EXHIBIT 10.2
MASTER SERVICING AGREEMENT
Dated as of [ ]
among
Home Equity Loan Trust 199_, Issuer
and
[_________________], Seller and Master Servicer
and
[ ], Trustee
Relating to the Mortgage Loans
Pledged as Collateral for the Issuer's
Asset Backed Notes and Asset Backed Certificates,
Series 199_,
in the Aggregate Initial
Principal Amount of $[ ]
TABLE OF CONTENTS
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Page
PRELIMINARY STATEMENT.............................................................................................7
1. Defined Terms.........................................................................................7
Advance.........................................................................................7
Additional Balance..............................................................................8
Additional Loans................................................................................8
Administration Agreement........................................................................8
Administrator...................................................................................8
Agreement.......................................................................................8
Appraised Value.................................................................................8
Asset Balance...................................................................................8
Assignment of Mortgage..........................................................................8
Bankruptcy Code.................................................................................9
Basic Documents.................................................................................9
Billing Cycle...................................................................................9
Business Day....................................................................................9
Certificateholder...............................................................................9
Certificates....................................................................................9
Class...........................................................................................9
Closing Date....................................................................................9
Code............................................................................................9
Collateral......................................................................................9
Collection Account.............................................................................10
Collection Period..............................................................................10
Combined Loan-to-Value Ratio...................................................................10
Corporate Trust Office.........................................................................10
Credit Limit...................................................................................10
Custodial Agreement............................................................................10
Custodian......................................................................................10
Cut-Off Date...................................................................................10
DCR............................................................................................10
Deleted Mortgage Loan..........................................................................11
Deposit Date...................................................................................11
Deposit Date Asset Balance.....................................................................11
Determination Date.............................................................................11
Distribution Date..............................................................................11
Draw...........................................................................................11
Due Date.......................................................................................11
Eligible Account...............................................................................11
Eligible Substitute Mortgage Loan..............................................................11
Escrow Account.................................................................................12
Excess Proceeds................................................................................12
FDIC...........................................................................................12
FHLMC..........................................................................................12
FIRREA.........................................................................................12
Fitch..........................................................................................13
FNMA...........................................................................................13
Gross Margin...................................................................................13
Holder.........................................................................................13
Increased Senior Lien Limitation...............................................................13
Indenture......................................................................................13
Insurance Agreement............................................................................13
Insurance Policy...............................................................................13
Insurance Proceeds.............................................................................13
Interest Period................................................................................13
Issuer.........................................................................................14
Issuer Request.................................................................................14
Lien...........................................................................................14
Lifetime Rate Cap..............................................................................14
Liquidated Mortgage Loan.......................................................................14
Liquidation Expenses...........................................................................14
Liquidation Loss Amounts.......................................................................14
Liquidation Proceeds...........................................................................15
Loan Agreement.................................................................................15
Loan Rate......................................................................................15
Loan-to-Value Ratio............................................................................15
Margin.........................................................................................15
Master Servicer................................................................................15
Master Servicer Advance Date...................................................................15
Master Servicing Fee...........................................................................15
Master Servicing Fee Rate......................................................................15
Xxxxx'x........................................................................................15
Mortgage.......................................................................................16
Mortgage File..................................................................................16
Mortgage Loan Schedule.........................................................................16
Mortgage.......................................................................................16
Mortgage File..................................................................................16
Mortgage Loans.................................................................................16
Mortgage Note..................................................................................16
Mortgaged Property.............................................................................16
Mortgagor......................................................................................16
Net Liquidation Proceeds.......................................................................16
Net Loan Rate..................................................................................16
Nonrecoverable Advance.........................................................................17
Notes..........................................................................................17
Noteholder or Holder...........................................................................17
Officer's Certificate..........................................................................17
Opinion of Counsel.............................................................................17
Outstanding....................................................................................17
Owner Trust Estate.............................................................................17
Owner Trustee..................................................................................18
Paying Agent...................................................................................18
Payment Account................................................................................18
Payment Account................................................................................18
Payment Account Deposit Date...................................................................18
Payment Date...................................................................................18
Percentage Interest............................................................................18
Permitted Investments..........................................................................18
Person.........................................................................................19
Policy.........................................................................................19
Pool Balance...................................................................................19
Prepayment Period..............................................................................19
Principal Balance..............................................................................20
Principal Prepayment...........................................................................20
Principal Prepayment in Full...................................................................20
Prospectus Supplement..........................................................................20
Purchase Price.................................................................................20
Qualified Insurer..............................................................................20
Rating Agency..................................................................................20
Realized Loss..................................................................................21
Relief Act.....................................................................................21
Relief Act Reductions..........................................................................21
REO Property...................................................................................21
Repurchase Price...............................................................................21
Request for Release............................................................................22
Required Insurance Policy......................................................................22
SAIF...........................................................................................22
S&P............................................................................................22
Securities Act.................................................................................22
Security.......................................................................................22
Securityholder or Holder.......................................................................22
Seller.........................................................................................22
Servicer Advance...............................................................................22
Servicing Account..............................................................................22
Servicing Advances.............................................................................22
Servicing Default..............................................................................22
Servicing Fee..................................................................................23
Servicing Fee Rate.............................................................................23
Servicing Officer..............................................................................23
Subservicer....................................................................................23
Subservicing Agreement.........................................................................23
Subservicing Fee...............................................................................23
Substitute Mortgage Loan.......................................................................23
Substitution Adjustment Amount.................................................................23
Trust Agreement................................................................................24
Trustee........................................................................................24
Trustees.......................................................................................24
Trust Estate...................................................................................24
UCC............................................................................................24
Withdrawal Date................................................................................24
2. Conveyance of Mortgage Loans; Representations and Warranties.........................................24
(a) Conveyance of Mortgage Loans; Retention of Obligation to
Fund Advances Under Credit Line Agreements.................................................24
(b) Acceptance by Trustee; Retransfer of Mortgage Loans........................................28
(c) Documents, Records and Funds in Possession of Master Servicer
to be Held for Trustee.....................................................................29
(d) Representations, Warranties and Covenants of the Seller and
the Master Servicer........................................................................30
(e) Covenants of the Master Servicer...........................................................32
(f) Covenants of [________]....................................................................32
3. Administration and Servicing of Mortgage Loans.......................................................32
(a) Master Servicer to Service Mortgage Loans..................................................33
(b) Subservicing; Enforcement of the Obligations of Servicers..................................35
(c) Successor Servicers........................................................................35
(d) Liability of the Master Servicer...........................................................36
(e) No Contractual Relationship Between Subservicers and the Trustees..........................36
(f) Rights of [________] and the Trustees in Respect of the Master Servicer....................36
(g) Trustee to Act as Master Servicer..........................................................37
(h) Collection of Mortgage Loan Payments; Collection Accounts;
Payment Account............................................................................37
(i) Collection of Taxes, Assessments and Similar Items; Escrow Accounts........................40
(j) Access to Certain Documentation and Information Regarding
the Mortgage Loans.........................................................................40
(k) Permitted Withdrawals from the Note Account................................................41
(l) Maintenance of Hazard Insurance;
Maintenance of Primary Insurance Policies..................................................42
(m) Enforcement of Due-On-Sale Clauses; Assumption Agreements..................................43
(n) Realization Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage Loans...........45
(o) Access to Certain Documentation............................................................47
(p) Annual Statement as to Compliance..........................................................47
(q) Annual Independent Public Accountants'Servicing Statement;
Financial Statements.......................................................................48
(r) Errors and Omissions Insurance; Fidelity Bonds.............................................48
(s) Master Servicer Monthly Data...............................................................49
4. Advances.............................................................................................49
5. Servicing Compensation...............................................................................49
6. The Master Servicer..................................................................................49
(a) Respective Liabilities of [________] and the Master Servicer...............................49
(b) Merger or Consolidation of [________] or the Master Servicer...............................50
(c) Limitation on Liability of [________], the Seller, Master Servicer
and Others.................................................................................50
(d) Limitation on Resignation of the Master Servicer...........................................51
7. Default..............................................................................................51
(a) Events of Default..........................................................................51
(b) Trustee to Act; Appointment of Successor...................................................53
(c) Notification to Securityholders............................................................54
8. Miscellaneous........................................................................................54
(a) Term of Master Servicing Agreement.........................................................54
(b) Assignment.................................................................................54
(c) Notices....................................................................................54
(d) Inspection and Audit Rights................................................................55
(e) Governing Law..............................................................................56
(f) Amendment..................................................................................56
(g) Severability of Provisions.................................................................57
(h) No Joint Venture...........................................................................57
(i) Recordation of Agreement; Counterparts.....................................................58
(j) Limitation of Liability of [owner trustee].................................................58
(k) Nonpetition Covenants......................................................................58
SCHEDULE I Mortgage Loan Schedule.....................................................................60
SCHEDULE II Home Equity Loan Trust 199_ Asset Backed Notes and Asset Backed Certificates Series 199_...61
SCHEDULE III [________] Home Equity Loan Trust 199_ Asset Backed Notes and Asset Backed
Certificates Series 199_...................................................................63
SCHEDULE IV Home Equity Loan Trust 199_ Asset Backed Notes and Asset Backed Certificates
Series 199_................................................................................68
EXHIBIT A FORM OF INITIAL CERTIFICATION OF TRUSTEE...................................................70
EXHIBIT B FORM OF FINAL CERTIFICATION OF TRUSTEE.....................................................72
EXHIBIT C REQUEST FOR RELEASE (for Trustee)..........................................................74
EXHIBIT D REQUEST FOR RELEASE OF DOCUMENTS...........................................................76
MASTER SERVICING AGREEMENT
THIS MASTER SERVICING AGREEMENT is made and entered into as of [ ], by
and among Home Equity Loan Trust 199_, a statutory business trust formed under
the laws of the State of [Delaware] (the "Issuer"), [__________], a
[_____________ banking] corporation (the "Master Servicer" or, in its capacity
as seller, the "Seller") and [ ], a [ ] corporation (in its capacity as
trustee under the Indenture referred to below, the "Trustee").
PRELIMINARY STATEMENT
The Issuer was formed for the purpose of issuing asset backed notes and
asset backed certificates secured by mortgage collateral. The Issuer has
entered into a trust indenture, dated as of [ ] (the "Indenture"), between the
Issuer and the Trustee, pursuant to which the Issuer intends to issue its Home
Equity Loan Asset Backed Notes and Home Equity Loan Asset Backed Certificates,
Series 199_, in the aggregate initial principal amount of $[ ] (the
"Securities"). Pursuant to the Indenture, as security for the indebtedness
represented by such Securities, the Issuer is and will be pledging to the
Trustee, or granting the Trustee a security interest in, among other things,
certain Mortgage Loans and Additional Balances, its rights under this
Agreement, the Payment Account, the Collection Account [and certain Insurance
Policies] (as each such term is defined herein).
The parties desire to enter into this Agreement to provide, among other
things, for the servicing of the Mortgage Loans by the Master Servicer. The
Master Servicer acknowledges that, in order further to secure the Securities,
the Issuer is and will be granting to the Trustee a security interest in,
among other things, its rights under this Agreement, and the Master Servicer
agrees that all covenants and agreements made by the Master Servicer herein
with respect to the Mortgage Loans shall also be for the benefit and security
of the Trustee and Holders of the Securities. For its services hereunder, the
Master Servicer will receive a Master Servicing Fee (as defined herein) with
respect to each Mortgage Loan serviced hereunder.
1. Defined Terms.
Except as otherwise specified or as the context may otherwise require,
the following terms have the respective meanings set forth below for all
purposes of this Agreement, and the definitions of such terms are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms:
Advance: The payment required to be made by the Master Servicer with
respect to any Distribution Date pursuant to Section 4, the amount of any such
payment being equal to the aggregate of payments of principal and interest
(net of the Master Servicing Fee and net of any net income in the case of any
REO Property) on the Mortgage Loans that were due on the related Due Date and
not received as of the close of business on the related Determination Date,
less the aggregate amount of any such delinquent payments that the Master
Servicer has determined would constitute a Nonrecoverable Advance if advanced.
Additional Balance: With respect to any Mortgage Loan, any future Draw
made by the related Mortgagor pursuant to the related Loan Agreement after the
Cut-off Date in the case of an Initial Loan, or after the Deposit Date in the
case of an Additional Loan; provided, however, that if an Amortization Event
occurs, then any Draw after such Amortization Event shall not be acquired by
the Issuer and shall not be an Additional Balance.
Additional Loans: All home equity line of credit loans sold by [________]
to the Issuer after the Closing Date.
Administration Agreement: The Administration Agreement dated as of
___________, 199_ among the Issuer, the Trustee and [______________], as
Administrator, as it may be amended from time to time.
Administrator: [______________], as administrator under the
Administration Agreement or any successor Administrator appointed pursuant to
the terms of the Administration Agreement.
Agreement: Means this Master Servicing Agreement, as the same may be
amended or supplemented from time to time.
Appraised Value: With respect to any Mortgaged Property, either (x) the
value set forth in an appraisal of such Mortgaged Property made to establish
compliance with the underwriting criteria then in effect in connection with
the later of the application for the Mortgage Loan secured by such Mortgaged
Property or any subsequent increase or decrease in the related Credit Limit or
to reduce or eliminate the amount of any primary insurance, or (y) if the
sales price of the Mortgaged Property is considered in accordance with the
underwriting criteria applicable to the Mortgage Loan, the lesser of (i) the
appraised value referred to in (x) above and (ii) the sales price of such
Mortgaged Property.
Asset Balance: With respect to any Mortgage Loan, other than a Liquidated
Mortgage Loan, and as of any day, the related Cut-off Date Asset Balance or
Deposit Date Asset Balance, [plus (i) any Additional Balances in respect of
such Mortgage Loan conveyed to the Issuer,] minus [(ii)] all collections
credited as principal in respect of any such Mortgage Loan in accordance with
the related Loan Agreement (except for any such collections that are allocable
to the Excluded Amount) and applied in reduction of the Asset Balance thereof.
For purposes of this definition, a Liquidated Mortgage Loan shall be deemed to
have an Asset Balance equal to the Asset Balance of the related Mortgage Loan
immediately prior to the final recovery of all related Liquidation Proceeds
and an Asset Balance of zero thereafter.
Assignment of Mortgage: With respect to any Mortgage, an assignment,
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction in which the related Mortgaged Property is
located to reflect the conveyance of the Mortgage, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction.
Bankruptcy Code: Means the United States Bankruptcy Reform Act of 1978,
as amended.
Basic Documents: The Trust Agreement, the Certificate of Trust, the
Indenture, the Insurance Agreement, the Administration Agreement, the Master
Servicing Agreement, the Custodial Agreement and the other documents and
certificates delivered in connection with any of the above.
Billing Cycle: With respect to any Mortgage Loan and Due Date, the
calendar month preceding such Due Date.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the State of New York, [_______________] or
[_____________] are required or authorized by law to be closed.
Certificateholder: The Person in whose name a Certificate is registered
in the Certificate Register except that, any Certificate registered in the
name of the Issuer, the Owner Trustee or the Trustee or any Affiliate of any
of them shall be deemed not to be outstanding and the registered holder will
not be considered a Certificateholder or a holder for purposes of giving any
request, demand, authorization, direction, notice, consent or waiver under the
Indenture or the Trust Agreement provided that, in determining whether the
Trustee or the Owner Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Certificates that the Trustee or the Owner Trustee knows to be so owned shall
be so disregarded. Owners of Certificates that have been pledged in good faith
may be regarded as Holders if the pledgee establishes to the satisfaction of
the Trustee or the Owner Trustee, as the case may be, the pledgee's right so
to act with respect to such Certificates and that the pledgee is not the
Issuer, any other obligor upon the Certificates or any Affiliate of any of the
foregoing Persons.
Certificates: The Home Equity Loan Asset Backed Certificates, Series
199_-_, each evidencing undivided beneficial interests in the Issuer and
executed by the Owner Trustee in substantially the form set forth in Exhibit A
to the Trust Agreement.
Class: The Notes or the Certificates, as the case may be.
Closing Date: ___________, 199_.
Code: The Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
Collateral: The meaning specified in the Granting Clause of the
Indenture.
Collection Account: Means the Eligible Account or Accounts established
and maintained by the Master Servicer in accordance with Section 3(h)(iii).
