Exhibit 99.1
EXECUTION COPY
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CWABS, INC.
Depositor
COUNTRYWIDE HOME LOANS, INC.
Sponsor and Master Servicer
CWABS MASTER TRUST
the Trust
BANK ONE, NATIONAL ASSOCIATION
Indenture Trustee
________________________________
SALE AND SERVICING AGREEMENT
Dated as of February 28, 2002
________________________________
REVOLVING HOME EQUITY LOAN ASSET BACKED SECURITIES
SERIES 2002-A
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Table of Contents
Page
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions .......................................................1
Section 1.02. Other Terms...........................................................1
Section 1.03. Rules of Construction.................................................1
Section 1.04. Interest Calculations.................................................2
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; TAX TREATMENT
Section 2.01. Conveyance of Mortgage Loans; Retention of Obligation to Fund
Advances Under Credit Line Agreements.................................3
Section 2.02. Acceptance by Indenture Trustee.......................................5
Section 2.03. Representations and Warranties Regarding the Master Servicer..........7
Section 2.04. Representations and Warranties of the Sponsor Regarding the Mortgage
Loans; Retransfer of Certain Mortgage Loans...........................9
Section 2.05. Covenants of the Depositor...........................................15
Section 2.06. Transfers of Mortgage Loans at Election of Transferor................16
Section 2.07. Tax Treatment........................................................17
Section 2.08. Representations and Warranties of the Depositor......................18
Section 2.09. Seller Loss Coverage Obligation......................................18
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. The Master Servicer..................................................18
Section 3.02. Collection of Certain Mortgage Loan Payments; Establishment of
Accounts.............................................................21
Section 3.03. Withdrawals from the Collection Account..............................22
Section 3.04. Maintenance of Hazard Insurance; Property Protection Expenses........22
Section 3.05. Assumption and Modification Agreements...............................23
Section 3.06. Realization Upon Defaulted Mortgage Loans; Repurchase of Certain
Mortgage Loans.......................................................23
Section 3.07. Indenture Trustee to Cooperate.......................................24
Section 3.08. Servicing Compensation; Payment of Certain Expenses by Master
Servicer.............................................................25
Section 3.09. Annual Statement as to Compliance....................................25
Section 3.10. Annual Servicing Report..............................................26
Section 3.11. Access to Certain Documentation and Information Regarding the
Mortgage Loans.......................................................26
Section 3.12. Maintenance of Certain Servicing Insurance Policies..................26
Section 3.13. Reports to the Securities and Exchange Commission....................27
Section 3.14. Tax Treatment........................................................27
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Section 3.15. Information Required by the Internal Revenue Service Generally and
Reports of Foreclosures and Abandonments of Mortgaged Property.......27
Section 3.16. The Loan Insurance Policy............................................27
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. Servicing Certificate................................................28
Section 4.02. Acknowledgement and Cooperation......................................30
Section 4.03. Optional Advances of the Master Servicer.............................31
Section 4.04. Statements to Noteholders............................................31
ARTICLE V
THE MASTER SERVICER, THE SPONSOR, AND THE DEPOSITOR
Section 5.01. Liability of the Sponsor, the Master Servicer, and the Depositor.....33
Section 5.02. Merger or Consolidation of, or Assumption of the Obligations of, the
Master Servicer or the Depositor.....................................33
Section 5.03. Limitation on Liability of the Master Servicer and Others............33
Section 5.04. Master Servicer Not to Resign........................................34
Section 5.05. Delegation of Duties.................................................35
Section 5.06. Indemnification by the Master Servicer...............................35
ARTICLE VI
SERVICING TERMINATION
Section 6.01. Events of Servicing Termination......................................35
Section 6.02. Indenture Trustee to Act; Appointment of Successor...................37
Section 6.03. Notification to Noteholders and the Transferor.......................38
ARTICLE VII
TERMINATION
Section 7.01. Termination..........................................................39
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment............................................................40
Section 8.02. Governing Law........................................................40
Section 8.03. Notices..............................................................40
Section 8.04. Severability of Provisions...........................................42
Section 8.05. Assignment...........................................................42
Section 8.06. Third-Party Beneficiaries............................................42
Section 8.07. Counterparts.........................................................43
Section 8.08. Effect of Headings and Table of Contents.............................43
Section 8.09. Series Trust.........................................................43
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EXHIBIT A - MORTGAGE LOAN SCHEDULE................................................A-1
EXHIBIT B - FORM OF CREDIT LINE AGREEMENT.........................................B-1
EXHIBIT C - LETTER OF REPRESENTATIONS.............................................C-1
EXHIBIT D - FORM OF REQUEST FOR RELEASE...........................................D-1
EXHIBIT E - FORM OF TRANSFER DOCUMENT.............................................E-1
ANNEX 1 DEFINITIONS.................................................XXX-1-1
ANNEX 2 ADOPTION ANNEX..............................................XXX-2-1
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This SALE AND SERVICING AGREEMENT, dated as of February 28, 2002, among
CWABS, INC., as depositor, COUNTRYWIDE HOME LOANS, INC., as sponsor and master
servicer, CWABS MASTER TRUST, and BANK ONE, NATIONAL ASSOCIATION, as Indenture
Trustee,
WITNESSETH THAT:
The parties agree as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined in Annex 1.
Section 1.02. Other Terms.
Capitalized terms used in this Agreement that are not otherwise
defined have the meanings given to them in the Indenture. Defined terms that
are used only in one section or only in another definition may be omitted from
the list of defined terms in Annex 1. Defined terms used in this Agreement are
sometimes defined after their first use without a reference such as "(as
hereinafter defined)." Defined terms include, as appropriate, all genders and
the plural as well as the singular.
Section 1.03. Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context otherwise clearly requires:
(a) References to designated articles, sections, subsections,
exhibits, and other subdivisions of this Agreement, such as "Section 3.01(B),"
refer to the designated article, section, subsection, exhibit, or other
subdivision of this Agreement as a whole and to all subdivisions of the
designated article, section, subsection, exhibit, or other subdivision. The
words "herein," "hereof," "hereto," "hereunder," and other words of similar
import refer to this Agreement as a whole and not to any particular article,
section, exhibit, or other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Agreement.
(c) Any party may execute any of the requirements under this
Agreement either directly or through others, and the right to cause something
to be done rather than doing it directly shall be implicit in every
requirement under this Agreement. Unless a provision is
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restricted as to time or limited as to frequency, all provisions under this
Agreement are implicitly available and things may happen from time to time.
(d) The term "including" and all its variations mean "including but
not limited to." Except when used in conjunction with the word "either," the
word "or" is always used inclusively (for example, the phrase "A or B" means
"A or B or both," not "either A or B but not both").
(e) A reference to "a thing" or "any of a thing" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any of a thing" is any and all of it. A reference to the plural
of anything as to which there could be either one or more than one does not
imply the existence of more than one (for instance, the phrase "the obligors
on a note" means "the obligor or obligors on a note"). "Until something
occurs" does not imply that it must occur, and will not be modified by the
word "unless." The word "due" and the word "payable" are each used in the
sense that the stated time for payment has past. The word indemnify is used to
include its dictionary sense of hold harmless. The word "accrued" is used in
its accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may generally result in
negative numbers, but when the calculation of the excess of one thing over
another results in zero or a negative number, the calculation is disregarded
and an "excess" does not exist. Portions of things may be expressed as
fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not
otherwise defined, and accounting terms partly defined in this Agreement, to
the extent not completely defined, shall be construed in accordance with
generally accepted accounting principles in the United States. To the extent
that the definitions of accounting terms in this Agreement are inconsistent
with their meanings under generally accepted accounting principles, the
definitions contained in this Agreement shall control. Capitalized terms used
in this Agreement without definition that are defined in the UCC are used in
this Agreement as defined in the UCC.
(g) In the computation of a period of time from a specified date to
a later specified date or an open-ended period, the word "from" or "beginning"
means "from and including," the word "after" means "from but excluding," the
words "to" or "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "on or before." The words "preceding," "following," and words of similar
import, mean immediately preceding or following. References to a month or a
year refer to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a
party means that it is enforceable, subject as to enforcement against the
party, to applicable bankruptcy, insolvency, reorganization, and other similar
laws of general applicability relating to or affecting creditors' rights and
to general equity principles.
Section 1.04. Interest Calculations.
All calculations of interest on the Asset Balance of a Mortgage Loan
under this Agreement are on a daily basis using a 365-day year. All
calculations of interest on the Class A
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Notes are on the basis of the actual number of days in a Class A Note Interest
Period and a year of 360 days. All calculations of interest on the Class A-IO
Certificates are on the basis of a year of 360 days and twelve 30-day months.
The calculation of the Servicing Fee is on the basis of a 360-day year
consisting of twelve 30-day months. All dollar amounts calculated under this
Agreement are rounded to the nearest cent with one-half of one cent being
rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; TAX TREATMENT
Section 2.01. Conveyance of Mortgage Loans; Retention of Obligation to
Fund Advances Under Credit Line Agreements.
(a) Transfer. Concurrently with the execution and delivery of this
Agreement, the Depositor hereby transfers to the Trust without recourse
(subject to Sections 2.02 and 2.04) all of its right, title, and interest in
(i) each Mortgage Loan, including its Asset Balance (including
all Additional Balances) and all collections received on it after the
Cut-off Date (excluding payments due by the Cut-off Date);
(ii) property that secured a Mortgage Loan that is acquired by
foreclosure or deed in lieu of foreclosure;
(iii)the Depositor's rights under the Purchase Agreement;
(iv) the Depositor's rights under the hazard insurance
policies;
(v) all other assets included or to be included in the Trust
for the benefit of the Noteholders and the Credit Enhancer; and
(vi) all proceeds of the foregoing.
This transfer to the Trust is to the Owner Trustee, on behalf of the Trust,
and each reference in this Agreement to this transfer shall be construed
accordingly. In addition, by the Closing Date, the Depositor shall cause the
Credit Enhancer to deliver the Policy to the Indenture Trustee for the benefit
of the holders of the Class A Notes and the holders of the Class A-IO
Certificates and shall cause the Loan Insurance Policy Provider to deliver the
Loan Insurance Policy to the Co-Trustee.
(b) Additional Balances; Future Fundings. Additional Balances shall
be part of the Asset Balance and are hereby transferred to the Trust on the
Closing Date for the Mortgage Loans and therefore are part of the Trust
property. Neither the Owner Trustee nor the Trust assumes the obligation under
any Credit Line Agreement that provides for the funding of future advances to
the mortgagor under it, and neither the Trust nor the Owner Trustee may fund
these future advances.
(c) Delayed Delivery. In connection with the transfer under Section
2.01(a) by the Depositor, the Depositor shall effect delivery of the Mortgage
Loan Schedule to the Trust and
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the Indenture Trustee by the Closing Date and delivery of the Mortgage Files
to the Trust, and the Trust shall deliver them to the Indenture Trustee,
(i) no later than the Closing Date, with respect to no less
than 50% of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date,
with respect to no less than 40% of the Mortgage Loans in addition to
those delivered on the Closing Date, and
(iii)within thirty days following the Closing Date, with
respect to the remaining Mortgage Loans.
(d) Substitution and Repurchase. If the Indenture Trustee does not
receive the Mortgage File for any Mortgage Loan as required by Section
2.01(c), that Mortgage Loan shall automatically be retransferred to the
Sponsor, subject to the conditions in Section 2.02(b) (as if that Mortgage
Loan were otherwise subject to these provisions). If a Transfer Deficiency
results, the Sponsor shall substitute an Eligible Substitute Mortgage Loan for
the related Mortgage Loan within five Business Days of notification of the
Transfer Deficiency by the Indenture Trustee or, if unable to effect this
substitution, deposit into the Collection Account the Transfer Deposit Amount
in immediately available funds equal to the Transfer Deficiency (or effect a
combination of substitution and deposit). This substitution or deposit shall
be accomplished in the manner specified in, and have the effect specified in,
Section 2.02(b) (as if the related Mortgage Loan were otherwise subject to
these provisions).
(e) Xxxx Records. The Sponsor hereby confirms to the Owner Trustee
and the Indenture Trustee that it has caused the portions of the Electronic
Ledgers relating to the Mortgage Loans to be clearly and unambiguously marked,
and has made the appropriate entries in its general accounting records, to
indicate that the Mortgage Loans have been transferred to the Trust at the
direction of the Depositor. The Master Servicer hereby confirms to the Owner
Trustee and the Indenture Trustee that it has clearly and unambiguously made
appropriate entries in its general accounting records indicating that those
Mortgage Loans constitute part of the Trust and are serviced by it on behalf
of the Trust in accordance with this Agreement.
(f) UCC Filings. The Depositor and the Trust agree (subject to
paragraph below) to effect any actions and execute any documents necessary to
perfect and protect the Trust's, the Noteholders', and the Credit Enhancer's
interests in each Cut-off Date Asset Balance and Additional Balances and their
proceeds, including filing all necessary Continuation Statements for the UCC-1
Financing Statements filed in the State of Delaware (which shall have been
filed by the Closing Date) describing the Cut-off Date Asset Balances and
Additional Balances and naming the Depositor as debtor and the Trust as
secured party or naming the Trust as debtor and the Indenture Trustee as
secured party and the filing of any additional UCC-1 Financing Statements due
to the change in the state of organization of the Depositor or the Trust
(within 30 days of any event necessitating the filing).
(g) Sponsor Rating Downgrade. Should the short-term senior
unsecured corporate debt rating of Countrywide Home Loans, Inc. fall below
"A-1" by Standard & Poor's or "Prime-1"
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by Xxxxx'x, as promptly as practicable but in any case within 90 days of the
event, the Master Servicer shall, at its expense, either
(x) request that the Indenture Trustee deliver to it the
original Assignment of Mortgage previously delivered to the Indenture
Trustee pursuant to Section 2.01(c) and then record the Assignment of
Mortgage in favor of the Indenture Trustee (which may be a blanket
assignment if permitted by applicable law) in the appropriate real
property or other records.
(y) deliver to the Indenture Trustee an Opinion of Counsel
addressed to the Indenture Trustee and the Credit Enhancer to the
effect that recording is not required to protect the Indenture
Trustee's interest in the related Mortgage Loan or, in case a court
should recharacterize the sale of the Mortgage Loans as a financing,
to perfect a first priority Security Interest in favor of the
Indenture Trustee in the related Mortgage Loan, which Opinion of
Counsel also shall be reasonably acceptable to each of the Rating
Agencies (as evidenced in writing) and the Credit Enhancer, or
(z) cause the MERS(R) System to indicate (and provide evidence
to the Indenture Trustee that it has done so) that the Mortgage Loans
have been assigned by the Trust to the Indenture Trustee in accordance
with this Agreement for the benefit of the Noteholders and the Credit
Enhancer by including (or deleting, in the case of Mortgage Loans that
are repurchased in accordance with this Agreement) in the MERS
computer files (a) the appropriate code that identifies the Indenture
Trustee in the field for identifying the assignee and (b) the
appropriate code that has been assigned to identify the Notes to the
MERS(R) System in the field "Pool Field" identifying the Notes issued
in connection with the Mortgage Loans.
(h) Sale Treatment. Notwithstanding the characterization of the
Class A Notes as debt of the Transferor for federal, state, and local income
and franchise tax purposes, the transfer of the Mortgage Loans is a sale, by
the Sponsor to the Depositor and by the Depositor to the Trust of all the
Sponsor's and then all the Depositor's interest in the Mortgage Loans and
other property described above. However, if the transfer were to be
characterized as a transfer for security and not as a sale, then the Depositor
hereby grants to the Trust a Security Interest in all of the Depositor's
right, title, and interest in the Mortgage Loans whether existing now or in
the future, all monies due or to become due on the Mortgage Loans, and all
their proceeds; and this Agreement shall constitute a Security Agreement under
applicable law.
Section 2.02. Acceptance by Indenture Trustee.
(a) On the Closing Date, the Custodian shall execute and deliver to
the Depositor, the Master Servicer, and the Sponsor (with a copy to the Credit
Enhancer) the Initial Certification pursuant to the Custodial Agreement. If
Mortgage Loans have been delivered after the Closing Date pursuant to Section
2.01(c), the Custodian shall execute and deliver to the Depositor, the Master
Servicer, and the Sponsor (with a copy to the Credit Enhancer) a Delay
Delivery Certification pursuant to the Custodial Agreement within the period
specified in the Custodial Agreement. Within 180 days after the Closing Date,
the Custodian shall deliver to the
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Depositor, the Master Servicer, and the Sponsor (with a copy to the Credit
Enhancer) a Final Certification pursuant to the Custodial Agreement. The
Sponsor shall correct any defect noted in the Final Certification within 90
days of its receipt.
