EXHIBIT 4.1
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BNP PARIBAS MORTGAGE ABS LLC
Depositor,
[NAME OF MASTER SERVICER]
Master Servicer,
and
[NAME OF TRUSTEE],
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of_____________1, 200_
Mortgage Pass-Through Certificates
Series 200_-__
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01.
Defined
Terms.................................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01.
Conveyance of Mortgage
Loans..................................................
SECTION 2.02.
Acceptance of the Trust Fund by the
Trustee...................................
SECTION 2.03.
Representations, Warranties and Covenants of the Master Servicer
and the
Depositor.....................................................................
SECTION 2.04.
Representations and Warranties of the Seller; Repurchase
and
Substitution....
SECTION 2.05.
Issuance of Certificates Evidencing Interests in the Trust
Fund...............
SECTION 2.06.
Purposes and Powers of the
Trust..............................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
Master Servicer to Act as Master
Servicer.....................................
SECTION 3.02.
Sub-Servicing Agreements Between Master Servicer and Sub-
Servicers...........
SECTION 3.03.
Successor
Sub-Servicers.......................................................
SECTION 3.04.
Liability of the Master
Servicer..............................................
SECTION 3.05.
No Contractual
Relationship Between Sub-Servicers and Trustee or
Certificateholders............................................................
SECTION 3.06.
Assumption or Termination of Sub-Servicing Agreements by
Trustee.............
SECTION 3.07.
Collection of Certain Mortgage Loan
Payments..................................
SECTION 3.08.
Sub-Servicing
Accounts........................................................
SECTION 3.09.
Collection of Taxes, Assessments and Similar Items; Servicing Accounts.......
SECTION 3.10.
Custodial
Account.............................................................
SECTION 3.11.
Permitted Withdrawals From the Custodial
Account..............................
SECTION 3.12.
Permitted
Instruments.........................................................
SECTION 3.13.
Maintenance of Primary Mortgage Insurance and Primary Hazard
Insurance........
SECTION 3.14.
Enforcement of Due-on-Sale Clauses; Assumption
Agreements.....................
SECTION 3.15.
Realization Upon Defaulted Mortgage
Loans.....................................
SECTION 3.16.
Trustee to Cooperate; Release of Mortgage
Files...............................
SECTION 3.17.
Servicing
Compensation........................................................
SECTION 3.18.
Maintenance of Certain Servicing
Policies.....................................
SECTION 3.19.
Annual Statement as to
Compliance.............................................
SECTION 3.20.
Assessments of Compliance and Attestation
Reports.............................
SECTION 3.21.
Access to Certain
Documentation...............................................
SECTION 3.22.
Title, Conservation and Disposition of REO
Property...........................
SECTION 3.23.
Additional Obligations of the Master
Servicer.................................
SECTION 3.24.
Additional Obligations of the
Depositor.......................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Certificate Account;
Distributions............................................
SECTION 4.02.
Statements to
Certificateholders..............................................
SECTION 4.03.
Remittance Reports; Advances by the Master
Servicer...........................
SECTION 4.04.
Allocation of Realized
Losses.................................................
SECTION 4.05.
Information Reports to be Filed by the Master
Servicer........................
SECTION 4.06.
Compliance with Withholding
Requirements......................................
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The
Certificates..............................................................
SECTION 5.02.
Registration of Transfer and Exchange of
Certificates.........................
SECTION 5.03.
Mutilated, Destroyed, Lost or Stolen
Certificates.............................
SECTION 5.04.
Persons Deemed
Owners.........................................................
ARTICLE VI
THE DEPOSITOR AND THE MASTER SERVICER
SECTION 6.01.
Liability of the Depositor and the Master
Servicer............................
SECTION 6.02.
Merger, Consolidation
or Conversion of the Depositor or the Master Servicer...
SECTION 6.03.
Limitation on Liability of the Depositor, the Master Servicer and
Others......
SECTION 6.04.
Limitation on Resignation of the Master
Servicer..............................
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of
Default.............................................................
SECTION 7.02.
Trustee to Act; Appointment of
Successor......................................
SECTION 7.03.
Notification to
Certificateholders............................................
SECTION 7.04.
Waiver of Events of
Default...................................................
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01.
Duties of
Trustee.............................................................
SECTION 8.02.
Certain Matters Affecting the
Trustee.........................................
SECTION 8.03.
Trustee Not Liable for Certificates or Mortgage
Loans.........................
SECTION 8.04.
Trustee May Own
Certificates..................................................
SECTION 8.05.
Payment of Trustee's
Fees.....................................................
SECTION 8.06.
Eligibility Requirements for
Trustee..........................................
SECTION 8.07.
Resignation and Removal of the
Trustee........................................
SECTION 8.08.
Successor
Trustee.............................................................
SECTION 8.09.
Merger or Consolidation of
Trustee............................................
SECTION 8.10.
Appointment of Co-Trustee or Separate
Trustee.................................
SECTION 8.11.
Commission
Reporting..........................................................
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All Mortgage
Loans..............
SECTION 9.02.
Additional Termination
Requirements...........................................
ARTICLE X
REMIC PROVISIONS
SECTION 10.01.
REMIC
Administration..........................................................
SECTION 10.02.
Prohibited Transactions and
Activities........................................
SECTION 10.03.
Master Servicer and Trustee
Indemnification...................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment.....................................................................
SECTION 11.02.
Recordation of Agreement;
Counterparts........................................
SECTION 11.03.
Limitation on Rights of
Certificateholders....................................
SECTION 11.04.
Governing
Law.................................................................
SECTION 11.05.
Notices.......................................................................
SECTION 11.06.
Severability of
Provisions....................................................
SECTION 11.07.
Successors and Assigns; Third Party
Beneficiary...............................
SECTION 11.08.
Article and Section
Headings..................................................
SECTION 11.09.
Notice to Rating Agencies and
Certificateholder...............................
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Exhibit A-1 Form
of Class A Certificate
Exhibit A-2 Form
of Class B Certificate
Exhibit B
Form of Class R Certificate
Exhibit C
Form of Trustee Initial Certification
Exhibit D
Form of Trustee Final Certification
Exhibit E
Form of Remittance Report
Exhibit F-1
Request for Release
Exhibit F-2
Request for Release for Mortgage Loans Paid in Full
Exhibit G-1 Form
of Investor Representation Letter
Exhibit G-2 Form
of Transferor Representation Letter
Exhibit G-3
Transferor Affidavit and Agreement in connection with transfer
of Residual Certificates
Exhibit G-4 Form
of Transferor Certificate
Exhibit G-5 Form
of Investor Representation Letter for Insurance Companies
Exhibit H
Mortgage Loan Schedule
Exhibit I
Seller's Warranty Certificate
Exhibit J
Form of Notice Under Section 3.24
Exhibit K
Form of Depositor Certification
Exhibit L
Form of Trustee Certification
Exhibit M
Form of Servicer Certification
Exhibit N
Servicing Criteria to Be Addressed in Assessment of Compliance
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This Pooling and Servicing Agreement, effective as of
_______________
1, 200_, among BNP PARIBAS MORTGAGE ABS LLC, as the depositor
(together with its
permitted successors and assigns, the "Depositor"), [NAME OF MASTER
SERVICER],
as master servicer (together with its permitted successors and
assigns, the
"Master Servicer"), and [NAME OF TRUSTEE], as trustee (together
with its
permitted successors and assigns, the "Trustee"),
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through
certificates
(collectively, the "Certificates"), to be issued hereunder in
multiple classes
(each, a "Class"), which in the aggregate will evidence the entire
beneficial
ownership interest in the Mortgage Loans (as defined herein). As
provided
herein, the Master Servicer will make an election to treat the
segregated pool
of assets described in the definition of Trust Fund (as defined
herein), and
subject to this Agreement (including the Mortgage Loans but
excluding the
Initial Monthly Payment Deposit), as a real estate mortgage
investment conduit
(a "REMIC") for federal income tax purposes, and such segregated
pool of assets
will be designated as the "Trust Fund." The Class A-1, Class A-2,
Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7 and Class B Certificates
will
represent ownership of "regular interests" in the Trust Fund, and
the Class R
Certificates will be the sole class of "residual interests"
therein, for
purposes of the REMIC Provisions (as defined herein) under federal
income tax
law.
The following table sets forth the designation, type,
Pass-Through
Rate, aggregate Initial Certificate Principal Balance, initial
ratings and
certain features for each Class of Certificates comprising the
interests in the
Trust Fund created hereunder.
AGGREGATE INITIAL PASS-CERTIFICATE
INITIAL RATINGS THROUGH PRINCIPAL DESCRIPTION TYPE
RATE BALANCE FEATURES
[INSERT TABLE HERE]
The Mortgage Loans have an aggregate Stated Principal Balance as of
the
Cut-off Date equal to $___________. The Mortgage Loans are fixed
rate mortgage
loans having terms to maturity at origination or modification of
not more than
30 years.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer and the Trustee agree as
follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and
phrases,
unless the context otherwise requires, shall have the meanings
specified in this
Article.
"Accrued Certificate Interest": With respect to each Distribution
Date,
as to any Class A Certificate (other than the Class A-5
Certificates and Class
A-7 Certificates) or any Class B Certificate, one month's interest
accrued at
the then applicable Pass-Through Rate on the Certificate Principal
Balance
thereof immediately prior to such Distribution Date. With respect
to each
Distribution Date, as to the Class A-5 Certificates and Class A-7
Certificates,
one month's interest accrued at the then applicable Pass-Through
Rate on the
Notional Amount thereof immediately prior to such Distribution
Date. Accrued
Certificate Interest will be calculated on the basis of a 360-day
year
consisting of twelve 30-day months. In each case Accrued
Certificate Interest on
any Class of Certificates will be reduced by the amount of (i)
Prepayment
Interest Shortfalls, if any, which are not covered by payments by
the Master
Servicer pursuant to Section 3.23 with respect to such Distribution
Date, (ii)
the interest portion (adjusted to the related Net Mortgage Rate) of
any of
Realized Losses (including Excess Special Hazard Losses, Excess
Fraud Losses,
Excess Bankruptcy Losses and Extraordinary Losses) not allocated
solely to one
or more specific Classes of Certificates pursuant to Section 4.04
(which, with
respect to the pro rata portion thereof allocated to the Class A-1,
Class A-5
and Class A-6 Certificates will be allocated first to the Class A-6
Certificates
and second to the Class A-1 and Class A-5 Certificates on a pro
rata basis to
the extent such Realized Losses are Default Losses), (iii) the
interest portion
of Advances previously made with respect to a Mortgage Loan or REO
Property
which remained unreimbursed following the Cash Liquidation or REO
Disposition of
such Mortgage Loan or REO Property that was made with respect to
delinquencies
that were ultimately determined to be Excess Special Hazard Losses,
Excess Fraud
Losses, Excess Bankruptcy Losses or Extraordinary Losses, and (iv)
any other
interest shortfalls not covered by the subordination provided by
the Class B
Certificates pursuant to Section 4.04, including interest that is
not
collectible from the Mortgagor pursuant to the Relief Act or
similar legislation
or regulations as in effect from time to time; with all such
reductions
allocated among the Classes of Certificates, in proportion to their
respective
amounts of Accrued Certificate Interest which would have resulted
absent such
reductions. In addition to that portion of the reductions described
in the
preceding sentence, Accrued Certificate Interest on the Class B
Certificates
will be reduced by the interest portion (adjusted to the related
Net Mortgage
Rate) of Realized Losses that are allocated solely to the Class B
Certificates
pursuant to Section 4.04.
"Advance": As to any Mortgage Loan, any advance made by the
Master
Servicer on any Distribution Date pursuant to Section 4.03.
"Agreement": This Pooling and Servicing Agreement and all
amendments
hereof.
"Anniversary": Each anniversary of _____________ 1, 20__.
"Assessment of Compliance": As defined in Section 3.20.
"Attestation Report": As defined in Section 3.20.
"Assignment": An assignment of Mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient
under the laws of
the jurisdiction wherein the related Mortgaged Property is located
to reflect of
record the sale of the Mortgage, which assignment, notice of
transfer or
equivalent instrument may be in the form of one or more blanket
assignments
covering Mortgages secured by Mortgaged Properties located in the
same county,
if permitted by law.
"Assignment Agreement": The Assignment and Assumption Agreement,
dated
as of ____________, 200_, between [Name of Seller] and the
Depositor relating to
the transfer and assignment of the Mortgage Loans.
"Available Distribution Amount": With respect to each
Distribution
Date, the Available Distribution Amount will be an amount equal to
(a) the sum
of (i) the balance on deposit in the Custodial Account as of the
close of
business on the related Determination Date and (ii) the aggregate
amount of any
Advances made, all required amounts pursuant to Section 3.22 and
all amounts
required to be paid by the Master Servicer pursuant to Sections
3.13 and 3.23 by
deposits into the Certificate Account on the immediately preceding
Certificate
Account Deposit Date, reduced by (b) the sum, as of the close of
business on the
related Determination Date of (i) Monthly Payments collected but
due during a
Due Period subsequent to the Due Period ending on the first day of
the month of
the related Distribution Date, (ii) all interest or other income
earned on
deposits in the Custodial Account, (iii) any other amounts
reimbursable or
payable to the Master Servicer or any other Person pursuant to
Section 3.11,
(iv) Insurance Proceeds, Liquidation Proceeds, Principal
Prepayments, REO
Proceeds and the proceeds of Mortgage Loan purchases (or amounts
received in
connection with substitutions) made pursuant to Section 2.02 and
2.04, in each
case received or made in the month of such Distribution Date and
(v) the
Trustee's Fee.
"Bankruptcy Amount": As of any date of determination, an amount,
equal
to the excess, if any, of (A) $_______, over (B) the aggregate
amount of
Bankruptcy Losses allocated solely to one or more specific Classes
of
Certificates in accordance with Section 4.04.
The Bankruptcy Amount may be further reduced by the Master
Servicer
(including accelerating the manner in which such coverage is
reduced) provided
that prior to any such reduction, the Master Servicer shall (i)
obtain written
confirmation from each Rating Agency that such reduction shall not
reduce the
rating assigned to any Class of Certificates by such Rating Agency
below the
lower of the then-current rating or the rating assigned to such
Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy
of such
written confirmation to the Trustee.
"Bankruptcy Code": The United States Bankruptcy Code of 1978,
as
amended.
"Bankruptcy Loss": With respect to any Mortgage Loan, a
Deficient
Valuation or Debt Service Reduction; provided, however, that a
Deficient
Valuation or a Debt Service Reduction shall not be deemed a
Bankruptcy Loss
hereunder so long as the Master Servicer has notified the Trustee
in writing
that the Master Servicer is diligently pursuing any remedies that
may exist in
connection with the related Mortgage Loan and either (A) the
related Mortgage
Loan is not in default with regard to payments due thereunder or
(B) delinquent
payments of principal and interest under the related Mortgage Loan
and any
related escrow payments in respect of such Mortgage Loan are being
advanced on a
current basis by the Master Servicer, in either case without giving
effect to
any Deficient Valuation or Debt Service Reduction.
"Business Day": Any day other than (i) a Saturday or a Sunday or
(ii) a
day on which banking institutions in the State of ______________ or
the State of
______________ (and such other state or states in which the
Custodial Account or
the Certificate Account are at the time located) are required or
authorized by
law or executive order to be closed.
"Cash Liquidation": As to any defaulted Mortgage Loan other than
a
Mortgage Loan as to which an REO Acquisition occurred, the final
receipt by or
on behalf of the Master Servicer of all Insurance Proceeds,
Liquidation Proceeds
and other payments or cash recoveries which the Master Servicer
reasonably and
in good faith expects to be finally recoverable with respect to
such Mortgage
Loan.
"Certificate": Any Class A, Class B or Class R Certificate.
"Certificate Account": The account or accounts created and
maintained
pursuant to Section 4.01, which shall be entitled
"____________________________,
as trustee, in trust for the registered holders of BNP Paribas
Mortgage ABS LLC,
Mortgage Pass-Through Certificates, Series 200_-__" and which must
be an
Eligible Account.
"Certificate Account Deposit Date": The 20th day (or if such 20th
day
is not a Business Day, the Business Day immediately preceding such
20th day) of
the month.
