate Trust Office or the office or agency maintained by
the Trustee in New York, New York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: -----------, 20---
JPMorgan Chase Bank, N.A.
as Trustee
By:-------------------------------
Name:
Title:
Countersigned:
By:----------------------------------
Authorized Signatory of
JPMorgan Chase Bank, N.A.,
as Trustee
B-2-3
EXHIBIT C
Form of Reverse of Certificates
Popular ABS, Inc.
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Popular ABS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"CERTIFICATES"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference
is made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the Business
Day immediately following (the "DISTRIBUTION DATE"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the Corporate Trust Office or such other
location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicer and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the applicable Corporate Trust Office, accompanied by a written
instrument
C-1
of transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the Holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Sellers and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither the
Depositor, the Trustee, nor any such agent shall be affected by any notice to
the contrary.
On any Distribution Date on which the Pool Principal Balance is less than
10% of the Cut-off Date Pool Principal Balance, the Servicer will have the
option to repurchase, in whole, from the Trust Fund all remaining Loans and all
property acquired in respect of the Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent with
that meaning.
C-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ---------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Dated:
--------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to -------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
for the account of -------------------------------------------------------
account number ------------- or, if mailed by check, to ------------------.
Applicable statements should be mailed to --------------------------------
This information is provided by ------------------------------------------
the assignee named above, or ---------------------------------------------,
--------------------------------------------------------------------------
as its agent.
C-3
EXHIBIT D
Form of Initial Certification Of Trustee
[date]
[Depositor]
[Servicer]
[Sellers]
-------------
-------------
Re: Pooling and Servicing Agreement among Popular ABS, Inc., as
Depositor, Equity One, Inc., a Delaware corporation, Popular
Financial Funding, LLC, Equity One, Inc., a Minnesota
corporation, Equity One Consumer Loan Company, Inc., Equity
One, Incorporated and Popular Financial Services, LLC, as
Sellers, Equity One, Inc., a Delaware corporation, as Servicer,
and JPMorgan Chase Bank, N.A., as Trustee, Mortgage Pass-
Through Certificates, Series 2005-D
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), the undersigned, as Trustee,
hereby certifies that, as to each Loan listed in the Loan Schedule (other than
any Loan paid in full or listed on the attached Exception Report) it has
received the original Mortgage Note or an executed Affidavit of Lost Note in
the form attached hereto as Annex I, and confirms that, for all Mortgage Notes
received, the name on the Mortgage Note matches that on the Loan Schedule,
except as set forth on the Exception Report attached hereto.
Based on its review and examination and only as to the foregoing documents,
such documents appear regular on their face and related to such Loan.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling
and Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Loans identified on the
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Loan.
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the Pooling and Servicing Agreement.
JPMorgan Chase Bank, N.A.,
as Trustee
By:-------------------
Name:
Title:
D-1
ANNEX I
AFFIDAVIT OF LOST NOTE
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY OF PHILADELPHIA :
The undersigned, being duly sworn, deposes and says that:
1. ------, a ------ corporation (the "Holder") is the owner
of a note dated ---- of ----, in the principal amount of $----(the "Note").
2. The Holder has not pledged or disposed of the Note in any manner
whatsoever to any person nor given any person authority to transfer or pledge
the same.
3. The Holder does not know of the whereabouts of the Note and
believes the Note has been lost or destroyed.
4. The Holder makes this affidavit to JPMorgan Chase Bank, N.A.
("Trustee") in order to induce the Trustee to issue its initial certification
pursuant to Section 2.02 of the Pooling and Servicing Agreement dated as of
November 1, 2005 among the Trustee, the Holder and the other parties set forth
therein, without an exception therefrom.
5. The Holder and its successors and assigns shall at all time
indemnify and save harmless the Trustee against all loss or damage it might
suffer by reason of the issuance and delivery of a replacement note for the
Note, including all cost, charges, expenses and claims of every kind and
nature.
6. If the Note shall be found the Holder shall promptly deliver the
same to the Trustee in order that it may be cancelled.
7. The undersigned is duly authorized to execute this Affidavit on
behalf of the Holder.