Collection Period: With respect to any Mortgage Loan and Payment Date
other than the first Payment Date, the calendar month preceding any such
Payment Date and with respect to the first Payment Date, the period from
_____________ through [___________].
Combined Loan-to-Value Ratio: With respect to any Mortgage Loan and any
date, the percentage equivalent of a fraction, the numerator of which is the
sum of (i) the greater of (x) the Credit Limit and (y) the Cut-off Date Asset
Balance of such Mortgage Loan and (ii) the outstanding principal balance as of
the date of the origination of such Mortgage Loan (or any subsequent date as
of which such outstanding principal balance may be determined in connection
with an increase or decrease in the Credit Limit or to reduce the amount of
primary insurance for such Mortgage Loan) of any mortgage loan or mortgage
loans that are secured by liens on the Mortgaged Property that are senior or
subordinate to the Mortgage and the denominator of which is the Appraised
Value of the related Mortgaged Property.
Corporate Trust Office: The designated office of the Trustee in the State
of ________ at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at
__________________________________ (Attn:
____________________________________, facsimile no. ________________, and
which is the address to which notices to and correspondence with the Trustee
should be directed.
Credit Limit: With respect to any Mortgage Loan, the maximum Asset
Balance permitted under the terms of the related Loan Agreement.
Custodial Agreement: Any Custodial Agreement between the Custodian, the
Trustee, the Issuer and the Master Servicer relating to the custody of the
Mortgage Loans and the Related Documents.
Custodian: With respect to the Mortgage Loans, [______________], a
[_______________], and its successors and assigns.
Cut-Off Date: With respect to the Initial Loans ________, 199_.
DCR: Means Duff & Xxxxxx Credit Rating Company, or any successor thereto.
If DCR is designated as a Rating Agency in the Indenture, for purposes of
Section 8(c) the address for notices to DCR shall be Duff & Xxxxxx Credit
Rating Company, 00 X. Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: MBS Monitoring, or such other address as DCR may hereafter furnish
to the Issuer and the Master Servicer.
Deleted Mortgage Loan: Has the meaning ascribed thereto in Section 5.
[Deposit Date: The applicable date as of which any Additional Loan is
sold to the Issuer.
Deposit Date Asset Balance: With respect to any Additional Loan, the
Asset Balance thereof as of the Deposit Date.]
Determination Date: As to any Distribution Date, the ____ day of each
month or if such ____ day is not a Business Day the next preceding Business
Day; provided, however, that if such ____ day or such Business Day, whichever
is applicable, is less than two Business Days prior to the related
Distribution Date, the Determination Date shall be the first Business Day
which is two Business Days preceding such Distribution Date.
Distribution Date: The ____ day of each calendar month after the initial
issuance of the Certificates, or if such ____ day is not a Business Day, the
next succeeding Business Day, commencing in ____________, 199_.
Draw: With respect to any Mortgage Loan, a borrowing by the Mortgagor
under the related Loan Agreement.
Due Date: With respect to the Mortgage Loans, the [__]th day of the
month.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of each Rating Agency at the time any amounts are
held on deposit therein, or (ii) an account or accounts in a depository
institution or trust company in which such accounts are insured by the FDIC
(to the limits established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Securityholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with (a) the trust department of a federal or state
chartered depository institution or (b) a trust company, acting in its
fiduciary capacity or (iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
Eligible Substitute Mortgage Loan: A Mortgage Loan substituted by
[________] for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in an Officers' Certificate delivered to the
Trustee, (i) have an outstanding principal balance, after deduction of the
principal portion of the monthly payment due in the month of substitution (or
in the case of a substitution of more than one Mortgage Loan for a Deleted
Mortgage Loan, an aggregate outstanding principal balance, after such
deduction), not in excess of the outstanding principal balance of the Deleted
Mortgage Loan (the amount of any shortfall to be deposited by the Seller in
the Collection Account in the month of substitution); (ii) have a Loan Rate
not less than the Loan Rate of the Deleted Mortgage Loan and not more than __%
in excess of the Loan Rate of such Deleted Mortgage Loan; (iii) have a Loan
Rate based on the same index with adjustments to such Loan Rate made on the
same interest rate adjustment date as that of the Deleted Mortgage Loan; (iv)
have a Margin that is not less than the Margin of the Deleted Mortgage Loan
and not more than _____ basis points higher than the Margin for the Deleted
Mortgage Loan; (v) have a mortgage of the same or higher level of priority as
the mortgage relating to the Deleted Mortgage Loan; (vi) have a remaining term
to maturity not more than ____ months earlier and not more than ____ months
later than the remaining term to maturity of the Deleted Mortgage Loan; (vii)
comply with each representation and warranty as to the Mortgage Loans set
forth herein (deemed to be made as of the date of substitution); (viii) in
general, have an original Combined Loan-to-Value Ratio not greater than that
of the Deleted Mortgage Loans; and (ix) satisfy certain other conditions
specified in the Purchase Agreement. To the extent the Principal Balance of an
Eligible Substitute Mortgage Loan is less than the Principal Balance of the
related Deleted Mortgage Loan, the Seller will be required to make a deposit
tot he Collection Account equal to such difference; and (x) not be __ days or
more delinquent.
Escrow Account: Means the Eligible Account or Accounts established and
maintained pursuant to Section 3(i) hereof.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Master Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan pursuant to Section 3(k)(i)(C), exceeds (i) the unpaid principal balance
of such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Rate from the Due Date as to which interest was last paid or
advanced (and not reimbursed) to Securityholders up to the Due Date applicable
to the Distribution Date immediately following the calendar month during which
such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement Act
of 1989.
Fitch: Fitch Investors Service, L.P., or any successor thereto. If Fitch
is designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 8(c) the address for notices to Fitch shall be Fitch Investors
Service, L.P., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
_______________________________________, or such other address as Fitch may
hereafter furnish to [________] and the Master Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Gross Margin: With respect to any Mortgage Loan, the percentage set forth
as the "Gross Margin" for such Mortgage Loan on the Mortgage Loan Schedule, as
adjusted from time to time with respect to any [______________] Loan in
accordance with the terms of this Agreement.
Holder: Any of the Noteholders or Securityholders.
Increased Senior Lien Limitation: shall have the meaning set forth in
Section 3(a).
Indenture: Means the trust indenture, dated as of the date hereof,
between the Issuer and the Trustee, as such Indenture may be amended or
supplemented from time to time in accordance with its terms.
[Insurance Agreement: The insurance and reimbursement agreement dated as
of ______________, 199_ among the Master Servicer, the Seller, [________], the
Issuer and the Credit Enhancer, including any amendments and supplements
thereto.]
Insurance Policy: Means, with respect to any Mortgage Loan, any insurance
policy, including all riders and endorsements thereto in effect, including any
replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by any insurer pursuant to any
insurance policy covering a Mortgage Loan which are required to be remitted to
the Master Servicer, or amounts required to be paid by the Master Servicer
pursuant to the last sentence of Section [ ] of the Master Servicing
Agreement, net of any component thereof (i) covering any expenses incurred by
or on behalf of the Master Servicer in connection with obtaining such
proceeds, (ii) that is 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 such Mortgage Loan.
Interest Period: With respect to any Payment Date other than the first
Payment Date, the period beginning on the preceding Payment Date and ending on
the day preceding such Payment Date, and in the case of the first Payment
Date, the period beginning on the Closing Date and ending on the day preceding
the first Payment Date.
Issuer: Home Equity Loan Trust 199_-_, a Delaware business trust, or its
successor in interest.
Issuer Request: A written order or request signed in the name of the
Issuer by any one of its Authorized Officers and delivered to the Trustee.
Lien: 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,
without limitation, 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 such financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing; provided,
however, that any assignment pursuant to Section [ ] of the Master Servicing
Agreement shall not be deemed to constitute a Lien.
Lifetime Rate Cap: With respect to each Mortgage Loan with respect to
which the related Mortgage Note provides for a lifetime rate cap, the maximum
Loan Rate permitted over the life of such Mortgage Loan under the terms of
such Mortgage Note, as set forth on the Mortgage Loan Schedule and initially
as set forth on Exhibit A to the Master Servicing Agreement.
Liquidated Mortgage Loan: With respect to any Payment Date, any Mortgage
Loan in respect of which the Master Servicer has determined, in accordance
with the servicing procedures specified in the Master Servicing Agreement, as
of the end of the related Collection Period that substantially all Liquidation
Proceeds which it reasonably expects to recover with respect to the
disposition of the related REO have been recovered.
Liquidation Expenses: Out-of-pocket expenses (exclusive of overhead)
which are incurred by or on behalf of the Master Servicer in connection with
the liquidation of any Mortgage Loan and not recovered under any insurance
policy, such expenses including, without limitation, legal fees and expenses,
any unreimbursed amount expended (including, without limitation, amounts
advanced to correct defaults on any mortgage loan which is senior to such
Mortgage Loan and amounts advanced to keep current or pay off a mortgage loan
that is senior to such Mortgage Loan) respecting the related Mortgage Loan and
any related and unreimbursed expenditures for real estate property taxes or
for property restoration, preservation or insurance against casualty loss or
damage.
Liquidation Loss Amounts: With respect to any Payment Date and any
Mortgage Loan that became a Liquidated Mortgage Loan during the related
Collection Period, the unrecovered portion of the related Asset Balance
thereof at the end of such Collection Period, after giving effect to the Net
Liquidation Proceeds applied in reduction of the Asset Balance.
Liquidation Proceeds: Proceeds (including Insurance Proceeds [but not
including amounts drawn under the Credit Enhancement Instrument]) received in
connection with the liquidation of any Mortgage Loan or related REO, whether
through trustee's sale, foreclosure sale or otherwise.
Loan Agreement: With respect to any Mortgage Loan, the credit line
account agreement executed by the related Mortgagor and any amendment or
modification thereof.
Loan Rate: With respect to any Mortgage Loan and any day, the sum of the
Index Rate and the Margin.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to any date
of determination, (i) the principal balance of such Mortgage Loan divided by
(ii) the Collateral Value of the related Mortgaged Property.
Margin: The [spread].
Master Servicer: Means [___________________], a [___________ banking]
corporation, and its successors and assigns, in its capacity as master
servicer hereunder.
Master Servicer Advance Date: Means as to any Distribution Date, 12:30
p.m. Pacific time on the Business Day immediately preceding such Distribution
Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution Date,
an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the Due
Date in the month of such Distribution Date (prior to giving effect to any
Scheduled Payments due on such Mortgage Loan on such Due Date), subject to
reduction as provided in Section 5.
Master Servicing Fee Rate: Means with respect to each Mortgage Loan, [ ]%
per annum.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. If
Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 8(c) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ___________________________________, or such other address as
Moody's may hereafter furnish to [________] or the Master Servicer.
Mortgage: The mortgage, deed of trust or other instrument creating a
first or second lien on an estate in fee simple interest in real property
securing a Mortgage Loan.
Mortgage File: The file containing the Related Documents pertaining to a
particular Mortgage Loan and any additional documents required to be added to
the Mortgage File pursuant to the Master Servicing Agreement.
Mortgage Loan Schedule: With respect to any date, the schedule of
Mortgage Loans included in the Trust Estate on such date. The initial schedule
of Mortgage Loans as of the Cut-Off Date is the schedule set forth in Exhibit
A of the Master Servicing Agreement, which schedule sets forth as to each
Mortgage Loan (i) the Cut-Off Date Trust Balance, (ii) the Credit Limit, (iii)
the Gross Margin, (iv) the name of the Mortgagor, (v) the Lifetime Rate Cap,
if any, (vi) the loan number, (vii) an indication as to the applicable
Mortgage Loan Group, and (viii) the lien position of the related Mortgage. The
Mortgage Loan Schedule will be amended from time to time by annex to reflect
Additional Loans.
Mortgage: Means the mortgage, deed of trust or other instrument creating
a first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2(a)(i) hereof
pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loans: At any time, collectively, all Initial Loans [and
Additional Loans, in each case including Additional Balances, if any, that
have been sold transferred to the Trust,] in each case together with the
Related Documents, and that remain subject to the terms thereof. Such schedule
shall also set forth the total of the amounts described under (iv) and (v)
above for all of the Mortgage Loans.
Mortgage Note: With respect to a Mortgage Loan, the Loan Agreement
pursuant to which the related mortgagor agrees to pay the indebtedness
evidenced thereby and secured by the related Mortgage as modified or amended.
Mortgaged Property: The underlying property, including real property and
improvements thereon, securing a Mortgage Loan.
Mortgagor: The obligor or obligors under a Loan Agreement.
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan,
Liquidation Proceeds net of Liquidation Expenses.
Net Loan Rate: With respect to any Mortgage Loan and any day, the related
Loan Rate less the related Servicing Fee Rate.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Master Servicer that, in the good faith judgment of
the Master Servicer, will not be ultimately recoverable by the Master Servicer
from the related Mortgagor, related Liquidation Proceeds or otherwise.
Notes: The Notes designated as the "Notes" in the Indenture.
Noteholder or Holder: Means the Person in whose name a Note is registered
in the Note Register (as defined in the Indenture).
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of [________] or the Master Servicer, or (ii), if provided for in
this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to [________] and the Trustee, as the case may be, as required by
this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel for
______________ or the Master Servicer, including, in-house counsel, reasonably
acceptable to the Trustee; provided, however, that with respect to the
interpretation or application of the REMIC Provisions, such counsel must (i)
in fact be independent of ______________ and the Master Servicer, (ii) not
have any direct financial interest in ______________ or the Master Servicer or
in any affiliate of either, and (iii) not be connected with ______________ or
the Master Servicer as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Owner Trust Estate: The corpus of the Issuer created by the Trust
Agreement which consists of the Mortgage Loans, such assets as shall from time
to time be deposited in the Collection Account and/or the Payment Account
allocable to the Mortgage Loans in accordance with the Trust Agreement,
property that secured a Mortgage Loan and that has become REO, certain hazard
insurance policies maintained by the Mortgagors or by or on behalf of the
Master Servicer in respect of the Mortgage Loans, [the Credit Enhancement
Instrument,] and the obligation of ______________ to purchase Additional
Balances and all proceeds of each of the foregoing.
Owner Trustee: [______________], and its successors and assigns or any
successor owner trustee appointed pursuant to the terms of the Trust
Agreement.
Paying Agent: Any paying agent or co-paying agent appointed pursuant to
Section 3.03 of the Indenture, which initially shall be [______________].
Payment Account: The account established by the Trustee pursuant to
Section 8.02 of the Indenture and Section [ ] of the Master Servicing
Agreement. The Payment Account shall be an Eligible Account.
Payment Account: The separate Eligible Account created and maintained by
the Trustee pursuant to Section 3(h) in the name of the Trustee for the
benefit of the Securityholders and designated "_________________________ in
trust for registered holders of Home Equity Loan Trust Asset Backed
Certificates, Series 199_-_." Funds in the Payment Account shall be held in
trust for the Securityholders for the uses and purposes set forth in this
Agreement.
Payment Account Deposit Date: As to any Distribution Date, 12:30 p.m.
Pacific time on the Business Day immediately preceding such Distribution Date.
Payment Date: The [___] day of each month, or if such day is not a
Business Day, then the next Business Day.
Percentage Interest: With respect to any Note, the percentage obtained by
dividing the Security Balance of such Note by the aggregate of the Security
Balances of all Notes of the same Class. With respect to any Certificate, the
percentage obtained by dividing the denomination specified on such Certificate
by the Initial Principal Balance of the Certificates.