"Certificateholder" or "Holder": The Person in whose name a
Certificate
is registered in the Certificate Register, except that, neither a
Disqualified
Organization nor a Non-United States Person shall be a Holder of a
Class R
Certificate for any purposes hereof and, solely for the purposes of
giving any
consent pursuant to this Agreement, any Certificate registered in
the name of
the Depositor or the Master Servicer or any affiliate thereof shall
be deemed
not to be outstanding and the Voting Rights to which it is entitled
shall not be
taken into account in determining whether the requisite percentage
of Voting
Rights necessary to effect any such consent has been obtained,
except as
otherwise provided in Section 11.01. The Trustee shall be entitled
to rely upon
a certification of the Depositor or the Master Servicer in
determining if any
Certificates are registered in the name of a respective
affiliate.
"Certificate Owner": With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of such Certificate, as
reflected on the
books of an indirect participating brokerage firm for which a
Depositor
Participant acts as agent, if any, and otherwise on the books of a
Depositor
Participant, if any, and otherwise on the books of the
Depositor.
"Certificate Principal Balance": With respect to each Class A
Certificate (other than a Class A-5 Certificate or Class A-7
Certificate), on
any date of determination, an amount equal to (i) the Initial
Certificate
Principal Balance of such Certificate as specified on the face
thereof, minus
(ii) the sum of (x) the aggregate of all amounts previously
distributed with
respect to such Certificate (or any predecessor Certificate) and
applied to
reduce the Certificate Principal Balance thereof pursuant to
Section 4.02(b) and
(y) the aggregate of all reductions in Certificate Principal
Balance deemed to
have occurred in connection with Realized Losses which were
previously allocated
to such Certificate (or any predecessor Certificate) pursuant to
Section 4.04.
With respect to the Class B Certificates, on any date of
determination, an
amount equal to the Percentage Interest evidenced by such
Certificate times the
excess, if any, of (A) the then aggregate Stated Principal Balance
of the
Mortgage Loans over (B) the then aggregate Certificate Principal
Balance of all
other Classes of Certificates then outstanding. The Class A-5
Certificates,
Class A-7 Certificates and Class R Certificates have no Certificate
Principal
Balance.
"Certificate Register": The register maintained pursuant to
Section
5.02.
"Class": Collectively, all of the Certificates bearing the same
designation.
"Class A Certificate": Any one of the Class A-1, Class A-2, Class
A-3,
Class A-4, Class A-5, Class A-6 or Class A-7 Certificates, executed
by the
Trustee and authenticated by the Certificate Registrar
substantially in the form
annexed hereto as Exhibit A-1, each such Certificate evidencing an
interest
designated as a "regular interest" in the Trust Fund for purposes
of the REMIC
Provisions.
"Class B Certificate": The Class B Certificates executed by the
Trustee
and authenticated by the Certificate Registrar substantially in the
form annexed
hereto as Exhibit A-2 and evidencing an interest designated as a
"regular
interest" in the Trust Fund for purposes of the REMIC
Provisions.
"Class B Percentage": With respect to any Distribution Date, the
lesser
of (i) 100% minus the Senior Percentage and (ii) a fraction,
expressed as a
percentage, the numerator of which is the aggregate Certificate
Principal
Balance of the Class B Certificates immediately prior to such date
and the
denominator of which is the aggregate Stated Principal Balance of
all of the
Mortgage Loans (or related REO Properties) immediately prior to
such
Distribution Date.
"Class R Certificate": Any one of the Class R Certificates executed
and
delivered by the Trustee substantially in the form annexed hereto
as Exhibit B
and evidencing an interest designated as a "residual interest" in
the REMIC for
purposes of the REMIC Provisions.
"Closing Date" : _______________ ___, 20__.
"Code": The Internal Revenue Code of 1986.
"Collateral Value": The appraised value of a Mortgaged Property
based
upon the lesser of (i) the appraisal made at the time of the
origination of the
related Mortgage Loan, or (ii) the sales price of such Mortgaged
Property at
such time of origination. With respect to a Mortgage Loan the
proceeds of which
were used to refinance an existing mortgage loan, the appraised
value of the
Mortgaged Property based upon the appraisal (as reviewed and
approved by the
Seller) obtained at the time of refinancing.
"Depositor": BNP Paribas Mortgage ABS LLC, or its successor in
interest.
"Corporate Trust Office": The principal office of the Trustee 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 instrument is located at ___________________, Attention:
________________
Series 200_-__.
"Credit Support Depletion Date": The first Distribution Date on
which
the Senior Percentage equals 100%.
"Custodial Account": The custodial account or accounts created
and
maintained pursuant to Section 3.10 in a depository institution, as
custodian
for the holders of the Certificates, for the holders of certain
other interests
in mortgage loans serviced or sold by the Master Servicer and for
the Master
Servicer, into which the amounts set forth in Section 3.10 shall be
deposited
directly. Any such account or accounts shall be an Eligible
Account.
"Cut-off Date": _____________ 1, 200_.
"Debt Service Reduction": With respect to any Mortgage Loan, a
reduction in the scheduled Monthly Payment for such Mortgage Loan
by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code,
except such a
reduction constituting a Deficient Valuation or any reduction that
results in a
permanent forgiveness of principal.
"Default Loss": Any Realized Loss that is attributable to the
related
Mortgagor's failure to make any payment of principal or interest as
required
under the Mortgage Note, excluding Special Hazard Losses (or any
other loss
resulting from damage to a Mortgaged Property), Bankruptcy Losses,
Fraud Losses,
or other losses of a type not covered by the subordination provided
by the Class
B Certificates pursuant to Section 4.04.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation
by a court of competent jurisdiction of the Mortgaged Property in
an amount less
than the then outstanding indebtedness under the Mortgage Loan,
which valuation
results from a proceeding initiated by the Mortgagor under the
Bankruptcy Code.
"Definitive Certificate": Any definitive, fully registered
Certificate.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced
with a Qualified Substitute Mortgage Loan.
"Determination Date": The 15th day (or if such 15th day is not
a
Business Day, the Business Day immediately preceding such 15th day)
of the month
of the related Distribution Date.
"Disqualified Organization": Any of the following: (i) the
United
States, any State or any political subdivision thereof, any
possession of the
United States or any agency or instrumentality of any of the
foregoing (other
than an instrumentality which is a corporation, if all of its
activities are
subject to tax and, except for the Freddie Mac, a majority of its
board of
directors is not selected by any such governmental unit), (ii) a
foreign
government, international organization or any agency or
instrumentality of
either the foregoing, (iii) an organization (except certain
farmers'
cooperatives described in Section 521 of the Code) which is exempt
from tax
imposed by Chapter 1 of the Code (unless such organization is
subject to the tax
imposed by Section 511 of the Code on unrelated business taxable
income), (iv)
rural electric and telephone cooperatives described in Section 1381
of the Code
or (v) any other Person so designated by the Trustee based on an
Opinion of
Counsel obtained by the Trustee, at the expense of the Trust Fund,
(which
opinion shall be sought only if the Trustee has actual knowledge
that the
holding of an Ownership Interest in a Class R Certificate by such
Person may
cause the Trust Fund or any Person having an Ownership Interest in
any Class of
Certificates, other than such Person, to incur a liability for any
federal tax
imposed under the Code that would not otherwise be imposed but for
the Transfer
of an Ownership Interest in a Class R Certificate to such Person).
The terms
"United States," "State" and "international organization" shall
have the
meanings set forth in Section 7701 of the Code or successor
provisions.
"Distribution Date": The 25th day of any month, or if such 25th day
is
not a Business Day, the Business Day immediately following such
25th day
commencing on _______ 25, 20__.
"Due Date": The first day of the month of the related
Distribution
Date.
"Due Period": With respect to any Distribution Date, the period
commencing on the second day of the month preceding the month of
such
Distribution Date (or, with respect to the first Due Period, the
day following
the Cut-off Date) and ending on the related Due Date.
"Eligible Account": An account maintained with a federal or
state
chartered depository institution (i) the short-term obligations of
which are
rated by each of the Rating Agencies in its highest rating at the
time of any
deposit therein, or (ii) insured by the FDIC (to the limits
established by such
Corporation), the uninsured deposits in which account are otherwise
secured such
that, as evidenced by an Opinion of Counsel (obtained by and at the
expense of
the Person requesting that the account be held pursuant to this
clause (ii))
delivered to the Trustee prior to the establishment of such
account, the
Certificateholders will have a claim with respect to the funds in
such account
and a perfected first priority security interest against any
collateral (which
shall be limited to Permitted Instruments, each of which shall
mature not later
than the Business Day immediately preceding the Distribution Date
next following
the date of investment in such collateral or the Distribution Date
if such
Permitted Instrument is an obligation of the institution that
maintains the
Certificate Account or Custodial Account) securing such funds that
is superior
to claims of any other depositors or general creditors of the
depository
institution with which such account is maintained or (iii) a trust
account or
accounts maintained with a federal or state chartered depository
institution or
trust company with trust powers acting in its fiduciary capacity or
(iv) an
account or accounts of a depository institution acceptable to the
Rating
Agencies (as evidenced in writing by the Rating Agencies that use
of any such
account as the Custodial Account or the Certificate Account will
not have an
adverse effect on the then-current ratings assigned to the Classes
of the
Certificates then rated by the Rating Agencies). Eligible Accounts
may bear
interest.
"Event of Default": One or more of the events described in
Section
7.01.
"Excess Bankruptcy Loss": Any Bankruptcy Loss, or portion
thereof,
which exceeds the then applicable Bankruptcy Amount.
"Excess Fraud Loss": Any Fraud Loss, or portion thereof, which
exceeds
the then applicable Fraud Loss Amount.
"Excess Special Hazard Loss": Any Special Hazard Loss, or
portion
thereof, that exceeds the then applicable Special Hazard
Amount.
"Extraordinary Events": Any of the following conditions with
respect to
a Mortgaged Property or Mortgage Loan causing or resulting in a
loss which
causes the liquidation of such Mortgage Loan:
(a) losses that are of a type that would be covered by the
fidelity
bond and the errors and omissions insurance policy required to be
maintained
pursuant to Section 3.18 but are in excess of the coverage
maintained
thereunder;
(b) nuclear reaction or nuclear radiation or radioactive
contamination,
all whether controlled or uncontrolled, and whether such loss be
direct or
indirect, proximate or remote or be in whole or in part caused by,
contributed
to or aggravated by a peril covered by the definition of the term
"Special
Hazard Loss";
(c) hostile or warlike action in time of peace or war, including
action
in hindering, combating or defending against an actual, impending
or expected
attack:
1. by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air
forces;
or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(d) any weapon of war employing atomic fission or radioactive
force
whether in time of peace or war; or
(e) insurrection, rebellion, revolution, civil war, usurped power
or
action taken by governmental authority in hindering, combating or
defending
against such an occurrence, seizure or destruction under quarantine
or customs
regulations, confiscation by order of any government or public
authority; or
risks of contraband or illegal transportation or trade.
"Extraordinary Losses": Any loss incurred on a Mortgage Loan caused
by
or resulting from an Extraordinary Event.
"Fannie Mae": Federal National Mortgage Association or any
successor.
"FDIC": Federal Deposit Insurance Corporation or any successor.
["Fitch": Fitch Ratings, or its successor in interest.]
"Fraud Losses": Any Realized Loss sustained by reason of a
default
arising from fraud, dishonesty or misrepresentation in connection
with the
related Mortgage Loan.
"Fraud Loss Amount": As of any date of determination after the
Cut-off
Date, an amount equal to: (X) up to and including the [first]
anniversary of the
Cut-off Date an amount equal to ______% of the aggregate
outstanding principal
balance of all of the Mortgage Loans as of the Cut-off Date minus
the aggregate
amount of Fraud Losses allocated to the Class B Certificates in
accordance with
Section 4.04 since the Cut-off Date up to such date of
determination, (Y) from
the [first] to the fifth anniversary of the Cut-off Date, an amount
equal to (1)
the lesser of (a) the Fraud Loss Amount as of the most recent
anniversary of the
Cut-off Date and (b) ______% of the aggregate outstanding principal
balance of
all of the Mortgage Loans as of the most recent anniversary of the
Cut-off Date
minus (2) the Fraud Losses allocated solely to the Class B
Certificates in
accordance with Section 4.04 since the most recent anniversary of
the Cut-off
Date up to such date of determination. On and after the fifth
anniversary of the
Cutoff Date the Fraud Loss Amount shall be zero.
The Fraud Loss Amount may be further reduced by the Master
Servicer
(including accelerating the manner in which such coverage is
reduced) provided
that prior to any such reduction, the Master Servicer shall (i)
obtain written
confirmation from each Rating Agency that such reduction shall not
reduce the
rating assigned to any Class of Certificates by such Rating Agency
below the
lower of the then-current rating or the rating assigned to such
Certificates as
of the Closing Date by such Rating Agency and (ii) provide a copy
of such
written confirmation to the Trustee.
"Freddie Mac": Federal Home Loan Mortgage Corporation or any
successor.
"Funding Date": With respect to each Mortgage Loan, the date on
which
funds were advanced by or on behalf of the Seller and interest
began to accrue
thereunder.
"Initial Certificate Principal Balance": With respect to each Class
of
Certificates, the Certificate Principal Balance of such Class of
Certificates as
of the Cut-off Date as set forth in the Preliminary Statement
hereto.
"Insurance Policy": With respect to any Mortgage Loan, any
insurance
policy which is required to be maintained from time to time under
this Agreement
in respect of such Mortgage Loan.
"Insurance Proceeds": Proceeds paid by any insurer pursuant to
the
Primary Mortgage Insurance Policy and any other insurance policy
covering a
Mortgage Loan to the extent such proceeds are not applied to the
restoration of
the related Mortgaged Property or released to the Mortgagor in
accordance with
the procedures that the Master Servicer would follow in servicing
mortgage loans
held for its own account.
"Late Collections": With respect to any Mortgage Loan, all
amounts
received during any Due Period, whether as late payments of Monthly
Payments or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which
represent late
payments or collections of Monthly Payments due but delinquent for
a previous
Due Period and not previously recovered.
"Liquidation Proceeds": Amounts (other than Insurance Proceeds)
received by the Master Servicer in connection with the taking of an
entire
Mortgaged Property by exercise of the power of eminent domain or
condemnation or
in connection with the liquidation of a defaulted Mortgage Loan
through
trustee's sale, foreclosure sale or otherwise, other than amounts
received in
respect of REO Property.
"Loan-to-Value Ratio": As of any date, the fraction, expressed as
a
percentage, the numerator of which is the current principal balance
of the
related Mortgage Loan at the date of determination and the
denominator of which
is the Collateral Value of the related Mortgaged Property.
"Master Servicer": [Name of Master Servicer], or any successor
master
servicer appointed as herein provided.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled
monthly payment of principal and interest on such Mortgage Loan
which is payable
by a Mortgagor from time to time under the related Mortgage Note as
originally
executed (after adjustment, if any, for Principal Prepayments and
for Deficient
Valuations occurring prior to such Due Date, and after any
adjustment by reason
of any bankruptcy or similar proceeding or any moratorium or
similar waiver or
grace period).
["Moody's": Moody's Investors Service, Inc. or its successor in
interest.]
"Mortgage": The mortgage, deed of trust or any other instrument
securing the Mortgage Loan.
"Mortgage File": The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional
documents required
to be added to the Mortgage File pursuant to this Agreement;
provided, that
whenever the term "Mortgage File" is used to refer to documents
actually
received by the Trustee, such term shall not be deemed to include
such
additional documents required to be added unless they are actually
so added.
"Mortgage Loan": Each of the mortgage loans, transferred and
assigned
to the Trustee pursuant to Section 2.01 or Section 2.03 and from
time to time
held in the Trust Fund, the Mortgage Loans originally so
transferred, assigned
and held being identified in the Mortgage Loan Schedule attached
hereto as
Exhibit H (and any Qualified Substitute Mortgage Loans). As used
herein, the
term "Mortgage Loan" includes the related Mortgage Note and
Mortgage.
"Mortgage Loan Schedule": As of any date of determination, the
schedule
of Mortgage Loans included in the Trust Fund. The initial schedule
of Mortgage
Loans with accompanying information transferred on the Closing Date
to the
Trustee as part of the Trust Fund for the Certificates, attached
hereto as
Exhibit H (as amended from time to time to reflect the addition of
Qualified
Substitute Mortgage Loans) (and, for purposes of the Trustee's
review of the
Mortgage Files pursuant to Section 2.02, in computer-readable form
as delivered
to the Trustee), which list shall set forth the following
information, if
applicable, with respect to each Mortgage Loan:
(i) the loan
number and name of the Mortgagor;
(ii)
the street address, city, state and zip code of the Mortgaged
Property;
(iii) the
Mortgage Rate;
(iv)
the maturity date;
(v) the
original principal balance;
(vi)
the first payment date; (vii) the type of Mortgaged Property;
(viii) the
Monthly Payment in effect as of the Cut-off Date;
(ix)
the
principal balance as of the Cut-off Date;
(x) the
occupancy status;
(xi)
the purpose of the Mortgage Loan;
(xii) the
Collateral Value of the Mortgaged Property;
(xiii) the
original term to maturity;
(xiv) the
paid-through date of the Mortgage Loan;
(xv)
the Loan-to-Value Ratio; and
(xvi)
whether or not the Mortgage Loan was underwritten pursuant to
a limited documentation program.