Date:----------------- [SELLER]
--------------- By:----------------------
Witness Name:
Title:
JPMorgan Chase Bank, N.A.,
as Trustee
By:----------------------
Name:
Title:
D-2
EXHIBIT E
Form of Final Certification Of Trustee
[date]
[Depositor]
[Servicer]
[Seller]
------------
------------
Re: Pooling and Servicing Agreement among Popular ABS, Inc., as
Depositor, Equity One, Inc., a Delaware corporation, Popular
Financial Funding, LLC, Equity One, Inc., a Minnesota
corporation, Equity One Consumer Loan Company, Inc., Equity
One, Incorporated and Popular Financial Services, LLC, as
Sellers, Equity One, Inc., a Delaware corporation, as Servicer,
and JPMorgan Chase Bank, N.A., as Trustee, Mortgage Pass-
Through Certificates, Series 2005-D
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the "POOLING AND SERVICING AGREEMENT"), the undersigned, as Trustee,
hereby certifies that as to each Loan listed in the Loan Schedule (other than
any Loan paid in full or listed on the attached Exception Report), except as
set forth on the Exception Report attached hereto, it has received:
(i) the original Mortgage Note and confirms that the name on the
Mortgage Note matches that on the Loan Schedule;
(ii) the original recorded Mortgage (unless such Mortgage has not yet
been returned by the relevant recording office, as certified by the Depositor;
(iii) the original recorded assignment of the Mortgage in the form
provided in Section 2.01(c) of the Pooling and Servicing Agreement;
(iv) the original or duplicate original recorded assignment or
assignments of the Mortgage necessary to show a complete chain of assignment
from the originator to the Seller, unless the Depositor has certified that the
related assignment has not been returned from the applicable recording office;
and
(v) the original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof certified by
the title company, unless the Depositor has certified that such title policy
has not yet been received from the applicable title insurance company.
Based on its review and examination and only as to the foregoing documents,
(a) such documents appear regular on their face and related to such Loan, and
(b) the information set forth in items (c), (d), (e)
E-1
and (i) of the definition of the "Loan Schedule" in Article I of the Pooling
and Servicing Agreement accurately reflects information set forth in the
Mortgage File.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling
and Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Loans identified on the
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Loan.
Capitalized words and phrases used herein shall have the respective meanings
assigned to them in the Pooling and Servicing Agreement.
JPMorgan Chase Bank, N.A.,
as Trustee
By:----------------------
Name:
Title:
E-2
EXHIBIT F
Form of Transfer Affidavit
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of ......., the proposed Transferee of
an Ownership Interest in a Class R Certificate (the "CERTIFICATE") issued
pursuant to the Pooling and Servicing Agreement, (the "AGREEMENT"), relating to
the above-referenced Series, by and among Popular ABS, Inc., as depositor (the
"DEPOSITOR"), Equity One, Inc., a Delaware corporation, Popular Financial
Funding, LLC, Equity One, Inc., a Minnesota corporation, Equity One Consumer
Loan Company, Inc., Equity One, Incorporated and Popular Financial Services,
LLC, as Sellers, Equity One, Inc., a Delaware corporation, as 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. The Transferee has
no knowledge that any such affidavit is false.
3. The Transferee acknowledges that it understands that as the holder of
the residual interest, the Transferee may incur tax liabilities in excess of
any cash flows the residual interest generates and the Transferee intends to
pay any taxes associated with its holding the residual interest as those taxes
become due.
4. The Transferee represents that the conditions specified in either or
both of subparagraph (a) and (b) of this paragraph are satisfied:
(a) The requirements of this subparagraph (a) will be met if: the
present value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (i) the present value of any
consideration given to the Transferee to acquire the interest, (ii) the present
value of the expected future distributions on the interest, and (iii) the
present value of the anticipated tax savings associated with holding the
interest as the REMIC generates losses. For purposes of this subparagraph (a),
the Transferee is assumed to pay tax at a rate equal to the highest rate of tax
specified in section 11(b)(1) of the Code, and present values are computed
using a discount rate equal to the applicable federal rate prescribed by
section 1274(d) of the Code, compounded semiannually, or such other rate that
the Transferee can demonstrate it borrows substantial funds at in the course of
its trade or business from unrelated third parties.