Permitted Investments: At any time, any one or more of the following
obligations and securities: (i) obligations of the United States or any agency
thereof, provided such obligations are backed by the full faith and credit of
the United States; (ii) general obligations of or obligations guaranteed by
any state of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency rating the related Series
of Securities, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Securities by each such Rating
Agency; (iii) commercial or finance company paper (including, without
limitation, commercial paper issued by _____________________ or any of its
affiliates) which is then receiving the highest commercial or finance company
paper rating of each such Rating Agency, or such lower rating as will not
result in the downgrading or withdrawal of the ratings then assigned to the
Securities by each such Rating Agency; (iv) certificates of deposit, demand or
time deposits, or bankers' acceptances issued by any depository institution or
trust company incorporated under the laws of the United States or of any state
thereof and subject to supervision and examination by federal and/or state
banking authorities, provided that the commercial paper and/or long term
unsecured debt obligations of such depository institution or trust company (or
in the case of the principal depository institution in a holding company
system, the commercial paper or long-term unsecured debt obligations of such
holding company, but only if Xxxxx'x Investors Service, Inc. ("Xxxxx'x") is
not a Rating Agency) are then rated one of the two highest long-term and the
highest short-term ratings of each such Rating Agency for such securities, or
such lower ratings as will not result in the downgrading or withdrawal of the
rating then assigned to the Securities by any such Rating Agency; (iv) demand
or time deposits or certificates of deposit issued by any bank or trust
company or savings institution to the extent that such deposits are fully
insured by the FDIC; (v) guaranteed reinvestment agreements issued by any
bank, insurance company or other corporation containing, at the time of the
issuance of such agreements, such terms and conditions as will not result in
the downgrading or withdrawal of the rating then assigned to the Securities by
any such Rating Agency; (vi) repurchase obligations with respect to any
security described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal) described
in clause (iv) above; (vii) securities (other than stripped bonds, stripped
coupons or instruments sold at a purchase price in excess of 115% of the face
amount thereof) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any state
thereof which, at the time of such investment, have one of the two highest
ratings of each Rating Agency (except if the Rating Agency is Moody's, such
rating shall be the highest commercial paper rating of Moody's for any such
securities), or such lower rating as will not result in the downgrading or
withdrawal of the rating then assigned to the Securities by any such Rating
Agency, as evidenced by a signed writing delivered by each such Rating Agency;
and (viii) such other investments having a specified stated maturity and
bearing interest or sold at a discount acceptable to each Rating Agency as
will not result in the downgrading or withdrawal of the rating then assigned
to the Securities of such Series by any such Rating Agency, as evidenced by a
signed writing delivered by each such Rating Agency; provided that no such
instrument shall be a Permitted Investment if such instrument evidences the
right to receive interest only payments with respect to the obligations
underlying such instrument.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
[Policy: The irrevocable and unconditional limited financial guaranty
insurance policy number [__________], dated as of the Closing Date, issued by
the Credit Enhancer to the Trustee for the benefit of the Noteholders and to
the Certificate Paying Agent as agent for the Issuer for the benefit of the
Securityholders.]
Pool Balance: With respect to any date, the aggregate of the Asset
Balances of all Mortgage Loans as of such date.
Prepayment Period: As to any Distribution Date, the period from the __th
day of the calendar month preceding the month of such Distribution Date (or,
in the case of the first Distribution Date, from the Cut-off Date) through the
__th of the month of such Distribution Date.
Principal Balance: With respect to any Payment Date, the Initial
Principal Balance thereof, reduced by all distributions of principal thereon
prior to such Payment Date.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment. Partial
Principal Prepayments shall be applied by the Master Servicer in accordance
with the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Prospectus Supplement: Means the Prospectus Supplement dated [ ] relating
to the Notes.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to Section 2(a)(ii) or 2(d)(iv) hereof or
purchased at the option of the Master Servicer pursuant to Section 3(n), an
amount equal to the sum of (i) 100% of the unpaid principal balance of the
Mortgage Loan on the date of such purchase, and (ii) accrued interest thereon
at the applicable Mortgage Rate (or at the applicable Adjusted Mortgage Rate
if (x) the purchaser is the Master Servicer or (y) if the purchaser is the
Seller and the Seller is the Master Servicer) from the date through which
interest was last paid by the Mortgagor to the Due Date in the month in which
the Purchase Price is to be distributed to Securityholders.
Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and
each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and
to write the insurance provided by the insurance policy issued by it, approved
as a FNMA-approved mortgage insurer and having a claims paying ability rating
of at least "AA" or equivalent rating by a nationally recognized statistical
rating organization. Any replacement insurer with respect to a Mortgage Loan
must have at least as high a claims paying ability rating as the insurer it
replaces had on the Closing Date.
Rating Agency: Any nationally recognized statistical rating organization,
or its successor, that rated the Securities at the request of [________] at
the time of the initial issuance of the Securities. Initially, [________] or
[__________]. If such organization or a successor is no longer in existence,
"Rating Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, designated by [________], notice of
which designation shall be given to the Trustee. References herein to the
highest short term unsecured rating category of a Rating Agency shall mean
[___] or better in the case of [__________]and [___] or better in the case of
[_____] and in the case of any other Rating Agency shall mean such equivalent
ratings. References herein to the highest long-term rating category of a
Rating Agency shall mean "[___]" in the case of [__________] and [_____] in
the case of [________] and in the case of any other Rating Agency, such
equivalent rating.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus (ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Securityholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation
occurred, to the extent applied as recoveries of interest at the Adjusted Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan which has become the subject of a Deficient Valuation,
if the principal amount due under the related Mortgage Note has been reduced,
the difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REO Property: A Mortgaged Property acquired by the Issuer through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan required to be
repurchased on any date pursuant hereto or purchased by the Master Servicer
pursuant to the Master Servicing Agreement, an amount equal to the sum of (i)
100% of the Asset Balance thereof (without reduction for any amounts charged
off) and (ii) unpaid accrued interest at the Loan Rate on the outstanding
principal balance thereof from the Due Date to which interest was last paid by
the Mortgagor to the first day of the month following the month of purchase.
No portion of any Repurchase Price shall be included in the Excluded Amount
for any Payment Date.
Request for Release: The Request for Release submitted by the Master
Servicer to the Trustee, substantially in the form of Exhibits C and D, as
appropriate.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under
this Agreement.
SAIF: Means the Savings Association Insurance Fund, or any successor
thereto.
S&P: Means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx
Inc. If S&P is designated as a Rating Agency in the Indenture, for purposes of
Section 8(c) the address for notices to S&P shall be Standard & Poor's Ratings
Group, 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Monitoring, or such other address as S&P may hereafter furnish to
the Issuer and the Master Servicer.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
Security: Any of the Certificates or Notes.
Securityholder or Holder: Any Noteholder or any Certificateholder.
Seller: [__________________], and its successors and assigns.
Servicer Advance: Means the meaning ascribed to such term in Section
3(h)(iv).
Servicing Account: Means the separate Eligible Account or Accounts
created and maintained pursuant to Section 3(h)(ii).
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations, including, but not limited to, the cost of (i)
the preservation, restoration and protection of a Mortgaged Property, (ii) any
expenses reimbursable to the Master Servicer pursuant to Section 3(n) and any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3(l).
Servicing Default: Means a servicing default as described under Section
7(a) of this Agreement.
Servicing Fee: Means, as to each Mortgage Loan and any Distribution Date,
an amount equal to one month's interest at the applicable Servicing Fee Rate
on the Stated Principal Balance of such Mortgage Loan.
Servicing Fee Rate: Means, with respect to any Mortgage Loan, the per
annum rate set forth in the Mortgage Loan Schedule for such Mortgage Loan.
Servicing Officer: Any officer of the Master Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Subservicer: Any Person with whom the Master Servicer has entered into a
Subservicing Agreement as a Subservicer by the Master Servicer pursuant to
Section 3(b).
Subservicing Agreement: The written contract between the Master Servicer
and any Subservicer relating to servicing and administration of certain
Mortgage Loans as provided in Section [ ] of the Master Servicing Agreement.
Subservicing Fee: With respect to any Mortgage Loan and any Collection
Period, the fee retained monthly by the Subservicer (or, in the case of a
nonsubserviced Mortgage Loan, by the Master Servicer) equal to the product of
(i) the Subservicing Fee Rate divided by 12 and (ii) the aggregate Asset
Balance of the Mortgage Loans as of the first day of such Collection Period.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for a
Deleted Mortgage Loan which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit C,
(i) have a Stated Principal Balance, after deduction of the principal portion
of the Scheduled Payment due in the month of substitution, not in excess of,
and not more than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) be accruing interest at a rate no lower than and not more
than 1% per annum higher than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (iv)
have a remaining term to maturity no greater than (and not more than one year
less than that of) the Deleted Mortgage Loan; and (v) comply with each
representation and warranty set forth in Section 2(d) hereof.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2(d)(iv).
Trust Agreement: Means the Trust Agreement, dated as of [ ], between
[________] and the Owner Trustee, as such Trust Agreement may be amended or
supplemented from time to time.
Trustee: Shall mean [______________], and its successors and assigns or
any successor trustee appointed pursuant to the terms of the Indenture.
Trustees: Shall mean the Trustee and the Owner Trustee.
Trust Estate: Shall have the meaning ascribed to such term in the
Indenture.
UCC: The Uniform Commercial Code, as amended from time to time, as in
effect in any specified jurisdiction.
Withdrawal Date: Means the ____ day of each month, or if such day is not
a Business Day, the next preceding Business Day.
2. Conveyance of Mortgage Loans; Representations and Warranties.
(a) Conveyance of Mortgage Loans; Retention of Obligation to
Fund Advances Under Credit Line Agreements.
[________], concurrently with the execution and delivery of this
Agreement, does hereby transfer, assign, set over and otherwise convey to the
Trust without recourse (subject to Sections 2(b)and 2(d) all of its right,
title and interest in and to (i) each Mortgage Loan, including its Asset
Balance (including all Additional Balances) and all collections in respect
thereof received on or after the Cut-off Date (excluding payments in respect
of accrued interest due prior to the Cut-off Date or due in the month of
____________); (ii) property that secured a Mortgage Loan that is acquired by
foreclosure or deed in lieu of foreclosure; (iii) [[________]'s rights under
the hazard insurance policies,] (iv) the Collection Account (excluding net
earnings thereon); (vii) the Policy, (viii) the Payment Account and (ix) all
other assets included or to be included in the Trust for the benefit of
Securityholders; provided, however, neither the Trustee nor the Trust assumes
the obligation under any Credit Line Agreement that provides for the funding
of future advances to the Mortgagor thereunder, and neither the Trust nor the
Trustee shall be obligated or permitted to fund any such future advances.
Additional Balances shall be part of the related Asset Balance and are hereby
transferred to the Trust on the Closing Date pursuant to this Section 2(a),
and therefore part of the Trust property. In addition, on or prior to the
Closing Date, [________] shall cause the Credit Enhancer to deliver the Policy
to the Trustee for the benefit of the Securityholders. The foregoing transfer,
assignment, set-over and conveyance to the Trust shall be made to the Trustee,
on behalf of the Trust, and each reference in this Agreement to such transfer,
assignment, set-over and conveyance shall be construed accordingly.
[________] agrees to take or cause to be taken such actions and execute
such documents (including without limitation the filing of all necessary
continuation statements for the UCC-1 financing statements filed in the State
of __________ (which shall have been filed within 90 days of the Closing Date)
describing the Cut-off Date Asset Balances and Additional Balances and naming
[________] as debtor and the Trustee as secured party and any amendments to
UCC-1 financing statements required to reflect a change in the name or
corporate structure of [________] or the filing of any additional UCC-1
financing statements due to the change in the principal office of [________]
(within 90 days of any event necessitating such filing) as are necessary to
perfect and protect the Securityholders' and Credit Enhancer's interests in
each Cut-off Date Asset Balance and Additional Balances and the proceeds
thereof (other than maintaining possession by the Trustee of the Mortgage
Loans and the Mortgage Files, which possession will, subject to the terms
hereof, be maintained by the Master Servicer as custodian and bailee of the
Trustee).
In connection with such transfer and assignment by [________], the Master
Servicer acknowledges that it is holding as custodian and bailee for the
Trustee the following documents or instruments (the "Related Documents") with
respect to each Mortgage Loan:
(A) the original Mortgage Note endorsed in blank;
(B) an original Assignment of Mortgage in blank in recordable form;
(C) the original recorded Mortgage or, if, in connection with any
Mortgage Loan, the original recorded Mortgage with evidence of recording
thereon cannot be delivered on or prior to the Closing Date because of a delay
caused by the public recording office where such original Mortgage has been
delivered for recordation or because such original Mortgage has been lost,
[________], shall deliver or cause to be delivered to the Custodian, as agent
for the Trustee, a true and correct copy of such Mortgage, together with (i)
in the case of a delay caused by the public recording office, an Officer's
Certificate of [________] stating that such original Mortgage has been
dispatched to the appropriate public recording official or (ii) in the case of
an original Mortgage that has been lost, a certificate by the appropriate
county recording office where such Mortgage is recorded;
(D) if applicable, the original intervening assignments, if any
("Intervening Assignments"), with evidence of recording thereon, showing a
complete chain of title to the Mortgage from the originator to [________] or,
if any such original Intervening Assignment has not been returned from the
applicable recording office or has been lost, a true and correct copy thereof,
together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Seller stating that such original
Intervening Assignment has been dispatched to the appropriate public recording
official for recordation or (ii) in the case of an original Intervening
Assignment that has been lost, a certificate by the appropriate county
recording office where such Mortgage is recorded;
(E) either (1) for each Mortgage Loan with a Credit Limit in excess
of $_________, a title policy or (2) for all other Mortgage Loans, either a
title policy, a title search or guaranty of title with respect to the related
Mortgaged Property;
(F) the original of any guaranty executed in connection with the
Mortgage Note;
(G) the original of each assumption, modification, consolidation or
substitution agreement, if any, relating to the Mortgage Loan; and
(H) any security agreement, chattel mortgage or equivalent
instrument executed in connection with the Mortgage;
provided, however, that as to any Mortgage Loan, if (a) as evidenced by an
Opinion of Counsel delivered to and in form and substance satisfactory to the
Trustee and the Credit Enhancer, (x) an optical image or other representation
of the related documents specified in clauses (i) through (viii) above are
enforceable in the relevant jurisdictions to the same extent as the original
of such document and (y) such optical image or other representation does not
impair the ability of an owner of such Mortgage Loan to transfer its interest
in such Mortgage Loan, and (b) the retention of such documents in such format
will not result in a reduction in the then current rating of the Notes or
Certificates, without regard to the Policy, such optical image or other
representation may be held by the Master Servicer, as custodian for the
Trustee or assignee in lieu of the physical documents specified above.
The Seller hereby confirms to the Trustee that it has caused the portions
of its 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 such Mortgage Loans have been transferred
to the Trust at the direction of [________]. The Master Servicer hereby
confirms to the Trustee that it has clearly and unambiguously made appropriate
entries in its general accounting records indicating that such Mortgage Loans
constitute part of the Trust and are serviced by it on behalf of the Trust in
accordance with the terms hereof.
The parties hereto intend that the transaction set forth herein be a sale
by [________] to the Trust of all [________]'s right, title and interest in
and to the Mortgage Loans and other property described above. In the event the
transaction set forth herein is deemed not to be a sale, [________] hereby
grants to the Trust a security interest in all of [________]'s right, title
and interest in, to and under the Mortgage Loans whether now existing or
hereafter created, all monies due or to become due on the Mortgage Loans and
all proceeds of any thereof; and this Agreement shall constitute a security
agreement under applicable law.
Except as hereinafter provided, the Master Servicer shall be entitled to
maintain possession of all of the foregoing documents and instruments and
shall not be required to deliver any of them to the Trustee or the Owner
Trustee. In the event, however, that possession of any of such documents or
instruments is required by any Person (including any such Trustee) acting as
successor servicer pursuant to Section 6(d) or 7(b) in order to carry out the
duties of Master Servicer hereunder, then such successor shall be entitled to
request delivery, at the expense of the Master Servicer, of such documents or
instruments by the Master Servicer and to retain such documents or instruments
for servicing purposes; provided that the Trustee or such servicers shall
maintain such documents at such offices as may be required by any regulatory
body having jurisdiction over such Mortgage Loans.
The Master Servicer's right to maintain possession of the documents
enumerated above shall continue so long as the long term unsecured debt of [ ]
is assigned ratings of at least "____" by __________________ and "____" by
_______________. At such time as the condition specified in the preceding
sentence is not satisfied, as promptly as practicable but in no event more
than __ days in the case of clause (i) below and __ days in the case of clause
(ii) below following the occurrence of such event (a "Delivery Event"), the
Master Servicer shall, at its expense, (i) either (x) record an assignment of
Mortgage in favor of the Trustee (which may be a blanket assignment if
permitted by applicable law) in the appropriate real property or other records
or (y) deliver to the Trustee the assignment of such Mortgage in favor of the
Trustee in form for recordation, together with an Opinion of Counsel addressed
to the Trustee and the Credit Enhancer to the effect that recording is not
required to protect the Trustee's right, title and interest in and to 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 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, and (ii) unless an Opinion
of Counsel, reasonably acceptable to the Trustee, the Rating Agencies (as
evidenced in writing) and the Credit Enhancer, is delivered to the Trustee and
the Credit Enhancer to the effect that delivery of the Mortgage Files is not
necessary to protect the Trustee's right, title and interest in the related
Mortgage Loans; provided that the lack of delivery will not result in a
reduction in the then current rating of the "Notes or Certificates", without
regard to the Policy, deliver the related Mortgage Files to the Trustee or to
a custodian located in the State of [California] appointed by the Trustee and
acceptable to the Rating Agencies and the Credit Enhancer to be held by the
Custodian on behalf of the Trustees in trust, upon the terms herein set forth,
for the use and benefit of all present and future Securityholders and the
Custodian on behalf of the Trustee shall retain possession thereof except to
the extent the Master Servicer requires any Mortgage Files for normal
servicing as contemplated by Section _____. The Trustee is hereby appointed as
the attorney-in-fact of the Master Servicer with the power to prepare, execute
and record Assignments of Mortgages in the event that the Master Servicer
fails to do so on a timely basis as provided in this paragraph.