(b) All interest of the Trust in the Mortgage Loan shall be
retransferred without recourse, representation, or warranty to the Sponsor and
the Asset Balance of the Mortgage Loan shall be deducted from the Loan Balance
on the next Business Day after the Transfer Deposit Amount is deposited to the
Collection Account and any other applicable requirements are satisfied if
(i) the time to correct any defect in any Mortgage Loan noted on
the Final Certification has expired,
(ii) the Trust ever incurs any loss on any Mortgage Loan because
any document in its Mortgage File is defective, or
(iii) an Assignment of Mortgage to the Indenture Trustee has not
been recorded in accordance with Section 2.01(g) and the
Mortgage Loan is not registered on the MERS(R) System.
Interest accrued on the Asset Balance of the Mortgage Loan to the end of the
related Collection Period shall be the property of the Trust.
The Indenture Trustee shall determine if reducing the relevant Loan
Balance by the Asset Balance of the retransferred Mortgage Loan would cause a
Transfer Deficiency. If so, the Indenture Trustee shall notify the Sponsor of
the deficiency, and within five Business Days after the retransfer the Sponsor
shall either
(x) substitute an Eligible Substitute Mortgage Loan,
(y) deposit into the Collection Account an amount (the "Transfer
Deposit Amount") in immediately available funds equal to the
Transfer Deficiency, or
(z) do a combination of both (x) and (y) above.
The reduction or substitution and the actual payment of any Transfer Deposit
Amount shall be payment in full for the Mortgage Loan.
The Owner Trustee shall execute any documents of transfer presented by
the Sponsor, without recourse, representation, or warranty, and take any other
actions reasonably requested by the Sponsor to effect the transfer by the
Trust of the Defective Mortgage Loan pursuant to this Section on receipt of
any Eligible Substitute Mortgage Loan or notice from a Servicing Officer to
the effect that the Transfer Deposit Amount for a Defective Mortgage Loan has
been deposited into the Collection Account or, if the Transferor Principal
Balance is not reduced below zero as a result of the retransfer of a Defective
Mortgage Loan, as promptly as practicable following the transfer. The sole
remedy of the Class A Noteholders, Class A-IO Certificateholders, the
Transferor, the Owner Trustee, the Indenture Trustee, the Co-Trustee, the Loan
Insurance Policy Provider, and the Credit Enhancer against the Sponsor for the
transfer of a Defective Mortgage Loan to the Trust is the Sponsor's obligation
to accept a transfer of a Defective Mortgage Loan and to either convey an
Eligible Substitute Mortgage Loan or to make a deposit of any Transfer Deposit
Amount into the Collection Account.
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Promptly following the transfer of any Defective Mortgage Loan or
Eligible Substitute Mortgage Loan from or to the Trust pursuant to this
Section, the Master Servicer shall amend the Mortgage Loan Schedule, deliver
the amended Mortgage Loan Schedule to the Indenture Trustee, and make
appropriate entries in its general account records to reflect the transfer.
Following the retransfer, the Master Servicer shall appropriately xxxx its
records to indicate that it is no longer servicing the Mortgage Loan on behalf
of the Trust. The Sponsor shall appropriately xxxx its Electronic Ledger and
make appropriate entries in its general account records to reflect the
transfer promptly following the transfer.
Notwithstanding any other provision of this Section, a retransfer of a
Defective Mortgage Loan to the Sponsor pursuant to this Section that would
cause the Transferor Principal Balance to be less than zero shall not occur if
either the Sponsor fails to convey an Eligible Substitute Mortgage Loan or to
deposit into the Collection Account any Transfer Deposit Amount required by
this Section with respect to the transfer of the Defective Mortgage Loan.
(c) The Sponsor shall deliver to the Indenture Trustee any
documents required to be held by the Indenture Trustee in accordance with
Section 2.01 with respect to any Eligible Substitute Mortgage Loans. The
Master Servicer shall determine the Transfer Deposit Amount in any Collection
Period during which the Sponsor substitutes Eligible Substitute Mortgage Loans
and the Sponsor shall deposit that amount in the Collection Account at the
time of substitution. All amounts received on the Eligible Substitute Mortgage
Loans during the Collection Period in which the circumstances giving rise to
the substitution occur shall not be a part of the Trust and shall not be
deposited by the Master Servicer in the Collection Account. All amounts
received on a removed Defective Mortgage Loan during the Collection Period in
which the circumstances giving rise to the substitution occur shall be a part
of the Trust and shall be deposited by the Master Servicer in the Collection
Account. An Eligible Substitute Mortgage Loan will be subject to the terms of
this Agreement in all respects when transferred to the Trust, and the Sponsor
hereby makes the representations, warranties, and covenants in Section 2.04
with respect to the Eligible Substitute Mortgage Loan as of the date of
substitution. The procedures applied by the Sponsor in selecting each Eligible
Substitute Mortgage Loan shall not be materially adverse to the interests of
the Indenture Trustee, the Transferor, the Noteholders, or the Credit
Enhancer.
(d) The Custodian shall retain possession of each Mortgage File on
behalf of the Indenture Trustee in accordance with the Custodial Agreement.
The Master Servicer shall promptly deliver to the Indenture Trustee the
originals of any other documents constituting the Mortgage File coming into
its possession on their execution or receipt. Any documents to be delivered to
the Indenture Trustee under this Agreement may be delivered to the Custodian
acting on behalf of the Indenture Trustee.
Section 2.03. Representations and Warranties Regarding the Master
Servicer.
The Master Servicer represents and warrants to the Indenture Trustee
and the Credit Enhancer that as of the Closing Date:
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(i) The Master Servicer is a New York corporation, validly
existing and in good standing under the laws of the State of New York,
and has the corporate power to own its assets and to transact the
business in which it is currently engaged. The Master Servicer is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of its business
or any properties owned or leased by it requires such qualification
and in which the failure so to qualify would have `a material adverse
effect on the business, properties, assets, or condition (financial or
other) of the Master Servicer.
(ii) The Master Servicer has the power and authority to make,
execute, deliver, and perform this Agreement and all of the
transactions contemplated under this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery, and
performance of this Agreement. When executed and delivered, this
Agreement will constitute a valid and legally binding obligation of
the Master Servicer enforceable in accordance with its terms.
(iii) The Master Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau, or agency in connection with the
execution, delivery, performance, validity, or enforceability of this
Agreement, except for consents, licenses, approvals or authorizations,
or registrations or declarations that have been obtained or filed, as
the case may be, before the Closing Date.
(iv) The execution, delivery, and performance of this
Agreement by the Master Servicer will not violate any existing law or
regulation or any order or decree of any court applicable to the
Master Servicer or the certificate of incorporation or bylaws of the
Master Servicer, or constitute a material breach of any mortgage,
indenture, contract, or other agreement to which the Master Servicer
is a party or by which the Master Servicer may be bound.
(v) No litigation or administrative proceeding of or before
any court, tribunal, or governmental body is currently pending, or to
the knowledge of the Master Servicer threatened, against the Master
Servicer or any of its properties or with respect to this Agreement,
the Indenture, or the Notes that in the opinion of the Master Servicer
has a reasonable likelihood of resulting in a material adverse effect
on the transactions contemplated by the Transaction Documents.
(vi) If any Mortgage Loan has been registered on the MERS(R)
System, the Master Servicer is a member of MERS in good standing.
The representations and warranties in this Section shall survive the transfer
of the Mortgage Loans to the Trust. Upon discovery of a breach of any
representations and warranties that materially and adversely affects the
interests of the Transferor, the Noteholders, or the Credit Enhancer, the
person discovering the breach shall give prompt notice to the other parties
and to the Credit Enhancer. The Master Servicer shall cure in all material
respects any breach of any
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representation or warranty within 90 days of becoming aware of it or, with the
consent of a Responsible Officer of the Indenture Trustee, any longer period
specified in the consent.
Section 2.04. Representations and Warranties of the Sponsor Regarding
the Mortgage Loans; Retransfer of Certain Mortgage Loans.
(a) The Sponsor represents and warrants to the Indenture Trustee,
the Trust, and the Credit Enhancer that as of the Cut-off Date, unless
specifically stated otherwise:
(i) As of the Closing Date with respect to the Mortgage
Loans, and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, this Agreement constitutes a valid
and legally binding obligation of the Sponsor, enforceable against the
Sponsor in accordance with its terms.
(ii) As of the Closing Date with respect to the Mortgage
Loans, and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, either
(A) the Purchase Agreement constitutes a valid transfer
to the Depositor of all right, title, and interest of the
Sponsor in the applicable Mortgage Loans, all monies due or to
become due on them (excluding payments of accrued interest due
by the Cut-off Date), all proceeds of the applicable Mortgage
Loans, and any funds from time to time deposited in the
Collection Account (excluding investment earnings on the funds)
and all other property specified in Section 2.01(a) and this
Agreement constitutes a valid transfer to the Trust of the
foregoing property such that, on execution of this Agreement,
it is owned by the Trust free of all liens and other
encumbrances, and is part of the corpus of the Trust conveyed
to the Trust by the Sponsor, and upon payment for the
Additional Balances, the Purchase Agreement and this Agreement
will constitute a valid transfer to the Trust of all right,
title, and interest of the Sponsor in the Additional Balances,
all monies due or to become due on them, all proceeds of the
Additional Balances, and all other property specified in
Section 2.01(a) relating to the Additional Balances free of all
liens and other encumbrances, or
(B) the Purchase Agreement or this Agreement, as
appropriate, constitutes a Grant of a Security Interest to the
Owner Trustee on behalf of the Trust in the property described
in clause (A) above and the Indenture constitutes a Grant of a
Security Interest to the Indenture Trustee in the Collateral.
The Indenture Trustee has a first priority perfected Security
Interest in the Collateral, subject to the effect of Section
9-315 of the UCC with respect to collections on the Mortgage
Loans that are deposited in the Collection Account in
accordance with the next to last paragraph of Section 3.02(b),
and if this Agreement constitutes the Grant of a Security
Interest in the property described in clause (A) above to the
Trust, the Trust has a first priority perfected Security
Interest in the property, subject to the same limitations. This
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Security Interest is enforceable as such against creditors of
and purchasers from the Trust, the Depositor, and the Sponsor.
(iii) The Sponsor has not authorized the filing of and is not
aware of any financing statements against the Sponsor that include a
description of collateral covering the Collateral other than any
financing statement (A) relating to the Security Interests granted to
the Depositor, the Trust, or the Indenture Trustee hereunder, (B) that
has been terminated, or (C) that names the Depositor, the Trust, or
the Indenture Trustee as secured party.
(iv) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan and as of the date any Additional
Balance is created, the information in the Mortgage Loan Schedule for
the Mortgage Loans is correct in all material respects.
(v) The applicable Mortgage Loan has not been assigned or
pledged, and the Sponsor is its sole owner and holder free of any
liens, claims, encumbrances, participation interests, equities,
pledges, charges, or Security Interests of any nature, and has full
authority, under all governmental and regulatory bodies having
jurisdiction over the ownership of the applicable Mortgage Loan, to
transfer it pursuant to the Purchase Agreement.
(vi) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, the related Mortgage Note and the
mortgage for each Mortgage Loan have not been assigned or pledged, and
immediately before the sale of the Mortgage Loans to the Depositor,
the Sponsor was the sole owner and holder of the Mortgage Loan free of
any liens, claims, encumbrances, participation interests, equities,
pledges, charges, or Security Interests of any nature, and has full
authority, under all governmental and regulatory bodies having
jurisdiction over the ownership of the applicable Mortgage Loans, to
transfer it pursuant to the Purchase Agreement.
(vii) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, the related mortgage is a valid and
subsisting first or second lien on the property described in it, as
shown on the Mortgage Loan Schedule with respect to each related
Mortgage Loan, and as of the Cut-off Date or date of substitution, as
applicable, the related Mortgaged Property is free of all encumbrances
and liens having priority over the first or second lien, as
applicable, of the mortgage except for liens for
(A) real estate taxes and special assessments not yet
delinquent;
(B) any first mortgage loan secured by the Mortgaged
Property and specified on the Mortgage Loan Schedule;
(C) covenants, conditions and restrictions, rights of
way, easements, and other matters of public record as of the
date of recording that are acceptable to mortgage lending
institutions generally; and
10
(D) other matters to which like properties are commonly
subject that do not materially interfere with the benefits of
the security intended to be provided by the mortgage.
(viii) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, no obligor has a valid offset,
defense, or counterclaim under any Credit Line Agreement or mortgage.
(ix) To the best knowledge of the Sponsor, as of the Closing
Date with respect to the Mortgage Loans and the applicable date of
substitution with respect to any Eligible Substitute Mortgage Loan, no
related Mortgaged Property has any delinquent recording or other tax
or fee or assessment lien against it.
(x) As of the Closing Date with respect to the Mortgage Loans
and the applicable date of substitution with respect to any Eligible
Substitute Mortgage Loan, no proceeding is pending or, to the best
knowledge of the Sponsor, threatened for the total or partial
condemnation of the related Mortgaged Property, and the property is
free of material damage;
(xi) To the best knowledge of the Sponsor, as of the Closing
Date with respect to the Mortgage Loans and the applicable date of
substitution with respect to any Eligible Substitute Mortgage Loan, no
mechanics' or similar liens or claims have been filed for work, labor,
or material affecting the related Mortgaged Property that are, or may
be, liens prior or equal to the lien of the related mortgage, except
liens that are fully insured against by the title insurance policy
referred to in clause (xv).
(xii)No Minimum Monthly Payment on a Mortgage Loan is more
than 59 days delinquent (measured on a contractual basis) and no more
than the percentage specified in the Adoption Annex of the Mortgage
Loans being transferred on the Closing Date (by Cut-off Date Loan
Balance) were 30-59 days delinquent (measured on a contractual basis).
(xiii) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, for each Mortgage Loan, the related
Mortgage File contains each of the documents specified to be included
in them.
(xiv) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, the related Mortgage Note and the
related mortgage at origination complied in all material respects with
applicable state and federal laws, including usury, truth-in-lending,
real estate settlement procedures, consumer credit protection, equal
credit opportunity, or disclosure laws applicable to the Mortgage
Loan, and the servicing practices used by the Master Servicer with
respect to each Mortgage Loan have been consistent with the practices
and the degree of skill and care the Master Servicer
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exercises in servicing for itself loans that it owns that are
comparable to the Mortgage Loans.
(xv) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, either a lender's title insurance
policy or binder was issued on the date of origination of the Mortgage
Loan being transferred on the relevant date and each policy is valid
and remains in full force, or a title search or guaranty of title
customary in the relevant jurisdiction was obtained with respect to a
Mortgage Loan as to which no title insurance policy or binder was
issued.
(xvi) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, none of the Mortgaged Properties is
a mobile home or a manufactured housing unit that is not considered or
classified as part of the real estate under the laws of the
jurisdiction in which it is located.
(xvii) As of the Cut-off Date for the Mortgage Loans no more
than the percentage specified in the Adoption Annex of the Mortgage
Loans, by aggregate principal balance, are secured by Mortgaged
Properties located in one United States postal zip code.
(xviii) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, the Combined Loan-to-Value Ratio
for each Mortgage Loan was not in excess of the percentage specified
in the Adoption Annex.
(xix) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, no selection procedure reasonably
believed by the Sponsor to be adverse to the interests of the
Transferor, the Noteholders, or the Credit Enhancer was used in
selecting the Mortgage Loans.
(xx) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, the Sponsor has not transferred the
Mortgage Loans to the Trust with any intent to hinder, delay, or
defraud any of its creditors.
(xxi) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, the Minimum Monthly Payment with
respect to any Mortgage Loan is not less than the interest accrued at
the applicable Loan Rate on the average daily Asset Balance during the
interest period relating to the date on which the Minimum Monthly
Payment is due.
(xxii) The Mortgage Notes are "instruments" as defined in the
UCC.
(xxiii) By the Closing Date with respect to the Mortgage
Loans and within 10 days of the applicable date of substitution with
respect to any Eligible Substitute
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Mortgage Loan, the Sponsor will file UCC-1 financing statements in the
proper filing office in the appropriate jurisdiction to perfect the
Security Interest in the Collateral Granted hereunder.