The Mortgage Loan Schedule shall also set forth the total of
the
amounts described under (ix) above for all of the Mortgage Loans.
The Mortgage
Loan Schedule may be in the form of more than one schedule,
collectively setting
forth all of the information required. With respect to any
Qualified Substitute
Mortgage Loan, the item described in clauses (viii) shall be set
forth as the
date of substitution.
"Mortgage Note": The note or other evidence of the indebtedness of
a
Mortgagor under a Mortgage Loan.
"Mortgage Rate": With respect to any Mortgage Loan, the annual rate
at
which interest accrues on such Mortgage Loan. "Mortgaged Property":
The
underlying property securing a Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note.
"Net Mortgage Rate": As to each Mortgage Loan, a per annum rate
of
interest equal to the related Mortgage Rate as in effect from time
to time minus
the sum of the Servicing Fee Rate and the rate at which the
Trustee's Fee
accrues.
"Nonrecoverable Advance": Any Advance previously made or proposed
to be
made in respect of a Mortgage Loan which, in the good faith
judgment of the
Master Servicer, will not or, in the case of a proposed Advance,
would not be
ultimately recoverable from related Late Collections, Insurance
Proceeds,
Liquidation Proceeds, REO Proceeds or amounts reimbursable to the
Master
Servicer pursuant to Section 4.01(b). The determination by the
Master Servicer
that it has made a Nonrecoverable Advance or that any proposed
Advance would
constitute a Nonrecoverable Advance, shall be evidenced by an
Officers'
Certificate delivered to the Depositor and the Trustee.
"Non-United States Person": Any Person other than a United
States
Person.
"Notional
Amount": As of any Distribution Date, with respect to the
Class A-5 Certificates and the Class A-7 Certificates, an amount
equal to the
aggregate Certificate Principal Balance of all Classes of
Certificates
immediately prior to such date.
"Officers' Certificate": A certificate signed by the Chairman of
the
Board, the Vice Chairman of the Board, the President or a vice
president and by
the Treasurer, the Secretary, or one of the assistant treasurers or
assistant
secretaries of the Master Servicer or of the Sub-Servicer and
delivered to the
Depositor and Trustee.
"Opinion of Counsel": A written opinion of counsel, who may be
counsel
for the Depositor or the Master Servicer, reasonably acceptable to
the Trustee;
except that any opinion of counsel relating to (a) the
qualification of any
account required to be maintained pursuant to this Agreement as an
Eligible
Account, (b) qualification of the Trust Fund as a REMIC, (c)
compliance with the
REMIC Provisions or (d) resignation of the Master Servicer pursuant
to Section
6.04 must be an opinion of counsel who (i) is in fact independent
of the
Depositor and the Master Servicer, (ii) does not have any direct
financial
interest or any material indirect financial interest in the
Depositor or the
Master Servicer or in an affiliate of either and (iii) is not
connected with the
Depositor or the Master Servicer as an officer, employee, director
or person
performing similar functions.
"Optimal Percentage": A fraction, expressed as a percentage,
the
numerator of which is the Certificate Principal Balance of the
Class A-1
Certificates immediately prior to the applicable Distribution Date
and the
denominator of which is the aggregate Certificate Principal Balance
of all of
the Class A Certificates immediately prior to such Distribution
Date.
"Optimal Principal Distribution Amount": An amount equal to the
product
of (i) the then applicable Optimal Percentage and (ii) the Senior
Principal
Distribution Amount.
"Original Senior Percentage": _______%, which is the fraction,
expressed as a percentage, the numerator of which is the aggregate
Initial
Certificate Principal Balance of the Class A Certificates and the
denominator of
which is the aggregate Stated Principal Balance of the Mortgage
Loans.
"OTS": Office of Thrift Supervision or any successor.
"Outstanding Mortgage Loan": As to any Due Date, a Mortgage
Loan
(including an REO Property) which was not the subject of a
Principal Prepayment
in full, Cash Liquidation or REO Disposition and which was not
purchased or
substituted for prior to such Due Date pursuant to Sections 2.02 or
2.04.
"Ownership Interest": As to any Certificate, any ownership or
security
interest in such Certificate, including any interest in such
Certificate as the
Holder thereof and any other interest therein, whether direct or
indirect, legal
or beneficial, as owner or as pledgee.
"Pass-Through Rate": With respect to the Class A Certificates
(other
than the Class A-7 Certificates) and Class B Certificates and any
Distribution
Date, the per annum rate set forth in the Preliminary Statement
hereto. With
respect to the Class A-7 Certificates and any Distribution Date, a
rate equal to
the weighted average, expressed as a percentage, of the Pool Strip
Rates of all
Mortgage Loans in the Trust Fund as of the Due Date in the month
immediately
preceding the month in which such Distribution Date occurs,
weighted on the
basis of the respective Stated Principal Balances of such Mortgage
Loans, which
Stated Principal Balances shall be the Stated Principal Balances of
such
Mortgage Loans at the close of business on the immediately
preceding
Distribution Date after giving effect to the distributions thereon
allocable to
principal (or, in the case of the initial Distribution Date, at the
close of
business on the Cut-off Date). With respect to the Class A-7
Certificates and
the initial Distribution Date, the Pass-Through Rate is equal to
______% per
annum.
"Percentage Interest": With respect to any Certificate (other than
a
Class A-5, Class A-7 or Class R Certificate), the undivided
percentage ownership
interest in the related Class evidenced by such Certificate, which
percentage
ownership interest shall be equal to the initial Certificate
Principal Balance
thereof divided by the aggregate Initial Certificate Principal
Balance of all of
the Certificates of the same Class. With respect to a Class A-5 or
Class A-7
Certificate, the undivided percentage ownership interest in the
related Class
evidenced by such Certificate, which percentage ownership interest
shall be
equal to the initial Notional Amount thereof divided by the
aggregate initial
Notional Amount of all of the Certificates of the same Class. With
respect to a
Class R Certificate, the interest in distributions to be made with
respect to
such Class evidenced thereby, expressed as a percentage, as stated
on the face
of each such Certificate.
"Permitted Instruments": Any one or more of the following:
(xvii) (a) direct obligations of, or obligations fully
guaranteed as to principal and interest by, the United States or
any
agency or instrumentality thereof, provided such obligations are
backed
by the full faith and credit of the United States and (b)
direct
obligations of, and obligations guaranteed as to timely payment
by
Freddie Mac or Fannie Mae if, at the time of investment, they
are
assigned the highest credit rating by the Rating Agencies;
(xviii) repurchase obligations (the collateral for which is
held by a third party or the Trustee) with respect to any
security
described in clause (i) above, provided that the short-term
unsecured
obligations of the party agreeing to repurchase such obligations
are at
the time rated by each Rating Agency in one of its two highest
long-term rating categories;
(xix) certificates of deposit, time deposits, demand deposits
and
bankers' acceptances of any bank or trust company incorporated
under the laws of the United States or any state thereof or the
District of Columbia, provided that the short-term commercial paper
of
such bank or trust company (or, in the case of the principal
depository
institution in a depository institution holding company, the
long-term
unsecured debt obligations of the depository institution
holding
company) at the date of acquisition thereof has been rated by
each
Rating Agency in its highest short-term rating;
(xx) commercial paper (having original maturities of not more
than nine months) of any corporation incorporated under the laws of
the
United States or any state thereof or the District of Columbia
which on
the date of acquisition has been rated by each Rating Agency in
its
highest short- term rating;
(xxi) a money market fund or a qualified investment fund rated
by each Rating Agency in its highest rating available; and
(xxii) if previously confirmed in writing to the Trustee, any
other obligation or security acceptable to each Rating Agency
in
respect of mortgage pass-through certificates rated in each
Rating
Agency's highest rating category;
provided, that no such instrument shall be a Permitted Instrument
if such
instrument evidences either (a) the right to receive interest only
payments with
respect to the obligations underlying such instrument or (b) both
principal and
interest payments derived from obligations underlying such
instrument where the
principal and interest payments with respect to such instrument
provide a yield
to maturity exceeding 120% of the yield to maturity at par of such
underlying
obligation.
"Permitted Transferee": Any transferee of a Class R Certificate
other
than a Disqualified Organization or a Non-United States Person.
"Person": Any individual, corporation, partnership, joint
venture,
association, joint-stock company, trust, unincorporated
organization or
government or any agency or political subdivision thereof.
"Pool Strip Rate": With respect to each Mortgage Loan, the rate
per
annum equal to the Net Mortgage Rate thereon minus _____% per
annum.
"Prepayment Assumption": A prepayment assumption of _____% of
the
standard prepayment assumption, used for determining the accrual of
original
issue discount and market discount and premium on the Certificates
for federal
income tax purposes. The standard prepayment assumption assumes a
constant rate
of prepayment of mortgage loans of 0.2% per annum of the then
outstanding
principal balance of such mortgage loans in the first month of the
life of the
mortgage loans, increasing by an additional 0.2% per annum in each
succeeding
month until the thirtieth month, and a constant 6% per annum rate
of prepayment
thereafter for the life of such mortgage loans.
"Prepayment Interest Shortfall": With respect to any Distribution
Date,
for each Mortgage Loan that was the subject of a partial Principal
Prepayment, a
Principal Prepayment in full, or of a Cash Liquidation or an REO
Disposition
during the related Prepayment Period, an amount equal to the amount
of interest
that would have accrued at the applicable Net Mortgage Rate (i) in
the case of a
Principal Prepayment in full, Cash Liquidation or REO Disposition
on the
principal balance of such Mortgage Loan immediately prior to such
prepayment (or
liquidation), commencing on the date of prepayment (or liquidation)
and ending
on the last day of the month of prepayment or liquidation or (ii)
in the case of
a partial Principal Prepayment, on the amount of such prepayment,
commencing on
the date as of which the prepayment is applied and ending on the
last day of the
month of prepayment.
"Prepayment Period": As to any Distribution Date, the calendar
month
preceding the month in which such Distribution Date occurs.
"Primary Hazard Insurance Policy": Each primary hazard insurance
policy
required to be maintained pursuant to Section 3.13.
"Primary Mortgage Insurance Policy": Each primary mortgage
insurance
policy required to be maintained pursuant to Section 3.13.
"Principal Prepayment": Any payment of principal made by the
Mortgagor
on a Mortgage Loan which is received in advance of its scheduled
Due Date and
which is not accompanied by an amount of interest representing
scheduled
interest due on any date or dates in any month or months subsequent
to the month
of prepayment.
"Purchase Price": With respect to any Mortgage Loan (or REO
Property)
required to be purchased pursuant to Section 2.02 or 2.04, an
amount equal to
the sum of (i) 100% of the Stated Principal Balance thereof, (ii)
unpaid accrued
interest (or REO Imputed Interest) at the sum of the applicable Net
Mortgage
Rate, the rate at which the Trustee's Fee accrues on the Stated
Principal
Balance thereof outstanding during each Due Period that such
interest was not
paid or advanced, from the date through which interest was last
paid by the
Mortgagor or advanced and distributed to Certificateholders
together with unpaid
related Servicing Fees from the date through which interest was
last paid by the
Mortgagor, in each case to the first day of the month in which such
Purchase
Price is to be distributed, plus (iii) the aggregate of all
Advances made in
respect thereof that were not previously reimbursed.
"Qualified Insurer": An 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 business
in such states and to write the insurance provided by the insurance
policy
issued by it, approved as an insurer by the Master Servicer, as a
Fannie Mae
approved mortgage insurer and having a claims paying ability rating
of at least
"AA" by ________________ and which is acceptable to
_______________. Any
replacement insurer with respect to a Mortgage Loan must have at
least as high a
claims paying ability rating by ______________ and _______________
as the
insurer it replaces had on the Closing Date.
"Qualified Substitute Mortgage Loan": A Mortgage Loan substituted
by
the Depositor 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 Stated Principal Balance of the Deleted Mortgage Loan (the
amount of any
shortfall to be deposited by the Master Servicer, in the Custodial
Account in
the month of substitution); (ii) have a Mortgage Rate and a Net
Mortgage Rate no
lower than and not more than 1% per annum higher than the Mortgage
Rate and Net
Mortgage Rate, respectively, of the Deleted Mortgage Loan as of the
date of
substitution; (iii) have a remaining term to stated maturity not
greater than
(and not more than one year less than) that of the Deleted Mortgage
Loan; (iv)
comply with each representation and warranty set forth in Section 2
of the
Seller's Warranty Certificate; (v) have a Loan-to-Value Ratio as of
the date of
substitution equal to or lower than the Loan-to-Value Ratio of the
Deleted
Mortgage Loan as of such date; and (vi) be covered under a Primary
Insurance
Policy if such Qualified Substitute Mortgage Loan has a
Loan-to-Value Ratio in
excess of 80%. In the event that one or more mortgage loans are
substituted for
one or more Deleted Mortgage Loans, the amounts described in clause
(i) hereof
shall be determined on the basis of aggregate principal balances,
the Mortgage
Rates described in clause (ii) hereof shall be determined on the
basis of
weighted average Mortgage Rates, the Net Mortgage Rates described
in clause (ii)
hereof shall be satisfied as to each such mortgage loan, the terms
described in
clause (iii) shall be determined on the basis of weighted average
remaining
terms to maturity, the Loan-to-Value Ratios described in clause (v)
hereof shall
be satisfied as to each such mortgage loan and, except to the
extent otherwise
provided in this sentence, the representations and warranties
described in
clause (iv) hereof must be satisfied as to each Qualified
Substitute Mortgage
Loan or in the aggregate, as the case may be.
"Rating Agency": [Standard & Poor's] [Moody's] [Fitch]. If
either
agency or a successor is no longer in existence, "Rating Agency"
shall be such
statistical credit rating agency, or other comparable Person,
designated by the
Depositor, notice of which designation shall be given to the
Trustee and the
Master Servicer. References herein to the two highest long term
debt rating
categories of a Rating Agency shall mean "AA" or better in the case
of [Standard
& Poor's] [Fitch] and "Aa2" or better in the case of Moody's
and references
herein to the highest short-term debt rating of a Rating Agency
shall mean "A-1"
in the case of [Standard & Poor's,] and in the case of any
other Rating Agency
such references shall mean such rating categories without regard to
any plus or
minus.
"Realized Loss": With respect to any Mortgage Loan or related
REO
Property as to which a Cash Liquidation or REO Disposition has
occurred, an
amount (not less than zero) equal to (i) the Stated Principal
Balance of the
Mortgage Loan as of the date of Cash Liquidation or REO
Disposition, plus (ii)
interest (and REO Imputed Interest, if any) at the related Net
Mortgage Rate
from the Due Date as to which interest was last paid or advanced
to
Certificateholders up to the date of the Cash Liquidation or REO
Disposition on
the Stated Principal Balance of such Mortgage Loan outstanding
during each Due
Period that such interest was not paid or advanced, minus (iii) the
proceeds, if
any, received during the month in which such Cash Liquidation or
REO Disposition
occurred, to the extent applied as recoveries of interest at the
related Net
Mortgage Rate and to principal of the Mortgage Loan, net of the
portion thereof
reimbursable to the Master Servicer or any Sub-Servicer with
respect to related
Advances not previously reimbursed. With respect to each Mortgage
Loan which has
become the subject of a Deficient Valuation, 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, the amount of such Debt
Service Reduction.
"Record Date": The last Business Day of the month immediately
preceding
the month of the related Distribution Date.
"Regular Certificate": Any of the Certificates other than the Class
R
Certificates.
"Relief Act": The Servicemembers Relief Act of 2003, as
amended.
"Relief Act Interest Shortfall": With respect to any Distribution
Date
and any Mortgage Loan, any reduction in the amount of interest
collectible on
such Mortgage Loan for the most recently ended calendar month as a
result of the
application of the Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the
meaning
of Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions,
and proposed, temporary and final regulations and published
rulings, notices and
announcements promulgated thereunder, as the foregoing may be in
effect from
time to time.