Within 90 days following delivery, if any, of the Mortgage Files to the
Trustee pursuant to the preceding paragraph, the Trustee shall review each
such Mortgage File to ascertain that all required documents set forth in this
Section 2(a) have been executed and received, and that such documents relate
to the Mortgage Loans identified on the Mortgage Loan Schedule and in so doing
the Trustee may rely on the purported due execution and genuineness of any
signature thereon. If within such 90-day period the Trustee finds any document
constituting a part of a Mortgage File not to have been executed or received
or to be unrelated to the Mortgage Loans identified in said Mortgage Loan
Schedule or, if in the course of its review, the Trustee determines that such
Mortgage File is otherwise defective in any material respect, the Trustee
shall promptly upon the conclusion of its review notify the Issuer and the
Credit Enhancer, and the Seller shall have a period of 90 days after such
notice within which to correct or cure any such defect.
The Trustee shall have no responsibility for reviewing any Mortgage File
except as expressly provided in this Section 2(a). In reviewing any Mortgage
File pursuant to this Section, the Trustee shall have no responsibility for
determining whether any document is valid and binding, whether the text of any
assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Trustee is the assignee or endorsee), whether
any document has been recorded in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction, whether any Person executing any document is
authorized to do so or whether any signature thereon is genuine, but shall
only be required to determine whether a document has been executed, that it
appears to be what it purports to be, and, where applicable, that it purports
to be recorded.
(b) Acceptance by Trustee; Retransfer of Mortgage Loans.
The Trustee hereby acknowledges its receipt of the Policy and the
Mortgage Loans, and declares that the Trustee holds and will hold such
instrument, and to the extent that any documents are delivered to it pursuant
to Section 2(a), will hold such documents, and all amounts received by it
thereunder and hereunder, in trust, upon the terms herein set forth, for the
use and benefit of all present and future Securityholders and the Credit
Enhancer. If the time to cure any defect in respect of any Mortgage Loan of
which the Trustee has notified the Issuer and Provient, following the review
pursuant to Section 2(a) has expired or if at any time any loss is suffered by
the Trustee on behalf of the Securityholders or the Credit Enhancer, in
respect of any Mortgage Loan as a result of (i) a defect in any document
constituting a part of its Mortgage File or (ii) an Assignment of Mortgage to
the Trustee not having been recorded as required by Section 2(a),then on the
next succeeding Business Day upon satisfaction of the applicable conditions
described herein, all right, title and interest of the Trust in and to such
Mortgage Loan shall be deemed to be retransferred, reassigned and otherwise
reconveyed, without recourse, representation or warranty, to [________] on
such Business Day and the Asset Balance of such Mortgage Loan shall be
deducted from the Pool Balance; provided, however, that interest accrued on
the Asset Balance of such Mortgage Loan to the end of the related Collection
Period shall be the property of the Trust. Upon receipt of any Eligible
Substitute Mortgage Loan or then as promptly as practicable following such
deemed transfer, the Trustee shall execute such documents and instruments of
transfer presented by the Seller, in each case without recourse,
representation or warranty, and take such other actions as shall reasonably be
requested by the Seller to effect such transfer by the Trust of such Defective
Mortgage Loan pursuant to this Section.
The Master Servicer, promptly following the transfer of a Defective
Mortgage Loan from or to the Trust pursuant to this Section, shall amend the
Mortgage Loan Schedule and make appropriate entries in its general account
records to reflect such transfer. The Master Servicer shall, following such
retransfer, appropriately xxxx its records to indicate that it is no longer
servicing such Mortgage Loan on behalf of the Trust. The Seller, promptly
following such transfer, shall appropriately xxxx its electronic ledger and
make appropriate entries in its general account records to reflect such
transfer.
As to any Eligible Substitute Mortgage Loan or Loans, the Seller shall,
if a Delivery Event has occurred, deliver to the Trustee with respect to such
Eligible Substitute Mortgage Loan or Loans such documents and agreements as
are required to be held by the Trustee in accordance with Section 2(a). For
any Collection Period during which the Seller substitutes one or more Eligible
Substitute Mortgage Loans, the Master Servicer shall determine the
Substitution Adjustment Deposit Amount which amount shall be deposited by the
Seller in the Collection Account at the time of substitution. All amounts
received in respect of the Eligible Substitute Mortgage Loan or Loans during
the Collection Period in which the circumstances giving rise to such
substitution occur shall not be a part of the Issuer and shall not be
deposited by the Master Servicer in the Collection Account. All amounts
received by the Master Servicer during the Collection Period in which the
circumstances giving rise to such substitution occur in respect of any
Defective Mortgage Loan so removed by the Issuer shall be deposited by the
Master Servicer in the Collection Account. Upon such substitution, the
Eligible Substitute Mortgage Loan or Loans shall be subject to the terms of
this Agreement in all respects, and the Seller shall be deemed to have made
with respect to such Eligible Substitute Mortgage Loan or Loans, as of the
date of substitution, the covenants, representations and warranties set forth
in Section 2(d). The procedures applied by the Seller in selecting each
Eligible Substitute Mortgage Loan shall not be materially adverse to the
interests of the Trustees, the Securityholders and the Credit Enhancer.
(c) Documents, Records and Funds in Possession of Master Servicer
to be Held for Trustee.
(i) Notwithstanding any other provisions of this Agreement, the
Master Servicer shall transmit to the Trustee as required by this Agreement
all documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully to
the Trustees for any funds received by the Master Servicer or which otherwise
are collected by the Master Servicer as Liquidation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control of, the Master Servicer in respect
of any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds, including but not limited to, any funds
on deposit in the Collection Account, shall be held by the Master Servicer for
and on behalf of the Trustees and shall be and remain the sole and exclusive
property of the Trustees, subject to the applicable provisions of this
Agreement. The Master Servicer also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the Collection
Account, Payment Account or any Escrow Account, or any funds that otherwise
are or may become due or payable to the Trustee for the benefit of the
Securityholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Mortgage File or any funds collected on,
or in connection with, a Mortgage Loan, except, however, that the Master
Servicer shall be entitled to set off against and deduct from any such funds
any amounts that are properly due and payable to the Master Servicer under
this Agreement.
(ii) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee has acquired and holds a security
interest in the Trustee Mortgage Files and in all Mortgage Loans represented
by such Mortgage Files and in all funds now or hereafter held by, or under the
control of, the Master Servicer that are collected by the Master Servicer in
connection with the Mortgage Loans, whether as Scheduled Payments, as
Principal Prepayments, or as Liquidation Proceeds or Insurance Proceeds, and
in all proceeds of the foregoing and proceeds of proceeds (but excluding any
Master Servicing Fees, Servicing Fees, Trustee Fees and any other amounts or
reimbursements to which the Master Servicer is entitled under this Agreement).
The Master Servicer agrees that so long as the Mortgage Loans are assigned to
the Trustee, all Master Servicer Mortgage Files and Trustee Mortgage Files
(and any documents or instruments constituting a part of such files), and such
funds which come into the possession or custody of, or which are subject to
the control of, the Master Servicer shall be held by the Master Servicer for
and on behalf of the Trustee as the Trustee's agent and bailee for purposes of
perfecting the Trustee's security interest therein, as provided by Section
9-305 of the Uniform Commercial Code of the state in which such property is
located, or by other laws, as specified in Section _____ of the Indenture. The
Master Servicer hereby accepts such agency and acknowledges that the Trustee,
as secured party, will be deemed to have possession at all times of all
Mortgage Files and any other documents or instruments constituting a part of
such files, such funds and other items for purposes of Section 9-305 of the
Uniform Commercial Code of the state in which such property is held by the
Master Servicer.
(d) Representations, Warranties and Covenants of the Seller and the Master
Servicer.
(i) [_________________-], in its capacities as Seller and Master
Servicer, hereby makes the representations and warranties set forth in
Schedule II hereto, and by this reference incorporated herein, to [________]
and the Trustee, as of the Closing Date, or if so specified therein, as of the
Cut-off Date.
(ii) The Seller, in its capacity as Seller, hereby makes the
representations and warranties set forth in Schedule III hereto, and by this
reference incorporated herein, to [________] and the Trustee, as of the
Closing Date, or if so specified therein, as of the Cut-off Date.
(iii) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2(d)(ii) that materially
and adversely affects the interests of the Securityholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. The Seller hereby covenants that within 90 days of the
earlier of its discovery or its receipt of written notice from any party of a
breach of any representation or warranty made pursuant to Section 2(d)(ii)
which materially and adversely affects the interests of the Securityholders in
any Mortgage Loan, it shall cure such breach in all material respects, and if
such breach is not so cured, shall, (i) if such 90-day period expires prior to
the second anniversary of the Closing Date, remove such Mortgage Loan (a
"Deleted Mortgage Loan") from the Issuer and substitute in its place a
Substitute Mortgage Loan, in the manner and subject to the conditions set
forth in this Section; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the manner set forth
below; provided, however, that any such substitution pursuant to (i) above
shall not be effected prior to the delivery to the Trustees of the Opinion of
Counsel required by [Section ____ {delivery of opinion}] hereof, if any, and
any such substitution pursuant to (i) above shall not be effected prior to the
additional delivery to the Trustee of a Request for Release substantially in
the form of Exhibit D and the Mortgage File for any such Substitute Mortgage
Loan. The Seller shall promptly reimburse the Master Servicer and the Trustee
for any expenses reasonably incurred by the Master Servicer or any Trustee in
respect of enforcing the remedies for such breach. With respect to the
representations and warranties described in this Section which are made to the
best of the Seller's knowledge, if it is discovered by either [________], the
Seller or any Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of the related Mortgage Loan or the interests of the Securityholders therein,
notwithstanding the Seller's lack of knowledge with respect to the substance
of such representation or warranty, such inaccuracy shall be deemed a breach
of the applicable representation or warranty.
With respect to any Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee for the benefit of the Securityholders the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and such other
documents and agreements as are required by Section 2(a), with the Mortgage
Note endorsed and the Mortgage assigned as required by Section 2(a). No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the month of substitution shall not be part of
the Issuer and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Securityholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan. The Master Servicer
shall amend the Mortgage Loan Schedule for the benefit of the Securityholders
to reflect the removal of such Deleted Mortgage Loan and the substitution of
the Substitute Mortgage Loan or Loans and the Master Servicer shall deliver
the amended Mortgage Loan Schedule to the Trustees. Upon such substitution,
the Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Substitute Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to Section
2(d)(ii) with respect to such Mortgage Loan. Upon any such substitution and
the deposit to the Collection Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Trustee shall release the Mortgage File held for the benefit of
the Securityholders relating to such Deleted Mortgage Loan to the Seller and
shall execute and deliver at the Seller's direction such instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its designee, the
Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to
this Section 2(d).
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer
will determine the amount (if any) by which the aggregate principal balance of
all such Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all such Deleted Mortgage Loans
(after application of the scheduled principal portion of the monthly payments
due in the month of substitution). The amount of such shortage (the
"Substitution Adjustment Amount") plus an amount equal to the aggregate of any
unreimbursed Advances with respect to such Deleted Mortgage Loans shall be
deposited in the Collection Account by the Seller on or before the Payment
Account Deposit Date for the Distribution Date in the month succeeding the
calendar month during which the related Mortgage Loan became required to be
purchased or replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage Loan, the
Purchase Price therefor shall be deposited in the Collection Account pursuant
to Section 3(h) on or before the Payment Account Deposit Date for the
Distribution Date in the month following the month during which the Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and
upon such deposit of the Purchase Price, the delivery of the Opinion of
Counsel required by Section 2(d) and receipt of a Request for Release in the
form of Exhibit D hereto, the Trustee shall release the related Mortgage File
held for the benefit of the Securityholders to such Person, and the Trustee
shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and
is continuing shall constitute the sole remedy against such Persons respecting
such breach available to Securityholders, [________] or the Trustees on their
behalf.
The representations and warranties made pursuant to this Section 2(d)
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Securityholders.
(e) Covenants of the Master Servicer.
The Master Servicer hereby covenants to [________] and the Trustees as
follows:
(i) the Master Servicer shall comply in the performance of its
obligations under this Agreement with all reasonable rules and requirements of
the insurer under each Required Insurance Policy; and
(ii) no written information, certificate of an officer, statement
furnished in writing or written report delivered to [________], any affiliate
of [________] or any Trustee and prepared by the Master Servicer pursuant to
this Agreement will contain any untrue statement of a material fact or omit to
state a material fact necessary to make such information, certificate,
statement or report not misleading.
(f) Covenants of [________].
[________] hereby covenants that, except for the transfer under the
Indenture, [________] will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on any
Mortgage Loan, whether now existing or hereafter created, or any interest
therein; [________] will notify the Trustee of the existence of any Lien on
any Mortgage Loan immediately upon discovery thereof; and [________] will
defend the right, title and interest of the Trust in, to and under the
Mortgage Loans, whether now existing or hereafter created, against all claims
of third parties claiming through or under [________]; provided, however, that
nothing in this Section 2(e) shall prevent or be deemed to prohibit [________]
from suffering to exist upon any of the Mortgage Loans any Liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if [________]
shall currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books adequate
reserves with respect thereto.
3. Administration and Servicing of Mortgage Loans.
The parties agree that, subject to the provisions of Section 7
hereof, the Master Servicer shall service the Mortgage Loans in the manner and
on the terms and conditions set forth below:
(a) Master Servicer to Service Mortgage Loans.
(i) 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, to do any and all things in connection with such
servicing and administration which it may deem necessary or desirable, it
being understood, however, that the Master Servicer shall at all times remain
responsible to the Trustees, the Securityholders and the Credit Enhancer for
the performance of its duties and obligations hereunder in accordance with the
terms hereof. Any amounts received by any subservicer in respect of a Mortgage
Loan shall be deemed 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 shall continue, and is hereby authorized and empowered by
the Trustee, to execute and deliver, on behalf of itself, the Securityholders
and the Trustee, or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans and with respect to
the Mortgaged Properties. The Trustee shall, upon the written request of a
Servicing Officer, furnish the Master Servicer with any powers of attorney and
other documents necessary or appropriate to enable the Master Servicer to
carry out its servicing and administrative duties hereunder. The Master
Servicer in such capacity may also consent to the placing of a lien senior to
that of any Mortgage on the related Mortgaged Property, provided that
(x) such Mortgage succeeded to a first lien position after
the related Mortgage Loan was conveyed to the Trust and, immediately
following the placement of such senior lien, such Mortgage is in a
second lien position and the outstanding principal amount of the
mortgage loan secured by such subsequent senior lien is no greater
than the outstanding principal amount of the senior mortgage loan
secured by the Mortgaged Property as of the date the related
Mortgage Loan was originated; or
(y) the Mortgage relating to such Mortgage Loan was in a
second lien position as of the Cut-off Date and the new senior lien
secures a mortgage loan that refinances an existing first mortgage
loan and the outstanding principal amount of the replacement first
mortgage loan immediately following such refinancing is not greater
than the outstanding principal amount of such existing first
mortgage loan at the date of origination of such Mortgage Loan;
provided, further, that such senior lien does not secure a note that provides
for negative amortization. Notwithstanding the foregoing, the Master Servicer
can consent to the placing of liens senior to that of a Mortgage on the
related Mortgaged Property which have a principal balance in excess of the
principal balance of the senior lien it replaces on Mortgage Loans having in
the aggregate Asset Balances not in excess of ___% of the Cut-off Date Pool
Balance; provided, however, that, with respect to Mortgage Loans which as of
the Cut-off Date had Combined Loan-to-Value Ratios in excess of ___%, the
aggregate Asset Balance of such Mortgage Loans with respect to which the
senior lien may be so modified shall not exceed _____% of the Cut-off Date
Pool Balance (such ___% and _____% herein referred to as the "Increased Senior
Lien Limitation"). Any such increase to the principal balance of the senior
lien shall not exceed the greater of $_______ and _____% of the principal
balance of the senior lien prior to such increase.