(b) The requirements of this subparagraph (b) will be met if: (i) at the
time of the transfer, and at the close of each of the Transferee's two fiscal
years preceding the year of transfer the Transferee's
F-1
gross assets for financial reporting purposes exceed $100 million and its net
assets for financial reporting purposes exceed $10 million, (ii) The Transferee
is an eligible corporation (within the meaning of section 860L(a)(2) of the
Code), (iii) The Transferee is not a foreign branch of an eligible corporation
or any other arrangement by which the Residual interest will at any time be
subject to net tax by a foreign country or possession of the United States,
(iv) The Transferee agrees, in executing this Certificate that any subsequent
transfer of the Residual interest will be to another eligible corporation in a
"qualifying transaction," and (v) the Transferee has not indicated to, nor
provided to the Transferor any grounds to believe that, the Transferee will not
pay the taxes associated with the residual interest. For purposes of applying
this subparagraph (b), the Transferee's gross assets and net assets do not
include any obligation of any person related to the Transferee within the
meaning of section 860L(g) of the Code, or any other asset if a principal
purpose for holding or acquiring the asset is to permit the Transferee to
satisfy the requirements of this subparagraph (b), and a "qualifying
transaction" is a transaction that satisfies the requirements of ss.4 of Rev.
Proc. 2001-12, 2001-3 I.R.B. 35.
5. 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.
6. 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.)
7. The Transferee has reviewed the provisions of Section 5.02(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
the provisions of Section 5.02(c) of the Agreement and the restrictions noted
on the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the Transfer
to the Transferee contemplated hereby null and void.
8. 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 G 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.
F-2
9. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
10. The Transferee's taxpayer identification number is -------.
11. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
12. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
13. The Transferee is not an employee benefit plan that is subject to
ERISA or a plan or arrangement that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of such a plan or arrangement or using
the assets of any such plan or arrangement to effect the transfer.
14. The Transferee has provided financial statements or other financial
information requested by the transferor in connection with the transfer of the
Class R Certificates to permit the transferor to assess the financial
capability of the Transferee to pay any 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 and its corporate seal to be hereunto affixed, duly
attested, this ------- day of ------, 20---.
-----------------------------
PRINT NAME OF TRANSFEREE
By:--------------------------
Name:------------------------
Title:-----------------------
[Corporate Seal]
ATTEST:
----------------------------
[Assistant] Secretary
Personally appeared before me the above-named --------, known or proved to
me to be the same person who executed the foregoing instrument and to be the
------- of the Transferee, and acknowledged that he executed the same as his
free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this -------- day of -------, 20---.
--------------------------------
NOTARY PUBLIC
My Commission expires the ----- day of
------, 20---.
F-3
EXHIBIT 1
to EXHIBIT F
Certain Definitions
"OWNERSHIP INTEREST": As to any Class R 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 (a) the United States, any
State or political subdivision thereof, or any agency or instrumentality of any
of the foregoing, (b) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (c) an organization
(except certain farmers' cooperatives described in section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in section 860E(c)(l) of the Code) with respect
to any Class R Certificate, (d) rural electric and telephone cooperatives
described in section 1381(a)(2)(C) of the Code, (e) a Person that is not (i) a
citizen or resident of the United States, (ii) a corporation or partnership (or
other entity properly treated as a corporation or partnership for U.S. federal
income tax purposes) created or organized in or under the laws of the United
States or any political subdivision thereof, (iii) 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 (iv) 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, unless such Person
listed in clause (i), (ii), (iii) or (iv) above has furnished the transferor
and the Trustee with a duly completed Internal Revenue Service Form W-8ECI and
(f) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Class R Certificate to
such Person may cause any REMIC hereunder to fail to qualify as one or more
REMICs at any time that the Certificates are outstanding. The terms "United
States," "State" and "International Organization" shall have the meanings set
forth in section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of 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, 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.
F-4
EXHIBIT 2
TO EXHIBIT F
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in a
Class R 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 Class R
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Class R 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 F.
(iii) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (A) to obtain a Transfer Affidavit from any
other Person to whom such Person attempts to Transfer its Ownership
Interest in a Class R Certificate, (B) to obtain a Transfer Affidavit from
any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Class R Certificate and (C) not to
Transfer its Ownership Interest in a Class R Certificate or to cause the
Transfer of an Ownership Interest in a Class R 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 Class R Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Class R Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Class R Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Class R
Certificate that is in fact not permitted by this Section or for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the related
Transfer Affidavit, Transferor Certificate and either the Rule 144A Letter
or the Investment Letter. The Trustee shall be entitled but not obligated
to recover from any Holder of a Class R 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 Class R Certificate at and after either such time. Any such payments
so recovered by the Trustee shall be paid and delivered by the Trustee to
the last preceding Permitted Transferee of such Certificate.