"Remittance Report": A report prepared by the Master Servicer
providing
the information set forth in Exhibit E attached hereto.
"REO Acquisition": The acquisition by the Master Servicer on behalf
of
the Trustee for the benefit of the Certificateholders of any REO
Property
pursuant to Section 3.15.
"REO Disposition": The receipt by the Master Servicer of
Insurance
Proceeds, Liquidation Proceeds and other payments and recoveries
(including
proceeds of a final sale) which the Master Servicer expects to be
finally
recoverable from the sale or other disposition of the REO
Property.
"REO Imputed Interest": As to any REO Property, for any period,
an
amount equivalent to interest (at the Mortgage Rate that would have
been
applicable to the related Mortgage Loan had it been outstanding) on
the unpaid
principal balance of the Mortgage Loan as of the date of
acquisition thereof (as
such balance is reduced by any income from the REO Property treated
as a
recovery of principal pursuant to Section 3.15).
"REO Proceeds": Proceeds, net of directly related expenses,
received in
respect of any REO Property (including, without limitation,
proceeds from the
rental of the related Mortgaged Property and of any REO
Disposition), which
proceeds are required to be deposited into the Custodial Account as
and when
received.
"REO Property": A Mortgaged Property acquired by the Master
Servicer
through foreclosure or deed-in-lieu of foreclosure in connection
with a
defaulted Mortgage Loan.
"Request for Release": A release signed by a Servicing Officer, in
the
form of Exhibits F-1 or F-2 attached hereto.
"Required Insurance Policy": With respect to any Mortgage Loan,
any
Insurance Policy or any other insurance policy that is required to
be maintained
from time to time under this Agreement or pursuant to the
provisions of a
Mortgage Loan.
"Residual Certificate": Any of the Class R Certificates.
"Responsible Officer": When used with respect to the Trustee,
the
Chairman or Vice Chairman of the Board of Directors or Trustees,
the Chairman or
Vice Chairman of the Executive or Standing Committee of the Board
of Directors
or Trustees, the President, the Chairman of the Committee on Trust
Matters, any
vice president, any assistant vice president, the Secretary, any
assistant
secretary, the Treasurer, any assistant treasurer, the Cashier, any
assistant
cashier, any trust officer or assistant trust officer, the
Controller and any
assistant controller or any other officer of the Trustee
customarily performing
functions similar to those performed by any of the above designated
officers and
also, with respect to a particular matter, any other officer to
whom such matter
is referred because of such officer's knowledge of and familiarity
with the
particular subject.
"Seller": [Name of Seller] and its successors and assigns.
"Seller's
Warranty Certificate": The Seller's Warranty Certificate of
the Seller, dated ______ __, 20__, in the form of Exhibit I
attached hereto.
"Senior Accelerated Distribution Percentage": With respect to
any
Distribution Date, the percentage indicated below:
DISTRIBUTION DATE SENIOR ACCELERATED DISTRIBUTION PERCENTAGE
[TABLE]
provided, however, (i) that any scheduled reduction to the Senior
Accelerated
Distribution Percentage described above shall not occur as of any
Distribution
Date unless either (a)(1) the outstanding principal balance of
Mortgage Loans
delinquent [60] days or more averaged over the last six months, as
a percentage
of the aggregate outstanding principal balance of all Mortgage
Loans averaged
over the last [six] months, does not exceed [2%] and (2) Realized
Losses on the
Mortgage Loans to date for such Distribution Date if occurring
during the sixth,
seventh, eighth, ninth or tenth year (or any year thereafter) after
the Closing
Date are less than [30%, 35%, 40%, 45% or 50%], respectively, of
the Initial
Certificate Principal Balance of the Class B Certificates or (b)(1)
the
outstanding principal balance of the Mortgage Loans delinquent [60]
days or more
averaged over the last six months, as a percentage of the aggregate
outstanding
principal balance of all Mortgage Loans averaged over the last
[six] months,
does not exceed [4%] and (2) Realized Losses on the Mortgage Loans
to date for
such Distribution Date are less than [10%] of the Initial
Certificate Principal
Balance of the Class B Certificates and (ii) that for any
Distribution Date on
which the Senior Percentage is greater than the Original Senior
Percentage, the
Senior Accelerated Distribution Percentage for such Distribution
Date shall be
100%. Notwithstanding the foregoing, upon the reduction of the
aggregate
Certificate Principal Balance of the Class A Certificates to zero,
the Senior
Accelerated Distribution Percentage shall thereafter be 0%.
"Senior Percentage": As of any Distribution Date, the lesser of
100%
and a fraction, expressed as a percentage, the numerator of which
is the
aggregate Certificate Principal Balance of the Class A Certificates
immediately
prior to such Distribution Date and the denominator of which is the
aggregate
Stated Principal Balance of all of the Mortgage Loans (or related
REO
Properties) immediately prior to such Distribution Date.
"Senior Principal Distribution Amount": As to any Distribution
Date,
the lesser of (a) the balance of the Available Distribution Amount
remaining
after the distribution of all amounts required to be distributed
pursuant to
Section 4.02(b)(i) and (b) the sum of the amounts required to be
distributed to
the Class A Certificateholders on such Distribution Date pursuant
to Section
4.02(b)(ii) and (vi).
"Servicing Account": The account or accounts created and
maintained
pursuant to Section 3.09.
"Servicing Advances": All customary, reasonable and necessary "out
of
pocket" costs and expenses incurred in connection with a default,
delinquency or
other unanticipated event by the Master Servicer in the performance
of its
servicing obligations, including, but not limited to, the cost of
(i) the
preservation, restoration and protection of a Mortgaged Property,
(ii) any
enforcement or judicial proceedings, including foreclosures, (iii)
the
management and liquidation of any REO Property and (iv) compliance
with the
obligations under the second paragraph of Section 3.01 and Section
3.09.
"Servicing Fee": As to each Mortgage Loan, an amount, payable out
of
any payment of interest on the Mortgage Loan, equal to interest at
the related
Servicing Fee Rate on the Stated Principal Balance of such Mortgage
Loan for the
calendar month preceding the month in which the payment is due
(alternatively,
in the event such payment of interest accompanies a Principal
Prepayment in full
made by the Mortgagor, interest for the number of days covered by
such payment
of interest).
"Servicing Fee Rate": With respect to each Mortgage Loan, the per
annum
rate of ______%.
"Servicing Officer": Any officer of the Master Servicer involved
in, or
responsible for, the administration and servicing of the Mortgage
Loans, whose
name appears on a list of servicing officers furnished to the
Trustee by the
Master Servicer, as such list may from time to time be amended.
"Single Certificate": A Certificate of any Class evidencing the
minimum
denomination for Certificates of such Class as set forth in Section
5.01.
"Special Hazard Amount": As of any Distribution Date, an amount
equal
to $___________ (the initial "Special Hazard Amount") minus the sum
of (i) the
aggregate amount of Special Hazard Losses allocated solely to the
Class B
Certificates pursuant to Section 4.04 and (ii) the Adjustment
Amount (as defined
below) as most recently calculated. For each anniversary of the
Cut-off Date,
the Adjustment Amount shall be calculated and shall be equal to the
amount, if
any, by which the amount calculated in accordance with the
preceding sentence
(without giving effect to the deduction of the Adjustment Amount
for such
anniversary) exceeds the greater of (A) the product of the Special
Hazard
Percentage for such anniversary multiplied by the outstanding
principal balance
of all of the Mortgage Loans on such anniversary and (B) twice the
outstanding
principal balance of the Mortgage Loan which has the largest
outstanding
principal balance on such Anniversary.
"Special Hazard Percentage": As of each anniversary of the
Cut-off
Date, the greater of (i) 1% and (ii) the largest percentage
obtained by dividing
the aggregate outstanding principal balance on such anniversary of
the Mortgage
Loans secured by Mortgaged Properties located in a single,
five-digit zip code
area in the State of California by the outstanding principal
balance of all the
Mortgage Loans on such anniversary.
"[Standard & Poor's": Standard & Poor's, a division of The
McGraw-Hill
Companies, Inc., or its successor in interest.]
"Startup Day": The day designated as such pursuant to Article X
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan
or
related REO Property at any given time, (i) the principal balance
of the
Mortgage Loan outstanding as of the Cut-off Date, after application
of principal
payments due on or before such date, whether or not received, minus
(ii) the sum
of (a) the principal portion of the Monthly Payments due with
respect to such
Mortgage Loan or REO Property during each Due Period ending prior
to the most
recent Distribution Date which were received or with respect to
which an Advance
was made, (b) all Principal Prepayments with respect to such
Mortgage Loan or
REO Property, and all Insurance Proceeds, Liquidation Proceeds and
net income
from a REO Property to the extent applied by the Master Servicer as
recoveries
of principal in accordance with Section 3.15 with respect to such
Mortgage Loan
or REO Property, which were distributed pursuant to Section 4.01 on
any previous
Distribution Date and (c) any Realized Loss with respect thereto
allocated
pursuant to Section 4.04 for any previous Distribution Date.
"Subordinate Principal Distribution Amount": With respect to
any
Distribution Date and the Class B Certificates, (a) the sum of (i)
the product
of (x) the Class B Percentage and (y) the aggregate of the amounts
calculated
for such Distribution Date under clauses (1), (2) and (3) of
Section 4. 01
(b)(ii)(A); (ii) the principal collections described in Section 4.
01 (b)(ii)(B)
to the extent such collections are not otherwise distributed to the
Senior
Certificates; and (iii) the product of (x) 100% minus the Senior
Accelerated
Distribution Percentage and (z) the aggregate of all Principal
Prepayments in
Full and Curtailments received in the related Prepayment Period;
provided,
however, that such amount shall in no event exceed the outstanding
Certificate
Principal Balance of the Class B Certificates immediately prior to
such date.
"Sub-Servicer": Any Person with which the Master Servicer has
entered
into a Sub-Servicing Agreement and which meets the qualifications
of a
Sub-Servicer pursuant to Section 3.02.
"Sub-Servicer Remittance Date": The 18th day of each month, or if
such
day is not a Business Day, the immediately preceding Business
Day.
"Sub-Servicing Account": An account established by a Sub-Servicer
which
meets the requirements set forth in Section 3.08 and is otherwise
acceptable to
the Master Servicer.
"Sub-Servicing Agreement": The written contract between the
Master
Servicer and a Sub-Servicer and any successor Sub-Servicer relating
to servicing
and administration of certain Mortgage Loans as provided in Section
3.02.
"Swap Provider": The swap provider under a swap agreement either
(a)
entitled to receive payments from an administrator from amounts
payable by the
Trust Fund under this Agreement or (b) required to make payments to
an
administrator for payment to the Trust Fund, in either case
pursuant to the
terms of a swap agreement, and any successor in interest or
assign.
"Tax Returns": The federal income tax return on Internal
Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit
Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual
Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms,
to be filed on behalf of the Trust Fund due to its classification
as a REMIC
under the REMIC Provisions, together with any and all other
information, reports
or returns that may be required to be furnished to the
Certificateholders or
filed with the Internal Revenue Service or any other governmental
taxing
authority under any applicable provisions of federal, state or
local tax laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation or other form of assignment of any Ownership Interest
in a
Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership
Interest in a Certificate.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder,
with respect to which a REMIC election is to be made, consisting
of: (i) the
Mortgage Loans (exclusive of payments of principal and interest due
on or before
the Cut-off Date, if any) as from time to time are subject to this
Agreement and
all payments under and proceeds of the Mortgage Loans, together
with all
documents included in the related Mortgage File, subject to Section
2.01; (ii)
such funds or assets as from time to time are deposited in the
Custodial Account
and the Certificate Account; (iii) any REO Property; (iv) the
Primary Mortgage
Insurance Policies, if any, Primary Hazard Insurance Policies and
all other
Insurance Policies with respect to the Mortgage Loans; and (v) the
Depositor's
interest in respect of the representations and warranties made by
the Seller in
the Seller's Warranty Certificate as assigned to the Trustee
pursuant to Section
2.04 hereof.
"Trustee": [Name of Trustee], or its successor in interest, or
any
successor trustee appointed as herein provided.
"Trustee's Fee": As to each Mortgage Loan and Distribution Date,
an
amount, payable out of any payment of interest on the Mortgage
Loan, equal to
interest at ______% per annum on the Stated Principal Balance of
such Mortgage
Loan as of the Due Date immediately preceding the month in which
such
Distribution Date occurs.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not
fully
reimbursable by the hazard insurance policies or flood insurance
policies
required to be maintained pursuant to Section 3.13.
"United States Person": A citizen or resident of the United States,
a
corporation, partnership or other entity created or organized in,
or under the
laws of, the United States or any political subdivision thereof, or
an estate or
trust whose income from sources without the United States is
includable in gross
income for United States federal income tax purposes regardless of
its
connection with the conduct of a trade or business within the
United States. The
term "United States" shall have the meaning set forth in Section
7701 of the
Code or successor provisions.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. ______% of all
of the Voting
Rights shall be allocated among Holders of the Certificates,
respectively, other
than the Class A-5, Class A-7 and Class R Certificates, in
proportion to the
outstanding Certificate Principal Balances of their respective
Certificates; and
the Holders of the Class A-5, Class A-7 and Class R Certificates
shall be
entitled to ___%, ___% and ___% of all of the Voting Rights,
respectively,
allocated among the Certificates of each such Class in accordance
with their
respective Percentage Interests. ARTICLE II
<PAGE>
CONVEYANCE OF MORTGAGE LOANS;
<PAGE>
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
The Depositor, as of the Closing Date, and concurrently with
the
execution and delivery hereof, does hereby assign, transfer, sell,
set over and
otherwise convey to the Trustee without recourse all the right,
title and
interest of the Depositor in and to the Mortgage Loans identified
on the
Mortgage Loan Schedule and all other assets included or to be
included in the
Trust Fund for the benefit of the Certificateholders. Such
assignment includes
all principal and interest received by the Master Servicer on or
with respect to
the Mortgage Loans (other than payment of principal and interest
due on or
before the Cut-off Date).
In connection with such transfer and assignment, the Depositor
has
requested the Seller to deliver to, and deposit with the Trustee,
the following
documents or instruments:
(i) the
original Mortgage Note, endorsed by the Seller "Pay to the order
of
[Name of Trustee], as trustee without recourse" or to "Pay to the
order
of [Name of Trustee], as trustee for holders of BNP Paribas
Mortgage
ABS LLC, Mortgage Pass-Through Certificates, Series 200_-_,
without
recourse" with all intervening endorsements showing a complete
chain of
endorsements from the originator to the Person endorsing it to
the
Trustee;
(ii)
the original recorded Mortgage or, if the original Mortgage has
not
been
returned from the applicable public recording office, a copy of
the Mortgage certified by the Seller to be a true and complete copy
of
the original Mortgage submitted to the title insurance company
for
recording;
(iii) a duly executed original
Assignment of the Mortgage endorsed by the
Seller, without recourse, to "[Name of Trustee], as trustee" or
to
"[Name of Trustee], as trustee for holders of BNP Paribas Mortgage
ABS
LLC, Mortgage Pass-Through Certificates, Series 200_-_", with
evidence
of recording thereon;
(iv)
the original recorded Assignment or Assignments of the Mortgage
showing
a complete chain of assignment from the originator thereof to
the
Person assigning it to the Trustee or, if any such Assignment has
not
been returned from the applicable public recording office, a copy
of
such Assignment certified by the Seller to be a true and complete
copy
of the original Assignment submitted to the title insurance company
for
recording;
(v) the
original lender's title insurance policy, or, if such policy
has
not been issued, any one of an original or a copy of the
preliminary
title report, title binder or title commitment on the Mortgaged
Property with the original policy of the insurance to be
delivered
promptly following the receipt thereof;
(vi)
the original of any assumption, modification, extension or
guaranty
agreement;
(vii) the
original or a copy of the private mortgage insurance policy or
original certificate of private mortgage insurance, if applicable;
and
(viii) if any of
the documents or instruments referred to above were executed
on behalf of the Mortgagor by another Person, the original power
of
attorney or other instrument that authorized and empowered such
Person
to sign, or a copy thereof certified by the Seller (or by an
officer of
the applicable title insurance or escrow company) to be a true
and
correct copy of the original.