(xxiv) The Mortgage Notes that constitute or evidence the
Collateral do not have any marks or notations indicating that they
have been pledged, assigned, or otherwise conveyed to any Person other
than the Depositor, the Trust, or the Indenture Trustee. All financing
statements filed or to be filed against the Sponsor in favor of the
Depositor, the Trust, or the Indenture Trustee in connection with this
Agreement, the Purchase Agreement, or the Indenture describing the
Collateral contain a statement to the following effect: "A purchase of
the Mortgage Loans included in the collateral covered by this
financing statement will violate the rights of the Depositor, the
Trust, or the Indenture Trustee."
(xxv) The Issuer has received a written acknowledgement from
the Custodian that is acting solely as agent of the Indenture Trustee.
(xxvi) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, each Credit Line Agreement and each
Mortgage Loan is an enforceable obligation of the related mortgagor.
(xxvii) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, the Sponsor has not received a
notice of default of any senior mortgage loan related to a Mortgaged
Property that has not been cured by a party other than the Master
Servicer.
(xxviii) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, the definition of "prime rate" in
each Credit Line Agreement relating to a Mortgage Loan does not differ
materially from the definition in the form of Credit Line Agreement in
Exhibit B.
(xxix) The weighted average remaining term to maturity of the
Mortgage Loans on a contractual basis as of the Cut-off Date
approximately the number of months specified in the Adoption Annex. On
each date that the Loan Rates have been adjusted, interest rate
adjustments on the Mortgage Loans were made in compliance with the
related mortgage and Mortgage Note and applicable law. Over the term
of each Mortgage Loan, the Loan Rate may not exceed the related Loan
Rate Cap. The Loan Rate Cap for the Mortgage Loans ranges between the
percentages specified in the Adoption Annex and the weighted average
Loan Rate Cap is approximately the percentage specified in the
Adoption Annex. The Gross Margins for the Mortgage Loans range between
the percentages specified in the Adoption Annex and the weighted
average Gross Margin is approximately the percentage specified in the
Adoption Annex as of the Cut-off Date for the Mortgage Loans. The Loan
Rates on the Mortgage Loans range between the percentages specified in
the Adoption Annex and the weighted
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average Loan Rate on the Mortgage Loans is approximately the
percentage specified in the Adoption Annex The percentage of the
Mortgage Loans (by credit limit) that were underwritten in conformity
with Xxxxxx Xxx guidelines is approximately the percentage specified
in the Adoption Annex.
(xxx) As of the Closing Date with respect to the Mortgage
Loans and the applicable date of substitution with respect to any
Eligible Substitute Mortgage Loan, each Mortgaged Property consists of
a single parcel of real property with a one-to-four unit single family
residence erected on it, or an individual condominium unit, planned
unit development unit, or townhouse.
(xxxi) No more than the percentage specified in the Adoption
Annex (by Cut-off Date Loan Balance) of the Mortgage Loans are secured
by real property improved by individual condominium units, units in
planned unit developments, townhouses or two-to-four family residences
erected on them, and at least the percentage specified in the Adoption
Annex (by Cut-off Date Loan Balance) of the Mortgage Loans are secured
by real property with a detached one-family residence erected on them;
(xxxii) The Credit Limits on the Mortgage Loans range between
approximately the dollar amounts specified in the Adoption Annex with
an average of approximately the dollar amount specified in the
Adoption Annex. As of the Cut-off Date for the Mortgage Loans, no
Mortgage Loan had a principal balance in excess of approximately the
dollar amount specified in the Adoption Annex and the average
principal balance of the Mortgage Loans is equal to approximately the
dollar amounts specified in the Adoption Annex.
(xxxiii) Approximately the percentages specified in the
Adoption Annex of the Mortgage Loans, by aggregate principal balance
as of the Cut-off Date are first and second liens.
(xxxiv) As of the Closing Date, no more than the percentage
specified in the Adoption Annex of the Mortgage Loans, by aggregate
principal balance, were appraised electronically.
If the substance of any representation and warranty in this Section
made to the best of the Sponsor's knowledge or as to which the Sponsor has no
knowledge is inaccurate and the inaccuracy materially and adversely affects
the interest of the Trust and the Noteholders in the related Mortgage Loan
then, notwithstanding that the Sponsor did not know the substance of the
representation and warranty was inaccurate at the time the representation or
warranty was made, the inaccuracy shall be a breach of the applicable
representation or warranty.
(b) The representations and warranties in this Section shall
survive delivery of the respective Mortgage Files to the Custodian pursuant to
the Custodial Agreement and the termination of the rights and obligations of
the Master Servicer pursuant to Section 5.04 or 6.02. If the Sponsor, the
Depositor, the Master Servicer, the Credit Enhancer, or a Responsible Officer
of the Indenture Trustee discovers a breach of any of the foregoing
representations and warranties (other than the representation and warranty in
Section 2.04(a)(v)), without regard to
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any limitation concerning the knowledge of the Sponsor, that materially and
adversely affects the interests of the Trust, the Indenture Trustee under the
Indenture, the Noteholders, or the Credit Enhancer in the Mortgage Loan, the
party discovering the breach shall give prompt notice to the other parties and
the Credit Enhancer. The Sponsor shall use all reasonable efforts to cure in
all material respects any breach within 90 days of becoming aware of it or
shall, not later than the Business Day before the Payment Date in the month
following the Collection Period in which the cure period expired (or any later
date that the Indenture Trustee and the Credit Enhancer consent to), either
(1) accept a transfer of the Mortgage Loan from the Trust or (2) substitute an
Eligible Substitute Mortgage Loan in accordance with Section 2.02. The cure
for any breach of a representation and warranty relating to the
characteristics of the Mortgage Loans in the aggregate shall be a repurchase
of or substitution for only the Mortgage Loans necessary to cause the
characteristics to comply with the related representation and warranty. Upon
accepting the transfer and making any required deposit into the Collection
Account or substitution of an Eligible Substitute Mortgage Loan, as the case
may be, the Owner Trustee shall execute any documents of transfer presented by
the Sponsor, without recourse, representation, or warranty, and take any other
actions reasonably requested by the Sponsor to effect the transfer by the
Trust of the Mortgage Loans.
The sole remedy of the Noteholders, the Indenture Trustee on behalf of
Noteholders, the Owner Trustee, and the Credit Enhancer against the Sponsor
for the breach of a representation or warranty other than Section 2.04(a)(v)
is the Sponsor's obligation to accept a transfer of a Mortgage Loan as to
which a breach has occurred and is continuing and to make any required deposit
in the Collection Account or to substitute an Eligible Substitute Mortgage
Loan. If the representation and warranty in Section 2.04(a)(v) is breached,
the transfer of the affected Mortgage Loans to the Trust shall be void and the
Sponsor shall pay to the Trust the sum of (i) the amount of the related Asset
Balances, plus accrued interest on each Asset Balance at the applicable Loan
Rate to the date of payment and (ii) the amount of any loss suffered by the
Transferor, the Noteholders, or the Credit Enhancer with respect to the
affected Mortgage Loans. The Indenture Trustee may enforce the Sponsor's
obligations under this Section in its own right or as the owner of the Trust's
right to seek enforcement as the assignee of the Trust's rights under this
Agreement pursuant to the Indenture.
The Sponsor shall defend and indemnify the Indenture Trustee, the
Owner Trustee, the Credit Enhancer, and the Noteholders against all reasonable
costs and expenses, and all losses, damages, claims, and liabilities,
including reasonable fees and expenses of counsel and the amount of any
settlement entered into with the consent of the Sponsor (this consent not to
be unreasonably withheld), that may be asserted against or incurred by any of
them as a result of any third-party action arising out of any breach of a
representation and warranty.
Section 2.05. Covenants of the Depositor.
The Depositor covenants that:
(a) Security Interests. Except for the transfer under this
Agreement, the Depositor will not transfer any Mortgage Loan to any other
person, or create or suffer to exist any Lien on any Mortgage Loan or any
interest in one, whether existing now or in the future; the Depositor will
15
notify the Indenture Trustee of the existence of any Lien on any Mortgage Loan
immediately on its discovery; and the Depositor will defend the right, title,
and interest of the Trust in the Mortgage Loans, whether existing now or in
the future, against all claims of third parties claiming through the
Depositor. Nothing in this Section shall prohibit the Depositor from suffering
to exist on any Mortgage Loan any Liens for municipal or other local taxes and
other governmental charges if the taxes or governmental charges are not due at
the time or if the Depositor is contesting their validity in good faith by
appropriate proceedings and has set aside on its books adequate reserves with
respect to them.
(b) Negative Pledge. The Depositor shall not transfer or grant a
Security Interest in the Transferor Certificates except in accordance with
Section 4.05 of the Trust Supplement to the Trust Agreement establishing the
Series referred to in the Adoption Annex.
(c) Additional Indebtedness. So long as the Notes are outstanding
the Depositor will not incur any debt other than debt that (i) is non-recourse
to the assets of the Depositor other than the mortgage loans specifically
pledged as security for the debt, or (ii) is subordinated in right of payment
to the rights of the Noteholders, or (iii) is assigned a rating by each of the
Rating Agencies that is the same as the then current rating of the Notes.
(d) Downgrading. The Depositor will not engage in any activity that
would result in a downgrading of the Class A Notes or the Class A-IO
Certificates without regard to the Policy.
(e) Amendment to Certificate of Incorporation. The Depositor will
not amend its Certificate of Incorporation without prior notice to the Rating
Agencies, the Indenture Trustee, and the Credit Enhancer.
Section 2.06. Transfers of Mortgage Loans at Election of Transferor.
Subject to the conditions below, the Transferor may require the
transfer of Mortgage Loans from the Trust to the Transferor as of the close of
business on a Payment Date (the "Transfer Date"). In connection with any
transfer, the Transferor Interest shall be reduced by the aggregate Asset
Balances as of their Transfer Date of the Mortgage Loans transferred. On the
fifth Business Day (the "Transfer Notice Date") before the Transfer Date
designated in the notice, the Transferor shall give the Owner Trustee, the
Indenture Trustee, the Master Servicer, and the Credit Enhancer a notice of
the proposed transfer that contains a list of the Mortgage Loans to be
transferred. These transfers of Mortgage Loans shall be permitted if the
following conditions are satisfied:
(i) No Rapid Amortization Event has occurred.
(ii) On the Transfer Date the Transferor Principal Balance
(after giving effect to the removal of the Mortgage Loans proposed to
be transferred) is greater than or equal to zero.
(iii) The transfer of any Mortgage Loans on any Transfer Date
during the Managed Amortization Period shall not, in the reasonable
belief of the Transferor, cause a Rapid Amortization Event to occur or
an event that with notice or lapse of time or both would constitute a
Rapid Amortization Event.
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(iv) By the Transfer Date, the Transferor shall have
delivered to the Indenture Trustee a revised Mortgage Loan Schedule,
reflecting the proposed transfer and the Transfer Date, and the Master
Servicer shall have marked the Electronic Ledger to show that the
Mortgage Loans transferred to the Transferor are no longer owned by
the Trust.
(v) The Transferor shall represent and warrant that no
selection procedures that the Transferor reasonably believes are
adverse to the interests of the Noteholders or the Credit Enhancer
were used by the Transferor in selecting the Mortgage Loans.
(vi) In connection with each transfer of Mortgage Loans
pursuant to this Section, each Rating Agency and the Credit Enhancer
shall have received by the related Transfer Notice Date notice of the
proposed transfer of Mortgage Loans and, before the Transfer Date,
each Rating Agency shall have notified the Transferor, the Indenture
Trustee, and the Credit Enhancer that the transfer of Mortgage Loans
would not result in a reduction or withdrawal of its then current
rating of the Notes without regard to the Policy.
(vii) The Transferor shall have delivered to the Owner
Trustee, the Indenture Trustee, and the Credit Enhancer an Officer's
Certificate certifying that the items in subparagraphs (i) through
(vi), inclusive, have been performed or are true, as the case may be.
The Owner Trustee and the Indenture Trustee may conclusively rely on
the Officer's Certificate, shall have no duty to make inquiries with
regard to the matters in it, and shall incur no liability in so
relying.
Upon receiving the requisite information from the Transferor, the
Master Servicer shall perform in a timely manner those acts required of it, as
specified above. Upon satisfaction of the above conditions, on the Transfer
Date the Indenture Trustee shall effect delivery to the Transferor the
Mortgage File for each Mortgage Loan being so transferred, and the Indenture
Trustee shall execute and deliver to the Transferor any other documents
prepared by the Transferor reasonably necessary to transfer the Mortgage Loans
to the Transferor. This transfer of the Trust's interest in Mortgage Loans
shall be without recourse, representation, or warranty by the Indenture
Trustee or the Trust to the Transferor.
Section 2.07. Tax Treatment.
The Depositor and the Transferor intend that the Class A Notes will be
indebtedness of the Transferor for federal, state, and local income and
franchise tax purposes and for purposes of any other tax imposed on or
measured by income. The Transferor and the Depositor agree to treat the Class
A Notes for purposes of federal, state, and local income or franchise taxes
and any other tax imposed on or measured by income, as indebtedness of the
Transferor secured by the assets of the Trust and to report the transactions
contemplated by this Agreement on all applicable tax returns in a manner
consistent with this treatment. The Indenture Trustee will prepare and file
all tax reports required under this Agreement on behalf of the Trust.
17
Section 2.08. Representations and Warranties of the Depositor.
The Depositor represents and warrants to the Indenture Trustee on
behalf of the Noteholders and the Credit Enhancer as follows:
(i) This Agreement constitutes a valid and legally binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms.
(ii) Immediately before to the sale and assignment by the
Depositor to the Trust of each Mortgage Loan, the Depositor was the
sole beneficial owner of each Mortgage Loan (insofar as the title was
conveyed to it by the Sponsor) subject to no prior lien, claim,
participation interest, mortgage, Security Interest, pledge, charge,
or other encumbrance or other interest of any nature.
(iii) As of the Closing Date, the Depositor has transferred
all right, title, and interest in the Mortgage Loans to the Trust and,
as of each applicable date of substitution, the Depositor has
transferred all right, title, and interest in the Eligible Substitute
Mortgage Loan to the Trust.
(iv) The Depositor has not transferred the Mortgage Loans to
the Trust with any intent to hinder, delay, or defraud any of its
creditors.
Section 2.09. Seller Loss Coverage Obligation.
The Seller, for the benefit of the Noteholders, agrees that it will
pay the Seller Loss Coverage Obligation for any Payment Date as reflected in
the applicable Servicing Certificate to the Indenture Trustee no later than
the Business Day before the Payment Date.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. The Master Servicer.
The Master Servicer shall service and administer the Mortgage Loans in
a manner consistent with the terms of this Agreement and with general industry
practice and shall have full power and authority, acting alone or through a
subservicer, (i) to execute and deliver, on behalf of the Noteholders, the
Trust, and the Indenture Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided in this Agreement), (iii) to collect any Insurance
Proceeds and other Liquidation Proceeds, and (iv) to effectuate foreclosure or
other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan. The Master Servicer shall remain responsible to the parties to
this Agreement and the Credit Enhancer for its obligations under this
Agreement. Any amounts received by any subservicer on a Mortgage Loan shall be
considered to have been received by the Master Servicer whether or not
actually received by it. Without limiting the generality of the foregoing, the
Master Servicer may execute and deliver, on behalf of itself, the Noteholders,
and the Indenture Trustee, or any of them, any instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the
18
Mortgage Loans and with respect to the Mortgaged Properties, in each case to
the extent not inconsistent with this Agreement.
At the request of a Servicing Officer, the Indenture Trustee shall
furnish the Master Servicer with any powers of attorney and other documents
appropriate to enable the Master Servicer to carry out its servicing and
administrative duties under this Agreement. The Master Servicer in this
capacity may also consent to the placing of a lien senior to that of any
mortgage on the related Mortgaged Property, if
(i) the new senior lien secures a mortgage loan that
refinances an existing first mortgage loan and
(ii) the Loan-to-Value Ratio of the new mortgage loan (without
taking into account any closing costs that may be financed by the new
mortgage loan) is equal to or less than the Loan-to-Value Ratio of the
first mortgage loan to be replaced measured either (A) as of the
Cut-off Date or (B) as of the date of the refinancing referenced in
clause (i).