F-5
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information necessary
to compute any tax imposed under Section 860E(e) of the Code as a result of
a Transfer of an Ownership Interest in a Class R Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Class R Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Class R Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of
Counsel shall not be an expense of the Trust Fund, the Trustee, the Sellers or
the Servicer, to the effect that the elimination of such restrictions will not
cause the Trust Fund hereunder to fail to qualify as one or more REMICs 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 Class R Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (A) to ensure that
the record ownership of, or any beneficial interest in, a Class R 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 Class R
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
F-6
EXHIBIT G
Form of Transferor Certificate
--------------------
Date
Popular ABS, Inc.
000 Xxxxxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: ----------
JPMorgan Chase Bank, N.A.
---------------
---------------
Attention: -----------------
-----------
Re: Popular ABS, Inc. Mortgage Pass-Through Certificates, Series
2005-D, Class ,
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we certify
that (a) we understand that the Certificates have not been registered under the
Securities Act of 1933, as amended (the "ACT"), and are being disposed by us in
a transaction that is exempt from the registration requirements of the Act, (b)
we have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act and (c)
to the extent we are disposing of a Class R Certificate, we have no knowledge
the Transferee is not a Permitted Transferee.
Very truly yours,
-----------------------------------
Print Name of Transferor
By:--------------------------------
Authorized Officer
G-1
EXHIBIT H
Form of Investment Letter (Non Rule 144A)
--------------------
Date
Popular ABS, Inc.
000 Xxxxxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention:-----------
JPMorgan Chase Bank, N.A.
----------------
----------------
Attention:----------------
----------------
Re: Popular ABS, Inc. Mortgage Pass-Through Certificates,
Series 2005-D, Class
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "ACT"), or any state securities laws
and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we 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, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement, nor are we using the assets of any such plan or
arrangement to effect such acquisition, or (ii) we are an insurance company and
are purchasing Certificates, other than the Class R Certificates, that have
been the subject of an ERISA Qualifying Underwriting, we are purchasing the
Certificates with funds contained in an "insurance company general account", as
defined in Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and the
purchasing and holding of such Certificates are covered by Sections I and III
of PTCE 95-60, (e) we are acquiring the Certificates for investment for our own
account and not with a view to any distribution of such 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 which would result in a violation of Section
5 of the Act, and (g) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to
H-1
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 such 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.
Very truly yours,
---------------------------------
Print Name of Transferee
By: -----------------------------
Authorized Officer
H-2
EXHIBIT I
Form of Rule 144A Letter
----
Date
Popular ABS, Inc.
000 Xxxxxxxx Xxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: -----------------
JPMorgan Chase Bank, N.A.
----------------------
----------------------
Attention: -----------------
-----------------
Re: Popular ABS, Inc. Mortgage Pass-Through Certificates, Series 2005-D,
Class ,
-------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under the
Securities Act of 1933, as amended (the "ACT"), or any state securities laws
and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either (i) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement, nor are we using the assets of any such plan or
arrangement to effect such acquisition, or (ii) we are an insurance company and
are purchasing Certificates, other than the Class R Certificates, that have
been the subject of an ERISA Qualifying Underwriting, we are purchasing the
Certificates with funds contained in an "insurance company general account", as
defined in Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60") and the
purchasing and holding of such Certificates are covered by Sections I and III
of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Act or that would render the
disposition of the Certificates a violation of Section 5 of the 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 Act and have completed either of the forms of certification
to that effect attached hereto as Annex 1 or Annex 2. We
I-1
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Act.
Very truly yours,
------------------------
Print Name of Transferee
By: -------------------
Authorized Officer
I-2
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "BUYER") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("RULE 144A") because (i) the Buyer owned and/or
invested on a discretionary basis either at least $100,000,000 in securities
or, if Buyer is a dealer, Buyer must own and/or invest on a discretionary basis
at least $10,000,000 in securities (except for the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A and (ii) the Buyer satisfies the
criteria in the category marked below.
--- Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of
1986, as amended.
--- Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
--- Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
--- Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
--- Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or
the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, territory or the District of
Columbia.