The Seller is obligated pursuant to the Seller's Warranty
Certificate
to deliver to the Trustee: (a) either the original recorded
Mortgage, or in the
event such original cannot be delivered by the Seller, a copy of
such Mortgage
certified as true and complete by the appropriate recording office,
in those
instances where a copy thereof certified by the Seller was
delivered to the
Trustee pursuant to clause (ii) above; and (b) either the original
Assignment or
Assignments of the Mortgage, with evidence of recording thereon,
showing a
complete chain of assignment from the originator to the Seller, or
in the event
such original cannot be delivered by the Seller, a copy of such
Assignment or
Assignments certified as true and complete by the appropriate
recording office,
in those instances where copies thereof certified by the Seller
were delivered
to the Trustee pursuant to clause (iv) above. Notwithstanding
anything to the
contrary contained in this Section 2.01, in those instances where
the public
recording office retains the original Mortgage after it has been
recorded, the
Seller shall be deemed to have satisfied its obligations hereunder
upon delivery
to the Trustee of a copy of such Mortgage certified by the public
recording
office to be a true and complete copy of the recorded original
thereof.
If any Assignment is lost or returned unrecorded to the Trustee
because
of any defect therein, the Seller is required to prepare a
substitute Assignment
or cure such defect, as the case may be, and the Trustee shall
cause such
Assignment to be recorded in accordance with this paragraph.
The Seller is required, as described in the Seller's Warranty
Certificate, to deliver to the Trustee the original of any
documents assigned to
the Trustee pursuant to this Section 2.01 not later than 120 days
after the
Closing Date.
All original documents relating to the Mortgage Loans which are
not
delivered to the Trustee, to the extent delivered by the Seller to
the Master
Servicer, are and shall be held by the Master Servicer in trust for
the benefit
of the Trustee on behalf of the Certificateholders.
Except as may otherwise expressly be provided herein, neither
the
Depositor, the Master Servicer nor the Trustee shall (and the
Master Servicer
shall ensure that no Sub-Servicer shall) assign, sell, dispose of
or transfer
any interest in the Trust Fund or any portion thereof, or permit
the Trust Fund
or any portion thereof to be subject to any lien, claim, mortgage,
security
interest, pledge or other encumbrance of, any other Person.
It is intended that the conveyance of the Mortgage Loans by the
Depositor to the Trustee as provided in this Section be, and be
construed as, a
sale of the Mortgage Loans by the Depositor to the Trustee for the
benefit of
the Certificateholders. It is, further, not intended that such
conveyance be
deemed a pledge of the Mortgage Loans by the Depositor to the
Trustee to secure
a debt or other obligation of the Depositor. However, in the event
that the
Mortgage Loans are held to be property of the Depositor, or if for
any reason
this Agreement is held or deemed to create a security interest in
the Mortgage
Loans, then it is intended that, (a) this Agreement shall also be
deemed to be a
security agreement within the meaning of Articles 8 and 9 of the
New York
Uniform Commercial Code and the Uniform Commercial Code of any
other applicable
jurisdiction; (b) the conveyance provided for in this Section shall
be deemed to
be (1) a grant by the Depositor to the Trustee of a security
interest in all of
the Depositor's right (including the power to convey title
thereto), title and
interest, whether now owned or hereafter acquired, in and to (A)
the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related
insurance
policies and all other documents in the related Mortgage Files, (B)
all amounts
payable to the holders of the Mortgage Loans in accordance with the
terms
thereof and (C) all proceeds of the conversion, voluntary or
involuntary, of the
foregoing into cash, instruments, securities or other property,
including
without limitation all amounts from time to time held or invested
in the
Certificate Account or the Custodial Account, whether in the form
of cash,
instruments, securities or other property and (2) an assignment by
the Depositor
to the Trustee of any security interest in any and all of the
Seller's right
(including the power to convey title thereto), title and interest,
whether now
owned or hereafter acquired, in and to the property described in
the foregoing
clauses (1)(A) through (C) granted by [Name of Seller] to the
Depositor pursuant
to the Assignment Agreement; (c) the possession by the Trustee or
its agent of
Mortgage Notes and such other items of property as constitute
instruments,
money, negotiable documents or chattel paper shall be deemed to be
"possession
by the secured party" or possession by a purchaser or a person
designated by
such secured party, for purposes of perfecting the security
interest pursuant to
the New York Uniform Commercial Code and the Uniform Commercial
Code of any
other applicable jurisdiction (including, without limitation,
Sections 9-115,
9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d)
notifications to persons
holding such property, and acknowledgments, receipts or
confirmations from
persons holding such property, shall be deemed notifications to,
or
acknowledgments, receipts or confirmations from, financial
intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of
perfecting
such security interest under applicable law. The Depositor and the
Trustee
shall, to the extent consistent with this Agreement, take such
actions as may be
necessary to ensure that, if this Agreement were deemed to create a
security
interest in the Mortgage Loans, such security interest would be
deemed to be a
perfected security interest of first priority under applicable law
and will be
maintained as such throughout the term of the Agreement.
SECTION 2.02. Acceptance of the Trust Fund by the Trustee.
The Trustee acknowledges receipt (subject to any exceptions noted
in
the Initial Certification described below) of the documents
referred to in
Section 2.01 above and all other assets included in the Trust Fund
and declares
that it holds and will hold such documents and the other documents
delivered to
it constituting the Mortgage Files, and that it holds or will hold
such other
assets included in the Trust Fund (to the extent delivered or
assigned to the
Trustee), in trust for the exclusive use and benefit of all present
and future
Certificateholders.
The Trustee agrees, for the benefit of the Certificateholders,
to
review each Mortgage File on or before the Closing Date to
ascertain that all
documents required to be delivered to it are in its possession, and
the Trustee
agrees to execute and deliver to the Depositor and the Master
Servicer on the
Closing Date an Initial Certification in the form annexed hereto as
Exhibit C to
the effect that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan
specifically
identified in such certification as not covered by such
certification), (i) all
documents required to be delivered to it pursuant to this Agreement
with respect
to such Mortgage Loan are in its possession, (ii) such documents
have been
reviewed by it and appear regular on their face and relate to such
Mortgage Loan
and (iii) based on its examination and only as to the foregoing
documents, the
information set forth in items (i) - (vi) and (xiii) of the
definition of the
"Mortgage Loan Schedule" accurately reflects information set forth
in the
Mortgage File. Neither the Trustee nor the Master Servicer shall be
under any
duty to determine whether any Mortgage File should include any of
the documents
specified in clause (vi) of Section 2.01. Neither the Trustee nor
the Master
Servicer shall be under any duty or obligation to inspect, review
or examine
said documents, instruments, certificates or other papers to
determine that the
same are genuine, enforceable or appropriate for the represented
purpose or that
they have actually been recorded or that they are other than what
they purport
to be on their face.
Within 90 days of the Closing Date the Trustee shall deliver to
the
Depositor and the Master Servicer a Final Certification in the form
annexed
hereto as Exhibit D evidencing the completeness of the Mortgage
Files, with any
applicable exceptions noted thereon.
If in the process of reviewing the Mortgage Files and preparing
the
certifications referred to above the Trustee finds any document or
documents
constituting a part of a Mortgage File to be missing or defective
in any
material respect, the Trustee shall promptly notify the Seller, the
Master
Servicer and the Depositor. The Trustee shall promptly notify the
Seller of such
defect and request that the Seller cure any such defect within 60
days from the
date on which the Seller was notified of such defect, and if the
Seller does not
cure such defect in all material respects during such period,
request that the
Seller purchase such Mortgage Loan from the Trust Fund on behalf of
the
Certificateholders at the Purchase Price within 90 days after the
date on which
the Seller was notified of such defect. It is understood and agreed
that the
obligation of the Seller to cure a material defect in, or purchase
any Mortgage
Loan as to which a material defect in a constituent document exists
shall
constitute the sole remedy respecting such defect available to
Certificateholders or the Trustee on behalf of Certificateholders.
The Purchase
Price for the purchased Mortgage Loan shall be deposited or caused
to be
deposited upon receipt by the Master Servicer in the Custodial
Account and, upon
receipt by the Trustee of written notification of such deposit
signed by a
Servicing Officer, the Trustee shall release or cause to be
released to the
Seller the related Mortgage File and shall execute and deliver such
instruments
of transfer or assignment, in each case without recourse, as the
Seller shall
require as necessary to vest in the Seller ownership of any
Mortgage Loan
released pursuant hereto and at such time the Trustee shall have no
further
responsibility with respect to the related Mortgage File.
SECTION 2.03. Representations, Warranties and Covenants of the
Master
Servicer and the Depositor.
(a) The Master Servicer hereby represents and warrants to and
covenants
with the Depositor and the Trustee for the benefit of
Certificateholders that:
(i) The Master
Servicer is, and throughout the term hereof shall remain, a
duly organized, validly existing and in good standing under the
laws of
the State of (except as otherwise permitted pursuant to Section
6.02),
the Master Servicer is, and shall remain, in compliance with the
laws
of each state in which any Mortgaged Property is located to the
extent
necessary to perform its obligations under this Agreement, and
the
Master Servicer is, and shall remain, approved to sell mortgage
loans
to and service mortgage loans for Fannie Mae and Freddie Mac;
(ii)
The execution and delivery of this Agreement by the Master
Servicer,
and the performance and compliance with the terms of this Agreement
by
the Master Servicer, will not violate the Master Servicer's
articles of
incorporation or bylaws or constitute a default (or an event
which,
with notice or lapse of time, or both, would constitute a
default)
under, or result in the breach of, any material agreement or
other
instrument to which it is a party or which is applicable to it or
any
of
its assets;
(iii) The
Master Servicer has the full power and authority to enter into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement,
and has duly executed and delivered this Agreement;
(iv)
This Agreement, assuming due authorization, execution and delivery
by
the Depositor and the Trustee, constitutes a valid, legal and
binding
obligation of the Master Servicer, enforceable against the
Master
Servicer in accordance with the terms hereof, subject to (A)
applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws
affecting the enforcement of creditors' rights generally, and
(B)
general principles of equity, regardless of whether such
enforcement is
considered in a proceeding in equity or at law;
(v) The Master
Servicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with
the
terms of this Agreement will not constitute a violation of, any
law,
any order or decree of any court or arbiter, or any order,
regulation
or demand of any federal, state or local governmental or
regulatory
authority, which violation is likely to affect materially and
adversely
either the ability of the Master Servicer to perform its
obligations
under this Agreement or the financial condition of the Master
Servicer;
(vi)
No litigation is pending or, to the best of the Master
Servicer's
knowledge, threatened against the Master Servicer which would
prohibit
its entering into this Agreement or performing its obligations
under
this
Agreement or is likely to affect materially and adversely
either
the ability of the Master Servicer to perform its obligations
under
this Agreement or the financial condition of the Master
Servicer;
(vii) The
Master Servicer will comply in all material respects in the
performance of this Agreement and with all reasonable rules and
requirements of each insurer under each Insurance Policy; and
(viii) The
execution of this Agreement and the performance of the Master
Servicer's obligations hereunder do not require any license,
consent or
approval of any state or federal court, agency, regulatory
authority or
other governmental body having jurisdiction over the Master
Servicer,
other than such
as have been obtained; and (ix) no information,
certificate of an officer, statement furnished in writing or
report
delivered to the Depositor, any affiliate of the Depositor or
the
Trustee by the Master Servicer will, to the knowledge of the
Master
Servicer, contain any untrue statement of a material fact or omit
a
material fact necessary to make the information, certificate,
statement
or report not misleading.
It is understood and agreed that the representations, warranties
and
covenants set forth in this Section 2.03(a) shall survive the
execution and
delivery of this Agreement, and shall inure to the benefit of the
Depositor, the
Trustee and the Certificateholders. Upon discovery by the
Depositor, the Trustee
or the Master Servicer of a breach of any of the foregoing
representations,
warranties and covenants that materially and adversely affects the
interests of
the Depositor or the Trustee, the party discovering such breach
shall give
prompt written notice to the other parties.
(b) The Depositor hereby represents and warrants to the Master
Servicer
and the Trustee for the benefit of Certificateholders that as of
the Closing
Date (or, if otherwise specified below, as of the date so
specified):
(i)
Immediately prior to the assignment of the Mortgage Loans to
the
Trustee, the Depositor had good title to, and was the sole owner
of,
each Mortgage Loan free and clear of any pledge, lien, encumbrance
or
security interest (other than rights to servicing and related
compensation) and such assignment validly transfers ownership of
the
Mortgage Loans to the Trustee free and clear of any pledge,
lien,
encumbrance or security interest;
(ii)
No Mortgage Loan is one month or more delinquent in payment of
principal and interest as of the Cut-off Date and no Mortgage Loan
has
been so delinquent more than once in the 12-month period prior to
the
Cut-off Date;
(iii) The
information set forth in the Mortgage Loan Schedule with respect
to
each Mortgage Loan or the Mortgage Loans, as the case may be, is
true
and correct in all material respects at the date or dates
respecting
which such information is furnished;
(iv)
The Mortgage Loans are fully-amortizing, fixed-rate mortgage loans
with
level Monthly Payments due on the first day of each month and terms
to
maturity at origination or modification of not more than 30
years;
(v) Each
Mortgage Loan secured by a Mortgaged Property with a
Loan-to-Value
Ratio at origination in excess of 80% is the subject of a
Primary
Mortgage Insurance Policy that insures that portion of the
principal
balance thereof that exceeds the amount equal to 75% of the
appraised
value of the related Mortgaged Property. Each such Primary
Mortgage
Insurance Policy is in full force and effect and the Trustee is
entitled to the benefits thereunder; and
(vi)
The representations and warranties of the Seller with respect to
the
Mortgage Loans and the remedies therefor are as set forth in
the
Seller's Warranty Certificate.
[Other representations and warranties as applicable.]
It is understood and agreed that the representations and warranties
set
forth in this Section 2.03(b) shall survive delivery of the
respective Mortgage
Files to the Trustee.
Upon discovery by either the Depositor, the Master Servicer or
the
Trustee of a breach of any representation or warranty set forth in
this Section
2.03 which materially and adversely affects the interests of
the
Certificateholders in any Mortgage Loan, the party discovering such
breach shall
give prompt written notice to the other parties.
SECTION 2.04. Representations and Warranties of the Seller;
Repurchase
and Substitution.
The Depositor hereby assigns to the Trustee for the benefit of
Certificateholders its interest in respect of the representations
and warranties
made by the Seller in the Seller's Warranty Certificate or the
exhibits thereto.
Insofar as the Seller's Warranty Certificate relates to such
representations and
warranties and any remedies provided thereunder for any breach of
such
representations and warranties, such right, title and interest may
be enforced
by the Trustee on behalf of the Certificateholders. Upon the
discovery by the
Depositor, the Master Servicer or the Trustee of a breach of any of
the
representations and warranties made in the Seller's Warranty
Certificate in
respect of any Mortgage Loan which materially and adversely affects
the
interests of the Certificateholders in such Mortgage Loan, the
party discovering
such breach shall give prompt written notice to the other parties.
The Trustee
shall promptly notify the Seller of such breach and request that
such Seller
shall, within 90 days from the date that the Depositor, the Seller
or the
Trustee was notified of such breach, either (i) cure such breach in
all material
respects or (ii) purchase such Mortgage Loan from the Trust Fund at
the Purchase
Price and in the manner set forth in Section 2.02; provided that in
the case of
such breach, the Seller shall have the option to substitute a
Qualified
Substitute Mortgage Loan or Loans for such Mortgage Loan if such
substitution
occurs within two years following the Closing Date. Any such
substitution must
occur within 90 days from the date the Seller was notified of the
breach if such
90 day period expires before two years following the Closing Date.
In the event
that the Seller elects to substitute a Qualified Substitute
Mortgage Loan or
Loans for a Deleted Mortgage Loan pursuant to this Section 2.04,
the Seller
shall deliver to the Trustee for the benefit of the
Certificateholders with
respect to such Qualified Substitute Mortgage Loan or Loans, the
original
Mortgage Note, the Mortgage, an Assignment of the Mortgage in
recordable form,
and such other documents and agreements as are required by Section
2.01, with
the Mortgage Note endorsed as required by Section 2.01. No
substitution will be
made in any calendar month after the Determination Date for such
month. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in
the month of
substitution shall not be part of the Trust Fund and will be
retained by the
Master Servicer and remitted by the Master Servicer to the Seller
on the next
succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders
will
include the Monthly Payment due on a 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 Depositor shall amend or
cause to be
amended the Mortgage Loan Schedule for the benefit of the
Certificateholders to
reflect the removal of such Deleted Mortgage Loan and the
substitution of the
Qualified Substitute Mortgage Loan or Loans and the Depositor shall
deliver the
amended Mortgage Loan Schedule, to the Trustee. Upon such
substitution, the
Qualified Substitute Mortgage Loan or Loans shall be subject to the
terms of
this Agreement in all respects, the Seller shall be deemed to have
made the
representations and warranties with respect to the Qualified
Substitute Mortgage
Loan contained in the Seller's Warranty Certificate as of the date
of
substitution, and the Depositor shall be deemed to have made with
respect to any
Qualified Substitute Mortgage Loan or Loans, as of the date of
substitution, the
representations and warranties set forth in Section 2.03 hereof,
and the Seller
shall be obligated to repurchase or substitute for any Qualified
Substitute
Mortgage Loan as to which a repurchase or substitution obligation
has occurred
pursuant to Section 3 of the Seller's Warranty Certificate.