The Master Servicer may also, without prior approval from the Rating
Agencies or the Credit Enhancer, increase the Credit Limits on Mortgage Loans
provided that (i) new appraisals are obtained and the Combined Loan-to-Value
Ratios of the Mortgage Loans after giving effect to such increase are less
than or equal to the Combined Loan-to-Value Ratios or the Mortgage Loans as of
the Cut-off Date and (ii) such increases are consistent with the Master
Servicer's underwriting policies. In addition, the Master Servicer may
increase the Credit Limits on Mortgage Loans having aggregate balances of up
to ____% of the aggregate Cut-off Date Pool Balance, without obtaining new
appraisals provided that (i) the increase in the Credit Limit does not cause
the Combined Loan-to-Value Ratios of the Mortgage Loans to exceed _____% and
(ii) the increase is consistent with the Master Servicer's underwriting
policies.
Furthermore, the Master Servicer may, without prior approval from the
Rating Agencies and the Credit Enhancer solicit Mortgagors for a reduction in
Loan Rates; provided that the Master Servicer can only reduce such Loan Rates
on up to ____% of the Mortgage Loans by Cut-off Date Pool Balance. Any such
solicitations shall not result in a reduction in the weighted average Gross
Margin of the Mortgage Loans in the pool by more than ____ basis points taking
into account any such prior reductions.
In addition, the Master Servicer may agree to changes in the terms of a
Mortgage Loan at the request of the Mortgagor provided that such changes (i)
do not materially and adversely affect the interests of Securityholders 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 Trustee and the Credit Enhancer.
In addition to the foregoing, the Master Servicer may solicit Mortgagors
to change any other terms of the related Mortgage Loans, provided that such
changes (i) do not materially and adversely affect the interest of
Securityholders 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 Trustee and the Credit Enhancer. Nothing
herein 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 relationship of the Master Servicer (and of any successor to the
Master Servicer as servicer under this Agreement) to the 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.
(ii) In the event that the rights, duties and obligations
of the Master Servicer are terminated hereunder, any successor to
the Master Servicer in its sole discretion may, to the extent
permitted by applicable law, terminate the existing subservicer
arrangements with any subservicer or assume the terminated Master
Servicer's rights under such subservicing arrangements which
termination or assumption will not violate the terms of such
arrangements.
(b) Subservicing; Enforcement of the Obligations of Servicers.
(i) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a Subservicer pursuant to a subservicing agreement; provided,
however, that such subservicing arrangement and the terms of the related
subservicing agreement must provide for the servicing of such Mortgage Loans
in a manner consistent with the servicing arrangements contemplated hereunder.
Unless the context otherwise requires, references in this Agreement to actions
taken or to be taken by the Master Servicer in servicing the Mortgage Loans
include actions taken or to be taken by a Subservicer on behalf of the Master
Servicer. Notwithstanding the provisions of any subservicing agreement, any of
the provisions of this Agreement relating to agreements or arrangements
between the Master Servicer and a Subservicer or reference to actions taken
through a Subservicer or otherwise, the Master Servicer shall remain obligated
and liable to [________], the Trustees and the Securityholders for the
servicing and administration of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or
liability by virtue of such subservicing agreements or arrangements or by
virtue of indemnification from the Subservicer and to the same extent and
under the same terms and conditions as if the Master Servicer alone were
servicing and administering the Mortgage Loans. All actions of each
Subservicer performed pursuant to the related subservicing agreement shall be
performed as an agent of the Master Servicer with the same force and effect as
if performed directly by the Master Servicer.
(ii) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries or payments with respect
to the Mortgage Loans that are received by a Subservicer regardless of whether
such payments are remitted by the Subservicer to the Master Servicer.
(iii) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustees and the Securityholders, shall use
its best reasonable efforts to enforce the obligations of each Subservicer
under the related Subservicing Agreement, to the extent that the
non-performance of any such obligation would have material and adverse effect
on a Mortgage Loan. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing Agreements and the pursuit
of other appropriate remedies, shall be in such form and carried out to such
an extent and at such time as the Master Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting
from such enforcement to the extent, if any, that such recovery exceeds all
amounts due in respect of the related Mortgage Loan or (ii) from a specific
recovery of costs, expenses or attorneys fees against the party against whom
such enforcement is directed.
(c) Successor Servicers.
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the Subservicer, the Master Servicer shall
either act as servicer of the related Mortgage Loan or enter into a
Subservicing Agreement with a successor Subservicer which will be bound by the
terms of the related Subservicing Agreement. If the Master Subservicer or any
affiliate of the Master Servicer acts as Subservicer, it will not assume
liability for the representations and warranties of the Subservicer which it
replaces. If the Master Subservicer enters into a Subservicing Agreement with
a successor Subservicer, the Master Servicer shall use reasonable efforts to
have the successor Subservicer assume liability for the representations and
warranties made by the terminated Subservicer in respect of the related
Mortgage Loans and, in the event of any such assumption by the successor
Subservicer, the Master Servicer may, in the exercise of its business
judgment, release the terminated Servicer from liability for such
representations and warranties.
(d) Liability of the Master Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer
or a Subservicer or references to actions taken through a Subservicer or
otherwise, the Master Servicer shall remain obligated and liable to the
Trustees and Securityholders for the servicing and administering of the
Pledged Mortgages in accordance with the provisions of Section 3(a) without
diminution of such obligation or liability by virtue of such Subservicing
Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as
if the Master Servicer alone were servicing and administering the Pledged
Mortgages. The Master Servicer shall be entitled to enter into any agreement
with a Subservicer for indemnification of the Master Servicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
(e) No Contractual Relationship Between Subservicers and the Trustees.
Any Servicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Servicer
in its capacity as such and not as an originator shall be deemed to be between
the Subservicer and the Master Servicer alone and the Trustees and
Securityholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer in
its capacity as such except as set forth in Section 3(g).
(f) Rights of [________] and the Trustees in Respect of the Master
Servicer.
[________] may, but is not obligated to, enforce the obligations of the
Master Servicer hereunder and may, but is not obligated to, perform, or cause
a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Master Servicer hereunder; provided that the Master
Servicer shall not be relieved of any of its obligations hereunder by virtue
of such performance by [________] or its designee. Neither the Trustees nor
[________] shall have any responsibility or liability for any action or
failure to act by the Master Servicer nor shall the Trustees or [________] be
obligated to supervise the performance of the Master Servicer hereunder or
otherwise.
(g) Trustee to Act as Master Servicer.
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer hereunder (including by reason of an Event of Default),
the Trustee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that
the Trustee shall not be (i) liable for losses of the Master Servicer pursuant
to Section 3(l) hereof or any acts or omissions of the predecessor Master
Servicer hereunder), (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder including, but not limited to,
repurchases or substitutions of Mortgage Loans pursuant to Section 2(c)(ii) or
2(d) hereof, (iv) responsible for expenses of the Master Servicer pursuant to
Section 2(d) or (v) deemed to have made any representations and warranties of
the Master Servicer hereunder). Any such assumption shall be subject to
Section 7(b) hereof. If the Master Servicer shall for any reason no longer be
the Master Servicer (including by reason of any Event of Default), the Trustee
or its successor shall succeed to any rights and obligations of the Master
Servicer under each subservicing agreement.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement or substitute subservicing
agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected or held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the substitute
subservicing agreement to the assuming party.
(h) Collection of Mortgage Loan Payments; Collection Accounts; Payment
Account.
(i) The Master Servicer shall make reasonable efforts in accordance with
the customary and usual standards of practice of prudent mortgage servicers to
collect all payments called for under the terms and provisions of the Mortgage
Loans to the extent such procedures shall be consistent with this Agreement
and the terms and provisions of any related Required Insurance Policy.
Consistent with the foregoing, the Master Servicer may in its discretion (i)
waive any late payment charge or any prepayment charge or penalty interest in
connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Mortgage Note for a period not greater than 180
days; provided, however, that the Master Servicer cannot extend the maturity
of any such Mortgage Loan past the date on which the final payment is due on
the latest maturing Mortgage Loan as of the Cut-off Date. In the event of any
such arrangement, the Master Servicer shall make Advances on the related
Mortgage Loan in accordance with the provisions of Section 4 during the
scheduled period in accordance with the amortization schedule of such Mortgage
Loan without modification thereof by reason of such arrangements. The Master
Servicer shall not be required to institute or join in litigation with respect
to collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing the provision
of the Mortgage or other instrument pursuant to which such payment is required
is prohibited by applicable law.
(ii) The Master Servicer shall establish and maintain a Collection
Account into which the Master Servicer shall deposit or cause to be deposited
on a daily basis within one Business Day of receipt, except as otherwise
specifically provided herein, the following payments and collections remitted
by Subservicers or received by it in respect of Mortgage Loans subsequent to
the Cut-off Date (other than in respect of principal and interest due on the
Mortgage Loans on or before the Cut-off Date) and the following amounts
required to be deposited hereunder:
(A) all collections on account of principal on the Mortgage Loans;
(B) all collections on account of interest on the Mortgage Loans,
net of the related Master Servicing Fee;
(C) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged Property
or released to the Mortgagor in accordance with the Master Servicer's normal
servicing procedures;
(D) any amount required to be deposited by the Master Servicer
pursuant to Section 3(h)(v) in connection with any losses on Permitted
Investments;
(E) any amounts required to be deposited by the Master Servicer
pursuant to Section 3(l)(ii), 3(l)(iv), and in respect of net monthly rental
income from REO Property pursuant to Section 3(n) hereof;
(F) all Substitution Adjustment Amounts;
(G) all Advances made by the Master Servicer pursuant to Section 4;
and
(H) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Master Servicer shall be
exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of prepayment penalties,
late payment charges or assumption fees, if collected, need not be remitted by
the Master Servicer. In the event that the Master Servicer shall remit any
amount not required to be remitted, it may at any time withdraw or direct the
institution maintaining the Collection Account to withdraw such amount from
the Collection Account, any provision herein to the contrary notwithstanding.
Such withdrawal or direction may be accomplished by delivering written notice
thereof to the Trustee or such other institution maintaining the Collection
Account which describes the amounts deposited in error in the Collection
Account. The Master Servicer shall maintain adequate records with respect to
all withdrawals made pursuant to this Section. All funds deposited in the
Collection Account shall be held in trust for the Securityholders until
withdrawn in accordance with Section 3(k).
(iii) The Trustee shall establish and maintain, on behalf of the
Securityholders, the Payment Account. The Trustee shall, promptly upon
receipt, deposit in the Payment Account and retain therein the following:
(A) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3(k)(i)(I);
(B) any amount deposited by the Master Servicer pursuant to Section
3(h)(iv) in connection with any losses on Permitted Investments; and
(C) any other amounts deposited hereunder which are required to be
deposited in the Payment Account.
In the event that the Master Servicer shall remit any amount not required
to be remitted, it may at any time direct the Trustee to withdraw such amount
from the Payment Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an Officer's
Certificate to the Trustee which describes the amounts deposited in error in
the Payment Account. All funds deposited in the Payment Account shall be held
by the Trustee in trust for the Securityholders until disbursed in accordance
with this Agreement or withdrawn in accordance with Section 3(k). In no event
shall the Trustee incur liability for withdrawals from the Payment Account at
the direction of the Master Servicer.
(iv) Each institution at which the Collection Account or the Payment
Account is maintained shall invest the funds therein as directed in writing by
the Master Servicer in Permitted Investments, which shall mature not later
than (i) in the case of the Collection Account, the second Business Day next
preceding the related Payment Account Deposit Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
account, then such Permitted Investment shall mature not later than the
Business Day next preceding such Payment Account Deposit Date) and (ii) in the
case of the Payment Account, the Business Day next preceding the Distribution
Date (except that if such Permitted Investment is an obligation of the
institution that maintains such fund or account, then such Permitted
Investment shall mature not later than such Distribution Date) and, in each
case, shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Securityholders. All income and gain net of any losses realized
from any such investment of funds on deposit in the Collection Account or the
Payment Account shall be for the benefit of the Master Servicer as servicing
compensation and shall be remitted to it monthly as provided herein. The
amount of any realized losses in the Collection Account or the Payment Account
incurred in any such account in respect of any such investments shall promptly
be deposited by the Master Servicer in the Collection Account or paid to the
Trustee for deposit into the Payment Account, as applicable. The Trustee in
its fiduciary capacity shall not be liable for the amount of any loss incurred
in respect of any investment or lack of investment of funds held in the
Collection Account or the Payment Account and made in accordance with this
Section 3(h).
(v) The Master Servicer shall give notice to the Trustee, the
Seller, each Rating Agency and [________] of any proposed change of the
location of the Collection Account prior to any change thereof. The Trustee
shall give notice to the Master Servicer, the Seller, each Rating Agency and
[________] of any proposed change of the location of the Payment Account prior
to any change thereof.
(i) Collection of Taxes, Assessments and Similar Items; Escrow Accounts.
(i) To the extent required by the related Mortgage Note and not
violative of current law, the Master Servicer shall establish and maintain one
or more accounts (each, an "Escrow Account") and deposit and retain therein
all collections from the Mortgagors (or advances by the Master Servicer) for
the payment of taxes, assessments, hazard insurance premiums or comparable
items for the account of the Mortgagors. Nothing herein shall require the
Master Servicer to compel a Mortgagor to establish an Escrow Account in
violation of applicable law.
(ii) Withdrawals of amounts so collected from the Escrow Accounts
may be made only to effect timely payment of taxes, assessments, hazard
insurance premiums, condominium or PUD association dues, or comparable items,
to reimburse the Master Servicer out of related collections for any payments
made pursuant to Sections 3(a) hereof (with respect to taxes and assessments
and insurance premiums) and 3(l) hereof (with respect to hazard insurance), to
refund to any Mortgagors any sums determined to be overages, to pay interest,
if required by law or the terms of the related Mortgage or Mortgage Note, to
Mortgagors on balances in the Escrow Account or to clear and terminate the
Escrow Account at the termination of this Agreement in accordance with Section
8(a) hereof. The Escrow Accounts shall not be a part of the Issuer.
(iii) The Master Servicer shall advance any payments referred to in
Section 3(i)(i) that are not timely paid by the Mortgagors on the date when
the tax, premium or other cost for which such payment is intended is due, but
the Master Servicer shall be required so to advance only to the extent that
such advances, in the good faith judgment of the Master Servicer, will be
recoverable by the Master Servicer out of Insurance Proceeds, Liquidation
Proceeds or otherwise.
(j) Access to Certain Documentation and Information Regarding
the Mortgage Loans.
The Master Servicer shall afford [________] and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request
and during normal business hours at the office designated by the Master
Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Securityholder which is a savings and loan association, bank
or insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans sufficient to permit such
Securityholder to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates;
provided that the Master Servicer shall be entitled to be reimbursed by each
such Securityholder for actual expenses incurred by the Master Servicer in
providing such reports and access.
(k) Permitted Withdrawals from the Note Account.
(i) The Master Servicer may from time to time make withdrawals from
the Collection Account for the following purposes:
(A) to pay to the Master Servicer (to the extent not previously
retained by the Master Servicer) the servicing compensation to which it is
entitled pursuant to Section 5, and to pay to the Master Servicer, as
additional servicing compensation, earnings on or investment income with
respect to funds in or credited to the Collection Account;
(B) to reimburse the Master Servicer for unreimbursed Advances made
by it, such right of reimbursement pursuant to this subclause (ii) being
limited to amounts received on the Mortgage Loan(s) in respect of which any
such Advance was made;
(C) to reimburse the Master Servicer for any Nonrecoverable Advance
previously made;
(D) to reimburse the Master Servicer for Insured Expenses from the
related Insurance Proceeds;
(E) to reimburse the Master Servicer for (a) unreimbursed Servicing
Advances, the Master Servicer's right to reimbursement pursuant to this clause
(a) with respect to any Mortgage Loan being limited to amounts received on
such Mortgage Loan(s) which represent late recoveries of the payments for
which such advances were made pursuant to Section 3(a) or Section 3(i) and (b)
for unpaid Master Servicing Fees as provided in Section 3(n) hereof;
(F) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2(c)(ii), 2(d) or 3(n), all amounts received thereon after the date of
such purchase;
(G) to reimburse the Seller, the Master Servicer or [________] for
expenses incurred by any of them and reimbursable pursuant to Section 6(c)
hereof;
(H) to withdraw any amount deposited in the Collection Account and
not required to be deposited therein;
(I) on or prior to the Payment Account Deposit Date, to withdraw an
amount equal to the related Available Funds and the Trustees Fees for such
Distribution Date and remit such amount to the Trustee for deposit in the
Payment Account; and
(J) to clear and terminate the Collection Account upon termination
of this Agreement pursuant to Section 8 (a) hereof.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Collection Account
pursuant to subclause (iii), the Master Servicer shall deliver to the Trustee
an Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Master Servicer to be a Nonrecoverable
Advance and identifying the related Mortgage Loans(s), and their respective
portions of such Nonrecoverable Advance.