--- State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
I-3
--- ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
--- Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
--- Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
--- Business Development Company. Buyer is a business development
company as defined in Section 202(a) (22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer, (ii) securities that are part of an
unsold allotment to or subscription by the Buyer, if the Buyer is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For purposes of determining the aggregate amount of securities owned and/
or invested on a discretionary basis by the Buyer, the Buyer used the cost of
such securities to the Buyer and did not include any of the securities referred
to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and
the Buyer is not itself a reporting company under the Securities Exchange Act
of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and understands
that the seller to it and other parties related to the Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any changes
in the information and conclusions herein. Until such notice is given, the
Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
-------------------------
Print Name of Buyer
By: -------------------
Name:
Title:
Date: ------------------
I-4
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act of 1933, as amended ("Rule 144A") because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current information
with respect to the cost of those securities has been published. If clause (ii)
in the preceding sentence applies, the securities may be valued at market.
--- The Buyer owned $____ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
--- The Buyer is part of a Family of Investment Companies which owned
in the aggregate $____ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Buyer or are part of the Buyer's Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to which this
certification relates of any changes in
I-5
the information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
------------------------------
Print Name of Buyer or Adviser
By: -------------------
Name:
Title:
IF AN ADVISER:
---------------------
Print Name of Buyer
Date: ------------------
I-6
EXHIBIT J
Form of Request for Release of Documents
Popular ABS, Inc.
Mortgage Pass-Through Certificates
Series 2005-D
To: -------------------- Attn: ----------------
------------------
Re: Pooling and Servicing Agreement among Popular ABS, Inc., as
Depositor, Equity One, Inc., a Delaware corporation,
Popular Financial Funding, LLC, Equity One, Inc., a
Minnesota corporation, Equity One Consumer Loan Company,
Inc., Equity One, Incorporated and Popular Financial
Services, LLC, as Sellers, Equity One, Inc., a Delaware
corporation, as Servicer, and JPMorgan Chase Bank, N.A., as
Trustee, Mortgage Pass-Through Certificates, Series 2005-D
Ladies and Gentlemen:
In connection with the administration of the Loans held by you as Trustee
for Popular ABS, Inc., we request the release of the Mortgage File for the
Loan(s) described below, for the reason indicated.
FT Account #: Pool:
Mortgagor's Name, Address and Zip Code:
Loan Number:
Reason for Requesting Documents (check one)
1. Loan paid in full (___________________ hereby certifies that all
amounts have been received.)
2. Loan Liquidated (_____________________ hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation have been
finally received.)
3. Loan in Foreclosure.
4. Other (explain):
The Documents and any proceeds thereof, including any proceeds of proceeds,
coming into the possession or control of the Servicer shall be deposited into
the Certificate Account, and the Servicer shall keep the Documents and any
proceeds separate and distinct from all other property in the Servicer's
possession, custody or control.
J-1
If item 1 or 2 above is checked, and if all or part of the Mortgage File was
previously released to us, please release to us our previous receipt on file
with you, as well as any additional documents in your possession relating to
the above-specified Loan. If item 3 or 4 is checked, upon return of all of the
above documents to you as Trustee, please acknowledge your receipt by signing
in the space indicated below, and returning this form.
By: --------------------
Name:-------------------
Title: -------------------
Date: -------------------
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By: --------------------
Name:-------------------
Title: -------------------
Date: -------------------
J-2
EXHIBIT K
Form of Reporting Document
SEE ATTACHED
K-1
EXHIBIT L
Yield Maintenance Agreement
SEE ATTACHED
L-1
EXHIBIT M
Form of Power of Attorney
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that JPMorgan Chase Bank, N.A., a banking
association organized under the laws of the United States, having a place of
business at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, X.X. 00000, as Trustee (and
in no personal or other representative capacity) under the Pooling and
Servicing Agreement, dated as of ......., 20.... (as amended, restated,
supplemented or otherwise modified from time to time, the "Agreement";
capitalized terms not defined herein have the definitions assigned to such
terms in the Agreement), relating to the ..............., hereby appoints
................, in its capacity as a Servicer under the Agreement, as the
Trustee's true and lawful Special Attorney-in-Fact, in the Trustee's name,
place and stead and for the Trustee's benefit, but only in its capacity as
Trustee aforesaid, to perform all acts and execute all documents as may be
customary, necessary and appropriate to effectuate the following enumerated
transactions in respect of any mortgage, deed of trust, promissory note or real
estate owned from time to time owned (beneficially or in title, whether the
Trustee is named therein as mortgagee or beneficiary or has become mortgagee or
beneficiary by virtue of endorsement, assignment or other conveyance) or held
by or registered to the Trustee (directly or through custodians or nominees),
or in respect of which the Trustee has a security interest or other lien, all
as provided under the applicable Agreement and only to the extent the
respective Trustee has an interest therein under the Agreement, and in respect
of which the Servicer is acting as servicer pursuant to the Agreement (the
"Mortgage Documents").