The aggregate Asset Balance of the Mortgage Loans with respect to which the
senior lien may be modified in accordance with clause (ii)(A) may not exceed
10% of the Original Note Principal Balance and clause (ii)(B) may not exceed
40% of the Original Note Principal Balance. The aggregate Asset Balance of all
the Mortgage Loans with respect to which the senior lien may be so modified
may not exceed 50% of the Original Note Principal Balance (this 50% referred
to as the "Increased Senior Lien Limitation").
The Master Servicer may also, without approval from the Rating
Agencies or the Credit Enhancer, increase the Credit Limits on Mortgage Loans
if
(i) new appraisals are obtained and the weighted average
Combined Loan-to-Value Ratios of the Mortgage Loans after giving
effect to the increase are less than or equal to the weighted average
Combined Loan-to-Value Ratios of the Mortgage Loans as of the Cut-off
Date and
(ii) the increases are consistent with the Master Servicer's
underwriting policies. In addition, the Master Servicer may increase
the Credit Limits on the Mortgage Loans having aggregate Asset
Balances of up to an additional 2.5% of the Original Note Principal
Balance, if
(x) the increase in the Credit Limit of a Mortgage Loan
does not cause the Combined Loan-to-Value Ratio of the Mortgage
Loan to exceed 100%,
(y) the increase in the Credit Limit of a Mortgage Loan
does not cause the Combined Loan-to-Value Ratio of the Mortgage
Loan to increase by more than 25% (for example, a Combined
Loan-to-Value Ratio of 50% can be increased to 75%, a Combined
Loan-to-Value Ratio of 60% can be increased to 85%, and so
forth), and
(z) the increase is consistent with the Master Servicer's
underwriting policies.
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Furthermore, the Master Servicer, without prior approval from the
Rating Agencies or the Credit Enhancer, may solicit mortgagors for a reduction
in Loan Rates. The Master Servicer may only reduce the Loan Rates on up to 10%
of the Mortgage Loans by Original Note Principal Balance. Any solicitations
shall not result in a reduction in the weighted average Gross Margin of the
Mortgage Loans by more than 25 basis points taking into account any prior
reductions.
In addition, the Master Servicer may agree to changes in the terms of
a Mortgage Loan at the request of the mortgagor if the changes (i) do not
materially and adversely affect the interests of Noteholders, the Transferor,
or the Credit Enhancer and (ii) are consistent with prudent and customary
business practice as evidenced by a certificate signed by a Servicing Officer
delivered to the Indenture Trustee and the Credit Enhancer.
In addition, the Master Servicer may solicit mortgagors to change any
other terms of the related Mortgage Loans if the changes (i) do not materially
and adversely affect the interests of the Noteholders, the Transferor, or the
Credit Enhancer and (ii) are consistent with prudent and customary business
practice as evidenced by a certificate signed by a Servicing Officer delivered
to the Indenture Trustee and the Credit Enhancer. Nothing in this Agreement
shall limit the right of the Master Servicer to solicit mortgagors with
respect to new loans (including mortgage loans) that are not Mortgage Loans.
The Master Servicer may register any Mortgage Loan on the MERS(R)
System, or cause the removal from registration of any Mortgage Loan on the
MERS(R) System, and execute and deliver, on behalf of the Owner Trustee, any
instruments of assignment and other comparable instruments with respect to the
assignment or re-recording of a mortgage in the name of MERS, solely as
nominee for the Owner Trustee and its successors and assigns.
For so long as any Mortgage Loan is registered on the MERS(R) System,
the Master Servicer shall maintain in good standing its membership in MERS and
shall comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans that are registered with
MERS. If any Mortgage Loans are registered on the MERS(R) System, the Master
Servicer may cause MERS to execute and deliver an assignment of mortgage in
recordable form to transfer any of the Mortgage Loans registered on the
MERS(R) System from MERS to the Owner Trustee. The Master Servicer shall
promptly notify MERS of any transfer of beneficial ownership or release of any
Security Interest in any MOM Loan.
The relationship of the Master Servicer to the Trust and the Indenture
Trustee under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner, or agent of
the Trust or the Indenture Trustee.
(b) If the rights and obligations of the Master Servicer are
terminated under this Agreement, any successor to the Master Servicer in its
sole discretion may terminate the existing subservicer arrangements with any
subservicer or assume the terminated Master Servicer's rights under those
subservicing arrangements to the extent permitted by applicable law and the
subservicing agreements.
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Section 3.02. Collection of Certain Mortgage Loan Payments;
Establishment of Accounts.
(a) The Master Servicer shall make reasonable efforts to collect
all payments called for under the Mortgage Loans, and shall follow the
collection procedures it follows for mortgage loans in its servicing portfolio
comparable to the Mortgage Loans, to the extent consistent with this
Agreement. Consistent with the foregoing, and without limiting the generality
of the foregoing, the Master Servicer may in its discretion (i) waive any late
payment charge or any assumption fees or other fees that may be collected in
the ordinary course of servicing the Mortgage Loans and (ii) arrange with a
mortgagor a schedule for the payment of interest due and unpaid if the
arrangement is consistent with the Master Servicer's policies with respect to
the mortgage loans it owns or services. Notwithstanding any arrangement, the
Mortgage Loans will be included in the information regarding delinquent
Mortgage Loans in the Servicing Certificate and monthly statement to
Noteholders pursuant to Section 7.04 of the Indenture.
(b) The Master Servicer shall establish and maintain a trust
account (the "Collection Account") with the title specified in the Adoption
Annex. The Collection Account shall be an Eligible Account. The Master
Servicer shall, on the Business Day before the first Payment Date, deposit in
the Collection Account any amounts representing payments on, and any
collections in respect of, the Mortgage Loans received after the Cut-off Date
and before the Closing Date (exclusive of payments of accrued interest due by
the Cut-off Date), and then the Master Servicer, or the Sponsor, as the case
may be, shall deposit within two Business Days following its receipt the
following payments and collections received or made by it (without
duplication):
(1) all collections on the Mortgage Loans;
(2) the amounts deposited to the Collection Account pursuant
to Section 4.03;
(3) Net Liquidation Proceeds net of any related Foreclosure
Profit;
(4) any payments received from the Co-trustee as a payment
under the Loan Insurance Policy;
(5) any payments of the Seller Loss Coverage Obligation;
(6) Insurance Proceeds; and
(7) any amounts required to be deposited pursuant to Section
7.01.
The Master Servicer may retain from payments of interest on the
Mortgage Loans in each Collection Period, the Servicing Fee for the Collection
Period and any unreimbursed optional advance made by the Master Servicer
pursuant to Section 4.03. Notwithstanding the foregoing, so long as
Countrywide is the Master Servicer and (x) the Master Servicer's long-term
senior unsecured debt obligations are rated at least "Baa2" by Moody's and
"BBB" by Standard & Poor's and (y) the Credit Enhancer's claims-paying ability
is rated "Aaa" by Moody's and "AAA" by Standard & Poor's, the Master Servicer
need not make daily deposits in the Collection Account for any Collection
Period, but instead may make a single deposit in the Collection Account of
amounts to be remitted by it for the Collection Period in immediately
available funds on the Business Day before the related Payment Date. No other
amounts are to be deposited to the Collection Account, including amounts
representing Foreclosure Profits,
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fees (including annual fees) or late charge penalties payable by mortgagors,
or amounts received by the Master Servicer for the accounts of mortgagors for
application towards the payment of taxes, insurance premiums, assessments,
excess pay off amounts, and similar items. The Master Servicer shall remit all
Foreclosure Profits to the Sponsor.
The Indenture Trustee shall hold amounts deposited in the Collection
Account as trustee for the Noteholders, the Transferor, and the Credit
Enhancer. In addition, the Master Servicer shall notify the Indenture Trustee
and the Credit Enhancer on each Determination Date of the amount of
collections in the Collection Account allocable to Interest Collections and
Principal Collections for the Mortgage Loans for the related Payment Date.
Following this notification, the Master Servicer may withdraw from the
Collection Account and retain any amounts that constitute income realized from
the investment of the collections.
Amounts on deposit in the Collection Account will be invested in
Eligible Investments maturing no later than the day before the next Payment
Date at the direction of the Master Servicer. All income realized from any
investment in Eligible Investments of funds in the Collection Account is the
Master Servicer's and may be withdrawn from time to time. Any losses incurred
on these investments that reduce principal shall be deposited in the
Collection Account by the Master Servicer out of its own funds immediately as
realized.
Section 3.03. Withdrawals from the Collection Account.
(a) If the Master Servicer makes monthly deposits in the Collection
Account pursuant to Section 3.02(b), the Master Servicer may make a net
deposit in the Collection Account of the amounts required by Section 3.02(b).
Section 3.04. Maintenance of Hazard Insurance; Property Protection
Expenses.
The Master Servicer shall cause to be maintained for each Mortgage
Loan hazard insurance naming the Master Servicer or the related subservicer as
loss payee under it providing extended coverage in an amount that is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing the Mortgage Loan from time to time or (ii) the combined principal
balance owing on the Mortgage Loan and any mortgage loan senior to the
Mortgage Loan from time to time. The Master Servicer shall also maintain on
property acquired through foreclosure, or by deed in lieu of foreclosure,
hazard insurance with extended coverage in an amount which is at least equal
to the lesser of (i) the maximum insurable value from time to time of the
improvements that are a part of the property or (ii) the combined principal
balance owing on the Mortgage Loan and any mortgage loan senior to the
Mortgage Loan at the time of the foreclosure or deed in lieu of foreclosure
plus accrued interest and the good-faith estimate of the Master Servicer of
related Liquidation Expenses to be incurred.
Amounts collected by the Master Servicer under these policies shall be
deposited in the Collection Account to the extent called for by Section 3.02.
The hazard insurance to be maintained for the related Mortgage Loan shall
include flood insurance when the Mortgaged Property is located in a federally
designated flood area. The flood insurance shall be in the amount required
under applicable guidelines of the Federal Flood Emergency Act. No other
insurance need be carried on any Mortgaged Properties pursuant to this
Agreement.
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Section 3.05. Assumption and Modification Agreements.
When a Mortgaged Property has been or is about to be conveyed by the
mortgagor, the Master Servicer shall exercise its right to accelerate the
maturity of the Mortgage Loan consistent with the then current practice of the
Master Servicer and without regard to the inclusion of the Mortgage Loan in
the Trust. If it elects not to enforce its right to accelerate or if it is
prevented from doing so by applicable law, the Master Servicer (so long as its
action conforms with the underwriting standards generally acceptable in the
industry at the time for new origination) may enter into an assumption and
modification agreement with the person to whom the Mortgaged Property has been
or is about to be conveyed, pursuant to which that person becomes liable under
the Credit Line Agreement and, to the extent permitted by applicable law, the
mortgagor remains liable on it. The Master Servicer shall notify the Indenture
Trustee that any assumption and modification agreement has been completed by
delivering to the Indenture Trustee an Officer's Certificate certifying that
the agreement is in compliance with this Section and by forwarding the
original copy of the assumption and modification agreement to the Indenture
Trustee. Any assumption and modification agreement shall be a part of the
related Mortgage File. No change in the terms of the related Credit Line
Agreement may be made by the Master Servicer in connection with the assumption
to the extent that the change would not be permitted to be made in the
original Credit Line Agreement pursuant to Section 3.01(a). Any fee collected
by the Master Servicer for entering into the assumption and modification
agreement will be retained by the Master Servicer as additional servicing
compensation.
Section 3.06. Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans.
The Master Servicer shall foreclose or otherwise comparably convert to
ownership Mortgaged Properties securing defaulted Mortgage Loans when, in the
opinion of the Master Servicer based on normal and usual practices and
procedures, no satisfactory arrangements can be made for collection of
delinquent payments pursuant to Section 3.02. If the Master Servicer has
actual knowledge or reasonably believes that any Mortgaged Property is
affected by hazardous or toxic wastes or substances and that the acquisition
of the Mortgaged Property would not be commercially reasonable, then the
Master Servicer will not cause the Trust to acquire title to the Mortgaged
Property in a foreclosure or similar proceeding. In connection with
foreclosure or other conversion, the Master Servicer shall follow the
practices and procedures it deems appropriate and that are normal and usual in
its general mortgage servicing activities and that satisfy the requirements of
the issuer of the Loan Insurance Policy, including advancing funds to correct
a default on a related senior mortgage loan. However, the Master Servicer
shall not be required to expend its own funds in connection with any
foreclosure or towards the correction of any default on a related senior
mortgage loan or restoration of any property unless it determines that the
expenditure will increase Net Liquidation Proceeds.
If title to any Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure, the deed or certificate of sale shall be issued
to the Indenture Trustee, or to its nominee on behalf of Noteholders. The
Master Servicer shall dispose of the Mortgaged Property as soon as practicable
in a manner that maximizes its Liquidation Proceeds.
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The Master Servicer, in its sole discretion, may purchase for its own
account from the Trust any Mortgage Loan that is 151 days or more delinquent.
The price for any Mortgage Loan purchased shall be 100% of its Asset Balance
plus accrued interest on it at the applicable Loan Rate from the date through
which interest was last paid by the related mortgagor to the first day of the
month in which the purchase price is to be distributed to the Noteholders. The
purchase price shall be deposited in the Collection Account. The Master
Servicer may only exercise this right on or before the penultimate day of the
calendar month in which the Mortgage Loan became 151 days delinquent. Any
delinquent Mortgage Loan that becomes current but thereafter again becomes 151
days or more delinquent may be purchased by the Master Servicer pursuant to
this Section. Upon receipt of a certificate from the Master Servicer in the
form of Exhibit D, the Indenture Trustee shall release to the Master Servicer
the related Mortgage File and shall execute and deliver any instruments of
transfer prepared by the Master Servicer, without recourse, necessary to vest
in the purchaser of the Mortgage Loan any Mortgage Loan released to it and the
Master Servicer shall succeed to all the Trust's interest in the Mortgage Loan
and all related security and documents. This assignment shall be an assignment
outright and not for security. The Master Servicer shall then own the Mortgage
Loan, and all security and documents, free of any further obligation to the
Trust, the Owner Trustee, the Indenture Trustee, the Credit Enhancer, the
Transferor, or the Noteholders with respect to it.
Section 3.07. Indenture Trustee to Cooperate.
By each Payment Date, the Master Servicer will notify the Indenture
Trustee whenever the Asset Balance of any Mortgage Loan has been paid in full
during the preceding Collection Period. A Servicing Officer shall certify that
the Mortgage Loan has been paid in full and that all amounts received in
connection with the payment that are required to be deposited in the
Collection Account pursuant to Section 3.02 have been so deposited or
credited. Upon payment in full pursuant to Section 3.01, the Master Servicer
is authorized to execute an instrument of satisfaction regarding the related
mortgage, which instrument of satisfaction shall be recorded by the Master
Servicer if required by applicable law and be delivered to the person entitled
to it.
If the mortgage has been registered on the MERS(R) System, the Master
Servicer shall cause the removal of the mortgage from registration on the
MERS(R) System and execute and deliver, on behalf of the Indenture Trustee and
the Noteholders, any instruments of satisfaction or cancellation or of partial
or full release. No expenses incurred in connection with the instrument of
satisfaction or transfer shall be reimbursed from amounts deposited in the
Collection Account.
As appropriate for the servicing or foreclosure of any Mortgage Loan,
or in connection with the payment in full of the Asset Balance of any Mortgage
Loan, upon request of the Master Servicer and delivery to the Indenture
Trustee of a Request for Release substantially in the form of Exhibit D signed
by a Servicing Officer, the Indenture Trustee shall release the related
Mortgage File to the Master Servicer and the Indenture Trustee shall execute
any documents provided by the Master Servicer necessary to the prosecution of
any proceedings or the taking of other servicing actions. The Master Servicer
shall return the Mortgage File to the Indenture Trustee when the need for it
by the Master Servicer no longer exists, unless the Mortgage Loan is
liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that
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specified above, the Request for Release shall be released by the Indenture
Trustee to the Master Servicer.