In connection with the substitution of one or more Qualified
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 Qualified Substitute Mortgage Loans as of the date of
substitution is less
than the aggregate Stated Principal Balance of all such Deleted
Mortgage Loans
(in each case after application of the principal portion of the
Monthly Payments
due in the month of substitution that are to be distributed to
Certificateholders in the month of substitution). The Seller shall
provide the
Master Servicer on the day of substitution for immediate deposit in
to the
Custodial Account the amount of such shortfall, without any
reimbursement
therefor. The Seller shall give notice in writing to the Trustee of
such event,
which notice shall be accompanied by an Officers' Certificate as to
the
calculation of such shortfall and by an Opinion of Counsel to the
effect that
such substitution will not cause (a) any federal tax to be imposed
on the Trust
Fund, including without limitation, any federal tax imposed on
"prohibited
transactions" under Section 860F(a)(1) of the Code or on
"contributions after
the startup date" under Section 860G(d)(1) of the Code or (b) any
portion of the
Trust Fund to fail to qualify as a REMIC at any time that any
Certificate is
outstanding. The costs of any substitution as described above,
including any
related assignments, opinions or other documentation in connection
therewith
shall be borne by the Seller.
Except as expressly set forth herein neither the Trustee nor the
Master
Servicer is under any obligation to discover any breach of the
above mentioned
representations and warranties. It is understood and agreed that
the obligation
of the Seller to cure such breach or to so purchase or substitute
for any
Mortgage Loan as to which such a breach has occurred and is
continuing shall
constitute the sole remedy respecting such breach available to
Certificateholders or the Trustee on behalf of Certificateholders.
In addition,
if the first scheduled Monthly Payment is due during the first
month after its
closing date (as such term is used in the Seller's Warranties
Certificate) and
such Monthly Payment is not received by the Master Servicer within
30 days of
the due date in accordance with the terms of the related Mortgage
Note, the
Master Servicer shall promptly notify the Seller and the Trustee
and the Seller
shall purchase such Mortgage Loan from the Trust Fund at the
Purchase Price or
substitute a Qualified Substitute Mortgage Loan therefor within 15
days from the
date that the Seller was notified.
SECTION 2.05. Issuance of Certificates Evidencing Interests in
the
Trust Fund.
The Trustee acknowledges the assignment to it of the Mortgage Loans
and
the delivery of the Mortgage Files to it together with the
assignment to it of
all other assets included in the Trust Fund, receipt of which is
hereby
acknowledged. Concurrently with such delivery and in exchange
therefor, the
Trustee, pursuant to the written request of the Depositor executed
by an officer
of the Depositor, has executed and caused to be authenticated, and
delivered to
or upon the order of the Depositor, the Certificates in authorized
denominations
which evidence ownership of the entire Trust Fund.
SECTION 2.06. Purposes and Powers of the Trust.
The purpose of the common law trust, as created hereunder, is to
engage
in the following activities:
(a) acquire and hold the Mortgage Loans and the other assets of
the
Trust Fund and the proceeds therefrom;
(b) to issue the Certificates sold to the Depositor in exchange for
the
Mortgage Loans;
(c) to make payments on the Certificates;
(d) to engage in those activities that are necessary, suitable
or
convenient to accomplish the foregoing or are incidental thereto or
connected
therewith; and
(e) subject to compliance with this Agreement, to engage in such
other
activities as may be required in connection with conservation of
the Trust Fund
and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing
activities.
The Trustee shall not cause the trust to engage in any activity
other than in
connection with the foregoing or other than as required or
authorized by the
terms of this Agreement while any Certificate is outstanding, and
this Section
2.06 may not be amended, without the consent of the
Certificateholders
evidencing 51% or more of the aggregate Voting Rights of the
Certificates.
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Master Servicer to Act as Master Servicer.
The Master Servicer shall service and administer the Mortgage Loans
for
the benefit of the Certificateholders, in accordance with this
Agreement and the
customary and usual standards of practice of prudent institutional
mortgage
lenders servicing comparable mortgage loans for their own account
in the
respective states in which the Mortgaged Properties are located.
Subject to the
foregoing, the Master Servicer shall have full power and authority,
acting alone
and/or through Sub-Servicers as provided in Section 3.02, to do or
cause to be
done any and all things in connection with such servicing and
administration
that it may deem necessary or desirable. Without limiting the
generality of the
foregoing, the Master Servicer in its own name or in the name of a
Sub-Servicer
is hereby authorized and empowered by the Trustee when the Master
Servicer
believes it appropriate in its best judgment, to (i) execute and
deliver, on
behalf of the Certificateholders 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 the Mortgaged Properties, (ii) institute foreclosure
proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership
of such
properties, and (iii) hold or cause to be held title to such
properties, on
behalf of the Trustee and Certificateholders. The Master Servicer
shall service
and administer the Mortgage Loans in accordance with applicable
state and
federal law and shall provide to the Mortgagors any reports
required to be
provided to them thereby. Subject to Section 3.16, the Trustee
shall furnish to
the Master Servicer and any Sub-Servicer any powers of attorney and
other
documents necessary or appropriate to enable the Master Servicer
and any Sub-
Servicer to carry out their servicing and administrative duties
hereunder. The
Trustee shall not be responsible for any action taken by the Master
Servicer or
any Sub-Servicer pursuant to the application of such powers of
attorney. In
accordance with the standards of the preceding paragraph, the
Master Servicer
shall advance or cause to be advanced funds as necessary for the
purpose of
effecting the payment of taxes and assessments on the Mortgaged
Properties,
which advances shall be reimbursable in the first instance from
related
collections from the Mortgagors pursuant to Section 3.09, and
further as
provided in Section 3.11. No costs incurred by the Master Servicer
or by Sub-
Servicers in effecting the payment of taxes and assessments on the
Mortgaged
Properties shall, for the purpose of calculating distributions
to
Certificateholders, be added to the amount owing under the related
Mortgage
Loans, notwithstanding that the terms of such Mortgage Loans so
permit.
The Master Servicer shall not (unless the Mortgagor is in default
with
respect to the Mortgage Loan or such default is, in the judgment of
the Master
Servicer, reasonably foreseeable) make or permit any modification,
waiver or
amendment of any term of any Mortgage Loan that would both (i)
effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of
the Code (or
final, temporary or proposed Treasury regulations promulgated
thereunder) and
(ii) cause the Trust Fund to fail to qualify as a REMIC under the
Code or the
imposition of any tax on "prohibited transactions" or
"contributions" after the
startup date under the REMIC Provisions.
The Master Servicer may approve a request for a partial release of
the
Mortgaged Property, easement, consent to alteration or demolition
and other
similar matters if it has determined, exercising its good faith
business
judgement in the same manner as it would if it were the owner of
the related
Mortgage Loan, that such approval will not adversely affect the
security for, or
the timely and full collectability of, the related Mortgage Loan.
Any fee
collected by the Master Servicer for processing such request will
be retained by
the Master Servicer as additional servicing compensation.
The relationship of the Master Servicer (and of any successor to
the
Master 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.
SECTION 3.02. Sub-Servicing Agreements Between Master Servicer and
Sub-
Servicers.
(a) The Master Servicer may enter into Sub-Servicing Agreements
with
Sub- Servicers for the servicing and administration of the Mortgage
Loans and
for the performance of any and all other activities of the Master
Servicer
hereunder. Each Sub-Servicer shall be either (i) an institution the
accounts of
which are insured by the FDIC or (ii) another entity that engages
in the
business of originating or servicing mortgage loans, and in either
case shall be
authorized to transact business in the state or states in which the
related
Mortgaged Properties it is to service are situated, if and to the
extent
required by applicable law to enable the Sub-Servicer to perform
its obligations
hereunder and under the Sub-Servicing Agreement, and in either case
shall be a
Freddie Mac or Fannie Mae approved mortgage servicer. Each
Sub-Servicing
Agreement must impose on the Sub-Servicer requirements conforming
to the
provisions set forth in Section 3.08 and provide for servicing of
the Mortgage
Loans consistent with the terms of this Agreement. With the consent
of the
Trustee, which consent shall not be unreasonably withheld, the
Master Servicer
and the Sub-Servicers may enter into Sub-Servicing Agreements and
make
amendments to the Sub-Servicing Agreements or enter into different
forms of
Sub-Servicing Agreements; provided, however, that any such
amendments or
different forms shall be consistent with and not violate the
provisions of this
Agreement.
(b) As part of its servicing activities hereunder, the Master
Servicer,
for the benefit of the Trustee and the Certificateholders, shall
enforce the
obligations of each Sub-Servicer under the related Sub-Servicing
Agreement,
including, without limitation, any obligation to make advances in
respect of
delinquent payments as required by a Sub-Servicing Agreement, or to
purchase a
Mortgage Loan on account of defective documentation or on account
of a breach of
a representation or warranty, as described in Section 2.02. Such
enforcement,
including, without limitation, the legal prosecution of claims,
termination of
Sub-Servicing Agreements and the pursuit of other appropriate
remedies, shall be
in such form and carried out to such an extent and at such time as
the Master
Servicer, in its good faith business judgment, would require were
it the owner
of the related Mortgage Loans. The Master Servicer shall pay the
costs of such
enforcement at its own expense, but shall be reimbursed therefor
only (i) from a
general recovery resulting from such enforcement only to the
extent, if any,
that such recovery exceeds all amounts due in respect of the
related Mortgage
Loans or (ii) from a specific recovery of costs, expenses or
attorneys' fees
against the party against whom such enforcement is directed.
SECTION 3.03. Successor Sub-Servicers.
The Master
Servicer shall be entitled to terminate any Sub-Servicing
Agreement and the rights and obligations of any Sub-Servicer
pursuant to any
Sub-Servicing Agreement in accordance with the terms and conditions
of such
Sub-Servicing Agreement. In the event of termination of any
Sub-Servicer, all
servicing obligations of such Sub-Servicer shall be assumed
simultaneously by
the Master Servicer without any act or deed on the part of such
Sub-Servicer or
the Master Servicer, and the Master Servicer either shall service
directly the
related Mortgage Loans or shall enter into a Sub-Servicing
Agreement with a
successor Sub-Servicer which qualifies under Section 3.02.
SECTION 3.04. Liability of the Master Servicer.
Notwithstanding any Sub-Servicing Agreement, any of the provisions
of
this Agreement relating to agreements or arrangements between the
Master
Servicer and a Sub-Servicer or reference to actions taken through a
Sub-Servicer
or otherwise, the Master Servicer shall remain obligated and
primarily liable to
the Trustee and Certificateholders for the servicing and
administering of the
Mortgage Loans in accordance with the provisions of Section 3.01
without
diminution of such obligation or liability by virtue of such
Sub-Servicing
Agreements or arrangements or by virtue of indemnification from the
Sub-Servicer
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.
For purposes
of this Agreement, the Master Servicer shall be deemed to have
received payments
on Mortgage Loans when the Sub-Servicer has received such payments.
The Master
Servicer shall be entitled to enter into any agreement with a
Sub-Servicer for
indemnification of the Master Servicer by such Sub-Servicer and
nothing
contained in this Agreement shall be deemed to limit or modify
such
indemnification.
SECTION 3.05. No Contractual Relationship Between Sub-Servicers
and
Trustee or Certificateholders.
Any
Sub-Servicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a
Sub-Servicer
in its capacity as such and not as an originator shall be deemed to
be between
the Sub-Servicer and the Master Servicer alone, and the Trustee
and
Certificateholders shall not be deemed parties thereto and shall
have no claims,
rights, obligations, duties or liabilities with respect to the
Sub-Servicer
except as set forth in Section 3.06.
SECTION 3.06. Assumption or Termination of Sub-Servicing Agreements
by
Trustee.
In the event the Master Servicer shall for any reason no longer be
the
master servicer (including by reason of an Event of Default), the
Trustee or its
designee shall thereupon assume all of the rights and obligations
of the Master
Servicer under each Sub-Servicing Agreement that the Master
Servicer may have
entered into, unless the Trustee is then permitted and elects to
terminate any
Sub-Servicing Agreement in accordance with its terms. The Trustee,
its designee
or the successor servicer for the Trustee shall be deemed to have
assumed all of
the Master Servicer's interest therein and to have replaced the
Master Servicer
as a party to each Sub-Servicing Agreement to the same extent as if
the
Sub-Servicing Agreements had been assigned to the assuming party,
except that
the Master Servicer shall not thereby be relieved of any liability
or
obligations under the Sub-Servicing Agreements, and the Master
Servicer shall
continue to be entitled to any rights or benefits which arose prior
to its
termination as master servicer.
The Master Servicer at its expense shall, upon request of the
Trustee,
deliver to the assuming party all documents and records relating to
each
Sub-Servicing Agreement and the Mortgage Loans then being serviced
and an
accounting of amounts collected and held by it and otherwise use
its best
efforts to effect the orderly and efficient transfer of the
Sub-Servicing
Agreements to the assuming party.
SECTION 3.07. Collection of Certain Mortgage Loan Payments.
The Master Servicer shall make reasonable efforts to collect
all
payments called for under the terms and provisions of the Mortgage
Loans, and
shall, to the extent such procedures shall be consistent with this
Agreement and
the terms and provisions of any related Insurance Policy, follow
such collection
procedures as it would follow with respect to mortgage loans
comparable to the
Mortgage Loans and held for its own account. 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, Primary Hazard
Insurance
Policy, Primary Mortgage Insurance Policy or otherwise or against
any public or
governmental authority with respect to a taking or condemnation) if
it
reasonably believes that it is prohibited by applicable law from
enforcing the
provision of the Mortgage or other instrument pursuant to which
such payment is
required. Consistent with the foregoing, the Master Servicer may in
its
discretion waive any prepayment fees, late payment charge or other
charge,
except as otherwise required under applicable law. The Master
Servicer shall be
responsible for preparing and distributing all information
statements relating
to payments on the Mortgage Loans, in accordance with all
applicable federal and
state tax laws and regulations.
SECTION 3.08. Sub-Servicing Accounts.
In those cases where a Sub-Servicer is servicing a Mortgage
Loan
pursuant to a Sub-Servicing Agreement, the Sub-Servicer will be
required to
establish and maintain one or more accounts (collectively, the
"Sub-Servicing
Account"). The Sub-Servicing Account shall be an Eligible Account
and shall
otherwise be acceptable to the Master Servicer. All amounts held in
a
Sub-Servicing Account shall be held in trust for the Trustee for
the benefit of
the Certificateholders. The Sub-Servicer will be required to
deposit into the
Sub-Servicing Account no later than the first Business Day after
receipt all
proceeds of Mortgage Loans received by the Sub-Servicer, less its
servicing
compensation and any unreimbursed expenses and advances, to the
extent permitted
by the Sub-Servicing Agreement. On each Sub-Servicer Remittance
Date the
Sub-Servicer will be required to remit to the Master Servicer for
deposit into
the Custodial Account all funds held in the Sub-Servicing Account
with respect
to any Mortgage Loan as of the Sub-Servicer Remittance Date, after
deducting
from such remittance an amount equal to the servicing compensation
and
unreimbursed expenses and advances to which it is then entitled
pursuant to the
related Sub- Servicing Agreement, to the extent not previously paid
to or
retained by it. In addition, on each Sub-Servicer Remittance Date
the
Sub-Servicer will be required to remit to the Master Servicer any
amounts
required to be advanced pursuant to the related Sub-Servicing
Agreement. The
Sub-Servicer will also be required to remit to the Master Servicer,
within one
Business Day of receipt, the proceeds of any Principal Prepayment
made by the
Mortgagor and any Insurance Proceeds or Liquidation Proceeds.
SECTION 3.09. Collection of Taxes, Assessments and Similar
Items;
Servicing Accounts.