This appointment shall apply to the following enumerated transactions under the
Agreement only:
1. The modification or re-recording of any Mortgage Document for the purpose
of correcting it to conform to the original intent of the parties thereto or to
correct title errors discovered after title insurance was issued and where such
modification or re-recording does not adversely affect the lien under the
Mortgage Document as insured.
2. The subordination of the lien under a Mortgage Document to an easement in
favor of a public utility company or a state or federal agency or unit with
powers of eminent domain including, without limitation, the execution of
partial satisfactions/releases, partial reconveyances and the execution of
requests to trustees to accomplish same.
3. The conveyance of the properties subject to a Mortgage Document to the
applicable mortgage insurer, or the closing of the title to the property to be
acquired as real estate so owned, or conveyance of title to real estate so
owned.
4. The completion of loan assumption and modification agreements in respect
of Mortgage Documents.
5. The full or partial satisfaction/release of a Mortgage Document or full
conveyance upon payment and discharge of all sums secured thereby, including,
without limitation, cancellation of the related note.
6. The assignment of any Mortgage Document, in connection with the
repurchase of the mortgage loan secured and evidenced thereby.
7. The full assignment of a Mortgage Document upon payment and discharge of
all sums secured thereby in conjunction with the refinancing thereof,
including, without limitation, the assignment of the related note.
M-1
8. With respect to a Mortgage Document, the foreclosure, the taking of a
deed in lieu of foreclosure, or the completion of judicial or non-judicial
foreclosure or termination, cancellation or rescission of any such foreclosure,
including, without limitation, any and all of the following acts:
a. the substitution of trustee(s) serving under a deed of trust, in
accordance with state law and the deed of trust;
b. the preparation and issuance of statements of breach or non-
performance;
c. the preparation and filing of notices of default and/or notices of
sale;
d. the cancellation/rescission of notices of default and/or notices of
sale;
e. the taking of a deed in lieu of foreclosure; and
f. the preparation and execution of such other documents and
performance of such other actions as may be necessary under the
terms of the Mortgage Document or state law to expeditiously
complete said transactions in paragraphs 8(a) through 8(e), above.
9. Demand, xxx for, recover, collection and receive each and every sum of
money, debt, account and interest (which now is, or hereafter shall become due
and payable) belonging to or claimed by the Trustee under the Mortgage
Documents, and to use or take any lawful means for recovery thereof by legal
process or otherwise.
10. Endorse on behalf of the Trustee all checks, drafts and/or negotiable
instruments made payable to the Trustee in respect of the Mortgage Documents.
The Trustee gives the Special Attorney-in-Fact full power and authority to
execute such instruments and to do and perform all and every act and thing
necessary and proper to carry into effect the power or powers granted by this
Limited Power of Attorney, subject to the terms and conditions set forth in the
Agreement including the standard of care applicable to servicers in the
Agreement, and hereby does ratify and confirm what such Special Attorney-in-
Fact shall lawfully do or cause to be done by authority hereof.
[SIGNATURE PAGE FOLLOWS]
M-2
IN WITNESS WHEREOF, the Trustee has caused its corporate name and seal to be
hereto signed and affixed and these presents to be acknowledged by its duly
elected and authorized officer this ..... day of ..... , 20.... .
JPMorgan Chase Bank, N.A., as Trustee
-------------------------------------
By:
Name:
Title:
WITNESS: WITNESS:
---------------------------------------
Name: Name:
Title: Title:
STATE OF NEW YORK
SS
COUNTY OF NEW YORK
On ----------, 20----, before me, the undersigned, a Notary Public in and
for said state, personally appeared ----------, personally known to me
to be the person whose name is subscribed to the within instrument and to be a
duly authorized and acting -------------- of JPMorgan Chase Bank, N.A., and
such person acknowledged to me that such person executed the within instrument
in such person's authorized capacity as a --------------- of JPMorgan Chase
Bank, N.A., and that by such signature on the within instrument the entity upon
behalf of which such person acted executed the instrument.
WITNESS my hand and official seal.
----------------------
Notary Public
M-3