(ii) The Trustee shall withdraw funds from the Payment Account for
distributions to Securityholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that
it is authorized to withhold pursuant to the last paragraph of [Section
8.11/trustee]). In addition, the Trustee may from time to time make
withdrawals from the Payment Account for the following purposes:
(A) to pay to itself the Trustee Fee for the related Distribution
Date;
(B) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect to funds in the
Payment Account;
(C) to withdraw and return to the Master Servicer any amount
deposited in the Payment Account and not required to be deposited therein; and
(D) to clear and terminate the Payment Account upon termination of
the Agreement pursuant to 8(a) hereof.
(l) Maintenance of Hazard Insurance; Maintenance of Primary Insurance
Policies.
(i) The Master Servicer shall cause to be maintained, for each
Mortgage Loan, hazard insurance with extended coverage in an amount that is at
least equal to the lesser of (i) the maximum insurable value of the
improvements securing such Mortgage Loan or (ii) the greater of (y) the
outstanding principal balance of the Mortgage Loan and (z) an amount such that
the proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co-insurer. Each such policy of standard
hazard insurance shall contain, or have an accompanying endorsement that
contains, a standard mortgagee clause. Any amounts collected by the Master
Servicer under any such policies (other than the amounts to be applied to the
restoration or repair of the related Mortgaged Property or amounts released to
the Mortgagor in accordance with the Master Servicer's normal servicing
procedures) shall be deposited in the Collection Account. Any cost incurred by
the Master Servicer in maintaining any such insurance shall not, for the
purpose of calculating monthly distributions to the Securityholders or
remittances to the Trustee for their benefit, be added to the principal
balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage
Loan so permit. Such costs shall be recoverable by the Master Servicer out of
late payments by the related Mortgagor or out of Liquidation Proceeds to the
extent permitted by Section 3(k) hereof. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor or
maintained on property acquired in respect of a Mortgage other than pursuant
to such applicable laws and regulations as shall at any time be in force and
as shall require such additional insurance. If the Mortgaged Property is
located at the time of origination of the Mortgage Loan in a federally
designated special flood hazard area and such area is participating in the
national flood insurance program, the Master Servicer shall cause flood
insurance to be maintained with respect to such Mortgage Loan. Such flood
insurance shall be in an amount equal to the least of (i) the original
principal balance of the related Mortgage Loan, (ii) the replacement value of
the improvements which are part of such Mortgaged Property, and (iii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program.
(ii) In the event that the Master Servicer shall obtain and maintain
a blanket policy insuring against hazard losses on all of the Mortgage Loans,
it shall conclusively be deemed to have satisfied its obligations as set forth
in the first sentence of this Section, it being understood and agreed that
such policy may contain a deductible clause on terms substantially equivalent
to those commercially available and maintained by comparable servicers. If
such policy contains a deductible clause, the Master Servicer shall, in the
event that there shall not have been maintained on the related Mortgaged
Property a policy complying with the first sentence of this Section, and there
shall have been a loss that would have been covered by such policy, deposit in
the Collection Account the amount not otherwise payable under the blanket
policy because of such deductible clause. In connection with its activities as
Master Servicer of the Mortgage Loans, the Master Servicer agrees to present,
on behalf of itself, [________], and the Trustee for the benefit of the
Securityholders, claims under any such blanket policy.
(iii) The Master Servicer shall not take any action which would
result in non-coverage under any applicable Primary Insurance Policy of any
loss which, but for the actions of the Master Servicer, would have been
covered thereunder. The Master Servicer shall not cancel or refuse to renew
any such Primary Insurance Policy that is in effect at the date of the initial
issuance of the Notes and the Certificates and is required to be kept in force
hereunder unless the replacement Primary Insurance Policy for such canceled or
non-renewed policy is maintained with a Qualified Insurer. The Master Servicer
shall not be required to maintain any Primary Insurance Policy with respect to
any Mortgage Loan with a Loan-to-Value Ratio less than or equal to 80% as of
any date of determination or, based on a new appraisal, the principal balance
of such Mortgage Loan represents 80% or less of the new appraised value. The
Master Servicer agrees to effect the timely payment of the premiums on each
Primary Insurance Policy, and such costs not otherwise recoverable shall be
recoverable by the Master Servicer from the related liquidation proceeds.
(iv) In connection with its activities as Master Servicer of the
Mortgage Loans, the Master Servicer agrees to present on behalf of itself, the
Trustee and Securityholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Any amounts collected by the Master Servicer under
any Primary Insurance Policies shall be deposited in the Collection Account.
(m) Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(i) Except as otherwise provided in this Section, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Master Servicer
shall to the extent that it has knowledge of such conveyance, enforce any
due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent
permitted under applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. Notwithstanding the foregoing, the Master
Servicer is not required to exercise such rights with respect to a Mortgage
Loan if the Person to whom the related Mortgaged Property has been conveyed or
is proposed to be conveyed satisfies the terms and conditions contained in the
Mortgage Note and Mortgage related thereto and the consent of the mortgagee
under such Mortgage Note or Mortgage is not otherwise so required under such
Mortgage Note or Mortgage as a condition to such transfer. In the event that
the Master Servicer is prohibited by law from enforcing any such due-on-sale
clause, or if coverage under any Required Insurance Policy would be adversely
affected, or if nonenforcement is otherwise permitted hereunder, the Master
Servicer is authorized, subject to Section 3(m)(ii), to take or enter into an
assumption and modification agreement from or with the person to whom such
property has been or is about to be conveyed, pursuant to which such person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon, provided that the Mortgage
Loan shall continue to be covered (if-so covered before the Master Servicer
enters such agreement) by the applicable Required Insurance Policies. The
Master Servicer, subject to Section 3(m)(ii), is also authorized with the
prior approval of the insurers under any Required Insurance Policies to enter
into a substitution of liability agreement with such Person, pursuant to which
the original Mortgagor is released from liability and such Person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Master Servicer shall not be deemed to be
in default under this Section by reason of any transfer or assumption which
the Master Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(ii) Subject to the Master Servicer's duty to enforce any
due-on-sale clause to the extent set forth in Section 3(m)(i) hereof, in any
case in which a Mortgaged Property has been conveyed to a Person by a
Mortgagor, and such Person is to enter into an assumption agreement or
modification agreement or supplement to the Mortgage Note or Mortgage that
requires the signature of the Trustee, or if an instrument of release signed
by the Trustee is required releasing the Mortgagor from liability on the
Mortgage Loan, the Master Servicer shall prepare and deliver or cause to be
prepared and delivered to the Trustee for signature and shall direct, in
writing, the Trustee to execute the assumption agreement with the Person to
whom the Mortgaged Property is to be conveyed and such modification agreement
or supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to such Person. In connection with
any such assumption, no material term of the Mortgage Note may be changed. In
addition, the substitute Mortgagor and the Mortgaged Property must be
acceptable to the Master Servicer in accordance with its underwriting
standards as then in effect. Together with each such substitution, assumption
or other agreement or instrument delivered to the Trustee for execution by it,
the Master Servicer shall deliver an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met in connection therewith. The Master Servicer shall notify the Trustee that
any such substitution or assumption agreement has been completed by forwarding
to the Trustee the original of such substitution or assumption agreement,
which in the case of the original shall be added to the related Mortgage File
and shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Master Servicer for entering into an
assumption or substitution of liability agreement will be retained by the
Master Servicer as additional servicing compensation.
(n) Realization Upon Defaulted Mortgage Loans;
Repurchase of Certain Mortgage Loans.
The Master Servicer shall use reasonable efforts to foreclose upon
or otherwise comparably convert the ownership of properties securing such of
the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments.
In connection with such foreclosure or other conversion, the Master Servicer
shall follow such practices and procedures as it shall deem necessary or
advisable and as shall be normal and usual in its general mortgage servicing
activities and meet the requirements of the insurer under any Required
Insurance Policy; provided, however, that the Master Servicer shall not be
required to expend its own funds in connection with any foreclosure or towards
the restoration of any property unless it shall determine (i) that such
restoration and/or foreclosure will increase the proceeds of liquidation of
the Mortgage Loan after reimbursement to itself of such expenses and (ii) that
such expenses will be recoverable to it through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Collection Account). The Master Servicer shall be responsible for all other
costs and expenses incurred by it in any such proceedings; provided, however,
that it shall be entitled to reimbursement thereof from the liquidation
proceeds with respect to the related Mortgaged Property, as provided in the
definition of Liquidation Proceeds. If the Master Servicer has knowledge that
a Mortgaged Property which the Master Servicer is contemplating acquiring in
foreclosure or by deed in lieu of foreclosure is located within a one mile
radius of any site listed in the Expenditure Plan for the Hazardous Substance
Clean Up Bond Act of 1984 or other site with environmental or hazardous waste
risks known to the Master Servicer, the Master Servicer will, prior to
acquiring the Mortgaged Property, consider such risks and only take action in
accordance with its established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Securityholders, or its nominee, on behalf of the Securityholders. The
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee under the Indenture and not in its individual capacity. The Master
Servicer shall ensure that the title to such REO Property references the
Indenture and the Trustee's capacity thereunder. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall either itself or through an
agent selected by the Master Servicer protect and conserve such REO Property
in the same manner and to such extent as is customary in the locality where
such REO Property is located and may, incident to its conservation and
protection of the interests of the Securityholders, rent the same, or any part
thereof, as the Master Servicer deems to be in the best interest of the
Securityholders for the period prior to the sale of such REO Property. The
Master Servicer shall prepare for and deliver to the Trustee a statement with
respect to each REO Property that has been rented showing the aggregate rental
income received and all expenses incurred in connection with the management
and maintenance of such REO Property at such times as is necessary to enable
the Trustee to comply with the reporting requirements of the REMIC Provisions.
The net monthly rental income, if any, from such REO Property shall be
deposited in the Collection Account no later than the close of business on
each Determination Date. [The Master Servicer shall perform the tax reporting
and withholding required by Sections 1445 and 6050J of the Code with respect
to foreclosures and abandonments, the tax reporting required by Section 6050H
of the Code with respect to the receipt of mortgage interest from individuals
and any tax reporting required by Section 6050P of the Code with respect to
the cancellation of indebtedness by certain financial entities, by preparing
such tax and information returns as may be required, in the form required, and
delivering the same to the Trustee for filing.]
In the event that the Issuer acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property
prior to two years after its acquisition by the Issuer unless the Trustee
shall have been supplied with an Opinion of Counsel to the effect that the
holding by the Issuer of such Mortgaged Property subsequent to such two-year
period will not result in the imposition of taxes on "prohibited transactions"
of the REMIC defined in Section 860F of the Code or cause the REMIC to fail to
qualify as a REMIC at any time that any Notes or Certificates are outstanding,
in which case the Issuer may continue to hold such Mortgaged Property (subject
to any conditions contained in such Opinion of Counsel). Notwithstanding any
other provision of this Agreement, no Mortgaged Property acquired by the
Issuer shall be rented (or allowed to continue to be rented) or otherwise used
for the production of income by or on behalf of the Issuer in such a manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or (ii) subject the REMIC to the imposition of any federal, state or
local income taxes on the income earned from such Mortgaged Property under
Section 860G(c) of the Code or otherwise, unless the Master Servicer has
agreed to indemnify and hold harmless the Issuer with respect to the
imposition of any such taxes.
The decision of the Master Servicer to foreclose on a defaulted
Mortgage Loan shall be subject to a determination by the Master Servicer that
the proceeds of such foreclosure would exceed the costs and expenses of
bringing such a proceeding. The income earned from the management of any REO
Properties, net of reimbursement to the Master Servicer for expenses incurred
(including any property or other taxes) in connection with such management and
net of unreimbursed Master Servicing Fees, Advances and Servicing Advances,
shall be applied to the payment of principal of and interest on the related
defaulted Mortgage Loans (with interest accruing as though such Mortgage Loans
were still current) and all such income shall be deemed, for all purposes in
this Agreement, to be payments on account of principal and interest on the
related Mortgage Notes and shall be deposited into the Collection Account. To
the extent the net income received during any calendar month is in excess of
the amount attributable to amortizing principal and accrued interest at the
related Mortgage Rate on the related Mortgage Loan for such calendar month,
such excess shall be considered to be a partial prepayment of principal of the
related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of
priority: first, to reimburse the Master Servicer for any related unreimbursed
Servicing Advances and Master Servicing Fees; second, to reimburse the Master
Servicer for any unreimbursed Advances; third, to reimburse the Collection
Account for any Nonrecoverable Advances (or portions thereof) that were
previously withdrawn by the Master Servicer pursuant to Section 3(k)(i)(C)
that related to such Mortgage Loan; fourth, to accrued and unpaid interest (to
the extent no Advance has been made for such amount or any such Advance has
been reimbursed) on the Mortgage Loan or related REO Property, at the Adjusted
Net Mortgage Rate to the Due Date occurring in the month in which such amounts
are required to be distributed; and fifth, as a recovery of principal of the
Mortgage Loan. Excess Proceeds, if any, from the liquidation of a Liquidated
Mortgage Loan will be retained by the Master Servicer as additional servicing
compensation pursuant to Section 5.
The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Issuer any Mortgage Loan which is 91
days or more delinquent at a price equal to the Purchase Price. The Purchase
Price for any Mortgage Loan purchased hereunder shall be deposited in the
Collection Account and the Trustee, upon receipt of a certificate from the
Master Servicer in the form of Exhibit D hereto, shall release or cause to be
released to the purchaser of such Mortgage Loan the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment prepared
by the purchaser of such Mortgage Loan, in each case without recourse, as
shall be necessary to vest in the purchaser of such Mortgage Loan any Mortgage
Loan released pursuant hereto and the purchaser of such Mortgage Loan shall
succeed to all the Trustee's right, title and interest in and to such Mortgage
Loan and all security and documents related thereto. Such assignment shall be
an assignment outright and not for security. The purchaser of such Mortgage
Loan shall thereupon own such Mortgage Loan, and all security and documents,
free of any further obligation to the Trustee or the Securityholders with
respect thereto.
(o) Access to Certain Documentation.
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of subordinated Notes or
Certificates and the examiners and supervisory agents of the OTS, the FDIC and
such other authorities, access to the documentation regarding the Mortgage
Loans required by applicable regulations of the OTS and the FDIC. Such access
shall be afforded without charge, but only upon reasonable and prior written
request and during normal business hours at the offices designated by the
Master Servicer. Nothing in this Section shall limit 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 such obligation
shall not constitute a breach of this Section.
(p) Annual Statement as to Compliance.
The Master Servicer shall deliver to [________] and the Trustees on or
before 120 days after the end of the Master Servicer's fiscal year, commencing
with its 199_ fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer during the
preceding calendar year and of the performance of the Master Servicer under
this Agreement has been made under such officer's supervision and (ii) to the
best of such officer's knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof. The Trustee shall forward a copy of each such statement to each
Rating Agency.
(q) Annual Independent Public Accountants'
Servicing Statement; Financial Statements.
On or before 120 days after the end of the Master Servicer's fiscal year,
commencing with its 199_ fiscal year, the Master Servicer at its expense shall
cause a nationally or regionally recognized firm of independent public
accountants (who may also render other services to the Master Servicer, the
Seller or any affiliate thereof) which is a member of the American Institute
of Certified Public Accountants to furnish a statement to the Trustees and
[________] to the effect that-such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans under this Agreement
or of mortgage loans under pooling and servicing agreements substantially
similar to this Agreement (such statement to have attached thereto a schedule
setting forth the pooling and servicing agreements covered thereby) and that,
on the basis of such examination, conducted substantially in compliance with
the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FNMA and FHLMC, such servicing has been
conducted in compliance with such pooling and servicing agreements except for
such significant exceptions or errors in records that, in the opinion of such
firm, the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FNMA and FHLMC requires it to report. In
rendering such statement, such firm may rely, as to matters relating to direct
servicing of mortgage loans by Subservicers, upon comparable statements for
examinations conducted substantially in compliance with the Uniform Single
Audit Program for Mortgage Bankers or the Audit Program for Mortgages serviced
for FNMA and FHLMC (rendered within one year of such statement) of independent
public accountants with respect to the related Subservicer. Copies of such
statement shall be provided by the Trustee to any Securityholder upon request
at the Master Servicer's expense, provided such statement is delivered by the
Master Servicer to the Trustee.