To facilitate the foreclosure of the mortgage securing any Mortgage
Loan that is in default following recordation of the assignments of mortgage
in accordance with this Agreement, if so requested by the Master Servicer, the
Indenture Trustee shall execute an appropriate assignment in the form provided
to the Indenture Trustee by the Master Servicer to assign the Mortgage Loan
for the purpose of collection to the Master Servicer or a subservicer. The
assignment shall unambiguously indicate that the assignment is for the purpose
of collection only. The Master Servicer will then bring all required actions
in its own name and otherwise enforce the terms of the Mortgage Loan and
deposit the Net Liquidation Proceeds, exclusive of Foreclosure Profits, in the
Collection Account. If all delinquent payments due under the Mortgage Loan are
paid by the mortgagor and any other defaults are cured, then the Master
Servicer shall promptly reassign the Mortgage Loan to the Indenture Trustee
and return the related Mortgage File to the place where it was being
maintained.
Section 3.08. Servicing Compensation; Payment of Certain Expenses by
Master Servicer.
The Master Servicer may retain the Servicing Fee pursuant to Section
3.02 and 3.03 as compensation for its services in servicing the Mortgage
Loans. Moreover, additional servicing compensation in the form of late payment
charges or other receipts not required to be deposited in the Collection
Account (other than Foreclosure Profits) shall be retained by the Master
Servicer. The Master Servicer must pay all expenses incurred by it in
connection with its activities under this Agreement (including payment of all
other fees and expenses not expressly stated under this Agreement to be for
the account of another person) and shall not be entitled to reimbursement
under this Agreement except as specifically provided in this Agreement.
Liquidation Expenses are reimbursable to the Master Servicer
FIRST, from related Liquidation Proceeds and
SECOND, from the Collection Account pursuant to Section
8.03(a)(x) of the Indenture.
Section 3.09. Annual Statement as to Compliance.
(a) The Master Servicer will deliver to the Indenture Trustee, the
Credit Enhancer, and the Rating Agencies, by the date in each year specified
in the Adoption Annex, beginning on the date specified in the Adoption Annex,
an Officer's Certificate stating that (i) a review of the activities of the
Master Servicer during the preceding fiscal year (or the applicable shorter
period for the first report) and of its performance under this Agreement has
been made under the officer's supervision and (ii) to the best of the
officer's knowledge, based on the review, the Master Servicer has fulfilled
all of its material obligations under this Agreement throughout the fiscal
year, or, if there has been a default in the fulfillment of those obligations,
specifying each default known to the officer and its nature and status.
(b) Within five Business Days after obtaining knowledge of it, the
Master Servicer shall notify the Indenture Trustee, the Credit Enhancer, and
each of the Rating Agencies of any
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event that with the giving of notice or the lapse of time would become an
Event of Servicing Termination by delivering an Officer's Certificate
describing the event.
Section 3.10. Annual Servicing Report.
By the date in each year specified in the Adoption Annex, beginning on
the date specified in the Adoption Annex, the Master Servicer, at its expense,
shall cause a firm of nationally recognized independent public accountants
(who may also render other services to the Master Servicer) to furnish a
report to the Indenture Trustee, the Credit Enhancer, and each Rating Agency
to the effect that the firm has examined certain documents and records
relating to the servicing of mortgage loans during the most recent fiscal year
then ended under sale and servicing agreements or pooling and servicing
agreements (substantially similar to this Agreement, including this
Agreement), that the examination was conducted substantially in compliance
with the audit guide for audits of non-supervised mortgagees approved by the
Department of Housing and Urban Development for use by independent public
accountants (to the extent that the procedures in the audit guide are
applicable to the servicing obligations in those agreements), and that the
examination has disclosed no items of noncompliance with this Agreement that,
in the opinion of the firm, are material, except for the items of
noncompliance described in the report.
Section 3.11. Access to Certain Documentation and Information
Regarding the Mortgage Loans.
(a) The Master Servicer shall provide to the Indenture Trustee, the
Credit Enhancer, any Noteholders that are federally insured savings and loan
associations, the Office of Thrift Supervision, successor to the Federal Home
Loan Bank Board, the FDIC, and the supervisory agents and examiners of the
Office of Thrift Supervision access to the documentation regarding the
Mortgage Loans required by applicable regulations of the Office of Thrift
Supervision and the FDIC (acting as operator of the Savings Association
Insurance Fund or the Bank Insurance Fund). The Master Servicer will provide
access without charge but only after reasonable notice and during normal
business hours at the offices of the Master Servicer. Nothing in this Section
shall derogate from the obligation of the Master Servicer to observe any
applicable law prohibiting disclosure of information regarding the mortgagors
and the failure of the Master Servicer to provide access as provided in this
Section as a result of this obligation shall not constitute a breach of this
Section.
(b) The Master Servicer shall supply the information needed to make
required distributions and to furnish required reports to Noteholders and to
make any claim under the Policy, in the form the Indenture Trustee reasonably
requests, to the Indenture Trustee and any Paying Agent by the start of the
Determination Date preceding the related Payment Date.
Section 3.12. Maintenance of Certain Servicing Insurance Policies.
The Master Servicer shall during the term of its service as master
servicer maintain in force (i) policies of insurance covering errors and
omissions in the performance of its obligations as master servicer under this
Agreement and (ii) a fidelity bond covering its officers, employees, or
agents. Each policy and bond together shall comply with the requirements from
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time to time of Xxxxxx Xxx for persons performing servicing for mortgage loans
purchased by Xxxxxx Mae.
Section 3.13. Reports to the Securities and Exchange Commission.
The Administrator shall, on behalf of the Trust, effect filing with
the Securities and Exchange Commission of any periodic reports required to be
filed under the Securities Exchange Act of 1934 and the rules and regulations
of the Securities and Exchange Commission under it. At the request of the
Administrator, each of the Sponsor, the Master Servicer, the Depositor, the
Indenture Trustee, and the Transferor shall cooperate with the Administrator
in the preparation of these reports and shall provide to the Indenture Trustee
in a timely manner all information or documentation the Indenture Trustee
reasonably requests in connection with the performance of its obligations
under this Section.
Section 3.14. Tax Treatment.
The Transferor shall treat the Mortgage Loans as its property for all
federal, state, or local tax purposes and shall report all income earned
thereon (including amounts payable as fees to the Master Servicer) as its
income for income tax purposes. The Master Servicer shall prepare all tax
information required by law to be distributed to Noteholders. The Master
Servicer shall not be liable for any liabilities, costs, or expenses of the
Trust, the Noteholders, the Transferor, or the Note Owners arising under any
tax law, including federal, state, or local income and franchise or excise
taxes or any other tax imposed on or measured by income (or any interest or
penalty with respect to any tax or arising from a failure to comply with any
tax requirement).
Section 3.15. Information Required by the Internal Revenue Service
Generally and Reports of Foreclosures and Abandonments of Mortgaged Property.
The Master Servicer shall prepare and deliver all federal and state
information reports when and as required by all applicable state and federal
income tax laws. In particular, with respect to the requirement under Section
6050J of the Code for reports of foreclosures and abandonments of any
mortgaged property, the Master Servicer shall file reports relating to each
instance occurring during the previous calendar year in which the Master
Servicer (i) on behalf of the Indenture Trustee acquires an interest in any
Mortgaged Property through foreclosure or other comparable conversion in full
or partial satisfaction of a Mortgage Loan, or (ii) knows or has reason to
know that any Mortgaged Property has been abandoned. The reports from the
Master Servicer shall be in form, substance, and timing sufficient to meet the
reporting requirements imposed by Section 6050J of the Code.
Section 3.16. The Loan Insurance Policy.
The Master Servicer shall take whatever action is appropriate to
maximize the amounts payable under the Loan Insurance Policy and to service
the Mortgage Loans in the manner required by the Loan Insurance Policy. The
Master Servicer shall prepare and submit all claims eligible for submission
under the Loan Insurance Policy and shall perform all of the obligations of
the insured under the Loan Insurance Policy other than those in Section
6.15(a) of the Indenture to be performed by the Co-Trustee. If the Loan
Insurance Policy is terminated for any reason other than the exhaustion of its
coverage, or if the claims-paying ability rating of its issuer is reduced to
below investment grade, the Master Servicer will use its best efforts to
27
obtain a comparable policy from an insurer that is acceptable to the Rating
Agencies. The replacement policy will provide coverage equal to the then
remaining coverage of the Loan Insurance Policy if available. However, if the
premium cost of a replacement policy exceeds the premium cost of the Loan
Insurance Policy, the coverage amount of the replacement policy will be
reduced so that its premium cost will not exceed the premium cost of the Loan
Insurance Policy. The Master Servicer will withdraw from the Collection
Account (to the extent of available funds) and forward to the Co-Trustee (1)
on or before 12:00 NOON (New York City time) on the 15th day following the
Closing Date, the initial premium due under the Loan Insurance Policy, (2) on
or before 12:00 NOON (New York City time) on each Payment Date, the monthly
premium due under the Loan Insurance Policy for that Payment Date, and (3) on
the due date therefor, any other amount owed to the Loan Insurance Policy
Provider under the Loan Insurance Policy.
ARTICLE IV
SERVICING CERTIFICATE
Section 4.01. Servicing Certificate.
Not later than each Determination Date, the Master Servicer shall
deliver (a) to the Indenture Trustee the data necessary to prepare the items
below and the statement for Noteholders required to be prepared pursuant to
Section 4.04 and (b) to the Indenture Trustee, the Owner Trustee, the Sponsor,
the Depositor, the Paying Agent, the Credit Enhancer, and each Rating Agency a
Servicing Certificate (in written form or the form of computer readable media
or such other form as may be agreed to by the Indenture Trustee and the Master
Servicer), together with an Officer's Certificate to the effect that the
Servicing Certificate is correct in all material respects, stating the related
Collection Period, Payment Date, the series number of the Notes, the date of
this Agreement, and:
(i) the aggregate amount of collections received on the
Mortgage Loans by the Determination Date for the related Collection
Period;
(ii) the aggregate amount of (a) Interest Collections and (b)
Principal Collections for the related Collection Period;
(iii) the Investor Floating Allocation Percentage and the
Investor Fixed Allocation Percentage for the related Collection
Period;
(iv) the Investor Interest Collections and Investor Principal
Collections for the related Collection Period;
(v) the Interest Collections that are not Investor Interest
Collections and Transferor Principal Collections for the related
Collection Period;
(vi) the Class A Note Interest and the applicable Class A Note
Rate for the Class A Notes for the related Class A Note Interest
Period and the Class A-IO Certificate Interest and the applicable
Class A-IO Certificate Rate for the Class A-IO Certificates for the
related Class A-IO Certificate Interest Period;
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(vii) the amount of the Class A Note Interest that is not
payable to the Class A Noteholders because of insufficient Investor
Interest Collections and the amount of the Class A-IO Certificate
Interest that is not payable to the Class A-IO Certificateholders
because of insufficient Investor Interest Collections;
(viii) the Class A Note Unpaid Interest Shortfall and the
amount of interest on the shortfall at the applicable Class A Note
Rate applicable from time to time (separately stated) to be
distributed on the related Payment Date and the Class A-IO Certificate
Unpaid Interest Shortfall and the amount of interest on the shortfall
at the applicable Class A-IO Certificate Rate applicable from time to
time (separately stated) to be distributed on the related Payment
Date;
(ix) the remaining Class A Note Unpaid Interest Shortfall
after the distribution on the related Payment Date and the remaining
Class A-IO Certificate Unpaid Interest Shortfall after the
distribution on the related Payment Date;
(x) the amount of any Basis Risk Carryforward in the
distribution;
(xi) the amount of the remaining Basis Risk Carryforward after
giving effect to the related distribution;
(xii) the amount of payment received on the Loan Insurance
Policy and the amount of its remaining coverage;
(xiii) the Scheduled Principal Collections Payment Amount,
separately stating its components;
(xiv) the amount of any Transfer Deposit Amount paid by the
Sponsor or the Depositor pursuant to Section 2.02 or 2.04;
(xv) any accrued Servicing Fees for the Mortgage Loans for
previous Collection Periods and the Servicing Fee for the related
Collection Period;
(xvi) the Investor Loss Amount for the related Collection
Period;
(xvii) the aggregate amount of Investor Loss Reduction Amounts
for previous Payment Dates that have not been previously reimbursed to
the Holders of the Class A Notes pursuant to Section 8.03(a)(vi) of
the Indenture;
(xviii) the aggregate Asset Balance of the Mortgage Loans as
of the end of the preceding Collection Period and as of the end of the
second preceding Collection Period;
(xix) the amount of payments received on the Seller Loss
Coverage Obligation and the amount of its remaining coverage;
(xx) the Note Principal Balance and loan factor after giving
effect to the distribution on the related Payment Date and to any
reduction because of the Investor Loss Amount;
(xxi) the Transferor Principal Balance after giving effect to
the distribution on the Payment Date;
(xxii) the aggregate amount of Additional Balances created on
the Mortgage Loans during the previous Collection Period;
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(xxiii) the number and aggregate Asset Balances of Mortgage
Loans (x) as to which the Minimum Monthly Payment is delinquent for
30-59 days, 60-89 days, and 90 or more days, respectively and (y) that
have become REO, in each case as of the end of the preceding
Collection Period;
(xxiv) whether a Rapid Amortization Event has occurred since
the prior Determination Date, specifying the Rapid Amortization Event
if one has occurred;
(xxv) whether an Event of Servicing Termination has occurred
since the prior Determination Date, specifying the Event of Servicing
Termination if one has occurred;
(xxvi) the amount to be distributed to the Credit Enhancer
pursuant to Section 8.03(a)(viii) and Section 8.03(a)(ix) of the
Indenture, stated separately;
(xxvii) the Guaranteed Principal Payment Amount for the
Payment Date;
(xxviii) the Credit Enhancement Draw Amount for the related
Payment Date;
(xxix) the amount to be distributed to the Transferor pursuant
to Section 8.03(a)(xi) of the Indenture;
(xxx) the amount to be paid to the Master Servicer pursuant to
Section 8.03(a)(x) of the Indenture;
(xxxi) the Maximum Rate for the related Collection Period and
the Weighted Average Net Loan Rate for the Mortgage Loans;
(xxxii) the expected amount of any optional advances pursuant
to Section 4.03 by the Master Servicer included in the distribution on
the related Payment Date and the aggregate expected amount of optional
advances pursuant to Section 4.03 by the Master Servicer outstanding
as of the close of business on the related Payment Date;
(xxxiii) the number and principal balances of any Mortgage
Loans transferred to the Transferor pursuant to Section 2.06;
(xxxiv) the aggregate of all Liquidation Loss Amounts on the
Mortgage Loans since the Cut-off Date and whether a Cumulative Loss
Test Violation has occurred since the prior Determination Date; and
(xxxv) in the Servicing Certificates for the first Payment
Date, the number and Cut-off Date Asset Balance of Mortgage Loans for
which the Mortgage Loan File was not delivered to the Indenture
Trustee within 30 days of the Closing Date.
The Indenture Trustee and the Owner Trustee shall conclusively rely
upon the information contained in a Servicing Certificate for purposes of
making distributions pursuant to Section 8.03 of the Indenture or
distributions on the Transferor Certificates, shall have no duty to inquire
into this information and shall have no liability in so relying. The format
and content of the Servicing Certificate may be modified by the mutual
agreement of the Master Servicer, the Indenture Trustee and the Credit
Enhancer. The Master Servicer shall give notice of any changes to the Rating
Agencies.
Section 4.02. Acknowledgement and Cooperation.
The Depositor, the Master Servicer and the Indenture Trustee
acknowledge that without the need for any further action on the part of the
Credit Enhancer, the Depositor, the Master
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Servicer, the Indenture Trustee or the Note Registrar (a) to the extent the
Credit Enhancer makes payments, directly or indirectly, on account of
principal of or interest or other amounts on any Notes to the Holders of the
Notes or the Credit Enhancer, as applicable, will be fully subrogated to the
rights of these Holders to receive the principal and interest from the Trust
and (b) the Credit Enhancer shall be paid the principal and interest or other
amounts but only from the sources and in the manner provided herein for the
payment of the principal and interest or other amounts. The Indenture Trustee
and the Master Servicer shall cooperate in all respects with any reasonable
request by the Credit Enhancer for action to preserve or enforce the Credit
Enhancer's rights or interests under this Agreement and the Indenture without
limiting the rights or affecting the interests of the Holders as otherwise
stated in this Agreement and the Indenture.
Section 4.03. Optional Advances of the Master Servicer.
The Master Servicer, in its sole discretion, may advance the interest
component of any delinquent Minimum Monthly Payment (or any portion of it) by
depositing the amount into the Collection Account by the related Determination
Date.
Section 4.04. Statements to Noteholders.