The Master Servicer and the Sub-Servicers shall establish and
maintain
one or more accounts (the "Servicing Accounts"), and shall deposit
and retain
therein all collections from the Mortgagors (or related advances
from Sub-
Servicers) for the payment of taxes, assessments, Primary Hazard
Insurance
Policy premiums, and comparable items for the account of the
Mortgagors, to the
extent that the Master Servicer customarily escrows for such
amounts.
Withdrawals of amounts so collected from a Servicing Account may be
made only to
(i) effect payment of taxes, assessments, Primary Hazard Insurance
Policy
premiums and comparable items; (ii) reimburse the Master Servicer
(or a
Sub-Servicer to the extent provided in the related Sub-Servicing
Agreement) out
of related collections for any payments made pursuant to Sections
3.01 (with
respect to taxes and assessments) and 3.13 (with respect to Primary
Hazard
Insurance Policies); (iii) refund to Mortgagors any sums as may be
determined to
be overages; or (iv) clear and terminate the Servicing Account at
the
termination of this Agreement pursuant to Section 9.01. As part of
its servicing
duties, the Master Servicer or Sub-Servicers shall, if and to the
extent
required by law, pay to the Mortgagors interest on funds in
Servicing Accounts
from its or their own funds, without any reimbursement
therefor.
SECTION 3.10. Custodial Account.
(a) The Master
Servicer shall establish and maintain one or more accounts
(collectively, the "Custodial Account") in which the Master
Servicer
shall deposit or cause to be deposited no later than the first
Business
Day after receipt or as and when received from the Sub-Servicers,
the
following payments and collections received or made by or on behalf
of
it subsequent to the Cut-off Date, or received by it prior to
the
Cut-off Date but allocable to a period subsequent thereto (other
than
in respect of principal and interest on the Mortgage Loans due on
or
before the Cut-off Date):
(i) all
payments on account of principal, including Principal
Prepayments,
on the Mortgage Loans;
(ii)
all payments on account of interest on the Mortgage Loans, not
including any portion thereof representing interest on account of
the
related Servicing Fee Rate;
(iii) all
Insurance Proceeds, other than proceeds that represent
reimbursement of costs and expenses incurred by the Master Servicer
in
connection with presenting claims under the related Insurance
Policies,
Liquidation Proceeds and REO Proceeds;
(iv)
all proceeds of any Mortgage Loan or REO Property repurchased
or
purchased in accordance with Sections 2.02, 2.04 or 9.01 and
all
amounts required to be deposited in connection with the
substitution of
a Qualified Substitute Mortgage Loan pursuant to Section 2.04;
(v) any
amounts required to be deposited in the Custodial Account
pursuant
to Section 3.12, 3.13 or 3.22; and
(vi)
all amounts transferred from the Certificate Account to the
Custodial
Account in accordance with Sections 4.01(b).
For purposes of the immediately preceding sentence, the Cut-off
Date
with respect to any Qualified Substitute Mortgage Loan shall be
deemed to be the
date of substitution.
The foregoing requirements for deposit in the Custodial Account
shall
be exclusive. In the event the Master Servicer shall deposit in the
Custodial
Account any amount not required to be deposited therein, it may
withdraw such
amount from the Custodial Account, any provision herein to the
contrary
notwithstanding. The Custodial Account shall be maintained as a
segregated
account, separate and apart from trust funds created for mortgage
pass-through
certificates of other series, and the other accounts of the Master
Servicer.
(b) Funds in the Custodial Account may be invested in Permitted
Instruments in accordance with the provisions set forth in Section
3.12. The
Master Servicer shall give notice to the Trustee and the Depositor
of the
location of the Custodial Account after any change thereof.
(c) Payments in the nature of late payment charges, prepayment
fees,
assumption fees and reconveyance fees received on the Mortgage
Loans shall not
be deposited in the Custodial Account, but rather shall be received
and held by
the Master Servicer as additional servicing compensation.
SECTION 3.11. Permitted Withdrawals From the Custodial Account.
The Master
Servicer may, from time to time as provided herein, make
withdrawals from the Custodial Account of amounts on deposit
therein pursuant to
Section 3.10 that are attributable to the Mortgage Loans for the
following
purposes:
(i) to make
deposits into the Certificate Account in the amounts and in the
manner provided for in Section 4.01, such deposit to include
interest
collections on the Mortgage Loans at the Net Mortgage Rate [and net
of
amounts reimbursed therefrom];
(ii)
to pay to itself, the Depositor, the Seller or any other
appropriate
person, as the case may be, with respect to each Mortgage Loan that
has
previously been purchased, repurchased or replaced pursuant to
Sections
2.02, 2.04 or
9.01 all amounts received thereon and not yet distributed
as of the date of purchase, repurchase or substitution;
(iii) to
reimburse itself or any Sub-Servicer for Advances not
previously
reimbursed, the Master Servicer's or any Sub-Servicer's right
to
reimbursement pursuant to this clause (iii) being limited to
amounts
received which represent Late Collections (net of the related
Servicing
Fees) of Monthly Payments on Mortgage Loans with respect to which
such
Advances were made and as further provided in Section 3.15;
(iv)
to reimburse or pay itself, the Trustee or the Depositor for
expenses
incurred by or reimbursable to the Master Servicer, the Trustee or
the
Depositor pursuant to Sections 3.22, 6.03, 8.05, 10.01(c) or
10.01(g),
except as otherwise provided in such Sections;
(v) to
reimburse itself or any Sub-Servicer for costs and expenses
incurred
by or reimbursable to it relating to the prosecution of any
claims
pursuant to Section 3.13 that are in excess of the amounts so
recovered;
(vi)
to reimburse itself or any Sub-Servicer for unpaid Servicing Fees
and
unreimbursed Servicing Advances, the Master Servicer's or any
Sub-Servicer's right to reimbursement pursuant to this clause (vi)
with
respect to any Mortgage Loan being limited to late recoveries of
the
payments for which such advances were made pursuant to Section 3.01
or
Section 3.09 and any other related Late Collections;
(vii) to
pay itself as servicing compensation (in addition to the
Servicing
Fee), on or after each Distribution Date, any interest or
investment
income earned on funds deposited in the Custodial Account for
the
period ending on such Distribution Date, subject to Section
8.05;
(viii) to
reimburse itself or any Sub-Servicer for any Advance previously
made
which itself has determined to be a Nonrecoverable Advance,
provided
that either (a) such Advance was made with respect to a
delinquency
that ultimately constituted an Excess Special Hazard Loss, Excess
Fraud
Loss, Excess Bankruptcy Loss or Extraordinary Loss, or (b) the
Certificate Principal Balances of the Class B Certificates have
been
reduced to zero; and
(ix)
to clear and terminate the Custodial Account at the termination of
this
Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records
on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any
withdrawal from the Custodial Account pursuant to such clauses
(ii), (iii),
(iv), (v), (vi), (vii) and (viii). Reconciliations will be prepared
by the
Master Servicer for the related Collection Account within 30
calendar days after
the bank statement cut-off date. All items requiring reconciliation
will be
resolved within 90 calendar days of their original
identification.
In connection with
clause (viii) above, the Trustee shall notify the
Master Servicer if and when the Certificate Principal Balances of
the Class B
Certificates have been reduced to zero.
SECTION 3.12. Permitted Instruments.
Any institution maintaining the Custodial Account shall at the
direction of the Master Servicer invest the funds in such account
in Permitted
Instruments, each of which shall mature not later than the Business
Day
immediately preceding the Distribution Date next following the date
of such
investment (except that if such Permitted Instrument is an
obligation of the
institution that maintains such account, then such Permitted
Instrument shall
mature not later than such Distribution Date) and shall not be sold
or disposed
of prior to its maturity. All income and gain realized from any
such investment
as well as any interest earned on deposits in the Custodial Account
shall be for
the benefit of the Master Servicer. The Master Servicer shall
deposit in the
Custodial Account (with respect to investments made hereunder of
funds held
therein) an amount equal to the amount of any loss incurred in
respect of any
such investment immediately upon realization of such loss without
right of
reimbursement.
SECTION 3.13. Maintenance of Primary Mortgage Insurance and
Primary
Hazard Insurance.
(a) The Master Servicer shall not take, or permit any Sub-Servicer
to
take, any action which would result in non-coverage under any
applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of
the Master
Servicer or Sub-Servicer, would have been covered thereunder. To
the extent
coverage is available, the Master Servicer shall keep or cause to
be kept in
full force and effect each such Primary Mortgage Insurance Policy
until the
principal balance of the related Mortgage Loan secured by a
Mortgaged Property
is reduced to 75% or less of the Collateral Value in the case of
such a Mortgage
Loan having a Loan-to-Value Ratio at origination in excess of 80%.
The Master
Servicer shall not cancel or refuse to renew any such Primary
Mortgage Insurance
Policy, or consent to any Sub-Servicer canceling or refusing to
renew any such
Primary Mortgage Insurance Policy applicable to a Mortgage Loan
subserviced by
it, that is in effect at the date of the initial issuance of the
Certificates
and is required to be kept in force hereunder unless the
replacement Primary
Mortgage Insurance Policy for such canceled or non-renewed policy
is maintained
with a Qualified Insurer.
(b) In connection with its activities as administrator and servicer
of
the Mortgage Loans, the Master Servicer agrees to present or to
cause the
related Sub-Servicer to present, on behalf of the Master Servicer,
the
Sub-Servicer, if any, the Trustee and Certificateholders, claims to
the insurer
under any Primary Mortgage Insurance Policies, in a timely manner
in accordance
with such policies, and, in this regard, to take or cause to be
taken such
reasonable action as shall be necessary to permit recovery under
any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans.
Pursuant to
Section 3. 10, any Insurance Proceeds collected by or remitted to
the Master
Servicer under any Primary Mortgage Insurance Policies shall be
deposited in the
Custodial Account, subject to withdrawal pursuant to Section
3.11.
(c) The Master Servicer shall cause to be maintained for each
Mortgage
Loan primary hazard insurance with extended coverage on the related
Mortgaged
Property in an amount equal to the lesser of 100% of the
replacement value of
the improvements, as determined by the insurance company, on such
Mortgaged
Property or the unpaid principal balance of the Mortgage Loan. The
Master
Servicer shall also cause to be maintained on property acquired
upon
foreclosure, or deed in lieu of foreclosure, of any Mortgage Loan,
fire
insurance with extended coverage in an amount equal to the
replacement value of
the improvements thereon. Pursuant to Section 3.10, any amounts
collected by the
Master Servicer under any such policies (other than amounts to be
applied to the
restoration or repair of the related Mortgaged Property or property
thus
acquired or amounts released to the Mortgagor in accordance with
the Master
Servicer's normal servicing procedures) shall be deposited in the
Custodial
Account, subject to withdrawal pursuant to Section 3.11. Any cost
incurred by
the Master Servicer in maintaining any such insurance shall not,
for the purpose
of calculating monthly distributions to Certificateholders, be
added to the
amount owing under the Mortgage Loan, notwithstanding that the
terms of the
Mortgage Loan so permit. 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 Loan other than pursuant
to such
applicable laws and regulations as shall at any time be in force
and as shall
require such additional insurance. When the improvements securing a
Mortgage
Loan are located at the time of origination of such Mortgage Loan
in a federally
designated special flood hazard area, the Master Servicer shall
cause flood
insurance (to the extent available) to be maintained in respect
thereof. Such
flood insurance shall be in an amount equal to the lesser of (i)
the replacement
value of the improvements, which are part of such Mortgaged
Property on a
replacement cost basis and (ii) the maximum amount of such
insurance available
for the related Mortgaged Property under the national flood
insurance program
(assuming that the area in which such Mortgaged Property is located
is
participating in such program).
In the event that the Master Servicer shall obtain and maintain
a
blanket fire insurance policy with extended coverage 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 two sentences
of this
Section 3.13, it being understood and agreed that such policy may
contain a
deductible clause, in which case 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 two sentences of this Section 3.13 and
there shall have
been a loss which would have been covered by such policy, deposit
in the
Certificate Account the amount not otherwise payable under the
blanket policy
because of such deductible clause. Any such deposit by the Master
Servicer shall
be made on the Certificate Account Deposit Date next preceding the
Distribution
Date which occurs in the month following the month in which
payments under any
such policy would have been deposited in the Custodial Account. In
connection
with its activities as administrator and servicer of the Mortgage
Loans, the
Master Servicer agrees to present, on behalf of itself, the Trustee
and
Certificateholders, claims under any such blanket policy.
SECTION 3.14. Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
The Master
Servicer will, to the extent it has knowledge of any
conveyance or prospective conveyance by any Mortgagor of the
Mortgaged Property
(whether by absolute conveyance or by contract of sale, and whether
or not the
Mortgagor remains or is to remain liable under the Mortgage Note or
the
Mortgage), exercise or cause to be exercised its rights to
accelerate the
maturity of such Mortgage Loan under any "due-on-sale" clause
applicable
thereto; provided, however, that the Master Servicer shall not
exercise any such
rights if it reasonably believes that it is prohibited by law from
doing so or
if such enforcement will adversely affect or jeopardize required
coverage under
the Insurance Policies. If the Master Servicer is unable to enforce
such "due-
on-sale" clause (as provided in the previous sentence) or if no
"due-on-sale"
clause is applicable, the Master Servicer or the Sub-Servicer will
enter into an
assumption and modification agreement with the Person to whom such
property has
been conveyed or is proposed to be conveyed, pursuant to which such
Person
becomes liable under the Mortgage Note and, to the extent permitted
by
applicable state law, the Mortgagor remains liable thereon;
provided, however,
that the Master Servicer shall not enter into any assumption and
modification
agreement if the coverage provided under the Primary Insurance
Policy, if any,
would be impaired by doing so. The Master Servicer is also
authorized 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 the Mortgagor and becomes liable under the Mortgage Note, if the
Master
Servicer shall have determined in good faith that such substitution
will not
adversely affect the collectability of the Mortgage Loan. Any fee
collected by
or on behalf of the Master Servicer for entering into an assumption
or
substitution of liability agreement will be retained by or on
behalf of the
Master Servicer as additional servicing compensation. In connection
with any
such assumption, no material term of the Mortgage Note (including
but not
limited to the Mortgage Rate, the amount of the Monthly Payment and
any other
term affecting the amount or timing of payment on the Mortgage
Loan) may be
changed. The Master Servicer shall not enter into any substitution
or assumption
if such substitution or assumption would constitute a "significant
modification"
effecting an exchange or reissuance of such Mortgage Loan under the
Code (or
final, temporary or proposed Treasury regulations promulgated
thereunder) and
cause the Trust Fund to fail to qualify as a REMIC under the Code
or the
imposition of any tax on "prohibited transactions" or
"contributions" after the
Startup Day under the REMIC Provisions. The Master Servicer shall
notify the
Trustee that any such substitution or assumption agreement has been
completed by
forwarding to the Trustee the original copy of such substitution or
assumption
agreement, which copy 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.
Notwithstanding the foregoing paragraph or any other provision of
this
Agreement, the Master Servicer shall not be deemed to be in
default, breach or
any other violation of its obligations hereunder by reason of any
assumption of
a Mortgage Loan by operation of law or any assumption that the
Master Servicer
may be restricted by law from preventing, for any reason
whatsoever. For
purposes of this Section 3.14, the term "assumption" is deemed to
also include a
sale of a Mortgaged Property that is not accompanied by an
assumption or
substitution of liability agreement.
SECTION 3.15. Realization Upon Defaulted Mortgage Loans.
The Master Servicer shall exercise reasonable efforts, consistent
with
the procedures that the Master Servicer would use in servicing
loans for its own
account, to foreclose upon or otherwise comparably convert (which
may include an
REO Acquisition) 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
pursuant to
Section 3.07, and which are not released from the Trust Fund
pursuant to any
other provision hereof. The Master Servicer shall use reasonable
efforts to
realize upon such defaulted Mortgage Loans in such manner as will
maximize the
receipt of principal and interest by Certificateholders, taking
into account,
among other things, the timing of foreclosure proceedings. The
foregoing is
subject to the provisions that, in any case in which Mortgaged
Property shall
have suffered damage from an Uninsured Cause, the Master Servicer
shall not be
required to expend its own funds toward the restoration of such
property unless
it shall determine in (i) that such restoration will increase the
net proceeds
of liquidation of the related Mortgage Loan to Certificateholders
after
reimbursement to itself for such expenses, and (ii) that such
expenses will be
recoverable by the Master Servicer through Insurance Proceeds or
Liquidation
Proceeds from the related Mortgaged Property, as contemplated in
Section 3.11.
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 related Mortgaged
Property, as
contemplated in Section 3.11.