(r) Errors and Omissions Insurance; Fidelity Bonds.
The Master Servicer shall for so long as it acts as master servicer under
this Agreement, obtain and maintain in force (a) a policy or policies of
insurance covering errors and omissions in the performance of its obligations
as Master Servicer hereunder and (b) a fidelity bond in respect of its
officers, employees and agents. Each such policy or policies and bond shall,
together, comply with the requirements from time to time of FNMA or FHLMC for
persons performing servicing for mortgage loans purchased by FNMA or FHLMC. In
the event that any such policy or bond ceases to be in effect, the Master
Servicer shall obtain a comparable replacement policy or bond from an insurer
or issuer, meeting the requirements set forth above as of the date of such
replacement.
(s) Master Servicer Monthly Data.
On or before noon California time on the Determination Date, the Master
Servicer shall provide by modem to the Trustee with respect to the Mortgage
Loans, an electronic data file (accompanied by a hardcopy report) in a format
which is mutually agreed upon by the Master Servicer and the Trustee. The
Trustee shall be under no duty to recalculate, verify or recompute the
information provided to it by the Master Servicer hereunder.
4. Advances.
The Master Servicer shall determine on or before each Master Servicer
Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to make
an Advance, it shall, on or before the Master Servicer Advance Date, deposit
into the Collection Account an amount equal to the Advance. The Master
Servicer shall be entitled to be reimbursed from the Collection Account for
all Advances of its own funds made pursuant to this Section as provided in
Section 3(k). The obligation to make Advances with respect to any Mortgage
Loan shall continue if such Mortgage Loan has been foreclosed or otherwise
terminated and the related Mortgaged Property has not been liquidated.
5. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer shall
be entitled to retain or withdraw from the Collection Account an amount equal
to the Master Servicing Fee for each Mortgage Loan, provided that the
aggregate Master Servicing Fee with respect to any Distribution Date shall be
reduced (i) by an amount equal to the aggregate of the Prepayment Interest
Shortfalls, if any, with respect to such Distribution Date, but not below an
amount equal to one-half of the aggregate Master Servicing Fee for such
Distribution Date before reduction thereof in respect of such Prepayment
Interest Shortfalls, and (ii) with respect to the first Distribution Date, an
amount equal to any amount to be deposited into the Payment Account by
[________] pursuant to Section 2(a)(i) and not so deposited.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, prepayment penalties, assumption fees, late
payment charges and all income and gain net of any losses realized from
Permitted Investments shall be retained by the Master Servicer to the extent
not required to be deposited in the Collection Account pursuant to Section
3(h) hereof. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its master servicing activities hereunder
(including payment of any premiums for hazard insurance and any Primary
Insurance Policy and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
6. The Master Servicer.
(a) Respective Liabilities of [________] and the Master Servicer.
The Master Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by it
herein.
(b) Merger or Consolidation of [________] or the Master Servicer.
[________] and the Master Servicer will each keep in full effect its
existence, rights and franchises as a corporation under the laws of the United
States or under the laws of one of the states thereof and will each obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect
the validity and enforceability of this Agreement, or any of the Mortgage
Loans and to perform its respective duties under this Agreement.
Any Person into which [________] or the Master Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to
which [________] or the Master Servicer shall be a party, or any person
succeeding to the business of [________] or the Master Servicer, shall be the
successor of [________] or the Master Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Master
Servicer shall be qualified to sell mortgage loans to, and to service mortgage
loans on behalf of, FNMA or FHLMC.
(c) Limitation on Liability of [________], the Seller, Master Servicer
and Others.
None of [________], the Seller, the Master Servicer or any of the
directors, officers, employees or agents of [________], the Seller or the
Master Servicer shall be under any liability to the Securityholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect [________], the Seller, the Master Servicer
or any such Person against any breach of representations or warranties made by
it herein or protect [________], the Seller, the Master Servicer or any such
Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
[________], the Seller, the Master Servicer and any director, officer,
employee or agent of [________], the Seller or the Master Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. [________],
the Seller, the Master Servicer and any director, officer, employee or agent
of [________], the Seller or the Master Servicer shall be indemnified by the
Issuer and held harmless against any loss, liability or expense incurred in
connection with any audit, controversy or judicial proceeding relating to a
governmental taxing authority or any legal action relating to this Agreement,
the Notes or the Certificates, other than any loss, liability or expense
related to any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. None of [________], the Seller or the Master Servicer shall be
under any obligation to appear in, prosecute or defend any legal action that
is not incidental to its respective duties hereunder and which in its opinion
may involve it in any expense or liability; provided, however, that any of
[________], the Seller or the Master Servicer may in its discretion undertake
any such action that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties hereto and interests of the
Trustees and the Securityholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Issuer, and [________], the Seller and
the Master Servicer shall be entitled to be reimbursed therefor out of the
Collection Account.
(d) Limitation on Resignation of the Master Servicer.
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates, or (b) upon determination that its duties hereunder
are no longer permissible under applicable law. Any such determination under
clause (b) permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until the Trustee or a successor
master servicer shall have assumed the Master Servicer's responsibilities,
duties, liabilities and obligations hereunder.
7. Default.
(a) Events of Default.
"Event of Default," wherever used herein, means any one of the following
events:
(i) any failure by the Master Servicer to deposit in the Collection
Account or remit to the Trustee any payment (other than a payment required to
be made under Section 4 hereof) required to be made with respect to any Class
of Certificates under the terms of this Agreement, which failure shall
continue unremedied for five days after the date upon which written notice of
such failure shall have been given to the Master Servicer by the Trustee or
[________] or to the Master Servicer, [________] and the Trustee by the
Holders of Notes or Certificates of such Class evidencing not less than 25% of
the total distributions allocated to such Class; or
(ii) any failure by the Master Servicer duly to observe or perform
in any material respect any other of the covenants or agreements on the part
of the Master Servicer contained in this Agreement, which failure shall
continue unremedied for a period of thirty days after the date on which
written notice of such failure shall have been given to the Master Servicer by
the Trustee or [________], or to the Master Servicer, [________] and the
Trustee by the Holders of Notes or Certificates of any Class evidencing not
less than 25% of the total distributions allocated to such Class; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of a
receiver or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to the Master
Servicer or all or substantially all of the property of the Master Servicer;
or
(v) the Master Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of,
or commence a voluntary case under, any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations; or
[(vi) [ so long as the Master Servicer is the Seller, any failure by
the Seller to observe or perform in any material respect any other of the
covenants or agreements on the part of the Seller contained in this Agreement,
which failure shall continue unremedied for a period of 60 days after the date
on which written notice of such failure shall have been given to the Seller by
the Trustee or [________], or to the Seller and the Trustee by the Holders of
Notes or Certificates of any Class evidencing not less than 25% of the total
distributions allocated to such Class; or]
(vii) any failure of the Master Servicer to make any Advance in the
manner and at the time required to be made pursuant to Section 4 which
continues unremedied for a period of one Business Day after the date of such
failure.
If an Event of Default described in clauses (i) to (vi) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trustee may, or at the direction of
the Holders of Notes or Certificates of any Class evidencing not less than 25%
of the total distributions allocated to such Class, the Trustee shall by
notice in writing to the Master Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Master Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other
than its rights as a Securityholder. If an Event of Default described in
clause (vii) hereof shall occur, the Trustee shall, by notice in writing to
the Master Servicer and [________], terminate all of the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than its rights as a
Securityholder. On and after the receipt by the Master Servicer of such
written notice, all authority and power of the Master Servicer hereunder,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Trustee. [The Trustee shall thereupon make any Advance described
in clause (vii) hereof subject to Section 3(g) hereof.] The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Master Servicer
to pay amounts owed pursuant to Article VIII. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to the Trustee of all cash amounts which shall at the
time be credited to the Collection Account, or thereafter be received with
respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due prior to
the notice terminating such Master Servicer's rights and obligations as Master
Servicer hereunder and received after such notice, that portion thereof to
which such Master Servicer would have been entitled pursuant to Sections
3(k)(i)(A) through (H),and any other amounts payable to such Master Servicer
hereunder the entitlement to which arose prior to the termination of its
activities hereunder.
(b) Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7(a) hereof, the Trustee shall, subject to and
to the extent provided in Section 3(g), be the successor to the Master
Servicer in its capacity as master servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and applicable law including the
obligation to make Advances pursuant to Section 4. As compensation therefor,
the Trustee shall be entitled to all funds relating to the Mortgage Loans that
the Master Servicer would have been entitled to charge to the Collection
Account or Payment Account if the Master Servicer had continued to act
hereunder. Notwithstanding the foregoing, if the Trustee has become the
successor to the Master Servicer in accordance with Section 7(a) hereof, the
Trustee may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making Advances pursuant to Section 4 hereof or if it
is otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
the appointment of which does not adversely affect the then current rating of
the Securities by each Rating Agency as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder. Any successor to the Master
Servicer shall be an institution which is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least
$10,000,000, and which is willing to service the Mortgage Loans and executes
and delivers to [________] and the Trustees an agreement accepting such
delegation and assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer (other than liabilities of the Master Servicer under Section
6(c) hereof incurred prior to termination of the Master Servicer under Section
7(a)), with like effect as if originally named as a party to this Agreement;
and provided further that each Rating Agency acknowledges that its rating of
the Securities in effect immediately prior to such assignment and delegation
will not be qualified or reduced as a result of such assignment and
delegation. Pending appointment of a successor to the Master Servicer
hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3(g) hereof, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of the Master Servicing
Fee permitted the Master Servicer hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement, as shall be necessary
to effectuate any such succession. Neither the Trustee nor any other successor
master servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the Master Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give notice
to the Mortgagors of such change of servicer and shall, during the term of its
service as master servicer maintain in force the policy or policies that the
Master Servicer is required to maintain pursuant to 3(r).
(c) Notification to Securityholders.
(i) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Securityholders and to each Rating Agency.
(ii) Within 60 days after the occurrence of any Event of Default,
the Trustee shall transmit by mail to all Securityholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
8. Miscellaneous.
(a) Term of Master Servicing Agreement.
The obligations to be performed by the Master Servicer under this
Agreement shall commence on and as of the date on which the Issuer issues the
Securities and shall terminate as to each Mortgage Loan upon (i) the payment
in full of all principal and interest due under such Mortgage Loan or other
liquidation of such Mortgage Loan as contemplated by this Agreement, (ii) the
termination of the Master Servicer's rights and powers under this Agreement by
the Trustee as provided in Section 7(a) of this Agreement, or (iii) the
release by the Trustee of its security interest in any Mortgage Loan.
(b) Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6(b), this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and [________].
(c) Notices.
(i) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the
Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2(d); and
5. The final payment to Securityholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Securityholders described in the Indenture;
2. Each annual statement as to compliance described in Section 3(p);
3. Each annual independent public accountants' servicing report
described in Section 3(q); and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section
2(c)(ii), 2(d) or 3(n).
(ii) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in
the case of [________], [____________], ___________________, Attention:
_______________, (b) in the case of the Master Servicer,
_____________________________________________, Attention: _________________ or
such other address as may be hereafter furnished to [________] and the
Trustees by the Master Servicer in writing, (c) in the case of the Trustees,
_______________________________________________________, Attention:
__________________________________________________, or such other address as
the Trustee may hereafter furnish to [________] or Master Servicer and (d) in
the case of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Securityholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
(d) Inspection and Audit Rights.
The Master Servicer agrees that, on reasonable prior notice, it will
permit and will cause each Subservicer to permit any representative of
[________] or the Trustee during the Master Servicer's normal business hours,
to examine all the books of account, records, reports and other papers of the
Master Servicer relating to the Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by independent certified public
accountants selected by [________] or the Trustee and to discuss its affairs,
finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Master
Servicer hereby authorizes said accountants to discuss with such
representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any out-of-pocket expense
incident to the exercise by [________] or the Trustee of any right under this
Section 8(d) shall be borne by the party requesting such inspection; all other
such expenses shall be borne by the Master Servicer or the related
Subservicer.
(e) Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE SECURITYHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
(f) Amendment.
This Agreement may be amended from time to time by the Issuer, the
Master Servicer and the Trustee without the consent of any of the
Securityholders to cure any ambiguity, or to correct or supplement any
provisions herein, or to make such other provisions with respect to matters or
questions arising under this Agreement as shall not be inconsistent with any
other provisions herein; provided that such action shall not, as evidenced by
an Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Issuer), adversely affect in any material respect the interests
of any Securityholder; provided, however, that the amendment shall not be
deemed to adversely affect in any material respect the interests of the
Securityholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Securities; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, [________] and the Master Servicer
also may at any time and from time to time amend this Agreement without the
consent of the Securityholders to modify, eliminate or add to any of its
provisions to such extent as shall be necessary or helpful to maintain the
qualification of the Issuer as a REMIC under the Code or to avoid or minimize
the risk of the imposition of any tax on the REMIC pursuant to the Code that
would be a claim at any time prior to the final redemption of the Securities,
provided that the Trustee has been provided an Opinion of Counsel, which
opinion shall be an expense of the party requesting such opinion but in any
case shall not be an expense of the Trustee or the Issuer, to the effect that
such action is necessary or helpful to maintain such qualification or to avoid
or minimize the risk of the imposition of such a tax.
This Agreement may also be amended from time to time by [________], the
Master Servicer and the Trustee with the consent of the Holders of a Majority
in Interest of each Class of Notes or Certificates affected thereby for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Holders of Notes or Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments required to be distributed on any Certificate without the
consent of the Holder of such Note or Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Notes or
Certificates in a manner other than as described in (i), without the consent
of the Holders of Notes or Certificates of such Class evidencing, as to such
Class, Percentage Interests aggregating 66%, or (iii) reduce the aforesaid
percentages of Notes or Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all such
Notes or Certificates then outstanding.
[Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Issuer, to the effect that such amendment will not cause
the imposition of any tax on the REMIC or the Securityholders or cause the
Issuer to fail to qualify as a REMIC at any time that any Certificates are
outstanding.]
Promptly after the execution of any amendment to this Agreement requiring
the consent of Securityholders, the Trustee shall furnish written notification
of the substance or a copy of such amendment to each Securityholder and each
Rating Agency.
It shall not be necessary for the consent of Securityholders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent shall approve the substance thereof. The manner
of obtaining such consents and of evidencing the authorization of the
execution thereof by Securityholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Issuer, satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that
all requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Securityholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to
this Section 8(f).
(g) Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement.
(h) No Joint Venture.
The Master Servicer and the Issuer are not partners or joint venturers
with each other and nothing herein shall be construed to make them such
partners or joint venturers or impose any liability as such of either of them.
(i) Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at its
expense, but only upon direction by the Trustee accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially
affects the interests of the Securityholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
(j) Limitation of Liability of [owner trustee].
It is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by [owner trustee], not individually or
personally but solely as owner trustee of Home Equity Loan Trust 199_ under
the Trust Agreement, in the exercise of the powers and authority conferred and
vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by [owner trustee] but is made
and intended for the purpose for binding only the Issuer, (c) nothing herein
contained shall be construed as creating any liability on [owner trustee],
other than any liability arising out of its gross negligence, bad faith or
willful misconduct, and (d) under no circumstances shall [owner trustee] be
personally liable for the payment of any indebtedness or expenses of the
Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under
this Agreement or the other Operative Documents.
(k) Nonpetition Covenants.
Notwithstanding any prior termination of this Agreement, the Master
Servicer shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Issuer or [________],
acquiesce, petition or otherwise invoke or cause the Issuer or [________] (or
any assignee) to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the Issuer or
[________] under any federal or state bankruptcy, insolvency or similar law,
or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or [________] or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer or [________].
IN WITNESS WHEREOF, each party has caused this Master Servicing Agreement
to be executed by its duly authorized officer or officers as of the day and
year first above written.