Concurrently with each payment to Noteholders, the Master Servicer
shall deliver to the Indenture Trustee the data necessary to prepare a
statement (the "Monthly Statement") for each Payment Date with the following
information:
(i) the Investor Floating Allocation Percentage for the
preceding Collection Period;
(ii) the aggregate amount to be paid to the Class A
Noteholders and the Class A-IO Certificateholders;
(iii) the amount of Class A Note Interest in the payment, the
Class A Note Rate, the amount of Class A-IO Certificate Interest in
the payment and the Class A-IO Certificate Rate;
(iv) the amount of any Class A Note Unpaid Interest Shortfall
in the payment, and the amount of any Class A-IO Certificate Unpaid
Interest Shortfall in the payment;
(v) the amount of the remaining Class A Note Unpaid Interest
Shortfall after giving effect to the payment and the amount of the
remaining Class A-IO Certificate Unpaid Interest Shortfall after
giving effect to the payment;
(vi) the amount of principal in the payment on the Class A
Notes, separately stating its components;
(vii) the amount of the reimbursement of previous Investor Loss
Amounts in the payment;
(viii) the amount of the aggregate of unreimbursed Investor
Loss Reduction Amounts after giving effect to the payment;
(ix) the amount of any Basis Risk Carryforward in the payment;
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(x) the amount of the remaining Basis Risk Carryforward after
giving effect to the payment;
(xi) the Servicing Fee for the Payment Date;
(xii) the Note Principal Balance and the factor to seven
decimal places obtained by dividing the Note Principal Balance for the
Payment Date by the Original Note Principal Balance after giving
effect to the payment;
(xiii) the Loan Balance as of the end of the preceding
Collection Period;
(xiv) any Credit Enhancement Draw Amount;
(xv) the number and aggregate Asset Balances of Mortgage Loans
as to which the Minimum Monthly Payment is delinquent for 30-59 days,
60-89 days, and 90 or more days, respectively, as of the end of the
preceding Collection Period;
(xvi) the book value (within the meaning of 12 X.X.X.xx. 571.13
or comparable provision) of any real estate acquired through
foreclosure or grant of a deed in lieu of foreclosure;
(xvii) the amount of any optional advances pursuant to Section
4.03 by the Master Servicer included in the payment on the Payment
Date and the aggregate amount of optional advances pursuant to Section
4.03 by the Master Servicer outstanding as of the close of business on
the Payment Date;
(xviii) the Class A Note Rate for the payment on the Class A
Notes and the Class A-IO Certificate Rate for the payment on the Class
A-IO Certificates;
(xix) the number and principal balances of any Mortgage Loans
retransferred to the Transferor pursuant to each of Section 2.04 and
Section 2.06;
(xx) the amount of Loan Insurance Policy payments included in
the payment;
(xxi) the amount of Seller Loss Coverage Obligation payments
included in the payment; and
(xxii) for the first Payment Date, the number and Cut-off-
Date Asset Balance of Mortgage Loans for which the Mortgage Loan File
was not delivered to the Indenture Trustee within 30 days of the
Closing Date.
The amounts furnished pursuant to clauses (ii), (iii), (v), (vi),
(vii), and (viii) above for Class A Note Interest and Class A-IO Certificate
Interest shall be expressed as a dollar amount per $1,000 increment of the
Notes.
If the Monthly Statement is not accessible to any of the Noteholders,
the Master Servicer, the Credit Enhancer, or either Rating Agency on the
Indenture Trustee's internet website, the Indenture Trustee shall forward a
hard copy of it to each Noteholder, the Master Servicer, the Credit Enhancer,
and each Rating Agency immediately after the Indenture Trustee becomes aware
that the Monthly Statement is not accessible to any of them via the Indenture
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Trustee's internet website. The address of the Indenture Trustee's internet
website where the Monthly Statement will be accessible is
xxxxx://xxx.xxx.xxxxxxx.xxx. Assistance in using the Indenture Trustee's
internet website may be obtained by calling the Indenture Trustee's customer
service desk at (000) 000-0000. The Indenture Trustee shall notify each
Noteholder, the Master Servicer, the Credit Enhancer, and each Rating Agency
in writing of any change in the address or means of access to the internet
website where the Monthly Statement is accessible.
Within 60 days after the end of each calendar year, the Master
Servicer shall prepare and forward to the Indenture Trustee the information in
clauses (iii) and (vi) above aggregated for the calendar year. This
requirement of the Master Servicer shall be satisfied if substantially
comparable information is provided by the Master Servicer or a Paying Agent
pursuant to any requirements of the Code.
The Indenture Trustee shall prepare (in a manner consistent with the
treatment of the Notes as indebtedness of the Transferor, or as may be
otherwise required by Section 3.14) Internal Revenue Service Form 1099 (or any
successor form) and any other tax forms required to be filed or furnished to
Noteholders for payments by the Indenture Trustee (or the Paying Agent) on the
Notes and shall file and distribute such forms as required by law.
ARTICLE V
THE MASTER SERVICER, THE SPONSOR, AND THE DEPOSITOR
Section 5.01. Liability of the Sponsor, the Master Servicer, and the
Depositor.
The Sponsor, the Depositor, and the Master Servicer shall be liable
only for their express agreements under this Agreement.
Section 5.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Master Servicer or the Depositor.
Any corporation into which the Master Servicer or the Depositor may be
merged or consolidated, or any corporation resulting from any merger,
conversion, or consolidation to which the Master Servicer or the Depositor is
a party, or any corporation succeeding to the business of the Master Servicer
or the Depositor, shall be the successor of the Master Servicer or the
Depositor, as the case may be, under this Agreement, without the execution or
filing of any paper or any further act on the part of any of the parties to
this Agreement, notwithstanding anything in this Agreement to the contrary.
Section 5.03. Limitation on Liability of the Master Servicer and
Others.
Neither the Master Servicer nor any of its directors, officers,
employees, or agents is liable to the Trust, the Owner Trustee, the
Transferor, or the Noteholders for the Master Servicer's taking any action or
refraining from taking any action in good faith pursuant to this Agreement, or
for errors in judgment. This provision shall not protect the Master Servicer
or any of its directors, officers, employees, or agents against any liability
that would otherwise be imposed for misfeasance, bad faith, or gross
negligence in the performance of the duties of the Master Servicer or for
reckless disregard of the obligations of the Master Servicer. The Master
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Servicer and any of its directors, officers, employees, or agents may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any person about anything arising under this Agreement.
The Master Servicer and each of its directors, officers, employees,
and agents shall be indemnified by the Trust and held harmless against any
loss, liability, or expense incurred in connection with any legal action
relating to this Agreement, the Transferor Certificates, or the Notes, other
than any loss, liability, or expense related to any specific Mortgage Loan
that is otherwise not reimbursable pursuant to this Agreement and any loss,
liability, or expense incurred due to its willful misfeasance, bad faith, or
gross negligence in the performance of duties under this Agreement or due to
its reckless disregard of its obligations under this Agreement.
The Master Servicer need not appear in, prosecute, or defend any legal
action that is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement, and
that in its opinion may involve it in any expense or liability. The Master
Servicer may in its sole discretion undertake any action that it deems
appropriate with respect to this Agreement and the interests of the
Noteholders. If so, the reasonable legal expenses and costs of the action and
any resulting liability shall be expenses, costs, and liabilities of the
Trust, and the Master Servicer shall only be entitled to be reimbursed
pursuant to Section 8.03(a)(x) of the Indenture. The Master Servicer's right
to indemnity or reimbursement pursuant to this Section shall survive any
resignation or termination of the Master Servicer pursuant to Section 5.04 or
6.01 with respect to any losses, expenses, costs, or liabilities arising
before its resignation or termination (or arising from events that occurred
before its resignation or termination).
Section 5.04. Master Servicer Not to Resign.
Subject to Section 5.02, the Master Servicer shall not resign as
Master Servicer under this Agreement except
(i) if the performance of its obligations under this
Agreement are no longer permissible under applicable law or due to
applicable law are in material conflict with any other activities
carried on by it or its subsidiaries or Affiliates that are of a type
and nature carried on by the Master Servicer or its subsidiaries or
Affiliates at the date of this Agreement or
(ii) if
(a) the Master Servicer has proposed a successor Master
Servicer to the Indenture Trustee and the proposed successor
Master Servicer is reasonably acceptable to the Indenture
Trustee;
(b) each Rating Agency has delivered a letter to the
Indenture Trustee before the appointment of the successor
Master Servicer stating that the proposed appointment of the
successor Master Servicer as Master Servicer under this
Agreement will not result in the reduction or withdrawal of the
then current rating of the Notes without regard to the Policy;
and
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(c) the proposed successor Master Servicer is reasonably
acceptable to the Credit Enhancer in its sole discretion, as
evidenced by a letter to the Indenture Trustee.
No resignation by the Master Servicer shall become effective until the
Indenture Trustee or successor Master Servicer designated by the Master
Servicer has assumed the Master Servicer's obligations under this Agreement or
the Indenture Trustee has designated a successor Master Servicer in accordance
with Section 6.02. Any resignation shall not relieve the Master Servicer of
responsibility for any of the obligations specified in Sections 6.01 and 6.02
as obligations that survive the resignation or termination of the Master
Servicer. Any determination permitting the resignation of the Master Servicer
pursuant to clause (i) above shall be evidenced by an Opinion of Counsel to
that effect delivered to the Indenture Trustee and the Credit Enhancer. The
Master Servicer shall have no claim (whether by subrogation or otherwise) or
other action against the Transferor, any Noteholder, or the Credit Enhancer
for any amounts paid by the Master Servicer pursuant to any provision of this
Agreement.
Section 5.05. Delegation of Duties.
In the ordinary course of business, the Master Servicer may delegate
any of its duties under this Agreement at any time to any person who agrees to
act in accordance with standards comparable to those with which the Master
Servicer complies pursuant to Section 3.01, including any of its Affiliates or
any subservicer referred to in Section 3.01. This delegation shall not relieve
the Master Servicer of its obligations under this Agreement and shall not
constitute a resignation within the meaning of Section 5.04.
Section 5.06. Indemnification by the Master Servicer.
The Master Servicer shall indemnify the Trust, the Owner Trustee, the
Co-Trustee, and the Indenture Trustee against any loss, liability, expense,
damage, or injury suffered or sustained due to the Master Servicer's actions
or omissions in servicing or administering the Mortgage Loans that are not in
accordance with this Agreement, including any judgment, award, settlement,
reasonable attorneys' fees, and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding, or claim.
This indemnification is not payable from the assets of the Trust. This
indemnity shall run directly to and be enforceable by an injured party subject
to any applicable limitations. The provisions of this Section shall survive
termination of this Agreement or the resignation or removal of the Indenture
Trustee or the Co-Trustee.
ARTICLE VI
SERVICING TERMINATION
Section 6.01. Events of Servicing Termination.
If any one of the following events ("Events of Servicing Termination")
shall occur and be continuing:
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(i) any failure by the Master Servicer to deposit in the
Collection Account any deposit required to be made under this
Agreement that continues unremedied either beyond the relevant Payment
Date or for five Business Days (or, if the Master Servicer is
permitted to remit collections on a monthly basis pursuant to Section
3.02(b), three Business Days) after the date when notice of the
failure has been given to the Master Servicer by the Indenture Trustee
or to the Master Servicer and the Indenture Trustee by the Credit
Enhancer or Holders of Notes representing not less than 25% of the
Outstanding Amount; or
(ii) failure by the Master Servicer duly to observe or
perform in any material respect any other covenants or agreements of
the Master Servicer in the Notes or in this Agreement that materially
and adversely affects the interests of the Noteholders or the Credit
Enhancer and continues unremedied for a period of 60 days after the
date on which notice of the failure, requiring it to be remedied, and
stating that the notice is a "Notice of Default" under this Agreement,
has been given to the Master Servicer by the Indenture Trustee or to
the Master Servicer and the Indenture Trustee by the Credit Enhancer
or the Holders of Notes representing not less than 25% of the
Outstanding Amount; or
(iii) an Insolvency Event occurs with respect to the Master
Servicer;
then, until the Event of Servicing Termination has been remedied by the Master
Servicer, either the Indenture Trustee, the Credit Enhancer, or the Holders of
Notes representing not less than 51% of the Outstanding Amount with the
consent of the Credit Enhancer by notice then given to the Master Servicer
(and to the Indenture Trustee if given by the Credit Enhancer or the Holders
of Notes) may terminate all of the rights and obligations of the Master
Servicer as servicer under this Agreement. This notice to the Master Servicer
shall also be given to each Rating Agency, and the Credit Enhancer.
From the receipt by the Master Servicer of the notice, all the rights
and obligations of the Master Servicer under this Agreement, whether with
respect to the Notes or the Mortgage Loans or otherwise, shall pass to and be
vested in the Indenture Trustee pursuant to this Section; and the Indenture
Trustee is authorized to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any documents, and to do anything
else appropriate to effect the purposes of the notice of termination, whether
to complete the transfer and endorsement of each Mortgage Loan and related
documents, or otherwise. The Master Servicer agrees to cooperate with the
Indenture Trustee in effecting the termination of the rights and obligations
of the Master Servicer under this Agreement, including the transfer to the
Indenture Trustee for the administration by it of all cash amounts that are
held by the Master Servicer and are to be deposited by it in the Collection
Account, or that have been deposited by the Master Servicer in the Collection
Account or are subsequently received by the Master Servicer with respect to
the Mortgage Loans. All reasonable costs and expenses (including attorneys'
fees) incurred in connection with transferring the Mortgage Files to the
successor Master Servicer and amending this Agreement to reflect the
succession as Master Servicer pursuant to this Section shall be paid by the
predecessor Master Servicer (or if the predecessor Master Servicer is the
Indenture
36
Trustee, the initial Master Servicer) on presentation of reasonable
documentation of the costs and expenses.
Notwithstanding the foregoing, a delay in or failure of performance
under Section 6.01(i) for a period of five or more Business Days or under
Section 6.01(ii) for a period of 60 or more days, shall not constitute an
Event of Servicing Termination if the delay or failure could not be prevented
by the exercise of reasonable diligence by the Master Servicer and the delay
or failure was caused by an act of God or the public enemy, acts of declared
or undeclared war, public disorder, rebellion or sabotage, epidemics,
landslides, lightning, fire, hurricanes, earthquakes, floods, or similar
causes. The preceding sentence shall not relieve the Master Servicer from
using its best efforts to perform its obligations in a timely manner in
accordance with the terms of this Agreement, and the Master Servicer shall
provide the Indenture Trustee, the Depositor, the Transferor, the Credit
Enhancer, and the Noteholders with an Officers' Certificate giving prompt
notice of its failure or delay, together with a description of its efforts to
perform its obligations. The Master Servicer shall immediately notify the
Indenture Trustee of any Events of Servicing Termination.
In connection with the termination of the Master Servicer if any
mortgage is registered on the MERS(R) System, then, either (i) the successor
Master Servicer, including the Indenture Trustee if the Indenture Trustee is
acting as successor Master Servicer, shall represent and warrant that it is a
member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, or (ii) the
predecessor Master Servicer shall cooperate with the successor Master Servicer
in causing MERS to execute and deliver an assignment of mortgage in recordable
form to transfer all the mortgages registered on the MERS(R) System from MERS
to the Indenture Trustee and to execute and deliver any other notices and
documents appropriate to effect a transfer of those mortgages or the servicing
of the Mortgage Loan on the MERS(R) System to the successor Master Servicer.
The predecessor Master Servicer shall file the assignment in the appropriate
recording office. The successor Master Servicer shall deliver the assignment
to the Indenture Trustee promptly upon receipt of the original with evidence
of recording on it or a copy certified by the public recording office in which
the assignment was recorded.
Section 6.02. Indenture Trustee to Act; Appointment of Successor.
(a) From the time the Master Servicer receives a notice of
termination pursuant to Section 6.01 or resigns pursuant to Section 5.04, the
Indenture Trustee shall be the successor in all respects to the Master
Servicer in its capacity as Master Servicer under this Agreement and the
transactions contemplated by this Agreement and shall be subject to all the
obligations of the Master Servicer under this Agreement except (i) the
obligation to repurchase or substitute for any Mortgage Loan, (ii) with
respect to any representation or warranty of the Master Servicer, or (iii) for
any act or omission of either a predecessor or successor Master Servicer other
than the Indenture Trustee. As its compensation under this Agreement, the
Indenture Trustee shall be entitled to the compensation the Master Servicer
would have been entitled to under this Agreement if no notice of termination
had been given. In addition, the Indenture
37
Trustee will be entitled to compensation with respect to its expenses in
connection with conversion of certain information, documents, and record
keeping, as provided in Section 6.01.