The proceeds of any Cash Liquidation or REO Disposition, as well as
any
recovery resulting from a partial collection of Insurance Proceeds
or
Liquidation Proceeds or any income from an REO Property, will be
applied in the
following order of priority: first, to reimburse the Master
Servicer or any Sub-
Servicer for any related unreimbursed Servicing Advances, pursuant
to Section
3.11 (vi) or 3.22; second, to accrued and unpaid interest on the
Mortgage Loan
or REO Imputed Interest, at the Mortgage Rate, to the date of the
Cash
Liquidation or REO Disposition, or to the Due Date prior to the
Distribution
Date on which such amounts are to be distributed if not in
connection with a
Cash Liquidation or REO Disposition; and third, as a recovery of
principal of
the Mortgage Loan. If the amount of the recovery so allocated to
interest is
less than a full recovery thereof, that amount will be allocated as
follows:
first, on a pro rata basis, to unpaid Servicing Fees; and second,
to interest at
the related Net Mortgage Rate. The portion of the recovery so
allocated to
unpaid Servicing Fees shall be reimbursed to the Master Servicer or
any
Sub-Servicer pursuant to Section 3.11(vi). The portions of the
recovery so
allocated to interest at the related Net Mortgage Rate and to
principal of the
Mortgage Loan shall be applied as follows: first, to reimburse the
Trustee for
any unpaid Trustee's Fees, second, to reimburse the Master Servicer
or any
Sub-Servicer for any related unreimbursed Advances in accordance
with Section 3.
1 31 (iii) or 3.22, and third, for distribution in accordance with
the
provisions of Section 4.01(b) and 4.01(c).
SECTION 3.16. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
the
Master Servicer of a notification that payment in full shall be
escrowed in a
manner customary for such purposes, the Master Servicer will
immediately notify
the Trustee by a certification (which certification shall include a
statement to
the effect that all amounts received or to be received in
connection with such
payment which are required to be deposited in the Custodial Account
pursuant to
Section 3.10 have been or will be so deposited) of a Servicing
Officer and shall
request delivery to it of the Mortgage File in the form of the
Request for
Release attached hereto as Exhibit F-2. Upon receipt of such
certification and
request, the Trustee shall promptly release the related Mortgage
File to the
Master Servicer. Subject to the receipt by the Master Servicer of
the proceeds
of such payment in full and the payment of all related fees and
expenses, the
Master Servicer shall arrange for the release to the Mortgagor of
the original
cancelled Mortgage Note. The Master Servicer shall provide for
preparation of
the appropriate instrument of satisfaction covering any Mortgage
Loan which pays
in full and the Trustee shall cooperate in the execution and return
of such
instrument to provide for its delivery or recording as may be
required. All
other documents in the Mortgage File shall be retained by the
Master Servicer to
the extent required by applicable law. No expenses incurred in
connection with
any instrument of satisfaction or deed of reconveyance shall be
chargeable to
the Custodial Account or the Certificate Account.
From time to time and as appropriate for the servicing or
foreclosure
of any Mortgage Loan, including, for this purpose, collection under
the
Insurance Policies or any other insurance policy relating to the
Mortgage Loan,
the Trustee shall, upon request of the Master Servicer and delivery
to the
Trustee of a Request for Release in the form attached hereto as
Exhibit F-1,
release the related Mortgage File to the Master Servicer, and the
Trustee shall
execute such documents as the Master Servicer shall prepare and
request as being
necessary to the prosecution of any such proceedings. Such Request
for Release
shall obligate the Master Servicer to return each document
previously requested
from the Mortgage File to the Trustee when the need therefor by the
Master
Servicer no longer exists, unless the Mortgage Loan has been
liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the
Custodial Account or the Mortgage File or such document has been
delivered to an
attorney, or to a public trustee or other public official as
required by law,
for purposes of initiating or pursuing legal action or other
proceedings for the
foreclosure of the Mortgaged Property either judicially or
non-judicially, and
the Master Servicer has delivered to the Trustee a certificate of a
Servicing
Officer certifying as to the name and address of the Person to
which such
Mortgage File or such document was delivered and the purpose or
purposes of such
delivery. Upon receipt of a certificate of a Servicing Officer
stating that such
Mortgage Loan was liquidated and that all amounts received or to be
received in
connection with such liquidation which are required to be deposited
into the
Custodial Account have been or will be so deposited, or that such
Mortgage Loan
has become an REO Property, the servicing receipt shall be released
by the
Trustee to the Master Servicer.
Upon written request of a Servicing Officer, the Trustee shall
execute
and deliver to the Master Servicer any court pleadings, requests
for trustee's
sale or other documents prepared by the Master Servicer that are
necessary to
the foreclosure or trustee's sale in respect of a Mortgaged
Property or to any
legal action brought to obtain judgment against any Mortgagor on
the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce
any other
remedies or rights provided by the Mortgage Note or Mortgage or
otherwise
available at law or in equity. Each such request that such
pleadings or
documents be executed by the Trustee shall include a certification
as to the
reason such documents or pleadings are required and that the
execution and
delivery thereof by the Trustee will not invalidate or otherwise
affect the lien
of the Mortgage, except for the termination of such a lien upon
completion of
the foreclosure or trustee's sale.
SECTION 3.17. Servicing Compensation.
As compensation for its activities hereunder, the Master Servicer
shall
be entitled to retain, from deposits to the Custodial Account of
amounts
representing payments or recoveries of interest, the Servicing Fees
with respect
to each Mortgage Loan (less any portion of such amounts retained by
any
Sub-Servicer). In addition, the Master Servicer shall be entitled
to recover
unpaid Servicing Fees out of related Late Collections to the extent
permitted in
Section 3.11.
The Master Servicer also shall be entitled pursuant to Section 3.11
to
receive from the Custodial Account, as additional servicing
compensation
interest or other income earned on deposits therein, as well as any
prepayment
fees, assumption fees, late payment fees and reconveyance fees. The
Master
Servicer shall be required to pay all expenses incurred by it in
connection with
its servicing activities hereunder (including payment of the
premiums for any
Primary Mortgage Insurance Policy or blanket policy insuring
against hazard
losses pursuant to Section 3.13, payment of the servicing
compensation of the
Sub-Servicer to the extent not retained by it), and shall not be
entitled to
reimbursement therefor except as specifically pro vided in Section
3.11. The
Servicing Fee may not be transferred in whole or in part except in
connection
with the transfer of all of the Master Servicer's responsibilities
and
obligations under this Agreement.
SECTION 3.18. Maintenance of Certain Servicing Policies.
During the term of its service as Master Servicer, the Master
Servicer
shall maintain in force (i) a policy or policies of insurance
covering errors
and omissions in the performance of its obligations as servicer
hereunder and
(ii) a fidelity bond in respect of its officers, employees or
agents. Each such
policy or policies and bond shall, together, comply with the
requirements from
time to time of Fannie Mae or Freddie Mac for persons performing
servicing for
mortgage loans purchased by such corporation. The Master Servicer
shall prepare
and present, on behalf of itself, the Trustee and
Certificateholders, claims
under any such errors and omissions policy or policies or fidelity
bond in a
timely fashion in accordance with the terms of such policy or bond,
and upon the
filing of any claim on any policy or bond described in this
Section, the Master
Servicer shall promptly notify the Trustee of any such claims and
the Trustee
shall notify the Rating Agency of such claim.
SECTION 3.19. Annual Statement as to Compliance.
Not later than February 28 of each calendar year beginning in 2007,
the
Master Servicer shall deliver to the Depositor and the Trustee an
Officer's
Certificate (an "Annual Statement of Compliance") stating, as to
the signer
thereof, that (i) a review of the activities of such Servicer
during the
preceding calendar year and of the performance of the Master
Servicer under this
Agreement or other applicable servicing 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 or other applicable servicing agreement in all material
respects
throughout such year, or, if there has been a failure to fulfill
any such
obligation in any material respect, specifying each such failure
known to such
officer and the nature and status of cure provisions thereof. Such
Annual
Statement of Compliance shall contain no restrictions or
limitations on its use.
In the event that the Master Servicer has delegated any
servicing
responsibilities with respect to the Mortgage Loans serviced by it
to a
Subservicer, the Master Servicer shall deliver an officer's
certificate of the
Subservicer as described above as to each Subservicer as and when
required with
respect to the Master Servicer.
If the Master Servicer cannot deliver the related Annual Statement
of
Compliance by February 28th of such year, the Trustee, at its sole
option, may
permit a cure period for the Master Servicer to deliver such Annual
Statement of
Compliance, but in no event later than March 10th of such year.
Failure of the Master Servicer to timely comply with this Section
3.19
shall be deemed an Event of Default, automatically, without notice
and without
any cure period, and the Trustee may, in addition to whatever
rights the Trustee
may have under this Agreement and at law or equity or to damages,
including
injunctive relief and specific performance, terminate all the
rights and
obligations of the Master Servicer under this Agreement and in and
to the
Mortgage Loans serviced by it and the proceeds thereof without
compensating the
Master Servicer for the same. This paragraph shall supercede any
other provision
in this Agreement or any other agreement to the contrary.
SECTION 3.20. Assessments of Compliance and Attestation
Reports.
On and after January 1, 2006, the Master Servicer shall service
and
administer the related Mortgage Loans in accordance with all
applicable
requirements of the Servicing Criteria. The Master Servicer shall
deliver to the
Trustee and the Depositor on or before February 28 of each calendar
year
beginning in 2007, a report (an "Assessment of Compliance")
reasonably
satisfactory to the Trustee regarding the Master Servicer's
assessment of
compliance with the Servicing Criteria during the preceding
calendar year as
required by Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of
Regulation AB, which as of the date hereof, require a report by an
authorized
officer of the related Servicer that contains the following:
(a) A statement by such officer of its responsibility for
assessing
compliance with the Servicing Criteria applicable to the Master
Servicer;
(b) A statement by such officer that such officer used the
Servicing
Criteria to assess compliance with the Servicing Criteria
applicable to the
Master Servicer;
(c) An assessment by such officer of the Master Servicer's
compliance
with the applicable Servicing Criteria for the period consisting of
the
preceding calendar year, including disclosure of any material
instance of
noncompliance with respect thereto during such period, which
assessment shall be
based on the activities it performs with respect to asset-backed
securities
transactions taken as a whole involving the Master Servicer, that
are backed by
the same asset type as the Mortgage Loans;
(d) A statement that a
registered public accounting firm has issued an
attestation report on the Master Servicer's Assessment of
Compliance for the
period consisting of the preceding calendar year; and
(e) A statement as to which of the Servicing Criteria, if any, are
not
applicable to the Master Servicer, which statement shall be based
on the
activities it performs with respect to asset-backed securities
transactions
taken as a whole involving the Master Servicer, that are backed by
the same
asset type as the Mortgage Loans.
Such report at a minimum shall address each of the Servicing
Criteria
specified on a certification substantially in the form of Exhibit
CC hereto
delivered to the Trustee and the Depositor concurrently with the
execution of
this Agreement.
On or before February 28 of each calendar year beginning in 2007,
the
Master Servicer shall furnish to the Trustee and the Depositor a
report (an
"Attestation Report") by a registered public accounting firm that
attests to,
and reports on, the Assessment of Compliance made by the Master
Servicer, as
required by Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122(b) of
Regulation AB, which Attestation Report must be made in accordance
with
standards for attestation reports issued or adopted by the Public
Company
Accounting Oversight Board.
The Master Servicer shall cause any subservicer, and each
subcontractor
determined by the Master Servicer to be "participating in the
servicing
function" within the meaning of Item 1122 of Regulation AB, to
deliver to the
Trustee and the Depositor an assessment of compliance and
accountants'
attestation.
If the Master Servicer cannot deliver the related Assessment of
Compliance or Attestation Report by February 28th of such year, the
Trustee, at
its sole option, may permit a cure period for the Master Servicer
to deliver
such Assessment of Compliance or Attestation Report, but in no
event later than
March 10th of such year.
The Trustee shall also provide an Assessment of Compliance and
Attestation Report, as and when provided above, which shall at a
minimum address
each of the Servicing Criteria specified on Exhibit N hereto which
are indicated
as applicable to the "trustee" or "securities administrator." In
addition, the
Trustee shall cause the Custodian to deliver to the Trustee and the
Depositor an
Assessment of Compliance and Attestation Report, as and when
provided above,
which shall at a minimum address each of the Servicing Criteria
specified on
Exhibit N hereto which are indicated as applicable to a
"custodian."
Notwithstanding the foregoing, as to any Custodian, an Assessment
of Compliance
is not required to be delivered unless it is required as part of a
Form 10-K
with respect to the Trust Fund.
Failure of the Master Servicer to timely comply with this Section
3.20
shall be deemed an Event of Default, automatically, without notice
and without
any cure period, and the Trustee may, in addition to whatever
rights the Trustee
may have under this Agreement and at law or equity or to damages,
including
injunctive relief and specific performance, terminate all the
rights and
obligations of the Master Servicer under this Agreement and in and
to the
Mortgage Loans serviced by it and the proceeds thereof without
compensating the
Master Servicer for the same. This paragraph shall supercede any
other provision
in this Agreement or any other agreement to the contrary.
SECTION 3.21. Access to Certain Documentation.
(a) The Master Servicer shall provide to the OTS, the FDIC and
other
federal banking regulatory agencies, and their respective
examiners, access to
the documentation regarding the Mortgage Loans required by
applicable
regulations of the OTS, the FDIC and such other agencies. Such
access shall be
afforded without charge, but only upon reasonable and prior written
request and
during normal business hours at the offices of the Master Servicer
designated by
it. Nothing in this Section shall derogate from the obligation of
the Master
Servicer to observe any applicable law prohibiting disclosure of
information
regarding the Mortgagors and the failure of the Master Servicer to
provide
access as provided in this Section as a result of such obligation
shall not
constitute a breach of this section.
(b) The Master Servicer shall afford the Depositor and the
Trustee,
upon reasonable notice, during normal business hours access to all
records
maintained by the Master Servicer in respect of its rights and
obligations
hereunder and access to officers of the Master Servicer responsible
for such
obligations. Upon request, the Master Servicer shall furnish the
Depositor and
the Trustee with its most recent financial statements and such
other information
as the Master Servicer possesses regarding its business, affairs,
property and
condition, financial or otherwise to the extent related to the
servicing of the
Mortgage Loans. Payments on the Mortgage Loans, including any
Payoffs, made in
accordance with the related Mortgage File will be entered into the
Master
Servicer's set of records no more than two Business Days after
receipt, and
allocated to principal or interest as specified in the related
Mortgage File.
The Depositor 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
or exercise the 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 the Depositor or its designee. The
Depositor shall
not have any responsibility or liability for any action or failure
to act by the
Master Servicer and is not obligated to supervise the performance
of the Master
Servicer under this Agreement or otherwise.
SECTION 3.22. Title, Conservation and Disposition of REO
Property.
This Section shall apply only to REO Properties acquired for
the
account of the Trust Fund, and shall not apply to any REO Property
relating to a
Mortgage Loan which was purchased or repurchased from the Trust
Fund pursuant to
any provision hereof. In the event that title to any such REO
Property is
acquired, the deed or certificate of sale shall be issued to the
Trustee, or to
its nominee, on behalf of the Certificateholders. The Master
Servicer, on behalf
of the Trust Fund, shall either sell any REO Property within two
years after the
Trust Fund acquires ownership of such REO Property for purposes of
Section
86OG(a)(8) of the Code or, at the expense of the Trust Fund,
request an
extension of the two-year grace period, more than 60 days before
the day on
which the two-year grace period would otherwise expire, unless the
Master
Servicer has delivered to the Trustee an Opinion of Counsel,
addressed to the
Trustee and the Master Servicer, to the effect that the holding by
the Trust
Fund of such REO Property subsequent to two years after its
acquisition will not
result in the imposition on the Trust Fund of taxes on "prohibited
transactions"
thereof, as defined in Section 86OF of the Code, or cause the Trust
Fund to fail
to qualify as a REMIC under federal law at any time that any
Certificates are
outstanding. The Master Servicer shall manage, conserve, protect
and operate
each REO Property for the Certificateholders solely for the purpose
of its
prompt disposition and sale in a manner which does not cause such
REO Property
to fail to qualify as "foreclosure property" within the meaning of
Section
86OG(a)(8) or result in the receipt by the Trust Fund of any
"income from non-
permitted assets" within the meaning of Section 86OF(a)(2)(B) of
the Code or any
"net income from foreclosure property" which is subject to taxation
under the
REMIC Provisions. 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
Certificateho