Home Equity Loan Trust 199_,
as Issuer
By: [owner trustee]
not in its
individual capacity
but solely as
Owner Trustee
By:____________________________
Its:___________________________
[_____________________]
as Seller and Master Servicer
By:____________________________
Its:___________________________
[_____________________]
as Trustee
By:____________________________
Its:___________________________
SCHEDULE I
Mortgage Loan Schedule
SCHEDULE II
Home Equity Loan Trust 199_
Asset Backed Notes and Asset Backed Certificates
Series 199_
Representations and Warranties of the Master Servicer
-----------------------------------------------------
____________________________ ("Seller-Master Servicer") hereby makes the
representations and warranties set forth in this Schedule II to the Issuer,
[________] and the Trustees, as of the Closing Date, or if so specified
herein, as of the Cut-off Date. Capitalized terms used but not otherwise
defined in this Schedule II shall have the meanings ascribed thereto in the
Indenture (the "Indenture") relating to the above-referenced Series, among
Seller-Master Servicer, as seller and master servicer, and
_____________________, as trustee.
(i) The Master Servicer is a [______________ banking] corporation,
validly existing and in good standing under the laws of the State of
[______________], 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 the business transacted by it
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 the 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 the legal, valid and
binding obligation of the Master Servicer enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by the availability of
equitable remedies;
(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 such consent, license, approval
or authorization, or registration or declaration, as shall have been obtained
or filed, as the case may be, prior to the Closing Date;
(iv) The execution, delivery and performance of this Agreement by
the Master Servicer will not violate any provision of any existing law or
regulation or any order or decree of any court applicable to the Master
Servicer or any provision of 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; and
(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 or the Certificates which in the
opinion of the Master Servicer has a reasonable likelihood of resulting in a
material adverse effect on the transactions contemplated by this Agreement.
SCHEDULE III
[________] Home Equity Loan Trust 199_
Asset Backed Notes and Asset Backed Certificates
Series 199_
Representations and Warranties as to the Mortgage Loans
-------------------------------------------------------
____________________________ ("Seller") hereby makes the representations
and warranties set forth in this Schedule III to [________] and the Trustee,
as of the Closing Date, or if so specified herein, as of the Cut-off Date.
apitalized terms used but not otherwise defined in this Schedule III shall have
the meanings ascribed thereto in the Indenture (the "Indenture") relating to
the above-referenced Series, among Seller, as seller and master servicer, and
________________________, as trustee.
(i) As of the Closing Date, this Agreement constitutes a legal,
valid and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as enforcement of such terms may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
(ii) As of the Closing Date with respect to the Mortgage Loans and
as of the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, either (A) the Purchase Agreement constitutes a valid transfer
and assignment to [________] of all right, title and interest of the Seller in
and to the Cut-off Date Asset Balances with respect to the applicable Mortgage
Loans, all monies due or to become due with respect thereto (excluding
payments in respect of accrued interest due prior to the Cut-off Date or due
in the month of _________), and all proceeds of such Cut-off Date Asset
Balances with respect to the Mortgage Loans and such funds as are from time to
time deposited in the Collection Account (excluding any investment earnings
thereon) and all other property specified in the definition of "Asset" as
being part of the corpus of the Trust conveyed to the Trust by the Seller, and
upon payment for the Additional Balances, will constitute a valid transfer and
assignment to the Trustee of all right, title and interest of the Seller in
and to the Additional Balances, all monies due or to become due with respect
thereto, and all proceeds of such Additional Balances and all other property
specified in the definition of "Asset" relating to the Additional Balances or
(B) the Purchase Agreement or this Agreement, as appropriate, constitutes a
grant of a security interest (as defined in the UCC as in effect in
California) in such property to the Trustee on behalf of the Trust. If this
Agreement constitutes the grant of a security interest to the Trust in such
property, and if the Trustee obtains and maintains possession of the Mortgage
File for each Mortgage Loan, the Trust shall have a first priority perfected
security interest in such property, subject to the effect of Section 9-306 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 _______; provided, however, that nothing in this clause (ii) shall be
construed to obligate the Master Servicer to deliver any Mortgage Files other
than as set forth in Section 2(a) hereof;
(iii) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute Mortgage
Loan and as of the date any Additional Balance is created, the information set
forth in the Mortgage Loan Schedule for such Mortgage Loans is true and
correct in all material respects;
(iv) The applicable Cut-off Date Asset Balance has not been assigned
or pledged, and the Seller is the sole owner and holder of such Cut-off Date
Asset Balance free and clear of any and all liens, claims, encumbrances,
participation interests, equities, pledges, charges or security interests of
any nature, and has full right and authority, under all governmental and
regulatory bodies having jurisdiction over the ownership of the applicable
Mortgage Loan, to sell, assign or transfer the same pursuant to the Purchase
Agreement;
(v) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute Mortgage
Loan, the related Mortgage Note and the Mortgage with respect to each Mortgage
Loan have not been assigned or pledged, and the Seller is the sole owner and
holder of the Mortgage Loan free and clear of any and all liens, claims,
encumbrances, participation interests, equities, pledges, charges or security
interests of any nature, and has full right and authority, under all
governmental and regulatory bodies having jurisdiction over the ownership of
the applicable Mortgage Loans, to sell and assign the same pursuant to the
Purchase Agreement;
(vi) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute Mortgage
Loan, the related Mortgage is a valid and subsisting first or second lien, as
set forth on the Mortgage Loan Schedule with respect to each related Mortgage
Loan, on the property therein described, and as of the applicable Cut-off Date
the related Mortgaged Property is free and clear of all encumbrances and liens
having priority over the first or second lien, as applicable, of such Mortgage
except for liens for (i) real estate taxes and special assessments not yet
delinquent; (ii) any first mortgage loan secured by such Mortgaged Property
and specified on the Mortgage Loan Schedule; (iii) 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 (iv) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the security
intended to be provided by such Mortgage;
(vii) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute Mortgage
Loan, there is no valid offset, defense or counterclaim of any obligor under
any Credit Line Agreement or Mortgage;
(viii) To the best knowledge of the Seller, as of the Closing Date
with respect to the Mortgage Loans and the applicable Transfer Date with
respect to any Eligible Substitute Mortgage Loan, there is no delinquent
recording or other tax or fee or assessment lien against any related Mortgaged
Property;
(ix) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute Mortgage
Loan, there is no proceeding pending or, to the best knowledge of the Seller,
threatened for the total or partial condemnation of the related Mortgaged
Property, and such property is free of material damage;
(x) To the best knowledge of the Seller, as of the Closing Date with
respect to the Mortgage Loans and the applicable Transfer Date with respect to
any Eligible Substitute Mortgage Loan, there are no mechanics' or similar
liens or claims which have been filed for work, labor or material affecting
the related Mortgaged Property which are, or may be, liens prior or equal to
the lien of the related Mortgage, except liens which are fully insured against
by the title insurance policy referred to in clause (xiv);
(xi) No Minimum Monthly Payment is more than 89 days delinquent
(measured on a contractual basis); and with respect to the Mortgage Loans no
more than _____% (by Cut-off Date Pool Balance) were 30-59 days delinquent
(measured on a contractual basis) and no more than _____% (by Cut-off Date
Pool Balance) were 60-89 days delinquent (measured on a contractual basis);
(xii) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute Mortgage
Loan, for each Mortgage Loan, the related Mortgage File contains each of the
documents and instruments specified to be included therein;
(xiii) The related Mortgage Note and the related Mortgage at
origination complied in all material respects with applicable state and
federal laws, including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the Mortgage Loan;
(xiv) Either a lender's title insurance policy or binder was issued
on the date of origination of the Mortgage Loan and each such policy is valid
and remains in full force and effect, 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;
(xv) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date 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;
(xvi) As of the Cut-off Date for the Mortgage Loans no more than
_____% of such 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%;
(xviii) No selection procedure reasonably believed by the Seller to
be adverse to the interests of the Securityholders or the Credit Enhancer was
utilized in selecting the Mortgage Loans;
(xix) The Seller has not transferred the Mortgage Loans to the Trust
with any intent to hinder, delay or defraud any of its creditors;
(xx) 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 such Minimum Monthly Payment is due;
(xxi) Within 90 days of the Closing Date with respect to the
Mortgage Loans and, to the extent not already included in such filing with
respect to the Mortgage Loans, the applicable Transfer Date with respect to
any Eligible Substitute Mortgage Loan, the Seller will file UCC-1 financing
statements with respect to the Mortgage Loans;
(xxii) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute Mortgage
Loan, each Credit Line Agreement and each Mortgage Loan is an enforceable
obligation of the related Mortgagor, except as the enforceability thereof may
be limited by the bankruptcy, insolvency or similar laws affecting creditors'
rights generally;
(xxiii) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, the Seller 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;
(xxiv) 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 _________________;
(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 ___ months. 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, if any. The Loan Rate Caps range between ____% and ____%. The
Margins range between ____% and ____% and the weighted average Margin is
approximately ____% as of the Cut-off Date for the Mortgage Loans. The Loan
Rates on such Mortgage Loans range between ____% and _____% and the weighted
average Loan Rate is approximately _____%.
(xxvi) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date 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 thereon, or an
individual condominium unit, planned unit development unit or townhouse;
(xxvii) No more than _____% (by Cut-off Date Pool Balance) of the
Mortgage Loans are secured by real property improved by individual condominium
units, planned development units, townhouses or two-to-four family residences
erected thereon, and at least _____% (by Cut-off Date Pool Balance) of the
Mortgage Loans are secured by real property with a detached one-family
residence erected thereon;
(xxviii) The Credit Limits on the Mortgage Loans range between
$________ and $__________ with an average of $_________. As of the Cut-off
Date for the Mortgage Loans, no Mortgage Loan had a principal balance in
excess of approximately $__________ and the average principal balance of the
Mortgage Loans is equal to approximately $_________; and
(xxix) Approximately ____% and _____% of the Mortgage Loans, by
aggregate principal balance as of the Cut-off Date for the Mortgage Loans, are
first and second liens, respectively.
SCHEDULE IV
Home Equity Loan Trust 199_
Asset Backed Notes and Asset Backed Certificates
Series 199_
Representations and Warranties of the Issuer.
--------------------------------------------
Home Equity Loan Trust 199_ (the "Issuer") hereby makes the
representations and warranties set forth in this Schedule IV to the Master
Servicer and the Trustee, as of the Closing Date. Capitalized terms used but
not otherwise defined in this Schedule IV shall have the meanings ascribed
thereto in the Master Servicing Agreement (the "Master Servicing Agreement")
relating to the above-referenced Series, among [___________], as Master
Servicer, Home Equity Loan Trust 199_, as Issuer, and [ ], as Trustee.
(1) The Issuer is a statutory business trust duly organized,
validly existing and in good standing under the laws of the State of
[Delaware], and possesses all requisite authority, power, licenses,
permits and franchises to conduct any and all business contemplated by
the Master Servicing Agreement and to comply with its obligations under
the terms of this Agreement, the performance of which have been duly
authorized by all necessary action.
(2) Neither the execution and delivery of the Master Servicing
Agreement by the Issuer, nor the performance and compliance with the
terms thereof by the Issuer will (A) result in a material breach of any
term or provision of the instruments creating the Issuer or governing its
operations, or (B) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under, the
terms of any other material agreement or instrument to which the Issuer
is a party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to the Issuer of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Issuer; and the Issuer is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair the
Issuer's ability to perform or meet any of its obligations under the
Master Servicing Agreement.
(3) This Agreement, and all documents and instruments
contemplated hereby, which are executed and delivered by the Issuer,
will, assuming due authorization, execution by and delivery to the other
parties hereto and thereto, constitute valid, legal and binding
obligations of the Issuer, enforceable in accordance with their
respective terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(4) No litigation is pending or, to the best of the Issuer's
knowledge, threatened against the Issuer that would materially and
adversely affect the execution, delivery or enforceability of the Master
Servicing Agreement or the ability of the Issuer to perform its
obligations thereunder.
(5) Immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Issuer had good title to, and was the
sole owner of, each Mortgage Loan free and clear of any liens, charges or
encumbrances or any ownership or participation interests in favor of any
other Person.
EXHIBIT A
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Master Servicer]
[Issuer]
____________________
____________________
Re: Master Servicing Agreement among Home Equity Loan Trust 199_,
as Issuer, [__________________], as Master Servicer, and [ ],
as Trustee, Asset Backed Notes and Asset Backed Certificates,
Series 199
-------------------------------------------------------------
Gentlemen:
In accordance with Section 2(b) of the above-captioned Master
Servicing Agreement (the "Master Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan listed in the attached
schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Master Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or (iii)
the correctness of any information set forth in the Mortgage Loan Schedule,
other than the information specified in items (i) through (iv) and (vi)
thereof.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Master Servicing Agreement.
[ ]
as Trustee
By:______________________________
Name:____________________________
Title:___________________________
EXHIBIT B
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Master Servicer]
[Issuer]
___________________
___________________
Re: Master Servicing Agreement among Home Equity Loan Trust 199_, as
Issuer, [_________________], as Master Servicer, and [ ], as Trustee,
Asset Backed Notes and Asset Backed Certificates, Series 199_
---------------------------------------------------------------------
Gentlemen:
In accordance with Section 2(b) of the above-captioned Master
Servicing Agreement (the "Master Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2(a) of the Master Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to
the Issuer.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form
provided in Section 2(a) of the Master Servicing Agreement, or, if the Master
Servicer has certified or the Trustee otherwise knows that the related
Mortgage has not been returned from the applicable recording office, a copy of
the assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Issuer.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(iv), (vi) and (xi) of the definition of the "Mortgage Loan Schedule" in
Section 1 of the Master Servicing Agreement accurately reflects information
set forth in the Trustee Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Master Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of
the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to
which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Master Servicing Agreement.
[ ]
as Trustee
By:___________________________
Name:_________________________
Title:________________________
EXHIBIT C
REQUEST FOR RELEASE
(for Trustee)
Home Equity Loan Trust 199_
Asset Backed Notes and Asset Backed Certificates
Series 199_
Loan Information
----------------
Name of Mortgagor: __________________________________________________
Servicer Loan No.: __________________________________________________
Trustee
Name: __________________________________________________
Address: __________________________________________________
Trustee Mortgage
File No.: __________________________________________________
The undersigned Master Servicer hereby acknowledges that it has
received from [ ], as Trustee for the Holders of Notes of the above-referenced
Series, the documents referred to below (the "Documents"). All capitalized
terms not otherwise defined in this Request for Release shall have the
meanings given them in the Master Servicing Agreement (the "Master Servicing
Agreement") relating to the above-referenced Series among the Trustee,
[_________________], as Master Servicer, and Home Equity Loan Trust 199_, as
Issuer.
( ) Mortgage Note dated ___________ , 19__, in the original principal sum of
$__________, made by _________________. payable to, or endorsed to the
order of, the Trustee.
( ) Mortgage recorded on _________________ as instrument no. _____________
in the County Recorder's Office of the County of ___________________,
State of _______________ in book/reel/docket ________________ of official
records at page/image ________________.
( ) Deed of Trust recorded on __________________ as instrument no. __________
in the County Recorder's Office of the County of ________________,
State of _______________ in book/reel/docket _______________ of official
records at page/image ________________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
______________ as instrument no. ___________ in the County Recorder's
Office of the County of __________, State of ________________ in
book/reel/docket __________ of official records at page/image __________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( )
( )
( )
( )
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim, liens,
security interest, charges, writs of attachment or other impositions nor
shall the Master Servicer assert or seek to assert any claims or rights
of setoff to or against the Documents or any proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been remitted
to the Note Account and except as expressly provided in the Master
Servicing Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the Master Servicer
shall at all times be earmarked for the account of the Trustee, and the
Master Servicer shall keep the Documents and any proceeds separate and
distinct from all other property in the Master Servicer's possession,
custody or control.
[_____________________]
By: __________________________
Its:__________________________
Date: ____________, 19
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: [Trustee] Attn: Mortgage Custody Services
Re: The Master Servicing Agreement dated [ ] among [___________]
("[_______]"), as Master Servicer, Home Equity Loan Trust 199_, as
Issuer, and [ ], as Trustee
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by
you as Trustee for Home Equity Loan Trust 199_, as Issuer, we request the
release of the Mortgage File for the Mortgage Loan(s) described below, for the
reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
--------------------------------------
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
-------------------------------
_______1. Mortgage Loan paid in full ([_________] hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated ([_________] hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation have been
finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Trustee Mortgage
File was previously released to us, please release to us our previous receipt
on file with you, as well as an additional documents in your possession
relating to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon
return of all of the above documents to you as Trustee, please acknowledge
your receipt by signing in the space indicated below, and returning this form.
[____________________________] [address]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