Notwithstanding the above, (i) if the Indenture Trustee is unwilling
to act as successor Master Servicer, or (ii) if the Indenture Trustee is
legally unable to so act, the Indenture Trustee may (in the situation
described in clause (i)) or shall (in the situation described in clause (ii))
appoint, or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution, bank, or other mortgage loan
or home equity loan servicer having a net worth of not less than $15,000,000
as the successor to the Master Servicer under this Agreement to assume of any
obligations of the Master Servicer under this Agreement. The successor Master
Servicer must be acceptable to the Credit Enhancer in its sole discretion, as
evidenced by the Credit Enhancer's prior consent, as applicable, which consent
shall not be unreasonably withheld. The appointment of the successor Master
Servicer must not adversely affect coverage under the Loan Insurance Policy or
result in the qualification, reduction, or withdrawal of the ratings assigned
to the Notes by the Rating Agencies without regard to the Policy.
Pending appointment of a successor to the Master Servicer, unless the
Indenture Trustee is prohibited by law from so acting, the Indenture Trustee
shall act as Master Servicer. In connection with this appointment and
assumption, the successor shall be entitled to receive compensation out of
payments on Mortgage Loans in an amount equal to the compensation that the
Master Servicer would otherwise have received pursuant to Section 3.08 (or any
lesser compensation the Indenture Trustee and the successor agree to). The
Indenture Trustee and the successor shall take any action, consistent with
this Agreement, necessary to effectuate the succession.
(b) The appointment of a successor Master Servicer shall not affect
any liability of the predecessor Master Servicer that may have arisen under
this Agreement before its termination as Master Servicer (including any
deductible under an insurance policy pursuant to Section 3.04), nor shall any
successor Master Servicer be liable for any acts or omissions of the
predecessor Master Servicer or for any breach by the predecessor Master
Servicer of any of its representations or warranties contained in this
Agreement. Except for any compensation agreement with the Indenture Trustee,
any successor Master Servicer shall be subject to all the terms of this
Agreement from the time that it accepts its appointment to the same extent as
if it were originally named as Master Servicer.
Section 6.03. Notification to Noteholders and the Transferor.
Upon any termination or appointment of a successor to the Master
Servicer pursuant to this Article or Section 5.04, the Indenture Trustee shall
give prompt notice of it to the Noteholders at their respective addresses
appearing in the Note Register, the Transferor, the Credit Enhancer, and each
Rating Agency.
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ARTICLE VII
TERMINATION
Section 7.01. Termination.
(a) The respective obligations and responsibilities of the Sponsor,
the Master Servicer, the Depositor, the Trust, and the Indenture Trustee
created by this Agreement (other than the obligation of the Master Servicer to
send certain notices) shall terminate on the earlier of
(i) the transfer of all the Mortgage Loans pursuant to Section
7.01(b),
(ii) the termination of the Trust Agreement or the Indenture,
and
(iii) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust or the disposition of all
property acquired in foreclosure or by deed in lieu of foreclosure of
any Mortgage Loan.
Upon termination in accordance with this Section, the Indenture
Trustee shall execute any documents and instruments of transfer presented by
the Transferor, in each case without recourse, representation, or warranty,
and take any other actions the Transferor reasonably requests to effect the
transfer of the Mortgage Loans to the Transferor. Notwithstanding the
termination of this Agreement, the Master Servicer shall comply with this
Agreement in winding up activities under this Agreement after termination if
necessary.
(b) With the consent of the Credit Enhancer and after making the
required determination, the Transferor may effect the transfer of all the
Mortgage Loans at their termination purchase price on any Payment Date from
the Payment Date immediately before which the aggregate Note Principal Balance
is less than or equal to 10% of the aggregate Original Note Principal Balance.
The termination purchase price is the sum of:
(i) the aggregate Note Principal Balance, and
(ii) accrued Class A Note Aggregate Interest through the day
preceding the final Payment Date and accrued Class A-IO Certificate
Aggregate Interest through the day preceding the final Payment Date.
The Transferor may effect the transfer of the Mortgage Loans under
this subsection only if the Master Servicer determines that the customary and
reasonable costs and expenses incurred in the performance by the Master
Servicer of its servicing obligations under this Agreement exceed the benefits
accruing to the Master Servicer.
(c) The Transferor must notify the Credit Enhancer, the Trust, and
the Indenture Trustee of any election to effect the transfer of the Mortgage
Loans pursuant to Section 7.01(b) no later than the first day of the month
before the month in which the transfer is to occur. The proceeds from the
purchase of the Mortgage Loans, for purposes of payments on the Notes, shall
be considered to have been received in the Collection Period before the
Collection Period in which the Payment Date on which the purchase takes place
occurs.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Amendment.
This Agreement may be amended from time to time by the Sponsor, the
Master Servicer, the Depositor, the Owner Trustee, and the Indenture Trustee,
if the Rating Agency Condition is satisfied (in connection with which the
consent of the Credit Enhancer shall not be unreasonably withheld). However,
no amendment that significantly changes the permitted activities of the Trust
may be promulgated without the consent of a majority of the aggregate
Outstanding Amount of the Notes. For this purpose no Notes owned by the
Sponsor or any of its affiliates may vote, nor shall their Notes be considered
outstanding. This Agreement may also be amended from time to time by the
Sponsor, the Master Servicer, the Depositor, the Owner Trustee, and the
Indenture Trustee, with the consent of the Credit Enhancer (which consent
shall not be unreasonably withheld) and Holders of not less than 66 2/3% of the
aggregate Outstanding Amount of the Notes.
The Indenture Trustee may enter into any amendment of this Agreement
as to which the Rating Agency Condition is satisfied, and when so requested by
an Issuer Request, the Indenture Trustee shall enter into any amendment of
this Agreement
(i) that does not impose further obligations or liabilities on
the Indenture Trustee, and
(ii) as to which either the Rating Agency Condition is
satisfied or Holders of not less than 66 2/3% of the aggregate
Outstanding Amount of Notes and the Credit Enhancer have consented.
Following the execution and delivery of any amendment to this
Agreement or to the Policy to which the Credit Enhancer was required to
consent, either the Transferor, if the Transferor requested the amendment, or
the Master Servicer, if the Master Servicer requested the amendment, shall
reimburse the Credit Enhancer for the reasonable out-of-pocket costs and
expenses incurred by them in connection with the amendment.
Before the execution of the amendment, the party to this Agreement
requesting the amendment shall notify each Rating Agency of the substance of
the amendment. The Indenture Trustee shall deliver fully executed original
counterparts of the instruments effecting the amendment to the Credit
Enhancer.
Section 8.02. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PROVISIONS THAT
WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER STATE.
Section 8.03. Notices.
All notices, demands, instructions, consents, and other communications
required or permitted under this Agreement shall be in writing and signed by
the party giving the same and
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shall be personally delivered or sent by first class or express mail (postage
prepaid), national overnight courier service, or by facsimile transmission or
other electronic communication device capable of transmitting or creating a
written record (confirmed by first class mail) and shall be considered to be
given for purposes of this Agreement on the day that the writing is delivered
when personally delivered or sent by facsimile or overnight courier or three
Business Days after it was sent to its intended recipient if sent by first
class mail. A facsimile has been delivered when the sending machine issues an
electronic confirmation of transmission. Unless otherwise specified in a
notice sent or delivered in accordance with the provisions of this Section,
notices, demands, instructions, consents, and other communications in writing
shall be given to or made on the respective parties at their respective
addresses indicated below:
if to the Trust at:
CWABS Master Trust
Wilmington Trust Company, as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Telecopy: 000-000-0000
if to the Depositor at:
CWABS, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department
Telecopy:
if to the Master Servicer at:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Legal Department,
Telecopy:
if to the Indenture Trustee at:
the Corporate Trust Office
Telecopy: 000-000-0000
41
if to the Credit Enhancer at:
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Research and Risk Management
CWABS, Inc. Series 2002-A
Telecopy: 000-000-0000
if to Xxxxx'x at:
Residential Loan Monitoring Group, 4th Floor
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
if to Standard & Poor's at:
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Whenever a notice or other communication to the Credit Enhancer refers
to an Event of Servicing Termination or with respect to which failure on the
part of the Credit Enhancer to respond would constitute consent or acceptance,
then a copy of the notice or other communication shall also be sent to the
attention of the General Counsel of the Credit Enhancer and shall be marked to
indicate "URGENT MATERIAL ENCLOSED."
Section 8.04. Severability of Provisions.
Any provisions of this Agreement that are held invalid for any reason
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the invalidity or unenforceability without
invalidating the remaining provisions of this Agreement, and the prohibition
or unenforceability in a jurisdiction shall not invalidate or render
unenforceable that provision in any other jurisdiction.
Section 8.05. Assignment.
Except as provided in Sections 5.02 and 5.04, this Agreement may not
be assigned by the Depositor or the Master Servicer without the prior consent
of the Credit Enhancer.
Section 8.06. Third-Party Beneficiaries.
This Agreement will be binding on the parties to this Agreement, and
inure to the benefit of the parties to this Agreement, the Noteholders, the
Transferor, the Note Owners, the Owner Trustee, the Co-Trustee, and the Credit
Enhancer and their respective successors and permitted assigns. The Credit
Enhancer and the Co-Trustee are each a third party beneficiary of this
Agreement. No other person will have any rights under this Agreement.
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Section 8.07. Counterparts.
This Agreement may be executed in any number of copies, and by the
different parties on the same or separate counterparts, each of which shall be
considered to be an original instrument.
Section 8.08. Effect of Headings and Table of Contents.
The Article and Section headings in this Agreement and the Table of
Contents are for convenience only and shall not affect the construction of
this Agreement.
Section 8.09. Series Trust.
The Trust is a series trust pursuant to Sections 3804 and 3806(b)(2)
of the Business Trust Statute, and each series shall be a separate series of
the Trust within the meaning of Section 3806(b)(2) of the Business Trust
Statute. As such, this Agreement is entered into only with respect to the
Series of the Trust referred to in the Adoption Annex and the debts,
liabilities, obligations, and expenses incurred, contracted for, or otherwise
existing with respect to the Series referred to in the Adoption Annex shall be
enforceable against the assets of the Series referred to in the Adoption Annex
only, and not against the assets of the Trust generally, or the assets of any
other series.
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IN WITNESS WHEREOF, the Depositor, the Sponsor and Master Servicer,
the Trust, and the Indenture Trustee have caused this Agreement to be duly
executed by their respective officers all as of the day and year first above
written.
CWABS, INC.
Depositor
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
Sponsor and Master Servicer
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: First Vice President
BANK ONE, NATIONAL ASSOCIATION
Indenture Trustee
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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CWABS MASTER TRUST
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
45
State of California)
) ss.:
County of Los Angeles)
On the 28th day of February, 2002 before me, a notary public in and
for the State of California, personally appeared Xxxx Xxxxx, known to me who,
being by me duly sworn, did depose and say that he resides at Calabasas,
California; that he is the Vice President of CWABS, Inc. a Delaware
corporation, one of the parties that executed the foregoing instrument; that
he signed his name thereto by order of the Board of Directors of said
corporation.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires Oct 15, 2005
46
State of California )
) ss.:
County of Los Angeles )
On the 28th day of February, 2002 before me, a notary public in and
for the State of California, personally appeared Xxxx Xxxxx, known to me who,
being by me duly sworn, did depose and say that he resides at Calabasas,
California; that he is the Vice President of Countrywide Home Loans, Inc., a
New York corporation, one of the parties that executed the foregoing
instrument; and that he signed his name thereto by order of the Board of
Directors of said corporation.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires Oct 15, 2005
47
State of Illinois )
) ss.:
County of Xxxx )
On the 28th day of February, 2002 before me, a notary public in and
for the State of Illinois, personally appeared Xxxxxxx X. Xxxxxx, known to me
who, being by me duly sworn, did depose and say that she resides at 0000 X.
Xxxxx Xxxx; that she is the Vice President of Bank One, National Association,
a national banking association, one of the parties that executed the foregoing
instrument; that he signed his name thereto by order of the Board of Directors
of said corporation.
/s/ Xxxxx Xxxxxx
----------------
OFFICIAL SEAL
XXXXX XXXXXX
Notary Public,
State of Illinois
My Commission
Expires: 06/06/05
48
State of Delaware )
) ss.:
County of New Castle )
On the 27th day of February, 2002 before me, a notary public in and
for the State of Delaware, personally appeared Xxxxx X. Xxxxxxx, known to me
who, being by me duly sworn, did depose and say that she resides at
Wilmington, Delaware; that she is the FSO of Wilmington Trust Company, not in
its individual capacity but in its capacity as Owner Trustee of CWABS MASTER
TRUST, one of the parties that executed the foregoing instrument; that he
signed his name thereto by order of the Board of Directors of said
corporation.
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxxx
Notary Public
My Commission Expires October 31, 2002
49
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[Delivered to Indenture Trustee Only]
A-1
EXHIBIT B
FORM OF CREDIT LINE AGREEMENT
B-1
EXHIBIT C
FORM OF LETTER OF REPRESENTATIONS
C-1
EXHIBIT D
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
[DATE]
Bank One, National Association
as Indenture Trustee
1 Bank Xxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx Xxxxxxxx 00000-000
Attn: Corporate Trust Services Division
Re: CWABS, Inc. Revolving Home Equity Loan
Asset Backed Securities, Series 2002-A
--------------------------------------
Gentlemen:
In connection with the administration of the Mortgage Loans held by
you as Indenture Trustee under the Sale and Servicing Agreement dated as of
February [28], 2002, among CWABS, Inc. as Depositor, Countrywide Home Loans,
Inc., as Sponsor and Master Servicer, CWABS Master Trust and you, as Indenture
Trustee (the "Agreement"), we hereby request a release of the Mortgage File
held by you as Indenture Trustee with respect to the following described
Mortgage Loan for the reason indicated below.
Loan No.:
-------
[MIN No.]
--------
Reason for requesting file:
--------------------------
________________ 1. Mortgage Loan paid in full. (The Master Servicer
hereby certifies that all amounts received in
connection with the payment in full of the
Mortgage Loan which are required to be deposited
in the Collection Account pursuant to Section
4.02 of the Agreement have been so deposited).
________________ 2. Retransfer of Mortgage Loan. (The Master Servicer
hereby certifies that the Transfer Deposit Amount
has been deposited in the Collection Account
pursuant to the Agreement).
________________ 3. The Mortgage Loan is being foreclosed.
________________ 4. The Mortgage Loan is being re-financed by
another depository institution. (The Master
Servicer hereby certifies that all amounts
received in connection with the payment in full
of the Mortgage Loan which are required to be
deposited in the Collection Account pursuant to
Section 4.02 of the Agreement have been so
deposited).
________________ 5. Other (Describe).
The undersigned acknowledges that the above Mortgage File will be held
by the undersigned in accordance with the provisions of the Agreement and will
promptly be returned
D-1
to the Indenture Trustee when the need therefor by the Master Servicer no
longer exists unless the Mortgage Loan has been liquidated or retransferred.
Capitalized terms used herein shall have the meanings ascribed to them
in the Agreement.
COUNTRYWIDE HOME LOANS, INC.
By:_______________________________
Name:
Title: Servicing Officer
D-2
ANNEX 1
DEFINITIONS
"Affiliate" of any person means any other person controlling,
controlled by or under common control with the person. For purposes of this
definition, "control" means the power to direct the management and policies of
a person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise and "controlling" and "controlled" shall
have meanings correlative to the foregoing.
"Agreement" means this Sale and Servicing Agreement.
"Appraised Value" for any Mortgaged Property means the value
established by any of the following: (i) with respect to Credit Line
Agreements with Credit Limits greater than $100,000, by a full appraisal, (ii)
with respect to Credit Line Agreements with Credit Limits equal to or less
than $100,000, by either a drive by inspection or electronic appraisal of the
Mortgaged Property made to establish compliance with the underwriting criteria
then in effect in connection with the application for the Mortgage Loan
secured by the Mortgaged Property, and (iii) with respect to any Mortgage Loan
as to which the Servicer consents to a new senior lien pursuant to Section
3.01(a), in compliance with the underwriting criteria then in effect in
connection with the application for the related senior mortgage loan.
"Collection Account" means the custodial account or accounts created
and maintained for the benefit of the Noteholders, the Transferor, and the
Credit Enhancer pursuant to Section 3.02(b).
"Combined Loan-to-Value Ratio" means for any Mortgage Loan as of any
date, the percentage equivalent of the fraction, the numerator of which is the
sum of (i) the Credit Limit and (ii) the outstanding principal balance as of
the date of execution of the related original Credit Line Agreement (or any
subsequent date as of which the outstanding principal balance may be
determined in connection with an increase in the Credit Limit for the Mortgage
Loan) of any mortgage loan or mortgage loans that are senior or equal in
priority to the Mortgage Loan and which is secured by the same Mortgaged
Property and the denominator of which is the Valuation of the related
Mortgaged Property.
"Credit Limit Utilization Rate" for any Mortgage Loan means a fraction
whose numerator is the Cut-off Date Asset Balance for the Mortgage Loan and
whose denominator is the related Credit Limit.
"Cumulative Loss Test Violation" means the aggregate of all payments
under the Loan Insurance Policy and the Seller Loss Coverage Obligation
exceeds 6% of the Original Note Principal Balance.
"Cut-off Date Loan Balance" means the Loan Balance calculated as of
the Cut-off Date.
"Defective Mortgage Loan" means a Mortgage Loan subject to retransfer
pursuant to Section 2.02 or 2.04.
Xxx-1-1
"Depositor" means CWABS, Inc., a Delaware corporation, or its
successor in interest.
"Draw" for any Mortgage Loan means an additional borrowing by the
mortgagor after the Cut-off Date, as applicable, in accordance with the
related Mortgage Note.
"Due Date" for any Mortgage Loan means the fifteenth day of the month.
"Electronic Ledger" means the electronic master record of home equity
credit line mortgage loans maintained by the Master Servicer or by the
Sponsor, as appropriate.
"Eligible Substitute Mortgage Loan" means a Mortgage Loan substituted
by the Sponsor for a Defective Mortgage Loan that must, on the date of the
substitution,
(i) have an outstanding Asset Balance (or in the case of a
substitution of more than one Mortgage Loan for a Defective Mortgage
Loan, an aggregate Asset Balance), not 10% more or 10% less than the
Transfer Deficiency relating to the Defective Mortgage Loan;
(ii) have a Loan Rate not less than the Loan Rate of the
Defective Mortgage Loan and not more than 1% in excess of the Loan
Rate of the Defective Mortgage Loan;
(iii)have a Loan Rate based on the same Index with
adjustments to the Loan Rate made on the same Interest Rate Adjustment
Date as that of the Defective Mortgage Loan;
(iv) have a FICO not less than the FICO of the defective
mortgage and not more than 50 points higher than the FICO for the
Defective Mortgage Loan;
(v) have a Gross Margin that is not less than the Gross
Margin of the Defective Mortgage Loan and not more than 100 basis
points higher than the Gross Margin for the Defective Mortgage Loan;
(vi) have a mortgage of the same or higher level of priority
as the mortgage relating to the Defective Mortgage Loan at the time
the mortgage was transferred to the Trust;
(vii) have a remaining term to maturity not more than six
months earlier and not more than 60 months later than the remaining
term to maturity of the Defective Mortgage Loan;
(viii) comply with each representation and warranty in
Section 2.04 (to be made as of the date of substitution); and
(ix) have an original Combined Loan-to-Value Ratio not
greater than that of the Defective Mortgage Loan.
More than one Eligible Substitute Mortgage Loan may be substituted for a
Defective Mortgage Loan if the Eligible Substitute Mortgage Loans meet the
foregoing attributes in the aggregate and the substitution is approved in
advance by the Credit Enhancer.
"Event of Servicing Termination" has the meaning given to it in
Section 6.01.
Xxx-1-2
"FDIC" means the Federal Deposit Insurance Corporation or any
successor to it.
"Foreclosure Profit" on a Liquidated Mortgage Loan means the amount by
which (i) the aggregate of its Net Liquidation Proceeds exceeds (ii) the
related Asset Balance (plus accrued and unpaid interest on it at the
applicable Loan Rate from the date interest was last paid to the end of the
Collection Period during which the Mortgage Loan became a Liquidated Mortgage
Loan) of the Liquidated Mortgage Loan immediately before the final recovery of
its Liquidation Proceeds.
"Gross Margin" for any Mortgage Loan means the percentage shown as the
"Gross Margin" for the Mortgage Loan on Exhibit A to the Indenture.
"Increased Senior Lien Limitation" has the meaning given to it in
Section 3.01(a).
"Indenture" means the indenture of even date with this Agreement
between the Trust and the Indenture Trustee.
"Indenture Trustee Fee" means a fee that is separately agreed to
between the Master Servicer and the Indenture Trustee.
"Indenture Trustee Fee Rate" means the per annum rate at which the
Indenture Trustee Fee is calculated.
"Index" for each Interest Rate Adjustment Date for a Mortgage Loan
means the highest "prime rate" as published in the "Money Rates" table of The
Wall Street Journal as of the first business day of the calendar month.
"Insurance Proceeds" means proceeds paid by any insurer (including the
insurer of the Loan Insurance Policy under the Loan Insurance Policy but
excluding the Credit Enhancer under the Policy) pursuant to any insurance
policy covering a Mortgage Loan, or amounts required to be paid by the Master
Servicer pursuant to the last sentence of Section 3.04, net of any amount (i)
covering any expenses of the Master Servicer in connection with obtaining the
proceeds, (ii) applied to the restoration or repair of the related Mortgaged
Property, (iii) released to the mortgagor in accordance with the Master
Servicer's normal servicing procedures, or (iv) required to be paid to any
holder of a mortgage senior to the Mortgage Loan.
"Interest Rate Adjustment Date" for each Mortgage Loan means any date
on which the Loan Rate is adjusted in accordance with the related Credit Line
Agreement.
"Lien" means any mortgage, deed of trust, pledge, conveyance,
hypothecation, assignment, participation, deposit arrangement, encumbrance,
lien (statutory or other), preference, priority right, or interest or other
Security Agreement or preferential arrangement of any kind or nature
whatsoever, including any conditional sale or other title retention agreement,
any financing lease having substantially the same economic effect as any of
the foregoing, and the filing of any Financing Statement under the UCC (other
than any Financing Statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing except
that any assignment pursuant to Section 5.02 is not a Lien.
Xxx-1-3
"Lifetime Rate Cap" for each Mortgage Loan whose related Mortgage Note
provides for a lifetime rate cap means the maximum Loan Rate permitted over
the life of the Mortgage Loan under the terms of the related Credit Line
Agreement, as shown on the Mortgage Loan Schedule.
"Liquidated Mortgage Loan" for any Payment Date means any Mortgage
Loan in respect of which the Master Servicer has determined, in accordance
with the servicing procedures specified in this Agreement, as of the end of
the related Collection Period, that all Liquidation Proceeds which it expects
to recover with respect to the disposition of the Mortgage Loan or the related
REO have been recovered.
"Liquidation Expenses" means out-of-pocket expenses (exclusive of
overhead) that are incurred by the Master Servicer in connection with the
liquidation of any Mortgage Loan and not recovered under any insurance policy,
including legal fees and expenses, any unreimbursed amount expended pursuant
to Section 3.06 (including amounts advanced to correct defaults on any
mortgage loan which is senior to the Mortgage Loan and amounts advanced to
keep current or pay off a mortgage loan that is senior to the Mortgage Loan)
respecting the related Mortgage Loan and any related and unreimbursed
expenditures with respect to real estate property taxes, water or sewer taxes,
condominium association dues, property restoration or preservation or
insurance against casualty, loss or damage.
"Liquidation Loss Amount" means, with respect to any Payment Date and
any Mortgage Loan that becomes a Liquidated Mortgage Loan during the related
Collection Period, its unrecovered Asset Balance at the end of the Collection
Period, after giving effect to the Net Liquidation Proceeds applied in
reduction of the Asset Balance.
"Liquidation Proceeds" means proceeds (including Insurance Proceeds
but not including amounts drawn under the Policy) received in connection with
the liquidation of any Mortgage Loan or related REO, whether through trustee's
sale, foreclosure sale or otherwise.
"Loan Rate Cap" for each Mortgage Loan means the lesser of (i) the
Lifetime Rate Cap or (ii) the applicable state usury ceiling.
"Loan-to-Value Ratio" for any date of determination for any mortgage
loan means a fraction whose numerator is the outstanding principal balance of
the mortgage loan as of the date of determination and whose denominator is the
Valuation of the related Mortgaged Property.
"Master Servicer" means Countrywide Home Loans, Inc., a New York
corporation and any successor to it and any successor under this Agreement.
"Minimum Monthly Payment" for any Mortgage Loan and any month means
the minimum amount required to be paid by the related mortgagor in that month.
"Net Liquidation Proceeds" for any Liquidated Mortgage Loan means
Liquidation Proceeds net of Liquidation Expenses.
"Officer's Certificate" means a certificate (i) signed by the Chairman
of the Board, the Vice Chairman of the Board, the President, a Managing
Director, a Vice President (however
Xxx-1-4
denominated), an Assistant Vice President, the Treasurer, the Secretary, or
one of the Assistant Treasurers or Assistant Secretaries of the Depositor, the
Sponsor, the Transferor, or the Master Servicer, or (ii), if provided for in
this Agreement, signed by a Servicing Officer.
"Opinion of Counsel" means a written opinion of counsel acceptable to
the Indenture Trustee, who may be in-house counsel for the Depositor, the
Sponsor, the Master Servicer, or the Transferor (except that any opinion
pursuant to Section 5.04 or relating to taxation must be an opinion of
independent outside counsel) and who, in the case of opinions delivered to the
Credit Enhancer or the Rating Agency, is reasonably acceptable to it.
"REO" means a Mortgaged Property that is acquired by the Trust in
foreclosure or by deed in lieu of foreclosure.
"Seller Loss Coverage Amount" means initially the amount specified in
The Adoption Annex, and thereafter as reduced by the amount of all previous
payments of the Seller Loss Coverage Obligation.
"Seller Loss Coverage Obligation" for any Payment Date means the
lesser of the remaining Seller Loss Coverage Amount before payment of that
Seller Less Coverage Obligation and any remaining Investor Loss Amounts for
that Payment Date after payments pursuant to Section 8.03(a)(vi) on that
Payment Date.
"Servicing Certificate" means a certificate completed and executed by
a Servicing Officer in accordance with Section 4.01.
"Servicing Officer" means any officer of the Master Servicer involved
in, or responsible for, the administration and servicing of the Mortgage Loans
whose name and specimen signature appear on a list of servicing officers
furnished to the Indenture Trustee (with a copy to the Credit Enhancer) by the
Master Servicer on the Closing Date, as the list may be amended from time to
time.
"Sponsor" means Countrywide Home Loans, Inc., a New York corporation
and any successor to it.
"Spread Rate" has the meaning given to it in the Insurance Agreement.
"Transfer Date" has the meaning given to it in Section 2.06.
"Transfer Deficiency" means that the Transferor Principal Balance
after a retransfer of a Mortgage Loan pursuant to Section 2.02(b) would be
less than zero.
"Transfer Deposit Amount" has the meaning given to it in Section
2.02(b).
"Transfer Notice Date" has the meaning given to it in Section 2.06.
"Valuation" of any Mortgaged Property means the lesser of (i) the
Appraised Value of the Mortgaged Property and (ii) in the case of a Mortgaged
Property purchased within one year of the origination of the related Mortgage
Loan, the purchase price of the Mortgaged Property.
Xxx-1-5
The following have the meanings given to them in the Indenture:
Additional Balance MERS(R)System
Asset Balance MIN
Assignment of Mortgage MOM Loan
Basis Risk Carryforward Xxxxx'x
Business Day Mortgage File
Class A-IO Certificate Interest Mortgage Loan
Class A-IO Certificate Interest Period Mortgage Loan Schedule
Class A-IO Certificate Rate Mortgage Note
Class A Note Interest Period Mortgaged Property
Class A Note Rate Note
Class A Note Interest Note Rate
Closing Date Note Interest
Co-Trustee Note Principal Balance
Code Noteholder or Holder
Collection Period Note Owner
Corporate Trust Office Note Register and Note Registrar
Credit Enhancement Draw Amount Original Note Principal Balance
Credit Enhancer Outstanding Amount
Credit Enhancer Default Paying Agent
Credit Limit Payment Date
Credit Line Agreement Policy
Cut-off Date Principal Collections
Cut-off Date Asset Balance Purchase Agreement
Determination Date Rapid Amortization Event
Eligible Account Rating Agency
Eligible Investments Responsible Officer
Guaranteed Principal Payment Amount Scheduled Principal Collections Payment Amount
Indenture Trustee Servicing Fee
Insolvency Event Standard & Poor's
Insurance Agreement Transferor
Interest Collections Transferor Certificates
Interest Formula Rate Transferor Interest
Investor Floating Allocation Percentage Transferor Principal Balance
Investor Interest Collections Transferor Principal Collections
Investor Loss Amount Trust
Investor Loss Reduction Amount Trust Agreement
Investor Principal Collections UCC
Loan Balance Unpaid Investor Interest Shortfall
Loan Rate Weighted Average Net Loan Rate
Loan Insurance Policy
Managed Amortization Period
Maximum Rate
XXXX
Xxx-1-6
ANNEX 2
ADOPTION ANNEX
The items referred to in the representations and warranties in Section
2.04(a) are:
(xi) no more than 0% of the Mortgage Loans being transferred on the
relevant date (by Cut-off Date Loan Balance) were 30-59 days delinquent
(measured on a contractual basis).
(xvi) (As of the Cut-off Date for the Mortgage Loans no more than
3.5% of the Mortgage Loans, by aggregate principal balance, are secured by
Mortgaged Properties located in one United States postal zip code.
(xvii) The Combined Loan-to-Value Ratio for each Mortgage Loan was not
in excess of 100%.
(xxv) The weighted average remaining term to maturity of the Mortgage
Loans on a contractual basis as of the Cut-off Date for the Mortgage Loans is
approximately 294 months. The Loan Rate Caps for the Mortgage Loans range
between 7.50% and 24.00% and the weighted average Loan Rate Cap is
approximately 17.832% . The Gross Margins for the Mortgage Loans range between
-1.375% and 5.625% and the weighted average Gross Margin is approximately
2.089% as of the Cut-off Date for the Mortgage Loans. The Loan Rates on the
Mortgage Loans range between 3.375% and 10.875% and the weighted average Loan
Rate on the Mortgage Loans is approximately 5.761%.
(xxvii) No more than 21.33% (by Cut-off Date Loan Balance) of the
Mortgage Loans are secured by real property improved by individual condominium
units, units in planned unit developments, townhouses, or two-to-four family
residences erected on them, and at least 78.67% (by Cut-off Date Loan Balance)
of the Mortgage Loans are secured by real property with a detached one-family
residence erected on them.
(xxviii) The Credit Limits on the Mortgage Loans range between
approximately $7,500 and $250,000 with an average of approximately $34,966. As
of the Cut-off Date for the Mortgage Loans, no Mortgage Loan had a principal
balance in excess of approximately $249,800 and the average principal balance
of the Mortgage Loans is equal to approximately $23,423.
(xix) Approximately 1.21% and 98.79% of the Mortgage Loans, by
aggregate principal balance as of the Cut-off Date for the Mortgage Loans, are
first and second liens, respectively.
(xxx) As of the Closing Date, no more than 8.74% of the Mortgage
Loans, by aggregate principal balance, were appraised electronically.
The amount of initial aggregate principal amount of the Class A Notes
is $600,000,000.
The title of the Collection Account is "Bank One, National
Association, as Indenture Trustee, Collection Account in trust for the
registered holders of Revolving Home Equity Loan Asset Backed Securities,
Series 2002-A and Financial Guaranty Insurance Company"
Xxx-2-1
The date on which the Master Servicer delivers the Officer's
Certificate in each year is May 31, and the first Officer's Certificate
pursuant to Section 3.09 is May 31, 2003.
The date on which the Master Servicer delivers the annual servicing
report in each year is May 31, and the first annual servicing report pursuant
to Section 3.10 is May 31, 2003.
The Series referred to in Sections 2.05 and 8.09 is the Series 2002-A
Subtrust.
The Seller Loss Coverage Amount initially is 2% of the Original Note
Principal Balance.
Xxx-2-2
